# Petition for Writ of Certiorari — Allied Pilots Ass'n v. Civil Aeronautics Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0370%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 972 ## Text MICHAEL RODAK, JR., Supreme Court of the Hnite j | Fey: OcroBeR TERM, 1974 vo. TH-709 | Arr LINE DISPATCHERS’ ASSOCIATION, ET AL. Petitioners, Vv. Orv, AERONAUTICS Boarp, Respondent. and AMERICAN AIRLINES, INC., ET AL., ae Intervenors. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT WM G. Manoney 1015 18th Street, N.W. Washington, D.C. 20036 Counsel for Petitioners ; December, 1974 5 oy Brnon S. Anams Panrrine, Inc., Wasmmoron, D. C. >, LE Le TR EE IE OOD LIE ie? eb TABLE OF CONTENTS Page Cens DOW isis asda locas ahve sketescseusaeseess 2 SURMIOTUE ons oon3'esd bia eRicds adas eeaea hoe eees 3 QUESTIONS PRESENTED .........--cceeeeeesscescrees 3 Statutory Provisions INVOLVED .........-00eeee eee 3 STATEMENT OF THE CABE 2... ccc cescestccccncesescces + Reasons For GranTinc WRIT .......-.00-cscccceces 10 I. The Respondent Has Arrogated To Itself The Authority To Alter Collective Bargaining Re- lationships In The Air Transport Industry.... 10 I]. The Respondent Erred in Permitting Finan- cially Weak Carriers To Determine Whether to Become Obligated Under the Pact ........... 14 TIL. The Restoncent’s Interference In And Dis- ruption of tne Scheme of Labor Relations Be- comes More Pronounced Upon Consideration of Its Decision In The Air Conference Case... 16 CONE onc Conk vx snecaeeds teh eecenedeeeehenene 1° TABLE OF AUTHORITIES CASEs: Brotherhood of Railroad Trainmen vy. Atlantic Coast Line Railroad Co., 127 U.S. App. D.C. 298, 383 F.2d 225 (1967), cert. den. 389 U.S. 1047 (1968)... 17 H. K. Porter Co., Ine. v. NLRB, 397 U.S. 99 (1970)... 12 NLRB v. lnsurance Agents’ International Union, 361 U8, 477, 40T-496 (1000). 6 cos cecnccevensescacns 12 Six-Carrier Mutual Aid Paet, 29 C.A.B. 168, 173 (1959), recon. den. 30 C.A.B. 90 (1909) ....-..-- 4,13 Tinta Mgt beater Nae ik i NA AL ali a PU ere ee oo fasta a rare stent saciear socandtiniininsisiationiow i ii Index Continued STATUTES: Federal Aviation Act 49 U.S.C. Sees. 1301 et seq. 2.2... 49 U.S.C. See. 1302 49 US C. See. 1371(k) (4) 49 ULS.C. See. 1376 49 U.S.C. See, 1382 ee Railway Labor Act 45 U.S.C. Sees. 151 et seq. .......... ee “se ee ww ee Page OT eTe rr Tey. eveevess 11,15, 15 Sa cecseendee 11 eee es 10, 11, 12 .. +0, 4, 10, 11, 17 _—— - “ A NR Re ne ee Tah a FC EET A MSIE TONE IO AO 8M Supreme Court of the Tnited States OcroBeR TERM, 1974 No. Air LINE DISPATCHERS’ ASSOCIATION, ET AL. Petitioners, v. Civit AERONAUTICS BOARD, Respondent. and AMERICAN AIRLINES, INC., ET AL., Tntervenors. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Petitioners, Air Line Dispatchers’ Association, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Communication Workers of America, Flight Engi- neers’ International Association, International Asso- ciation of Machinists and Aerospace Workers, and Transport Workers Union of Ameriea, respectfully pray that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the District of Columbia Cireuit entered on August 8, 1974. ids 4 Bx yiislipieien SU SLA 6 ee Bic pie atv a A OA ea ae Ite SOY ‘ . — sewer LAE PIE LTA to WOM, a eee. “ OPINIONS BELOW The opinion of the Court of Appeals is reported at — U.S. App. D.C. —, 502 F.2d 453 (1974), and appears in the Appendix volume on page iv thereof as Appendix A." Order No. 70-7-114 of the Civil Aeronauties Board, issued July 23, 1970, approving, without an evidentiary hearing, the Mutual Aid Pact is not re- ported and is reprinted as Appendix I at page 142a of the Appendix veiume. Order No. 70-11-1410 of the Civil Aeronautics Board, issued November 23, 1970, vacating Order No, 70-7-114 and remanding the pro- ceeding for evidentiary hearing is not reported and is reprinted as Appendix J at page 221a of the Ap- pendix volume. Order No, 73-2-110 of the Civil Aero- nautics Board, issued February 27, 1973, approving the Mutual Aid Pact is not reported and is reprinted as Appendix K at page 225a of the Appendix volume. Also vvinted in che Appendix volume are the de- cisions and orders of the Civil Aeronautics Board which preceded the Order from which this appeal is taken and which approved the original Mutual Aid Pact and all but one of the ameudments thereto: Order E-13899 is reported at 29 C.A.B. 168 (1959) and is reprinted as Appendix B at page 5a; Order E-14563 is reported at 30 C.A.B, 90 (1959) and is reprinted as Appendix C€ at page 35a; Order E-15413 is reported at 31 C.A.B. 977 (1960) and is reprinted as Appendix D at page 41a; Order F-21044 is reported at 40 €.A.B. 559 (1964) and is reprinted as Appendix E at page 44a; Order E-24213, disapproving inclusion of local service carriers in the Mutual Aid Pact, is not reported and is reprinted as *The Appendix, separately printed, will be referred to sub- sequently in this Petition as *‘App. p. —’’. 