# Petition for Writ of Certiorari — Jasinski v. International Ass'n of Machinists & Aerospace Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1796%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 424 U.S. 909 ## Text IN THE Supreme Court of the United States MATHEW S. JASINSKI, EDWARD BOROWIK, MAX R. SHELTON, JOHN R. THOMAS, GEORGE WIMBERLY, JOHN GOODLEFSKY, STEPHEN J. KRATZ, PHILLIP BEAULIEU, M. E. URRA, J. STEWART HARRISON, JOHN W. ROACH, JR., and CHARLES K. JOHNSON, Petitioners, VS. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS: Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TOM CARTER, Counsel for Petitioners 1726 Fulton National Bank Bldg. Atlanta, Georgia 30303 404—688-7026 TABLE OF CONTENTS Page TABLE OF AUTHORITIES Pat | I. OPINIONS BELOW witebibetieibelas ig ile ls a te 2 II. JURISDICTION __.. wok 2 III. QUESTIONS PRESENTED FOR REVIEW -___. 2 IV. STATUTES INVOLVED 3 (a) Section 2, Fourth of the Railway Labor Act, 45 USC Section 152, Fourth ae ae (b) Section 2, Ninth, of the Railway Labor Act, 45 USC Section 152, Ninth 4 V. STATEMENT OF THE CASE _ 4 A. Summary of the Facts 4 B. Proceedings Below 7 VI. REASONS WHY CERTIORARI SHOULD BE GRANTED ____ 7 A. What Petitioners Seek is Simply to Enjoy Right of Craft Organization and Craft Repre- sentation in Collective Bargaining as Sanc- tioned by the Act and the Board’s Prior Cer- tification __ 8 B. What Petitioners Do Not Seek is any In- fringement of the Board’s Jurisdictional Functions ___. _ 10 TABLE OF CONTENTS (Continued) Page C. The Board Itself has Expressly Denied Any Jurisdiction to Adjudicate Petitioners’ Sub- ject Claim (Appendix C) —-....------ 12 D. Court Jurisdiction of Petitioners’ Claim is Strongly Suggested by Prior Decisions of this Court Holding, that the Exclusive Jurisdic- tion of the Railroad Adjustment Board under the Act, did not Bar Court Jurisdiction to Define Unfair Representation Cases Against Unions and Employers Jointly - _ 15 VII. CONCLUSION -....- 18 CERTIFICATE _.. 19 APPENDICES— APPENDIX A—Opinion of the District Court for the Northern District of Georgia, Atlanta Di- vision (No. C74-1780A), rendered on February 4, 1975 20 APPENDIX B—Final Judgment of the United States Court of Appeals for the Fifth Circuit, rendered July 29, 1975, reported at 517 F.2d 478. 31 APPENDIX C—National Mediation Board’s De- termination dated July 15, 1974, File No. C4294... 32 II TABLE OF AUTHORITIES CASES: Page Brotherhood of Railroad Trainmen vs. Howard, 348 US, M8: DLR we TTT... Conley vs. Gibson, 355 U.S. 41, 44, 41 LRRM 2089 | PG RA irene einen: | Cunningham vs. Erle R.R. Co., 266 F.2d 411, 415-16 A a aS bdabhcisanks simulans Oe Czosek vs. O’Mara, 397 U.S. 25, 73 LRRM 2481 PINs ui Salas tastttete htetcas-casdceidindataenaemmanetinienthabeaies 15, 17, 18 Gainey vs. Brotherhood of Railway & Steamship Clerks, 313 F. 2d 318, 324, 52 LRRM 2196 (3d BN ID hoch nccceepersscchssccnioreittnedolestielaarbbataisticelieniiantttiion 10 Glover vs. St. Louis-San Francisco Railway Company, 393 U.S. 323, 70 LRRM 2097 (1969) __ 15, 16, 18 Graham vs. Brotherhood of Locomotive Firemen & Enginemen, 388 U.S. 232, 25 LRRM 2033 _...... 10 Hayes vs. Union Pacific Railroad Company, 184 F. 2d 337, 26 LRRM 2566 (CA 9, 1950), cert. denied, 340 U.S. 492, 27 LRRM 2456 (1951) — 16, 17 Simberlund vs. Long Island Railroad Company, 421 F, 2d 1219, 73 LRRM 2451 (CA 2, 1970) —.. .. 10 Steele vs. Louisville & Nashville R. Co., 323 U.S. 192, Se IE III hci cea cack elseshencnsincnrchaneticidiaseiaoincnnccamescbiek 10 TABLE OF AUTHORITIES (Continued) CASES: Page Thompson vs. Brotherhood of Sleeping Car Porters, 316 F. 2d 191, 198-99, 52 LRRM 2880 (4th Cir. 1963) 10 Tunstall vs. Brotherhood of Locomotive Firemen & Enginemen, 823 U.S. 210, 15 LRRM 715 10 Vaca vs. Sipes, 386 U.S. 171, 190-93, 64 LRRM 2369 (1967) 10 STATUTES: 28 U.S.C. Seetion 1254 (1) 2 ae Sees ee Oe Oe a 7 Section 2, Ninth of the Railway Labor Act, as amended 45 U.S.C. Section 152 (Ninth) 3, 4, 7, 11 Section 2, Fourth of the Railway Labor Act, 45 USC. Section 152, Fourth 3,8 45 U.S.C. Section 1831 7 Section 3 First (i) of the Railway Labor Act, 45 USC Section 153, First (i) 15, 16 OTHER AUTHORITIES: National Mediation Board's Determination dated July 15, 1974, File No. C4294 28 IV ge eer ee tans suc He ts es erg et ON IN THE SUPREME COURT OF THE UNITED STATES Term, 19 No. MATHEW 8S. JASINSKI, EDWARD BOROWIK, MAX R. SHELTON, JOHN R. THOMAS, GEORGE WIMBERLY, JOHN GOODLEFSKY, STEPHEN J. KRATZ, PHILLIP BEAULIEU, M. E. URRA, J. STEWART HARRISON, JOHN W. ROACH, JR., and CHARLES K. JOHNSON, Petitioners, VS. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS: Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioners here were plaintiffs in the lower district court, and were appellant in the Fifth Cireuit Court of Appeals below. Petitioners pray that a Writ of Certiorari issue to review the final judgment of the United States Court of Appeals for the Fifth Circuit entered in the above case on July 29, 1975. eS 5 RT SODAS MR tice 5 FT? a id Fis WII D a ebAi RO STON SAG ms 2 I. OPINIONS BELOW The opinion in this case of the District Court for the Northern District of Georgia, Atlanta Division, (No.C74- 1780A) was rendered on February 4, 1975, and a true and correct copy of that court’s judgment and opinion is ap- pended hereto as Appendix A. The final judgment and opinion of the United States Court of Appeals for the Fifth Circuit, sustaining the lower district court, was made and entered on July 29, 1975, and the same is reported at 517 F 2d 478; And, a true and correct copy thereof is appended hereto as Ap- pendix B. Said judgment of the Fifth Circuit Court of Appeals issued as the court’s mandate on August 20, 1975. Il. JURISDICTION This petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit, seeks to review that court’s said final judgment of July 29, 1975 (appended as Appendix B) which affirms the lower district court’s judgment of dismissal (Appendix A) of petitioners’ Com- plaint in the court. The jurisdiction of this court is in- voked under 28 U.S.C. Section 1254 (1). Ill. QUESTIONS PRESENTED FOR REVIEW Did the lower courts correctly hold that the district court lacked subject matter jurisdiction based upon the con- clusion that