Petition for Writ of Certiorari — Air Line Pilots Ass'n v. Northwest Airlines, Inc.

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MAY 13 1976

IN THE =

eme Court of the United States

October Term, 1975

No. “5-1653

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Petitioner,

against

NORTHWEST AIRLINES, INC.,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SAMUEL J. COHEN

Attorney for Petitioner

605 Third Avenue

New York, New York 10016

Tel. No. (212) 682-6077

Of Counsel:

COHEN, WEISS AND SIMON

ROBERT S. SAVELSON

STEPHEN B. MOLDOF

TABLE OF CONTENTS

PAGE

Cian TI os bvcsics cece es enersnassssevesas 1

DI void oben sas xn cond seen st eae he eee 2

Question Presented ............ cece cece eee ee eens 2

ee PORE C ETT TT Pete CeCe eT TT Te 3

Statement of the Case ..........2..ccccccvccvsvee 3

ee errr errr errr ee ere 3

iy IRS oc chad awe ee WER Eh Ache RMEeNENeNeS 4

e. Arbitration Proceedings ................see0: 4

Gd. AvbitretiOn AWAITS oc nine cc ccse sc ccecceveses H)

e, District Court Proceedings ...............+.. 5)

f. Court of Appeals Proceedings ............... 6

Reasons For Grantinc Tue Writ:

The Court of Appeals’ Decision Which Creates a

New Standard for Review of Labor Arbitration

Awards Necessitating Endless Judicial Inter-

vention in the Arbitration Process Is In Conflict

with Applicable Decisions of this Court and

Other Decisions of Courts of Appeals Establish-

ing Fundamental Principles of Federal Labor

eh race bs Cees Soe ar ee RE aia 7

INE nas vb KE Cea eieeewn bee ree eR ERODES 15

APPENDIX:

Opinion of the Arbitration Board .............. la

Memorandum Opinion of District Court ........ 7a

Judgment of the District Court ..............-. 19a

Opinion of Court of Appeals ..........--.....- 21a

Order of Court of Appeals Denying Petition for

ee ree err Le ere Re re rr as y- 27a

Order of Court of Appeals Denying Suggestion for

pe eee reece 28a

Statutory PROVISIONS .. 2.0.6. cee ceeescweecess 29a

ii

TABLE OF AUTHORITIES

PAGE

CasEs:

Air Line Pilots Association, International v. Capi-

tol International Airways, Inc., 343 F. Supp. 923

(M.D. Tenn. 1971), aff’d, 458 F.2d 1349 (6th Cir.

GERACE hen te ia ae Se 13

Aloha Motors v. Int’l. Longshoremen’s and Ware-

housemen’s Union, Local 142, F.2d ——, 91

LRRM 2751 (9th Cir. 1976) .................. 13

Amalgamated Butcher Workmen Local U. No. 641

v. Capitol Packing Co., 413 F.2d 668 (10th Cir.

oo BENE ERIE SS oe AE Se 13

Brotherhood of Railroad Trainmen v. Chicago

River & Indiana Railroad Co., 353 U.S. 30

EY Na eee ea eu ee tace. 8

Crigger v. Allied Chemical Corp., 500 F.2d 1218

Se I caca cue 6

Dallas Typographical Union No. 173 v. A. H. Belo

Corp., 372 i*.2d 577 (5th Cir. Oe 13

Edwards v. St. Louis-San Francisco R.R., 361 F.2d

. Ǥ eam 13

Gateway Coal Co. v. United Mine Workers, 414

.. Sea paas 10

Gramling v. Food Machinery and Chemical Corp.,

151 F. Supp. 853 (W.D.S.C. 1957) 2.00.0... 10

Gulf States Telephone Co. v. Local 1692, Int’l

Brotherhood of Electrical Workers, 416 F.2d

oo Sl eee 14

Gunther v. San Diego & Arizona Eastern Ry., 382

-.¢ eee aie adeniiiae 8

Hines v. Anchor Motor Freight, Inc.. —— U.S.

, 96 S. Ct. 1048 (1976) ................... 8

Int’) Association of Machinists v. Central Airlines,

Ine., 372 U.S. 682 (1963) .................... 10

nr ocoen ThLDhII

ili

PAGE

Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123

Oe Serer re errr eer Te eee 13

Orion Shipping & Trading Co. v. Eastern States

Petroleum Corp. of Panama, 312 F. 2d 299 (2nd

Cir. 1963), cert. denied, 373 U.S. 949 (1963) ... 13

Safeway Stores v. American Bakery & Confec-

tionary Workers Int’] Union, 390 F.2d 79 (5th

ES fo rake U wi ee A Wan Coeds RO atk Scan ss 14

San Martine Compania de Navegacion, S.A. v.

Saguenay Terminals Ltd., 293 F.2d 796 (9th Cir.

rN sey 13

Saxis Steamship Co. v. Multifacs International

Traders, Inc., 375 F.2d 577 (2nd Cir. 1967) ... 13

Union Pacific Railroad Co. v. L.I. Price, 360 U.S.

et BRASS etna ae Rag ee rensropreie ear were arate 10

Union Steelworkers of America v. American

Manufacturing Co., 363 U.S. 564 (1960) ..... 7, 10, 12

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) ..7, 8, 9,10,

11, 12

, ~

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) ........ 7,10, 11

Washington-Baltimore Newspaper Guild, Local 35

v. The Washington Post Co., 442 F.2d 1234

es Varo dae aad bce 13

STATUTES:

Judicial Code:

er eg ae a bn gece his bale Sn a w aos a 2

28 U.S.C. §$§ 1331, 1337, 2201, 2202 ............. 2

Railway Labor Act, as amended, 45 U.S.C. § 151

SPE evel uae as sinck vate ek ee ees 2, 3, 4, 6, 8, 9, 10

a SIONS EY AAAI LR PIECE A +

Sa Tan St ont ae Ee a a ee

BIE RE MIAO PLO KS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

0)

Am Line Pivots Association, INTERNATIONAL,

Petitioner,

against

Nortuwest Arruines, INc.,

Respondent.

oO

vu

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Air Line Pilots Association, International (‘‘ALPA’’)

respectfully prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for the

District of Columbia Cireuit entered in this proceeding on

February 3, 1976, rehearing of which was denied on Feb-

ruary 27, 1976,

Opinions Below

The opinion of Arbitrator Nicholas A. Zumas for the

Northwest Airlines, Inc. Pilots’ System Board of Adjust-

ment is set out in the Appendix to this petition, pp. la-6a.

The Memorandum Opinion of the United States District

Court for the District of Columbia, Hon. Thomas A. Flan-

nery, is reported at 385 F. Supp. 634 and set out at

App. 7a-18a. The Judgment of the District Court is re-

ported at 385 F. Supp. 640 and also appears at App. 19a-

20a. The opinion of the United States Court of Appeals for

the District of Columbia Circuit (Bazelon, C. J., Justice

Clark and Robinson, C. J.) reversing the judgment of the

District Court, has not yet been officially reported, but is

unofficially reported at 91 LRRM 2304 and 78 CCH LC § 11,

240, and set out at App. 21a-26a. The unreported order of

the Court of Appeals, dated February 27, 1976, denying

ALPA’s petition for rehearing, is reproduced at App. 27a.

