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TABLE OF CONTENTS

Fage

Appenpix A—Statutes Involved ................ la-5a

AppENpDIx B—Opinion of the United States Court

of Appeals for the Third Circuit,

August 13, 1968 .............000. 6a-39a

Appenpix C—Judgments of Court of Appeals,

BE Oe We vc eeeaeeeesokes 40a-42e

1. Judgment Case No. 16,266 ...... 40a

2. Judgment Case No. 16,267 ...... 4la

3. Judgment Case No. 16,268 ...... 42a

AppENpIx )—Opinions of United States District

Court for the District of Delaware.. 43a-115a

1. Opinion of October 5, 1957 (156 F.

WE SE etuiidvistacasier 43a-57a

2. Opinion of October 28, 1958 (167

Bs WH I bo ee dcee ve eiaees 57a-66a

3. Opinion of June 10, 1959 (174 F.

a ee ee ee 67a-80a

4. Opinion of July 11, 1961 (196 F.

WS WED x obdsciseesicvesencs 81a-86a

5. Opinion of May 3, 1962

(Unreported) ................. 87a

6. Opinion of November 4, 1963 (223

Ws WY WEE A kd écrecsueveass 88a-105a

7. Opinion of September 3, 1965 (244

F. WN ME evdvcveacnsbiness 106a-109a

8. Memorahdum Opinion of Septem-

ber 6, 1966 (Unreported) ...... 111a-113a

9. Order of September 6, 1966

(Unreported) .........scevcess 114a-11l5a

IN THE

Supreme Court of the Wuited States

Octoser TERM, 1968

No.

Tue INTERNATIONAL ASSOCIATION OF Macutnists, Petitioner,

v.

Vincent P. Brapy, Respondent.

No.

Trans Wort Arauinss, Inc., Petitioner,

V.

Vincent P. Brapy, Respondent.

On Petition For A Writ of Certiorari To The United States

Court Of Appeals For The Third Circuit

' APPENDICES TO PETITIONS

Statutory Provisions and Opinions of District Court

and Court of Appeals

reine tei

REIL I LEP ING SOLE SIRI ONT MS AO ETO LE EM AEST IN I CORI

ere ide ede

PALLY ETT ERO ED BN

la

APPENDIX A

Statutes Involved

Sec. 2, First. [45 U.S.C.A., Section 152] It shall be the

duty of all carriers, their officers, agents, and employees to

exert every reasonable effort to make and maintain agree-

ments concerning rates of pay, rules, and working condi-

tions, and to settle all disputes, whether arising out of the

application of such agreements or otherwise, in order to

avoid any interruption to commerce or to the operation of

any carrier growing out of any dispute between the carrier

and the employees thereof.

Fourth. Employees shall have the right to organize

and bargain collectively through representatives of their

own choosing. The majority of any craft or class of em-

ployees shall have the right to determine who shall be the

representative of the craft or class for the purposes of this

Act. No carrier, its officers or agents, shall deny or in any

way question the right of its employees to join, organize, or

assist in organizing the labor organization of their choice,

and it shall be unlawful for any carrier to interfere in any

way with the organization of its employees, or to use the

funds of the carrier in maintaining or assisting or co.-

tributing to any labor organization, labor representative,

or other agency of collective bargaining, or in performing

any work therefor, or to influence or coerce employees in

an effort to induce them to join or remain or not to join or

remain members of any labor organization or to deduct

from the wages of employees any dues, fees, assessments,

or other contributions payable to labor organizations, or to

collect or to assist in the collection of any such dues, fees,

assessments, or other contributions: Provided, That nothing

in this Act shall be construed to prohibit a carrier from

permitting an employee, individually, or local representa-

tives of employees from conferring with management dur-

ing working hours without loss of time, or to prohibit a

Drea

i eA kab No ati ae

2a

carrier from furnishing free transportation to its employees

while engaged in the business of a labor organization.

Fifth. No carrier, its officers, or agents shall require

any person seeking employment to sign any contract or

agreement promising to join or not to join a labor organ-

ization; and ii any such contract has been enforced prior

to the effective date of this Act, then such carrier shall

notify the emple, ves by an appropriate order that such

contract has been discarded and is no longer binding on

them in any way.

Seventh. No carrier, its officers, or agents shall change

the rates of pay, rules, or working conditions of its em-

ployees, as a class as embodied in agreements except in the

manner prescribed in such agreements or in Section 6 of

the Act.

Eleventh. Notwithstanding any other provisions of this

Act, or of any other statute or law of the United States,

or Territory thereof, or of any State, any carrier or car-

riers as defined in this Act and a labor organization or labor

organizations duly designated and authorized to represent

employees in accordance with the requirements of this Act

shall be permitted—

(a) To make agreements, requiring, as a condition of

continued employment, that within sixty days following the

beginning of such employment, or the effective date of such

agreements, whichever is the later, all employees shall be-

come members of the labor organization representing their

craft or class: Provided, That no such agreement shall

require such condition of employment with respect to em-

ployees to whom membership is not available upon the same

terms and conditions as are generally applicable to any

other member or with respect to employees to whom mem-

bership was denied or terminated for any reason other than

the failure of the employee to tender the periodic dues, ini-

tiation fees, and assessments (not including fines and pen-

3a

alties) uniformly required as a condition of acquiring or

retaining membership.

(b) To make agreements providing for the deduction by

such carrier or carriers from the wages of its or their

employees in a craft or class and payment to the labor

organization representing the craft or class of such em-

ployees, of any periodic dues, initiation fees, and assess-

ments (not including fines and penalties) uniformly re-

quired as a condition of acquiring or retaining membership:

Provided, That no such agreement shall be effective with

respect to any individual employee until he shall have fur-

nished the employer with e written assignment to the labor

organization of such membership dues, initiation fees, and

assessments, which shall be revocable in writing after the

expiration of one year or upon the termination date of the

applicable co'lective agreement, whichever occurs sooner.

(c) The requirement of membership in a labor organ-

ization in an agreement made pursuant to subparagraph (a)

shall be satisfied, as to both a present or future employee

in engine, train, yard, or hostling service, that is, an em-

ployee engaged in any of the services or capacities covered

in Section 3, First (h) of this Act defining the jurisdictional

scope of the First Division of the National Railroad Adjust-

ment Board, if said employee shall hold or acquire member-

ship in any one of the labor organizations, national in scope,

organized in accordance with this Act and admitting to

membership employees of a craft or class in any of said

services ; and no agreement made pursuant to subparagraph

(b) shall provide for deduction from his wages for periodic

dues, initiation fees, or assessments payable to any labor

organization other than that in which he holds membership:

Provided, however, That as’to an employee in any of said

services on a particular carrier at the effective date of any

such agreement on a carrier who is not a member ot any

one of the labor organizations, national in scope, organized

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4a

in accordance with this Act and admitting to membership

employees of a craft or class in any of said services such

employee, as a condition of continuing his employment, may

be required to become a member of the organization repre-

senting the craft in which he is employed on the effective

date of the first agreement applicable to him: Provided,

further, That nothing herein or in any such agreement or

agreements shall prevent an employee from changing meimn-

bership from one organization to another organization ad-

mitting to membership employees of a craft or class in any

of said services.

(d) Any provision in paragraphs Fourth and Fifth of

Section 2 of this Act in conflict herewith are to the extent

of such conflict amended.

Section 204. [45 U.S.C.A., Section 184] The disputes

between an employe or group of empioyees and a carrier

or carriers by air growing out of grievances, or out of the

interpretation or application of agreements concerning

rates of pay, rules, or working conditions, including cases

pending and unadjusted on the date of approval of this Act

before the National Labor Relations Board, shall be handled

in the usual manner up to and including the chief operating

officer of the carrier designated to handle such disputes;

but, failing to reach an adjustment in this manner, the dis-

putes may be referred by petition of the parties or by either

party to an appropriate adjustment board, as hereinafter

provided, with a full statement of the facts and supporting

data bearing up the disputes.

It shall be the duty of every carrier and of its em-

ployees, acting through their representatives, selected in

accordance with the provisions of this title, to establish a

board of adjustment of jurisdiction not exceeding the juris-

diction which may be lawfully exercised by system, group,

or regional boards of adjustment, under the authority of

Section 3, Title I, of this Act.

eth ein t's) Be

anit! ewan’ BME alll Woaretns a8d (ABs Sik ar ” pede dak DB

5a

Such boards of adjustment may be established by agree-

ment between employees and carriers either on any indi-

vidual carrier, or system, or group of carriers by air and

any class or classes of its or their employees; or pending

the establishment of a permanent National Board of Adjust-

ment as hereinafter provided. Nothing in this Act shall

prevent said carriers by air, or any class or classes of their

employees, both acting through their repzesentatives se-

lected in accordance with provisicns of this title, from mu-

tually agreeing to the establishment of a National Board of

Adjustment of temporary duration and of similarly lim-

ited jurisdiction.

6a

APPENDIX B

Opinion of the United States Court of Appeals for the

Third Circuit

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 16266, 16267 and 16268

Vincent P. Brapy

Vv.

Trans Wortp Areuines, Inc., and THE INTERNATIONAL

AssociaTION OF MACHINISTS

Vincent P. Brapy, Appellant in No. 16266

Trans Wortp Arauings, Inc., Appellant in No. 16267

THe INTERNATICNAL ASSOCIATION OF MACHINISTS,

Appellant in No. 16268

AppEAL F'Rom THE Unitep States District Court For THE

District or DELAWARE

Argued September 26, 1967

Before McLaucuHuin, Hastm and Forman, Circuit Judges.

Opinion of the Court

(Filed August 13, 1968)

By Forman, Circuit Judge.

This litigation, protracted over more than eleven years,

| concerns the suit brought by Vincent P. Brady against his

) union, The International Association of Machinists (IAM),'

: 1 The present name of this organization is International Associa-

tion of Machinists and Aerospace Workers.

7a

for breach vi its duty of fair representation, and his em-

ployer, Trans World Airlines, Inc. (TWA), for wrongful

discharge violative of the Railway Labor Act.? In an order

filed November 4, 1963, the United States District Court of

the District of Delaware found against TWA and IAM on

the issue of liability. By its order filed September 6, 1966,

Mr. Brady was awarded damages by way of back pay and

reinstatement in both his former employment and in his

union membership. From these and previous orders TWA*

and IAM” appealed. Mr. Brady has cross-appealed main-

taining that the District Court erred, among other things,

in so far as it limited the recoverable damages.”°

245 U.S.C. § 151 et seq.

2a TWA noticed its appeal from the ‘‘final judgment entered . ..

on September 6, 1966. . . except so much as provides ‘that plain-

tiff’s application to join as a party-plaintiff plaintiff’s wife be and

the same is denied’ and from each and every other order entered

herein which entered intc the making of said final judgment.”’

2> TAM noticed its appeal from the following:

‘©(1) The portion of the order of November 12, 16 59, deny-

ing defendants’ motions to dismiss the second amended com-

plaint and to strike certain portions thereof ;

‘“©(2) The portion of the order of Avgust 4, 1961, denying

defendants’ motions for summary judgment;

‘©(3) The order of November 4, 1963, holding defendants

to be liable to the plaintiff ;

‘¢(4) Paragraphs one through six of the order of September

6, 1966, awarding damages to the plaintiff.’’

2¢ In his notice of appeal, vs amended, Mr. Brady particularized

the denial by the District Court of

(1) His demand for a jury trial

(2) His applications for

(a) punitive damages

(b) attorneys’ fees and costs

(c) the value of free passes available to employees of

TWA and

(d) leave to join his wife as a party plaintiff.

4

8a

The complicated factual background of this case has

been amply set forth in the several opinions of the District

Court.? Therefore the particular facts will be adverted to

herein only as they are necessary for a general understand-

ing of the several issues raised in these appeals.

In 1951, Mr. Brady, who was previously employed by

TWA, was rehired as a line mechanic and worked at the

Philadelphia International Airport until May 15, 1956, the

date of the alleged wrongful discharge. During this period

he was a member of Local Lodge 1776 of IAM. In October

1955, a campaign was begun to raise the membership dues

of Local 1776. At the November 1955 meeting the lodge

members voted to raise the dues for persons in Mr. Brady’s

classification from $3.00 to $3.25 per month. Many members

of the lodge who like Mr. Brady, had not been present, com-

plained to him, as a shop steward, about the dues increase

because they had not received sufficient notice of the time

and place of the November meeting. At the December meet-

ing, the members adopted Mr. Brady’s motion that the prior

dues increase be rescinded; that the issue be brought before

the next general membership meeting after the posting of

due notices. Nevertheless, notices were not posted and the

general membership meeting was not held in January.* In

$156 F. Supp. 82 (D. Del. 1957) ; 167 F. Supp. 469 (1958) ; 174

F. Supp. 360 (1959) ; 196 F. Supp. 504 (1961) ; 223 F. Supp. 361

(1963) ; 244 F. Supp. 820 (1965); Civil No. 1884 (D. Del., filed

September 6, 1966). The first of these citations reports the opinion

of the late Chief Judge Paul Leahy who retired after its filing. The

other citations refer to opinions by Chief Judge Caleb M. Wright.

* A special meeting was held in January 1956, but no mention

was made of the dues question. When the dues matter was again

handled at the February meeting in a manner unsatisfactory to

him, Mr. Brady wrote a letter to A. J. Hayes, International Presi-

dent of the IAM, and Eric Peterson, Financial Secretary of the

Grand Lodge, describing and protesting as illegal the manner in

which the dues for Local Lodge 1776 had been increased. In his

letter Mr. Brady enclosed his dues book and a check for three

a ktainadea tem Alor 5 saphena a Senate S Hail acess

9a

protest to what he considered to be an illegal dues increase,

Mr. Brady refused to pay his monthly dues at the new rate.

Frequently thereafter he tendered his dues at the old rate

and since these tenders were always rejected the record

sndicates that his last dues payment was for November 1955.

In January 1956, Gerald C. Coleman became the finan-

cial secretary of Local Lodge 1776. Shortly after assuming

his office, Mr. Coleman began a program to collect all back

dues from members of the lodge. On February 15, 1956, he

posted a list of the nine members who on that date still

owed dues for two or more months. Mr. Brady was then

listed as owing dues for December and January. This

posted notice threatened the nine members with action from

the district office unless the dues were paid withn ten days.

At the end of this ten day period, of those listed, only Mr.

Brady, who continued to tender dues at the $3.00 rate, re-

mained delinquent.

On March 3, 1956, Mr. Coleman cited Mr. Brady to

Clifford Miller, General Chairman of District 142, which

had jurisdiction over Local Lodge 1776, for his dues delin-

quency and sought discharge action. Mr. Brady received a

letter dated March 13, 1956, from Mr. Miller advising him

that he had not complied with the union security provisions

of the TWA-IAM collective bargaining agreement and that

unless he paid outstanding dues for four months including

those of March, by March 28, he would be discharged from

his employment by TWA. In response to this letter, on

March 27, 1956, Mr. Brady tendered his dues book and a

check for $10.50 to Mr. Coleman® On instructions from

months dues at the old rate and stated that he would reimburse

the lodge if future actions showed that his tender was insufficient.

On February 17, 1956, Mr. Brady received a letter from Mr. Hayes

which stated that the dues increase ‘‘was handled properly.”’

5 Mr. Brady believed the dues increase for persons of his classi-

fication was fifty cents rather than twenty-five cents, so his check

was intended to cover three months dues at the increased rate.

\eliphhibes DRIES Ne SI AOS MRE, 1

10a

Mr. Miller, Mr. Coleman wrote Mr. Brady on March 28 re-

jecting his tender as insufficient. For the first time, he

demanded payment by April 4 of a $25.00 reinstatement fee,

allegediy due pursuant to the IAM Constitution, and $9.75

for three months dues.

Mr. Brady feared that if he paid a reinstatement fee he

would lose the five years seniority that he had accumulated

with TWA. On April 3, 1956, Mr. Brady filed his first

appeal with the TWA-IAM System Board of Adjustment

(Board). On April 7, 1956, Mr. Coleman wrote to Mr.

Miller advising him of Mr. Brady’s failure to make pay-

ment as demanded. Mr. Miller, on April 9, 1956 certified

to TWA that Mr. Brady should be discharged for violating

the union security provision of the collective bargaining

agreement. On April 10, TWA notified Mr. Brady of this

certification.

At this point, Mr. Miller realized that Mr. Coleman had

misunderstood the instruction given him and had mis-

takeniy demanded in the letter of March 28, 1956, both a

reinstatement fee and outstanding dues. Mr. Miller imme-

diately cancelled Mr. Brady’s discharge certification and

on April 11, wrote to Mr. Brady expiaining Mr. Coleman’s

error and demanding only payment of the $25.00 reinstate-

ment fee by April 26. Mr. Brady answered Mr. Miller’s

letter by offering to pay all dues outstanding but requesting

that he should be permitted to forego the reinstatement

fee. Mr. Miller rejected this offer and again demanded the

reinstatement fee. On April 24, Mr. Brady filed his second

appeal to the Board arguing that he had not violated the

union security provisions of the collective bargaining agree-

ment. This appeal was dismissed at a hearing on May 4 as

premature since it had been filed prior to May 1, 1956, the

date of a second certification for discharge which Mr. Miller

had sent to TWA. On May 5, 1956, Mr. Brady made a thi’ 4

appeal to the Board protesting the May 1 certification. A

Bh ccscaresnniieriorsiocs 15 ha ee AD a eR AIL tt SE ATi NA i AP ae

lla

hearing was held on May 14,° and the Board ruled that the

discharge was proper under the union security provisions

of the collective bargaining agreement. Accordingly, Mr.

Brady was discharged from his employment by TWA effec-

tive May 15, 1956.

