# Petition for Writ of Certiorari — International Ass'n of Machinists v. Brady

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1969
- **Citation:** 393 U.S. 1048

## Text

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TABLE OF CONTENTS

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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

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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

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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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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.

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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.

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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

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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.

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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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0325%3A4. Public record. Not legal advice.