Petition for a Writ of Certiorari — International Ass'n of Machinists & Aerospace Workers v. National Labor Relations Board

IN THE

Supreme Court of the United States

Qcrober Term. 1973

No. v4 3 ome et 4 2

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WorKERS, AF L-CLO, Petitioner

er

NATIONAL Labor RELATIONS Boarp, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLato EK, Paprps

Lovuts P. Povirox

1300 Connecticut Avenue, N.W.

Washington, D.C. 20036

BERNARD DUNAU

912 Dupont Cirele Building, N.W.

Washington, D.C. 20036

ALFRED M. KLEIN

Rosert M. Simpson

727 West 7th Street

Los Angeles, California 90017

Attorneys for Petitioner

ee a an a ee

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

ce

| 3

TABLE OF CONTENTS

Page

Coren BY veh ONS bs sa kes b 6 eae 1

SRE AO RRS A aa a (ee 2

ry ee ee cee ee 2

re Ont onise: Wak eee hak ed w sO oe 8 2

I ee eee Goes ss RMON Oh PES Aaah KARE SS 5

IE Pea ee Cha NGkd kA kana he hs 5

If. The Decision and Order of the National Labor

I ee ee eas news gat n 11

lii. The Decision of the Court of Appeals ........... 18

Reasons ror GRANTING THE WRIT ................02. 15

ES A, ASPs OP Er Ee Te ee ee Tee eT TTT TT 25

ee Se el rer hese akkek & hia eas bee la

AUTHORITIES CITED

CASES:

3rotherhood of R.R. Trainmen v. Jacksonville Ter-

minal Co., 394 U.S. 369 ...... 15, 14, 16, 17, 19, 22-23, 25

Centlivre Village Apts., 148 NLRB 854 ........0...... 23

Local 1976, Carpenters v. N.L.R.B., 857 U.S. 95 2.0... 19

Meat & Highway Drivers, Local Union No. 710 v.

a I ee CON ES kk t eke eeabs eases 24

il Table of Contents Continued

Page

National Woodwork Manufacturers Assn. v. N.L.R.B.,

SE Be Es ras nae a the Re ave wick sca ee 19, 21

kate Ve COMO BIG CT A oc oc boven ene ayeseder 1s

Northeastern Indiana Bldg. & Construction Trades

Council v. N.L.R.B., 352 F.2d G96 2.02... cece cece 23

Order of Railroad Telegraphers v. Chicago and North-

western BR. Co., 362 UB. BOO ww cn icc ccccccscns 16

STATUTES:

Labor Management Relations Act, 1947, Title II, $212 15

National Labor Relations Act, 28 U.S.C. § 151:

fe ASA rrr rey yeeros

| RR A Are re ayn Em Aan Ar et nt ait 4,11

§ 8(b) (4) Tete Cah SNe eae ees ee PeCekeeay cs 4, 18, 19, 23

DOR EOE es ae deuss cabanas ccedsinneee 4,5, 12,18

OB) Dt Aa Ree er Aare BAD: 2, 4, 10, 11, 12, 16-17, 18,

19, 20, 21, 22, 23, 24

SPEED ac Lachcekacees kh uke ukeee vee sees eaanee 10

Railway Labor Act, 45 U.S.C. $$ 151-188, as amended,

OP CL. Dey Ge Ns 8 Ne nah hk eee ness 2,13

$$ 2, First, Second, and Seventh; 5, First, First

(a); 6: SRS a Perce cer as iu ee a 3

eas Eg, SAN orr en einen ee eee:

Sy SEE Sic clean tans vas hel ehasedas mis oate a

Se Sa OOP ikke kee bees venue benasces 13

LEGISLATIVE MATERIALS:

CG Te, EEE COPED nc i kien tise ndawiwsncnne 13

OS Came. Met. GIS CIP) ois n cn ctevekactsvincasaces 14

105 Cong. Rec. 6556-58 (1959) ...... 0. ccc ccc cc eee 20

1035 Cong. Rec. 14343 (1959) .......... cc cen ccc cccces 21

Set OO, TG ae LROD san bi daeacascencetvecus 20, 23

105 Cong. Ree. 17899, 17919-20, 18153-54 (1959) 2.2... 20

Hearings before the Subeommittee of the Senate Com-

mittee on Interstate Commerce on 8.2496, 74th

Cong., 1st Sess., 6, 8-9, 25-27 (1935) ............. 14

Table of Contents Continued

iii

Page

Hl. Rep. No. 741, 86th Cong., Ist Sess., 58, 60, 97 (1959) .

IH. Rep. No. 1147, 86th Cong., Ist Sess., 26, 27, 39 (1959)

li. Rep. No. 2248, 74th Cong., 2d Sess. (1936) 0.00000.

S. Min. Rep. No. 187, 86th Cong., Ist Sess., 79-80 (1959)

S. Rep. No. 105, 80th Cong., Ist Sess. 19 (1947) 2.2...

S. Rep. No. 895, 74th Cong., Ist Sess. (1935) 2.0.0.2...

MISCELLANEOUS:

oe N.M.B. Ann. Rep. 101-102, 103. .... 6.0. ces cccucss

Perlman, M., The Machinists: A New Study in Amer-

ican Trade Unionism, 3 (1962) .................

20

20

14

20

15

Var ana She

RENO REL A LEP NE DE WARY SLY,

Beserrrecyers::

IN THE

Supreme Cuurt of the United States

OcTOBER TERM. 1973

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WorKERS, AFL-CIO, Petitioner

Vs

NATIONAL LABoR RELATIONS Boarp, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

International Association of Machinists and Aero-

space Workers, AFL-CIO, prays that a writ of cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Cireuit entered

in the above-entitled case on January 9, 1974 (infra,

p. 41a).