exclusive jurisdiction of the subject matter was in the National Mediation Board (herein the Board) under the Railway Labor Act (herein, Act). notwithstand- ing the Board’s prior express determination (see Appendix C) that it lacked jurisdiction to adjudicate petitioners’ fol- lowing claim: 3 That IAM, the respondent labor organization (which had previously been certified by the Board pursuant to provisions of the Act to represent petitioners’ certified employmental collective bar- gaining craft) violated its lawful duty of fair representation owed petitioners; through IAM’s manner and method of representing petitioners said certified bargaining craft—not as a separate certified bargaining craft, but merely as a small part of a single and substantially larger un- certified and heterogeneous collective bargaining class of sundry employees of petitioners’ employer, in a single process for all collective bargaining purposes. More specifically, did the lower court correctly hold that petitioners’ said claim constitutes a “. . . dispute... among a carrier’s employees as to who are the repre- sentatives of such employees designated and authorized in accordance with the requirements of . .. (the Act)” within the meaning of Section 2, Ninth of the Railway Labor Act as amended, 45 USC Section 152 (Ninth); so as to be within the exclusive jurisdiction of the Board to certify an appropriate collective bargaining craft or class of employees and the representative to represent them. IV. STATUTES INVOLVED IN THIS CASE (a) Section 2, Fourth of the Railway Labor Act, 45 USC Section 152, Fourth, provides in pertinent parts as follows: “Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft 4 or class of employees shall have the right to de- termine who shall be the representative of the craft or class for the purpose of this Chapter. . .” (b) Section 2, Ninth, of the Railway Labor Act, 45 USC Section 152, Ninth, provides in pertinent parts the following: “If any dispute shall arise among a carrier’s employees as to who are representatives of such employees designated and authorized in accord- ance with requirements of this chapter, it shall be the duty of the Mediation Board, upon re- quest of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the em- ployees involved in the dispute, and certify the same to the carrier . . . in the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election... .” V. STATEMENT OF THE CASE A. Summary of the Facts Petitioners are employees of Eastern Airlines (herein, Eastern), an air carrier subject to the provisions of the ACT. Petitioners are employed in a collective bargaining unit or craft of Eastern employees; which craft, in prior years, has been certified by the Board, pursuant to the provisions of the Act, to include principally Eastern’s highly skilled and lawfully licensed airline mechanics, such 5 as petitioners, and also including certain smaller fringe groups of shop laborers, janitors, and ground service and cleaning employees (herein called PETITIONERS’ CRAFT OR UNIT). However, the last formal certification of petitioners’ bargaining craft by the Board itself expressly EXCLUD- ED therefrom Eastern’s numerous cargo and baggage handling employees, and sundry other employees. The Board itself has never issued a formal certification, accompanied by a customary election among effected em- ployees, for the inclusion of these aforesaid cargo and baggage handling employees and sundry other employees of Eastern into petitioners’ certified bargaining craft. As is often the case in the airline industry, the airline mechanics of Eastern were among the first ground em- ployees to be organized and represented by IAM a num- ber of years ago. And, historically the collective bargaining contracts between IAM and Eastern covering petitioners’ bargaining craft, contain the usual unionshop provisions conditioning employment upon timely acquisition of union membership in IAM. Thus, any expansion of petitioners’ bargaining craft and contract coverage, which could be achieved by IAM in bargaining with Eastern, would re- sult in a corresponding increase in the union’s dues paying membership among Eastern’s employees, via the contract union shop provision. During the years of IAM’s representation of petitioners’ bargaining craft, a growing number of Eastern’s aforesaid cargo and baggage handlers and various other groups of Kastern’s employees (having substantially lesser degrees of skill and training requirements for their jobs) have 6 been grouped together with petitioners’ said bargaining craft by IAM into a single process of collective bargaining representation. With the result, that petitioners’ original certified bar- gaining craft has, become gradually absorbed into one big communalized and heterogeneous bargaining class of East- ern’s employees; which is represented by IAM, in sub- stance and manner, as one whoie class or unit of em- ployees for all purposes of collective bargaining; That has been placed by IAM under a single collective bargain- ing contract. All employees in this said heterogeneous and communal- ized single bargaining class are permitted by IAM in an ongoing single collective bargaining process to vote on pertinent matters, affecting petitioners’ employmental in- terests and careers, such as: collective bargaining contract ratification, the calling of strikes, the designation of bar- gaining negotiators to conduct bargaining negotiations, and the like. IAM’s said grouping of petitioners’ original certified bargaining craft into this said heterogeneous bargaining class during recent years (without prior Board certifica- tion therefor), has resulted in petitioners’ certified bar- gaining craft having only a numerically minority voice in all important employmental matters vitally affecting their employmental interests and careers. As was noted by the lower district court in its Opinion (see Appendix A, Page 28), petitioners’ earlier presenta- tion to the NMB of their subject claim had resulted in the NMB’s determination that it lacked jurisdiction to decide this controversy (Appendix C). 