The unreported order of the Court of Appeals, dated

February 27, 1976, denying ALPA’s suggestion for re-

hearing in banc, is reproduced at App. 28a.

Jurisdiction

The decision of the Court of Appeals reversing the

opinion and judgment of the District Court was entered

on February 3, 1976. The orders of the Court of Appeals

denying the petition for rehearing and suggestion for re-

hearing in banc of petitioner Air Line Pilots Association,

International were entered on February 27, 1976. This

Court has jurisdiction to review the Court of Appeals

decision under 45 U.S.C. §§ 153 (p) and (q) and 204, and

28 U.S.C. § 1254(1). Jurisdiction in the District Court was

predicated upon the Railway Labor Act, 45 U.S.C. § 151,

et seq., and on 28 U.S.C. §§ 1331, 1337, 2201 and 2202,

BE ES paw ome As EA i th AD Gs DEED

es BH A ORI US TE RO LSS oT

Question Presented

Does the new standard of review of labor arbitrations

ereated by the Court of Appeals’ decision, in conflict with

other decisions of Courts of Appeals, holding that an

arbitrator’s decision should be set aside by reason of an

alleged mistake of fact which the Court characterized as

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a ‘‘dispositive fact’’, violate fundamental principles of the

national labor policy enunciated by this Court which have

established: (1) that labor arbitration awards are to be

treated as final and binding; (2) that federal courts are

not to review the merits of arbitration awards or to sub-

stitute their judgment for those of arbitrators; (3) that

federal courts are not to set aside arbitration awards for

errors of fact or law; (4) that federal courts cannot in-

quire into the thought processes employed by arbitrators

in reaching their decisions.

Statutes Involved

The pertinent provisions of the Railway Labor Act,

as amended (the ‘‘Act’’), 45 U.S.C. § 151, et seq., are set

out at App. 29a-32a.

Statement of the Case

a. Background

This petition seeks review of a Court of Appeals de-

cision which would undermine the finality of labor arbitra-

tion awards which the Supreme Court has established as

a fundamental tenet of Federal labor law. The effect of

the Court of Appeals decision is to create a new standard

for review of arbitration awards which will generate end-

less judicial appellate review of labor arbitration awards.

As a result of the Court of Appeals’ decision, a federal

court faced with an action seeking to overturn an arbitra-

tion award will now be required to review in detail, and

to assess, the issues before the arbitrator, the evidence

presented with respect to those issues, and the reasoning

adopted by the arbitrator, a role clearly at odds with con-

trolling Supreme Court decisions and other decisions of

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Courts of Appeals and which can only serve to delay and

confuse the resolution of labor-management disputes,

b. Parties

Petitioner Air Line Pilots Association, International

(‘“‘ALPA’’) is the collective bargaining representative un-

der the Railway Labor Act for pilots on almost all U.S. cer-

tified air carriers, including Respondent Northwest Air-

lines, Ine. (‘‘Northwest’’).

ec. Arbitration Proceeding»

The arbitration involved only a question of seniority

rights. The underlying dispute concerned Northwest’s

selection and use of certain pilots, out of senicrity order, as

instructor pilots during the 1970 strike of the Brotherhood

of Railway Clerks, a union representing certain Northwest

employees. A grievance filed by ALPA was processed

through the Northwest Pilots’ System Board of Adjust-

ment (‘‘System Board’’ or ‘‘Board’’), established by the

ALPA-Northwest collective bargaining agreement pursuant

to requirement of the Railway Labor Act, 45 U.S.C. § 204.

(App. 7a-8a). Under the pilot contract, System Board

awards are final and binding. (App. 8a). The basic issue

was ‘‘whether there was an obligation on the part of the

company to select its pilot instructors from the roster of

pilots on active payroll status’’. (App. 3a).

A hearing was held before a System Board consisting of

five members: a professional labor arbitrator, Nicholas

Zumas, serving as Neutral Board member, and two pilot

and two management members. (App. 9a). Northwest

and ALPA were represented by counsel, presented oral and

written evidence, and filed memoranda. (App. la, 9a).

After the hearing, an executive session was held at which

the five Board members discussed the case (App. 9a),

:

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following which the Northwest Board members, ‘‘hothered

about the tone of our discussion’’ (Jt. App. 161)*, requested

and were granted a second executive session for further

discussion of the matter. (App. la, 9a). Northwest’s mo-

tion to reopen the proceedings to produce still further testi-

mony was denied (App. 9a), the Neutral having deter-

mined the parties had been provided an adequate oppor-

tunity to air their positions. (App. 12a).

d. Arbitration Award

After the executive sessions, the Neutral issued a deci-

sion and award which sustained ALPA’s position on the

grievance, and concluded that:

‘(On the basis of the record, therefore, the Com-

pany is directed to compensate such appropriate

senior pilots on a one-for-one basis during the period

in question. The Company is further directed to

restore such benefits as may have been lost during

such period.’’ (App. 6a).

The two ALPA Board members signed the Award provid-

ing the necessary majority to make ‘he award final and

binding on the parties. (App. 6a, 8a, 10a).

e. District Court Proceedings

Northwest refused to comply with the award and

brought an action to set aside the award. ALPA counter-

claimed for enforcement of the award. After substantial

pretrial discovery, both parties moved for summary judg-

ment. The Distriet Court granted ALPA’s motion, and

entered judgment enforcing the award. (App. 19a).

*“Jt, App.” refers to the Joint Appendix filed with the Court of

Appeals.

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Reading through the ‘‘catchwords’’ employed by North-

west as grounds for setting aside an arbitration award,

Crigger v. Allied Chemical Corp., 500 F.2d 1218, 1219 (4th

Cir. 1974), and relying upon decisions of this Court, the Dis-

trict Court recognized that it was not its role to review the

correctness of the Board’s decision ‘‘under the guise of

determining whether or not the Board complied with the

requirements’? of the Railway Labor Act. (App. 17a).

The Court found no basis for sustaining any of Northwest’s

claims, including its assertion that the award must be set

aside for resting upon an erroneous factual basis. (App.

13a-17a).

f. Court of Appeals Proceedings

On appeal by Northwest, the Court of Appeals reversed.

While acknowledging the ‘‘established policy of settling

labor disputes through arbitration’’ militated against

‘‘opening up the merits of arbitration decisions to judicial

review’’ (App. 24a), the Court nonetheless reviewed the

award, and on the basis of an artificial distinction innovated

by it, concluded that the award rested not on an erroneous

determination of a question of fact by the arbitrator, but

on the removal of a ‘‘dispositive issue of fact’? from the

System Board’s jurisdiction hy virtue of the Board’s in-

appropriate reliance on an alleged ‘‘stipulation’’ concern-

ing a factual issue. (App. 24a). On that basis, the

Court held that the parties did not get what they bargained

for—‘‘a board decision resolving their arguments and evi-

dence one way or the other, as opposed to relying on a

non-existent stipulation of dispositive fact’’. (App. 26a).