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

49) F.2d 367 (infra, pp. 35a-40a). The opinion of the

National Labor Relations Board is reported at 197

NLRB No. 18 (infra, pp. ia-33a).

eee seen psecsgen ELITE PRIN EE ST NY ee

2

JURISDICTION

The judgment of the Court of Appeals was entered

on January 9, 1874 (iufra, p. 41a). A petition for re-

hearing was denied on February 7, 1974 (infra, p. 42a).

A formal judgmeut was entered on April 19, 1974

(infra, p. 48a). The jurisdiction of this Court rests on

28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the National Labor Relations Board is

empowered to determine that an agreement violates the

so-called “shot cargo”? prohibition contained in section

S(e) of the National Labor Relations Aet when that

agreement has been entered into by an air carrier,

excluded from the coverage of the National Labor

Relations Act as a ‘person subject to the Railway

Labor Act,” and a union representing the air carrier’s

employees, excluded from the status of employees

under the National Labor Relations Act as ‘‘indi-

vidual[s]| employed by an employer subject to the

Railway Labor Act.”’

STATUTES INVOLVED

1. Section 201, Title II of the Railway Labor Act

(45 U.S.C. §§ 151-188), provides that, except for the

grievance adjustment procedure, Title I of that Act

applicable to rail carriers is ‘‘extended to and shall

cover every common carrier by air engaged in inter-

state or foreign commerce, ... and every air pilot or

other person who performs any work as an employee

or subordinate official of such carrier... .’’ Seetion

202 of the Railway Labor Act provides that the ‘‘ duties,

requirements, penalties, benefits, and privileges pre-

seribed and established’’ by Title I, except for the

grievance adjustment procedure, “shall apply to...

carriers by air and their euiplovees .. 2.7"

The Railway Labor Act enumerates among its pur-

poses “to provide for the prompt and orderly settle-

ment of all disputes concerning rates of pay, rules, or

working conditions ...°" ($2). It makes it the duty

“of all carriers... and employees to exert every rea-

sonable effort to make and maintain agreements con-

cerning’ these subjects (§ 2. First). The National

Mediation Board is at the center of the statutory settle-

ment procedure in the case of ‘ta dispute between an

employee or group of employees and a carrier... cou-

cerning changes in rates of pay, rules er werking con-

ditions not adjusted by the parties in conference’? (§ 5,

First (a)). Thirty-days written notice of ‘tan intended

change in agreements’ must be given (§ 6) ; negotiation

of the intended change is mandated (§ 2, First, See-

ond) ; mediation by the NMB is required if direct nego-

tiation does not resolve the controversy (§ 5, First) ; if

mediation is unsuccessful, the NMB must try to per-

suade the parties to agree to voluntary arbitration

(ibid.) ; and failing these efforts, emergency beard fact-

finding is available upon recommendation of the NMB

and decision of the President (§ 10). During the

pendeney of every step in the proceeding, and 'for thirty

days following its conclusion, the intended change may

not be made wnilaterally. (§§ 2, Seventh; 5, First: 6:

10.)

2. Air earriers and their employees are expressly

excepted from the separate statutory procedure of the

National Labor Relations Act (29 U.S.C. § 151). The

latter Act provides that the ‘term ‘employer’... shall

not include... any person subject to the Railway Labor

4

Act” (§ 2(2)), and that the **term ‘employee’... shall

not include... any individual employed by an employer

subject to the Railway Labor Act ...7’ (§2(3)).

3. Section 8(e) of the National Labor Relations Act

prohibits the so-calied ‘*hot cargo’’ agreement :

It shall be an unfair labor practice for any labor

organization and any employer to enter into any

contract or agreement, express or implied, whereby

such employer ceases or refrains or agrees to cease

or refrain from handling, using, selling, transport-

ing or otherwise dealing in any of the products of

any other employer, or to cease doing business with

any other person, and any contract or agreement

entered into heretofore or hereafter containing

such an agreement shall be to such extent unen-

foreeable and void ....

Exeepted from this prohibition are the building ana

construction industry’ and the apparel and clothing

industry.” Section 8(b) (4) (A) of the National Labor

Relations Act prohibits a labor organization from

‘Provided, That nothing in this subsection (e) shall apply to

an agreement between a labor organization and an employer in the

construction Industry relating to the contracting or subcontracting

of work to be done at the site of the construction, alteration, paint-

ing, or repair of a building, structure, or other work... .”’

2**Provided further, That for the purposes of this subsection

(e) and section 8(b) (4) (B) the terms ‘any employer’, ‘any person

engaged in commerce or in industry affecting commerce’, and ‘auy

person” when used in relation to the terms ‘any other producer,

processor, or manufacturer’, ‘any other employer’, or ‘any other

Berson” shall not include persons in the relation of a jobber, manu-

facturer, contractor, or subcontractor working on the goods or

premises of the jobber or manufacturer or performing parts of an

integrated process of production in the apparel and clothing indus-

try: Provided further, That nothing in this Act shall prohibit the

enforcement of any agreement which is within the foregoimg

exception. ”’

a)

exerting economic pressure where an object is ‘fore-

ing or requiring any employer... to enter inte any

agreement which is prohibited by seetion S(e) 2..."

Section 8(b)(4)(B) prohibits the so-called secondary

boycott. It makes it an unfair labor practice for a

labor organization to exert economic pressure where an

object is:

forcing or requiring any aig to cease using,

selling, handling, transporting, or otherwise den}-

ing in the products of any abe Ye producer, piro-

cessor, or ninufacturer, or to cease doing business

With any other person, ... Provided, That nothing

contained in this clause (1B) shall be construed to

make unlawful, where not otherwise unlawful, a: iV

primary strike or primary picketing .