After unsuccessfully seeking a rehearing by the Board,

on the charge that Mr. Miller had misrepresented facts at

the hearings of May 4 and May 14, Mr. Brady, on April 22,

1957, filed a complaint in the District Court charging [AM

with hostile discrimination in breach of its duty of fair

representation and TWA with wrongful discharge in vio-

lation of the Railway Labor Act. Mr. Brady sought relief

against IAM and TWA by way of reinstatement in the

union and in his employment together with compensatory

and punitive damages.

—_ sn

At the outset, both IAM and TWA challenge the sub-

ject matter jurisdiction of the District Court. They submit

that pursuant to section 204 of the Railway Labor Act,’

Article XII of the TWA-IAM collective bargaining agree-

ment established a System Board of Adjustment to adjust

and decide disputes or grievances arising out of the inter-

pretation and application of the agreement. Paragraph (k)

of Article XII provides that decisions of the Board in cases

properly before it shall be final and binding on the parties.

Article XXVI(f), one of the union security provisions, gives

an employee the right to appeal his discharge to the Board.

Several cases are cited which uphold the finality of adjust-

6 Mr. Brady did not attend the hearings of May 4 and May 14,

held in Kansas City, Missouri, because, as he said in his letter

to the Board, he believed the Board had before it all the necessary

factual documents to substantiate his position.

745 U.S.C. § 184. The Railway Labor Act was made applicable

to ‘‘earriers by air’’ in 1936. 45 U.S.C. § 181 et seq.

5 Bess ll file BES LOL NDE ALITA SE ial GALILEO SE AAA RTT

on Ras SRT an eae |

3 BReEe. ap SON ere we Seas

12a

ment board decisions and circumscribe their reviewability

by the courts.’

Focusing on these contractual provisions, it is argued

that Mr. Brady elected to appeal to the Board, that hearings

were held by that body on May 4 and May 14, 1956, and

that Mr. Brady’s discharge was determined to be proper

under the collective bargaining agreement. Having elected

to take this appeal to the Board, the assertion is made that

its adverse decision is final and binding on Mr. Brady and

that the courts may not review the merits of that decision.

This argument, wh’ h seeks to sustain the Board’s ruling,

and to foreclose judicial review of the dispute, was properly

rejected by the District Court.

The complaint in this case, as amended, charges IAM,

which throughout the period in question was the plaintiff’s

exclusive bargaining agent, with hostile discrimination in

refusing to accept tender of Mr. Brady’s dues because of

claimed delinquency, terminating his union membership and

wrongfully citing him for discharge from his employment

with TWA, actions which, it is alleged, IAM did not take

against other members of Local Lodge 1776 who were said

to be delinquent in the payment of their dues. Furthermore,

IAM is charged with hostile discrimination in misrepresent-

ing the facts pertaining to Mr. Brady’s alleged dues delin-

quency at the hearings before the Board. These allegations

make it clear, as the District Court noted, that plaintiff’s

controversy is primarily with his bargaining agent rather

than his employer.

The propriety of disregarding the ruling of the Board

is justified by an examination of the Board’s statutory jur-

8 See, e.g., Gunther v. San Diego A.E. Ry., 382 U.S. 257 (1965) ;

International Ass’n of Machinists v. Central Airlines, 372 U.S.

682 (1963); Bower v. Eastern Airlines, 214 F. 2d 623 (3 Cir.),

cert, denied, 348 U.S. 871 (1954).

13a

isdiction. Section 204 of the Railway Labor Act ° authorizes

the establishment of air carrier adjustment boards and sets

forth their jurisdiction as follows:

‘‘The disputes between an employee or group of

employees and a carrier or carriers by air growing out

of grievances, or out of the interpretation or applica-

tion of agreements concerning rates of pay, rules, or

working conditions, . . . may be referred by petition

of the parties or by either party to an appropriate ad- -

justment board, .. .”’

Subsequent language of this section limits the jurisdiction

of air carrier adjustment boards to that granted to railway

carrier adjustment boards as provided in section 3 of the

Railway Labor Act.’° The jurisdiction of railway carrier

adjustment boards has been consirued as encompassing dis-

putes between employees and their employers, but not dis-

putes between employees and their bargaining representa-

tives. In Conley v. Gibson,“ union members brought a suit

against their bargaining agent for breach of its duty of fair

representation. Their complaint was dismissed on the

ground that the adjustment board had exclusive jurisdic-

tion over the controversy. The Supreme Court, reversed,

stating:

‘‘But § 3 First (i) by its own terms applies only to ‘dis-

putes between an employee or group of employees and

a carrier or carriers.’ This case involves no dispute

between employee and employer but to the contrary is a

suit by employees against the bargaining agent to en-

force their statutory right not to be unfairly discrim-

inated against by it in’ bargaining. The Adjustment

945 U.S.C. § 184.

10 45 U.S.C. § 153.

11 355 U.S. 41 (1957).

A LEONARD AALS BE tat ae oe wh tetra Rt ee _

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l4a

Board has no power under §3 First (i) or any other

provision of the Act to protect them from such dis-

crimination.’ *

The District Court, relying on Conley, correctly ruled

that since the Board was without jurisdiction to hear Mr.

Brady’s claim, which essentially charges IAM with hostile

discrimination, the Board’s decision could not bar judicial

review of the merits of that controversy. That the em-

ployer was joined to afford complete relief and that the dis-

pute may incidentally involve construction or interpreta-

tion of the collective bargaining agreement does not change

the basic fact that the Railway Labor Act does not author-

ize adjustment boards to hear an employee’s dispute against

his union.

There is good reason for denying the jurisdictional

authority of adjustment boards in so far as controversies

between employees and their bargainivg representatives

are concerned. Tie membership of such boards is designed

ot give representation to management and to the union.”

Normally the board’s composition would present no prob-

lem since its express statutory authority is to hear griev-

ances between employees and their employers arising out of

the collective bargaining agreement. In such a dispute

the employee would expect his union, acting under its duty

to prosecute fairly the grievances of its members, to repre-

12 Td. at; 44-45. See Rumbaugh v. Winifrede R.R., 331 F. 2d 530

(4 Cir.), cert. denied, 379 U.S. 929 (1964) ; Cunningham v. Erie

R.R., 266 F. 2d 411 (2 Cir. 1959) ; Wade v. Southern Pacific Co.,

243 F. Supp. 307 (S.D. Texas 1965) ; Nobile v. Woodward, 200 F.

Supp. 785 (E.D. Pa. 1962).

18 Article XII(b) of the TWA-IAM collective bargaining agree-

ment provides:

‘‘The System Board of Adjustment shall consist of four (4)

members, two (2) selected by the Company and two (2)

selected by the Union.”’

15a

sent him before the board. This scheme, however, over-

looks the possibility that the union’s interest might con-

flict with the employee’s and this is especially so in cases

where the employee is charging the union with hostile

discrimination. In such circumstances, the union can hardly

be expected to press the employee’s claim vigorously and

forthrightly. The District Court’s statement on this point

bears reiteration:

‘‘Tt is simply repugnant to our standards of funda-

mental fairness and totally unrealistic to require an

employee to submit a dispute he has with his bargaining

agent for final determination to persons selected by and

representing the bargaining representative.’’ **

The decision of this court in Bower v. Eastern Air-

lines™® is relied on by IAM and TWA as requiring a recog-

nition of the Board’s ruling as final and binding upon the

parties. In that case, Bower, having been discharged from

his employment, appealed to the board charging his em-

ployer with wrongful discharge. The board sustained the

discharge and Bower then reasserted the same claim in the

District Court. This court held that the employee, having

elected the administrative remedy in seeking settlement of

a dispute concerning his employment could not obtain a

judicial reexamination of the merits of the dispute. But

the court went on to say: ‘‘This does not foreclose the con-

sideration of questions of jurisdiction or of the essential

fairness of the administrative proceedings, even when these

issues are raised collaterally.’’’* The situation presented

by the present case seems to come squarely within the

caveat of Bower. Moreover, it is significant that in Bower,

14 167 F. Supp. at 472.

15 214 F, 2d 623 (3 Cir.), cert. denied, 348 U.S. 871 (1954).

16 Td. at 626.

te ultdidh op Deg Pe A aA Col a ed

| > ates

and like cases advanced with it, employees sought relief

against their employers and not their unions.”

The conclusion that because the Board lacked jurisdic-

tion to hear the dispute its decision does not preclude an

independent judicial review of the controversy, of course,

does not itself establish the District Court’s jurisdiction.

Here, the District Court, however, properly found that Mr.

Brady had pleaded causes of action invoking federal juris-

diction under 28 U.S.C. §§ 1331, 1337.

It is now well established that an exclusive bargaining

agent has a fiduciary obligation imposed by federal law to

fairly represent all those employees in the bargaining unit

in the negotiation, administration, and enforcement of col-

lective bargaining agreements.’* The federal courts have

subject matter jurisdiction to enforce this statutory duty of

fair representation which imposes on the union an obliga-

tion to serve the interests of all members without hostility

or discrimination toward any, to exercise its discretion with

complete good faith and hgnesty, and to evoid arbitrary

conduct.” Although this duty imposed ou the bargaining

agent was originally restricted to the prevention of hostile

17 Gunther v. San Diego & A.E. Ry., 382 U.S. 257 (1965) ; Inter-

nationul Association of Machinists v. Central Airlines, Inc., 372

U.S. 682 (1963) ; Elgin J.&E. Ry. v. Burley, 325 U.S. 711 (1945)

{involved authority of union to exclusively represent employees

before the National Railroad Adjustment Board and to settle their

contract claims against employer); Finlin v. Pennsylvania R.R.,

288 F. 2d 826 (3 Cir. 1961) ; Woolley v. Eastern Air Lines, 250 F.

2d 86 (5 Cir. 1957), cert. denied, 356 U.S. 931 (1958) ; Sigfred v.

Pan American World Airways, 230 F. 2d 13 (5 Cir.), cert. denied,

351 U.S. 925 (1956).

18 Conley v. Gibson, 355 U.S. 41 (1957) ; Ford Motor Co. v. Huff-

man, 345 US. 330 (1953); Elgin, J.ZGE. Ry. v. Burley, 325 U.S.

711 (1945); Tunstall v. Brotherhood of Locomotive Firemen, 323

U.S. 210 (1944); Steele v. Louisville & Nashville R.R., 323 U.S.

192 (1944).

19 Vaca v. Sipes, 386 U.S. 171 (1967) ; Humphrey v. Moore, 375

U.S. 335 (1964) : Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).

enteeiwisituitee act pie eto. (teste Sites hl i 2 clit - -

17a

discrimination based on racial prejudice,™ it is now recog-

nized that the statuiory power conferred on unions imposes

on them a corresponding duty which encompasses the pro-

hibition of all forms of hostile discrimination.”

Mr. Brady sets forth in his complaint, as amended,

allegations of ‘‘wilfull and deliberate”’ discrimination by

the IAM, such as the arbitrary invocation of union security

provisions which caused him to be discharged from his em-

ployment by TWA. These allegations clearly constituted a

claim against IAM cognizable in the District Court. The

assertion of TWA that the court lacks jurisdiction over the

employer in such a suit has been clearly answered by the

Court of Appeals for the Second Cireuit in Cunningham v.

Erie R.R.* In that case, which is strikingly similar to the

instant case, the court stated:

“If the District Court has jurisdiction to proceed

against the union it is clear, we think, that it has also

power to adjudicate the claim against the railroad. It

would be absurd to require this closely integrated dis-

pute to be cut up into segments.’ *

20 Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944) ;

Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210

(1944) ; Brotherhood of Railroad Trainmen v. Howard, 343 U.S.

768 (1952).

21 Vaca v. Sipes, 386 U.S. 171 (1967) ; Humphrey v. Moore, 375

U.S. 335 (1964) ; Ford Motor Co. v. Huffman, 345 U.S. 380 (1953) ;

Rumbaugh v. Winifrede R.R., 331 F. 2d 530 (4 Cir.), cert. demed,

379 U.S. 929 (1964); Thompson v. Brotherhood of Sleeping Car

Porters, 316 F. 2d 191 (4 Cir. 1963) ; Cunningham v. Erie B.R.,

266 F. 2d 411 (2 Cir. 1959); Nobile v. Woodward, 200 F. Supp.

785 (E.D. Pa. 1962).

22 266 F’. 2d 411 (2 Cir. 1959).

23 Td. at 416. The policy of preventing the fragmentation of the

controversy and adjudicating the entire matter in a single forum

to assure complete relief was followed in Rumbaugh v. Winifrede

R.R., 331 F. 2d 530 (4 Cir. 1964) ; Wade v. Southern Pacific Co.,

243 F. Supp. 307 (S.D. Texas 1965) ; Nobile v. Woodward, 200 F.

S-np. 785 (E.D. Pa. 1962).

ee ee ww, 25 Pe - ‘ PORES Ee awe Ot eer ey er ee TT ae ee -’ * whee Se ides Seaelie tye 6 ee Mah

18a

Apart from the foregoing, Mr. Brady has stated other

grounds which validly invoke the jurisdiction of the District

Court against both IAM and TWA. He charges both de-

fendants with causing his discharge in violation of section

_ 2 (Eleventh) of the Railway Labor Act * which, in part,

provides:

‘*Hleventh. Notwithstanding any other provisions

of chis chapter, ... any carrier or carriers... anda

labor organization or labor organizations duly desig-

nated and authorized to represent employees in accord-

ance with the requirements of this chapter shall be

permitted—

‘*(a) to make agreements, requiring, as a condition

of continued employment, that within sixty days follow-

ing the beginning of such employment, or the effective

date of such agreements, whichever is the later, all

employees shall become members of the labor organiza-

tion representing their craft or class: Provided, That

no such agreement shall require such condition of em-

ployment with respect to employees to whom member-

ship is not available upon the same terms and conditions

as are generally applicable to any other member or with

respect to employees to whom membership was denied

or terminated for any reason other than the failure of

the employee to tender the periodic dues, initiation fees,

and assessments (not including fines and penalties) nni-

formly required as a condition of acquiring or retaining

membership. ’’

There is no need to repeat the District Court’s lengthy and

careful analysis of this provision, its intended purposes and

its effect on the court’s jurisdiction of the present case. In

% 45 U.S.C. §152 (Eleventh). Hereafter paragraphs of 45

U.S.C. § 152 will be designated simply by their place in section 2

of the Railway Labor Act.

wean rte

Por snr vrei e TCs 0 cl eal teen a ametentatal

19a

sum, the District Court reasoned that section 2 (Eleventh),

which permits union shop agreements within prescribed

limits, was intended as a proviso to section 2 (Fourth)

(Fifth), which prohibited all employer conduct designed to

influence or coerce employees to join or maintain member-

ship in a labor organization.” In so analyzing the Railway

Labor Act the District Court considered Mr. Brady’s com-

plaint as alleging that his discharge was not protected by

the exception to prohibited employer conduct (section 2

(Eleventh)) and because his discharge was designed ‘‘to

influence or coerce employees in an effort to induce them to

join or remain . . . members of [a] labor organization’’,”®

it violated the anti-discrimination provisions of section 2

(Fourth). The District Court further reasoned that since

the court’s jurisdiction over complaints alleging violations

of section 2 (Fourth) was clearly established, that jurisdic-

tion should encompass suits involving section 2 (Eleventh),

the proviso to section 2 (Fourth).”

It is the contention of TWA and IAM that this case

involves the interpretation and application of the union

security provisions of the collective bargaining agreement

and, therefore, the adjustment board has exclusive juris-

diction. This argument, which assumes that public statu-

tory rights, when incorporated in a collective bargaining

agreement, becomes exclusively private contract rights, is a

reiteration of the same argument that was rejected by the

District Court. Under the view expressed by TWA and

IAM, an employee who seeks to regain his job after being

25 223 F. Supp. at 364-365.

26 45 U.S.C. § 152 (Fourth).

27 993 F. Supp. at 365. The District Court recognized an excep-

tion to this rule (196 F. Supp. at 507 n. 11). Suits involving sec-

tion 2 (Eleventh) (c) were specifically left o a special board rather

than the courts. See 45 U.S.C. §153(f); Pennsylvania R.R. v.

Rychlik, 352 U.S. 480 (1957).

Pe eee re ye

MOP Pains! MIB 82 we ON ete MET Be

discharged for alleged nonpayment of dues is required to

appeal to the adjustment board, which consists of an equal

number of representatives of the employer and the union.”

By permitting a limited form of union shop in section 2

(Eleventh), Congress intended to relax the anti-discrimina-

tion provisions of section 2 (Fourth) (Fifth).” In so re-

laxing them, it did not intend an appeal to the adjustment

board as the sole recourse for an employee seeking rein-

statement in his employment after being discharged for

alleged nonpayment of his union dues. Otherwise, in such

a dispute, which pits an employee against his union and his

employer, the very parties whose power he challenged,

would have the additional power of deciding whether they

had exercised it in a proper manner. The District Court

properly concluded that ‘‘if application and interpretation

of 2 (Eleventh) is the sole province of Adjustment Boards,

then Congress did not ‘relax’ the prohibitions of 2 (Fourth)

(Fifth) by enacting 2 (Eleventh) ; it repealed them.’’

The jurisdiction of the District Court over the subject

matter of this suit was well founded in view of the allega-

tions in the complaint as amended of hostile discrimination

and of violations of Mr. Brady’s rights under section 2

(Fourth) (Eleventh) of the Railway Labor Act.**

28 See note 13, supra.

29S. Rep. No. 2262, 81st Cong. 2d Sess. 1950; U.S. Code Con-

gressional & Administrative News, Vol. II, p. 4320.

80 223 F. Supp. at 366.