7 B. Proceedings Below The subject complaint was filed by petitioners in Sep- tember of 1974. On October 23, 1974, IAM filed its motion to dismiss alleging as ground one therein that: “. . . the Court does not have jurisdiction over the subject matter of the complaint.” On February 4, 1975, the lower district court issued his ruling sustaining IAM’s said jurisdictional ground for dismissal (Appendix A). The lower court ex- pressly based its ruling upon its legal conclusion that the Board had exclusive jurisdiction over petitioners’ claim, under Section 2, Ninth, of the Act, 45 USC Section 152 (Ninth). In due course, petitioners perfected their appeal from the lower court’s judgment of dismissal to the Fifth Cir- cuit; which rendered its per curiam judgment of “af- firmed” on July 29, 1975 (Appendix B). It is from this judgment of affirmance by the Fifth Circuit that peti- tioners seek this court’s issuance of a writ of certiorari. JURISDICTION IN THE LOWER DISTRICT COURT was based upon the allegation in the complaint that the subject matter of the controversy arises under the Act, 45 US Code, Section 151 et seq.; along with the allegation that the matter in controversy exceeds the sum or value of $10,000.00, exclusive of interests and costs. Thus, orig- inal jurisdiction in the district court was based upon Sec- tion 1331 of Title 28 of the United States Code, as amended. VI. REASONS WHY CERTIORARI SHOULD BE GRANTED The Fifth Circuit has decided an important question of federal law in a way that would potentially and wrong- fully deny tens of thousands of airline industry employees Rowe ays 8 access to the Federal Courts to correct violations of a lawful duty of fair representation owed them under the Federal Act by their respective collective bargaining rep- resentatives; and in a way which conflicts with an ap- plicable analogous principle of law previously laid down by decisions of this court. The lower court's ruling, that it lacked subject matter jurisdiction because petitioners’ claim was found by the court to be within the exclusive jurisdiction of the Board under the Act, must be considered in the light of peti- tioners’ basie claim set forth in their complaint, and stated below. A. What Petitioners Seek Is Simply to Enjoy Right of Craft Organization and Craft Representation in Col- lective Bargaining as Sanctioned by the Act and the Board’s Prior Certification Petitioners claim that they, as well as the other em- ployees in their Board certified bargaining craft are being denied by IAM their statutory rights that are conceptually stated in Section 2, Fourth, of the Act, 45 USC Section 152, Fourth, providing in pertinent parts as follows: “Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to de- termine who shall be the representative of the craft or class... .” This denial of petitioners’ said statutory craft organiza- tional and craft representational rights stems from IAM’s manner and method of collectively representing petitioners’ Board certified bargaining craft, as but a minority part 9 of an overall heterogeneous single bargaining class of sundry Eastern employees (WITHOUT PRIOR BOARD CERTIFICATION OF SUCH A SINGLE HETERO- GENEOUS CLASS) (see the Summary of Facts in the Statement of the Case, supra). IAM’s complained of manner of representing petition- ers’ certified bargaining craft, in effect ab.ogates the statutory concept of CRAFT organization and CRAFT collective bargaining. It also emasculates the Board’s prior certification of petitioners’ homogeneous bargaining craft consisting primarily of highly skilled and highly craft motivated employees such as petitioners, who are lawfully licensed career airline mechanics. The plight of petitioners’ certified bargaining craft may be compared to that of a mighty ship that is desirous and capable of charting its own course to its own more distant port of call; but instead is commandeered into a single large convoy of other smaller vessels, which is sailing perhaps to another port. Petitioners find frustrating and humiliating irony in the circumstance that their own collective bargaining rep- resentative, LAM, would deny them their craft aspirations and status; notwithstanding that petitioners’ bargaining craft is sanctioned by the Act, as well as by the Board's prior certification. While at the same time, the craft aspirations and the craft organizational and bargaining rights, of the laborers, the ironworkers, the electricians, the plumbers, the heavy equipment operators, ete., who build and maintain the hangers and airports in which petitioners perform their very highly skilled tasks, are preserved intact. i 10 Petitioners claim essentially that IAM’s complained of manner and method of representing them in collective bargaining in the context presented constitutes a violation of IAM’s lawful duty for fair representation owed to petitioners, as their statutory collective bargaining repre- sentative under the Act. Steele vs. Louisville & Nashville R. Co., 323 U.S. 192, 15 LRRM 708; Tunstall vs. Brother- hood of Locomotive Firemen & Enginemen, 323 U.S. 210, 15 LRRM 715; Graham vs. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 25 LRRM 2033; Brotherhood of Railroad Trainmen vs. Howard, 343 U. S. 768, 30 LRRM 2258; Vaca ws. Sipes, 386 U.S. 171, 190-93, 64 LRRM 2369 (1967); Thompson vs. Brotherhood of Sleeping Car Porters, 316 F, 2d 191, 198-99, 52 LRRM 2880 (4th Cir. 1963); Gainey vs. Brotherhood of Railway & Steamship Clerks, 313 F 2d 318, 324, 52 LRRM 2196 (3d Cir. 1963) ; Cunningham vs. Erle R.R. Co., 266 F. 2d 411, 415-16, 44 LRRM 2093 (2d Cir. 1959) ; Simberlund vs. Long Island Rail Road Company, 421 F. 2d, 1219, 73 LRRM 2451 (CA 2, 1970). B. What Petitioners Do Not Seek is any Infringement of the Board’s Jurisdictional Functions In no way do petitioners seek to intrude into the exclu- sive jurisdictional domain of the Board to determine and certify bargaining crafts or classes along with the unions to represent them. For here the Board has already spoken by certifying petitioners’ said bargaining craft, and IAM to represent petitioners’ certified craft. Neither do petitioners dispute the status of IAM as the certified statutory collective bargaining representative for petitioners’ craft. Neither do petitioners question the legality of IAM’s 11 lawful right to separately represent any of Eastern’s cargo and baggage