While misapprehending the significance of pilot acknow]-

edgement of no ‘‘stipulation’’ by the Company on a specific

factual issue, the Court ignored the fact that the arbitrator

reached his ‘‘conclusion’’ on what the Court of Appeals

termed the ‘‘dispositive issue’’ after ‘‘considerable discus-

sion on this point’? and not on the basis of any ‘‘stipula-

tion’’ (Jt. App. 47) .

Despite the fact that the Neutral did decide the issue

before him, did reach a result which was plausible under

the agreement, and did not exceed his jurisdiction, the

Court of Appeals directed the District Court: to set the

award aside because, in its view, the arbitrator had not

‘‘resolved’’ an arbitrable is (App. 26a). The Court

denied ALPA’s subsequent pet for rehearing. (App.

27a).

REASONS FOR GRANTING

The Court of Appeals’ Decision Which

Standard for Review of Labor Arbitration Aw

sitating Endless Judicial Intervention in the Arbitration

Process Is In Conflict With Applicable Decisions of This

Court and Other Decisions of Courts of Appeals Estab-

lishing Fundamental Principles of Federal Labor Law

In a series of three decisions in 1960, commonly re-

ferred to as the Steelworkers trilogy, this Court announced

the basic principles guiding the relationship between the

labor arbitration and judicial processes. United Steel-

workers of America v. American Manufacturing Co., 363

U.S. 564 (1960); United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);

United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960). These decisions, as the

District Court in this case observed, ‘‘enunciated a clear

policy of encouraging arbitral resolution of labor disputes

by limiting judicial review of arbitration awards’’. (App.

10a). Recognizing that prompt resolution of such dis-

EE

8

putes could be better accomplished through extra-judicial

resolution by individuals with expertise in such matters,

this Court instructed that courts were to refrain from

reviewing the correctness of labor arbitration awards:

‘The refusal of courts to review the merits of

an arbitration award is the proper approach to arbi-

tration under collective bargaining agreements. The

federal policy of settling labor disputes would be

undermined if courts had the final say on the merits

of the awards.”’ United Steelworkers vy. Enterprise

Wheel, supra, 363 U.S. at 596.

This remains the guiding principle to which Courts are ex-

pected to adhere. See, e.g., Gunther v. San Diego & Arizona

Eastern Ry. Co., 382 US. 257, 263-264 (1965); Hines vy.

Anchor Motor Freight, Inc., —— US. —, 96 S. Ct. 1048,

1056 (1976). Also see, Brotherhood of Railroad Trainmen

v. Chicago River & Indiana Railroad Co., 353 U.S. 30

(1957).

The Court of Appeals’ decision disregards this prin-

ciple and establishes a new standard for review which has

the foreseeable consequence of generating massive judi-

cial involvement in direct conflict with this Court’s an-

nounced policy of judicial restraint in such matters.

The Court of Appeals’ decision rests solely on its

determination that the arbitration board somehow failed

to confine itself to matters within its jurisdiction in re-

solving the dispute before it. The Court’s determination

is without any decisional support, and is contrary to this

Court’s prior pronouncements,

One of the very limited grounds under the Railway

Labor Act for setting aside a System Board award is, as

the Court of Appeals noted, ‘‘for failure of the order to

conform, or confine itself, to matters within the scope of

the [board’s] jurisdiction.’’ 45 U.S.C. § 153, First (q)

(App. 24a). While the Court of Appeals recognized that

the concern under such a provision has been with instances

‘‘when an arbitration board ventures outside the scope of

the authority conferred on it by the collective bargaining

agreement’? (App. 25a), it nevertheless proceeded to ex-

tend the concept to the situation ‘‘when an arbitration

panel mistakenly assumes that certain issues are not be-

fore it’? (App. 25a), and as a result does not “‘decide”’

all the issues within its jurisdiction.

The attempt by the Court of Appeals to rationalize its

obvious departure from traditional doctrine misapprehends

and is at odds with the teaching of this Court’s Steel-

workers trilogy. Enterprise Wheel, supra, established the

principle that, since the arbitrator derives his jurisdictional

authority from the collective bargaining agreement, he

may not exceed the scope of the agreement. Thus, in re-

viewing an award, the Court must determine that the

arbitrator ‘‘stayed within the areas marked out for his

consideration’’, id., at 598. Once the Court determines that

these tests are satisfied, judicial inquiry ends.

The extension by the Court of Appeals of the doctrine

to a situation where the arbitrator is alleged to have de-

cided less than what was submitted to him properly—a

‘‘reverse-Enterprise’’ situation—is entirely unprecedented

and destructive of the entire framework for private,

non-judicial resolution of labor-management disputes which

this Court established as fundamental and crucial in its

Steelworkers trilogy. Those decisions were premised on

two basic and complementary concepts: (1) labor-manage-

ment disputes will be resolved through an arbitral process

which ‘‘substitutes a regime of peaceful settlement for the

PELE LEAH Fe LaF

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older regime of industrial conflict’’, Warrior and Gulf,

supra, 363 U.S. at 585; and (2) that policy ean only prove

successful if the arbitrator’s function under that regime

is not usurped by the Courts and his decision is recognized

as final and binding. American Manufacturing, supra, 363

U.S. at 569; Enterprise Wheel, supra, 363 U.S. at 598-

999." Without continued recognition and application of

the second of these concepts, the first also falls.

To satisfy the Court of Appeals’ new standard, a court

would necessarily have to determine how the arbitrator

arrived at his decision, what weight he gave the evidence

before him, and what testimony he credited. Such an in-

quiry would, as the District Court observed, be similar to

probing the thought processes of a judge or jury—an ex-

ercise which may not be condoned. (App. 17a). See,

Gramling v. Food Machinery & Chemical Corp., 151 F.

Supp. 853 (W.D.S.C. 1957). It would also run directly

counter to this Court’s admonition that the courts are to

refrain from passing on the ‘‘reasoning”’ employed by an

arbitrator in reaching his award, Enterprise Wheel, supra,

363 U.S. at 598, lest arbitrators be encouraged to ‘*play

it safe by writing no supporting opinions’’, id.—a con-

sequence which this Court considered permissible, but un-

desirable. Id.

AO wine one iti

Reliance by the Court of Appeals upon this Court’s

decision in Gateway Coal Co. v. United Mine Workers, 414

U.S. 368 (1974) is misplaced (App. 25a). In Gateway, the

Supreme Court reemphasized the ‘“‘presumption of arbi-

trability’’ of labor-management disputes, and the require-

ment that any ‘‘doubts’’ regarding arbitrability should be

resolved in favor of arbitration. Id., 414 U.S. at 377-380

(citing United Steelworkers of America yv. Warrior &

* The same concepts apply under the Railway Labor Act. Int'l.