81 Tn the opinion reported at 174 F. Supp. 360, 365, the District

Court raises sua sponte a third source of federal court jurisdiction,

namely, the validity of the union security provisions of the col-

lective bargaining agreement in light of 45 U.S.C. §152

(Eleventh) (a). In view of the disposition of this case, it is

not necessary to consider this further jurisdictional basis.

se Sonic loan he

21a

a, nee

The suit was heard by the District Judge without a

jury * first on the issue of liability ** and later on the ques-

tion of damages.** He construed the complaint as raising

alternative grounds for relief—a claim for hostile discrim-

ination in breach of the bargaining agent’s duty of air rep-

resentation, and a claim for wrongful discharge in violation

of section 2 (Fourth) (Eleventh) of the Railway Labor Act.

After the hearing on liability, the District Court ruled that

because Mr. Brady had proven facts sufficient to support

recovery on the second claim, it would not make findings on

the hostile discrimination claim.

The District Court found that under the union security

provisions of the TWA-IAM collective bargaining agree-

ment, an employee, in order to continue his employment,

was required to maintain membership in good standing in

the union by paying his monthly dues not later than the last

day of the following calendar month.® Under this stand-

82 In an earlier opinion, reported at 196 F. Supp. 504, the District

Court ruled that Mr. Brady was not entitled to have the action

tried by a jury because the main relief he sought, reinstatement,

was equitable, the other requests for monetary compensation such

as back pay being accidental. Secondarily, it was held that the

statutes relied upon do not embrace actions at common law and

are thus outside the scope of the Seventh Amendment.

383 993 F. Supp. 361.

84944 F. Supp. 820.

85 Article XXVI of the TWA-IAM collective bargaining agree-

ment provides in pertinent part:

‘‘(a) Each employee now or hereafter employed in any

work covered by this Agreement shall, as a condition of con-

tinued employment in such work, within sixty (60) days

following the beginning of such employment or the effective

date of this Article, whichever is later, become a member of,

and thereafter maintain membership in good standing (as

herein defined), in the Union, except as provided otherwise

Ape Rbk geSind e RE, BOLO 9

22a

ard, the December dues were payable by the end of Janu-

ary, those for January by the end of February and those

for February by March 31. The District Court ruled that

IAM’s March 13 demand for fou: months dues by March 28

was clearly excessive since Mr. Brady was then only in

arrears for two months, or $6.50. Thus, when Mr. Brady

responded to the letter of March 13 by sending his dues book

herein. Such condition shall not apply . . . with respect to

any employee to whom membership is denied or terminated

for any reason other than the failure of the employee to tender

the dues uniformly required of other members of his classifica-

tion (and at his point on the Company’s system) as a condi-

tion of acquiring or retaining membership.

‘For the purpose of this Article, ‘membership in good

standing in the Union’ shall consist of the payment by the

employee of dues for each calendar month, not later than the

last day of the following calendar month, which are uniformly

required of members of his classification (and at his point on

the Company’s system) as a condition of acquiring or retain-

ing membership. ’’

* * cf

**(e) When an employee becomes delinquent by not meeting

the requirements of (a) above for ‘membership in good stand-

ing in the Union’, the following procedure shall be observed:

‘*(1) The General Chairman of the Union shaii notify the

employee by registered letter, return receipt requested, copy

to the Company’s Vice President of Industrial Relations,

that the employee is delinquent in the payment of dues as

specified herein and accordingly is subject to discharge as

an employee of the Company. Such letter shall also notify

the employee that he must make the required payment to

the Financial Secretary of the Union’s local lodge with

jurisdiction at the location where he works within fifteen

(15) calendar days of the date of mailing of the notice or

be subject to discharge under the terms of the Agreement.’’

# @ *

‘*(n) Whenever the term dues is referred to in this Article,

such use of the word ‘dues’ shall include initiation or rein-

statement fees, periodic dues, and assessments (not including

fines and penalties),....’’

23a

with $10.50 to the financial secretary of the local lodge, his

tender was more than sufficient to pay his two months’

arrearage,** and being valid, it precluded his discharge.

Nor was any change wrought in the situation when LAM, by

‘ts letter of March 28 to Mr. Brady, rejected his tender as

insufficient to cover three months dues of $9.75 and a rein-

statement fee of $25 for which payment was not required by

April 4. The rejection on the ground that the tender did

not include the reinstatement fee was gratuitous for no such

demand was made in the letter of March 13.

Under the IAM constitution a three months dues de-

linquency results in the automatic cancellation of member-

ship *? and to regain union membership a reinstatement fee

must be paid. Although the collective bargaining agree-

ment mentions reinstatement fees in its definition of dues,

it does not specify when they are to be imposed. The Dis-

trict Court assumed that the [AM constitutional provision

for a reinstatement fee was validly incorporated into the

collective bargaining agreement by the ‘‘oblique reference’’

to such fees, and reasoned that this constitutional provision

must be read in conjunction with the collective bargaining

agreement which is the governing document under section 2

(Eleventh). On this approach the District Court found

36 Mr. Brady’s tender of $10.50 was intended to cover three

months dues, as explained in footnote 5, supra.

87 Article E of the IAM constitution reads in pertinent part:

‘‘See, 14. Delinquency for 3 months in the payment of dues

or assessments shall automatically cancel membership and all

rights, privileges and benefits incident thereto. The period

of good standing membership of members whose membership

has been cancelled for delinquency, or other cause shall date

from their last reinstatement, as shown by the G.L. records,

and their rights, privileges and benefits under the provisions

of this Constitution shall attach and date their last reinstate-

ment, as though they had never before held membership in

the 1.4.M.”’

24a

that the collective agreement postpones a delinquency until

the end of the following calendar month. It therefore con-

cluded that the three months delinquency did not occur until

after March 31 and IAM could not properly impose a rein-

statement fee, as it did, in its letter of March 28.

The basis for the District Court’s reconciliation of the

two documents was its view that the policy underlying sec-

tion 2 (Eleventh), which validates a union security pro-

vision when incorporated into an ‘‘agreement’’, is to insure

that employees will have adequate notice of their union

security obligations and may rely on the provisions of the

agreement rather than resort to ad hoc correspondence

from union officials to determine their rights and duties.

In this regard the District Court commented:

‘*In the present case, however, the LAM’s defense has

been based almost exclusively upon letters sent to

Brady which neither complied with the agreement nor

were consistent with each other. There is no reason

whatsoever why TWA and the [AM cannot incorporate

clear union security provisions into their agreement

which give adequate notice to the affected employees of

the obligations imposed. Nor is there any reason why,

having written such provisions into the agreements,

they cannot apply them uniformly and comply with the

requirements themselves. There is every reason why,

however, they should not be allowed to discharge em-

ployees when they have failed to do these things. In

the present case, the agreement is relatively clear, but

IAM’s rejection of Brady’s March 27th tender did not

comply with it and was utterly inconsistent with any

obligations of which Brady had pro;:2r notice.’’ 8

Having concluded that Mr. Brady’s tender of $10.50 on

March 27 was ‘‘sufficient to cover ‘the periodic dues * * *

88 223 F. Supp. at 369.

“ibe ac RAR SINE A rman sos ai i SIE AN AI

25a

uniformly required * * *,’ ’? and that no reinstatement fee

could then have been imposed, the District Court held

that the ‘‘discharge is not protected by 2 (Eleventh). It

is, therefore, violative of 2 (Fourth).’’*® Liability was

found to run against both IAM and TWA.

The foregoing views of the District Court are chal-

lenged by IAM and TWA principally on the ground that

IAM’s standard for ‘‘deliquency’’ was confused with the

collective agreement’s definition of ‘‘membership in good

standing.’’ Delinquency, they say, occurs when a member

has not paid his dues for a calendar month by the last

day of the following calendar month. Applying these

standards to the present case, they conclude that because

Mr. Brady had not paid his December, January and Feb-

ruary dues he was delinquent for those three months on

March 1. Accordingly his union membership, under the

IAM constitution, was automatically cancelled. To regain

his union membership he was required to pay a reinstate-

ment fee. Failing to do so he was subject to discharge by

TWA. Also, it is asserted that because Mr. Brady had

not paid his December dues by January 31, he was no

longer a member in good standing in [AM and was dis-

chargeable under the terms of the collective bargaining

agreement. In either case, they insist, LAM was justified

in certifying Mr. Brady for discharge, and TWA was

justified in discharging him.

We agree with the District Court’s view that section

2, (Eleventh) makes the coilective agreement the governing

document and with the District Court’s reconciliation of

IAM’s constitution with the agreement. The argument ad-

vanced by IAM and TWA is not persuasive and there are

good reasons for rejecting it.

Even if the definition of ‘‘delinquency’’ which they

propose is adopted, IAM was still unjustified in demand-

89 Ibid.

ie ih et Sn ARN 8 Ne ee beth detent Shan

26a

ing the payment of four months dues by March 28. Mr.

Brady would not have become delinquent for March dues

until after March 31. Thus, when he tendered $10.50 on

March 27, it was more than sufficient to cover the dues

delinquencies for the three months for which he was then

in arrears. IAM admits that its letter of March 13 was

erroneous in demanding the payment of four months dues

by March 28 and that its letter of March 28 was again

erroneous in demanding the payment of four months dues

together with a reinstatement fee by April 4. It insists,

however, that it ‘‘wiped the slate clean’’ on April 11

when it demanded only a reinstatement fee. This argu-

ment fails because while it attempts to explain away IAM’s

ineptness, it attempts also to ‘‘wipe the slate clean’”’ of

Mr. Brady’s valid tender of dues sufficient to cover all

past dues delinquencies. Mr. Brady’s valid tender of

dues made before [AM’s certification for discharge under

the union security clause precluded further discharge ac-

tion against him.“

We are cognizant of the wholesome precepts which hold

that healthy industrial relations cannot be preserved if

unions are prevented from effective action to secure the

prompt payment of dues where dues are required under a

valid union security agreement and that a necessary con-

comitant of such effective action by a union is the respon-

sibility of the employee that his dues are paid promptly

40 Compare International Union of Electrical Wkrs. v. NLRB,

307 F.2d 679 (D.C. Cir.), cert. denied, 371 U.S. 936 (1962) and

NLRBB v. Aluminum Wkrs. Int’1 Union, 230 F.2d 515 (7 Cir. 1956),

where a valid tender made before the union’s certification was a

bartier to the employee’s discharge, with Producers ‘I'ransport, Inc.

v. NLRB, 284 F.2d 438 (7 Cir. 1960) ; NLRB v. Technicolor Motion

Pictures Corp., 248 F.2d 348 (9 Cir. 1957) and International

Ase’n of Mach. v. NLRB, 247 F.2d 414 (2 Cir. 1957), where the

union’s right to demand an employee’s discharge was not barred

by a belated tender of dues, made after the union’s demand for

discharge.

Ree ae eR Tor a le

27a

when due.*t We do not intend to undercut these well

stated pronouncements. But a delicate balance must be

maintained between the union’s right to preserve its own

institutional existence and its sensitive obligations for

fair dealing to its members under circumstances as are

presented in this case. Mr. Brady cannot be characterized

as the ordinary ‘‘free rider’? absorbing union benefits

without bearing a share in their costs. Rather he was

a shop steward and had paid his dues until he challenged

the manner in which they had beer increased. While re-

calcitrant in accepting the new scale he ultimately relented

and made a tender of all the past delinquencies prior to any

demand by IAM upon TWA to discharge him.

However irritating IAM may have considered Mr.

Brady’s resistance to the relatively insignificant increase

in the monthly dues, it still was his representative, clothed

with the great power of separating him from his livelli-

hood but also owing him the maximum of good faith and

fair dealing. This imposed on it the obligation to inform

him of his rights and duties so that he could take all

necessary steps to protect his job.“ If IAM seriously re-

garded Mr. Brady’s membership as exposed to cancellation

with consequent discharge on March 1, its fiduciary re-

lationship with him compelled no less than an intimation

to this effect instead of the erroneous demand of March 13

for four months dues by March 28. His response thereto

on March 27 in tke form of payment in excess of three

months dues was sufficient to restore him to good standing.

That offer preceded the next erroneous demand of IAM

41 See Producers Transport, Inc. v. NLRB, 284 F.2d 438 ‘(7 Cir.

1960); NLRB v. Technicolos Motion Pictures Corp., 248 F.2d

348 (9 Cir. 1957).

42 NLRB v. Hotel Employees Union, 320 F.2d 254 (3 Cir. 1963) ;

International Union of Electrical Wkrs. v. NLRB, 307 F.2d 679,

683 (D.C. Cir. 1962).

sa nen pmetltoh, IC Ce Nein Nie peal alia 9

ay Dhaene d or eo

28a

for three months dues plus the first requiremeat to pay

a reinstatement fee clearly indicating that IAM had in-

deed declared his membership axtomatically cancelled.

The attempt to strike down the validity of his tender

was totally inconsistent with the duty which IAM owed

to Mr. Brady. When it chose not to accept the tender

but elected to stand upon a previse enforcement of the

automatic membership cancellation provisien ii erred, for

the tender was timely to prevent rigid and severe enforce-

ment of thai provision.

The argument that after January 31, Mr. Brady was

no longer a member in good standing of LAM and thus

was dischargeable is also untenable. The collective bar-

gaining agreemeut specifically sets forth procedural re-

quirements which shall be observed when discharge is

sought under the union security provisions.“ IAM’s failure

to comply with them until after Mr. Bredy had tendered

dues sufficient to make him current also bars application

of these provisions te him.

In the light of the feregoing we conclude, as did the

District Court, that Mr. Bradz’’s dues tender of March 27

was valid. Conseauentiv [AM’s certification to TWA was

improper and his discharge by TWA violated section 2

(Fourii) (Eleventh) of the Railway Labor Act.

= =

A. TWA. challenges the District Court’s conclusion that

it is liable to Mr. Brady. Section 2 (Fourth) states, in

part: ‘‘it shall be unlawful for any carrier... to influ. e

or coerce employees in an effort to induce them to join

or remain or not to join or remain members of any labor

organization. .. .’’** TWA insists that tv constitute a

48 See note 33, supra.

#445 U.S.C. § 152 (Fourth).

ee ETE cme Oe ee a NN te a Al aR I

violation of this section it must be established, as it must

be under section 8(a)(3) of the National Labor Relations

Act, as amended, that the employer has ‘‘reasonable

grounds for believing’’ ” that union membership was de-

nied or terminated for reasons other than the failure of

the employee to tender periodic dues uniformly re-

quired. The argument continues with the assertiun that

the District Court held the discharge of Mr. Brady not

protected by section 2 (Eleventh) and therefore violative

of section 2 (Fourth) on one basis—that IAM rejected

Mr. Brady’s dues tender aithough it was timely and

sufficient to cover periodic dues uniformly required. TWA

asserts that the District Court made no findings that it

was guilty of wrongdoing, and without such findings, TWA

cannot be held liable for discharging Mr. Brady after

IAM certified that he had not complied with the union

security provisions of the collective bargaining agreement.

To adopt TWA’s view, would require the court to read

the intent standard of section 8(a)(3) of the National

Labor Relations Act into section 2 (Fourth) (Eleventh)

where no such standard was supplied by Congress. The

District Court properly declined to do so. It concluded

that after the employee established that his rights under

the statute had been violated, the employer would be held

liable. The Court of Appeals for the Second Circuit, in

Cunningham v. Erie R.R.*° adopted and approvingly cited

the District Court’s opinion and stated:

‘‘Once it is established, as here, that the expulsion

of the worker from membership in the Union was

. . . ‘fer any reason other than the failure of the

employee to tender the periodic dues * * uniformly

required as a condition’of acquiring or retaining mem-

45 29 U.S.C. § 188(a) (3).

#6 358 F.2d 640, 645 (2 Cir. 1966). See generally Note, 76 Yale

L.J. 210 (1966).

tid Lolibail/r% 3 rome witty OS MeV OIUA SS Ser nb eee ee ae ate wn 6 -

ie a et ek aS

30a

bership,’ ... (emphasis added), the Railroad, having

discharged the employee on the representation of

the Union that he had failed to tender such periodic

dues, uniformly required, is automatically liable for

wrongful discharge. See Brady v. Trans World Air-

lines, D.C. Del., 1963, 223 F. Supp. 361. This is

because the limited protection afforded by the Rail-

way Labor Act is no longer available as a defense.’’

The Second Circuit explained that it is probably because

of this automatic liability that collective bargaining agree-

ments in the industry provide for indemnification of the

employer by the union for all liability arising from an

unlawful union security discharge. Like the District Court

and the Second Circuit, this court concludes that the

employer’s liability is automatic, once it is established

that the discharged employee’s section 2 (Fourth) (Elev-

enth) statutory rights have been violated.

Aside from this conclusion regarding the employer’s

liability under the Railway Labor Act, there is evidence in

the record warranting TWA/’s liability under the more de-

manding standard which it advances. In Radio Officers’

Union v. NLRB, the Supreme Court examined section 8

(a)(3) of the National Labor Relations Act and discussed

the proof of motive required to establish a violation of

that section. It stated:

‘‘But it is also clear that specific evidence of intent

to encourage or discourage [union membership] is

47 Article XXVI(p) of the TWA-IAM collective bargaining

agreement provides:

‘‘The Union shall indemnify and save tue Company harmless

against all forms of liability that shall arise out of or by reason

of action taken by the Company, which action was requested

by the Union under the provisions of this Article (Union Se-

curity).’’ (Parenthesis supplied.)

48347 U.S. 17 (1954).

pill erento nce =

3la

not an indispensable element of proof of violation of

§8(a)(3). . . . This recognition that specific proof

of intent is unnecessary where employer conduct in-

herently encourages or discourages union membership

is but an application of the common-law rule that a

man is held to intend the foreseeable consequences of

his conduct. ... Thus an employer’s protestation that

he did not intend to encourage or discourage must

be unavailing where a natural consequence of his

action was such encouragement or discouragement.

Concluding that encouragement or discouragement will

result, it is presumed that he intended such conse-

quence. In such circumstances intent to encourage

is sufficiently established.’’