handlers or other sundry groups of Eastern’s employees; who were not included by the Board in its certification of petitioners’ bargaining craft; but who have been grouped by IAM along with petitioners’ certified craft into a single overall heterogeneous bargaining class for all purposes of collective bargaining representation, as complained of by petitioners. Indeed, it is petitioners who seek to give vitality and meaning to the Board’s certification; by requiring IAM to honor the Board’s prior certification of petitioners’ bargaining representation of petitioners’ bargaining craft, by simply recognizing and conducting it’s collective bar- gaining representation by petitioners’ bargaining craft in a manner and method consistent with, and called for by, the Board’s certification; At least, UNTIL SUCH TIME AS THE BOARD ITSELF MIGHT THROUGH LAWFUL PROCESSES DECIDE TO MODIFY ITS CERTIFICATION OF PETITIONERS’ BARGAINING CRAFT. For the courts to fail to adjudicate petitioners subject claim is to hold that the statutory collective bargaining representative—and not the Board, has power to determine which employees may appropriately be included in a statu- tory collective bargaining craft or class for purposes of collective bargaining representation. But, such a conclu- sion is in direct contradiction to the plain provisions of the Act that the Board—and not the union, is to determine and certify the bargaining craft or class, found in Section 2, Ninth, of the Act, 45 USC Section 152 (Ninth)., In affirming without comment the lower district’s court judgment and opinion, the Fifth Circuit presumeably acted on the same apparent basic misapprehension of the factual and legal issue presented in this case, as did the district 12 court. For, the district court in its opinion (see Appendix A, page 27), indicated that plaintiff's claim is based: “. . . Solely on the ground that the NMB has ‘communalized’ into one bargaining unit the em- ployees who rightfully should be part of another bargaining unit. This is the principal legal ques- tion the court is called upon to decide, and, as noted above, it is precisely this question of ‘who represents whom’ which is vested in the unreview- able discretion of the National Mediation Board.” But, as is pointed out herein, and as petitioners sought to point out to the lower courts, petitioners’ claim makes no attack upon any action by the Board. Rather, petition- ers’ claim attacks only the manner and method utilized by IAM in representing, or misrepresenting, petitioners’ Board certified bargaining crafé. Petitioners’ claim seeks to acknowledge, honor, and ad- here to the Board’s prior certification of their bargaining craft; whereas, IAM has, through its complained of manner and method of collective bargaining representa- tion of petitioners’ bargaining craft, disregarded and undermined the Board’s prior certification of petitioners’ craft, usurping unto itself the Board’s statutory jurisdic- tion and discretion in determining which employees should be included in a bargaining craft. And, in so doing, IAM has at the same time denied petitioners their statutory right of craft organization and craft collective bargaining representation under the Act. C. The Board Itself Has Expressly Denied Any Jurisdic- tion to Adjudicate Petitioners’ Subject Claim (Ap- pendix C) 13 The lower district court in its opinion quoted the fol- lowing language from the determination by the Board that it (the Board) did not have jurisdiction over peti- tioners’ subject claim: “In reviewing your application for the Board’s services, it does not appear that there is an alle- gation of the existence of a representation dis- pute as described in Section 2, Ninth, of the Rail- way Labor Act. Additionally, there is no allega- tion that the certified representative and the carrier are at a bargaining impasse concerning the matters contained in your application, and thus an invocation for the Board’s mediatory services is not appropriate. _ “ ‘The National Mediation Board does not have jurisdiction to determine the manner in which a carrier and a union, certified for one or more crafts or classes, bargain, and thus the questions which you raise are not properly resolved by the National Mediation Board, but may be more effectively resolved by direct conferences between the affected parties. “Since there is no jurisdictional basis for the processing of your application in its present con- text, that is, failure to allege and demonstrate the existence of a representation dispute, the ap- plication is dismissed.’” (See District Court’s opinion, Appendix A, Page 28). The Board, unlike the lower district court and the Fifth Circuit, recognized and acknowledged its own inadequacy as a forum to adjudicate petitioners’ basic claim of unfair Cae yO te ee ee a) ee ee Se ¥ : s 4 4 % * 4 4 : i 4 : : 14 representation by IAM. To illustrate, let it be postulated that the Board had concluded that it did have jurisdiction of this claim (as held by the lower courts); and further, that it did agree with petitioners’ basic complaint that IAM has unfairly represented petitioners; and further that IAM shall likely continue its said unfair representation of petitioners’ certified bargaining craft. WHAT COULD THE BOARD DO ABOUT IT? FIRST of all, we know of no method by which the Board could award any com- pensatory or other damages for IAM’s past unfair repre- sentation. SECOND, neither could the Board enjoin IAM from continuing such unfair representation of petitioners. AND THIRD, all the Board could do pursuant to its ex- clusive statutory jurisdiction, is to determine that petition- ers’ bargaining craft is appropriate and then certify peti- tioners’ bargaining craft along with IAM as its statutory collective bargaining representative; But this would amount to only a redundant echo of what the Board has already done. On the other hand, what would be the case if the lower court had asserted jurisdiction to adjudicate petitioners’ said claim of unfair representation by IAM. FIRST, the court would not be called upon to determine either the ap- propriateness of petitioners’ bargaining craft as an appro- priate unit, or IAM’s status as the craft representative, since the Board has already