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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 881

## Text

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 —
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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

Beseetsene ey gee ester egiemsgpemetreprer pias

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0257%3A1. Public record. Not legal advice.