STATEMENT

I. The Facts

Lufthansa, an international air carrier of passengers

and goods, exists under the laws of the Federal Re Ee

of Germany, and operates to and fom points within the

United States and other countries throughout the maeey

(R34). It isa ‘earrier by air’? within the meaning

of section 201 of the Railway Labor Act, and is not an

employer within the meaning of Section 242) of the

National Labor Relations Act (infra, p. 3a).

Lufthansa began air transportation in the United

States about June 15, 1955 (R. 74). About November 1.

1999, it started its own food preparation and catering

operations at John FL Kennedy International Airpe at

in New York to service its flights originating at that

point (R. 75). Food service for its flights origin: iting

at other points in the United States continued to be

provided to it by independent caterers (R. 74).

6

On June 350, 1961, pursuant to the procedures of the

Railway Labor Act, the National Mediation Board

certified the International Association of Machinists &

Aerospace Workers, AFL-CLO, (LAMAW), as the

representative of Lufthansa’s employees within the

craft or class of Kitchen and Commissary employees

CR. 75, 51, 102, 147). Beginning in 1961 the LAMAW

and Lufthansa entered into a successive series of col-

lective bargaining agreements covering this class of

employees (R. 75-77). The agreements recite that they

are “made and entered ito in accordance with the pro-

Visions of Title IL of the Railway Labor Act... 27° (R.

81, 102, 147). Article IL(a) of the agreements provides

that Lufthansa recognizes the LAMAW ‘tas the sole and

exclusive bargaining agent for all classes and grades of

... [commissary employees] employed by the Company

... Working within... the United States .. 27° CR. 82,

103, 148). Artiele I1(b) provides that ** All work per-

formed by the Company involving the work of all

classes and grades of... [commissary employees] is

recognized as coming within the jurisdiction of the In-

ternational Association of Machinists and is covered by

this Agreement” (ibid.). Through the agreement expir-

ing on July 31, 1970, Memorandum Of Understanding

No. 6, appended as part of the agreements, authorized

Lufthansa to subcontract commissary work in defined

circumstanees (R97, 120):

Iv Is Heresy Murvarty AGrReep that the Union

grants a waiver of Article I1(a) and (b) of the

Agreement between the Company and Tnterna-

tional Association of Machinists in the following

instances :

(a2) Work historically performed prior to the

date of signing ef the Agreement

(b) Where catering facilities are not provided;

‘

(¢) Where the work load is such that the facilities

and or personnel are net sufficient to accomplish

the work, provided that no lay-off results,

In the above instances the work may be contracted

out.

As of January 1969, pursuant to this contractual leave,

Lufthansa was provided with catering service at Los

Angeles International Airport by Continental Air

Lines, at Chicago and Boston by Marriott, and at

other points outside New York by others (R. 36, 27. D9,

74, 75).

On October 21-22, 1969, Lufthansa and LAMAW

entered into Memorandum of Understanding No. 10 OR,

79-76, 99-100). This memorandum provided that ** Diur-

ing the period April 1, 1970 to December 31, 1972 or

until the completion of the new catering facilities,

whichever occurs sooner, Blocing | 747 aircraft at JFK

airport [at New York] will be catered by Chefs Orchid

Caterers’ (R. 99). The premise of this agreement

Was recited in its preface. ‘Lufthansa intends te

operate B 747 aircraft on its North Atlantic routes by

April 1, 1970"; **the present catering facilities at JFK

airport are not sufficient to acconiplish the catering of

B oT47 aireraft’’: and “Lufthansa will provide new

catering facilities at JFK airport by the end of 1972

to handle such aireraft’? (R. 99). Accordingly, pend-

ing this event, catering of the B 747 aireratt at JFK

would be furnished by Chefs Orchid (R. 99),

On November 30, 1969, Lufthansa discontinued its

use of Continental Air Lines, and on December 1, 1969,

it hegan to use Marriott Corporation, to furnish food

service to Lufthansa flights originating at Los Angeles

International Airport (RL 76). Continental's commis-

8

sary employees are represented by the LAMAW and

their employment terms are tixed by a colleetive bar-

gaining agreement between Continental and LAMAW

(R. 75). Marriott’s employees are unrepresented (R.

37). Lufthansa’s termination of Continental’s services

caused the lavoff of four employees by Continental CR.

42,55). Disturbed by the loss of the four jobs, the

{AMAW informed Lufthansa that it should correct

the situation within two or three months, which Luf-

thansa understood to mean that it should arrange to

utilize a union caterer (RL 5d).

The 1967-1970 agreement between Lufthansa and

IAMAW, expiring July 31, 1970, provided for “written

notice of intended change ... served by either party in

accordance with the provisions of Section 6, Title I,

of the Railway Labor Act... at least 60 days prior to

the expiration date’? (it. 118). Shortly after March 1,

1970, Lufthansa received the LAMAW’s notiee of ‘* pro-

posed changes" *tas required by Section 6, Title I of the

Railway Labor Act’ (R. 76.145). Amoug the changes

sought by the LAM AW was to ** Delete” the allowability

of contracting out incorporated in Memorandum Of

Understanding No. 6 (supra, pp. 6-7), and to substitute

for it the requirement that: ‘‘Company to provide

eatering facilities on all points of the system (USA),

all positions te be filled as outlined by the terms and

conditions of this agreement’? (R. 146).