While the Radio Officers’ case did not deal with a dis-

charge resulting from a union’s certification that the em-

ployee failed to comply with its dues requirements, the

facts of that case and the context from which the above

language was taken, make the rule set forth therein ap-

plicable here. A discharge under a union security clause

for failure to comply with the union’s dues demands in-

herently encourages other employees to promptly comply

with union ‘‘membership’’ requirements. In such circum-

stances, if the discharge is improper the employer will

necessarily have discriminated against the employee and

it will be presumed that the employer intended he fore-

seeable consequence of hs act, that is, the encou.agement

of union membership.

In the instant case there is no finding that TWA re-

butted the above stated presumption, nor does an examina-

tion of the record lead to that conclusion. On the contrary,

the record discloses that immediately after he learned that

his dues tender of March 27 would be rejected, Mr. Brady

49 Td. at 44-45. (Emphasis added.)

eo bi Re ne RRS

Fhe aaa NPS ES ee RS ah

32a

explained his dues dispute to the TWA General Foreman.

Mr. Brady was simply advised to pay what the union

demanded; later he was advised that the matter was

merely one between him and IAM and that TWA was not

involved. The record also indicates that TWA had copies

of IAM’s various letters to Mr. Brady which revealed

the inconsistent positions taken by IAM. On these facts,

it would be difficult to conclude that TWA overcame the

presumption that it intended the foreseeable consequences

of its act. Thus, the District Court’s conclusion that TWA

is liable to Mr. Brady for its violation of section 2 (Fourth)

(Eleventh) is further fortified.

B. Having concluded that Mr. Brady’s rights under

the Railway Labor Act had been violated, a further ques-

tion which then faced the District Court was whether the

LAM should be held jointly liable with TWA for causing

the wrongful discharge. Section 2 (Fourth) was designed

to prevent employers from coercing employees with regard

to their relationships with the unions. That section does

not expressly refer to labor organizations, but section 2

(Eleventh) speaks in terms of the ‘‘agreement’’ which the

employer and the labor organization may formulate. The

District Court justifiably reasoned that since both the em-

ployer and the union were treated alike in section 2 (Elev-

enth), and that section is an exception to the anticoercion

provisions of section 2 (Fourth), Congress contemplated

that unions would also be held liable for causing a dis-

charge in violation of section 2 (Fourth) (Eleventh).

That Congress intended labor organizations should be

held accountable for violations of section 2 (Fourth) (Elev-

enth) is no more than rational. Generally, in dues dis-

putes, it is the union which instigates the discharge, and

an illegal application of the union security provisions can

scarcely be originated by any other source than the union.

Just as in hostile discrimination actions against the union

where the employer has been declared a proper party de-

33a

fendant,” in suits involving section 2 (Fourth) (Eleventh)

unions should be held liable for their actions in procuring

a discharge which violates the employees’ statutory rights.™

Still with regard to the liability of IAM, brief mention

should be made of its argument that the District Court

erred in not granting judgment to it because of Mr. Brady’s

failure to exhaust his internal union remedies. The Dis-

trict Covi correctly reasoned that this section 2 (Fourth)

(Eleventh) phase of the case involves tbe legality of Mr.

Brady’s discharge from his employment and not the legality —

of IAM’s dues increase. The doctrine, relied on by LAM,

applies to situations unlike the present one, which concern

wholly internal union matters. The present dispute focuses

on the employment relationship rather than the union re-

lationship. Furthermore, Mr. Brady is seeking reinstate-

ment in his employment, a remedy that is unavailable to

him within the internal union procedures. These reasons

justified the District Court in determining that Mr. Brady

was not required to exhaust his internal union remedies

before bringing suit against [AM for violation of section 2

(Fourth) (Eleventh).

C. After holding that Mr. Brady’s statutory rights had

been violated and that as a result liability runs against

both TWA and LAM, the District Court considered the

remedies available to Mr. Brady. It concluded that ap-

propriate for such a violation were reinstatement in his

employment with back pay ‘and reinstatement as a member

in good standing in [AM.™

50 See note 23, supra, and accompanying text.

51 That IAM should be held liable for its actions in causing a vio-

lation of section 2 (Fourth) (Eleventh) is all the more justified in

the instant case since IAM is required to indemnify TWA for any

liability imposed on it as a result of IAM’s improper application

of the union security provisions. See note 47, supra.

52 The District Court discussed remedies at 244 F. Supp. 820 and

in its unreported opinion at Civi No. 1884 (D.Del., filed Sep-

tember 6, 1966).

{

.

Oe ee a ed

Gee RGRALO DAS Ra a acai abi a PA bE MBN EEE AEN

34a

It is argued that the District Court was without authority

to order Mr. Brady reinstated in his employment, and that

in so doing the District Court departed from the rules

established in several Supreme Court cases. These cases

are relied on for the proposition that an employee ag-

grieved by his discharge has alternative remedies: (1) if

he wishes to retain his employment, he must pursue his

remedy under the administrative procedures established by

the applicable collective bargaining agreement subject to

the Railway Labor Act and his right of review before the

System Board of Adjustment; (2) if he accepts his dis-

charge as final he may bring an appropriate action at law

seeking money damages. In none of these cases was an

employee discharged under a union security provision,

and in each of these cases it was assumed that the ad-

justment board would have jurisdiction to hear the cause

if the employee sought reinstatement before it. In part I

above, it was held that the Board was without jurisdiction

to entertain Mr. Brady’s complaint which was directed

against both TWA. and IAM. Under these circumstances,

when procedures for reinstatement are otherwise unavail-

able to him, the purposes of the Railway Labor Act would

best be served if an employee seeking to regain his job

may invoke the equitable powers of the court. We agree

with the District Court that reinstatement, in the present

case, was an appropriate remedy and that it had authority

to so order.

The District Court implemented the reinstatement by

requiring TWA to secure, without cost to Mr. Brady, such

additional training and schooling as would be necessary for

his reemployment in a position substantially equivalent to

that which he would have attained had he not been dis-

58 Walker v. Southern Ry., 385 U.S. 196 (1966) ; Transcontinental

& Western Air, Inc. v. Koppal, 345 U.S. 653 (1953); Slocum v.

Deiaware, L. & W. R.R., 339 U.S. 239 (1950); Moore v. Illinois

Central R.R., 312 U.S. 630 (1941).

charged. TWA vehemently objected because of the ex-

cessive cost of such a training program for Mr. Brady

in light of the vast changes occurring in the airline in-

dustry during the interruption in his service. However,

the District Court considered all the factors involved and

properly concluded that although some hardship would be

imposed on TWA, it should not bar Mr. Brady’s restoration

as an adequate aircraft mechanic. In requiring Mr. Brady’s

reinstatement, the District Court also correctly ruled that

he was entitled to the fringe benefits he would have had if

he had not been discharged.™

The back pay award of $10,617.80 was computed by sub-

tracting from the amount Mr. Brady would have earned

from TWA if he had not been illegally discharged, the

amount he actually earned following his discharge. The

arguments advanced against this award and the manner

in which it was computed are without merit.

=

The District Court took the position that whether Mr.

Brady established his claim for hostile discrimination or

his claim for violation of his express statutory rights under

section 2 (Fourth) (Eleventh) his remedy would be the

same. On this premise it declined to rule on the hostile

discrimination claim once it was satisfied that a violation

of section 2 (Fourth) (Eleventh) had been proved. We

54 Specifically the District Court ordered TWA to secure, with-

out cost to Mr. Brady, his membership in the following Group

Plans: Life Insurance, Hospital, and Health and Accident or the

equivalents thereof. Membership in the Retirement Fund was

also ordered with all payments due thereunder to be made by TWA,

to be paid by it, and all payments due by Mr. Brady, to be

paid by him. The District Court properly declined to award

Mr. Brady any damages for the loss of the value of airline passes

to which he would have been entitled had he continued to work

for TWA on the ground that he had not introduced sufficient evi-

dence on which such an award could be based.

peeked s eet i Ys A het Ina ett ne Ea Co rade ttede his A ene ie

Sale Lc ART aA ORE cri i dE MARIN

36a

agree that Mr. Brady was not entitled to reccvery on

his hostile discrimination claim, but we arrive at this

result for reasons which differ from those of the District

Court.

The complaint and its amendments are artlessly drawn

and the prayers for relief are, to say the least, confusing.

However, the District Court, with commendable liberality,

interpreted them as raising two separate claims. The first,

alleging violation of section 2 (Fourth) (Eleventh), which

has been discussed at length, was directed at both TWA

and IAM. This claim involved the legality of Mr. Brady’s

discharge from his employment. The second, alleging hos-

tile discrimination in violation of its duty of fair repre-

sentation, was directed at IAM. In so far as the first

claim is concerned, we have agreed with the District Court

that because it involved the propriety of the discharge, and

thus the employment relationship, Mr. Brady was not

required to exhaust his internal union remedies. With

regard to the claim for hostile discrimination, the opposite

conclusion is dictated.

In a suit alleging hostile discrimination violative of the

bargaining representative’s duty of fair representation, it

must be proved not only that the union’s actions were

improper, but that they were undertaken with malice and

bad faith. Mr. Brady alleges that he was accorded

different treatment from other members of. his lodge who

were similarly delinquent in their dues payments and also

that at the hearing befor: the Board, Mr. Miller, an IAM

official, misrepresented pertinent facts. In making these

allegations, Mr. Brady is not challenging his discharge

from his employment, but rather the fairness and propriety

of the manner in which he was treated by IAM. Such a

55 Vaca v. Sipes, 386 U.S. 171, 190 (1967) ; Humphrey v. Moore,

375 U.S. 335 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330

(1953) ; Cunningham v. Erie R.R., 266 F.2d 411, 417 (2 Cir. 1959).

37a

claim involves the union-member relationship and not the

employer-employee relationship.

It has been the general rule, and the rule of this circuit,

that before a suit against a union for breach of its duty

of fair representation may be brought in the courts, the

member must first exhaust the available internal union

remedies, or show an adequate reason for failing to do

so.°° There is good reason for this rule which forestalls

judicial interference with the internal affairs of a labor

organization until it has had at least some opportunity to

resolve disputes concerning its own legitimate affairs. Mr.

Brady was a shop steward and that he was knowledgeable

of appellate union procedures may be inferred from his

letter in February 1956 to the International President of

IAM and others in which he protested the manner in which

the dues of his local lodge were increased. Nevertheless,

there is no allegation or evidence that ke invoked any ap-

pellate union procedures to redress the asserted unfair

and arbitrary action against him by the local and district

officers. Nor does he advance an adequate reason for

his failure to do so. Mr. Brady’s argument that it would

have been futile to ask IAM to review its own dealings

with him is not tenable for [AM’s internal procedure pro-

56 Gainey v. Brotherhood of Railway & Steamship Clerks, 275

F.2d 342, 345 (3 Cir.), cert. denied, 363 U.S. 811 (1960), and 313

F.2d 318 (3 Cir. 1963); see, e.g., Foy v. Norfolk & W. Ry., 377

F.2d 243, 246 (4 Cir. 1967) ; Neal v. System Board of Adjustment,

348 F.2d 722 (8 Cir. 1965) ; Detroy v. American Guild of Variety

Artists, 286 -F.2d 75 (2 Cir.), cert. denied, 366 U.S. 929 (1961).

See the following proviso contained in the Bill of Rights of the

Members of Labor Organizations, 29 U.S.C. § 411(a) (4) :

“‘Provided, That any such member may be required to exhaust

reasonable hearing procedures (but not to exceed a four-month

lapse of time) within such organization, before instituting

legal or administrative proceedings against such organizations

or any officer thereof.’’

i is . : ee en ee eT we

i Pa Ee a ee a eee re >

Pee Se ge ae eee

2

38a

vided reasonably prompt review of his contentions on union

levels higher than those responsible for the decisions against

him.

It is conceivable that an award of damages by a court

against a union for hostile discrimination could supplement

the relief available for a violation of section 2 (Fourth)

(Eleventh). However, in this case, Mr. Brady’s claim for

such damages may not be sustained because of his failure

to exhaust internal union remedies or to adequately ex-

plain that failure. Having reached this conclusion, it is

obviously unnecessary to consider Mr. Prady’s demand for

a jury trial on his claim for hostile discrimination and the

propriety of the particular damages sought thereunder.®®

Mr. Brady’s successive attorneys before the District

Court declined to press for the allowance of fees to them

and his appeal from the denial thereof is baseless. His

request for similar fees on this appeal is also without

merit.

For the foregoing reasons, the orders of the District

Court from which Vincent P. Brady has appealed at No.

16,266 and those from which Trans World Airlines, Inc.

and The International Association of Machinists have re-

spectively appealed at Nos. 16267 and 16268 will all be

afhimed.

ee

57 See International Ass’n of Machinists v. Friedman, 252 F.2d

846 (D.C. Cir.), cert. denied, 357 U.S. 926 (1958) where the court

reveiwed the internal appellate procedures of IAM and deemed

them fair and adequate.

58 Mr. Brady demanded punitive damages against IAM and com-

pensatory damages for mental anguish arising from the humiliation

and embarrassment he suffered. By a belated application which

was denied by the District Court, Mr. Brady moved to further

amend his complaint to join his wife who sought damages for loss

of his consortium.

39a

Each of the parties to these respective appeals will bear

his own costs.

A True Copy:

Teste:

Cierk of the United States Court of

Appeals for the Third Circuit.

40a

APPENDIX C

Judgments of United States Court of Appeals for the

Third Circuit

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 16,266

Vincent P. Brapy, Appellant

Vv.

Trans Wortp Arruings, INc., a corporation of the State of

Delaware, and Tue INTERNATIONAL ASSOCIATION OF

Macurinists, an unincorporated association

(D. C. Civil Action No. 1884)

On AppeaL From THE Unitep States District CourT FoR

THE District or DELAWARE

Present: Hastie, Chief Judge, and McLavenuw and

Forman, Circuit Judges. :

Judgment

This cause came on to be heard on the record from

the United States District Court for the District of Dela-

ware and was argued by counsel.

On consideration whereof, it is nov’ here ordered and

adjudged by this Court that the judgment of the said

District Court, filed September 6, 1966, be, ard the same

is hereby affirmed. Each of the parties to this appeal

to bear his own costs,

ATTEST:

THomas F, Quinn

Clerk

August 13, 1968

i

4la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 16,267

Vincent P, Brapy, Appellant

v.

Trans Worip Arrungs, INc., a corporation of the State of

Delaware, and Tue INTERNATIONAL ASSOCIATION OF

Macurnists, an unincorporated association

Trans Wortp AmLrngs, Inc., Appellant

(D. C. Civit Action No. 1884)

On ApprEaL From tue Unrrep States District Courr FOR

THE District or DELAWARE

Present: Hastie, Chief Judge, and McLavanun and

Forman, Circuit Judges.

Judgment

This cause came on to be heard on the record from

the United States District Court for the District of Dela-

ware and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

Distriet Court, filed September 6, 1966, be, and the same

is hereby affirmed. Each of the parties to this appeal

will bear his own costs.

ATTEST:

Tomas F, Quinn

Clerk

August 13, 1968

42a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 16,268

Vincent P. Brapy, Appellant

v.

Trans Wortp Areuines, Inc., a corporation of the State of

Delaware, and Tuer InrTerRNattonaL ASSOCIATION OF

MacHINIsts, an unincorporated association

Tue INTERNATIONAL ASSOCIATION OF Macutnists, Appellant

(D. C. Civil Action No. 1884)

On AppeaL From tue Unitep States Dzstricr Court For

THE District oF DELAWARE

Present: Hastie, Chief Judge, and Mclaveuumn and

Forman, Circuit Judges.

Judgment

This cause came on to be heard on the record from

the United States District Court for the District of Dela-

ware and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that that portion of the order of

the said District Court, filed November 12, 1959, which

denied defendant’s motions to dismiss the second amended

complaint and to strike certain portions thereof, the por-

tion of the order, filed August 4, 1961, which denied de-

fendant’s motions for summary judgment, the order, filed

November 4, 1963, holding defendants liable for damages,

and paragraphs one through six of the judgment, filed

September 6, 1966, awarding damages to plaintiff, be and

the same are hereby affirmed. Each of the parties to

this appeal will bear his own costs.

ATTEST:

THomas F. Quinn

August 13, 1968 Clerk

43a

APPENDIX D

Opinions of the United States District Court for the

District of Delaware

UNITED STATES DISTRICT COURT

D. DELAWARE,

Civ. A. No. 1884.

Vincent P. Brady, Plaintiff,

Va

Trans World Airlines, Inc., a corporation of the State of

Delaware, and The International Association of Ma-

chinists, an unincorporated association, Defendants.

Oct. 5, 1957—156 F. Supp. 82

* * * * * * * 7: * *

Leany, Chief Judge.

The facts appearing from the paper record show: In

1948, plaintiff, Vincent P. Brady, became a membe: of The

International Association of Machinists (“« TAM”’’) an unin-

corporated association, District Lodge No. 142, Local Lodge

No. 1244, located in Wilmington, Delaware, Brady lived

there. In February 1951, he was recalled by Trans World

Airlines, Ine. (**TWA’’), a Delaware corporation, for work

in Philadelphia. In August 1952, he became a member of

‘Local Lodge No. 1776 of the IAM in Philadelphia. On

March 28, 1956, he was notified by the union he was in

default on certain payments for dues and a reinstatement

fee and the sum theretofore tendered by him was insufficient

to cover this amount.'

On April 24, 1956, and May 5, 1956, Brady wrote to the

System Board of Adjustment requesting a hearing, but

without prejudice to his rights to file a subsequent court

1 Letter of March 28, 1956, from Gerald C. Coleman, Financial

Secretary of Local Lodge No. 1776, IAM, to Vincent P. Brady.

