Opposition Brief — Jasinski v. International Ass'n of Machinists & Aerospace Workers

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LibisaAr 4 , Bupreme Court, U.

aypRrMe COURT i. F

| JAN 26 1976

ie one

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-634

MATHEW S. JASINSKI, et al.,

Petitioners,

versus

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

Respondent.

BRIEF AND APPENDIX IN OPPOSITION TO

THE PETITION FOR CERTIORARI

Plato E. Papps J. R. Goldthwaite, Jr.

1300 Connecticut 600 Rhodes-Haverty Bldg.

Avenue, N.W. 134 Peachtree Street

Washington, D.C. Atlanta, Georgia 30303

20036

Counsel for Respondent

Of Counsel

January 1976

—? - — 2 ———| —4 + ----< —_< | a | | oe | ce | ? . |

cia a 4

;

‘

’

INDEX

Index to Appendix ......

Authorities Cited...

Opiniones Beicow s . 2. « « & 8

Statement of the Case ....

Summery GF Faete « ss s& «+

Discussion

1. The Courts Below Did

NOG Gee, as « (62% Sw

2. Petitioners State No

Claim Upon Which Relief

May Be Granted ....

CORGSREAEE <6) ao ae Es

RGA ee 8 a we 8 48 eS

(i)

INDEX TO BRIEF

APPENDIX _

NMB Decision No. R-3639,

4 NMB Determinations 14

NMB Certification No. R-3639

NMB Decision No. R-3712,

4 NMB Determinations 54

NMB Certification No. R-4270

NMB Certification No. R-4336

Reynolds, et al. v. I.A.M.,

87 LRRM 2133 (M.D. N.C.,

1973, unpublished decision)

Reynolds, et al. v. I.A.M.,

498 F.2d 1397 (4th Cir.

1974, unpublished per

curiam decision) i eT

Strong v. Sheet Metal Workers,

etc., 13 b.€. FiG3i3s (N.D.

Cal., 1974) Se gt de

Petitioners' Application to

ae ae PGES « 4 4 8 8

EAL Statement of Position

NMB Letter to I.A.M. re:

Application of Airline

Mechanics Association .

I.A.M. Statement of Position

(ii)

A-1

A-11

A-13

A-28

A-57

A-58

jin UE gs as cos eee OE en ses en tas

Index to Brief Appendix

NMB Dismissal ....

Petitioners' Complaint

the District Court ..

Motion to Dismiss...

(iii)

r a a ee ae De Oe

bee

AUTHORITIES CITED

Opinions

Aeronautical Radio, Inc. v. N.M.B.

380 F.2d 624 (D.C. Cir. 1967),

Cert. Gen. 269 UB 912 (1967) .....9

Air Line Stewards and Stewardesses

Asso. v. N.M.B., 294 F.2d 910

(D.C. Cir. 1961), cert. den.

ME 6 gs gg Cee gy eG, ee

Amalgamated Asso. of Street,

Electric Ry. & Motor Coach

Employees of America v.

Lockridge, 403 US 274 (1971) .... 17

Balowski v. United Automobile,

etc. Workers, 372 US 829

(6th Cir. 1967) ‘ 17

Brotherhood of Railway and

Steamship Clerks, etc. v. N.M.B.

o18 ¥.20 269 (D.C. Cir. 1966) .... 9

Brotherhood of Railway and

Steamship Clerks, etc. v. United

Transportation Service, etc.,

320 US 715 (1943) ee eae

Br herhood of Railway and

Ste mship Clerks, etc. v.

Virginian Ry. Co., 125 F.24

Crs (SER Cit, 3962) oka Se Soe) ae

Ford Motor Co. v. Huffman

345 US 330 (1952)

(iv)

Bee 1S SERS oe eS 7 ee ee | fia aa ee

RIOR FEO Be II LEIA MOLE II EILEEN LOSE I NN EEA IAN TM EM ‘

Opinions

Gainey v. Brotherhood of

Ry. Employees, 313 F.2d

318 (3rd Cir. 1960)

General Committee of Adjustment,

etc. v. Missouri-Kansas-Texas

Railroad Co., 320 US 323 (1943)

Hardcastle v. Western Greyhound

Lines, 303 F.2d 182 (9th Cir.

US) MATS yee ak tee ee ee ee ee

Hess v. Petrillo, 259 F.2d 735

ko Ret Pe 5 ee a ee eae

Homan Mfg. Co. v. Russo, 233

F.2d 547 (7th Cir. 1956) oe

Humphrey v. Moore,

SFe ee Bee Cee) ue 8 oc 8

International Asso. of

Machinists, etc. v. Street,

Pet See eee ROR OA awe | 5

Leedom v. Kyne,

can ee Bee tae? se lk ee ee

Long v. Georgia Kraft Co.,

238 F.Supp. 605 (N.D. Ga.

1971), aff'd 455 F.2d 331

(Oe Daas Ola «6s 6 ow we ee le

Order of Ry. Conductors v. N.M.B.

141 F.2d 266 (D.C. Cir. 1944) .

(v)

; : > > > ~ - > - > 2 . 2 rs ro ae

4 7

ew &ewsS fee weet tee lf ll

Opinions

Reynolds, et al v. Int. Asso. of

Machinists, etc., 87 LRRM 2)].33

(M.D. N.C. 1973), aff'd per curiam

in unpublished decision, 498 F.2d

1397 (4th Cir. 1974) (both deci-

sions reprinted in Brief Appendix,

Sees a Wt =e 48 a ke 4 A 8 eee

Rose, et al. v. Brotherhood of

Railway and Steamship Clerks, etc.,

181 F.2d 944 (4th Cir. 1950),

@eert. den. 340 US 851 (1950) ....s 9

Steele v. Louisville & Nashville

R. Co., 323 US 192 (1944) cs ee. eRe

Strong v. Sheet Metal Workers, etc.,

75 L.C. 910313 (N.D. Calif. 1974)

(decision printed in Brief Appen-

dix, infra) Co ae ek. oe ee ee oe ae ee

Switchmen's Union v. N.M.B.,

320 US 297 (1943) Ke ele he ere a we ee

UNA Chapter, Flight Engineers

Int. Asso. v. N.M.B., 294 F.2d

905 (Ob. ¢. Cir. 1961) . . . . . . . . 9

Vaca v. Sipes,

Dee ee Bae SOOT) 4 es 6 See «2

(vi)

Statutes

National Labor Relations Act,

as amended, 29 USC 151, et seq.

Section 8(b); 29 USC 158 (b) . «se

Railway Labor Act,

45 uSC 151, et seq. “Jo ae

Section 2, Ninth;

MR a CN. ee rr a

Official Publications

Determination of Craft or Class

of the National Mediation Board,

Vol. 1 and 4, G.P.O.

In the Matter of Representation

of Employees of Erie Railroad Co.,

Case No. R-1851l, 1 NMB Determi-

ee ee. ew ce eS

In the Matter of Representation

of Employees of Eastern Airlines,

Inc., (1) Mechanics and Related

Employees (2) Stock-Clerks

(3) Print Shop Employees, Case

No. R-3639 (1963), 4 NMB Determi-

nations 14 (Reprinted in Brief

Appendix, infra)

(vii)

Official Publications

In the Matter of the Application

of Aircraft Mechanics Fraternal

Asso., etc., Involving Employees

of Eastern Air Lines, Inc., etc.,

Case No. R-3712 (1965), 4 NMB

Determinations 54 (Reprinted in

Brief Appendix, infra) - . .. <« . 8,142

(viii)

ie OE co ME a MO ge, MO cee ce: co, anes oe, remy

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-634

MATHEW S. JASINSKI, et al.,

Petitioner,

versus

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

Respondent.

BRIEF IN RESPONSE TO

THE PETITION FOR CERTIORARI

-_—

OPINIONS BELOW

The per curiam affirmance of the Dis-

trict Court opinion by the United States

Court of Appeals for the Fifth Circuit,

issued July 29, 1975, is unpublished but

is reported at 517 F.2d 478. The Opinion

of the United States District Court for

the Northern District of Georgia, entered

February 4, 1975, was not published in

the West System but is unofficially re-

ported at 90 LRRM 3021.

Pe Pe ee oe Poe oe oe ee

eee a ee ne ee

The Court of Appeals and District

Court decisions are printed in the Appen-

dix to the petition for certiorari at

pages 31 and 22, respectively.

STATEMENT OF CASE

Plaintiffs (Petitioners) filed civil

action for alleged individual damages in

the District Court under the Railway Labor

Act [45 U.S.C. §151, et seg.], alleging

that the Machinists Union had violated the

Act and its duty to fairly represent plain-

tiffs by including the craft or class of

Airline mechanics and related employees of

Eastern Airlines, of which plaintiffs are

members, under the same collective bargain-

ing agreement with other employees of Eas-

tern who are members of other crafts and

classes. Brief Appendix, infra, A61-A71l.

Defendant (Respondent) filed motions

to dismiss for want of jurisdiction and

for failure to state a claim upon which

relief may be granted. Brief Appendix,

infra, A72.

The District Court granted the mo-

tion to dismiss for want of jurisdiction,

saying:

- .- . This is a dispute between

the union and its [represented]

employees over the propriety of

including various crafts and

classes of employees in one bar-

gaining unit. Such a determina-

tion lies within the exclusive

jurisdiction of the National

Mediation Board, as the Court has

noted above. The failure of the

National Mediation Board to char-

acterize this case as the plain-

tiff urges, and as this Court

holds, is a matter to be pressed

upon the Board by the plaintiffs

in subseguent proceedings. .. .

(Appendix to the petition for

certiorari, 29; explanatory

bracket and emphasis supplied).

Thus, the District Court held that

the power to determine what crafts and

classes of employees are to be included

in a unit appropriate for collective bar-

gaining under the Railway Labor Act lies

within the exclusive jurisdiction of the

National Mediation Board; and that, if

the National Mediation Board improperly

refused to exercise its statutory juris-

diction in this case, such is a matter to

be attacked directly, rather than colla-

terally as plaintiffs attempt to do in

this proceeding.

The District Court therefore dismis-

sed plaintiffs' action for want of juris-

diction and did not pass upon the union's

motion to dismiss for failure to state a

claim.

The Court of Appeals affirmed, per

curiam, without a written opinion.

SUMMARY OF FACTS

The history of bargaining between

Eastern Airlines and the Machinists Union

is complex. That history is traced in NMB

Case No. R-3639 (C-3355), decided December

5, 1963, 1/ and in Case Nos. R-3712, R-

3713, R-3714, decided July 14, 1965, 2/

and in other materials contained in Brief

Appendix, infra.

The Machinists Union has become the

representative of several classifications

of EAL employees, either through voluntary

recognition or certification beginning

December, 1937, and:

Over the years since 1937, under

IAM representation all of these

employees gradually through suc-

cessive negotiations have been

included under a single collec-

tive bargaining agreement.

(NMB Decision No. R-3639,

December 5, 1963, 4 NMB Deter-

minations, at 17).

In 1965, Aircraft Mechanics Fraternal

Association sought separate representation

1/ Volume 4, Determination of Craft or

Class of the National Mediation Board,

page 14; decision reprinted in Brief

Appendix, infra, at Al.

2/ Volume 4, Determination of Craft or

Class of the National Mediation Board,

page 54; decision reprinted in Brief

Appendix, infra, at Al3.

of mechanics and related employees. An

imminently qualified disinterested com-

mittee, appointed by MNB pursuant to Sec-

tion 2, Ninth of the Railway Labor Act, 3/

in Case Nos. R-3712, R-3713, R-3714, found

that the separate representation requested

by AMFA was inappropriate. 4 NMB Determi-

nation 54, July 14, 1965, at 66, et seq.

That determination broadened the classifi-

cations of employees included within the

craft or class of airline mechanics and

related employees from the determination

two years earlier in R-3639. AMFA declin-

ed to participate in an election in the

broadened unit. Op. Cit; supra, at 66.

In March, 1974, Jasinski, et al.,

filed application with the National Medi-

ation Board asking for a determination

that EAL and Machinists were acting im-

properly by including all Machinists-

represented employees under a single con-

tract; but as the basis of their complaint,

Jasinski, et al., requested NMB to revert

to the craft or class of airline mechanics

defined in R-3639. 4/ Thus, petitioners'

claim in this case substantially reiter-

ates the 1965 request of AMFA and requires

a determination of craft or class as an

essential element of the relief requested.

Upon request for comments by NMB,

EAL responded that the appropriate unit

af 645 U.S.C. § 152, Ninth.

4/ Petitioners' application was docketed

by NMB as No. C-4294 and is reprinted in

Brief Appendix, infra, at A49.

Sy aera Wa et A ae a gs

—e ite ot od ed ee ed a eas a

had been defined in R-3712 and that the

Complaint should be dismissed. 5/ IAM

concurred in that opinion. 6/ Neither

EAL nor IAM suggested that NMB was with-

out jurisdiction to adjudicate Petition-

ers' Complaint.

The Executive Secretary of the Na-

tional Mediation Board administratively

dismissed Petitioners' application for

want of jurisdiction in the NMB,

- « - 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

Mediation Board, but may be more

effectively resolved by direct

conferences between the affected

parties. . . . (Brief Appendix,

infra, at A59).

Rather than launch a direct challenge

in the District of Columbia to the refusal

of NMB to assert jurisdiction, petitioners

elected to attack the NMB action collater-

ally by civil action for individual dam-

ages in the Northern District of Georgia.

5/ See letter of response, Brief Appen-

dix, infra, at A55.

6/ Brief Appendix, infra, at A58. See

also A57.

C0? a eee

. . — ete D Ae Biahiare IO PRR ET WOR NY RE ee a

ee ae a aA A BEY IRN TERI THES NIST PN MALIN NT SE ENING pwc D Awe gk Wg ae IO ME SR RN os | .

COMMENTS

1. The Courts Below Did Not Err

In Switchmen's Union of North America

v. National Mediation Board, 320 U.S. 297,

300, 301 (1943), this Court said:

- - « The Act in §2, Fourth writes

into law the 'right' of the 'major-

ity of any craft or class of em-

ployees' to ‘determine who shall

be the representative of the craft

or class for the purposes of this

Act'. That ‘right is protected

by §2, Ninth which gives the Medi-

ation Board the power to resolve

controversies concerning it and

as an incident thereto to deter-

mine what is the appropriate craft

or class in which the election

should be held. See Brotherhood

of Railroad Trainmen v. National

Mediation Board, 88 F.2d 757; Bro-

therhood of Railroad Trainmen v.

National Mediation Board, 135 F.2d

780. A review by the federal dis-

trict courts of the Board's deter-

mination is not necessary to pre-

serve or protect that ‘right’.