Negotiations began in May 1970 and lasted through

February 12, 1971 (R. 76). One of the principal issues

was the LAMAW'’'s insistence on its proposal that Luf-

thansa ‘provide catering facilities on all points of the

system" with its own emplovees (R. 76-77). This issue

was ultimately resolved and a collective bargaining

agreement reached by «toption of a compromise (R.

9

77). Provision was made for (1) expansion by Luf-

thansa of its catering facilities at John F. Kennedy

Airport at New York; (2) maximum utilization of its

existing facilities at that point; (3) retention at that

point of a prescribed minimum 1wnber of commissary

employees in’ specified job classifications; and (4)

engagement of “Chefs Orchid for the performance of

that catering service’ at that point which Lufthansa

“is unable to perform in its own flight kitchen .. .”’

(R. 196-197). For those points outside of New York

at which Lufthansa did not operate catering facilities,

provision was made that (I. 198):

The Company and Union agree where catering

facilities are not provided, the Company may cen-

tinue to farm out the work and shall engage the

following caterers to perform its catering service

at the following location:

LocaTIoNn CATERER

Los Angeles Chefs Orchid

Anchorage Northwest Airlines

Boston Marriott

Philadelphia Ogden Foods ( Berlo)

Chicago Chefs Orchid

Finally, provision was made for Lufthansa to select a

caterer “to perform catering service for scheduled

flights at any other location”? and to change a named

caterer at an existing location who ‘fails to meet the

Company's requirements as to quality, service or price

... (R. 198). For initial selection at a new location

or for a change at an existing location, Lufthansa shall

give TAMAW “sixty (60) days written notice’? of its

intention to select or ehange, and during that period

the two “shall attempt to agree upon”’ a caterer (R.

198). In the event that they do not agree upon a

be ee ate

10

‘Union caterer’? within that period, Lufthansa **may

then select a caterer of its choice’? (R. 198). This new

agreement concluded with the recital that it ‘*super-

sedes all preceding memoranda between the Company

and the Union pertaining to the Union’s waiver of its

exclusive work jurisdiction over the performace of

catering services...’ (R. 199).

Of the caterers named in the new agreement, the

employees of Marriott are unrepresented, the catering

employees of Northwest Orient Airlines are represented

by the LAMAW. and the catering employees of the

others are represented by *tsome labor organization

affiliated with AFL-CIO ...° (R. 37). Pursuant to

the agreement, Lufthansa notified Marriott that it was

terminating its services at Los Angeles on May 15,

1971, and at Chicago on June 1, 1971, and termination

was effectuated at Los Angeles on May 15, 1971 (R. 38-

39). However, based on charges filed by Marriott on

March 19, 1971 (R. 54), the NLRB General Counsel on

May 14, 1971, issued an unfair labor practice complaint

against Lufthansa and L[AMAW alleging that they had

violated section 8(e) of the National Labor Relations

Act by entering into, maintaining, and giving effect to

their coinpromise agreement on subcontracting of cater-

ing work (R. 5-16). Meanwhile, pursuant to section

10(1) of the National Labor Relations Act, on May 12,

1971 the cognizant NLRB Regional Director sought,

and on May 26, 1971 secured, preliminary injunctive

relief requiring that, pending determination of the

cause by the NLRB, (1) Lufthansa and [AMAW cease

effectuation of the agreement as it pertained to subeon-

tracting of work, (2) Lufthansa rescind its notice of

termination of Marriott’s services at Chicago, and (3)

Lufthansa resume utilization of Marriott’s services at

11

Los Angeles (R. 38, 200-203). Accordingly, in compli-

anee with the temporary injunction, on June 25, 1971

Lufthansa resumed using Marriott to supply food serv-

ices at Los Angeles (RR. 38). and presumabiv it did not

give effect to its notice of termination of Marriott's

services at Chicago.

II. The Decision and Order of the

National Labor Relations Board

The NLRB held, one member dissenting, that it ‘tis

cmpowered under Section 8(e) of the [National Labor

Relations | Act io determine the lawfulness” of the sub-

contracting agreement between TAMAW and = Lut-

thansa. It reached this conclusion despite the express

terms of section 8(e) limiting its prohibitory reach to

agreements between ‘any labor organization and any

cmployer... > By statutory definition Lufthansa is

not an* employer” within the meaning of the National

Laber Relations Act because it is excepted from that

status as a** person subject to the Railway Labor Act”

(§2(2)). By statutory definition Lufthansa’s employ-

ces represented by LAMAW are not employees within

the meaning of the National Labor Relations Act be-

cause they are excepted from that status as ‘*indi-

vidual[s] employed by an emplover subject to the Rail-

way Act™ (§2(3)). Acknowledging the contrary

import of ‘the seemingly clear language of Section 8

(e)” (infra, p. 9a), the NLRB nevertheless declined to

give effeet to the statutory definition of employer

excluding from its scope ‘any person subject to the

Railway Labor Act,” and held instead that as used in

section 8(e) the word **employer™ has an unrestricted

generic meaning. It reached this conclusion in exclu-

sive reliance on its reading of the legislative history of

|

12

section 8(e) and of the secondary boycott provisions of

section 8(b)(4)(B). (infra, pp. 9a-17a). Satisfied of

its power to reach the question, the NLRB invalidated

Lufthansa’s subcontracting agreement with [AMAW

on the ground that it ‘tin effect requires Lufthansa to

cease doing business with Marriott and contract only

with union caterers” (infra, p. 9a).