Association of Machinists v. Central Airlines, Inc., 372 US. 682

(1963); Union Pacific Railroad Co. v. L. I. Price, 360 U.S. 601

(1959).

ae AANA EAA SOULS ci Side A Rh St Se el AR i i he ali as a ata

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Gulf Co., supra, 363 U.S. at 582-583). Thus, even if the

Court of Appeals’ ‘‘reverse-Enterprise’’ theory of judicial

review were proper, a court should not readily assume

that an arbitrator has improperly excluded an issue from

consideration; indeed, any ambiguity should be resolved

in favor of the arbitrator’s proper exercise of his function

as long as it was within his arbitral authority. United

Steelworkers v. Enterprise Wheel, supra, 363 U.S. at 598.

In the case herein, neither the arbitrator nor the parties

expressed in any way that the jurisdiction of the arbitrator

had been narrowed, or that a ‘‘dispositive issue of fact’’

had been removed from the arbitrator’s jurisdiction. The

Court of Appeals, however, reached the conclusion that

this had occurred by a novel and strained reading of the

arbitrator’s award, and by mistakenly giving the pilot

members’ acknowledgement of a ‘‘non-stipulation’’ an

overly broad and unfounded import. Even if the arbi-

trator’s conclusion as to what he found had been ‘‘agreed’”’

was inartistically or ambiguously phrased, it cannot be

said with ‘‘positive assurance’’ (c¢.f., Warrior & Gulf,

supra, 363 U.S. at 582-583), that his decision reflected a

declination of jurisdiction, and not a determination on the

merits. As further noted in Warrior & Gulf:

‘‘In the absence of any express provision exclud-

ing a particular grievance from arbitration, we

think only the most forceful evidence of a purpose

to exclude the claim from arbitration can prevail

...? Td., at 584-585.

If the actions of the parties to an agreement are held

to so rigorous a standard in order to justify judicial inter-

vention in the arbitral process, it is submitted that analysis

of an arbitrator’s conduct, thought mechanisms, and deci-

sional processes should a fortiori result in refusal to set

aside an arbitration award.

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In this case, the arbitrator stated that, as to the ques-

tioned holding, there was ‘‘considerable discussion on this

point ...’’, and that it was his feeling that it was ‘‘...

entirely proper to consider and weigh statements and con-

cessions made by .. . [Employer board members] during

Executive Session in reaching a conelusion.’’ (Jt. App.

47). It is submitted that the arbitrator made it abundantly

clear that his ‘‘conclusion’’ (not his removal of an issue

from arbitration) was based upon ‘‘considerable discus-

sion’’, ‘‘statements’’ and ‘‘conecessions’’, (not upon a ‘‘non-

existent stipulation’’); for the Court of Appeals to con-

clude otherwise reflected a gross misapprehension of the

facts and the law, and a determination to trespass into areas

to which it is forbidden access by prior decisions of this

Court.

This Court has made it clear that it is not a court’s fune-

tion to determine whether the ‘‘conclusion’’ the arbitrator

has reached is correct, or whether the court would have re-

solved the grievance differently :

SO ee re ee eT OT

‘*{ T]he question of interpretation of the collective

: bargaining agreement is a question for the arbi-

trator. It is the arbitrator’s construction which was

bargained for; and so far as the arbitrator’s decision

j concerns construction of the contract, the courts

3 have no business overruling him because their in-

, terpretation of the contract is different from his.’’

United Steelworkers v. Enterprise Wheel, supra,

363 U.S. at 599.

Also see, United Steelworkers v. American Manufacturing

Co., supra, 363 U.S. at 568. Numerous Courts of Appeals

decisions have recognized that errors of fact or law by the

arbitrator do not provide a basis for setting aside an arbi-

tration award, and a court cannot substitute its judgment

;

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13

for that of the arbitrator. See, e.g., Air Line Pilots Asso-

ciation, Int’l. v. Capitol International Airways, Inc., 343

F. Supp. 923, 926 (M.D. Tenn. 1971), aff’d, 458 F.2d 1349

(6th Cir. 1972); Dallas Typographical Union No. 173 v.

A. H. Belo Corp., 372 F.2d 577, 581-582 (5th Cir. 1967) ;

Amalgamated Butcher Workmen Local U, No. 641 v. Cap-

itol Packing Co., 413 F.2d 668, 672-673 (10th Cir. 1969) ;

San Maritine Compania de Navegacion, S. A. v. Saguenay

Terminals Ltd., 293 F.2d 796, 800 (9th Cir. 1961) ; Ludwig

Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1132 (3rd Cir.

1969); Orion Shipping & Trading Co. v. Eastern States

Petroleum Corp. of Panama, 312 F.2d 299, 300 (2nd Cir.

1963), cert. denied, 373 U.S. 949 (1963); Edwards v. St.

Louis-San Francisco Railroad Co., 361 F.2d 946, 952 (7th

Cir. 1966) ; Washington-Baltimore Newspaper Guild, Local

35 v. The Washington Post Co., 442 F.2d 1234, 1239 (D.C.

Cir. 1971) ; Saxis Steamship Co. v. Multifacs International

Traders, Inc., 375 F.2d 577, 581-582 (2d Cir. 1967). Also

see the recent decision of the Court of Appeals for the

Ninth Cireuit in Aloha Motors v. Int’l. Longshoremen’s and

Warehousemen’s Union, Local 142, F.2d , 91

LRRM 2751, 2752 (9th Cir. 1976) (reversing decision of

District Court which had vacated arbitration award).

Significantly, the Court of Appeals did not say that an

arbitrator could not rely on concessions or statements by

Company representatives as a basis for ruling against the

Company. Rather, it is only because the arbitrator was,

in the Court’s view, in error in his understanding and

evaluation of those ‘‘concessions’’ and ‘‘statements”’’ that

the award must be set aside. Thus, it is only by exploring

the very areas which this Court has declared are closed

to judicial scrutiny that the Court of Appeals was able

to reach the result it did.

BORNE TE TIRE BOM ST Ft BEM DPS ENTE PRAM ELM Pal

14

The policy of judicial deference to arbitration awards

often ‘‘takes judicial self-discipline of an exacting order’’,

Gulf States Telephone Co. v. Local 1692, Int’l Brotherhood

of Electrical Workers, 416 F.2d 198, 202, n. 11 (5th Cir.

1969), but it is nevertheless essential because, ‘‘The arbiter

was chosen to be the Judge. That Judge has spoken. There

it ends.’’ Safeway Stores v. American Bakery & Con-

fectionary Workers Int’l Union, Local 111, 390 F.2d 79, 84

(Sth Cir. 1968). The decision of the Court of Appeals here-

in unfortunately succumbed to the temptation of correct-

ing what it viewed as an error in the arbitration award,

and in so doing, failed to exercise that ‘‘self-discipline”’

mandated by prior pronouncements of this Court.

OR ee ne ET GERI sa i

15

Conclusion

The Court of Appeals’ decision reversing the District

Court and setting aside a final and binding System Board

award on the basis of a new standard for review presents

a clear departure from prior pronouncements of this Court

and other Courts of Appeals which had sharply limited

judicial involvement in review of labor arbitration awards.