Congress for reasons of its own

decided upon the method for the

protection of the ‘right' which

it created. It selected the pre-

cise machinery and fashioned the

tool which it deemed suited to

that end. Whether the imposition

of judicial review on top of the

Mediation Board's administrative

—— re _— pay '

determination would strengthen

that protection is a consider-

able question. All constitu-

tional questions aside, it is

for Congress to determine how

the rights which it creates

shall be enforced. Tutun v.

United States, 270 U.S. 568,

576-577. In such a case the

specification of one remedy

normally excludes another. See

Arnson v. Murphy, 109 U.S. 238;

Wilder Mfg. Co. v. Corn Pro-

ducts Refining Co., 236 U.S.

165, 174-175; United States v.

Babcock, 250 U.S. 328, 331;

Sunshine Anthracite Coal Co.

v. Adkins, 310 U.S. 381, 404.

The Court went on to rule that:

- + « Under this Act Congress

did not give the the Board dis-

cretion to take or withhold ac-

tion, to grant or deny relief.

It gave it no enforcement func-

tions. It was to find the fact

and then cease. Congress pre-

scribed the command. Like the

command in the Butte Ry. case

it contained no exception. Here

as in that case the intent seems

plain -- the dispute was to

reach its last terminal point

when the administrative finding

was made. There was to be no

dragging out of the controversy

into other tribunals of law.

(320 U.S., at 305).

tt tJ | eed od et -J ieee t'-3 tL. eed -— -—— TF Pang ——- + ~o

That ruling has been adhered to and

followed with uniformity. See, e.g.,

General Committee of Adjustment, etc. v.

Missouri-Kansas-Texas R.R. Co., 320 U.S.

323 (1943); Brotherhood of Railway and

Steamship Clerks, etc. v. United Trans-

portation Service, etc., 320 U.S. 715

(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 En-

gineers' Int. Assoc. v. N.M.B., 294 F.2d

905 (D.C. Cir. 1961); Brotherhood of Rail-

Way and Steamship Clerks, etc. v. N.M.B.,

374 F.2d 269 (D.C. Cir. 1966); Aeronauti-

cal Radio, Inc. v. N.M.B., 380 F.2d 624

(D.C. Cir. 1967), cert. den. 289 U.S. 912

(1967); Reynolds, et al. v. Int. Assoc.

of Machinists, etc., 87 LRRM 2133 (M.D.

N.C. 1973), aff"d. per curiam in an un-

published decision, 498 F.2d 1397 (4th

Cir. 1974). 7/

One of the principal determinants

which NMB has always considered in defin-

ing an appropriate craft or class is the

history of bargaining between the carrier

and unions with respect to the affected

employees. In other words, when it is

asked to consider what employees shall be

included in a craft or Class, NMB looks

to what classifications of employees the

parties themselves have regarded to be

7/ Copy of the District Court and Court

of Appeals decisions in the Reynolds case

are contained in the Appendix to this ,

Brief, infra, at A32 and A39, respectively.

ee. —, oa be nell

Pee a ee ee

cohesive, interrrelated classifications

of employees with a community of interest

appropriate for inclusion under a single

collective bargaining agreement. If the

grouping of employees under a single a-

greement has resulted in a history of suc-

cessful bargaining over a period of years,

great weight is given to that history in

determining the appropriate class or craft.

For example, in Case No. R-1851, 8/

which was very similar on its facts to

the present issue, the Board said:

The reasons advanced by the MMP

for now desiring a segregation of

the craft or class are: first,

the licensed personnel are men in

charge of the vessel and as such

their condit*® ns of employment

are separat« id distinct from

the unlicen personnel; second-

ly, that by reason of the larger

number of unlicensed men employ-

ed, this latter group can always

out-vote the licensed officers in

an election.

It is clear that the first rea-

son constitutes a reversal of the

position taken by MMP in R-337

where it contended that ‘the un-

licensed deck hands were in train-

ing for the licensed positions of

8/ In the matter of Employees of Erie

Railroad Company, Case No. R-1851, 1

Determination of Craft or Class of NMB

488.

10.

— - a

fim ook! gee, ES pee CO ee ee ee ee pa

ee a a a es ee a ee ee ee ee ee ee

masters, mates or pilots and,

therefore, were part of the same

craft." Even assuming, however,

that the facts tend to support

this argument, it certainly can-

not be said that it is entitled

to any greater weight than the

argument advanced more than ten

years ago. In reaching a deter-

mination, therefore, as to which

of the two diametrically opposed

views will tend to promote in-

dustrial peace resort must be

had to the history of collective

bargaining on the property. When

this is done, it becomes abun-

dantly clear that the findings

set forth above support a con-

clusion that the composite craft

Or class produced a minimum of

friction.

The second reason assigned for

a change in the craft or class

finds its basis solely on a de-

Sire on the part of the licensed

personnel to bargain separately

from the unlicensed personnel.

It is true that the desires of

the employees are always an im-

portant consideration in fixing

craft or class lines. In this

instance, however, that factor

1S Outweighed by the record of

Successful bargaining by the

larger craft over a period of

years. (1 NMB Determinations,

at 491).

ll.

—, foe | Scenes | a + —_—_ ee 4 any

Be al il a tae

Similar weight was given to histor-

ical bargaining considerations in Cases

Nos. R-3639 (C-3355) and R-3712. 9/

The impartial committee in R-3712

said:

This policy of primary reliance

cn ‘the customary groupings of

the employees into crafts and

classes as it has been estab-

lished by accepted practice over

a period of years. .. .' has

remained the policy of the Board

Since its establishment. (4 NMB

Determinations, at 60).

Thus, the NMB, having exclusive

authority so to determine, considers the

grouping practices historically utilized

by the carrier and the union when it de-

fines classes and crafts of employees

which are appropriate for bargaining.

Underlying petitioners' claim in the

District Court is the threshold contention

that IAM and EAL are bargaining with res-

pect to an inappropriate unit (craft or

class) of employees; but there are three

extant and possible definitions of what

employees should be included in the craft

Or class of which petitioners are members.

9 4 NMB Determinations 14, 16-22, Brief

Appendix, infra, A3-9, and 4 NMB Determi-

nations 54, 60-66, Brief Appendix, infra,

Al19-A25.

' LJ

‘

7 2

dink?

—_

Bs The craft or class of airline

mechanics and related employees

defined in 1963 in Case No. R-

3639;

Zs The enlarged craft or class of

airline mechanics and related

employees defined in 1965 in

Case No. R-3712;

as The still larger group of em-

ployee classifications which

have historically been grouped

under one contract by EAL and

IAM since 1937. 10/

Only the Mediation Board may deter-

mine which of these definitions, or some

other, is the appropriate one.

Thus, assuming without conceding

that a district court can entertain a

claim that IAM is guilty of an “unfair

labor practice" 11/ for including sever-

al certified crafts or classes under one

contract, a court could not do so until

the Mediation Board has adjudged that

such combination of employee classifica-

tions has not, by virtue of the long and

10/ See discussion in Case No. R-3712,

4 NMB Determinations, at 57, 58, Brief

Appendix, infra, Al6, Al7.

1l/ The Railway Labor Act does not de-

fine any union unfair practices compar-

able to those contained in Section 8(b)

of the National Labor Relations Act, as

amended [29 U.S.C. 158(b)].

13.

i a

ee a NS LE Ri os ae at ee ee Sle a ile ge i alae ae Te

att. A.

successful history of bargaining for such

combined group, become an appropriate

class or craft.

The recent case of Reynolds, et al.

v. International Association of Machinists

and Aerospace NOreetS et al., 87 LRRM

2133 (M.D. N.C., CA #C-179-WS- -73, Nov. 8,

1973), aff'd per curiam in an unpublished

decision, 498 F.2d 1397 (4th Cir. 1974)

was very Similar to the instant case. 12/

There a group of building maintenance em-

ployees contended that they were members

of a craft or class of employees certi-

fied by NMB but had been wrongfully ex-

cluded from the coverage of the collec-

tive bargaining agreement subsequently

agreed between Piedmont Airlines and the

Machinists Union. The plaintiffs sued

the union for unfair representation by

failing to include them under the con-

tract. The District Court said:

3. If plaintiffs are members of

the craft or class of ‘Airline

Mechanics and Related Employees'

of Piedmont Airlines, defendants

are bound by statute to represent

them. However, if plaintiffs are

not members of that craft or

class, defendants owe them no

duty of representation.

4. The primary issue presented

by the complaint is whether

12/ Decisions reprinted in Appellee's

Brief Appendix, infra, A32 and A39.

14,

ond

hae are:

—

——

SS -

—

“ = —

—

= 4

i °

> ©

EER ETI OA BNE I A EE it APA SS EIGER TTC RA IIE OFS ——

plaintiffs are members of the

craft or class of ‘Airline Mech-

anics and Related Employees' of

Piedmont Airlines.

x k &

6. The primary issue presented

by the complaint is within the

exclusive jurisdiction of the

National Mediation Board and

this Court, therefore, is with-

out jurisdiction to entertain

the complaint.

Upon appeal in the Reynolds case,

the Fourth Circuit affirmed, saying:

Per Curiam: After oral argument

we affirm on the opinion of the

district court. Plaintiffs have

the right, under 45 USC §152,

Ninth, to obtain a decision from

the National Mediation Board as

to whether they are included

within the bargaining unit for

which an employment contract has

been negotiated. (Brief Appen-

dix, infra, at A39, A40). 13/

2. Petitioners State No Claim Upon

Which Relief May Be Granted.

This Court has consistently recog-

nized that, through passage of the Railway

13/ Cf. Leedom v. Kyne, 358 U.S. 184 (1958).

15%

| i

—_—.

]

REINER OMEN TE or AOS OREN RENAE MORE LETTE MN 1 SEB EREN INS”

Labor Act, Congress sought a regulatory

scheme which would effectively stabilize

labor relations in the industry. The suc-

cess of the scheme depended on an effec-

tive system of collective bargaining and

mediation by representatives of the par-

ties in dispute. A necessary adjunct to

the scheme involved strengthening union

status in relation to both carriers and

employees. See Int. Assoc. of Machinists

etc. v. Street, 36/ U.S. 7/40, 7/59, 7/60

(1961). Congress saw fit to clothe the

bargaining representative with "powers

comparable to those possessed by a legis-

lative body both to create and restrict

the rights of those whom it represents."

Steele v. Louisville & Nashville R. Co.,

323 U.S. 192, 202 (1944).

Pursuant to that authority, IAM and

Eastern have historically included all

EAL employees represented by IAM under a

Single collective bargaining agreement.

The NMB gives great weight to the success

of such bargaining in defining appropriate

crafts and classes, thus recognizing a

discretion vested in unions as bargaining

representatives.

Aside from the factual issue concern-

ing what may be the appropriate craft or

class of employees which includes peti-

tioners, discussed ante, IAM clearly has

the discretion, absent bad faith, discri-

mination, or other invidious motivations,

to include all groups of EAL employees

represented by it under one contract. Cf.,

Ford Motor Co. v. Huffman, 345 U.S. 330

(1952); Humphrey v. Moore, 375 U.S. 335

(1964); Vaca v. Sipes, 386 U.S. 171 (1967);

16.

Amal. Asso. of Street Electric Ry. and

Motor Coach Employees v. Lockridge, 403

U.S. 274 (i971).

If not, the history of bargaining

criterion traditionally utilized by NMB

(and NLRB) is irrelevant and erroneous.

It is not necessary here, therefore,

to decide whether NMB has authority to

issue craft or class determinations with-

Out request for an election.

Petitioners alleged only a factual

diminution of voting strength as the ba-

Sis of their claim for relief. They set

forth no factual allegations which give

rise to a litigible issue of bad faith

Or invidious motivation on the part of

IAM in negotiating the single agreement

with EAL. Cf., Balowski v. Int. Union,

UAW, 372 F.2d, 829, 835 (6th Cir. 1967);

Gainey v. Bro. of Ry. Employees, 313 F.2d

318 (3rd Cir. 1960). “Mere unsupported

conclusions of fact or mixed fact and law

are not admitted by a motion to dismiss".

Hess v. Petrillo, 259 F.2d 735 (9th Cis

1958). Cf., Homan Mfg. Co. v. Russo, 233

F.2d 547 (7th Cir. 1956). "Conclusory

words. . . without a concomitant showing

of lack of good faith do not set forth a

claim". Hardcastle v. Western Greyhound

Lines, 303 F.2d 182, 196 (9th Cir. 1962).

Allegation of loss of individual

voting strength by virtue of absorption

into a larger unit of employees does not,

without more, suffice to show actionable

breach of duty. Long v. Ga. Kraft Co.,

238 F.Supp. 605 (N.D. Ga. 1971), aff'd

— Nee ee |

455 F.2d 331 (5th Cir. 1972); Strong v.

Sheet Metal Workers, etc., 75 LC q10, 313

(N.D. Calif. 1974), [decision printed in

Brief Appendix, infra, at A4l].

By refusing to assert jurisdiction in

this case, the Board held that the carrier

and the union have the discretion to in-

clude all units of employees for which the

union is the representative under a Single

contract. 14/ Absent a showing of discri-

minatory or invidious motivation, the union

has that discretion under the law.

We return to the words of this Court

in Switchmen's Union v. NMB, with regard

to determinations Of craft or class by

NMB:

» * A review by the federal

district courts of the Board's

determination is not necessary

to preserve or protect that

"SAGNE* Ss os 4320-628. at 301).

14/ Union representation of more than

one craft or class of employees is not

prohibited. Brotherhood of Railway and

Steamship Clerks, etc. v. Virginian Ry.

Co., 125 F.2d 853 (4th Cir. 1942); Air-

Line Stewards and Stewardesses Asso. v.

N.M.B., 294 F.2d 910 (D.c. Cir. 1961);

Order of Ry. Conductors v. N.M.B., 141

F.2d 366 (D.C. Cir. 1944).

18.

Gees et eet i ee etl let et Cl eee eee eel ee Eee CU

CONCLUSION

For the reasons discussed, the

petition for certiorari should be denied.

eo! Respectfully submitted,

J£ R. GOLDTHWAITE, JR.

600 Rhodes-Haverty Bldg.

134 Peachtree Street

Atlanta, Georgia 30303

Counsel for Respondent

Plato E. Papps

1300 Connecticut Avenue, N.W.

Washington, D. C. 20036

Of Counsel

19.