In dissent, Member John H. Fanning observed that

the majority’s unrestricted reading of the term ‘*em-

ployer” in section 8(e) brought within the prohibitory

purview of that section entry into agreements ‘* by rail-

roads, airlines, the Federal and state governments and

their political subdivisions, the Federal Reserve bank,

wholly owned Government corporations, and nonprofit

hospitals, all of which are excluded from the definition

of ‘employer’ contained in Section 2(2) of the Act”

(infra, pp. 23a-24a). He noted that the *‘language of

8(e) is itself clearly contrary to this holding .. .”’

(infra, p. 24a). And the legislative history, he con-

eluded, confirms that plain meaning. For the ‘‘legisla-

tive history of 8(e) and of the 1959 amendments to the

secondary boyeott provisions of the Taft-Hartley Act

demonstrate[s] ... that Congress clearly understood

that by the use of the words ‘any employer’ in 8(e)

[it was] limiting the jurisdictional reach of the section

to employers as defined in Section 2(2)” (infra, p. 24a).

The NLRB ordered Lufthansa and IAMAW to desist

from enforcing their subcontracting agreement of

February 12, 1971, or from entering into or enforeing

any other agreement, whereby Lufthansa ceases or

refrains or agrees to cease or refrain from doing

business with Marriott (infra, p. 22a).

15

III. The Decision of the Court of Appeals

The Court of Appeals affirnied the Board's decision

and enforced its order (infra, pp. 35a-40a). The Court

of Appeals did not essay an independent inquiry into

the statutory question, but deferred to the analysis of

the Board, observing that “the experienced judgment

of the Board is entitled to great weight on such ques-

tions of law and statutory interpretation” (infra, p.

o9a).

REASONS FOR GRANTING THE WRIT

The Court of Appeals, affirming the position of the

NLRB, has decided an iiporiant question of the

respective reach of the Railway Labor Act (RLA) and

the National Labor Relations Act (NLRA) ina manner

Which conflicts with this Court's decisions in Brother-

hoed of Railroad Trainmen v. Jacksonville Teriinal

0., 394 US. 369 (1969), and Local Union No. 25,

Teamsters Vv. N.Y, NW. & Hart. R.R. Co., 350 US.

155 (1956).

1. Por a brief nine months subsequent to its enact-

ment on July 5, 1935, air carriers and their employees

were covered by the NLRA. But on April 10, 1936.

coverage Was transferred from the NLRA to the RLA?

and all cases pending before the NLRB involving air

carriers and their employees were removed to the N ms

to “be handled to conclusion by the Mediation Board.’

The shift was made in order to subject labor disputes

arising in air and rail trausportation to the same statu-

tory regime, and to bring to the settlement of labor

disputes in air transportation the identical facilities of

*49 Stat. 1189, 45 U.S.C. $181; 80 Cong. Ree. 5411 (1936).

*RLA, § 206, 45 U.S.C. § 186.

ASE Ph ceheeae 0

PRONE S

SRS Sate

a eee

14

mediation, voluntary arbitration, and emergeney board

fact-finding as prevailed in rail transportation.*

Labor disputes in air transportation are thus within

the senior statutory scheme of the RLA. ‘*The NLRA

came into being against the background of pre-existing

comprehensive federal legislation regulating railway

labor disputes. Sections 2(2) and (3) of the NLRA...

expressly exempt from the Act’s coverage employees

and employers subject to the Railway Labor Act.”’

Brotherhood of Railroad Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369, 376 (1969). This explicit

definitional exclusion was designed to maintain the sep-

aration between the RLA and the NLRA as **two inde-

pendent and mutually exclusive federal labor sehemes.”’

Id. at 377.

This division between the RLA and the NLRA,

neither crossing into the other’s spuere, was confirmed

in 1947 when the NLRA was amended to add, define,

and prohibit the commission of unfair labor practices

by unions. Responding to the criticism that it was

‘unfair’ to allow “railway workers’ to engage in con-

duct which was forbidden to ‘*employees in others

industries’’, Senator Taft stated that: °

I want to point out that railway labor has never

been eovered by the Wagner Act; it has always

been covered by the Railway Labor Act, which pro-

vides a somewhat different procedure. We saw no

® Hearings before the Subcommittee of the Senate Committee on

Interstate Commerce on S. 296, 74th Cong., Ist Sess. 6, 8-9, 25-27

(1935); 8. Rep. No. 895, 74th Cong., Ist Sess. (1935); HL Rep. No.

2243, 74th Cong.. 2d Sess. (1936).

°93 Cong. Rec. 6498 (1947), in 2 Leg. Hist. LMRA 1571. ‘‘Leg.

Hist. LMRA”’ refers to the two-volume edition of the Legislative

History of the Labor Management Relations Act, 1947.

reason to change that situation, because there were

no abuses which had arisen in connection with the

operation of the Railway Labor Act.

“The exemption of employees of employers subject to

Railway Labor Act is to make it perfectly clear that in

providing remedies for wifair labor practices of unions

and their agents it was not intended to include such

employees.’?* And so, as this Court observed, ‘*We

think it clear that Congress, in excluding ‘any person

subject to the Railway Labor Act’ from the statutery

definition of ‘employer.’ carved out of the Labor Man-

agement Relations Act the railroads’ employver-em-

ployee relationships which were, and are, governed by

the Railway Labor Act." Local Union No, 25, Team-

sters V. N.Y., NH. & Hart. R.R. Co., 350 U.S. 155. 160

(1956).

2. The dispute between Lufthansa and LAMAW con-

cerning the form of subcontracting control to prevail

in the performance of commissary work by and for

Lufthansa is wholly within the domain of the RLA,

and the solution upon which they agreed is entirely

legal under the terms of the RLA. Nothing in the RLA

prohibits an air or rail carrier, in compromise of a

demand that all the work be performed solely by the

carriers’ employees, to agree that the work may be con-

tracted out only to named firms, that the carrier and

7S. Rep. No. 105, 80th Cong., Ist Sess., 19 (1947). in 1 Leg. Hist.