3 Appendix F at page 130a; Order E-26000, issued No- vember 17, 1967, is not reported and is reprinted as Appendix G at page 134a; and, Order 70-1-100, issued January 20, 1970, is not reported and is reprinted as Appendix H at ‘sage 138a. JURISDICTION The judgment of the Court of Appeals was entered on August 8, 1974. This Court's jurisdiction is in- voked under 28 U.S.C. See. 1254(1). QUESTIONS PRESENTED 1. Whether the Civil Aeronautics Board may ap- prove agreements under Section 412(b) of the Federal Aviation Act as not adverse to the publie inter- est beeause such agreements alter the balance of col- lective bargaining power in the industry and when it has found that such agreements ‘‘may well’ tend to prolong interruptions to air commerce ? » Whether the Civil Aeronautics Board violates its Congressional mandate to foster sound economic eonditions in the air transport industry by permitting financially weak carriers to determine for themselves whether to join the Mutual Aid Pact and thereby be- come subject to the additional financial drains of sup- porting opposition to strikes on other carriers? STATUTORY PROVISIONS INVOLVED Those provisions of the Federal Aviation Act, 49 U.S.C. Sees. 1301 ct seq., and the Railway Labor Act, 45 U.S.C. Sees. 151, et seq., which are material to the disposition of this Petition are reprinted as Appendix L beginning at page 331a of the Appendix volume. - LAI A: EY BABB NCD TEL Sa 4 STATEMENT OF THE CASE The original Mutual Aid Pact was executed on Oc- tober 30, 1958, effective October 20, 1958, between American, Capital, Eastern, Pan American, TWA, and United airlines. The Pact provided mutual as- sistance in the event that the flight operations of any party thereto was shut down by reason of (1) a strike ealled to enforce union demands in excess of or opposed to the recommendations of a Presidential Emergency Board appointed under Section 10 of the Railway Labor Act; or (2) a strike ealled before exhaustion of the procedures of the Railway Labor Act in disputes between carriers and employees; or (3) a strike which is “otherwise unlawful”’.* The assistance provided was in the form ef an agreement by the air carriers to pay to the strike-bound carrier tie irereased revenues of the other carrier parties which were attributable to the strike, less applicable added direct expenses. These were called ** windfall paymeuts”’. The Pact was amended from time to time over the years until it culminated in its present form which was approved by tae Respondent Civil Aeronauties Board decisions now presented to this Court for review. The history of the Mutual Aid Pact is one of con- tinual extension and expansion from an agreement which was approved by the Respondent Board beeause it did not hinder achievement of the objectives of Sec- tion 102 of the Federal Aviation Act, 49 U.S.C. See. 1302, Sir-Carrier Mutual Aid Pact, 29 C.A.B. 168, 173 (1959) (App. p. 10a), recon. den. 30 C.A.B. 90 (1959) (App. p. 35a), to an agreement which has been ap- *The 1960 amendments to the Pact, approved by Respondent in 1964 (App. pp. 44a, ef seq.), extended payment coverage to all strikes not in contravention of recommendations of a Presi- dential Emergency Board. (App. p. 45a.) Pel ve rise f ; ie 4) proved precisely because it alters labor-management collective bargaining balance in favor of management and places additional “restraints [upon employees | consistent with collective bargaining’. ( Respondent’s Majority Opinion, App. pp. 233a-234a, 251a.) The latest amendments approved by the Respondent did not inerease the level of ‘windfall payments”’ but provided a maximum level of supplemental payments to a struck carrier of 50 of its normal operating ex- penses during the first two weeks of a strike, 45°. for the third week of the strike, 40°( for the fourth week, and 35¢; for any period thereafter. The amendments also increased the annual maximum liability of any one participating air earrier for supplemental pay- ments by doubling its liability from 14° to 1% of that ‘arrier’s air transport gross operating revenues for the carrier's previous calendar year. The October 1969 amendments to the Mutual Aid Pact also