done this. SECOND, if the court determined that petitioners’ claim was meritorious, then the court could award appropriate damages to cover any of petitioners’ properly proven losses. AND THIRD, the court could insure that IAM would desist from its subject course of unfair representation of petitioners’ bargaining craft, through exercise of the court’s injunctive powers. Each of these said possible remedies by the court would have the effect of upholding and requiring adherence 15 to—and not departure from, what the Board had previous- ly provided through its said certification of petitioners’ bargaining craft and IAM as: its representative. D. Court Jurisdiction of Petitioners’ Claim is Strongly Suggested By Prior Decisions of this Court Holding, that the Exclusive Jurisdiction of the Railroad Ad- justment Board under the Act, did not Bar Court Jurisdiction to Decide Unfair Representation Cases Against Unions and Employers Jointly The lower courts’ denial of jurisdiction, to adjudicate petitioners’ claim of unfair representation by IAM, runs counter to the analogous rationale of the Supreme Court announced in the following cases: Conley vs. Gibson, 355 U.S. 41, 44, LRRM 2089 (1957) ; Glover vs. St. Louis-San Francisco Railway Company, 393 U.S. 323, 70 LRRM 2097 (1969); Czosek vs. O’Mara, 397 U. S. 25, 73 LRRM 2481 (1970). In the Conley case, supra, this court reversed the lower court’s conclusion that exclusive jurisdiction lay in the Adjustment Board under Section 3 First (i) of the Rail- way Labor Act, 45 USC Section 153, First (i). The complaint there, as here, charged that the defendant statu- tory collective bargaining representative had unfairly rep- resented plaintiffs. In this regard the court stated: “We hold that it was error for the courts below to dismiss the complaint for lack of jurisdiction. They took the position that Section 3 First (i) of the Railway Labor Act conferred exclusive juris- diction on the Adjustment Board because the case, in their view, involved the interpretation and application of the collective bargaining agree- ment. But Section 3 First (i) by its own terms Naess Pate sats Ot ah wea ORE ESS SED TM SEL B58 is i x 5 we % a é 3 * P 4 5 3 e a 16 applies only to ‘disputes between an employee or group of employees and a carrier or carriers,’ This case involves no dispute between an em- ployee and employer but to the contrary is a suit by employees against the bargaining agent to en- force their statutory right not to be unfairly discriminated against by it in bargaining. The Adjustment Board has no power under Section 8 First (i) or any other provision of the Act to protect them from such discrimination. .... a Moreover, notwithstanding the general rule that the Act places exclusive jurisdiction in the Railroad Adjustment Board, under Section 3 First (i) of the Act, to interpret the terms of a collective bargaining agreement; and not- withstanding that this Said Section 3 First (i) of the Act by its terms applies to “. . . disputes between an employee or group of employees and a carrier or car- riers. . .”; nevertheless, employees may also JOIN THE CARRIER in a suit involving the terms of a collective bargaining contract, brought against their statutory col- lective bargaining representative for breach of its duty of fair representation. See the Glover case, supra, wherein the court said: “, . . In the present case . . . the plaintiffs sought relief not only against their union but also against the railroad, . . . it might at one time have been thought that the jurisdiction of the Railroad Adjustment Board remains exclusive in a fair representation case, to the extent that relief is sought against the railroad for alleged dis- criminatory performance of an agreement validly entered into and lawful in its terms. (See, e.g. Hayes vs. Union Pacific Railroad Company, 184 17 F 2d 337, 26 LRRM 2566 (CA 9, 1950), cert. denied, 340 U.S. 492, 27 LRRM 2456 (1951). This view however, was squarely rejected in the Conley case, where we said ‘for the reasons set forth in the text, we believe (Hayes, supra) was decided incorrectly.’ 855 U.S., at 44, N.4..... Moreover, although the employer is made a party to insure complete and meaningful relief, it still remains true that in essence the ‘dispute’ is one between some employees on the one hand and the union and management together on the other, not one ‘between an employee or a group of em- ployees and a carrier or carriers.’ FINALLY, THE RAILROAD ADJUSTMENT BOARD HAS NO POWER TO ORDER THE KIND OF RELIEF NECESSARY EVEN WITH RE- SPECT TO THE RAILROAD ALONE, IN ORDER TO END ENTIRELY ABUSES OF THE SORT ALLEGED HERE (emphasis added). The Federal Courts may therefore prop- erly exercise jurisdiction over both the union and the railroad. (Citations omitted) .” In Czosek, this court said in an unfair representation case that: “. . . Surely it is beyond cavil that a suit against the union for breach of its duty for fair representation is not within the jurisdiction of the National Railroad Adjustment Board nor sub- ject to the ordinary rule that administrative remedy should be exhausted before resort to the courts. (Citations omitted). The claim against the union defendants for the breach of their duty of fair representation is a discreet claim quite apart je 2 : 18 from the right of individual employees expressly extended to them under the Railway Labor Act to pursue their employer before the Adjustment Board.” This court's rejection of the exclusive jurisdictional argument advanced in the Czosek, Glover, and Conley cases, is analogous and applicable to the lower court's dis- missal in this case based upon their conclusion that ex- clusive jurisdiction over petitioners’ subject unfair repre- sentation claim against IAM was within the exclusive jurisdiction of the National Mediation Board. VII. CONCLUSION On the basis of the arguments advanced herein, and the authorities cited in support thereof, petitioners, respect- fully submit that the petition for writ of certiorari should be granted. Upon issuance of the writ, the decision of the Fifth Cireuit Court of Appeals should be reversed and re- manded with instructions to reverse the lower district court's dismissal of petitioners’ complaint, and