LMRA 425. Similarly, when Congress in 1947 enacted Title IT of

the Labor Management Relations Act, 1947. establishing a concilia-

tion procedure and providing for an 80-day strike injunetion in the

case of a national emergency, it stipulated that ‘‘The provisions of

this title shall not be applicable to any matter which is subject to

the provisions of the Railway Labor Act, as amended from time to

time’’ (§ 212).

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16

the union shall attempt to agree upon a new firm if the

‘carrier is required to change an existing firm or initially

select another firm, and that the carrier is free to select

any firm of its own choice if they fail to agree upon a

“Union” firm within a designated period (supra, pp.

8-10).° Had Lufthansa and LAMAW failed to reach

their compromise agreement, their dispute over sub-

contracting would have been submitted to the sueces-

sive statutory steps prescribed by the RLA of media-

tion, proffer of voluntary arbitration, and emergency

board fact-finding if necessary (supra, p. 3). Had

the parties ‘tunsuccessfully exhausted the Railway

Labor Act’s procedures’, they would then be free “to

employ the ful range of whatever peaceful economic

power they... feould] muster,’ including on the

IAMAW'’s part resort to strike and *pieketing—

whether characterized as primary or secondary... .""

Brotherhood of Railroad Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369, 392-393 (1969).

>. The NLRB would displace the statutory regime of

the RLA by subjecting resolution of Lufthansa’s and

LAMAW’s subcontracting dispute to the proscriptions

of section 8(e) of the NLRA banning the so-called ** hot

cargo”’ agreement. But the wording of section 8(c)

itself bars that intrusion. For it reaches only an agree-

ment between ‘any labor organization and any em-

ployer.”’ And by explicit definitional exelusion Luf-

thansa as‘an air carrier is vot an *temployer”’ within

the purview of the NLRA to which the proseriptions of

section 8(e) can apply. Given the conscious and delib-

erate use of the definitional exclusions to maintain the

See, Order of Railroad Telegraphers v. Chicago and North-

western R. Co., 362 U.S. 330 (1960).

17

division weeween the AWA eres tle SIUM A, Cire wwerres

“employer” in section 8(e) cannot be given an unre-

stricted generic reach in defiance of its statutory defini-

tion desigr. . — adopted to preclude the applieation of

the NLRAw. * LA empoyers and employees.

Nor is ie LAMAW a “labor organization”? within

the meaning of section 8(e) when it acts as the repre-

sentative of RLA employees in seeking an agreement

with their RLA employer. As this Court has held,

‘when the traditional railway labor organizations act

on behalf of employees subject to the Railway Labor

Art in a dispute with carriers subject to the Railway

Labor Act, the organizations must be deemed, pro

tanto, exempt from the National Labor Relations Act.”

Brotherhood of Railroad Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369, 376-377 (1969). The

ITAMAW is a traditional railway labor organization.

“The International Association of Machinists was

started in Atlanta, Georgia. by nineteen railroad ma-

chinists on May 5, 1888."°" [It remains to this day the

shoperaft union representing the railroad machinists.”

And it is the dominant union representing airline

ground personnel,"

The NLRB would have it. however, that the [IAMAW

is not a traditional RLA union because it **is composed

overwhelmingly of nonrailroad or nonairline employees

wees Cinfra, p. 20a). This is a complete nonsequitur.

The IAMAW is a traditional RLA union within the

field relevant to the operation of the Railway Labor

*M. Perlman, The Machinists: A New Study in American Trade

Unionism, 3 (1962).

'°38 N.M.B. Ann. Rep. 101-102 (1973).

"Id. at 103.

RVR A ENCE eer wot

18

Act and nontheless so because it represents large num-

bers of workers in other fields as well. Whether a union

is within or without the purview of the NLRA or the

RLA does not depend on the happenstance of its unre-

lated overall composition.

4. The NLRB seeks to justify an unrestricted

reading of section 8(e) of the NLRA to reach agree-

ments between an RLA employer and a union repre-

senting RLA emplovees in reliance upon the 1959 leg-

islative history of sections 8(e) and 8(b)(4)(B).

But an unobfuseated analysis of that history disproves

the NLRB’s thesis.

(a) Numbered 8(b)(4)(A) as enacted in 1947 and

8(b)(4)(B) as amended in 1959, Congress in these

sections of the NLRA prohibited the so-called sec-

ondary boycott. As originally adopted in 1947, see-

tion 8(b)(4)(A) prohibited inducement of ‘tthe em-

plovees of any emplover”™ to engage in secondary

activity. It ‘Shad been held that the term ‘the em-

ployees of any emplover’ limited the application of the

statute to those within the statutory definitions of

‘employees’ and ‘emplover.’*’ N.L.R.B. v. Servette,

377 U.S. 46, 51 (1964). “* In view of these definitions,

it was permissible for a union to induce work stoppages

by minor supervisors, and farm, railway or public

employees.”? Jd. at 51, n. 6. To close this loophole,

Congress in 1959 substituted the phrase ‘‘any in-

dividual emploved by any person” for **the employees

of any employer.”” /d. at 52. This *‘change was de-

signed to make the provision applicable to refusals by

employees who were vot technically ‘employees’ within

the statutory definitions...’ bid. The change

was accomplished by altering the wording to use lan-

19

guage clearly free of the restrictions of the statutory

definitions, and the sponsors explicitly explained that

the change was meant to prohibit induement of rail

and other nonstatutory employees. Jd. at 53, n. 8.