If allowed to stand it will undermine the federal labor

policy to the serious detriment of both mnagement and

labor since each of these contending interests will be free

to plague the other with endless review of arbitration de-

cisions. It will also add considerably to the already over-

burdened caseload of the federal courts. For the reasons

stated, it is respectfully requested that a writ of certiorari

issue to review the Court of Appeals’ decision, and that,

upon review, the Supreme Court order the enforcement

of the System Board Award.

Respectfully submitted,

SAMUEL J. CoHEN

Attorney for Petitioner

605 Third Avenue

New York, New York 10016

Tel. No. (212) 682-6077

Of Counsel:

CoHEN, WEIss AND Simon

Rosert S. SaveELson

STEPHEN B. Moupor

Ly a ne

PIII DEORE, PEPE IE A

POOR COPY

APPENDIX

Su

Opinion of the Arbitration Board

OUT OF SENIORITY GRIEVANCE

Berore THe Nortuwest Arrives, Inc.

System Boarp or ADJUSTMENT

ray

i se

In the Matter of

NortHwest AIRLInEs, Inc.

and

Arr Line Pivots Association, INTERNATIONAL

BacKGROUND

Pursuant to the provisions of the Agreement between

the parties, the above-entitled matter came before the

System Board of Adjustment comprised of Messrs. A. E.

Floan and S. G. Lee of the Company, Messrs. G. A. Stone

and H. Muto of the Association, and Mr. N. H. Zumas,

Neutral Referee. Hearing was held in Minneapolis on

June 17, 1971, at which oral testimony was presented and

transcribed with exhibits submitted by both sides.

Written briefs were submitted by the Association in

October 1971 and by the Company in November 1971. On

May 24, 1972, an Executive Session was held in Minneapolis.

A further Executive Session was held in Minneapolis on

June 27, 1972, at which time the Company filed a Motion to

Reopen the hearings for the purpose of adducing further

testimony relative to the issue of past practice. The motion

was opposed by the Association. On July 6, 1972, the

Neutral advised the parties that Company’s Motion to

Reopen was denied.

PARTIR ERE NAR RIS WAT IA TIT RATION WII A

2a

Opinion of the Arbitration Board

StTaTEMENT oF Facts

In July 1970 the Brotherhood of Railway and Airline

Clerks (BRAC) called a strike against the Company. As

a consequence, the Company furloughed all but approxi-

mately 300 of its 1,800 pilots. During the course of the

BRAC strike many of the pilots retained by the Company

were not the most senior on the system seniority list. This,

according to the Company, was necessary because many

very senior pilots were not qualified to fly in either the

‘“‘equipment or category demanded by the strike-altered

schedules’? and therefore ‘‘immediate training was re-

quired and was provided in order that line flying be kept

in seniority order as much as possible.’

Thus, junior pilots were retained to fly as second officers

on the 707 and 727 aircraft, and junior pilot ‘‘instructors”’

were retained for the purpose of training senior pilots

during this period.

With respect to those pilots retained to fly as second

officers on the 707 and 727 aircraft, the Company agreed to

pay, on a ‘‘one-for-one’’ basis,’ pilots laid off but more

senior to those pilots retained.

This dispute centers around those junior pilots retained

for the purpose of serving as instructor pilots, and does

not involve those junior pilots retained to fly as second

officers on the 707 and 727 aircraft.

Subsequent to the resolution of the junior flying pilots

retained out of seniority, there began a series of meetings

between officials of the Company and the Association to

consider, among other things, the ‘‘one-for-one’’ question

as it affected instructor pilots.

* Payment on a “one-for-one” basis meant that the senior fur-

loughed pilot would be made whole for the junior retained pilots’

duty, including pay and fringe benefits.

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ERIE APL PIE BRT SE

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Opinion of the Arbitration Board

The testimony adduced at the hearing as to under-

standings, if any, reached during these meetings is in

sharp conflict. Suffice it to say that the Association assumed

that the Company agreed to apply the ‘‘one-for-one”’ for-

mula to instructor pilots; and that several months after

these meetings, the Company informed the Association

‘*that there would be no agreement relative to the people

in the flight instructor status, check airmen and so forth.’’

Question AT IssuE

The basic issue in this dispute is whether there was an

obligation on the part of the Company to select its pilot

instructors from the roster of pilots on active payroll

status.

CoNTENTION OF THE PARTIES

Briefly summarized, the Associaton contends:

1. While there is no requirement on the part of the

Company (conceded by the Association) to follow strict

seniority in the selection of instructor pilots, the Company

does have an obligation to make such selection from the

roster of those pilots actively employed.

2. The past practice of the Company has been to make

its selection from the ranks of actively employed pilots,

and such past practice has been specifically set forth by

the Company’s Director of Flight Training to the Associa-

tion’s Chairman of its Master Executive Council by letter

dated June 19, 1969.

3. During the discussions in July 1970 and in the

ensuing months the Association was led to believe that

DHHR CODY

Opinion of the Arbitration Board

Company officials had accepted the proposal to apply the

‘*one-for-one’’ formula for instructor pilots, and the Com-

pany is estopped from subsequently changing its position

because the Association agreed not to go on strike on the

basis of that understanding.

4. If the Company were allowed to select its instructor

pilots from whatever source it wished, such action would

destroy the seniority rights of the pilots under the Agree-

ment between the parties.”

The Company’s position, summarized:

1. There is nothing in the Agreement, past practice,

or the actions of the parties requiring the Company to

select its instructor pilots from the active pilot seniority list.

2. The fact that the Company agreed (by the letter of

June 19, 1969) to select instructors from among pilots

shown on the seniority list, did not mean that the Company

had agreed to furlough in seniority order or to rehire from

among senior pilots in the event of furloughs.

3. The letter of June 19, 1969, was merely a commit-

ment on the part of the Company not to ‘‘hire off the

street’? as long as there were pilots on the Association

seniority list qualified to be instructors.

4. Company pilot instructors, by reason of their pecu-

liar duties and responsibilities, are a separate craft or class

of employees within the meaning of the Railway Labor Act.

* Section 21(c) of the Agreement states:

“Relative position on the seniority list shall govern all pilots

in case of promotion and demotion, their retention in case of

reduction in force, their assignment or reassignment due to ex-

pansion or reduction in schedules, their reemployment after re-

lease due to reduction in force, and their choice of vacancies.

This Section shall apply except as otherwise stipulated in this

Agreement.”

omim ne, —_*! om -eae oe 1

5a

Opinion of the Arbitration Board

Discussion

As indicated earlier, there is conflicting testimony be-

tween the parties as to any ‘‘understanding”’ evolving out

of the July 1970 discussions. Moreover, the silence on the

part of the Company, under the circumstances, was in-

sufficient as a basis for creating any kind of an estopped

situation that was binding on the Company.

The provisions of the Agreement between the parties

are silent as to ‘‘instructor pilots,’’ despite the fact that

Section 21(c) might arguably include instructor pilots by

its reference to and inclusion of ‘‘all pilots.’? However,

this in and of itself is insufficient.