- ore

44a |

proceeding.? Hearings were held by the Board in Kansas

City, Missouri, on May 4 and 14, 1956. He had notice of

these hearings. He did not attend. On Mey 14, 1956, the

Board decided adversely to Brady.* On May 15, 1956, he

was discharged from employment by TWA pursuant to the

collective bargaining agreement between TWA and IAM

which required good standing membership in the union

as a condition of employment.‘

On February 4, 1957, Brady wrote to the Board and re-

quested reconsideration of its decision, alleging that Cliff

Miller, General Chairman, District 142 of IAM, who ap-

peared at the hearing of May 14, 1956, on behalf of IAM,

misrepresented vital facts to the Board The Board

denied this request and affirmed its May 14, 1956, decision

as finai and binding.® On April 22, 1957, Brady then

brought his action to this court against both TWA and

IAM seeking 1. reversal of the decision of the Board, 2.

reinstatement of employment with payment to him of all

wages, overtime pay, and vacation pay since his discharge,

3. reinstatement of all other benefits held by him as an

employee including a $15,000 life insurance policy, a sick-

ness and benefit policy, credit union privileges, retire-

ment benefits and seniority status, 4. judgment against

either or both defendants for damages for humiliation and

embarrassment suffered by reason of the discharge with-

out just cause by TWA, 6. allowance of a reasonable at-

* Letters of April 24, 1956, and May 5, 1956, from Vincent P.

Brady to the TWA-IAM System Board of Adjustment, Kansas

City, Missouri.

3 Order dated May 14, 1956.

‘ Article XXVI(a).

5 Letter of February 4, 1957, from Vincent P. Brady to the TWA-

IAM System Board of Adjustment, Kansas City, Missouri.

® Letter of February 14, 1957, from the TWA-IAM System

Board of Adjustment to Vincent P. Brady.

45a

torney’s fee, and 7. such other relief as the court would

deem proper.

Defendant’s original motions were ones under Fed,

Rules Civ. Proc, rule 12(b), 28 U.S.C. to dismiss plaintiff's

action for lack of jurisdiction of the court over the subject

matter of the complaint and for failure to state a claim

upon which relief can be granted. In the light of develop-

ments at oral argument, counsel for both defendants re-

quested the court to treat their motions as ones for sum-

mary judgment under FR 56(b).

I.

The Railway Labor Act, 45 U.S.C.A. § 151 et seq., orig-

inally passed in 1926, was amended ten years later to em-

brace carriers by air.’ A look at the early cases under

the Act is helpful to pinpoint the issues here,

1. The leading case of the Supreme Court in this area

is Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S. Ct.

754, 85 L.Ed. 1089. After discharge by the Mlinois Central

Railroad, Moore, an employee, refused the jurisdiction of

the Adjustment Board, which had been set up as a board

of review in 1934. Instead, he accepted his discharge as

final and then brought suit in the state court for common

law breach of contract. The action was transferred to the

federal district court on diversity. When it reached the

Supreme Court, it was held ‘*netitioner was not required

by the Railway Labor Act® to seck adjustment of his con-

‘The complete story of the Act is available elsewhere. Seo Gar-

rison, ‘‘The National Railroad Adjustment Board: A Unique Ad-

ministrative Agency’’, 46 Yale L.J. 567, et seq.

®45 U.S.C.A. § 153, First (i> provides:

““(i) The disputes between an employee or group of em-

ployees and a carrier or carriers growing out of grievances or

out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions, including

cases pending and unadjusted on June 21, 1934, shall

AS SS Pe TRE ms

46a

troversy [with the railroad] as a prerequisite to suit for

wrongful discharge.’? 312 U.S. 630, 636, 61 S. Ct. 754, 756.

The Act, said the Court, did not require an administrative

finding before the filing of suit, nor did it remove the

jurisdiction of the courts to determine the controversy.

Subsequently, in Slocum v. Delaware, Lackawanna &

Western R. Co., 3389 U.S, 239, 70 S. Ct. 577, 94 L.Ed. 795,

the Court, in denying the power of any court to invade the

jurisdiction conferred on the Adjustment Board by the

Act, specifically ruled the Moore case inapposite since in-

terpretation there of a collective bargaining agreement

provision had no binding effect on future interpretations

by the Board. Thus it was held whereas the Adjustment

Board had exclusive jurisdiction to adjust grievances and

jurisdictional disputes of the type involved in Slocum, it

did not have exclusive jurisdiction over the claim of an

employee that he had been unlawfully discharged. The

Moore case stood firm.

2. Although Moore came up on diversity of citizenship,

no question arose of the employee’s failure to exhaust

remedies available under the employment contract when

the state law of the forum required it. When it did, a

host of problems were precipitated. Koppal, a discharged

employee, bypassed, as Moore did, his right to an appeal

before the Adjustment Board and elected to bring to the

federal district court upon diversity, an action for wrong-

ful discharge of employment. The jury returned a verdict

for plaintiff, but after motion, the trial court. set aside

the verdict and dismissed the complaint, apparently im-

pressed with the contention the administrative remedies

be handled in the usual manner up to and including the

chief operating officer of the carrier designated to handle

such disputes; but, failing to reach an adjustment in this

manner, the disputes may be referred by petition of the parties

or by either party to the appropriate division of the Adjust-

ment Board with a full statement of the facts and all support-

ing data bearing upon the disputes.’’

47a

under the employment contract, which sre comparable

to those described in the Railway Labor Act, had not been

exhausted by the plaintiff, as required by the state law of

Missouri.

The Eighth Cireuit reversed® on this ratio: The admin-

istrative adjustment of disputes did not have their source

in or subject to appraisement on the basis of state law,

but were questions relating solely to the federal Act; the

nature of these provisions under the Act were settled by

the Supreme Court in the Moore case, which was control-

ling. In the words of J udge Johnsen:

‘In the face of the declaration and construction, Mis-

souri would not, of course, be at liberty to hold contrarily

that the adjustment provisions cf a contract made under

and pursuant to the Railway Labor Act were compulsory

in nature and constituted conditions precedent to the right

to sue for wrengful discharge in an employment relation-

ship covered by the Act. Missouri law applicable to em-

ployment relationships under the Railway Labor Act, at

least within the field of any matters regnlated by the Act.

So far as a suit for wrongful discharge is concerned, the

administrative remedies prescribed by the Act and in-

corporated in a contract made under it would therefore

have to be treated by the Missonri courts, for justiciable

purposes in their forum, the same as a situation under

Missouri law of a contract in which no administrative ad-

justment provisions were contained,’? 1

® Koppal v. Transcontinental & Western Air, Inc., 8 Cir., 199

F.2d 117.

10199 F.2d at page 123.

Pe ear

48a

The dissenting judge (Riddick, J.) concluded that ex-

haustion of remedies was a matter of substantive law

which the forvm could legitimately exact in a federal

diversity case;

“It is true that in the Moore case the Supreme

Court said that the right of an employee to sue an

employer for damages for breach of a collective bar-

gaining agreement of employment was not dependent

upon the prior exhaustion of the employee’s adminis-

trative remedies under the Railway Labor Act. But to

give that statement the meaning which the majority

atiribute to it is to lift it out of context and to to ignore

the difference in character between rights and remedies

available to an employee before the Adjustment Board

under a contract made pursuant to the Railway Labor

Act, and those available to him in a common law action

for damages for breach of such a contract. * * *

Since a proceeding under the Railway Labor Act before

the Adjustment Board and an action at law in a

District Court for damages for breach of contract are

wholl; different in character, assert different rights,

and seek different remedies, in separate tribunals of

mutually exclusive jurisdiction, it ean not de said that

before resorting to one action the litigant must first

resort to the other. Where either action is available,

the litigant has his choice. That is all the Moore

case stands for. It certainly does not stand for the

proposition that in an action for damages for breach

of a Missouri contract, tried in a District Court in

Missouri whose jurisdiction is based solely upon di-

versity of vitizenship and the sum in controversy, the

substantive law of Missouri is not controlling.’’ "

3. The Supreme Court reversed the Court of Appeals

and affirmed the District Court. Transcontinental & West-

ern Air, Ine. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed.

199 F.2d at pages 126-127.

49a

1825. In doing to, the Court’s attention was drawn not to

the impact of a federal act but to the demands: of state

substantive law. Thus, in the best tradition of Erie R.

Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188,

it was announeed ( per Mr. Justice Burton fur the Court

[with Mr. Justice Douglas dissenting]) 345 U.S. at page

662, 73 S.Ct. at page 910:

“* * * if the applicable local law, as in Missouri,

requires an employee to exhaust his administrative

remedies under his employment contract in order to

sustain his cause of action, he must show that he has

done so. Here respondent was employed by a carrier,

subject to Title IT of the Railway Labor Act, and his

employment contract contained many administrative

steps for his relief, all of which were consistent with

that Act. Accordingly, while he was free to resort to

the courts for relief, he was there required by the law

of Missouri to show that he had exhausted the very

administrative procedure contemplated by the Railway

Labor Act. In the instant case, he was not able to do

so and his complaint was properly dismissed.’’

The Moore case gave to the employee the legal right of

choosing his course of relief—either the Adjustment Board

or an independent action. Ostensibly, Koppal only con-

ditioned the employee's legal right ; in effect, it undermined

it. The saving feature implied in Koppal, that the declared

formality of exhaustion would in no way prejudice the em-

ployee in the bringing of an action, where that was his

choice, proved almost worthless, Practical application of

the Court’s decision by the lower courts, exampled in

Bower v. Eastern Airlines, Ine., 3 Cir. 214 F. 24 623,

became, for the discharged employee, a hazardous and even

losing game. . -

4. Bower was discharged by his employer and, for rea-

sons to he developed, appealed to the Adjustment Board.

The appeal proved unavailing. Bower then brought an

(oat See

50a

action for wrongfu! discharge in the federal district court

asserting diversity jurisdiction. The District Court dis-

missed the complaint, and the Third Circuit affirmed on the

ground the appeal before the Board was a voluntary elec-

tion, and, therefore, the Board’s determination was ‘‘final

and binding’’ under the provisions of the Railway Labor

Act.’*? The Court (per Hastie, J.) wrote, 214 F. 2d at

page 626:

‘«* * * Whether we say that the party is bound by

his own voluntary election between an administrative

1245 U.S.C.A. § 184 provides, in part:

“‘The disputes between an employee or group of employees

and a carrier or carriers by air growing out of grievances, or

out of the interpretation or application of agreements concern-

ing rates of pay, rules, or working conditions, including cases

pending and unadjusted on April 10, 1936 before the National

Labor Relations Board, shall be handled in the usual manner

up to and including the chief operating officer cf the carrier

designated to handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be referred by

petition of the parties or by either party to an appropriate

adjustment board, as hereinafter provided, with a full state-

ment of the facts and supporting data bearing upon the dis-

putes.

“*It shall be the duty of every carrier and of its employees,

acting through their representatives, selected in accordance

with the provisions of sections 181-188 of this title, to estab-

lish a board of adjustment of jurisdiction not exceeding the

jurisdiction which may be lawfully exercised by system, group,

or regional boards of adjustment, under the authority of sec-

tion 153 of this title.’’

45 U.S.C.A. § 153, First (m) provides:

**(m) The awards of the several divisions of the Adjust-

ment Board shall be stated in writing. A copy of the awards

shall be furnished to the respective parties to the controversy,

and the awards shall be final and binding upon both parties

to the dispute, except insofar as they shall contain a money

award. In case a dispute arises involving an interpretation

of the award, the division of the Board upon request of either

party shall interpret the award in the light of the dispute.”

Dla

and an alternative judicial remedy, or describe the

party who initiated the administrative proceeding as

estopped from denying its agreed final and binding

character, or view this as an application of the ra-

tionale of res judicata in a new area, we are satisfied

that the court should declare and enforce a rule of

repose against the reexamination of the merits of

plaintiff’s claim in this case.’’

Bower raised the cry, expected, that the Koppal case

necessicated the employee taking an administrative appeal

before instituting suit, but the Court of Appeals disagreed.

Koppal, like Moore, our Circuit said, ‘‘merely recognizes

the duty of a federal court in a Giversity action for wrong-

ful termination of employment to require the plaintiff to

show whatever exhaustion of administrative remedy may

be prerequisite tv suit under the procedural’? law of the

forum.”’ Investigating the law of Pennsylvunia, the Court

could isolate nothing there to suggest a suit for wrongful

termination of employment must be preceded by any ad-

ministrative procedure beyond an unqualified dismissal

that is not further reviewable within the cmployer’s or-

ganization. Thus, it was judged, Bower did not have to

obtain an Adjustnient Board ruling on his contentions

before invoking the jurisdiction of the district court. In

short, on this question, Bower had misunderstood Koppal

in thinking it required in every instance exhaustion of

remedies, and, even had Bower correctly read Moore and

Koppal on exhaustion, his move to go before the Board

was binding on him because, as it turned out, Pennsylvania

law did not in fact require it.”

'§ The reference to ‘‘procedural”’ is not altogether squared with

either the language of the disSenting opinion of the Court of Ap-

peals in Koppal, supra note 11, or the language of the majority

opinion of the Supreme Court in 345 U.S. 653, at pages 656-657,

73 S.Ct. 906, at pages 907-908.

** See, on this score, the dissent of Judge Brown in Sigfred v.

Pan American World Airways, Ine., 5 Cir., 230 F.2d 13, 19

et seq.

52a

0. Although the freely chosen alterzative, stated in Moore

and undisturbed in Slocum, has been impeded under Kop-

pel,” the employee is not entirely on the defensive for

this attitude has unleashed possibly new devices, equally

undesirable. In those states unmistakenly requiring the

exhaustion of remedies under the employment contract, the

employee is awarded more than the alternative Moore

intended to give him. He cannot only go before the Adjust-

ment Board for reinstatement, but, if unsuccessful, there-

after bring suit for wrongful discharge asserting he looked

to the Board only in deference to the niceties of state law,

citing the authority of the Supreme Court in Koppal.

Absent state requirement, he is bound to make a choice.

Whereas the discharged employee should be guided by

simple procedures geared to the sensitivities of his hard-

ship, in reality he has been subjected to the rigors of a

guessing game. The difficulty is that the decision of the

Supreme Court in Moore and its holding in Koppal are,

when served, barely digestible in the same system. Beyond

that, it may be asked whether the law has removed itself

18 Most recent is a decision of the Supreme Court in Brotherhood

of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S.

30, 77 S.Ct. 635, 1 L.Ed. 2d 622. The issue was whether a railway

labor organization can resort to a strike over matters pending be-

fore the Adjustment Board. In holding it could not, the present

Chief Justice, speaking for a unanimous eight-man court, asserted

the Railway Labor Act, and specifically 45 U.S.C.A. § 153, First

(i) and (m), supra, notes 8 and 12, literally means what it says—

that a dispute may be referred to the appropriate Adjustment

Board at the election of either party, in either which case the

Board’s decision becomes final and binding upon all parties con-

cerned. (The Court went on to hold that the District Coum~had

jurisdiction for injunctive relief notwithstanding the provisions

of the Norris-LaGuardia Act, 29 U.S.C.A. §§101, 115). This

fresh discussion, as applied here—that is, the effect of the carrier,

not the aggrieved employee, invoking the jurisdiction of the Board

on the apparent ability of the employee to maintain his independ-

ent action—could mean new barriers for the employee to cross.

53a

from the arena of common sense by adopting in the upper

reaches an unrealistic approach. To put the Socratic

question, does the employee who has been discharged, being

thus of an uneven mind—hounded by the realization of

loss of job and support for his family for an indefinite

period; overwhelmed by the bigness of Organization—

Union, Carrier—seemingly, and even actually, banded

against him;'* pressured by the increasing awareness he

has so little time to act to seek job restoration ;“7 and in-

duced by the thought the Adjustment Board is the quickest,

and even sole, means of doing so—grasp for relief almost

blindly ignorant in most cases of his legal position? In

any event, if indeed, a choice must be made, is that the

selective and measured act for which he is later to be

judged and refused admittance in the court house door?

II.

1. Facts of the case at bar do not quickly fall into any

of the slots discussed. However, certain avenues, referred

to in Bower, have been left open for the employee to ex-

ploit even after appeal adversely ¢o the Adjustment Board."®

It is toward these ends that plaintiff is moving. His con-

tentions in attacking these motions are that because of a

provision of the employment contract, Brady was deprived

of a freely decided election to which he was entitled, and

because of the alleged fraud perpetrated upon Brady and

16 Collective bargaining agreements usually provide, as does the

agreement in the case at bar between TWA and TAM, supra note 4,

that good standing in the union is a condition of employment with

the carrier.

17 Three days in the case at bar. Article XXVI(f) of the TWA-

IAM Agreement, infra the text of this opinion.

18 Described in these terms: ‘‘This does not foreclose the consid-

eration of questions of jurisdiction or of the essential fairness of

the administrative proceeding, even when these issues are raised

collaterally.’’ Bower v. Eastern Airlines, Inc., 3 Cir., 214 F. 24

623, 626.

54a

the Board of Adjustment their proceedings were robbed of

essential fairness. Therefore, it is urged this court has

the power to review the merits of plaintiff’s case, reverse or

affirm the Board’s decision, and grant or deny the further

relief requested in the complaint.

2. I first take up the question of whether Brady was

deprived of his right to free selection as between appeal

to the Adjustment Board and an independent action, since

it may be dispositive of many entangling issues involved.

This is in line with the permissive area of review defined

by the Third Circuit in the Bower case.

Plaintiff refers to Article XXVI(f) of the TWA-IAM

Agreement, which provides:

“If the employee discharged or to be discharged

under this Article contends that he is not properly sub-

ject to discharge under the terms of this Article, he

may protest such action to the TWA-IAM System

Board of Adjustment provided that such protest in

writing is mailed to the Board within three (3) days

after the date the employee is notified of such action.