The change thus simply prohibited enlistment of non-

statutory employees as well as statutory employees to

earry ou secondary activity. It enlarged the class of

employees who were not to be subject to prohibited in-

ducement. But it did not enlarge the class of unions

to which the prohibition applied over that which had

formerly obtained. RLA employers, unions, and

employees were as free after the change as before from

the prohibitory reach of the NLURA. Brotherhood of

Railroad Trainmen v. Jacksonville Terminal Co., 394

U.S. 369 (1969).

(b) Section 8(e) of the NLRA had a separate evolu-

tion. This Court had held that as originally enacted

in 1947 section 8(b)(4)(A) did not invalidate entry

into a hot cargo agreement or its voluntary observance

but did prohibit its coercive enforcement. Local 1976,

Carpenters v. N.L.R.B., 357 U.S. 93 (1958). ‘*See-

tion 8(e) was designed to plug this gap in the legis-

lation by making the ‘hot cargo’ clause itself un-

lawful.”’ National Woodword Manufacturers Assn.

v. N.L.R.B., 386 U.S. 612, 634 (1967). Except for the

building and construction industry and the apparel

and clothing industry, section 8(e) prohibits ‘tany

labor organization and any employer’? from entering

into a hot cargo agreement and makes that agreement

‘*unenforeeable and void.’’ The route to this result is

easily traced.

The bill reported by the Senate Labor Committee

did not contain any provision dealing with the hot

‘argo agreement. The minority on the Committee

PER EE HD —

Ser ert ee ee

etersessnm ee a

20

criticized this omission. '* On the Senate floor an

amendment was thereafter adopted limited to in-

‘alidating hot carge agreements with “a common car-

rier subject to Part Li of the Interstate Commerce

Act.0"™ Extension of the invalidation to employers

other than motor carriers was expressly rejected. '

In the House, the House Labor Committee reported

a bill which also limited the invalidat’ .. of hot "argo

agreements to those entered into with motor carriers

The minority of the House Labor Committee ¢ riticize ad

this limitation. On the floor the louse voted to in-

validate hot cargo agreements entered into by ‘any

labor organization and any employer.” fn confer-

ence, the different reach of the two bills—the Senate

bill limited to motor earriers and the House Bill ex-

tending to ‘tany employer’’— was compromised by

adopting the broader coverage of “any iabor organi-

zation and any employer,” but by excepting from this

class the building and construction industry and the

clothing and apparel industry, and in that form sce-

tion S(e) was enacted." The construction and

i28. Min. Rep. No. 187, S6th Cone... Ist Sess., 79-80 (1959), in

1 Leg. Hist. LMRDA 79-80. ** Leg. Hist. LMRDA” refers to the

two-volume edition of the Labor-Management Reporting and Dis-

closure Act of 1959.

13105 Cong. Ree. 6556-58 (1959), in 2 Leg. Hist. LMRDA 1161-

63.

1 Thid.

i351. Rep. No. 741, 86th Cong., Ist Sess., 58, 60 (1959), in 1 Lee.

Hist. LMRDA 816, 518.

“Jd. at 97, in 1 Leg. Hist. LMRDA 855.

7105 Cong. Ree. 15891 (1959), in 2 Leg. Hist. LMRDA 1700-01.

STI. Rep. No. 1147, 86th Cong. Ist Sess.. 26, 27, 39, in 1 Leg.

Hist. LMRDA 943; 105 Cong. Ree. 17899, 17919-20, 18153-54

(1959), in 2 Leg. Hist. LMRDA 1432, 1452-53, 1738-39.

21

clothing industries were exempted because of their

special problems. ™

There is thus nothing in the legislative evolution of

section 8(e) which gives the slightest support to the

notion that the words ‘tany labor organization and any

employer’? used by it were not meant to be cabined

by the statutory definitions expressly adopted to de-

mareate the NLRB’s orbit of authority. On the con-

trary, when Congress did mean to bar enlistment of

railroad workers and other ionstatutory employees in

‘arrving on secondary activity, it deliberately used

words free of definitional coutinement aud explicitly

adverted to its intention to bar inducement of railroad

and other nonstatutory employees (supra, pp. 18-19),

The contrast in the case of section 8(e), both im the

use of statutorily-defined limiting words and in the

absence of any advertence to an enlarged meaning,

eloquently bespeaks that Congress intended the litera!

import of its language.

Nor can the NLRB persuasively invoke the state-

ment of Congressman Landrum on the House floor

that “if such contracts are bad in one segment of our

economy, they are undesirable in all segments” Cifra,

p. Ida; 105 Cong. Ree. 14545 (1959), in 2 Leg. Hist.

LMRDA 1518). His remark was directed to and

criticized the limitation of the hot cargo ban to motor

carriers. He supported enlargement of the ban from

entry into an agreement with ‘fa conmmon carrier sub-

jeet to Part IL of the Interstate Commerce Aet™ to

entry into an agreement with ‘tany employer.”

Nothing in this expansion to ‘tany employer’’ sug-

19 National Woodwork Manufacturers Assn. v. NLRB. 386 US.

612, 637-639 (1967).

22

gests an unrestricted reach to those employers who are

bevond the NLRA‘s statutory regime as specified by

the Act’s definition of that word.

ludeed, Congressman Landrum's statement is man-

ifestly inapposite to the scope of section 8(e) as it

ultimately evolved. He spoke on July 27, 1959, well

before the conference agreement on September 3, 1959,

Which modified **any employer’? to exempt the con-

struction and clothing industries (supra, pp. 20-21).