A-1

APPELLEE'S BRIEF APPENDIX

In the Matter of RepresENTATION oF EmpLoyees or Eastern AIR

Lings, Inc., (1) Mecuanics anp Retatep Empuoyess (2) Stock

Cuierks (8) Print Suor EmpLoyees

Case No. R-3639 (C-3355)—Decided December 5, 1963

Finpincs Upon INVESTIGATION

On April 16, 1965, the International Brotherhood of Team-

sters, Chauffeurs, Warehousemen & Helpers of America, (IBT),

filed an application with the Nationa! Mediation Board pursuant

to Section 2, Ninth, of the Railway Labor Act. alleging the ex-

istence of a representation dispute involving employees of East-

ern Air Lines, Inc., (EAL), performing duties of (1) Mechanics

and Related Employees, (2) Stock Clerks, and (3) Print Shop

Employees. At the time the application was filea these emplovees

were represented for the purposes of the Railway Labor Act by

the Internationa! Association of Machinists, (IAM).

During preliminary investigation of this application, issues

were raised which the Board found required a recorded hearing.

Accordingly, a public hearing was held on July 1 and 2. 1963, at

which ali concerned were provided an opportunity to submit

testimony and documentary evidence in support of their respective

contentions.

Both of the labor organizations party to the dispute and the

carrier submitted briefs which, following an extension of time,

were due on August 5, 1963.

POSITION OF THE PARTIES

The applicant organiza‘ion, the IBT, contends that the following

employees of Eastern Air Lines constitute separate crafts or

classes for purposes of representation under the Railway Labor

Act, as amended.

a. Mechanics and Related Employees

b. Stock Clerks

ce. Print Shop Employees

a. As to the emplovees designated as Mechanics and related

Employees, the IBT contends this group embraces the following

classifications:

Inspectors

Lead Mechanics (Line or Shop)

Apprentice

Lead Cleaner

Cleaners

Lead Shop Laborers

B-E-Eoe:

—

hie |

PISSSSES TI"

A-2

SECTION I—AIRLINE EMPLOYEES 15

Shop Laborers

Shop Janitresses

Lead Ground Communication and Flight

Simulator Technician

Ground Communications and Flight Simulator

Technician

In addition, the IBT contends that the alleged craft or class

of “Mechanics and Related Employees” should include ramp

service employees who perform the following duties on a pre-

ponderance of work basis:

the fucling, oiling and ADI servicing of airplanes, not including the changing and/or

adding of engine vil in comjuncuon with maintenance interphase or phase checks, oil

tanks or engine changes.

For ready reference, the employees referred to above may be

designated as Fuelers. Such Fuelers are classified by the carrier

as Ramp Service Employees, which is a group totaling 1,630.

Although there are some 637 Ramp Service Employees qualified

to work as Fuelers, the IBT contends for only 180 of this number

on the grounds that they work a preponderance of time in that

capacity.

The IBT does not contend for representation of the balance of

employees classified as Ramp Service Empioyees.

— position of IAM is described on Page 4 of their brief as

follows:

No question arose at the hearing concerning the propriety of the Teamsters’ desired

placement of EAL emplovees in jobs covered by the EAL-IAM agreement titled in-

spector, Lead Mechanic, Mechanic. Apprentice, Helper, Lead Ground Communication

and Flight Simulator Technician, Ground Communication and Flight Simulator Tech-

nician, those Cleaners, Shop Laborers, Janitresses and their Leads assigned to clean

shops, hangers or ramps and these Ramp Service Employees and Leads driving and

operating fuel trucks and related equipment utilized for fueling, oiling and ADI

servicing of aircraft w ithin the Airiine Mechanic Craft or Class, for voting and certitica-

tion purposes.

However, conflict arose over the Teamsters’ desired exclusions from the Airline

Mechanics Craft or Class and the Clericai, Ottice, Stores, Fleet and Passenger Service

Employees Craft or Class, as those crafts or classes have been determined in Cases No.

— Airlines), R-1706 (National Airlines) and R-2783 (Northwest

irlines

b. As to the group of Stock Clerks, the IBT observes that

industry practice and numerous NMB certifications for separate

representation of Stock Clerks support their position to treat such

employees as a separate craft or class.

The IAM contests proposed grouping of Stock Clerks as a

separate bargaining unit and points to the fact that the Board,

in Case R-1706, determined such emplovees to be a part of the

craft or class of Clerical, Office, Stores, Fleet and Passenger

Service Employees.

c. The IBT contends that the group designated as Print Shop

Employees, including Lead Pressman, Pressman, Assistant Press-

man, Lead Bindery Clerk, Bindery Clerk, may be appropriately

A-3

16 DETERMINATION OF CRAFT OR CLASS

considered as a separate craft or class for representation pur-

poses, a

Here again the IAM opposes the applicant’s position and argues

that the IBT seeks the establishment of a new craft or class.

Eastern Air Lines, that carrier here involved, contends for

a grouping of employees contrary to either of the contesting

unions. It should be observed that under the Railway Labor Act,

a carrier is not a party in representation disputes. However, in

the Board’s investigation of such matters under Section 2, Ninth,

of the Act, it must rely on the carrier for information needed in

considering the dispute. Accordingly, the views of the carrier

on matters of this nature have been received and taken into

account,

It is the position of EAL that all three of the groups contended

for by the IBT should be combined into one unit for represen-

tation purposes. The position of EAL is based on the collective

bargaining history of these employees on this property and the

alleged interrelation of the work of these employees on Eastern.

The IBT reviews extensively the representation of similar

employees on other airlines and the Board’s past determination

of craft or class in support of its contentions in this case.

The IAM does not take an affirmative position on how the

employees should be grouped for purposes of representatien but

contents itself with the negative position of opposition on the

basis of past findings of the Board to the groupings proposed

by the IBT. Their position, simply stated, is that the IBT petition

should in all particulars be dismissed.

COLLECTIVE BARGAINING HISTORY

The collective bargaining history of the various groups of

employees involved in this dispute extends back over a period

of 25 years. On December 18, 1937, Case No. R-407, the Board

certified the IAM to represent the craft or class of Airline Mech-

anics on Eastern. At that time there were 221 such employees.

On November 3, 1939, Case R-576, a second certification was

issued for Airline Mechanics, Specialists, their helpers and ap-

prentices. Including the Specialists, the craft or class had grown

by that time to 347 employees.

On May 10, 1946, Case R-1617, a certification was issued in

favor of the IAM to represent Cargo Handlers in addition to

Stock Clerks and Commissary Clerks, which during the interim

had gained IAM representation by voluntary recognition: the

Stock Clerks on December 30, 1939, and Commissary Clerks on

June 1, 1944. At the time of the certification in R-1617, the

Stock Clerks and Commissary Clerks were covered by a separate

labor agreement between IAM and the carrier.

In the certification issued in R-1617, the Board called parti-

cular attention to the fact that it had made an interim finding in

Case R-1471, issued October 4, 1945, regarding representation

A-4

SECTION I—AIRLINE EMPLOYEES 17

of various employees of Trans Continental & Western Airlines,

Inc. (now known as Trans World Airlines), in which Stock

Clerks, Commissary Clerks and Cargo Handlers were voted as

a single unit, although possibiy part of a larger craft or class

of Clerical, Office, Station and Storehouse Employees, not then

in dispute. The Board followed the precedent set in R-1471 in

its certification issued in R-1617, by adding the Cargo Handlers,

through a card check, to the Stores and Commissary personnel

already represented on Eastern by IAM through recognition.

The certification in R-1617 stated specifically that - “This certi-

fication does not establish a precedent or preclude an ultimate

determination in any future dispute as to the proper classifi-

cation of Cargo Handiers for representation purposes.”

On February 11, 1948, a certification was issued, Case R-1976,

to IAM to represent Airline Mechanics (including Shop Laborers

and Janitors). This certification covered some 45 Shop Laborers

and Janitors and was an addendum to the certification in R-576,

issued on November 3, 1939, the basic certification in behalf of

IAM for Mechanics.

The purpose of the certification in R-1976 was to round out

the craft or class of Airline Mechanics on Eastern by adding

the Shop Laborers and Janitors working in and around shops

and hangers, to make it conform with the craft or ciass of Air-

line Mechanics which the Board had found to be the appropriate

grouping in its Findings issued in case R-1447, decided October 1,

1945, on American Airlines. Case R-1447, has been generally

— as the controlling decision defining the Mechanics’ craft

or class.

On February 24, 1950, in Case R-2247 « certification was issued

for IAM to represent Print Shop Employees.

Over the years since 1937, under IAM representation all of

these employees graduaily through successive negotiations have

been included under a single collective bargaining agreement.

Where. in 1937 the IAM bargaining group totalled 221, this

group increased to a total of 5,889 as of May 17, 1963. This

number is subdived by groups involved in this case as follows:

Mechanics, Cleaners, Laborers and Simulator Technicians___...........- 3,940

I Roca: oda uckncncunauhodonscduageabccdshubuheasaeawsooua 306

SD SNUNID BRUis. wa cans nwicuncenteccetacthebedankhiiientesances 1,630

Teen Ee ce ee. ca ncmanenscnaeenne 13

Wn 0ig Gabba kclnkckedesnddckdncd Vacbdckanenheekekenexwnaebn 5,889

Section 2, Fourth, of the Railway Labor Act, gives employees

subject to its provisions “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 determine who shall be the the representative of the craft or

class for the purposes of this Act.”

Be a un =? La Ae

Ce ee

\ i

= oe

]

A-5

18 DETERMINATION OF CRAFT OR CLASS

Section 2, Ninth, requires the National Mediation Board to

investigate disputes which arise among a carrier’s employees

over representation, and to certify the duly authorized represen-

tatives of such employees. In determining the c:ioice of the ma-

jority of employees under this section, the Board is required to

Gesignate who may participate as eligible voters in the event

election is required.

The craft or class of Airline Mechanics is well defined, having

been determined during 1345 as a result of Board’s investigations

of representation disputes on a nuniber of airlines. The principa!

findings on this quest ion were issued in C2se R-1447. October 1,

1945, involving empioyees of American Airlines. Findings applica-

ble to other airlines were aiso issued by the board auring Ucvover

1945 and dealt with similar problems of craft or class. As thus

determined and reviewed in Case R-1706 on January 31, 1947,

the craft or class includes:

. Mechanics who perform maintenance work on aircraft, engine, radio or accessory

wan »ment.

B. Ground service personnel who perform work generally described as follows:

Washing and cleaning airplane, engine, and accessory parts in overhaul shops. fueling

of aircraft and ground equipment; maintenance of ground and ramp equipment;

maintenance o! buildings, hangars, and related equipment; cleaning and maintaining

the interior and exterior of aircraft; servicing and control of cabin service equipment;

air conditioning of aircratt; cleaning of airport hangars, buildings, hangar and ramp

equipment.

C. Plant Maintenance personnel—including employees who pertorm work consisting

of repairs, alterations, additivns to and maintenance of butidings, nangars. and tne

repair, maintenance and operation of related equipment including automati: equip-

ment.

In the years since 1945 this craft or class findings for Airline

Mechanics has not been seriously challenged. On the contrary,

throughout the industry this grouping of employees constitutes

the prevailing pattern for representation in collective bargaining

relationships between carriers and unions,

The main differences as to personnel included in this craft or

class, and the positions involved in the present dispute center

around Ground Service personnel in the determinations referred

to above and personnel in this case designated as Ramp Service

employees.

The work of Ramp Service employees on EAL is defined in

the current labor agreement between the carrier and IAM:

(J) RAMP-SERVICE: The work of Ramp-Service employees shall consist of non-

mechanical duties in connection with the operation and servicing of aircraft while on

the ground. These duties shall be the loading. unloading. packing and securing carg>

in inane, in accordance with Company procedure; the handiing of cargo between

hangars, shops, mail. a'r freight and express rooms or trucks, baggage rooms and field

ticket offices; the handling of loading steps. ground power units. baggage carts. landing

gear safety pins, wheel chocks and other ground handling equipment, fire extinguishing

uipment, fuel trucks and equipment. air conditioners, cargo truck, and the fueling,

oiling and ADI servicing of airplanes, not including the changing and ‘or adding of

engine oil in conjunction with maintenance interphase or phase checks, oil tank or

engine changes.

saan

A-6

SECTION I—AIRLINE EMPLOYEES 19

Employees in this classification may be used to clean airplanes and perform other

non-mechanica! duties in connection with ihe preparation ul aircraft for tight. How-

ever, at no time will this become a permanen: tui time assignment.

At the outset in considering differences between the parties

here involved as to occupations included in th: established craft

or class of Airline Mechanics, it should be noted that the terms

“Fleet Service,” “Ramp Service,’ and “Ground Service” em-

ployees are not precisely meaningful designations. What are re-

ferred to as Fleet Service employees on one airline may be called

Ground Service employees on another. On Eastern Air Lines

the Ground Service functions included in the craft or class of

Airline Mechanics are performed by so-called Ramp Service or

Fleet Service employees.

The current agreement between Eastern Air Lines and IAM

lists the various employee groups represented by IAM in Article

4 - Classifications of Employees; as follows:

Mechanical Employees

A. Inspectors

B. Lead Mechanics

C. Mechanics

D. Apprentice

E. Helper

Fleet Service Employees

I. Lead Ramp-Service Man

J. Ramp Service Employees

K. Lead Cleaner

L. Cleaners

Shop Laborers and Shop Janitresses

Lead Shop Laborer

Shop Laborers

Shop Janitresses

Lead Ground Communications and Flight Simulator

Technician

Ground Communications and Flight Simulator

Technicians

The description of the work of Ramp Servicemen shown above

includes the duties of loading, unloading, packing and securing

cargo in planes in accordance with company procedure; the

handling of cargo between hangers, shops, mail and express rooms

or trucks, baggage rooms and field ticket offices: handling load-

ing steps, baggage carts and cargo trucks.

Such work is generally recognized as that of “cargo handlers.”

who are included in the craft or class (Case R-1706 et. al.) of

Clerical, Office, Stores, Fleet and Passenger Service Employees,

as personnel who “load and unload baggage and cargo.”

The other duties assigned to Ramp Service Employees and

defined above in the IAM agreement consist of “non-mechanical

cd woz

A-7

20 DETERMINATION OF CRAFT OR CLASS

duties in connection with the operation and servicing of aircraft

on the ground.”

Such work has been found by the Board in its determinations

in Cases R-1447 and R-17U6, quoted above, as being “Ground

Service” work, non-mechanical in nature but a part of the work

performed by airline employees in the generally recognized craft

or class of “Airline Mechanics.”