This protest shall be submitted in duplicate to the

Chairman, TWA-IAM System Board of Adjustment,

with one copy to be mailed in care of the Vice-President

of Industrial Relations, TWA, Room 207 Administra.

tion Building, Municipal Airport, Kansas City, Mis-

souri, and the other copy to be mailed in care of the

General Chairman, IAM, Room 1019 Rialto Building,

Kansas City, Missouri. Both copies shall be sent by

registered mail, return reccipt requested. The date

of receipt of such written protest by the party with

the representative who is Chairman of the System

Board of Adjustment shall be considered as the date

of receipt of the protest by the Board. In the event

no protest is so filed within the above time limits, the

action will be considered as proper and will be final

55a

and binding upon all parties concerned. Within five

(5) days of receipt of such a protest, the System

Board of Adjustment will meet and consider the dis-

pute ***.’’ (Italics supplied.)

Since the agreement was made and entered into in ac-

cordance with the provisions of the Railway Labor Act,

as amenced, the policy declared therein is paramount.

From a plain reading of Article XXVI(f) it is evident that

if a discharged employee filed-no protest with the System

Board of Adjustment, his discharge would, by virtue of

his failure, be conclusive upon him. Such a provision is

a far cry from what the Supreme Court held in the Moore

case and reaffirmed in Koppal as to the solidarity of the

employee’s position. In the eyes of Brady, any discharged

employee, it could do no other but mislead. I find the

effect of Article XXVI(f) of the TWA-IAM Agreement

entirely vitiated the freedom of action to which the dis-

charged employee was entitled in choosing his course."

While the fact that Brady did expressly condition his ap-

1° Indicative of the confusion engendered even to parties familiar

with the procedural aspects of an appeal is the situation in the

case at bar. Formal notification of discharge did not reach Brady

until May 4, 1956. The Agreement provides, in Article XXVI(f),

that the protest must be mailed to the System Board of Adjustment

within three days thereof, and that hearing must be held within

five days after receipt. Brady, by letter of April 24, 1956, to the

Board requested an appeal. The Chairman of the Board replied

by letter of April 30, 1956, in which he set May 4, 1956, as the date

for hearing. After presentation of all the evidence at the hearing

on that date (the hearing was centrally located for employees—

Kansas City,-Missouri) the Board ruled that since Brady did not

receive formal notification of discharge until May 4, 1956, his

request for appeal of April 24, 1956, was premature. Consequently,

Brady was obliged to write aghin to the Adjustment Board within

three days of May 4, 1956. He did so by letter of May 5, 1956,

wuich was received on May 9, 1956, thus necessitating a hearing

on or before May 15, 1956. A hearing was held on May 14, 1956.

Brady was discharged on May 15, 1956.

Ae RTE OR IN eT te

oi i el

56a

peal to the Adjustment Board” does not thereby reserve

any rights to him, as plaintiff has argued, it does indicate

the existence of a coercive force operating on the dis-

charged employee’s free selection of alternatives and his

own meager effort to counteract that force. Consequently,

a free election must be deemed as being nullified under

these circumstances.?!

3. It thus remains to determine where plaintiff now

stands in this suit. No case is known to this court in

which a ruling of an Adjustment Board has been stricken

down on the grounds left to us in the Bower case. How-

ever, in view of the nature of the cause, it can only be

that the appeal by the discharged employee to the System

Board of Adjustment must be considered as never having

been entered at all. Pilaintiff’s position, therefore, with

respect to the allegations of fraud and all other matters

bearing on the decision of the Board, is bypassed. Brady

will be given the opportunity to elect he never had.

Whether plaintiff chooses to pursue his appeal to the

Board, or to commence an independent action is a decision

left, of course, to him. It is noted, however, that should

he start suit for wrongful discharge in the state court of

Delaware, he must be prepared to meet the challenge of

exhausting remedies, if Delaware so requires, as heretofore

discussed; if he sheuld elect to sue in federal court, the

usuai jurisdictional requirements must be satisfied.

© Letters of April 24, 1956, and May 5, 1956, from Vincent P.

Brady to the TWA-IAM System Board of Adjustment, Kansas

City, Missouri.

21 The importance of adhering to Article XXVI(f) was stressed

by the Adjustment Board itself in its ruling of May 4, 1956, which

found the appeal at that time not properly before it and granted

additional time to Brady to perfect it. Said the Board: ‘‘The

Board calls your attention to Article XXVI(f) ‘In the event

no protest is so filed within the above time limits, the action

(discharge) will be considered as proper and will be final and

binding upon all parties concerned.’ ”’ '

57a

4. Defendants’ motions are denied. I will entertain an

order not inconsistent with this opinion either staying this

action or dismissing it without prejudice, the date from

which plaintiff has, in accordance with the provisions of

the TWA-IAM Agreement, three days to select his forum.

Plaintiff submit order.

Vincent P. Brady, Plaintiff,

;

&

t

5 i

é

P

.

&

e

3

‘

i

V.

Trans World Airlines, Inc., a corporation of the State of

Delaware, and The International Association of Ma-

chinists, an unincorporated association, Defendants.

Civ. A. 1884,

United States District Court

D. Delaware.

Oct. 28, 1958—167 F. Supp. 469

Cates M. Wricut, Chief J udge.

ca ELLE L OS PON IED EE LYS LEI RE LEY I PSII TN ESB

SNR Ege SPN as

[1] This matter is before the court on reargument of

the decision rendered in Brady v. Trans World Airlines,

Ine.,' directed primarily to the impact the recent Supreme

Court pronouncement in Conley v. Gibson? had upon the

Brady determination. Consenting to rehear counsel! is a

proper exercise of this court’s discretion since Judge

Leahy, the author of the Brady decision, by reason of re-

tirement was ‘‘unavailable’’ within the purview of United '

SH

D.C. Del. 1957, 156 F. Supp. 82.

* Conley v. Gibson, 1957, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.

2d 80.

58a

States v. Wheeler.* It is, however, with a great deal of

restraint and deference that reargument has been ordered

in view of Judge Leahy’s able opinion.

The issues raised by the parties have been exhaustively

explored and for purposes of delineation will be briefly set

forth and considered seriatim:

I. Does the System Board of Adjustment (Board) have

jurisdiction over the premises?

II. Assuming (I) is answered in the negative, what is

the scope of federal jurisdiction absent diversity of citizen-

ship?

IIT. Has a federal cause of action been properly pleaded?

I

[2] The initial inquiry pertaining to jurisdiction of the

Board is resolved by Conley v. Gibson.t There the Su-

preme Court precisely stated : °

$3 Cir., 1958, 256 F. 2d 745, 747.

“<* * * We pointed out that other exceptional circumstances

of unavailability of the first judge would be if he had died or

resigned ; it was obvious in these situations that if the petition

for reconsideration were to be heard at all, it would have to be

by another judge.’’

It is important to note that no order was entered by Judge

Leahy.

* Note 2, supra. See also Hargrove v. Brotherhood of Locomo-

tive Engineers, D.C. 1953, 116 F. Supp. 3; Brotherhood of Rail-

road Trainmen v. Luckie, Tex. Civ. App. 1955, 286 S.W. 2d 712;

Rose, The Railway Labor Act and the Jurisdiction of the Courts,

8 Lab. L.J. 9 (1957).

° 1957, 355 U.S. 41, 44, 78 S. Ct. 99, 101, 2 L. Ed. 2d 80. §3

First (i) of the Railway Labor Act (45 U.S.C.A. § 153) has no

application to carriers by air (Title II, § 201, 45 U.S.C.A. § 181),

however, the identical language herein pertinent is found in Title

IT, § 204, first par. (45 U.S.C.A. § 184):

“‘The disputes between an employee or group of employees

and a carrier or carriers by air growing out of grievances,

. 6 ee Oe laiiliietinds

59a

‘We hold that it was error for the courts below to

dismiss the complaint for lack of jurisdiction. They

took the position that §3 First (i) of the Railway

Labor Act conferred exclusive jurisdiction on the

Adjustment Board because the case, in their view, in-

volved the interpretation and application of the collec-

tive bargaining agreement. But §3 First (i) by its

own terms applies only to ‘disputes between an em-

ployee or group of employees and a carrier or carriers.’

This case involves no dispute between employee and

employer but to the contrary is a suit by employees

against the bargaining agent to enforce their statutory

right not to be unfairly discriminated against by it

in bargaining.’’

Although plaintiff’s complaint leaves much to be desired,

it is clearly discernible that plaintiff’s controversy is with

his bargaining agent and not employer, notwithstanding

that the employer is joined in the action to accord complete

relief. The series of events noted in Judge Leahy’s opinion

disclose that the Board heard the case and rendered its

verdict prior to Brady’s dismissal. Thus the Board

or out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions, * * * shall

be handled in the usual manner up to and including the chief

operating officer of the carrier designated to handle such dis-

putes; but, failing to reach an adjustment in this manner,

the disputes may be referred by petition of the parties or by

either party to an appropriate adjustment board, as herein-

after provided, with a full statement of the facts and support-

ing data bearing upon the disputes.’’

Thus it is apparent that the Conley construction of § 3 First (i)

Title I has similar application to Title II § 204 1 (45 U.S.C.A,

§ 184). ;

8«< # ® * On May 14, 1956, the Board decided adversely to Brady.

On May 15, 1956, he was discharged from employment by TWA

pursuant to the collective bargaining agreement between TWA and

TAM which required good standing membership in the union as a

condition of employment.’’ 156 F. Supp. 82, 83.

LE EELT OE NOS OLLIE CREE Re OG NAHE 80 vet

PLO

60a

could only have determined Brady’s claim vis-a-vis the

Brotherhood.’

[3] The fact that the dispute might encompass construc-

tion of the collective bargaining agreement is deemed en-

tirely irrelevant for unless the controversy is between em-

ployee and employer the Board is simply without juris-

diction’ and no agreement of the parties can extend its

authority.®

The covrt in resolving this issue is not unmindful of the

caveat noted in United Railroad Operating Crafts v. Wyer,

namely, ‘‘ * * * it is a fantastic thought that every employee

who is discharged under a union shop agreement can run

to Court about it.’”’’° This argument was effectively re-

butted in 8 Lab.L.J. at page 69:

““e * * The district court’s (Wyer Court) indif-

ference to the rights of the workers is shocking for it

So

* See 8 Lab. L.J. at page 59:

“‘However, if it is the situation where a hearing shows to

the employer’s satisfaction that the employee is not a member

of the union, and the employer acquiesces in the union’s de-

mand, the dispute is not between the employee and the carrier,

but between the employee and the union which is disputing his

merabership and pressing for the discharge. The union shop

contract is solely for the advantage of the union and, in all

probability, the employer would do nothing about discharging

the allegedly delinquent employee until prodded by the

union.’’

845 U.S.C.A. §184: ‘‘The disputes between an employee or

group of employees and a carrier or carriers by air * * *,”’

®“*The authority or jurisdiction of the System Board is statutory,

45 U.S.C.A. § 184. I. cannot be extended by agreement of the par-

ties, for it is not a private board of arbitration.’ American Air-

lines v. Air Line Pilots Ass’n, D.C.E.D.N.Y. 1950, 91 F. Supp.

629, 632.

1° United Railroad Operating Crafts v. Wver. D.C.S.D.N.Y. 1953,

115 F. Supp. 359, 365.

6la

further said that ‘it is a fantastic thought that every

employee who is discharged under a union shop agree-

ment can run to court about it.’

‘If it is a violation of the statute, why is it fantastic?

Since when have the courts become so much more im-

portant than the citizens whose rights they must re-

dress? Has the court become callous as to the work-

er’s rights? Possibly these cases will make the reader

wonder.’’ (Parenthesis supplied.)

Nor is the court impervious to the advantages derived from

having expertise and uniformity in the resolution ot labor

matters especially where the determination involves fu-

ture conduct." It is not thought, however, that denial of

Board jurisdiction in the instant proceeding will tend to

foment labor strife.

Of the policy to be served the most persuasive argument

is that -vhich attacks the Board under the factual setting

herein presented for the inherent bias engendered by its

composition of members representing exclusively manage-

ment and union. Article XII(b) of the TWA-IAM collec-

tive bargaining agreement provides:

‘*The System Board of Adjustment shall consist of

four (4) members, two (2) selected by the Company

and two (2) selected by the Union.”

It is simply repugnan: to our standards of fundamental

fairness and totally uarealistic to require an employee

to submit a dispute he has with his bargaining agent for

final determination to persons selected by and represent-

11 Slocum v. Delaware, L:. & W. R. Co., 1950, 339 U.S. 239, 70

S. Ct. 577, 94 L. Ed. 795, Alabaugh v. Baltimore & Ohio R. Co.,

4 Cir., 1955, 222 F. 2d 361.

12 Note 11, supra.

NETRA Te LOT, PO TE ET NIM, MTEL SRILA LON ERR SRE TETEH BR NESS TNA MSIE eet ERE

Ta a eR

62a

ing the bargaining agent. The decisional law end the legal

literature are replete with condemnation of this practice.'®

18«° @ * © Indeed, it might be diffievlt to find a constitutional

basis for relegating this controversy to the Railway Adjustment

Board as contended by defendants, and such procedure appears

particularly abhorrent when it is considered that the defendants

named herein participate in making the selections of membership

on the Board, who would pass upon the validity of their acts

charged to be in disregard of the trust imposed upon them.’’ Har-

grove v. Brotherhood of Locomotive Engineers, D.C. 1953, 116 F.

Supp. 3, 9.

“** * * We can only answer that in that event there is a public

interest in the impartial protection of any rights granted by an

Act of Congress that transcends the immunity of labor disputes

from all surveillance by a court of law.”’ Rychlik v. Pennsylvania

R. Co., 2 Cir., 1956, 229 F. 24 171, 175, reversed on other grounds,

1957, 352 U.S. 480, 77 S. Ct. 421, 1 L. Ed. 2d 480.

In Dr. Bonkam’s Case, 8 Co. Rep. 114a, 2 Brownl. 255, 77 Eng.

Rep. 647 (C.P. 1610), the defendant was fined by the President

and Censors of the Royal College of Physicians, pursuant to a

statute, for practicing medicine without a proper license. The

statute gave half the fine to tne Royal College of Physicians. In

holding this fine invalid Lord Coke said:

‘* # * * The censors cannot be judges, ministers, and parties ;

judges to give sentence or judgment; ministers to make sum-

mons; and parties to have the moiety of the forfeiture, quia

aliquis non debet esse Judex in propria causa, imo iniquum est

aliquem suae rei esse judicem; and one cannot be Judge and

attorney for any of the parties, * * *, And it appears in our

books, that in many cases, the common law will controul Acts

of Parliament, and sometimes adjudge them to be utterly void:

for when an Act of Parliament is against common right and

reason, or repugnant, or impossible tc be performed, the com-

mon law will controul it, and adjudge such Act to be void ;

See also Steele v. Louisville & Nashville R. Co., 1944, 323 U.S. 192,

65 S. Ct. 226, 89 L.Ed. 173; Tunstell v. Brotherhood of Locomo-

tive Firemen & Enginemen, 1944, 323 U.S. 210, 65 S. Ct. 235, 89

L. Ed. 187; Tumey v. State of Ohio, 1927, 273 U.S. 510, 47 S. Ct.

437, 71 L. Ed. 749; Edwards v. Capital Airlines, 1949, 84 U.S.

63a

II and II

[4] Unfortunately, concluding that the Board lacked au-

thority to determine Brady’s claim does not materially ad-

vance the jurisdictional ‘nquiry for plaintiff seeks nore

than simply upsetting the Board’s judgment."* Since di-

versity of citizenship is lacking the additional relief re-

quested can only be accorded in this forum if a cause of

action correctly invoking 28 U.S.C.A. § 1331 or § 1337 has

been asserted.

The claim as it now reads, resolving all doubts in favor

of the pleader, is in need of amendment for it is seriously

App. D.C. 346, 176 F. 2d 755, certiorari denied 338 U.S. 885,

70 S. Ct. 186, 188, 94 L. Ed. 548; Brotherhood of Railroed Train-

men v. Luckie, Tex. Civ. App. 1955, 286 S.W. 2d 712; Rose, Rail-

way Labor Act and Jurisdiction of the Courts, 8 Lab. LJ. 9

(1957) ; 40 Harv. L. Rev. 30 (1926).

4 Complaint, pp. 6-7:

‘Wherefore, plaiutiff seeks the following relief:

“‘T, An order of this Court reversing the decision of the

SBA, dated May 14, 1956.

“iI. An order directing TWA to reinstate Brady as an em-

ployee with payment to him of all wages, overtime pay and

vacation pay since May 15, 1956, with reinstatement of Brady

to all other benefits he held as an employee of TWA including

the $15,000.00 life insurance policy, the sickness and benefit

policy, credit union privileges, retirement benefits and his

seniority status retroactive to October 1, 1946 undiminished

by the time since May 15, 1956.

“IIT. A judgment against [AM and/or TWA for damages

for the humiliation and embarrassment suffered by Brady by

reason of his illegal discharge.

“IV. A judgment for damages suffered by Brady by reason

of the discharge without just cause by TWA.

**V. The allowance of a reasonable attorney’s fee which shall

be taxed and collected as a part of the costs of this suit.

“‘VI. Such other, further and different relief as the Court

may deem just and proper in the premises, ’’

questioned whether little more than an action sounding

ex delicto cr ex contractu has been formulated."* At oral

argument plaintiff expressly requested permission to as-

sert by amended complaint conduct which would set forth

a cause within the purview of Conley."

The court subscribes to plaintiff’s contention that Conley

v. Gibson” should not be limited to its facts but encom-

passes all forms of discrimination whether it be racial or

not. The case law which has attempted to limit redress in

federal courts to racial discrimination" is less persuasive

to this court than the decisions and literature which oppose

the placing of an arbitrary restriction.” There is no

justifiable reason without invoking constitutional mandates

to so limit federal relief where predicated solely on a

federal statute. In Hargrove v. Brotherhood of Loco-

* Brock v. Brotherhood of Sleeping Car Porters, D.C.W.D.La.