(iiven these significant exceptions, it is not even true

that section 8(e) blankets those employers who are

admittedly within the NLRA’s statutory regime, and

the universality imputed to Congressman Landruni’s

statement thus breaks under the weight of section 8(e)

itself,

Furthermore, the exception of the construction and

clothing industries because of their special problems

especially dictates the conclusion that section S(e)

eannot be extended to air and rail transportation by

freewheeling interpretation. This Court has already

explained the exact reasons for this conelusion

(Brotherhood of Railroad Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369, 292. (1969)):

Moreover, **[flrom the point of view of indus-

trial relations our railroads are largely a thing

apart... “The railroad world is like a state

within a state.’ ’... Thus, if Congress should now

find that abuses in the nature of secondary activi-

ties have arisen in the railroad industry, .. . it

might well decide—as it did when it considered the

garment and construction tndustries, see NLRA

§s(ej)—that this field) requires extraordinary

treatment of some sort... Certainly, it is for the

Congress, and not the courts, to strike the balance

**hetween the uneontroiled power of management

ST ne, 7

:

on

~

and labor to further their respective interests.’

: The Congress has not yet done so. [Em-

phasis supplied. ]

(¢) The last bit of history on which the NLRB relies

asily dispatched. The NLRB points out that the

bill as passed by the House prohibited a union from

exerting economic pressure where an object was

“forcing or requiring any person... to cease, or agree

fo cease, doing business with auy other person... 277

(iufra, pp. 1a-17a; 105 Cong. Ree. 15891 (1959), in

2 Leg. Hist. LMRDA 1700; emphasis supplied). First

of all, this provision does not even invalidate the hot

cargo agreement, but simply bars use of economic pres-

sure to secure one, Furthermore, this provision did

not survive the confercnee, it being replaced by sec-

tion 8(b)(4)(A) which bars a union from exerting

economic pressure where an object is ‘forei ‘ing or re-

quiring any employer... to enter inte any agreement

Which is prohibited by section S(e).’ ( Einphasis

supplied.) Thus, section S(bj)(4)¢A) was brought

into precise alignment with section 8(e). As in the

case of the agreement, so in the case of economic pres-

sure to obtain it, *tany employer.’ not ‘tany person,” -

ix the subject of statutory protection, and economic

pressure against “an employer” to assent to an agree-

ment is barred only when the agreement is ene ‘pro-

hibited hy section S(e).*

+. The NLRB*s uncritical foray is emphasized by the

observation in dissent of Member John H. Fanning who

noted that the NLRB*s interpretation would reach

“Centlivrre Village Apartments, 148 NLRB 854 (1964). re-

manded on another ground sub nom. Northeastern Indiana Bida. &

Const. Trades Council vy. N.L.R.B.. 352 F.2d 696 (C.A.D.C.. 1965).

Tee

24

agreements in alleged violation of section 8(e) entered

into ‘*by railroads, airlines, the Federal and state

Governments and their political subdivisions, the Fed-

eral Reserve Bank, wholly owned Government cor-

porations, and nonprofit hospitals, all of which are

excluded from the detinition of ‘employer’ contained

in Section 2(2) of the Act’? (infra, pp. 23a-24a).

Air and rail transportation, public employment, and

nonprofit hospital operation all have distinctive labor

problems handled by distinctive systems of law foreign

to the NLRA. The form that subcontracting control

shonld lawfully take in these disparate fields is de-

pendent on the demands, traditions, and operational

characteristics unique to each. It may be, as section

S(e) requires in the case of NLRA employers other

than those in the construction and clothing industries,

that subcontracting coutrel over firms to whom work

is let should be limited to a requirement that the work

shall be performed only by firms who operate under

labor standards commensurate with those that prevail

at the establishment that is contracting out the work. *'

Or it may be, as iu the case of the construction and

clothing industries excepted from seetion 8(e), that

firms to which work may be subcontracted should be

limited to those whe are under union contract with the

same local as represents the employees of the es-

tablishment contracting out the work, or another loeal

of the same international union, or with an AFL-CTO

affiliate. Or some other form of subcontracting con-

trol may be more appropriate. But whatever the

choice may be, it is a legislative decision that is re-

quired, and Congress has not vet made it for any aon-

21 Meat and Highway Drivers, Local Union No. 710 v. N.L.R.B.,

355 F.2d 709, 715-717 (C.A.D.C., 1964).

25

NLRA employers, as this Court has held (supra,

pp. 23-23).

CONCLUSION

A pure and i:nportant question of statutory inter-

pretation concerning the jurisdictional reach of the

REA afd the NLRA has been decided in a way that

brings the two statutes inte collision. Instead of

maintaining the RLA and the NLRA as “two inde-

pendent and mutually exclusive federal schemes”

(Brotherhood of Railroad Trainmen ve Jacksonville

Terminal Co., 394 US. 269, 377 (1969) ), with neither

treading on the ground of the other (Local Union No.

25, Toamsbers Vv. N.Y, NUD. & Hart. RLR. Co., 350 US.

US. 155, 159-160 (1956)), the NLRB applying its

statute has invalidated an agreement legal under the

terms of the RLA entered inte between an RLA em-

ployer and a union representing its RIA employees.

The petition should be granted.

Respectfully submitted,

Prato EK. Papps

Lovts P. Povirox

1300 Connectieut Avenne, NW.

. Washington, D.C. 20036

Bernarp Dunav

912 Dupont Circle Building, N.W.

Washington, D.C. 20036

ALFrep M. KLEIN

Rorert M. Smupson

727 West 7th Street

Los Angeles, California 90017

‘Attorneys for Petitioner

May 1974

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