On EAL the foliowing twelve functions ali of which fall natur-

ally in the work classified as “Ground Service,” may be per-

formed either by Ramp Service employees or Mechanics de-

pending on circumstances.‘

Glycoling

Placing and Removing Chocks

Sumping Tanks

Placing and Removing Gear Pins

Cleaning Windshields

Fueling Aircraft Engines with Oil

Cleaning Ramps

Fire Watch when Starting Engines

Cockpit Signalling when Starting Engines and Moving Air-

craft

Attaching and Removing of Power Pull

Fueling Ground Equipment

Preventive Maintenance on Motorized Ground Equipment

(Changing Oil, Checking Water, etc.)

The application of the IBT for an election among the craft or

class of “Mechaniis and Related Employees” runs counter to

the well established craft or class of Airline Mechanics as deter-

mined by the Board's findings in Case R-1447. Although the IBT

includes most of the generally recognized classitications in the

craft or class appiied for, it exciudes all Ramp Service employees

except so-called Fuelers. There is no separate job title of Fueler

on EAL. Such workers are classified as Ramp Service employees.

The IBT contends for some 180 employees who perform fueling

functions a preponderance of their time, The record shows there

are some 637 * employees qualinied to perform the fueling func-

tion and who may do such work on a given day and may also

alternately, do other ramp service work such as handling the

battery carts, control blocks, landing gear safety pins, wheel

chocks, or fire extinguishing equipment. The record, however,

is barren of any in*ormation on how much of the time of these

637 is spent in ‘he rueling function, or in other types of ground

service functions just mentioned.

The IBT hes not advanced any persuasive reasons why the

particular group of 180 Ramp Service employees (fuelers) should

* Board Exhibit No. 4.

* Board Exhibit No. 2°.

A-8

SECTION I—AIRLINE EMPLOYEES 21

be separated from other Ramp Service employees in considering

those eligible to vote in the craft or class of Airline Mechanics,

and leave out all others performing ground service functions.

Cleaning and janitorial service in and arouna shops, hangars,

and ramp areas has long been considered as work included with-

in the craft or class of Airline Mechanics, and this is recognized

by IBT in the listing of classifications covered by their application.

On the basis of the entire record before it, the Board finds no

reason to depart from the well established craft or class of ‘‘Air-

line Mechanics.” The Board tinds further, on the basis of investi-

gation heretofore conducted, that a representation dispute ex-

ists among the craft or class of Airline Mechanics of Eastern

Air Lines, and that such dispute should be resolved by a ballot

box election using a list of eiigible voters including employees in

that craft or class as heretofore determined in Cases R-1447

and R-1706 et al, and as reviewed herein. The list of eligible

voters shall include all Fleet Service Employees who perform

ground service and cleaning functions a preponderance of their

time, and shall exclude Fleet Service employees performing pre-

ponderantly as cargo handlers, as above described. Such employees

are a part of another craft or class, not here in dispute.

The record before the Board indicates that EAL no longer has

employees known as Commissary Clerks, for whom IAM was

recognized as representative by EAL in 1944.

The second group of employees which the IBT seeks to vote

separately are Stock Clerks. They argue that the community of

interest, duties, functions, and nature of the work of Stock and

Stores employees differ sufficiently from that of Mechanics on

the one hand and Office, Clerical and Passenger Service employees,

on the other as to support their position that Stock Clerks should

be recognized and designated as a separate craft or class.

The IAM reviewed previous determinations respecting Stock

Clerks and affirmed its long standing opposition to the inciusion

of Stock Clerks in the Clerical and Office craft or class. By their

own statements on the record before Emergency Board 122,

Stock Clerks on EAL are a separate craft or class.

In 1945, Case R-1447, and in 1947, Case R-1706, Stock Clerks

were determined to be a part of the Clerical and Office craft or

class. This was in recognition of the clerical aspects of the job

and also the fact that the duties of Stock Clerks are not mech-

anical in nature. At that time there was considerable diversity

on the various airlines in the manner by which Stock Clerks

were grouped for collective bargaining. In the vears since those

Determinations, this diversity has continued. Moreover, in most

cases this trend is contrary to the early determinations. At the

present time there is considerable variance in the Stock Clerks

collective bargaining pattern. While on some lines they are in-

cluded with the clerical craft or class, on many more they are

— — — — — o 2 - - Han, te je “f =

— — Har

fs aS a a aa a a a

A-9

22 DETERMINATION OF CRAFT OR CLASS

either a separate group or bargain together with the Mechanics.

On EAL, the IAM was voluitarily recognized to represent Stock

Clerks by a separate action on December 30, 1939.

In the vast majority of representation elections for Stock and

Stores personnei conducted by the National Mediation Board they

have been voted as a separate group.’ In view of the lack of

consistent pattern in the collective bargaining reiationships for

Stock Clerks, it would appear that there is no strong basis to

disturb a separate grouping for these employees in this case.

Accordingly, a representation election will be conducted among

Stock Clerks.

The third group contended for by the IBT, designated as Print

Shop Employees, is a group of approximately 13 in number. This

group has been represented by the IAM since 1950 under a

certification based on a check of authorizations. This is a pro-

cedure sometimes used by the Board in determining the desires

of employees for representation in situations where employees

secure representation for the first time and there is no contesting

organization.

According to information supplied by the carrier these are not

Print Shop employees in the general commercial sense but in-

stead they operate the usual kind of duplicating machines used in

large offices. None of the employees in this group was trained in

the printers’ craft but instead they were transferred or promoted

to the Print Shop from other jobs on the airline such as Cleaners

and Mail Room. Job titles in the Print Shop include Pressmen and

Bindery Clerks of various grades. The job content of these em-

ployees and their occupational titles suggest they might reason-

ably be considered a part of the Clerical and Office craft or class.

However, no contest for representation of that craft or class is

at issue here. Accordingly, it appears that Print Shop empioyees

should be considered for a separate group for purposes of a

representation election which is hereby authorized as was done

in 1950 (R-2247) when these employees first secured represen-

tation by the IAM.

CONCLUSION

On the basis of the entire record the Board concludes that

File C—3355 is hereby cocketed as Case No. R-3639 for formal

investigation under the provisions of Section 2, Ninth, of the

Railway Labor Act. In such investigation the groupings of em-

ployees for determining representation should be in accordance

with the findings discussed herein and summarized under the

following headings:

1. Airline Mechanics

2. Stock Clerks

3. Print Shop Employees

*IBT Exhibit No. 7.

ewe SRS TE ae

A-10

SECTION I—AIRLiINE EMPLOYEES 23

A mediator will be assigned to continue investigation of this

case in accordance with the findings and determinations set forth

herein.

Se ATER aera Sok? eS

A-1ll

NATIONAL MEDIATION BOARD

WASHINGTON

i2° 20 7364 ipo

In the Matter of

HEPRESSNTATION OF EMPLOYEES

CASE NO. R-2639

“+ 8 oe oe oe oe

CERTIFICATION

CASTER AIR LINES, INC.

April 15, 1964

(1) Airline Mechanics

(2) Stock Clerks

—

/ - oS of Ji ee

(3) Print Shop Employees & 4 Yn 0 F-

7 ,

The services of the National Mediation Beard were invoked by the

international Brotherhood of Tearsters, Airline Division, to investigate and

Geterzine who may represent for the purposes of the Railway Labor Act, es provided

by Section 2, Ninth, thereof, the crafts or classes of (1) Airline Mechanics

(2) Steck Clerks, and-(3) Print Shop Exployees, employees of Eastern Air Lines, Inc.

At the time of application these emol ees were represented oy tre

International Association of Machinists, AFL-CIO.

The case was assigned to Mediator William H. Pierce, and subsecuently

t2 ediator Werren S. Lane for investigation.

FINDINGS

During the course of the investigation issues were raised es to who

should participate in this dispute. A public hearing was held on the questions

raised by those issues and, on December 5, 1963, findings upon investigation were

issued by the Board outlining the grouping of employees for determining cf

representation in this case.

March 11, 1964, the International Brotherhood of Teamsters amended their

application to exclude the craft or class of Airline Mechanics. A secret balict

election was conducted in the remaining crafts or classes.

April 6, 1964, prior to the count of ballots in this case the Inter.

natisnal Brotherhood of Tearsters withdrew its application to investigate a repre-

sentation dispute among Print Shop Exployees.

Jolloving 15 the resuit of the election ancog Stock Clerks as rerorted

oy Sha :eddlator and astested by representatives of the contesting organizations

-) 2022 33 observers.

1 URRED COPY

A-12

- Case i'o. 2-2539

wibec of Employees voting:

International Brothernood of International Musber of

Association “nplovees

Tearcsters, Chaurfveurs, weree

Cther Eligto.s

housemen ¢. Helpers of America of }'achinists

49 26k 1 340

Stoce Clarks

The National Mediation Beard further finds that the carrier and ercployees

in this case are, respectively, a carrier and erployees within the reaning of the

Votlwmy Labor Act, as amended; that this Board had jurisdiction over the disvute

involved herein; and that the interested parties were given due notice of

Lavestigatian.

CERTIFICATION

Therefore, the Natiorml Mediation Board certifies that the International

\asoctation of Machinists, AFL=CIO has been duly designated and authorized to

continue to represent, for the purposes of the iiatimy labor Act, the craft or

Casas of Stock Clerks, employees .f Lastern Air Lines, Lic.

by order of the HATIOCUAL MEDIATIO/ DOAAD,

E. C. Thompson

Peecutive Secretary

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A LMR A MAE GP LIEN AE 5 UME NONE WLR RAPA TITRE FONE PI ie A

A-13

In the Matter of the Application of: Arrncrarr Mecuancis FRa-

TERNAL Association, ALLEGING REPRESENTATION Disputes Pur-

SUANT TO SEcTION 2, NINTH OF THE Ratpway Lapor Act, INvoty-

InG Emptoyers oF Eastern Air Lines, Inc., ano Unirep AIR

Lines, Inc., AnD Seapoarpo Wortp Arrives, Inc., By a Com-

MITTEE APPOINTED BY THE NATIONAL MEDIAT:ON BoarpD

Case Nos. R-3712 R-3713 R-3714—Decided July 14, 1965

On July 13, 1964 the Aircraft Mechanics Fraternal Association,

pursuant to Section 2, Ninth of the Railway Labor Act, filed a

request for an investigation of a representation dispute involving

the following classifications of employees on Eastern Air Lines,

Inc. which the AMFA maintains should constitute one craft or

class it terms “Aircraft Mechanics:”

The craft or class of Aircraft Mechanics and Radio Electric Mechanics (Aircraft),

including ny ae Lead Mechanies (Line and shops), Mechanics (Line and Shops),

Apprentice Mechanics, Lead Flight Simulator and Flight Simulator Employees.)

This case was docketed as R-3712.

On September 22, 1964 the AMFA filed request for an investi-

gation of a representation dispute involving the following classi-

fication of employees on United Air Lines, Inc.:

The craft or class of Aircraft Mechanics (includes Lead Mechanic, Aircraft Inspector

Lead Flight Simulator Technician, Flight Sinulator Technician, Shop Inspector,

Mechanic, Apprentice Mechanic) Radio and Electric Mechanie (Aircraft).

This case docketed as R-3713.

Subsequently, the AMFA made a similar application, docketed

as case No, R-3714, with respect to the following employees of

Seaboard World Airlines, Inc.:

The craft or class of Aircraft Mechanics (includes Lead Mechanics, Mechanies,

Senior Mechanics, Inspectors, Mechanic Helpers, Radio and Electric Mechanics—

Line and Shop).

In its post-hearing brief the AMFA finally stated thet:

The employees who belong in the craft ur class which AMFA seeks to represent are

those ... who “are trained to ind possessed of sufficient skill to do and who in fast do

mechanica! work on the aircrait and its Components and who are personaily and directly

responsible for the airworthy condition of the aircrart ana its components.”

The employees in the classification claimed by the AMFA em-

ployed on Eastern Air Lines and United Air Lines presently are

Barre “getopaplye td

A-14

SECTION I—AIRL’NE EMPLOYEES 55

represented by the International Association of Machinists and on

Seaboard World Airlines by the Transport Workers Union of

America, They are part of the present craft or class of “Airline

Mechanics and Related Employees” tirst established in Case No.

R-1447 (American Airlines) decided October 1, 1945.

In its preliminary investigation of these applications the Board

found that “The Aircraft Mechanics Fraternal Association con-

tends that the craft or class grouping as presently established in

the airline industry by the Board's decision in Case No. R-1447,

issued October 1945, is inappropriate;” and that “the incumbent

organizations, on the other hand, contend that the emplovees

covered by these applications constitute only a part of the craft

or class of airline mechanic as determined by the National Medi-

ation Board in Case No. R-1447 which remains appropriate.”

On November 4, 1964 the National Mediation Board issued an

order pursuant to Section 2, Ninth of the Railway Labor Act

which provides:

Ninth. If any dispute shall arise among a carrier’s employees as to who are the re-

presentatives of such emplovees designated and authorized in accordance wit! the

uirements of this Act, it shall be the duty of the Mediation Board, upon request of

either party to the dispute, to investigate such dispute and tu certuly to both parties,

in writing, within thirty davs after the receipt of the invocation of its services. the

name or names of the individuals or organizanions 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 certification the carrier shali treat with the representa-

tive so certified as the representative of the craft or class for the purposes of Chis Act.

In such an investigation. the Mediation Board shall be authorized to take a secret

ballot of the empiovees involved, or tu utilize any other appropriate method of as-

certaining (he names of their duly des:gaated and authorized representatives in such

manner as shail insure the choice of represeniatives by the emplovees without inter-

ference, influence, or coercion exercised bv 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, or may appoint a committee of

three neutral persons who alter hearing shall within ten days designate the empwvees

who may participate in the election. The Board shail have access to and have power to

make copies of the books and records of the carriers and to obtain and utilize such in-

formation as may be deemed necessary by it to carry out the purposes and provisions

of this paragraph.”

Pursuant to the Board’s order the undersigned Committee of

three neutral persons was appointed with the responsibility

. +. to conduct a public hearing on these cases to afford all interested parties an op-

portunity to present pertinent data, evidence and argument in support of their respee-

tive position, and, therefore, . .. designate the employees who may particiate in any

elections which may be ordered by the National Mediation Board pursuant to its rules

and regulations.*

Thereafter, Eastern Air Lines, Inc.: the International Brother-

hood of Teamsters; the Air Line Employees Association, Inter-

national; Pan American World Airways, Inc.; United Air Lines,

Inc.; the Air Line Dispatchers Association; the Air Transport

&. National Mediation Board Order, Case Nos. R-$712, R-$718, R-$714, November 4, 1964.

; A-15

56 DETERMINATION OF CRAFT OR CLASS

Association of America; Seaboard World Airlines, Inc.; the Trans-

port Workers Union of America; and the Iaternational Associa-

tion of Machinists notied the board of their interest in these

disputes and of their desire to be heard and to participate in any

hearings which might be held.