to send the proceeding back to the lower district court for further proceedings. TOM CARTER, Counsel for Petitioners 1726 Fulton National Bank Building Atlanta, Georgia 30303 (404) 688-7026 19 CERTIFICATE 1, TOM CARTER, Counsel for Petitioners in this Court, do hereby certify that I have this day mailed, postage prepaid, a true and correct copy of the foregoing Writ of Certiorari to the United States Court of Appeals for the Fifth Cireuit to the following persons: Mr. J. R. Goldthwaite, Jr. Adair, Goldthwaite, Stanford & Daniel 600 Rhodes Haverty Building Atlanta, Georgia 30303 Attorney of record for Respondent in this Court, who was the Appellee in the Fifth Cireuit Court of Appeals, and defendant in the Lower District Court. This day of October, 1975. TOM CARTER, Counsel for Petitioners EE ak, SRF I os. OD NENA A OPN NN ret TRC EN 20 APPENDIX “A” UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA Civil Action File No. C?4-1780A MATHEW S. JASINSKI, EDWARD BOROWIK, MAX R. SHELTON, JOHN R. THOMAS, GEORGE WIM- BERLY, JOHN GOODLEFSKY, STEPHEN J. KRATZ, PHILLIP BEAULIEU, M. E. URRA, J. STEWART HARRISON, JOHN W. ROACH, JR. and CHARLES K. JOHNSON VS INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS JUDGMENT This action came on for consideration before the Court, Honorable Richard C. Freeman, United States District Judge, presiding, and the issues having been duly con- sidered and a decision having been duly rendered, GRANT- ING deft’s Motion to Dismiss for lack of subject matter jurisdiction. 21 It is Ordered and Adjudged that the plaintiffs take nothing, that the action be dismissed, and that the de- fendant, INTERNATIONAL ASSOCIATION OF MA- CHINISTS AND AEROSPACE WORKERS recover of the plaintiffs, MATHEW S. JASINSKI, EDWARD BOROWIK, MAX R. SHELTON, JOHN R. THOMAS, GEORGE WIMBERLY, JOHN GOODLEFSKY, STE- PHEN J. KRATZ, PHILLIP BEAULIEU, M. E. URRA, J. STEWART HARRISON, JOHN W. ROACH, JR. and CHARLES K. JOHNSON, their costs of action. Dated at Atlanta, Georgia, this 4th day of February, 1975. BEN H. CARTER Clerk of Court By: Mary E. Hall Filed and entered in Clerk’s Office February 4th, 1975 BEN H. CARTER, Clerk By: Mary E. Hall Deputy Clerk 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Filed in clerk’s office Feb. 4, 1975. BEN H. CARTER, Clerk By: Hary E. Hall, Deputy Clerk C74-1780A MATHEW S. JASINSKI, EDWARD BOROWIK, MAX R. SHELTON, JOHN R. THOMAS, GEORGE WIM- BERLY, JOHN GOODLEFSKY, STEPHEN J. KRATZ, PHILLIP BEAULIEU, M. E. URRA, J. STEWARD HARRISON, JOHN W. ROACH, JR., and CHARLES K. JONHSON Vv. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS ORDER Plaintiff airline mechanics bring this action against the defendant labor union under 28 U.S.C. $1331 for violations of the Federal Railway Labor Act, 45 U.S.C. $151, et seg. The plaintiffs allege that defendant In- ternational Association of Machinists and Aerospace Workers [IAM], in conjunction with plaintiffs’ employer, Eastern Airlines, Inc. [Eastern], has wrongfully ignored plaintiffs’ craft and unit status as a separate bargaining unit, consisting of only airline mechanics and specialists 23 and their helpers and apprentices, to the plaintiffs’ detri- ment. The plaintiffs alleged damages of $15,000 to each plaintiff and ask for injunctive relief, attorneys’ fees of $25,000 and exemplary damages of $1 million. The case is presently before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Specifically, the planitiffs allege injury by the de- fendant’s actions in “. . . unilaterally unlawfully absorbing for all collective bargaining purposes plaintiffs’ said certified craft and unit into one big communal- ized and heterogeneous class and uncertified bar- gaining unit of employees; including not only plaintiffs’ said unit, but the separate bargain- ing unit of Eastern’s stock (store) clerks, and the separate bargaining unit of Eastern’s print shop employees, and the separate bargaining unit of Eastern’s employees performing mostly cargo and baggage handling work and other various and sundry employees.” The plaintiffs show that the National Mediation Board [NMB] is the administrative agency empowered by state to certify a craft or class of employees as an ppro- priate collective bargaining unit and to certify a duly selected labor organization as the exclusive collective bar- gaining representative of that craft. Plaintiffs’ claim that their bargaining unit was determined and certfied by the NMB in a Board proceeding styled Case No. R-3639 to include the following: (1) airline mechanics, specialists, their helpers and apprentices previously certified by the Board in Case Nos. R-407 and R-576; (2) a “fringe group” of Eastern’s employees who performed ground service and cleaning functions a preponderance of their 24 time; and (3) a “fringe group” of shop laborers and janitors added by the Board in Case No. R-1976. Plaintiffs’ claim the Board in Case No. 3639 expressly excluded from plaintiffs’ bargaining unit the following groups of Eastern’s employees: (1) cargo and baggage handlers, (2) stock (store) personnel, and (3) print shop employees. It is the inclusion without Board certification of these latter three groups which plaintiffs allege put them in a minority position in their “own” union, and deprives them of a meaningful and effective voice and the right to organize and bargain collectively in their union and has caused them monetary damages and economic losses _be- cause they have lost the majority and lack a fair voice in bargaining with Eastern about wages, hours, terms and conditions of employment. The defendant’s first ground for dismissal in its motion is that this Court lacks subject matter jurisdiction to hear a dispute concerning representation of employee bar- gaining units subject to the Railway Labor Act—a matter vested in the exclusive jurisdiction of the National Media- tion Board. Switchmen’s Union v. N.M.B., 320 U. S. 297 (1943); Brotherhood of Railway and Steamship Clerks, etc. v. United Transportation Service, etc., 320 U.S. 715 (1943); General Committee of Adjustment, etc. v. Mis- souri-Kansas-Texas R. R. Co., 320 U. S. 323 (1943) ; Rose, et al. v. Brotherhood of Railway and Steamship Clerks, etc., 181 F.2d 944 (4th Cir. 1950), cert. den., 340 U.S. 851 (1950); UNA Chapter, Flight Engineers’ Int. Assoc. v. N.M.B., 294 F.2d 905 (D.C. Cir. 1961); Brotherhood of Railway and Steamship Clerks, etc. v. N.M.B., 374 F.2d 269 (D.C. Cir. 1966) ; Aeronautical Radio, Inc. v. N.M.B., 25 380 F.2d 624 (D.C. Cir. 1967), cert. den., 289 U.S. 912 (1967); Reynolds, et al. v. Int. Assoc. of Machinists, ete., .... F. Supp. —., 87 LRRM 2133 (MD N.C. 1973), aff'd., 498 F.2d 1397 (4th Cir. 1974). Section 2, Ninth of the Railway Labor Act. 45 U.S.C., $151-163, 181-188, provides: “If any dispute shall arise among a carrier’s em- ployees as to who are the representatives of such employees designated and authorized in accord- ance with the requirements of this Act, it shall be the duty of the Mediation Board, upon re- quest of either party to the dispute, to investi- gate such dispute and to certify to both parties, in writing, within thirty days . . . the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute and certify the same to the carrier. Upon receipt of such cer- tification the carrier shall treat with the repre- sentative so certified as the representative of the craft or class for the purposes of the Act... .” It is clear from the case law that disputes concerning the representation of employees in bargaining units are exclusively within the jurisdiction of the National Media- tion Board and therefore not reviewable by the courts. Switchmen’s Union v. N.M.B., supra, and other cases cited above. As the Court of Appeals stated in the Rose case, supra: “In the light of the decisions of the Supreme Court, there can be no doubt that the effect of this statute was to vest in the Mediation Board exclusive jurisdiction over the certification of bargaining. And it is equally clear that the ex- ercise of discretion by the board with respect to such matters is not subject to review by the rrr = | cs 26 courts. Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; General Committee, ete. v. M-K-T R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76; Brotherhood of Railway Clerks ete. v. United Transport Service Employees, 320 U.S. 715, 64 S.Ct. 260, 88 L.Ed. 420; Order of Rail- way Conductors of America, ete. v. Penn. R. Co., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154; Steele v. L. & N. R. Co., 323 U.S. 192, 205 65 S.Ct. 226, 89 L.Ed. 173. And see Slocum v. D. L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577.” 181 F.2d at 946. The legislative history of Section 2, Ninth, of the Rail- way Labor Act bears out this construction of the Act, as the Court in General Committee, etc. v. Missouri-Kansas- Texas R.R. Co., supra, noted: “It is clear from the legislative history of $2, Ninth, that it was designed not only to help free the unions from the influence, coercion and con- trol of the carriers but also to resolve a wide range of jurisdictional disputes between unions or between groups of employees . . . However wide may be the range of jurisdictional disputes embraced within $2, Ninth, Congress did not select the courts to resolve them. To the contrary, it fashioned an administrative remedy and left that group of disputes to the National Mediation Board. If the present dispute falls within §2, Ninth, the administrative remedy is exclusive.” 14 LRRM at 632, 633 (footnotes omitted). The gravamen of plaintiffs’ claim is that they are being unfairly represented by the IAM because other crafts and classes of employees have been wrongfully included with them in a single bargaining unit. For this lack of fair representation, they seek monetary and exemplary dam- ages. Plaintiffs allege that a federal question is presented by their claim of unfair representation under the Railway Labor Act, 45 U.S.C. § 151, et seg. Steele v. Louisville & Nashville Railway Co., 323 U.S. 192 (1944); Czosek ve. O'Mara, 397 U.S. 25 (1970); Glover v, St. Louis-San Fran- cisco Railway Co., 393 U.S. 323 (1969); Thompson v. Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963), and that the courts federal question jurisdiction is properly invoked under 28 U.S.C. § 1331. This Court disagrees. Plaintiffs’ claim of unfair repre- sentation is based solely on the ground that the NMB has “communalized” into one bargaining unit employees who rightfully should be part of another bargaining unit. This is the principal legal question the Court is called upon to decide, and, as noted above, it is precisely this question of “who represents whom” which is vested in the unreviewable discretion of the National Mediation Board. The cases cited by plaintiffs where the Court assumed jurisdiction are inapposite to the instant case because they are distinguishable on their facts. The Steele case, supra, did not invoke the question of which crafts or classes should be included in a single bargaining unit. Steele concerned blatant racial discrimination by white firemen in the Brotherhood of Locomotive Firemen and Enginemen against negro firemen—members of the same “craft.” The Court in the Czosek case, supra, allowed a suit by plain- tiffs against their union for the union’s “arbitary and capricious” refusal to process the claims of the plaintiffs who had been discharged after the merger of the Erie and Delaware, Lackawanna & Western Railroads. Czosek in- volved no claim of an improper grouping of employees by the NMB into a single bargaining unit. The Clover «. St. oe BSc saa Sheik aaa AR RINE RADIA DID Bo CIRCE K Da le Si SRE A SAE SO 28 Louis-San Francisco Railway case, supra, involved a claim by 13 employees, eight black and five white, against their railroad and union, for failure to promote them to the position of carmen allegedly in order to keep blacks out of that position. As in Steele, the cause of action con- cerned racial discrimination, not the misgrouping of dis- tinct crafts into a single bargaining unit. The Thompson case, supra, allowed a claim of unfair representation against the union. But Thompson was grounded on alleged ingidious nonracial discrimination against the plaintiff and did not concern misgrouping of employees by the NMB, as in the instant case. The plaintiffs argue that this controversy lies wholly outside the jurisdiction of the National Mediation Board and the NMB has already expressly held so regarding this specific case. The