1955, 129 F.Supp. 849.

16 Note 2, supra.

17 Note 2, supra.

18 Alabaugh v. Baltimore & Ohio R. Co., 4 Cir., 1955, 222 F.2a

861; Spires v. Southern Ry. Co., 4 Cir., 1953, 204 F.2d 453; Colbert

v. Brotherhood of Railroad Trainmen, 9 Cir., 1953, 206 F.2d 9,

certiorari denied, 1954, 346 U.S. 931, 74 S.Ct. 320, 98 L.Ed. 422.

19 Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 73 S.Ct. 681,

97 L.Ed. 1048; Mount v. Grand International Brotherhood of

Locomotive Engineers, 6 Cir., 1955, 226 F.2d 604, certiorari denied,

1956, 350 U.S. 967, 76 S.Ct. 436, 100 L.Ed. 839; Hargrove v.

Brotherhood of Locomotive Engineers, D.C.1953, 116 F.Supp. 3;

8 Lab.L.J. 9 (1957); see also dissenting opinion in Brotherhood

of Railroad Trainmen v. Howard, 1052, 343 U.S. 768, at page 776,

72 S.Ct. 1022, at page 1026, 96 L.Ed. 1283.

*** * * Tt would have been the same if the Brotherhood had

discriminated against him on some other ground, unrelated to

race. It was the Brotherhood’s duty ‘to act on behalf of all

the employees which, by virtue of the statute, it undertakes to

represent.’ ”’

% Steele v. Louisville & Nashville R. Co., 1944, 323 U.S. 192, 65

S.Ct. 226, 89 L.Ed. 173.

SS ete 708 ae vlad ct J

mE eat eine Aa Gwe te

65a

motive Engineers the language of J ucige Pine is particu-

larly appropriate and is in the court’s astimation, a com-

plete answer to any attempt to restrict court supervision of

the RLA to racial discrimination : 1

“‘Although the Steele and related cases involved

racial discrimination, an analysis of the opinions makes

it clear that jurisdiction of the courts was not depend-

ent on that element exclusively, but related to their

power to determine whether or not the statutory duty

to represent all of the employees equally had been

met. Compare Ford Motor Co. v. Huffman, 345 U.S.

330 [73 S.Ct. 681, 97 L.Ed. 1048] where no racial ques-

tion was involved.’’

Further the coart is of the opinion that the authority

cited by defendants for the proposition that the bargain-

ing agent’s responsibilty is merely to refrain from execut-

ing agreements unlawful on their face, in terms or effect”?

directly conflicts with the language of Conley stated

below:

““* * * A contract may be fair and impartial on its

face yet administered in such a way, with the active or

tacit consent of the union, as tu be flagrantly discrim-

inatory as against some members of the bar raining

unit.’’

Thus little weight and consideration have been afforded

these decisions for it is fair to infer from the aforemen-

71 D.C., 116 F.Supp. 3, 9. See also discussion of the Hargrove

decision in Brotherhood of Railroad Trainmen v. Luckie, Tex.Civ.

App.1955, 286 S.W.2d 712, 716.

*2 Hettenbaugh v. Airline Pilots Ass’n International 5 Cir., 1951,

189 F.2d 319; United R.R. Operating Crafts v. Northern Pacific

Ry. Co., 9 Cir., 1953, 208 F.2d 135, certiorari denied 347 U.S. 929,

74 S.Ct. 529, 98 L.Ed. 1081.

*8 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.

66a

tioned quotation that discriminatory practices in adminis-

tering the bargaining agreement are federally condemned.”

Accordingly, plaintiff is granted leave to amend pursuant

to the course indicated at oral argument. TWA will be

retained as a party defendant as a precautionary measure

to insure plaintiff complete relief in the event he sustains

his burden.* In view of the foregoing, there is no sub-

stance to defendant TWA’s contention that the complaint

is deficient for non-joinder of the System Board of Ad-

justment.

An order may be submitted.

* Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; see

also Richardson v. Texas & New Orleans R. Co., 5 Cir., 1957, 242

F.2d 230).

*5 Richardson v. Texas & New Orleans R. Co., 5 Cir., 1957, 242

F.2d 230. Article XXVI (p) of the TWA-IAM agreement is

further reason for not dismissing TWA as a party defendant:

“‘The Union shall indemnify and save the Company harmless

against all forms of liability that shall arise out of or by rea-

son of action taken by the Company, which action was re-

quested by the Union under the provisions of this Article

(Union Security).’’ (Parenthesis supplied).

Sr ah nedicrn RRNRSRMate Kboiteactemeieanir Bo haat Sa econ

67a

Vincent P. Brady, Plaintiff,

V.

Trans World Airlines, Inc., a corporation of the State of

Delaware, and The International Association of Ma-

chinists, an unincorporated association, Defendants.

Civ. A. No. 1884.

United States District Court

D. Delaware.

June 10, 1959—174 F. Supp. 360

* * a * * . * * * *

Cates M. Wricut, Chief Judge.

This matter is before the court on defendant, The Inter-

national Association of Machinists’ (IAM) motion to dis-

miss the Second Amended Complaint ‘‘on the grounds that

(1) the Court lacks jurisdiction over the subject-matter

of the Complaint, as amended; and (2) the Complaint, as

amended, fails to state a claim upon which relief can be

granted.’’ Diversity of citizenship does not exist. i

. Plaintiff’s essential allegations of fact are: !

‘Brady was not delinquent in the payment of his

dues. He tendered his dues in time to avoid being ;

held delinquent by the IAM. His tender of dues was

refused. The IAM’s refusal to accept his dnes is

unexplainable except on the basis that it wanted to

? Plaintiff’s Brief in Opposition to Motion to Dismiss Second

Amended Complaint, pp. 5-6.

““* * * Brady brings this action pursuant to the provisions

of the United States Code, Title 45, Chapter 8, and more par-

ticularly Title II, Section 201 and Title I, Section 2 of the

Railway Labor Act, to the’ extent the provisions of Title I,

Section 2 are made applicable by Title II, Section 201, the

aforesaid sections also being known as 45 U.S.C. [§§] 181 and

152, and pursuant to the provisions of 28 U.S.C. Section 1331

ana 1337.’’ Second Amended Complaint, par. 18.

a Pian Ee Naat Rl a RB Bais BUG TB eK FER VER 0 ie RNa he oN

68a,

be rid of Brady. Despite Brady’s timeiy tender of

dues, the IAM before the SBA and previously in this

Court claimed that Brady was delinquent. *** The

discrimination against Brady was the fact that the

IAM refused to accept tender of his dues which was

not the attitude the LAM took with respect to other

members of Brady’s Local 1776. Not content with dis-

criminating against Brady by refusing to accept his

dues, the IAM thereafter ‘pulled out all stops’ in an

effort to have Brady discharged. The tack the IAM

took was to claim that he had not paid dues (misrep-

resenting the fact). The action which the IAM took

against Brady under its claim that he had not paid

dues was action which the union did not take against

other members of Local 1776, who were, in fact, de-

linquent in the payment of their dues. The purpose

of Brady’s allegation (and what he believes the proof

in this case will show) is that the IAM made out a

fictitious case against Brady using a ‘test’, which test

the IAM itself was unwilling to apply to other mem-

bers of the IAM Local. Thus, the discrimination.”

A perusal of the aforementioned contentions indicates

that plaintiff sets forth two distinct claims, namely:

(1) Plaintiff was discharged in violation of 45 U.S.C.A.

§ 152.2

(2) The Brotherhood’s discriminatory actions in causing

plaintiff’s discharge constitute a breach of the bargaining

representative’s duty under the Railway Labor Act to

represent all members of the craft fairly without dis-

crimination.®

? This section is made applicable to Carriers by Air, 45 U.S.C.A.

§ 181.

* Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80;

Steel v. Louisville & Nashville R. Co., 1944, 323 U.S. 192, 65 S.Ct.

226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen

69a

[1] The court holds plaintiff’s averments re discrimina-

tion are sufficient to bring him within the purview of

this court’s adjudication filed October 28, 1958.*

[2] The bargaining representative’s statutory duty ‘‘to

represent fairly and without hostile discrimination all of

the employees in the bargaining unit’’, and ‘“‘not to draw

‘irrelevant and invidious’ distinctions among those it rep-

resents’’° clearly proscribes arbitrary invocations of union

security provisions to reprimand the membership.® If

inaction be interdicted™ manifestly affirmative discrimina-

tory conduct cannot be countenanced.

[3] Plaintiff’s claim that he was discharged in violation

of 45 U.S.C.A. § 152, particular! y Section 152, Eleventh (a),

raises a serious question of statutory construction. This

provision in pertinent part provides:

& Enginemen, 1944, 323 U.S. 210, 65 S. Ct. 235, 89 L.Ed. 187.

Brady v. TWA, D.C.Del.1958, 167 F.Supp. 469; Cherico v. Brother-

hood of Railroad Trainmen. D.C.S.D.N.Y.1958. 167 F.Supp. 635;

Vol. 2 U.S.Code Congressional Service, 81st Congress, 2d Session

1950, p. 4322: ‘‘Your committee also desires to make it clear that

nothing in this bill [S. 3295] is intended to modify in any way the

requirement that the authorized bargaining representative shall

represent all the employees in the craft or class, including non-

union employees as well as members of the union, fairly, equitably,

and in good faith. (See Steele v. Louisville & Nashville Railroad

Co., 323 U.S. 192, 65 S. Ct. 226, 89 L.Ed. 173, and Tunstall v.

Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65

S.Ct. 235, 89 L.Ed. 187).

* Brady v. TWA, supra.

* Conley v. Gibson, 1957, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2

L.Ed.2d 80.

®<‘Tf the unions are to represent all of its members equitably, it

breaches its duty if it discriminates against an individual as well

as against a class or a recogifized minority group.’’ Cherico vy.

Brotherhood of Railroad Trainmen, D.C.S.D.N.Y.1958, 167 F.Supp.

6°5, 637.

7 Note 5, supra.

Es POORER. AR Met ¥ on

70a,

“Eleventh. Notwithstanding any other provisions

of this chapter, * * * any carrier or carriers * * * and

a labor organization or labor organizations duly desig-

nated and authorized to represent employees in ac-

cordance with the requirements of this chapter shall

be permitted

‘(a) to make agreements, requiring, as a condition

of continued employment, that within sixty days fol-

lowing the beginning of such employment, or the effec-

tive date of such agreements, whichever is the later

all employees shall become members of the labor or-

ganization representing their craft or class: Provided.

That no such agreement shall require such condition of

employment with respect to employees to whom mem-

bership is not available upon the same terms and con-

ditions as are generally applicable to any other mem-

ber or with respect to employees to whom membership

was denied or terminated for any reason other than

the failure of the employee to tender the periodic dues,

initiation fees, and assessments (not including fines

and penalties) uniformly required as a condition of

acquiring or retaining membership.”’

Defendant submits that the proviso language of the en-

actment merely declares illegal agreements which, on their

face, do not conform to the statute. Thus, under defend-

ant IAM’s view, so long as the collective bargaining agree-

ment is couched in terms of the Act, conduct under any

circumstance, cannot give rise to a federally cognizable

claim.

Although the proviso does appear to speak of ‘‘no agree-

ment shall’’ to adopt defendant LAM’s construction and so

limit its application,would render the provision impotent.

The Conley court rejected the identical argument where it

was urged as limiting the duty of the bargaining agent to

7la

refrain from negotiating agreements discriminatory in

terms and/or effect. Mr. Justice Black cogently observed : ®

““* * * A contract may be fair and impartial on its

face yet administered in such a way, with the active

or tacit consent of the union, as to be flagrantly dis-

criminatory against some members of the bargaini

unit.’’ [355 U.S. 41, 78 S.Ct. 102.]

The legislative history makes it crystal clear that if an

employee be expelled from membership for any reason

other ‘‘than his failure to tender the uniformly required

periodic dues, initiation fees, and assessments, he cannot

be required to relinquish his job because of his failure to

join or remain a member of a labor organization.’’® De-

fendant asserts that the court is precluded from resorting

to statements evidencing the policy bottoming the proviso

without demonstrating that the statutory language is am-

biguous.

45 U.S.C.A. § 152, Eleven (a) not unlike other provisions

of the Railway Labor Act is incapable of literal applica-

tion.” For instance, the section as worded suggests the

8 Note 5, supra.

®Vol. 2 U.S.Code Congressional Service, 81st Congress, 2d

Session 1950, p. 4322.

*° Pennsylvania R. Co. v. Rychlik, 1957, 352 U.S. 480, 488-489,

77 S.Ct. 421, 425, 1 L.Ed.2d 480:

“At first glance the language of Section 2, Eleventh (c)

would appear to be disarmingly clear: union-shop contracts

are satisfied if the employee belongs to any union which hap-

pens to be national in scope and organized in accordance with

the Act. -And if that be its meaning we would then have to

deal with the questions reached by the Court of Appeals. How-

ever, as so often happens, when the language of the statute

is read, not in a vacuum, but in the light of the policies this

Section was intended to serve, it becomes clear that the pur-

pose of Congress was not, as respondent contends, to give

employees in the railroad industry any blanket right to join

EY sc asa

as acne

DRRLAONESRRNY Atle: KL Anika we

72a

anomalous result that a member may not be discharged

for failing to maintain membership but only for failing

to acquire membership." Manifestly the drafters could not

have intended the aforementioned construction; neither

could they have purposed the interpretation placed upon

the second proviso by defendant.”

unions other than the authorized bargaining representative,

or to help dissident or arising new unions recruit new mem-

bers. Rather, the sole aim of the provision was to protect em-

ployees from the requirement. of dual unionism in an industry

with high job mobility, and thus to confer on qualified craft

unions the right to assure members employment security, even

if a member should be working temporarily in a craft for which

another union is the bargaining representative. * * iti

12 Compare 45 U.S.C.A. § 152 Eleventh (a):

‘“(a) to make agreements, requiring, as @ condition of

continued employment, that within sixty days following the

beginning of such employment, or the effective date of such

agreements, whichever is the later, all employees snall become

members of the labor organization representing their eraft or

class * * *.’” (Emphasis supplied.)

with first clause of TWA-IAM agreement, Article XXVI:

‘‘Back employee now or hereafter employed in any work

covered by this Agreement shall, as 2 condition of continued

employment in such work, within sixty (60) days following

the beginning of such employment or the effective date of this

Article, whichever is later, become a member of, and there-

after maintain membership in good standing * * *.”’ (Em-

phasis supplied.)

12 United States v. Shirley, 359 U.S. 255, 79 S.Ct. 746, 749, 3

L.Ed.2d 789:

‘‘Statutes, including penal enactments, are not inert exer-

cises in literary composition. They are instruments of govern-

ment, and in construing them ‘the general purpose is a more

important aid to the meaning than any rule which grammar

or formal logic may lay down.’ United States v. Whitridge,

197 U.S. 135, 143, 25 S.Ct. 406, 408, 49 L.Ed. 696. This is so

because the purpose of an enactment is embedded in its words

even though it is not always pedantically expressed in words.

73a

The 1951 amendment permitting carriers and employee

representatives to bargain for union security, discloses

that the sole requirement the bargaining agent could extract

from its members as a condition of continued employment

was the tender of ‘periodic dues, initiation fees, and assess-

ments (not including fines and penalties) uniformly re-

quired as a condition of acquiring or retaining member-

ship.’? 18

[4, 5] An employee whose discharge is precipitated by a

union covered under the provisions of the Railway Labor

Act for reasons other than enunciated in the statute, ab-

sent Congressional preemption," may have recourse to a

federal court. To hold otherwise would be a perversion of

the general statutory scheme and defeat entirely the de-

clared purposes of Congress.®

See United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct.

167, 74 L.Ed. 508. Statutory meaning, it is to be remembered,

is more to be felt than demonstrated, see United States v.

Johnson, 221 U.S. 488, 496, 31 S.Ct. 627, 55 L.Ed. 823, or, as

Judge Learned Hand has somewhere put it, the art of inter-

pretation is ‘the proliferation of purpose.’ * * *”

845 U.S.C.A. § 152, Eleventh (a).

14 The instant proceeding is not one in which a System Board of

Adjustment created pursuant to 45 U.S.C.A. § 184 has jurisdiction.

Brady v. TWA, D.C.Del.1958, 167 F.Supp. 469. See also Felter

v. Southern Pacifie Co., 1959, 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d

854; Conley v. Gibson, supra; Cunningham v. Erie R. Co., 2 Cir.,

1959, 266 F.2d 411.

Vol. 2, U.S.Code Congressional Service, 81st Congress 2d

Session 1950, pp. 4321-4322:

‘** * * The proposal was made by Senator Lehman that your

committee’s intention be made clear that such employees were

not to be deprived of their employment as a result of the exer-

cise of the right extended by this bill. Your committee desires

to make it clear that the proviso clauses in paragraph eleventh

(a) are designed to protect such employees; thus if an em-

ployee is denied membership or is eligible for membership only

on terms and conditions not generally applicable to other mem-

Ree Diet alee 0 he KIS ales

1 LD Nh AM i ADE AIR pct seein Meat ih igs Soar in beghiees tie ne a ently ‘ |

eu shew’, 1 HH Hees, "4

yhigtaninden

T4a

Prior to the 1951 amendment an employee could not be

discharged at the request of the certified bargaining agent

for failing to retain union membership.’*® No language in

45 U.S.C.A. § 152, Eleventh (a) permitting a carefully cir-

cumscribed form of union security indicates that Congress

intended to deprive the federal courts of actions based

upon allegatiors that a union member was certified for

discharge by his bargaining agent, notwithstanding he had

fulfilled his financial obligation to the brotherhood.

bers, he cannot be requested to give up his job because of his

failure to join a labor organization. Furthermore, if mem-

bership is denied or if an employee is expelled from member-

ship for any reason other than his failure tc tender the uni-

formly required periodic dues, initiation fees, and assessments,

he cannot be required to relinquish his job because of his fail-

ure to join or remain a member of a labor organization. * * *”’

‘‘# # ® Tt is the view of your committee that the terms of

S. 3295 are substantially the same as those of the Labor-Man-

agement Relations Act as they have been administered ani

that such differences as exist are warranted either by experi-

ence or by special conditions existing among employees of our

railroads and airiines.’’ Vol. 2 U.S. Congressional Service, 81st

Congress, 2d Session 1950, p. 4321.