permitted any trunkline carrier to join the Pact by November 15, 1969, without a waiting period or back payment period. Tn addition, the amendments permitted withdrawal by any carrier party effective at the end of any caJendar year beginning December 31, 1972, on oue year’s notice; and, the Pact was modi- fied to provide that disputes concerning the amount of any payment would be subjiect to arbitration. Although the Petitioners opposed approval of the 1969 amendments on the ground that there had been no evidentiary hearing thereon, the Respondent approved the agreement as amended. (App. p. 142a.) The Petitioners filed a timely petition for reconsideration of that order and the Respondent then determined that since the agreement, as amended, had not been sub- jected to evidentiary hearing, it should be remanded for such hearing. (App. P- 221a.) * FESR WN FS eet spin S OU MARAR Ke St ite SRS gel iat Os ; 4 4 : 6 Before such a hearing could be undertaken, however, the earriers once again broadened their agreement by unending it te permit local service carrier participa- tion therein. As thus amended, the Mutual Aid Pact was approved by the Respondent on February 27, 1973 (App. p. 125a), following an oral hearing before Ad- ministrative Law Judge Arthur 8S. Present who recom- mended disapproval of the amendments. (App. p. 271a.) The Administrative Law Judge held that the in- creased level of Mutual Aid Pact payments created perils which might undermine the objectives of the Federal Aviation Act. (App. p. 295a.) He also found that carriers could “utilize the higher leve! of pay- ments”’ as a consideration in determining the most op- portune time to settle a strike (App. p. 296a), citing the record example of TWA which ‘‘was financially better off during the two-day strike it incurred in 1970 than if it had fully operated on those days”* and Mohawk which had operated at a profit during a strike period with Mutual Aid benefits but which operated at a net loss without a strike even though it had received $592,- 000 in governmental subsidy payments during the lat- ter period. (App. p. 297a.) The Administrative Law Judge concluded that the *thigher level of mutual aid payments may sway a carrier's decision as to when it should settle a strike, to the detriment of the public utilizing air transportation’. (App. p. 297a.) The Administrative Law Judge also disapproved the increase in a earrier member's liability from 12% to 1% of its prior year’s operating revenue ov his eon- clusion that such an increase could impair the finan-ial condition of certain carriers. (App. p. 299a-300a.) =. BROWS = $ 7 The Administrative Law Judge cited the reduction of United Air Lines’ working capital from an estimated $47,225,000 to $17,520,000 beeatise of its Mutual Aid Pact liability and the payment by Pan American of $9,404,000 in 1970 on the basis of a year in which its rate of return was negative (1969)—70°; of those pay- ments being **supplemental”’ payments. (App. p.- “00a.) The Administrative Law Judge found that of the 187,485,000 paid out under Mutual Aid Pae from 1958 through June 1971, 40°, or S84.368,250, was at- tributable to but four strikes since the incention of the 1969 amendments and that 27°C of the total Mutuai Aid Pact payments sinee 1958, or $49,688,000 were re- feeted in the “supplemental” payments made in con- nection with four strikes in the 20-month period be- tween October 1969 and June 1971. (App. Pp. 300a.) The Administrative Law Judge also eoneluded that local service carriers should be exeluded from the Mu- tual Aid Pact beeause their participation would be inconsistent with the publie interest and inconsistent with the statutory scheme as reflected in Section 406 of the Federal Aviation Act, 49 U.S.C. 1576. These eonelusions were based upon a mimber of findings. (See, e.g.. App. pp. 308a, 804a, 305a, 306a, 307a.) The Civil Aeronautics Board by a three-to-two vote reversed the Administrative Law Judge and appreved the amendments ti foto. In deciding to appreve the Pact, as amended, the Board determined the primary issue to be: “Whether the mutual aid puyments so shifted the bargaining balance in favor of earriers as to ereate a serious likelihood that a earrier might re- sist settlement of a strike on a reasonable basis in Be 2 if SAA ARBRE SIAR ta a! Poc Se cee i et I RF. 1 lege ete MMP A RACER - | 8 a circumstance where such a settlement was pos- sible.’ (App. pp. 233a-234a.) * The three-member majority of the Board found that the increased payments provided by the Mutual Aid Pact were for the purpose of increasing a ‘‘carrier’s willingness or ability to resist union demands which the carrier considers to be unreasonable’? (App. p. 235a) but that such purpose was not adverse to the public interest since other economic pressures existed which would prevent the carrier from being ‘‘signifi- ‘antly influenced’’ by reason of mutual aid payments ‘‘to resist what it considered to be a reasonable settle- ment, or to try to force unreasonable concessions on the part of labor.”’* (App. pp. 235a-236a.) The Majority held that the operating profit received by the members of the Pact during strikes because of augmented mutual aid payments provided by the amendments to the Pact ‘‘fali far short of real profits” because of ‘‘anticipated profits’? which they [the struck carriers] otherwise would have achieved, as well as post-strike losses.’’ (App. pp. 238a-239a.) The Ma- * This issue was specifically rejected by the Board in its original decision as irrelevant in the consideration of the approval of the Mutual Aid Pact. (App. pp. 10a-10b, i4a-14b.) * Regarding these findings of Respondent, Petitioners submit that the dissenting opinion accurately and effectively demonstrates its basic invalidity (App. p. 260a, n. 5): According to the majority, it is only ‘unreasonable’ union demands which will thus be resisted. But one man’s unrea- sonable demand is another’s reasonable request; as we have already pointed out, it is both futile and contrary to the Board’s proper role as a neutral in labor conflicts to attempt to analyze the effects of the mutual aid amendments in these terms.”’ 9 jority rejected the conclusion of the Administrative Law Judge that the interim profit payments under the >act amendments created a dangerous tendency to pro- long a strike upon its finding that in the National Air- lines strike the carrier had accepted a proffer of arbi- tration but such proffer had been rejected by the un- ion; the union rejected arbitration in the Northwest strike before the company had indicated whether it was willing to arbitrate ; and, in the Mohawk strike the union would not agree to arbitration only on part of the issues as the carrier desired but would only agree to arbitrating on all of the issues in dispute.’ (App. pp- 939a-240a.) The Majority held that the Pact pro- vided ‘substantial protection from financially erip- pling strike losses, at a cost which is reasonable’’ even though the amended Pact might result in imposing ‘‘a certain financial burden on earriers which may be fi- naneially weak.’? (App. Pp. 244a-245a.) The Majority concluded its opinion by expressing the tacit belief that absent the amendments to the Mu- tual Aid Pact, the employees of carriers could compel their employers to accept all requests made by the em- ployees. (App. Pp. 250a.) The dissenting members of the Board at the outset of their opinion found it necessary to comment upon the obviously partisan character of the Majority’s ovinion. (App. pp. 9550-2572.) The Majority had stnied the issue in the case in terms of shifting the bargaining balance in favor of carriers. See supra, 5In each of these contrary situations—Labor’s refusal to arbi- trate all issues ». the National Airlines strike and Management’s refusal to arbitrate all issues in the Mohawk strike—Respondent places the onus on Labor for prolonging the strike by refusing to arbitrate in the manner desired by Management. Rakes eee Ged ratte oe pa Se ala tus 10 pp. 7-8. The dissenting members strenuously disap- proved of the Majority’s injection of the Civil Aero- nauties Board into the bargaining structure of the in- dustry (App. pp. 255a-257a) and rejected the issue as phrased by the Majority (App. pp. 233a-234a) : “‘In our view, the issue is not whether the strengthening of airline management’s bargaining position which obviously results from the 1969 mu- tual aid amendments is a good thing per se—a judgment which in our view the Board need not and should not make—nor is it whether airline em- ployees retain effective bargaining power, which they patently do. The issue, rather, is whether under some significant sets of circumstances the 1969 amendments may give carrier management an incentive to act irresponsibly in prolonging a strike.”’ On March 5, 1973, the Petitioners filed a timely pe- tition for review of the Respondent’s decision with the United States Court of Appeals for the District of Columbia Circuit. A decision adverse to Petitioners was rendered by that Court on October 8, 1974, and this Court granted Petitioners an extension until De- cember 6, 1974, in which to file their Petition For a Writ of Certiorari. REASONS FOR GRANTING THE WRIT L The Respondent Has Arrogated to Itself the Authority To Alter Collective Bargaining Relationships in the Air Trans- port Industry. Section 412 of the Federal Aviation Act, 49 U.S.C. See. 1382, requires the Respondent to disapprove an agreement between air carriers if it is ‘‘adverse to the public interest, or in violation of this Act....’’ Vio- Nae ~| 11 lations of provisions of the Railway Labor Act are de- termined to be violations of the Federal Aviation Act, 49 U.S.C. See. 1371(k) (4). In approving the Mutual Aid Pact as amended in its most recent form, the Respondent found the Pact was not adverse to the public interest because the Pact strengthened the bargaining power of air carriers and placed additional ‘syestraints [upon employees] consistent with collective bargaining.”’” (App. PP- 933a-234a, 251a.) Section 412(p) does not authorize the Respondent to approve agreements which contra- vene the design for collective bargaining and labor re- lations designed for the air transport industry by the Congress in its enactment of the Railway Labor Act. To the contrary, in passing upon agreements sub- mitted to it pursuant to the provisions of Section 412 (b), the Respondent is restricted to interpreting the publie interest in terms of elements related to those listed in Section 102 of the Federal Aviation Act, 49 U.S.C. See. 1302; and, it seriously encroaches upon the powers conferred by Congress on other govern- mental agencies under the terms of the Railway Labor Act when it approves an agreement under Section 412 (b) which ‘‘may well” tend to prolong interruptions to air commerce. (App. Pp. 235a.) ° The Respondent, or at least a bare majority of its members, may be of the opinion that the Congressional design for collective bargaining has left the air car- 6 Sertion 2 of the Railway Labor Act, 45 U.S.C. See. 15ia, sets forth two of the general purposes of that Act to be: ‘*(1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; * * * (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; ...-” AEA LL PRAT IE SOR IE BAe Bus os 12 riers at the merey of the unions representing their employees (App. pp. 234a, 250a); however, it is not the prerogative of the Respondent to approve agree- ments under Section 412(b) of the Federal Aviation Act because they will correct real or imagined imbalances in collective bargaining power. Such ae- tions by Respondent run directly counter to principles enunciated by this Court in NZRB vy. Insurance Agents’ International Union, 361 U.S. 477, 490, 497- 498 (1960) ; see also, H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99 (1970). In the Insurance Agents’ case, this Court held that not even the National Labor Re- lations Board couid base its conclusions upon an at- tempted equalization of ‘‘disparities of bargaining power between employer and union’’. If such is the case with respect to the agency created by Congress as expert in the field of labor relations, then a fortiori, an agency which has no special expertise in that field cannot validly base a decision upon its determination of ‘‘whether the mutual aid payments so shift the bar- gaining balance in favor of carriers as to create a se- rious likelihood that a carrier might resist settlement of a strike on a reasonable basis in circumstances where such a settlement was possible.’? (Emphasis supplied.) (App. pp. 233a-234a.) In the instant case the Respondent arrogated to it- self authority to interpret the publie interest under Section 412(b) of the Federal Aviation Act solely in terms of the adjustment of the balance of collective bargaining power in the air transport industry. In doing so, it is respectfully submitted, the Respondent violated principles enunciated by this Court and set a dangerous precedent establishing Respondeiut’s eon- trol of and interference in collective bargaining affairs in the air transport industry. =— Pah DOTS 13 The Court below failed to address itself to this issue, determining instead to view the matter negatively as a refusal by the Respondent to interfere with the par- ties’ choice of economic weapous. (App. pp. Vviii-x.) Such a view ignores the affirmative holding of Re- spondent that the Pact was not inconsistent with the public interest for the very reason that it shifted the balance of power in collective bargaining to manage- ment. More significantly, the Court below impliedly endorsed the Respondent’s stated concept that an ad- ministrative agency, if unsatisfied with the law as writ- ten by Congress, ¢an take whatever steps it believes are necessary to change it. At page 25 of its majority opinion (App. Pp. 250a) the Respondent appeared to acknowledge the exclusive role of Congress in formu- lating our national policy with regard to work stop- pages in the air transport industry, but immediately stated its intent to take such steps as it believes neces- sary to correct a situation ‘whether by law or undue economie pressure’ carriers are compelled ‘‘to accept all requests of employees.””