plaintiffs applied to the NMB on February 28, 1974, to have this controversy decide by the Board. The defendant union and Eastern Airlines sub- mitted their response. On July 15, 1974, the National Mediation Board rendered its decision in the proceeding designated “File C-4294.” The Board denied that it had jurisdiction to adjudicate the controversy. The Board stated the following: “In reviewing your application for the Board’s services, it does not appear that there is an alle- gation of the existence of a representation dis- pute as described in Section 2, Ninth of the Railway Labor Act. Additionally, there is no al- legation that the certified representative and the Carrier are at a bargaining impasse concerning the matters contained in your application, and thus an invocation for the Board’s mediatory services is not appropriate. “The National Mediation Board does not have 29 jurisdiction to determine the manner in which a carrier and a union, certified for one or more crafts or classes, bargain, and thus the ques- tions which you raise are not prop:'!y resolved by the National Mediation Board, vut may be more effectively resolved by direct conferences between the affected parties. Since there is no jurisdictiona’ basis for the processing of your application in its present con- text, that is, failure to allege and demonstrate the existence of a representation dispute, the applica- tion is dismissed.” The Board characterized this dispute as one concern- ing “the manner in which a carrier and a union, certified for one or more crafts or classes, bargin . . .” This Court does not characterize this case as involving a dispute be- tween the union and carrier. This is a dispute between the union and its employees over the propriety of includ- ing various crafts and classes of employees in one bargain- ing unit. Such a determination lies within the exclusive jurisdiction of the National Mediation Board, as the Court has noted above. The failure of the National Mediation Board to characterize this case as the plaintiff urges, and as this Court holds, is a matter to be pressed upon the Board by the plaintiffs in subsequent proceedings. In any event, this Court is barried by statute and case law from determining who should be included in plaintiffs’ bargain- ing unit. Therefore the Court lacks the jurisdiction to award a monetary judgment to plaintiffs on the basis of a proven wrongful grouping of employees, since such an award would have to be bottomed on a resolution of the underlying legal question which the Court lacks the sub- ject matter jurisdiction to resolve. Inasmuch as this issue is dispositive of the entire case 30 the Court declines to address itself to defendant’s other ground for dismissal. Accordingly, the Court ORDERS the defendant’s motion to dismiss GRANTED for lack of subject matter jurisdic- tion. SO ORDERED, this 4 day of February, 1975. RICHARD C. FREEMAN UNITED STATES DISTRICT JUDGE ais Sia Pango SORAE AAR SSL aig RRO aE salah sss cia ik oe ANQe Ur te KA NS hea AS ORE itd Baa SAR ean ck Ree ae Seek 31 APPENDIX “B” IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 75-1978 Summary Calendar* MATHEW S&S. JASINSKI, ET AL., Plaintiffs-Appellants, versus INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Georgia (July 29, 1975) Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges. PER CURIAM: AFFIRMED. See Local Rule 21." *Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I. 1See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966. a ae 32 APPENDIX “C” NATIONAL MEDIATION BOARD Washington, D.C. 20572 July 15, 1974 File No. C-4294 Mr. Thomas Linton Carter, Jr. Suite 1726 Fulton National Bank Building 55 Marietta Street, N. W. Atlanta, GA 30303 Dear Mr. Carter: This has reference to the exchange of correspondence generated by your letter of February 28, 1974, attaching an application to invoke the services of the National Medi- ation Board which you captioned as involving “Dispute- Violation of Eastern and IAM of the collective bargaining craft and unit of Eastern’s airline mechanics and related employees; and deprivation of the statutory organizational and craft rights of Applicants and their fellow employees under the Railway Labor Act, as amended. The National Mediation Board has circulated your application to the Union and Carrier involved soliciting their comments. Comments of the Carrier were received on March 18, 1974, and transmitted to you on April 5, 1974. The IAM, on April 12, 1974, indicated that it agreed with the Car- rier’s position in this matter and that the application should be dismissed for the same reasons expressed by the Carrier. Unfortunately, the letter of the IAM dated April 12, 1974, was not sent to you before this date (copy now enclosed). In revewing your application for the Board’s services, 33 it does not appear that there is an allegation of the ex- istence of a representation dispute as described in Sec- tion 2, Ninth of the Railway Labor Act. Additionally, there is no allegation that the certified representative and the Carrier are at a bargaining impasse concerning the matters contained in your application, and thus an in- vocation for the Board’s mediatory services is not appro- priate. The National Mediation Board does not have jurisdiction to determine the manner in which a carrier and a union, certified for one or more crafts or classes, bargain, and thus the questions which you raise are not properly re- solved by the National Mediation Board, but may be more effectively resolved by direct conferences between the affected parties. Since there is no jurisdictional basis for the processing of your application in its present context, that is, failure to allege and demonstrate the existence of a representation dispute, the application is dismissed. Very truly yours, Rowland K. Quinn, Jr. Executive Secretary ce-to: Mr. John P. Mead Staff Vice President-Industrial Relations Eastern Airlines, Inc. Miami International Airport Miami, FL 333148 Mr. Floyd E. Smith, Int’] President International Association of Machinists & Aerospace Workers, AFL-CIO 1300 Connecticut Avenue, N.W. Washington, DC 20036 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1796%3A1. Public record. Not legal advice.