The Neutral Committes held public hearings in New York City

on December 4, 1964, January 7, 8, 13, 14, and 15, March 10, 11,

12, and June 7, 1965. All parties in interest were given an Op-

portunity to present evidence in the form of exhibits and oral or

written testimony, to cross-examine witnesses, and to present

argument in the form of briefs. The AMFA submitted its brief

on June 18, 1965 and Eastern Air Lines, United Air Lines, the

International Association of Machinists, Seaboard World Airlines,

the Transport Workers Union, and the Air Transport Association

submitted their briefs on July 2, 1965. After their receipt by the

Committee the record was declared closed as of July 6, 1965.

THE ISSUES

The basic issue before the Committee is to determine whether,

for election purposes, the craft or class of “Aircratt Mechanic”

sought by the AMFA on Eastern Air Lines, United Air Lines,

and Seaboard World Airline is a proper craft or class tor pur-

poses of representation as contemplated by the Railway Labor

Act. Further, it is the task of the Committee to determine which

classification of employees in what is now commonly known as

the craft or class of “Airline Mechanics and Related Employees”

should be entitled to vote in any election which the Board may

see fit to order under its rules and regulations.

FINDINGS OF FACT

On the basis of the entire record we find:

1. The employees involved in this dispute are “‘employees”’ with-

in the meaning of Section 1, Fifth and Section 2, Ninth of the

Railway Labor <Act.

2. The carriers—Eastern Air Lines, United Air Lines, and

Seaboard World Airlines—are carriers as defined in Section 201,

Title II and Section 2, Ninth of the Railway Labor Act.

3. The International Association of Machinists, herein re-

ferred to as “IAM,” is a labor organization and representative

as defined in Section 1, Sixth and Section 2, Ninth of the Rail-

way Labor Act.

4. The Transport Workers Union of America, herein referred

to as “TWU,” is a labor organization and representative as de-

fined in Section 1, Sixth and Section 2, Ninth of the Railway

Labor Act.

5. The Aircraft Mechanics Fraternal Association, herein re-

ferred to as “AMFA,” is a labor organization as defined in Sec-

tion 1, Sixth and Section 2, Ninth of the Railway Labor Act.

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A-16

SECTION I—AIRLINE EMPLOYEES 57

6. The National Mediation Board on October 1, 1945 issued its

decision in Case No. R-1447. This decision had the effect of

establishing the cratt or class of what has come to be known in

the industry as “Airline Mechanics and Related Employees.” The

decision in R-1447 is the basic determination in the airline indus-

try today with respect to the proper cratt or class fcr represen-

tation purposes among mechanics and related personrel.

7. Through the years the National Mediation Board in its

determination of craft or class matters has consistently given

great weight to the historical relationships established by em-

ployees and the carriers.

8. From its early days the National Mediation Board has re-

fused to create arbitrary craft or class groupings, and impose

them upon the employees and the carriers. Rather, it has sought,

in so far as possible, to determine the proper craft or class on

the basis of the patterns of organizations and collective bar-

gaining relationships which had developed. Likewise, the Board

has generally declined to divide and carve up existing craft or

class groupings and thus to multiply subcrafts and subclasses.

9. The National Mediation Board has on numerous occasions

since 1945 reaffirmed its basic-craft or class determinations in

R-1447 with the result that such a craft or class is a fact of life

on ten of the nation’s domestic trunk carriers and on the United

States flag international carriers. (The mechanical employees are

unorganized on Deita Airlines, the elevenih domestic trunk air

carrier. )

10. The petitioner involved herein, the AMFA, takes the posi-

tion that the decision in R-1447 is outdated and that it no

longer provides an adequate basis for establishing the craft or

class within which mechanics who work on the aircraft or its

components should choose a representative.

11. The AMFA states that under current conditions represen-

tation should be selected for a craft or class which it calls Air-

craft Mechanics. The AMFA proposes that craft or class be

comprised of the following classifications on each of the three

carriers involved in this proceeding:

EASTERN AIR LINES

a. Aircraft Inspectors

b. Aircraft Mechanics, line and shop (not including Auto-

motive or Building Maintenance Mechanics), licensed and

unlicensed

c. Apprentice Mechanics

d. Flight Simulater Technicians

e. Leads in these classifications

UNITED AIR LINES

a. Aircraft Inspectors

b. Shop {nspectors

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A-17

58 DETERMINATION OF CRAFT OR CLASS

c. Line, hanger and shop Aircraft Mechanics (not including

Automotive or Building Maintenai.ce Mechanics). licensed

and unlicensed

d. Apprentice Mechanics

e. Flight Simulator Technicians

f. Leads in these classifications

SEABOARD WORLD AIRLINES

a. Aircraft Inspectors

b. Aircraft Mechanics and Senior Mechanics, line and shop

(not including Automotive and Building Maintenance Mechan-

ics) licensed and unlicensed

c. Off-route Station Mechanics

d. Mechanic Helpers, line and shop

e. Leads in these classifications.

12. It appears from the AMFA applications and from the evi-

dence that if the craft or class of Aircraft Mechanic were

established, the following classifications presently covered by the

craft or class of Airline Mechanics and related Employees or

other crafts or classes would be excluded:

EASTERN AIR LINES

. Building and Maintenance Mechanics

. Automotive Mechanics

Ground Communications Technicians

. Cleaners

Shop Laborers

Shop Janitresses

. Print Shop employees

Ramp-Service employees

. Stock Clerks

. Leads and Seniors in these classifications

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UNITED AIR LINES

. Ground equipment employees

Ramp-Servicemen

Flight Kitchen employees

. Utility employees

. Fuelers

. Seamstresses

. Plant Maintenance employees

. Stores employees

. Security Guards

Crew Car Drivers

Ground Communications Technicians

- Mechanic Helpers

. Leads in the above classifications

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A-18

SECTION I—AIRLINE EMPLOYEES 59

SEABOARD WORLD AIRLINES

a. Cleaners

b. Cabin Servicemen

c. Stock Clerks

d. Cargo Servicemen

e. Leads in the above classifications.

13. There is presently no clasification of “Aircraft Mechanic”

on any of the subject airlines or in the air transport industry.

14. The record shows that on each of the involved airlines the

groupings of emplovees proposed by the AMFA constitute a

majority in the existing Airline Mechanics and Related Employees

craft or class.

15. The parties opposed to the petition, namely Eastern, United,

Seaboard World, the ATA, the IAM, and the TWU make the

following contentions:

a. The grouping of employees in a craft or class of Aircraft

Mechanics proposed by the AMFA does not conform to the

concept of craft or class embodied in the Railway Labor Act.

Neither does it meet the standards long recognized in craft

or class determination made by the National Mediation Board.

b. The record does not support the contention of the AMFA

that technological changes in the airiine industry have so

changed the duties and functions of airline mechanics as

to justify a repudation of the principles of R-1447 and the

creation of a new grouping Of ciassiiications for representa-

tion purposes. The carriers contend that the fundemental

skills of the classifications involved have not changed signiti-

cantly since R-1447 was decided in 1945. The organizations,

without subscribing to that contention, join the carriers in

maintaining that skill levels alone have not been deemed

basic in craft or class determinations.

c. The proposed grouping of employees for representation pur-

poses is unnecessary to protect the interests of these em-

ployees. They are not a submerged minority in a sea of un-

skilled classifications.

DISCUSSION

Section 2, Fourth of the Railway Act accords “The majority

of any craft or class of employees the right to determine who

shall be the representative of the craft or class....” The Act does

not define the term “craft or class;” in the opinion of the drafters

of the 1934 amendments those words had a meaning long estab-

lished in labor parlance that was not likely to produce disputes

and if they did, these could be resolved by the machinery erected

in Section 2, Ninth.

The National Mediation Board, however, soon was constrained

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A-19

| 60 DETERMINATION OF CRAFT OR CLASS

to give more precise content to this general phrase. In its First

annual report the Board stated:

In making rules to govern elections and in designating the employees who may parti-

cipate in such elections, the Board in most cases has been zonfronted with disuptes as

to whether the employees involved constitute one craft or class, or whether they are

several distinct crafts for eacn of which separate represe: Latives are to be chosen by

separate majorities. So far us possible the Huard has followed the past practice of the

employees in grouping themseives for representation purposes and of the carriers in

making agreements with such representatives.

This approach emerged from a background of a long history

of collective bargaining in the railroad industry predating the

Act, during the course of which employees had voluntarily group-

ed themselves for representation purposes and carriers had made

agreements with the representatives of these groups. Despite the

existence of a history of representation on the railroads, however,

the Board was confronted with requests from particular clas-

sifications for the establishment of separate crafts or classes.

It soon found it necessary to stem a tendency toward the frag-

mentation of previously established groupings. In its First Annual

Report the Board stated that it:

“*, . . is impressed that the tendency to divide and further subdivide established and

recognized crafts and classes of employees has arleady gone too far, and threatens to

defeat the main purposes of the Railway Labor Act, namely the making and maintain-

ing of agreements ... and the avoidance of iabor uisputes.

“The Board is inclined, therefore, during the coming year to avoid unnecessary

multiplication of subcrafts and subelasses, and to maintain, so far as possible, the

customary grouping of employees into crafts and classes as it has been established by

accepted practice over a period of years in the making of wage and rule agreements.”

This policy of primary reliance on “the customary groupings of

the employees into crafts and classes as it has been established

by accepted practice over a period of years...” has remained the

policy of the Board since its establishment.”.°

The Board has also applied the following principles in making

craft or class determinations: extent and nature of the collective

bargaining arrangements developed by the parties; duties, re-

sponsibilities, skill. training, and experience of the employees

involved and the nature of their work; usual practices of pro-

motion, demotion and seniority observed or developed for the

employees concerned; nature and extent of community of in-

terest among the employees.

In R-1447 the Board restated its reliance on the principle of

historical groupings as its chief guide in craft or class deter-

minations. It stated that:

“...@ ‘craft or clsss’ in the air transport industry means a well-knit and cohesive

oceupaticnal group which has been developed over a veriod of years in the course of

b. Firet Annual Rep: ‘ofthe Vational “Jediation Poard, p.21

- Chicago & cab vioue: On 1 von ae, 3 (1937): Seaboard Air Line Ry. Co..1 NMB

eterminations ( CV; Chicago N.S. & N.R. Co., 1 NMR Decerminations 101 (1953); and Chicago,

M., St. P.& P. Ry. Co.,3 NM B Determination: 120 (1955). ”

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A-20

SECTION I—AIRLINE EMPLOYEES 61

general voluntary association of the employees in collective bargaining units... .

Accordingly it becumes necessary lu exatnine the occupauionul groupings as Lbey have

emerged over a period of years in the uirline industry, and the determine whether such

groupings are umilurm tu Lhe extent tat Luey might now be lermed ‘cralts or Classes’

under the provisions of the Kuuway Labor Act.”

In the then young air transport industry the Board found no

clear-cut preexisting pattern of groupings of classifications for

representation and coliective bargaining purposes, Hence it turned

to an examination of the history of organization among airline

employees in its search for natural and logical groupings of em-

ployees for representaion purposes.

Here it found that “practically without exception airline mech-

anics were the first occupationa! craft or class to be organized

and covered by agreements with the air carriers,” but that in

succeeding years other groups, including plant maintenance

force, fleet service personnel and ground service personnel secured

representation and coverage by agreements. In some cases this

coverage was under agreements with mechanics; in others they

were covered by separate agreements,

The Board also observed that on the airlines (in contrast to the

railroads) “no hard and fast jurisdicational divisions have de-

veloped among airline mechanics,” and that the airline mechanic

is “an all-around mechanic capable of performing any kind of

maintenance work required on an aircraft, engine, or accessory

equipment.” Furthermore, the Board found that such employees

as aircraft cleaners, parts washers, plant maintenance mech-

anics and the service groups known variously as “ground service,”

“fleet service,” or “utility” were closely associated with the air-

lines performing specialized tasks which on the smaller carriers

was “in the main performed by the mechanical forces.” On the

basis of the trends and tendencies observed by the Board in the

history of organization among airline employees, it found that:

“The preponderance of evidence seems to indicate that employees of airlines who

perform work such as is described above belong naturally with the mechanical or

Maintenance group, and should be included, with the airline mechanics in one craft or

class for representation purposes, since jurisdictional craft lines are historicaily absent

among the maintenance of equipment employees of the air carriers.’

In summary, the National Mediation Beard in R-1447 con-

sidered and specifically rejected the type of aiternative presented

in the AMFA petition now before us of setting up mechanics

who work on the airplane or its components, as distinct from

those who work on plant or ground equipment maintenance or

from those who perform ihe semi-skilled or unskilled tasks

related thereto, as a separate craft. It specifically rejected a

narrow craft concept es unsuited to the airlines industry and as

foreign to the historical deveiopment of its job structure and its

pattern of self-organization. Thus as early as September 1945 in

Case No. R-1368, the Board rejected a plea by the IBEW that

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A -21

62 DETERMINATION OF CRAFT OR CLASS

mechanic employees of American Airlines be deemed a separate

craft or class and found them to be part of the craft or class

of airline mechanics.

Instead of narrow craft units, the Board in R-1447 found the

proper unit to be the class of “maintenance of equipment em-

ployees,”” composed of the airline mechanic classification, the

ground service classification, the plant riaintenance personnel

classification and the fleet service personnel classification. Each

of these classifications in turn consisted of a variety of occupations

or sub-specialists varying in scope from airline to airline, The

Board since R-1447 has made craft or class determinations in the

airline industry on this basis with certain modifications not here

relevant,

The AMFA in the petition before us asks that this basic pat-

tern of craft or class determinations be scrapped. It contends that

the craft or class grouping established in the airline industry by

R-1447 is outdated and no longer tills the public need. It claims

that the expansion of the industry and the technological changes

that have taken place in it have created a need for a new approach

to collective bargaining representation. It asks for the establish-

ment of a craft or class consisting of those who:

are trained to and possessed of sufficient skill to do and who in fact do mechanical

work on the aircraft and its components and who are personally and directly respon-

sible for the airworthy condition of the aireraft and its components.

We find that there is no justification for granting the AMFA

petition.

Our reasons are set forth below:

1. There is xo histurical basis for the grouping the AMFA seeks.

As pointed out above, a statutory “craft or class of employees”

is that grouping of emplovees who have historically been as-

sociated with one another in making and administering agree-

ments with carriers. The Board has consistently held that where

there is an established, customary, or historical craft or class

it is without power to subdivide it or create new ones.4

At the present time in the airlines industry there is a historical

grouping of employees for representation purposes. It grew out

of the pattern of self-organization and collective bargaining in

the industry that the Board found to exist at the time of R-1447.