Compare 29 U.S.C.A. § 158(a) (3):

‘*#@ ® ® Provided further, That no employer shall justify any

discrimination against an employee fer nonmembership in a

labor organization, * * * (B) if he has reasonable grounds

for believing that membership was denied or terminated for

reasons other than the failure of the employee to tender the

periodic dues and the initiation fees uniformly required as

a condition of acquiring or retaining membership.’’

16 Vol. 2 U.S. Congressional Service, 81st Cong., 2d Sess., pp.

4319-4321; 45 U.S.C.A. § 152, Fifth. See also Pennsylvania R. Co.

yv. Rychlik, 1957, 352 U.S. 480, 489, 77 S.Ct. 421, 1 L.Ed.2d 480.

‘*® ® ® Tt is true that at the time of its passage in 1951 Subsection

Fifth of § 152 made it unlawful for a railway to require an em-

ployee to join any union as a condition of employment, and we may

assume, arguendo. that that subsection still forbids a ‘closed shop.’

#¢’ Otten v. Baltimore & Ohio R. Co., 2 Cir., 1953, 205 F.2d

58, 60.

75a

There remains for consideration a third soarce of fed-

eral jurisdiction, namely, the union security provision of

the collective burgaining agreement violates the second

proviso of 45 U.S.C.A. § 152, Eleventh (a). The contrac-

tual provision in pertinent part provides: "

“*(a) Each employee now or hereafter employed in

any work covered by this agreement shall, as a sondi-

tion of continued employment in such work, within sixty

(60) days following the beginning of such employment

or the effective date of this Article, whichever is later,

become a member of, and thereafter maintain member-

ship in good standing (as herein defined), in the Union,

except as provided otherwise herein. Such condition

shall not apply * * * with respect to any employee to

whom membership is denied or terminated for any rea-

son other than the failure of the employee to tender

the dues uniformly required of other members of his

classification (and at his point on the Company’s sys-

tem) as a condition of acquiring or retaining mem-

bership.

‘*For the purpose of this Article, ‘membership in

good standing in the Union’ shall consist of the pay-

ment by the eizployee of dues for each calendar month,

not later than the last day of the following calendar

month, which are uniformly required of members of

his classification (and at his point on the Company’s

system) as a condition of acquiring or retaining mem-

bership.

**(e) When an employee becomes delinquent by not

meeting the requirements of (a) above for ‘member-

ship in good standing in the Union’, the following pro-

cedure shall be observed :.

7 TWA-IAM agreement, effective March 11, 1955, Articie XXVI,

pp. 62, 63, 67,

SSiatinive. - " -

ee OSS I DR Ne BOI: Be 5 AE ahs INO Raha ihe gett wah tems . ~+ into sla OF 0 OO a abe

76a

**(1) The General Chairman of the Union shall

notify the employee by registered letter, return receipt

requested, copy to the Company’s Vice President of

Industrial Relations, that the employee is delinquent

in the payment of dues as specified herein and accord-

ingly is subject to discharge as an employee of the

Company. * * *

‘*(n) Whenever the term dues is referred to in this

Article, such use of the word ‘dues’ shall include initia-

tion or reinstatement fees, periodic dues, and assess-

ments (not including fines and penalties), * * *.’’

The definition of membership in good standing set forth

in the above-quoted Article es ‘‘the payment by the em-

ployee of dues for each calendar month, not later than the

last day of the following calendar month’’ does not seem

to conform with Article E, Section 14 of the LAM constitu-

tion which in essence provides for a three month grace

period.”* At one stage of the proceedings counsel for de-

fendant conceded the variance : ”

‘*Now, the way he gets that is this: The union shop

agreement itself provides that a member shall be in

good standing if he is not delinquent for more than

one month. In other words, the union shop agreement

provision is stronger than what is in the union laws.

People can be members of the union in places where

they do not have a union shop, and they would not be

affected the same way. But it says one month. Then

it has a provision in it that says that that delinquency

of one month can be met up until the end of the next

calendar month.

18 Tnternational Association of Machinists Constitution, Article

E, See. 14.

19 Transcript of proceedings Apiil 21, 1958, Argument pp. 39-40.

77a

“So as far as the wording of the union shop agree-

ment itself is concerned—suppose the plaintiff had only

been delinquent for February, he would have nearly had

up until the end of March to meet his delinquency. And

if that was what we were talking about, then his argu- '

ment would be a good argument. However, that was

not what Mr. Miller replied to him. What Mr. Miller

replied to him, which was more generous than what !

was in the union shop agreement, was the provisions of t

the union constitution which are before the court which .

provide that a man shall lose his good standing auto-

matically when he is three months delinquent. It does

not make any difference whether we figure that three

months on February 1 or on February 28, * * *»

(Emphasis supplied. )

This matter was brought to the attention of counsel sua

sponte by the court wherein after pointing out the afore-

mentioned discrepancy the court suggested : 2

‘In view of the foregoing, does not Article XXVI

(e) which prescribes the procedure for union certifica-

tion for delinquency ‘by not meeting the requirements

of (a) above for membership in good standing in the

union’ raise a statutory claim? It seems to me that

Article XXVI (e) would permit the discharge for a

dues delinquency of but two months and since the cun-

stitution permits a three months delinquency before

termination of union mempership, I question whether

this is not specifically contrary to the second proviso |

of 2 Eleventh (a): )

** “Provided, That no such agreement shall require

such condition of employment with respect to em-

ployees to whom membership is not available upon

the same terms and conditions as are generally appli-

cable to any other member or with respect to employees

* Letter dated February 4, 1959.

2 saa he —

Whee is Ph jw : a aE Sais Tina Re oo Shrine eed Deel ee ee e AS DD ARR leat et

ee pois

78a

to whom membership was denied or terminated for any

reason other than the failure of the employee to tender

the periodic dues, * * * uniformly required as a condi-

tion of acquiring or retaining membership.’ (Em-

phasis supplied. )

‘Thus, under the above construction, could there be

any question but that the court has jurisdiction in the

premises ?

‘Since this matter is raised for the first time by

me, J] would appreciate hearing the views of counsel

at their earliest convenience.’’

1AM replied that counsel’s previous statement was erro-

neous and proceeded to submit a revised construction.”

Plaintiff answered, ‘‘that on analysis there is no incon-

sistency between Article E, Section 14 of the IAM con-

stitution and Article XXVI (a) of the TWA-IAM agree-

ment,’’ however, ‘‘there is considerabie difference between

the IAM’s explanation of the consistency of the two sec-

tions and Brady’s.’’ 7

21“<(Jpon consideration of the point raised in the Court’s Febru-

ary 4th letter, the language of the entire Article XXVI(a), and

the record of the proceedings before the System Board of Adjust-

ment, counsel believes that he was in error in stating during the

April 21st argument that there is any difference between Article

XXVI (a) and Article E, Section 14 of the IAM Constitution.’’

Supplemental Memorandum of IAM in Support of Motion to Dis-

miss Second Amended Complaint, p. 5, filed March 4, 1959.

*2 Supplemental Reply Brief of Vincent P. Brady, p. 3, filed

April 22, 1959. But see plaintiff’s letter of February 16, 1959:

‘‘ Although I have not argued that the inconsistency with respect to

dues between the Union Constitution and the IAM-TWA Agree-

ment invalidates the agreement under the Federal Statute, I be-

lieve the argument is meritorious and is encompassed within the

complaint as initially filed and as amended.’’

joao PKcalebibiidllas

79a

[6] Under the recent Supreme Court pronouncement in

Felter v. Southern Pacific Co., * it would seem unquestion-

ably that the validity of an agreement executed pursuant to

45 U.S.C.A. § 152, Eleventh (a) is federally cognizable, not-

withstanding that the case solely presented a 45 U.S.C.A.

§ 152, Eleventh (b) agreement.

Particularly applicable to the present litigation is foot-

note 3, wherein Mr. Justice Brennan states :

‘‘The Trainmen’s position, concurred in by the com-

pany, is that this provision means that no revocation

cards are to be recognized ‘except those reproduced

by our organization.’ While this construction of the

agreement is hardly an obvious one, it is the construc-

tion put on the agreement by the parties to it, the

Southern Pacific and the Trainmen, and since peti-

tioner in this suit does not question it as a matter of

construction, we of course accept it here.

‘‘Since there was no question of interpretation or

application of the collective agreement, but rather only

one of its validity under the statute, the case is not

one in which resort to the grievance and Adjustment

Board machinery provided by the Railway Labor Act

was required. ‘This dispute involves the validity of

the contract, not its meaning.’ ‘Brotherhood of Rail-

road Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct.

1022, 1025, 96 L.Ed. 1283. Cf. Slocum v. Delaware,

L. & W. R. Co., 339 U.S. 239, 242-244, 70 S.Ct. 577, 578-

580, 94 L.Ed. 795. The case presents an employee dis-

pute as much, if not more, with the labor organization

as with the employer. Cf. Steele v. Louisville & N. R.

Co., 323 U.S. 192, 205, 65 S.Ct. 226, 233, 89 L.Ed. 173.”

Unfortunately the posture of the immediate proceeding

does not mirror Felter, supra, with respect to the con-

*8 1959, 359 U.S. 326, 79 S.Ct. 847, 850, 3 L.Ed.2d 854.

4 Note 23, supra.

struction of the respective bargaining agreements. In

Felter the agreement, as construed by the carrier and bar-

gaining agent, was not questioned by the aggrieved em-

ployee. Here no accord on the interpretation of Article

XXVI has been reached.

In view of plaintiff’s allegation that defendant violated

45 U.S.C.A. § 152, Eleventh (a), and the patently ambigu-

ous contractual language, with one possible construction

leading toward illegality, it is deemed that jurisdiction in

the premises has been properly reposed in this court within

the purview of Felter, supra.

Accordingly, defendant’s motion to dismiss the second

amended complaint is denied. The court further denies

defendant’s application for an interlocutory certificate pur-

suant to 28 U.S.C.A. §1292(b). To place this case in

proper perspective for appellate review the factual dis-

putes should be resolved.

Submit order.

2 Noie 23, supra.

8la

Vincent P. Brady, Plaintif,,

v.

Trans World Airlines, Inc., a corporation of the State of

Delaware, and the International Association of Ma-

chinists, an unincorporated association, Defendants.

Civ. A. No. 1884.

United States District Court

D. Delaware.

July 11, 1961—196 F. Supp. 504

a * * * * e * * * *

Cates M. Wricut, Chief Judge.

Plaintiff has sued the above-named defendants for rein-

statement to his job and various forms of damages. He

contends his discharge by defendant TWA, purportedly

based upon a valid union-shop agreement with defendant

IAM, was in violation of the Railway Labor Act.! Plain-

tiff and the IAM have filed cross-motions for summary

judgment.

[1] After considering the oral argument and various

parts of the record, it appears this case may not be dis-

posed of under Rule 56, 28 U.S.C.A., as construed by our

Court of Appeals. In this Circuit, a District Court, in

disposing of a motion for summary judgment, may not

draw inferences from admitted facts, Bragen v. Hudson

County News Company, 3 Cir., 1960, 278 F.2d 615; may

not use supporting affidavits to overcome well-pleaded

facts, Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169

F.2d 580; and apparently may not even assume facts

against the moving party, Krieger v. Ownership Corp., 3

, 1959, 270 F.2d 265.

[2] In the present case, the question of whether Brady

was discharged ‘‘for any reason other than the failure

? That statute is set out at 45 U.S.C.A. §§ 151-168, 181-188.

82a

* * * to tender the periodic dues, initiation fees, and assess-

menis (not including fines and penalties) uniformly re-

quired as a condition of acquiring or retaining member-

ship.’’ (Railway Labor Act, § 2, Eleventh), is at best one

of mixed fact and law. Of a similar nature is the issue of

‘‘discrimination’’ on the part of the IAM. Although taere

are many admitted facts, there is a sharp dispute as to

the inferences to be drawn therefrom, and the Court cannot

say the law compels one possible inference as against an-

other on each material issue. The area of agreed facts

also appears somewhat less than counsel have presumed.

[3] Defendant IAM has moved to strike plaintiff’s de-

mand for trial by jury. intermixed with this issue is the

question of whether plaintiff, if successful on his substan-

tive claims, might be entitled to punitive damages. If so,

then his claim for a jury trial may be well-founded, for a

court of equity, in the absence of express statutory provi-

sions, is without authority to assess punitive damages.

William Whitman Co. v. Universal Oil Products Co., D.C.

D.Del. 1954, 125 F.Supp. 137. This latter problem will be

dealt with first.

[4] Plaintiff relies on two separate and distinct statutory

provisions. The first is based on §2, Eleventh, of the

Railway Labor Act, a 1951 enactment in the nature of a

proviso ‘‘intended to relax the prohibitions contained in

paragraphs fourth and fifth of Section 2 * * * against all

forms of union security agreements. * * *’? S.Rep. No.

2 The Court’s jurisdiction over this phase of the action is clear,

for § 2, Fourth, Fifth, have been authoritatively construed to be

enforceable by the courts. Texas & N. O. R. Co. v. Brotherhood of

Railway and Steamship Clerks, 1930, 281 U.S. 548, 50 S.Ct. 427,

74 L.Ed. 1034; Virginian Railway Co. v. System Federation No.

40, 1937, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Railroad Em-

ployees’ Co-op. Association v. Atlanta B. & C. R. Co., D.C.D.Ga.

1938, 22 F. Supp. 510. Since § 2, Eleventh, was intended solely

to limit the effect of those sections, its :aterpretation and enforce-

ment is likewise Icft tu the courts.

CN tte ha iat ee ES oie

83a

2262, 8ist Cong., 2nd Sess. (1950). The Senate Report

further stated, ‘‘[T]he terms of [§ 2, Eleventh] are sub-

stantially the same as those of the Labor-Management Re-

lations Act as they have been administered. * * **? Vio-

lations of the corresponding provisions in the Taft-Hartley

Act, 29 U.S.C.A. § 158(a) (3), (b) (2), cannot lead to puni-

tive damages. Local 60, United Brotherhood of Carpen-

ters, ete. v. N.L.R.B., 1961, 365 U.S. 651, 81 S.Ct. 875, 6

L.Ed.2d 1. Moreover, the regulation of the economic

relations between labor and management is an exceedingly

delicate matter, and this Court is unwilling to employ the

crude device of punitive damages as a remedy in causes

founded on a detailed and pervasive federal statutory

scheme without express authorization from Congress. See

United Mine Workers of America v. Patton, 4 Cir., 1954,

211 F.2d 742, 47 A.L.R. 2d 850.

[5] Plaintiff’s second statutory basis for this action is

the duty of a union to bargain fairly on behalf of those

it represents and not to act with ‘thostile discrimination’?

towards members of the bargaining unit. Steele v. Louis-

ville & N. R. Co., 1944, 323 U.S. 192, 203, 65 S.Ct. 226, 89

L.Ed. 173. Although the rationale that express statutory

authority is necessary to award punitive damages as a

remedy for violations of a federal statute is somewhat in-

apposite where the statutory duty itself is only implicit,

the Court does not believe the Steele doctrine authorizes

such relief. No ease has yet gone so far.‘ Moreover, the

very threat of punitive damages, as a remedy for viola-

tions of a duty which in effect limits the scope of collective

bargaining between labor and management, may have un-

$ Full equitable relief in the form of injunctions is obtainable to

remedy Steele violations in spite of the provisions of the Norris-

La Guardia Act, 29 U.S.C.A. §§ 101-115. Graham vy. Brotherhood

of Locomotive Firemen, 1949, 338 U.S. 232, 70 S.Ct. 14, 94

L.Ed. 22.

* The cases cited by plaintiff all involve state law and are, there-

fore, inapposite here.

SA ER LS wt ae gas eee a INOS

LIENS ATONE ANNIE NE Ye

RRP VI Na OL ree

wt Nivea ES Ratu:

84a

foreseeable effects upon the institution of free collective

bargaining itself.° In this situation, the fact that the duty

itself has been read into the Act by the courts may well

be cause to limit the relief obtainable to equitable remedies

and compensatory damages. Because of this danger, the

duty itself has been restricted by the courts and gives

only limited protection. Under these circumstances, the

Court does not believe punitive damages may he recovered

in actions based upon the Steele doctrine.

[6] The complaint also asserts a common law cause of

action, based on state law, either of wrongful discharge

(against TWA) or malicious interference with an employ-

ment relationship (against the IAM).’ The issue of puni-

tive damages need not be reached here, for the Court finds

§ 2, Eleventh, of the Railway Labor Act has deprived the

states of their power to regulate discharges under union

security agreements within the scope of that statute. Un-

like the Taft-Hartley Act,® the union security provisions

5 See the dissent of Mr. Chief Justice Warren in United Auto-

mobile, ete., Workers of America v. Russell, 1958, 356 U.S. 634,

652, 78 S.Ct. 932, 2 L.Ed.2d 1030. The majority held there that

since the state had power to act, it could award all damages al-

lowed by state substantive law. The dissent, however, assumes

some pertinency when, as here, we are dealing solely with federal

law.

®See Wellington, Union Democracy and Fair Representation:

Federal Responsibility in a Federal System, 67

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