The position of the Association is, however, supported

by the June 19, 1969 letter from the Company’s Director of

Flight Training to the Association’s Chairman of the Master

Executive Council reading as follows:

‘As you are aware, we have always chosen our

Check and Instructor Pilots from among the pilots

shown on the pilot seniority list. You are assured

that during the term of the new agreement so long

as such pilots who we consider to have the qualifica-

tions for such positions make themselves available

for such positions and perform their duties with the

same high degree of efficiency and integrity as has

been the experience in the past, we have no intention

of changing our past practice.’

It is agreed that the reference to ‘‘pilot seniority list’’

in the letter does not include furloughed pilots, but is lim-

ited to those pilots on the active roster.

>

OR | OPN BY IN ETN EON TR YEMEN NE OP PUTED 4

wi So vaca

6a

Opinion of the Arbitration Board

Under the terms of the Company’s commitment, it is

clear that unless it was shown that the pilots on the active

roster were not qualified there was an obligation on the

part of the Company to make its selection from that active

roster.

Failure on the part of the Company to meet its burden

of showing lack of qualification requires the grievance of

the Association to be sustained. On the basis of the record,

therefore, the Company is directed to compensate such ap-

propriate senior pilots on a ‘‘one-for-one’’ basis during the

period in question. The Company is further directed to

restore such benefits as may have been lost during such

period.

/s/ Nicholas H. Zumas

Nicholas H. Zumas, Neutral Member

/s/ George A. Stone (Affirm) (Dissen+)

Association Member

/s/ Herman Muto (Affirm) (Dissent)

Association Member

(Affirm-Dissent)

Company Member

(Affirm-Dissent)

Company Member

Pectin ee

af

y

‘

i

;

:

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7a

Memorandum Opinion of District Court

UNITED STATES DISTRICT COURT

For Tue District or CoLUMBIA

Civil Action No. 829-73

NortHwest AIRLINEs, INC.,

Plaintiff,

v.

Air Lixe Piwots Association, INTERNATIONAL,

Defendant.

ray

Vv

This suit concerns the validity of an arbitration award

made pursuant to section 204 of the Railway Labor Act,

45 U.S.C. § 184 (1970), involving a seniority grievance

following a strike. The parties are now before the court on

cross-motions for summary judgment. A brief recitation

of the facts of the case is useful in arriving at a clear

understanding of the issues.

Plaintiff Northwest Airlines, Inc. (NWA) is a common

carrier engaged in interstate commerce and is subject to

the provisions of the Railway Labor Act, 45 U.S.C. § 151,

et seq. (1970). Defendant Air Line Pilots Association,

International (ALPA) is a labor organization recognized

for collective bargaining purposes as representative of

pilots in the employ of NWA. Section 204 of the Railway

Labor Act, 45 U.S.C. § 184 (1970), establishes the procedure

by which contractual interpretation and application are to

be determined for airlines and their employees. See Inter-

national Association of Machinists, AFL-CIO v. Central

Airlines, Inc., 372 U.S. 682, 685-86 (1963). Pursuant to the

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Memorandum Opinion of District Court

mandate of § 204 Northwest and ALPA have, by agree-

ment, established the NWA Pilot’s System Board of Adjust-

ment for the purpose of adjusting and deciding disputes

which may arise under the terms of the Pilots Agreement.

The Board consists of five members, two appointed by the

company, two by the Association, and a neutral member,

selected by agreement or appointed by the National Media-

tion Board for each dispute. The neutral member is Chair-

man of the Board and presides at meetings and hearings,

guiding the parties in the presentation of their evidence.

A majority vote of the Board is final, binding and con-

clusive.

In accordance with the Agreement, Northwest and

ALPA submitted to the Board a dispute concerning the

airline’s selection and use of pilot instructors during a

strike by a separate craft group in 1970. The basic issue

was whether there was an obligation on the part of the

company to select its instructors only from those pilots on

active payroll status, or whether it might hire both active

and furloughed pilots. ALPA contended that the company

had an obligation, based on past practice and the apparent

acquiescence of the company, to hire only active pilots.

Northwest contested this assertion, arguing that nothing

in the Agreement, past practice, or actions of the parties

prohibited the airline from selecting its instructors either

from active or furloughed pilots. A primary bone of con-

tention was a letter of June 19, 1969 from Northwest’s

Director of Flight Training to ALPA’s Chairman of the

Master Executive Council which indicated that Northwest

had selected and would continue to select instructor pilots

from those on the ‘‘pilot seniority list.’ The company

claims that this was merely an agreement not to “hire off-

the-street’’ while ALPA viewed it as support for its conten-

tion that only active pilots would be hired.

pni corn TwMROLLIC

9a

Memorandum Opinion of District Court

A hearing on this grievance was held on June 1%, 1971.

George A. Stone and Herman P. Muto were the ALPA

representatives on the Board; Albert E. Floan and Stewart

G. Lee were the Northwest representatives; and Nicholas

H. Zumas, an attorney, was the neutral member. After the

hearing Board members received copies of the hearing

transcript and exhibits, and post-hearing memoranda were

submitted by counsel for ALPA and Northwest. The Board

was convened twice in executive session to review the mat-

ter and at the second session the Northwest members moved

to reopen the hearings to take further evidence regarding

past practice in selecting pilot instructors. That motion

was later denied in writing by the neutral. On October 10,

1972 Zumas sent a signed original of his award to Floan,

who was secretary of the Board, for distribution to the

other members and for their signatures. That award con-

tained a finding that parties agreed that reference to a

pilot seniority list in the letter of June 19, 1969 was limited

to those pilots on the active roster. The parties, in their

pleadings, acknowledge that no such agreement was made.

The award concluded that the letter of June 19 indi-

cated commitment by the company to hire instructor pilots

only from those pilots on active status unless they were not

qualified. Thus the neutral sustained ALPA’s position on

the grievance and Northwest was directed to compensate

senior pilots on a ‘‘one-for-one’’ basis’ if they were passed

over for employment. Since the neutral also concluded

that the evidence presented concerning two other matters,

the provisions of the agreement and the understanding be-

tween the parties, was insufficient to show that the company

1 Normally the airline must select the most senior qualified pilot.

For each junior pilot selected the company must pay the senior pilot

who would otherwise have been selected.

, OR SRE EI SE aT ETH RETR HET CoS

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TERE LAT

See IR as mR

Pins By Reser POR Or *

10a

Memorandum Opinion of District Court

had hired out-of-seniority, the award appears to be based

on an erroneous finding of fact.

There was a space of several months between the time

the arbitrator issued his award (Oct. 1972) and the time

the second ALPA representative signed the award and

made it final (Feb. 1973). Northwest claims that during

this time ALPA Board members knew of the erroneous

finding but did not inform the neutral or do anything to

correct it. Floan, a Northwest representative, called this

matter to the attention of Zumas, discussed it with ALPA

representatives and attempted to enlist the aid of the

Northwest and ALPA legal departments. He also appar-

ently withheld distribution of the award to the ALPA

Board members. There was considerable discussion and

communication, not completely without acrimony, as North-

west attempted to have the erroneous finding corrected.