* ( Emphasis supplied.) The Respondent based its decision upon an issue about which it had no expertise—the determination of when a shift in the balance of bargaining power be- comes adverse to the public interest. The Re- spondent’s original Mutual Aid Pact decision in 1959 was decided upon the proper issue—whether the Pact hindered the achievement of the objectives of Section 102 of the Federal Avistion Act, 49 U.S.C. 1302. (Six Carrier Mutual Aid Pact, 29 C.A.B, 168 at 173 (1959), recon. den. 30 C.A.B. 90 (1959) ; App. pp. 10a, 7 There is no evidence of record nor was there a claim by air carriers that any carrier was ever compelled to ‘‘accept all re- quests of employees’’. a wrod ohh Bape ~ MI X Bux 620.0 CNRS BARR, pag tentateah shoe \ 14 35a.) Application of that general issue in terms ap- propriate to the instant proceeding was phrased properly by the dissenting members of Respondent (App. p. 26la): “The issue, rather is whether under some sig- nificant sets of circumstances the 1969 amend- ments may give carrier management an ineceutive to act irresponsibly in prolonging a strike.’’* The Respondent did not act within the framework of the limited authority granted it by Congress in the Federal Aviation Act. The Respondent, instead, acted within a framework of its own creation: self-authorized to pass upon interearrier agreements in terms of their effect upon the balance of collective bargaining power within the air transport industry. In so acting, the Respondent exceeded its authority and the Court below erred in failing to confront and deal with that issue. Il. The Respondent Erred in Permitting Financially Weak Car- riers To Determine Whether To Become Obligated Under the Pact. Under the Pact as approved by Respondent, a member carrier is liable to a payment of up to 1% of its prior year’s air transport operating revenue ta, support a struck carrier. Both the Administrative Law Judge and the dissenting members of Respondent coucluded that the basic defect in the provision was 5 Respondent recognized that the Mutual Aid Pact amendments **may well’’ tend to prolong strikes but only when the unions act ‘‘unreasonably’’. (App. p. 235a; but see footnote 4, supra, at page 8.) The Court below upheld the Respondent's decision citing the fact that fewer strikes had occurred sinee the amendments. The Court, however, did not address itself to the cause of the extended length of those strikes. (App. pp. lla and 12a.) I RAE LED Rite OME POLED: OE LALA BCE me CIE eh c OE ABO . idl ear r a re wae we ee ET LA EA LILLE CLD DN DOE EDS Hic 0 IN PLE j 15 that it took ‘‘no account of the current financial con- dition of a paying carrier.” (App. p. 264a.) Obviously, such payments could seriously weaken a earrier’s ability to serve the public if its current financial condit’ +i hed deteriorated from its eondi- tion during the :aior y ix. The dissenting members of Respondent noted, for example, that while the evidence disclosed that Pan American had paid out over ¥10 million in mutual aid payments in 18 months, that carrier’s financial condition had been cousiaered so precarious by the Respondent that it had receztly rejected the acquisition of Caribair Airlines by Eastern Airlines becsse of a possible diversion of lexs than $10 milion from Pan American if the ae- quisition tour place." (App. D- 2652.) The con- tinuing financial deterioration of Pan American is a matter of public knowledge yet that ‘arrier remains obligated under the Pact. The Respondeut, in considering this aspect of the Pini, permits a carrier to make its own choice as to whether to chance liability for such payments (App. p. 246a) despite its conclusion that **the higher pay- ments’? may well ‘impose a certain financial burden on carriers that may be financially weak’’. (App. p. 245a.) The Respondent thus has acted in derogation of the mandate contained in Section 102 of the Federal Aviation Act (49 U.S.C. See. 1302) to regulate “‘air transportation in such manner as to... foster sound economic conditions