That grouping, established by R-1447, has constituted the his-

torical framework for collective bargaining for mechanics and

related personnel in the air transport industry since that date.

The AMFA now asks that a portion of the classification of this

grouping be carved out and he deemed to constitute a distinct

craft or class, The grouping it seeks has never been viable in the

industry. Functions performed by mechanics on the aircraft

d. Ibid,

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A-22

SECTION I—AIRLINE EMPLOYEES 63

have always been regarded as closely related to those performed

by mechanics on ground equipment or in plant maintenance.

The basic nature of the skills required, the aptitudes for the

work, the previous educationai levels required, the periods of

training or apprenticeship ure about the same. There may or

may not be differences in the skill requirements of mechanics

who work on aircraft and those who work on ground equipment

or in plant maintenance. But in any event such differences would

not in and of themselves justify the creation of a separate craft

or class for representation purposes.

The related employees in the present craft or class, while of

different skill levels from the mechanics, nonetheless are closely

related to them in that they are engaged in a common tunction—

the maintenance function on an airline of which the mainten-

ance of airplanes and the maintenance of mobile ground equip-

ment or of fixed facilities are all integral parts.

The grouping the AMFA now seeks to split has become, over

a period of twenty years, the established, recognized or custom-

ary craft or class that constitutes the structure for representa-

tion of mechanical and related empluyees in the industry, The

Board’s policy, reflecting the intent of the Railway Labor Act,

is to honor such customary groupings in class or craft deter-

minations absent a showing of markedly changed conditions or

other good cause to justify alteration of the established pat-

terns of bargaining.

2. The changes that have occured in the industry since 1945,

have not produced significant changes in duties and functions

so as to justify a change in the existing groupings.

It is not to be inferred that once a craft or class determination

is made it is thereafter immutable and sacrosanct. The Railway

Labor Act does not function in a static industry nor in an un-

changing economy. The airlines industry is constantly under-

going changes in technology or in the organization of work.

Changed conditions could conceivably render obsolete an existing

craft or class grouping for purposes of collective bargaining.

But the changed conditions, in order to constitute justification

for a revision in a craft or class grouping would have to result

in changed duties or functions which so alter the nature of the

classifications as to make their inclusion in the existing grouping

no longer appropriate.

The AMFA has failed to produce credible evidence of a change

in the functions and duties of the classifications it seeks to have

Segregated into a separate craft or class that would justify

such a split-off. Its references to the increased speed and changed

design of modern aircraft and engines point, at most, to changes

in the skill requirements of the job of mechanic and even this

point was contested by the carrier representatives. In any case,

we need not pass on it for the existing grouping of classi-

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A-23

64 DETERMINATION OF CRAFT OR CLASS

fications into the current craft or class of Airline Mechanics

and Related Employees was not made on the basis of an identity

of skill requirements. Changes in the skill requirements of the

classifications in the present grouping, if they have in fact

occured, may contitute a basis for negotiation of wage differen-

tials in collective bargaining but they do not constitute justi-

fication for the creation of a separate craft or class.

8. The AMFA petition would place into separate bargaining

units employees who have long had a community of interest.

The AMFA suggested that the employees it seeks to represent

have a community of interest among themselves, but not with

other employees in the present craft or class, It has emphasized

the matters of “common skill and common responsibility” and

“of speaking the same language occupationally.” However, the

community of interest concept which must concern us here goes

to the considerations which affect all members of the unit, and

not just those performing particular functions within the mech-

anic classification. Mechanics engaged in various functions, such

as instrument and radio work, painting, and other line and shop

activities, do not necessarily speak the same language occupa-

tionally, nor are they necessarly bound together by a common

skill and responsibility.

The significant community of interest relates to the fact that

all members of the present craft or class are engaged in per-

forming the same gencra! function—maintenance of the air-

line, whether it be maintenance of aircraft, of buildings, or of

equipment. This interest is tied together by seniority rights in

bumping in the case of employment cutbacks, in bidding for

different jobs at the same occupational level, and in the filling

of promotional opportunities. Spliting the unit could result in

the elimination of these contractual rights.

It goes without saying that both groups have similar interests

under particular contracts in such matters as overtime rates,

paid holidays, vacations, sick leave, shift starting times, rotating

versus fixed shifts, and insurance programs. This long estab-

lished community of interest could be seriously disturbed if

there were different unions and different contracts. Instability

of labor relations rather than the stable situation which the

Act seeks to estakiish could result. On this point the Board said

as early as 1942:

“The Board views with some concern the tendency to divide established and

well recognized crafts or classes... . Once the bars are down. there is no logical

stopping place and such a course would ultimately defeat real collective bargaining

as contemplated by the law. On the other hand. stabilization of weil recognized

crafts or classes as they have been generally established on carriers under the act

by the employces and management after long years of negotiations will... tend to

stabilize collective bargaining relationships.’’*

*, 8th Annual Kevort of the National Mediation Board. (1042), p. 6.

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A-24

SECTION I—AIRLINE EMPLOYEES 65

4. The AMF A petition if granted would frustrate rather than

effectuate the busic purposes of the Railway Labor Act, which

imposes the vbliyatiton tu make und maintain agreements, by

producing jurisdictional disputes for which no remedial mech-

anism is available.

One of the basic purposes of the Railway Labor Acct is to stabi-

lize employee-empluyer relations through collective bargaining.

The achievement of this purpose requires a collective bargain-

ing arrangement which will result in minimiziag or settling

disputes which may arise.

A serious possible conseyuence of granting the AMFA petition

is the likely increase in jurisdictional disputes. While the AMFA

has expressed the view that this danger is exaggerated by the

opponants of the petition, it has nevertheless taken positions,

expressed by its spokesmen in this proceeding, regarding work

assignments and job classifications which could resuit in numer-

ous jurisdictional disputes.

While the Railway Labor Act provides for a variety of dispute-

settling procedures, it does not establish any arrangement for

the settlement of jurisdictional disputes where two or more

unions are involved as representatives of different craft or class

units. The AMF A’s contention to the contrary is ill-informed

and not in accordance with long experience under the Act.

It is common knowledge that work assignment disputes arise

between individuals and between groups. One of the virtues of

the existing craft or class is that it allows considerable flexi-

bility in making work assignments. Furthcrmore, when disputes

arise concerning work assignments they can be resolved by the

dispute-settlement provisicns of the cclieccive bargaining agree-

ment. By the terms of Title II of the Railway Labor Act, all

such agreements must provide for the establishment and main-

tenance of System Boards of Adjustment.

Disputes between representatives of different crafts or classes

are not covered by such procedures. The jurisdictional diffi-

culties which may arise vetween different crafts and classes are

well illustrated by the history of the so-called “third party”

issue before the divisions of the National Railroad Adjustment

Board. Over a period of years this issue has frustrated the

settlement of dispute over work assignment and work juris-

diction between different bargaining agents on the railroads.

It is obvious that if the AMFA petition were granted, such

dangers would be greatly magnified to the disadvantayve of the

employees, the carriers, and the public.

Having found that the AMFA position as to craft or class

cannot be sustained, we now address ourselves to the matter of

determining which classifications of employees in the craft or

class of Airline Mechanics and Related Empioyees should be en-

titled to vote in any election which the Board may see fit to order

cpeboheheneseneteceegs S-Sa8 8

Sea Saad vo BR Se” Moe Se* a 0? ee et a a ae ae ee, Se 5

Pett EI mie eee

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ESSN RAA EAR SELD RAPE F

A-25

66 DETERMINATION OF CRAFT OR CLASS

pursuant to its rules and regulations, The IAM and the TWU

(supported by Eastern Air Lines tor Ramp-Service employees

and Stock Clerks, and by Seaboard Worid Airlines for Cargo

Service personnel) have aiso requested that the Mechanics and

Related Employees craft or class as now established be expanded

to include employees performing fleet service and stockroom

duties.

The state of the record does not permit a determination

whether stockroom employees should be added to the craft or

class of Mechanics and Related Employees at Eastern and United,

or whether print shop employees should be added to that craft

or class at Eastern, or whether fleet service should be added to

that craft or class on United Air Lines. Therefore, any requests to

expand the existing craft or class to include any of the above

classifications will be dismissed without prejudice to any future

proceedings.

In the particular circumstances of the cases before us an en-

largement of the craft or class of Mechanics and related Em-

ployees is indicated for Eastern Air Lines and for Seaboard

World Airlines as to include all Ramp-Service employees employed

by Eastern and Ramp Service personnel at Seaboard World.

The question of whether elections should be held following these

proceedings is, under the law, a matter for the Board to decide.

However, we note for the Board’s consideration the IAM con-

tention that ordering an election would not be appropriate in the

event the AMFA’s position as to craft or class is rejected, The

1AM argues that no election should be conducted at Eastern or

United inasmuch as the AMFA cannot, under its own constitution

and by-laws, provide representation for the entire craft or class of

Airline Mechanics and Reiated Employees, The Committee notes

in passing that the record is clear that up to now the AMFA has

explicitly stated that it does not seek to represent employees in

a unit broader than the one it has urged in these proceedings. !

CONCLUSIONS

1. The request of the Aircraft Mechanics Fraternal Association

for the establishment of a separate craft or class of “Aircraft

Mechanic” is denied.

2. The proposal to expand the existing craft or class of Air-

line Mechanics and Related Employees” to include the stock-

room and fleet service employees of United Air Lines, Inc. are

dismissed without prejudice to any future proceedings.

3. If the Board should order an election, the following class-

ifications of employees on each airline shall be voted together on

one ballot for each airline respectively for the purpose of represen-

f. Testimony of O. V. Delle Femine, AMFA Exhibit 18, pp. 25-27, and Tr. p. 1612.

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tation under Section 2, Ninth of the Railway Labor Act amended:

A-26

SECTION I—AIRLINE EMPLOYEES 67

EASTERN AIR LINES, INC.—CASE NO. R-3712

Inspectors

Lead Mechanics (line or shop)

Mechanics (line or shop)

Apprentice Mechanics

Lead Ramp-Service Men

Ramp-Service employees

Lead Cleaners

Cleaners

Lead Shop Laborers

Shop Laborers

Shop Janitresses

Lead Ground Communication and Flight Simulator Technicians

Ground Communication and Flight Simulator Technicians

UNITED AIR LINES, INC.—CASE NO. R-3713

Lead Mechanics

Aircraft Inspectors

Shop Inspectors

Mechanics

| Mechanics’ Heipers

Apprentice Mechanics

Ground Communications Technicians

Utility Employees

) Cleaning Women

| Lead Fuelers

Fuelers

Seamstresses

Flight Simulator Technicians

Lead Flight Simulator Technicians

SEABOARD WORLD AIRLINES, INC.—CASE NO. R-3714

Inspectors

Lead Mechanics

Senior Mechanics

Mechanics

Off-route Station Mechanic.

Mechanic Helpers

Lead Cleaners

Cleaners

Cabin Service Men

Stock Clerks

Lead Stock Clerks

ges SO eae Se ae oe

1 { | (

A-27

68 DETERMINATION OF CRAFT OR CLASS

Cargo Service Men

Lead Cargo Service Men

Signed

Saul W illen

Chairman, Neutral Committee

Ronald W. Haughton

Member, Neutra! Committee

Paul N. Guthrie

Member, Neutral Committee

G.P.0.—J-297-417

Coe So Roles wa

»3ociation of Machinists and Aerospace Workers, AFL-CIO to intervene

A-28

NATIONAL MEDIATION BOARD

WASHINGTON, D.C.

20572

In the matter of

CASE NO. R-#270

REPRESENTATION OF EMPLOYEES

CERTIFICATION

Jaauary 26, 1972

EASTERN AIR LINES, INC. Js

2 > a ta

Flight Dispatchers and Assistants rhe ht

ane

services of the National Mediation Board were invoked by the Transport

Vorkers Union of America, AFL-CIO on November 24, 1971, to investigate and

determine who may represent for the purposes of the Railway Labor Act, as

provided by Section 2, Ninth, thereof, the craft or class of Flight Dispatchers a

assistants, employees of Eastern Air Lines, Inc.

at tne time application was received, these employees were represected by

the Air Line Dispatchers Association.

The Board assi

soak

gned Mediator Warren S.

Lane to investigate.

FINDINGS

gute

On December 14, 1971, application was received from the Internationa

Rm thas

The investigation disclosed that a dispute existed among th

soned and by direction of the Board, the mediator was instructed t

ction by secret ballot, using an agreed to eligible

vyees' representation choice.

emobloy “es

) conduct

list to determine the

e following is the result of the election as reported by Mediator beri B.

Oo was assigned to count the ballots in this case and attested t+:

Se et. Oe Oo ie Se a Oe ee ae eee a6 he ae Pee oe

(RUsRSURSSsOeUeGatale a"etate

a hse eR Bae oeast |

- ons = piace TAR vie

<7 x ts S RES SE PEE -F : ‘ or

mat ety KS ET ES Sarre f a! >

er ‘

ee Case No. R-4270

Number of Employees Voting:

“t'| Associationot Transport Workers Air Line Dis- Any Other Void Nhume

Machinists & Aero- Union of America, patchers Organ. or Balllots of

«pace Workers, AFL-CIO As sociation Individual oe oyee:

AFL-CIC Eligible

Flight

Dispatchers &

Assistants 89 5 17 | j 123

The National Mediation Board further finds that the carrier and employees in

this case are, respectively, a carrier and employees within the meaning of the

Railway Labor Act, as amended; that this Board has jurisdiction over the dispute

involved herein; and that the interested parties were given due notice of

Lavestigation.

CEP TIFICATION

NOW, THEREFORE, in accordance with Secti 2, Ninth, .

Laoor Act and based upon its investigation pursuant thereto tae Nationa!

Mediation Board certifies that the International Association of Machinists ana

Aerospace Workers, AFL-CIO, has been duly designated and authorized to

epresent for the purposes of the Railway Labor Act the craft or class of Flight

Dispatchers and Assistants, employees of Eastern Air Lines. Inc. , tS Successors

and assigns.

By order of the NATIONA L MEDIATION BOARD,

Thomas A. Tracy canes

Executive Sec retary

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A-30

NATIONAL MEDIATION BOARD

WASHINGTON, D.C. 20572

In the matter of :

REPRESENTATION OF EMPLOYEES CASE NO, R-4336

of ; CERTIFICATION

EASTERN AIR LINES, INC. April 25, 1973 ee

Ground School Instructors je 3 jr av

The services of the National Mediation Board were invoked by the Airline

Division-International Brotherhood of Teamsters, Chauffeures, Warehousemen

and Helpers of America on October 10, 1972, to investigate and determine who may

represent for the purposes of the Railway Labor Act, as provided by Section 2,

Ninth, thereof, Ground School Instructors, employees of Eastern Air Lines, Inc.