ALPA was agreeable to some change in the language of

the award, but not to the extent that the result would be

altered. ALPA Board members eventually obtained and

signed copies of the award and it was forwarded to the

National Mediation Board for filing. Northwest has re-

fused to comply with the order and has brought this action

seeking to set aside the award.

Normally courts are most reluctant to intervene in labor

arbitration matters. In 1960, in a series of cases labeled

the Steelworkers Trilogy,? the Supreme Court enunciated

a clear policy of encouraging arbitral resolution of labor

disputes by limiting judicial review of arbitration awards.

* United Steelworkers of America v. American Manufacturing

Co., 363 U.S. 564 (1960); United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574 ( 1960); United Steel-

workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593

(1960).

lla

Memorandum Opinion of District Court

The Supreme Court stated:

The refusal of courts to review the merits of an

arbitration award is the proper approach to arbitra-

tion under collective bargaining agreements. The

federal policy of settling labor disputes by arbitra-

tion would be undermined if courts had the final say

on the merits of the awards. United Steelworkers of

America v. Enterprise Wheel & Car Corp., 363 US.

593, 596 (1960).

See Union Employers Division of Printing Industry of

Washington, D. C. v. Columbia Typographical Union, 353

F. Supp. 1348, 1349 (D.D.C. 1973), aff’d, 492 F.2d 669 (D.C.

Cir. 1974). This rationale has been incorporated in the

Railway Labor Act itself which requires the district court

to accept the System Adjustment Board’s determination of

the merits of the grievance. See Thorgeirsson v. Trans

World Airlines, 288 F. Supp. 71, 75-76 (S.D.N.Y. 1968) ;

45 U.S.C. § 153 (1970). The Act provides in essence that

the district court shall have jurisdiction to review an award

of a Board only for failure of the Board to comply with the

statute, for failure of the order to conform or confine itself

to the jurisdiction of the Board, or for fraud or corruption

by a member making the order. 45 U.S.C. § 153 (q) (1970).

While that section deals with railroad boards, plaintiff con-

cedes that courts look to it in examining awards under the

air transport regulations. See International Association of

Machinists, AFL-CIO v. Central Airlines, Inc., supra; Rossi

v. Trans World Airlines, 350 F. Supp. 1263, 1269 (C.D. Cal.

1972). Northwest contends that the court may review the

present award since Northwest was denied due process, and

since the actions of the ALPA Board members taken subse-

quent to Zumas’ issuance of the award were tantamount to

fraud. Plaintiff also contends that the award can be

. Saaee

ERRNO SP LBL REI RN TT PEL EOE

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PNP NER IASON HRMS R A ELM TIM ah O

12a

Memorandum Opinion of District Court

reviewed since it is wholly baseless and without reason.

Plaintiff has failed to show any action on the part of the

neutral which would constitute denial of due process or of

a fair and impartial hearing. A full hearing was conducted

and two executive sessions were held. Although Zumas

refused to allow reopening for further evidence that in no

way constituted an abuse of discretion since it was within

his authority to determine at what point the evidence sub-

mitted was sufficient. See Catz American Co. v. Pearl

Grange Fruit Exchange, Inc., 292 F. Supp. 549, 553

(S.D.N.Y. 1968). The court ean discern no evidence of

partiality on the part of the neutral which could be con-

strued as a denial of due process by the Board. See Rosen

v. Eastern Airlines, Inc., 400 F.2d 462 (5th Cir. 1968), cert.

denied, 394 U.S. 959 (1969).

Northwest also contends that the ALPA Board members

had a duty to notify the neutral that his finding was in error

and that by signing an award containing an erroneous

finding the members perpetrated fraud upon Northwest.

|

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3 Although plaintiff uses the term fraud in a general sense

} it is a specific tort, requiring proof of false representation,

; in reference to a material fact, made with knowledge of its

Y

falsity and with intent to deceive. In addition, action must

be taken in reliance upon the representation. U.S. v. Kiefer,

; 228 F.2d 448 (D.C. Cir.), cert. denied, 350 U.S. 933 (1956) :

Sankin v. 5410 Connecticut Avenue Corp., 281 F. Supp. 524,

949 (D.D.C. 1968), aff’d sub nom. Benn v. Sankin, 410 F.2d

2 1060 (1969) cert. denied, 396 U.S. 1041 (1970). Only by the

i most strained construction of these elements could a claim

of fraud be made out in the present case. Admittedly fraud

may arise from an omission as well as an explicit misrepre-

: sentation, see Gibbons v. Brandt. 170 F.2d 383, 391 (7th Cir.

; 1948), cert. denied, 336 U.S. 910 (1949), but plaintiff has

the burden of proving an arbitrator’s misconduct. See

Bienes... <n

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lia

Memorandum Opinion of District Court

Catz American Co. v. Pearl Grange Fruit Exchange, Inc.,

supra at 551-52. Northwest has not met the burden of prov-

ing that the ALPA Board Members were under an obliga-

tion to inform the neutral of an erroneous finding. In the

general arbitral situation in which each party appoints

representatives to the Board and the neutral is selected by

them or by a disinterested third-party, the representatives

of the parties cannot be expected to play a wholly impartial

part. ‘*They are partisans once removed from the actual

controversy.’’ Stef Shipping Co. v. Norris Grain Co., 209

F. Supp. 249, 253 (S.D.N.Y. 1962).° It is commonly accepted

that the party-designated arbitrators are not and cannot

be neutral in the sense that the independent arbitrator or

a judge is. Moreover, members should not be required to

agree with all of the findings of the arbitrator prior to

affixing their signature to the award, and even though the

ALPA me.abers concede the substantial factual error in the

award they nonetheless agreed with its outcome. See letter

of February 15, 1973 from H. P. Muto and George Stone to

James F. Conway. It, therefore, is apparent that plaintiff

seeks to have this court review the findings of the arbitrator

on the merits.

The Supreme Court has emphasized the final nature of

System Board awards on several occasions. See Gunther

* This view draws support from the decision of the Second Circuit

in D’Elia v. New York, New Haven & Hartford Railroad Co., 338

F.2d 701 (2d Cir. 1964), cert. denied, 380 U.S. 978 (1965). Under

the Railway i.abor Act complaints are heard by the National Rail-

road Adjustment Board, composed of company and union representa-

tives. Only in a case of deadlock is a neutral referee appointed. 45

U.S.C. § 153 (1970). The court held that under the Act the plain-

tiff was entitled to a completely impartial hearing only when the

case reached the referee designated to sit with the Board. As long

as the final hearing officer was impartial the requirements of due

process were satisfied. 338 F.2d at 702. See McDonald v. Penn

Central Transpertation Co., 337 F. Supp. 803, 806 (D. Mass. 1972).