in such transportation... .” ® Pan American has paid out at least a net of $21,846,000 under the Pact. (App. p. 300a.) VMs Atte Basics ms Re ere Cat eas {lak ae aN ds 16 The Court below simply adopted, without analysis, the findings and conclusions of Respondent, including the Respondent’s reference to Pan American’s pay- ment of only .48° of its operating revenues for the period of January 1, 1970, to June 30, 1971, as support for those findings and conclusions."" (App. pp. Xvi-xvii; 243a-244a.) It is respectfully submitted that so substantial a departure from its responsibilities under the Federal Aviation Act warrants thorough review and reversal by this Court. III. The Res ,ondent’s Interference in and Disruption of the Scheme of Labor Relations Becomes More Pronounced upon Con- sideration of Its Decision in the Air Conference Case. At the time the Respondent approved the amended Mutual Aid Pact, there was pending before it agree- ments submitted by the Airlines Industrial Relations Conference (AIRCON), an association comprising most of the air cairiers in the United States.” AIRCON would establish an organization through which its carrier members could take consistent posi- tions in bargaining with each union on each of the carrier members thereby effectively imposing upon unions multi-employer bargaining in violation of the As noted, supra, at page 15, the 48% of Pan American's op- erating revenue amounted to over $16 million; an amount the Re- spondent had previously considered as a threat to the already precarious financial condition of that carrier. ™ The AIRCON agreements have now been conditionally ap- proved by the Responaent. (Board Order No. 73-6-96 of June 22, 1973.) The Board's order has been appealed to the United States Court of Appeals for the District of Columbia Cireuit. That Court has scheduled December 12, 1974, as the date for hearing oral arguments in that case. 17 provisions of the Railway Labor Act. Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., 127 U.S. App. D.C. 298, 383 F.2d 225 (1967), cert. den. 389 U.S. 1047 (1968). The result of the combined existence of AIRCON and the Mutual Aid Pact is the confrontation by the employees of the industry with industrywide consistent bargaining positions on the one hand and the carriers’ ability to operate at a profit during a strike on the other. (App. pp. 287a, 261a.) The combined operation of these agreements totally reforms labor relations in the air transport industry from those de- signed by Congress \in its enactment of the Railway Labor Act. \ The Respondent refused to consider the combined effects of these agreements. That refusal was both arbitrary and eapriciqus and justified the setting aside of its decision. The Court below, however, did not address itself to that issue. There would seem to be little doubt that the decision of the Court of Appeals in the AIRCON case will be the subject of a petition to this Court for a writ of | certiorari. In light of that fact; because of the close relationship of these eases as reformations of labor relations in the air transport industry; and, because their combined effect upon those relations are more pronouneed than their individual isolated effect, it is respectfully suggested that this Court may wish to defer action upon this petition until this case and the AIRCON ease can be considered together. MYLO LET OS IE LEG OOP EO, DE EOI NRG rR eee ont SS vo ee > | een Sabla Se eed A Viel bad o¢ 18 CONCLUSION The Respondent cannot be permitted to base its decisions upon considerations which have been reserved by Congress to other tribunals or, indeed, to itself. The Respondent cannot be permitted to determine in what manner aud to what extent the balance of bar- gaining power in the air transport industry may be shifted. Nor may Respondent be permitted to abdicate its responsibility to the public and to the in- dustry by permitting financially weak earriers to decide for themselves whether they should undertake the burden of financially supporting other carriers during strikes. The petition for writ of certiorari should be granted or, in the alternative, this Court may wish to defer action thereon pending presentation to it of a petition for such a writ in the AIRCON ease. Respectfully submitted, Wituiam G. MAHONEY 1015 18th Street, N.W. Washington, D.C. 20036 Counsel for Petitioners Of Counsel: Hicusaw & MAHOYEY 1015 18th Street, N.W. Washington, D.C. 20036 December 6, 1974 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0370%3A2. Public record. Not legal advice.