At the time application was received, these employees were renr-sented

by the Air Line Employees Association.

The Board assigned Mediators Warren S. Lane and Charles H. Czllenan

to investigate.

- FINDINGS

The investigation disclosed that a dispute existed among the employees

concerned and by direction of the Board, the mediator was instructed to conduct

an election by secret ballot, using an agreed to eligible list to determine tue

emolovrees' representation choice.

The following is the result of the election as reported by Mediator Caiizhar,

who vas assigned to count the ballots in this case and attested thereon ty the party

observers.

Number of Employees Voting:

Employees Int'l Brotherhood Any Other Org.

s3Ociation, Int'l otf Teamsters or Individual Stlizgible

Ins tors > 7 29 is

2; ‘vrite in ballots were cast for the Internationa! Association of Maciinists and

[dace Workers, AFL-CIO.

«5 eaten ane@pen An 2 oe 2

) ,

The Nationa! Mediation Board further finds that the carrier and empioyee:

in this case are, respectively, a carrier and employees within the meaning of the

Railway Labor Act, as amended; that this Board has jurisdiction over the dispute

involved herein; and that the interested parties were given due notice of investi-

gation.

CERTIFICATION

NOW, THEREFORE, in accordance with Section 2, Ninth, of the Railway

Labor Act and based upon its investigation pursuant thereto, the National Meciation

Board certifies that the International Association of Machinists and Aerospace

Workers, AFL-CIO, has been duly designated and authorized to represent for the

purposes of the Railway Labor Act, Ground School Instructors, employees of

Eastern Air Lines, Inc., its successors and assigns.

This certification does not establish a precedent or preciude an ulrimate

determination in any future representation dispute as to the proper classification

of these employees for representation purposes.

By order of the NATIONAL MEDIATION BOARD.

Tacmas A. Tracy

Executive Secretary

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A-32 =~

FOR THE MIDDLE DISTRICT OF NORTH CAROLINAY ~ ~~ &

WINSTON-SALEM DIVISION | Nov3 tay 3

ROBERT E. REYNOLDS and

DARIUS MOLES, JR.,

Plaintiffs,

Vv.

CIVIL ACTION FILE

INTERNATIONAL ASSOCIATION OF

NO. C-179-WS-73

MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO, and LOCAL UNION NO. 2444,

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO,

Defendants.

SS SS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case came before this Court on the defendants'

motion to dismiss with an affidavit attached and on

plaintiffs' motion for a preliminary injunction. Each

party filed memoranda in support of their respective

motions. Since defendants' motion was directed to the

jurisdiction of this Court to entertain the complaint,

it was considered prior to plaintiffs' motion. The

Court neard oral argument by counsel for each of the

parties.

The Court now makes the following Findings of

Fact and Conclusions of Lar.

A-33

Pa ge

1. Plaintiffs are employees of Piedmont Aviation,

Inc. in the "building and maintenance" and "general

aviation" departments or divisions of that company.

2. The defendants are the International Association

of Machinists and Aerospace Workers, AFL-CIO, an

unincorporated labor organization, and its affiliate,

Local Union No. 2444.

3. Following an election conducted by the National

Mediation Board, the defendant International Association

of Machinists and Aerospace Workers, AFL-CIO, on

December 3, 1970, was certified by the National

Mediation Board as having "been duly designated and

authorized to represent, for the purposes of the

Railway Labor Act, the craft or class of Airline

Mechanics and Related Employees, employees of Piedmont

Airlines, its successors and assigns."

4. On January 20, 1971, the International Association

of Machinists and Aerospace Workers served a notice upon

Piedmont Airlines, pursuant to Section 6 of the Railway

Labor Act, of its desire to negotiate a collective

bargaining agreement pursuant to its certification by

the National Mediation Board.

5. During the ensuing conferences between the IAMAW

and Piedmont, disputes developed on a number of issues,

including the employces to be covered, which resulted

in an impasse.

6. On April 26, 1971, Piedmont invoked the mediation

services of the National Mediation Board pursuant to

Section 5 of the Railway Labor Act and on May 7, 1971,

the board docketed the dispute as NMB Case No. A-9034.

og, 73 gama OP" amy OF gms aE on gam ON ve OE em > en Se aes Be

A-34

7. Thereafter, mediation was conducted by Board

Mediator C. A. Peacock. The mediation efforts were

unsuccessful and the IAMAW set a strike date for

October 11, 1971.

8. The Board proffered its further mediation

services, which proffer was accepted by the parties.

9. On October 29, 1971, the IAMAW and Piedmont

Signed a Mediation Agreement, effective November 8, 1971,

witnessed by Mediator Peacock, disposing of the dispute.

On November 29, 1971, the Board closed its file on

NMB Case No. A-9034.

10. The agreement covers employces of Piedmont

Airlines "in the inspection, maintenance and overhaul

functions of the airline division in its shops, hangars,

OF LOCREIONE o 6 3s

11. The agreement does not cover employees of

Piedmont Aviation, Inc. in its "building and maintenance"

and "general aviation" divisions and therefore does

not cover plaintiffs.

12. Plaintiffs claim to be members of the

class or craft of "Airline Mechanics and Related Employees"

on Piedmont which defendant IAMAW was designated by the

Board to represent.

13. Plaintiffs claim that their exclusion from the

collective bargaining agreement, executed under the auspices

of the Board, constituted an "illegai, invidious and

hostile act by defendants against plaintiffs."

14. Plaintiffs seck injunctive relief and actual

and punitive damages.

15. Defendants filed a motion to dismiss the complaint

contending this Court lacks jurisdiction of this action

‘ee Se oe ee ee ee ee ee see ee ee

A-35

because jurisdiction to determine whether plaintiffs are

members of the craft or class of "Airline Mechanics and

Related Employees" on Piedmont Airlines is exclusively

that of the National Mediation Board and plaintiffs

have failed to join indispensable parties as parties

defendant herein, namely, Piedmont Airlines and those

individual employees of Piedmont who are within the

coverage of the agreement.

CONCLUSIONS OF LAW

1. The plaintiffs' claim of violation by defendants

of the latter's duty to fairly represent plaintiffs

can prevail only if it is established that defendants

have a statutory duty to represent plaintiffs.

2. Defendants are required by the provisions of

the Railway Labor Act [45 U.S.C. 151 et seq.] to represent

all employees of Piedmont Airlines who are members

‘of the craft or class of "Airline Mechanics and Related

Employees".

3. If plaintiffs are members of the craft or class

of "Airline Mechanics and Related Employees" of Piedmont

Airlines, defendants are bound by statute to represent

them. However, if plaintiffs are not members of that

craft or class, defendants owe them no duty of

representation.

4. The primary issue presented by the complaint

is whether plaintiffs are members of the craft or class

of "Airline Mechanics and Related Employees" of Piedmont

Airlines.

5. Decisions of the United States Supremc Court

and the Court of Appeals for this Circuit have firml)

nig Bg ag a pe gs Sis Ss =

pees aera bck BE eae Ne ed ee

A-36

established that the resolution of such issues are

within the exclusive jurisdiction of the National

Mediation Board. Switchmen's Union of North America

v. National Mediation Board, 320 U.S. 297 (1943);

General Committee, Etc. v. Missouri-Kansas-Texas Railroad

Co., 320 U.S. 323 (1943); General Committee, Etc. v.

Southern Pacific Company, 320 U.S. 338 (1943); Division

No. 14, The Order of Railroad Telegraphers v. Leighty,

298 F.2d 17 (4th Cir., 1962); 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). In

the Rose case, the Court of Appeals for this Circuit

ruled as follows:

"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 agents, the determination of

bargaining units and the classification of employees

for the purposes of bargaining. And it is

equally clear that the exercise of discretion

by the board with respect to such matters is not

subject to review by the 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 etc. v. M-K-T. R. Co., 320 U.S. 323,

64 S.Ct. 146, 88 L.Ed. 76; Brotherhood of Railway

Cleras etc. v. United Transport Service Employees,

320 U.S. 715, 64 S.Ct. 260, 88 L.Ed. 420; Order

of Railway Conductors of America, etc. v. Penn.

Re Ge., $23: 0.5. 166; 65 S.Ct... 222, 88 L.Ed: 154;

eceere Vi L. O°. 8. Co. , 323: U.S. 192; 205,. 65

BvCt. 226, 89 2. ta. 173.. And see Siocun v. D0. L.

fe pee Ui... 259, 10 S.Ct. 5775"

In the sane opinion, the Court of Appeals relied upon the

following quotation from the United States Supreme Court's

decision in Steele v. L. & N. R. Co., 323 U.S. 192 (1944);

"There is no question here of who is entitled

to represent the craft, or who are members of

it, issues which have been relegated for settle

by the Court of Appeals.)

Ley

A-37

6. The primary issue presented by the complaint

is within the exclusive jurisdiction of the National

Mediation Board and this Court, therefore, is without

jurisdiction to entertain the complaint.

7. In light of this Court's decision on the

exclusive jurisdiction of the National Mediation Board

to resolve the primary issue presented by the

complaint, we do not reach the remaining issues

raised by the motion to dismiss or plaintiffs' motion

for preliminary injunction.

8. Defendants' motion to dismiss, having an

affidavit attached thereto, will be treated as a motion

for summary judgment, pursuant to the provisions of

Rule 12 of the Federal Rules of Civil Procedure, 28

U.S.C., and as such, is granted. An appropriate a il

order will be entered accordingly.

United States District Judge

OT ae ee a

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; A-38

IN Til UNITED STATES DISTRICT CouRt/=>

FOR THE MUDDLE DISTRICT OF NORTH CAROLEVA

WINSTON-SALEM DIVISION \

KOBERT E. REYNOLDS and

DARIUS MOLES, JR.,

Plaintifts.,

Vv.

INTERNAT LONAL ASSUCTATION O01}

MACHINISTS AND AEROSPACH WORKERS,

AFL-CIO, and LOCAL UNION NO. 2444,

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND ALROSPACE WORKERS,

AFL-C10.

Defendants.

ew UU

PELR SD

* Sa a* bee

Hoy 9 1973 ©

€ ‘

. .

CIVII. ACTION FILE

NO. C-179-WS-73

JUDGMENT AND ORDER DISMISSING COMPLAINT

This cause having cone on before this Court on

the motion of defendants to dismiss, with attached

affidavit, and the motion of plaintiffs for preliminary

injunction, and the Court having read the memoranda

submitted and heard the arguments of counsel;

It is now ordered, adjudged and decreed that

defendants’ motion is granted and the complaint be,

and it is hereby, dismissed.

United States Dis

TEartos

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Ee ae

trict Judge

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A-39

UNITED STATES COURT OF APPEALS “4% 4 122,

FOR THE FOURTH CIRCUIT

Miles, Jr.,

versus

ocal 4, I rnational

Association of Machinists & Aerospace

orker

ee ee ee ee ee ee — Pa

“ee it BS J RS et ee ee ee ee ee es eet a) Gar an

A-40

PER CURIAM:

After oral argument, we affirm on the opinion of

the district court. Plaintiffs have the right, under

45 U.S.C. § 152, Ninth, to obtain a decision from the

National Mediation Board as to whether they are included

within the bargaining unit for which an employment con-

tract has been negotiated.

17,0688

Labor Rel.tions Cases

111 104-74

Stron7 v. Shect “Letal Workers

6. On December 28, 1972, plaintiff TWA

and Ie nt JAM enterel into working

agreements pur y the RLA embody-

ing the rates of pay, rite working

conditions of the TWA employees

aforesaid classes or crafts. Fach of saic

agreenionts provided that the azreement

“shall remain in full force and effect to

and including August 31, 1973, ard there-

after shall be sub: .t to change as pro-

amended”.

7. Pursuant to the said provisions of said

agreements, one or snore of the partics pro-

posed changes in said agreements, and from

n® later than june 24, 1974 until the pres-

ent tinie, a negotiating commiciee of JAM

District 142 and TWA have been in media-

tion before the Nacional Mediation Board

concerning the disputes arising over said

Proposed chanwes, no agreement having yet

been reached.

8. Commencing on or about August 1

1974 and continwag to date,

ployvees represented by TAM

of TAM at TWA’s Techaical

ter at the Kansas City Internationg

engaved in concerted slowdowny

tions and stoppages of work a

Airport

interrup-

other con-

certed interference with TWaA's normal

operations.

9. On August 12, 194, TWA repre-

sentatives met with th

committee concerning Autd probiem. and on

August 15, 1974, TWA representatives again

brought the ajoresAil actions to the atten-

tion of IAM reprfsentatives at Kansas City

International Ayfport, arei said IAM repre-

sentatives advfSed TNA that such actions

had not bee y the IAM, but

that the PAX did net inten ;

action to end such actvity by the afor:-

said members of the IAM.

10. On Aueust 14, 197+, the TAM, through

IAM District 142 and its negotiating com-

mittee, including defeadants Kerr and Bay,

Union's full-time

issved a bulletin to the members of the

IAM employed by TWA which encouraged

the aforesaid employees and IAM members

throughout the TWA system to engage in

the activities above-descnbed.

The aforesaid actions have already

resuiter ss of substantial production to

TW. at the ical Services Center in

Kansas City, Missoun created safety

hazards for personnel workindyat the base.

12. The aforesaid activjefs have already

increased the number delays in TWA

operations and will Montinue to do so at an

increased rate ifMe activities described are

not discontinséd, resulting in serious and

Conclusions of Law

f TWA, its employees, the IAM, IAM

istrict Lodge 142, [AM Local Lodge 1650

and their oficers, agents are subject to the

Railway Labor Act, as amended (“RLA”).

2. So long as the dispute over proposed

changes in the TWA-IAM working agree-

ments dated December 28, 1972 iz in metia-

tion before the Naiional Mediation Board

pursuant to Seciion 5 of the RLA, and for

30 days after termination of such media-

tion services by the National Mediation

Board, the RLA prohibits activities by

IAM members and organizations of the

character described in paragraphs 8 & 10

of the Findings herein, and the IAM repre-

sentatives of said employees are obligated

under Section 2, First [paragraph] of the

RLA to exert reasonable efforts to end any

such activities by IAM members in viola-

tion of the RLA.

3. Plaintiff is entitled to a preliminary

jon acainst future violations of the

RLA, au osting of a notice by

TAM District 142 adVts j

cers, members of their obligations under

the RLA, as provided in the annexed

Order for Preliminary Injunction.

[7 10,313] John G. Strong et al., Plaintiffs v. Sheet Metal Workers’ International

Association et al., Defendants. Local Union 75, Intervenor. No. C-73-1710).

Doug!as C. Olsen, etc., Plainti v. Sheet Metal Workers’ International Association

et al, Defendants. No. C-73-i329,

United States District Court, Northern District of California. February 4, 1974.

Labor-Management Reporting and Disclosure Act

Rights of Union Members—Merger of Local Unions—Effect on Local Membership.

—The merger of San Francisco Bay area loca! anions into one local union, resuiting in

the transfer of members of a particular !ucal into one local union, was not donc in retalia-

tion for the local’s rejection of 2 stabilization 2creement of the sheet metal industry or

for its entering into another industrial agreement, but, rather, was implemented for the

q 30,223

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A-42

104-74 Labor Cases—Cited 75 LC 17,089

Strong v. Sheet Metal Workers

purp4se of increased operating efficiency and avoiding competition among the many sheet

metal worker locals in the area, which had an adverse effect upon the development of

the union sector of the sheet metal industry. Apart from the merger itself, there was no

evidence of any action by the international that restricted the members’ nght of voting,

assembly and speech guaranteed them as members of a union by federal labor law, and

the merver itseli was proper under the umon constitution. LMRDA, Section 101.

Back reference.—® 7477.15.

Rights of Union Mernters—Disciplinary Action—Diminution of Voting Strength

Through Merger.—In Nicht of the safeguards to protect fully the politica! and the con-

tractual rights of members of a local union who were transferred to other locals following

a mercer, and in the absence of greof establishing an intent on the part of the international

and its presijent to punish the locals involved, the mere diminution of voting strength

resulting from the transfers did not constitute “discipline” in violation of the Act. LMKDA,

Section 101(a)(5)

Pack reference —°

7477.

Rights of Union Members—Merger of Locals—Evidence of Bad Faith.—\Where the

evidence failed to establish that an international and its president acted in bad faith or

adversely to the interests of the international and its membership as a whole in ordering

2 merger of locals in a particular area, federal labor law does not permit a court to svb-

stitute its own view of what is in the best interests of a labor organization for the decisions

of the officers or bodies of that organization which are charged under the union con-

stitution with the responsibility for making such decisions. LMRDA, Section 101.

Back reterence.—* 7477.67.

Rights of Union Memhers—Internal Anneals Procedures—Stay Pending Appect.

lin refusing to grant 2 stay pendisc appeal under

internal union appeal procedures, an international and its general president dit not violate

their contractual duties to a local under the international’s constitution, and therefore, the

local was not entitled to injunctive relief under the Act. The complaining members had

demonstrated neither the irreparable harm nor the probalil:ty of success om the merits,

which are prere juisiies to the issuance of a preliminary injunction. LMRDA, Section 102.

and

Francisco. In the Leca!l 75 case, similar

relief was sovzht tu resirain action of the

Internationai transferring members of an-

other affiliate. Local 75, into Locals 104 of

San Francisco and 216 of Oakland on the

following basis:

Findings of Fact, Conclusions o1

Law and Order

Two separate cases, No C-79-1829-CBR,

referred io hereafter a: the “Local 4"7 case.”

and No. C-73-1700-CBER, reterred to here-

after as the “Local 75 case,” were con-

solidated for heamng on the tssue of an

Order to Show Cause why a preliminary

ir,

(a) The members of Local who

reside in Mendocino, Lake, Sonoma, ard

injunction should not issue.’ In the Local Marin Counties to be transferred into

497 case a preliminary iniunction wes Local 104, and

sought to restrain an international labor (b) The metmbers of Local 75 who

union, Sheet Metal Workers’ International reside in Napa and Solano Counties to be

Association, AFL-CIO, referred to here-

after as the “International,” from merging

its affiliate Local 497 (with territonal

jurisdiction over Del Norte, Humboldt, and

Trinity Counties} into Local 104 of San

transferred into Local 216.

This action has been brought under vari-

ous sections of the Labor-Management Re-

porting and Disclosure Act of 1959 (Lan-

drum-Griffiin Act), 29 U. S. C. § 401 et seq.,

‘By stipulation of the parties to the Local 75

action. dated September 25, 1973, a temporary

festraining order was issued on that date to

enjoin further dissolution of Local 75 and trans-

fer of its men.bers pending the Court's decision

on plaintif's’ motion fora pretinmiinary inpirction

By stipulation ond order dated January 21, 1974.

Labor Law Reports

the hearing on the preiiminary injunction con-

St'tuted the trial on tne merits in both cases.

As 2 result of this stipulation and order piain-

tu%s have effectively waived their claim for

money darnaces since po evidence of such da:r-

are was presented at the hearing

10,313

SVL IER A LER ALEL OLLIE LE NIELS SIE LEN I NEEBE ROTA IY =

——EE

17,090

Labor Relations Cases it

A-43

104-74

Strong uv. Sheet Metal U'orkers

specifically the sections dealing with equal

rights and free speech [§$41]l(a)(1) and

(2)], due process in disciplinary proceed-

ings [§ 411()(5)], and the fiduciary obli-

gations owed to union members by their

officers [$501]. In addition, there are al-

legations of the violation of the duty of

fair representation enforceable under § 391

of the Labor-Management Relations Act of

1647 (Taft-Hariley Act), 29 U. S. C. § 185,

and of violations of the union constitution

enforceable by Local 73 under 29 U. S. C.

§ 185.

The cases came for hearinzs on De-

centhber 3, 4, 5 and 6, 1973. Thereafter the

parties filed proposed ndings of iact and

conciusions of law and plaintiffs filed a

post-heanng brief. Ora! argument was heard

on January 3, 1974. After hearing all of

the witnesses and examining all of the evi-

dence, the Court makes the following

Findings of Fact, Conclusions of Law, and

Order.

Findings of Fact

i. Fiainufis in tie two actions which

Lave been consolidated herein are members,

respectively, of Local Unions 73 and 497

of the Internaticral, They are suing in-

dividually an! on behalf of their fellow

members as a class.

2. The members of Local 75 number ap-

proximately 470, and it is impracticable to

bring 2l! cf them before the Court. There

are questions of law and tact presented

here which are comnton to the entire class

of persons who are meinhbers ¢/ Loca! 75.

The claims of plaintiffs herein are typical

of the claims of this cluss, and the plainticts

will fairly and adequately protect the in-

terests of the class.

"3. In the Local 75 action th: defen-tants

have acted on grounds generally applicable

to the class, thereby making fina! injunctive

and declaratory relief appropriate with re-

spect to the class as a whole.

4. In the Local 75 action the class con-

sists of the members of Local 75 of the

International as of August 29, 1973.

5. The members of Local 497 number

approximately 60, and it is impracticable to

bring ail of them before the Court. There

are questions of law and fact presented

here which are common to the entire class

of persons who are members of Local 497.

The claims of plaintiffs herein are typical

oi the claims of this class, and the plain-

tiffs wili tairly and adequatcly protect the

interests of the class.

{ 10,213

oa eee

| URRED COPY

6. In the Local 497 action the defendants

have acted on grounds ceneraliy applicable

to the class, thereby making final injunctive

and declaratory relief appropriates with re

spect to the class as a whole

7. In the Local 497 action the class cor-

sists of the members of Local 497 of the

International as of Aucust 29, 1973

8. During the course of the proceedings,

Local 75 of the International entered as an

Interveror.

9. Locals 497 and 73 are local unions

chartered by and afiliated with the Inter-

nationa!.

10. Defendants are the International;

Edward J. Carlough, the General President

of the International; and Charles Artman,

the International Representative having re-

sponsibility over Locals 75 and 497.

11. Defendant International is an inter-

national labor organization with general of-

fices in Washinzion, D. C., with which are

affiliated more than 4) subordinate bovlies

such as local unions, district councils, and

railroad district councils threuchort the

United States and Canada. International

issues charters to new local unions and

other subordinate bodies from time to time

and it also revokes charters, merges or

amalczmates local unions, transfers mem-

bers from one loca! union to another, and

chanves the territorial jurisdiction or the

classification-of-work jurisdiction of its van-

ous local unions. In such activities and all

other matters, the International, its afniiated

local unions and other subordinate bohes,

and the membership are governed by a

written document known as the Constitu-

tion and Ritual of the International, which

prescribes atl of tne reciprecal rishis and

duties of the parties ani which na, fairly

be described as a contract or compact by

and between them

12. Defendant Edward J. Carlough, the

International's General President, is its

chief executive officer. Carlough has heen

Genera! Pres‘dent since October 1, 1970

During the ten years prior to being Gen-

era: Pres:dent, Cariouch was the Interna-

tional’s Director of Organization.

13. Defendant Charlies Artmanr is an In-

ternational Representative of the Intema-

tional. He has served in such capacity since

1934. An International Representative is

appointed by the General President with

the consent of the General Executive Council,

and is a full-time, salaried position. Art-

Man services the entire state of Califurnia

in this capacity.

Taek tl SDE RSL od ak a a ee ie De

CLOSED OGM GR Highs YT

ance

A-44

Strony v

[Diziston of Local]

14. The acts comp

the decision of the

divide Local 75, covermy

fornia north of San Francisco, and to transfer

those menbers currently residing wy Metdo-

cino, Lake, Sonoma, and Maren Counties to

Local 104 in San Franetseo ard to teanster

those members currently residing m hepa

and Sclano Courties to Local 216 in Ala

meda County; and, im addition, to

Locai 40/7, whose terrtorial jurisdiction

covers Del Norte, Humboldt and+Tnnity

Counties, into Local 104 in San Francisco.

‘ined of arove et of

Geacral Prestlent oo

inuch of C.de

Der ace

15. Carlouch explaired this decisior in a

letter to the members affected dated Au-

gust 29, 1973. He cave as authority for his

action Article Three Section 2(¢) of the

Constitution and Ritual of the Intercational

which provides in applicable part:

“The General President shall have full

authority * * * to amulzamate two or

more local unions or district councils

when itis advisable or meeessary in the

test iitesesti- oF thas Assawiauon amd the

1 ot

rt errte te ee ey] See eT

16. The letter of August 2

ates six factors evaluated in reaching the

decision to amalsamate the local unions

along the lines specitic!: (1) Local 497

was unable te police its jurisdiction effec-

tively despite its high dues structure; (2)

increased operating eficiwscs along with

lower adm wuld result from

the amalksamation of Locais 447 and 735;

(3) the new geographic distribution of the

transferred) areas of Loca! 73 would enable

the surviving Locals 104 and 216 to cover

the emigadr se" area with relative facility;

(45 the elimination of various types of

inter-local travel barriers would encourage

Bay Arca sheet metal contractors to bid on

jobs over a broader area and would enabie

union contractors tu compete more effec-

tively with rival trades and nonunion em-

ployers, thus increasing work opportunities

for the membership as a whole; (5) 1 better

competitive basis, in jurisdictional terms,

would result for sheet metal workers and

contractors tn relation to other rival trades

and crafts in the Northern California area:

and (6) the fact that Northern California

was treated a> a sinuwle cconomic area by

federal wage and price administrators with

uniform wage structures formulated for the

», 19723, enumer-

fis’ ta IVE COSIS Ww

Labor Cases—Cited 75 LC

Steet Metal Workers

17,091

17. At trial Carlouch further explained

that his decision was bised primarily on

the follow. concerns:

(a) The existence of too much compe-

tition among the Northern California locals;

(b) The migration of sheet metal con-

tractors down the Peninsula and away

from San Francisco; and

(co) The desirability of the SASMI plan,

which dejn nded for its implementation on

a treer flow of members in the Northern

Cal: forma area and which, therefore, was

being inhibited by the then current juris-

dictional structure of the Northern Cali-

fornia locals

18. The evidence in:licates that from the

time Carlouch became Gencral President

and even prior thereto he had been con-

sidering the problems of sheet mctal workers

local unions in the Northern Californie areéa

The essential diticulty in Northern Cali-

fornia, according to Carlou-th, is that there

are too many | cal unions in the area and,

thus, too much competition among them

more money in iret tes rtd = cry

tar eee ee oe!

rates, ad other friace tenchis,

pensigcs, ar

etc. There s are ‘See local

in the Bay Area aione: [Local ii (San

Francisco County), Local 2! (Alameda

and Contra Costa Counties), Local 272

(San Mateo County), Local 2) (Nlonterey,

Bento, Santa Clara, and Santa Cruz

Counties), and Local 735 (Lake, Marin,

Mendocino, Napa, Solano, and Sonoma

Counties). Whenever certain cumditions were

obtained in one area, the repre-entatives of

the locai umons in contiguous areas attenipted

to surpass them. This, at least in Carlouch’s

opinion, has had an adverse effect upon the

development of the unton sector of the

shect metal industry. In addition, the move-

ment of men in the Northern California

area has been restricted unduly under the

International's so-called “twoman rcuie™?

due to the fact that there are too many

lecal unions in this region. This has con-

tributed to the loss of certain kinds of work

by union contractors and will continue to

do so if the conditions continue. Many

local unions in Northern California in com-

parable building trades work such as iron-

workers, asbesios workers. and operating

engineers, have territonal junsdiction over

substantially more of the Northern Cali-

forma counties than the sheet metal workers’

local unions which means that there are

nions competing

San

entire area relatively few restrictions on the move-

7 Under the ‘two-man rule’ a contractor (ram than {10 men from his home jurisdiction. sle

Outside the jurisdiction of a particular local

union cen bring into that jurisdiction no more

Labor Law Renorts

{| URRED COPY

musi hire the rest of his crew from the local

within whose jurisdiction the job is located.

q 10,313

Be ee a a a i a a eee | a

KOE PY

EE TLS LOSE, CARRE BO BI FAI CN RTE, Nae

PIII BAS

17,022

A-45

Labor Relations Cases 111 104-74

Strony v. Sheet Metal Workers

ment of the members of the other trades

throvzhout the Bay Area. Carlough’s testi-

mony about unfavorable competitive con-

ditions in the union sector of the sheet

metal industry was indenerdent!, corcoborated

by A. Bruce McKenzie, executive director

of the Shee: Metal Contractor. Association

in San Francisco, Wade Adams, member of

the board of directors of the Sheet Meta.

Contractors Association of San Mateo, ard

Richardt Ward, executive director of the

Sheet Metal Contractors Association of

San Mateo. A letter from Richard Ward,

dated September 7, 1972, indicated that a

number of Bay Area sheet metal contractors

intended to approach (ieneral President

Carlow to seek the merger of all five Pav

Area local unions into one local union, as a