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Memorandum Opinion of District Court

v. San Diego & Arizona Eastern Railway Co., 382 U.S.

257, 263-64 (1965); Brotherhood of Railroad Trainmen v.

Chicago River & Indiana Railroad Co., 353 U.S. 30 (1957).

The Court of Appeals for the District of Columbia Circuit,

in a frequently cited opinion also spoke to this issue stating:

‘‘we do not believe Congress intended that [ad-

justment board awards] should be circumvented by

free resort to judicial review or determination de

novo of the merits of the controversy.’’

Washington Terminal Co. v. Boswell, 124 F.2d 235, 240

(1941), aff’d by an equally divided court, 319 U.S. 732

(1943). See Bower v. Eastern Airlines, 214 F.2d 623, 625-

26 (8rd Cir.), cert. denied, 348 U.S. 871 (1954). Therefore,

a claim by a party that the award was based on erroneous

conclusions of law or fact or on insufficient supporting facts

will not be upheld. Edwards vy. St. Louis-San Francisco

Railroad Co., 361 F.2d 946, 952 (7th Cir. 1966) ; Orion Ship-

ping & Trading Co. v. Eastern States Petroleum Corp. of

Panama, 312 F.2d 299, 300 (2d Cir.), cert. denied 373 U.S.

949 (1963). This is so regardless of the degree to which the

arbitrator’s views on the facts and the law might be open

to question. U.S. for Use and Benefit of Chicago Bridge &

Tron Co. v. Ets-Hokin Corp., 284 F. Supp. 471, 476 (N.D.

Cal. 1966), aff’d, 397 F.2d 935 (9th Cir. 1968). Indeed one

court has stated frankly that ‘‘errors of judgment on the

part of arbitrators are an arbitration risk.’’ Commercial

Solvents Corp. v. Louisiana Liquid Fertilizer Co., 20 F.R.D.

359, 362 (S.D.N.Y. 1957).

As the neutral arbitrator of the System Adjustment

Board, Zumas directed the hearings and prepared his award,

interpretating the facts and the law. As indicated above,

this court’s review of his award is accordingly limited. See

PIrrn THROLIC

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Memorandum Opinion of District Court

Airline Pilots Ass’n, International v. Capitol International

Airways, Inc., 343 F. Supp. 923, 926 (M.D. Tenn. 1971),

aff'd, 458 F.2d 1349 (6th Cir. 1972). The general pro-

hibition on review of the merits of a decision, reinforced by

the language of § 153 (q) would appear to preclude any

review whatsoever of the merits of an award. However, in

the arbitration context the provision that an award may be

reviewed if the arbitrator has exceeded his jurisdiction has

been construed to encompass awards which are ‘‘ without

foundation in reason or fact.’’ See Brotherhood of Rail-

road Trainmen vy. Central of Georgia Railway Co., 415 F.2d

403, 411-12 (Sth Cir. 1969), cert. denied, 396 U.S. 1008 (1970).

The court, therefore, consistent with the statute, might set

aside an award where the Board’s interpretation is wholly

baseless and without reason. See Keay v. Eastern Airlines,

Inc., 440 F.2d 667, 668 (1st Cir. 1971); McDonald v. Penn

Central Transportation Co., supra, at 806. It is exactly this

action which the plaintiff seeks.

The standard laid out above is a stringent one and it does

not mean simply that if the award is supported by in-

sufficient facts it may be set aside. As the Court of Appeals

for the Fifth Cireuit pointed out in Brotherhood of Rail-

road Trainmen v. Central of Georgia Railway Co., supra

the requirement that the result of arbitration have a founda-

tion in fact means that the award must, in some logical

way, be derived from the wording or purpose of the con-

tract. 415 F.2d at 412. If there is no rational way to ex-

plain the remedy handed down by the arbitrator as a logical

means of furthering the aims of the contract then the award

is without foundation in reason or fact and its exceeds the

arbitrator’s jurisdiction. In United Steelworkers of America

v. Enterprise Wheel ¢ Car Corp., supra, the court noted

that while the arbitrator was bound by the collective bar-

gaining contract he could look to many sources of guidance

DmAMD CODY

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Memorandum Opinion of District Court

in determining his award and unless his words manifested

an infidelity to that obligation, a court must enforce the

award. 363 U.S. at 597.

The court can find no such blatant disregard on the

part of the neutral for the contract or for his duty, and

is of the opinion that the arbitrator’s award of out-of-

seniority pay was clearly contemplated by the contract

and designed to further its aims. It was indeed the remedy

specifically sought by plaintiff. Therefore the court does

not find that the arbitrator has exceeded his jurisdiction

or that the court may review the substance of his award.

This view is reinforced by the nature of the evidence

which the court would be required to consider. Plaintiff’s

primary proof would be the testimony of the neutral arbi-

trator himself and the testimony of the other members of

the System Board. See Hearing Transcript at 21-24, 32, 43-

44. A situation analogous to this was considered by the

court in Gramling v. Food Machinery and Chemical Corp.,

151 F. Supp. 853 (W.D.S.C. 1957). The court noted there

that the testimony of an arbitrator tending to impeach the

award is incompetent and should be rejected.

‘«Therefore, the general rule is that the testimony

of an arbitrator is not admissible to impeach his own

findings, and where the arbitrators recite in the

award itself that they have disposed of the matters

submitted to them for arbitration as was proper

under the provisions of the agreement for sub-

mission, the parol testimony of one, or more, or

all, of the arbitrators will not be received to impeach

their award and its recital.’’ 151 F. Supp. at 861.

The court in Gramling refused to consider the affidavits

of two of the arbitrators tendered by defendant, refused

to require the arbitrators to appear for the purpose of

BLEED THROUGH

17a

Memorandum Opinion of District Court

testifying in regard to their deliberations, and confirmed

the award. There is merit to the observation of the court

in Gramling that the ‘‘deliberations of an arbitration board

are as much a part of the judicial process as the delibera-

tions of a jury and should be as zealously protected.’’ 151

F. Supp. at 860. It is perhaps more accurate to describe

the arbitrator as a judge, see Safeway Stores v. American

Bakery and Confectionary Workers International Union,

390 F.2d 79, 84 (5th Cir. 1968), and therefore it is even

less appropriate to attempt to probe his decisional pro-

cesses. Indeed, the neutral himself held this view and

stated at his deposition:

‘*Being in a quasi-judicial capacity, I don’t think

it is possible for anyone to inquire as to my state

of mind and to the discussions which were free and

open and presumed to have been in strictest con-

fidence to be spread out on the table.

It’s as though one inquires of a federal judge

what notes he had that precipitated his conclusion.

I think the award speaks for itself.’’ Zumas deposi-

tion tr. 48-49.

7 . .

‘‘T am unwilling unless a court orders me to do

so to divulge anything that is reflected in those

notes.’’ Zumas deposition tr. 51-52.

In light of the above the court will not review the correct-

ness of the Board’s decision under the guise of determining

whether or not the Board complied with the requirements

of § 153. See McDonald vy. Penn Ceniral Transportation

Co., 337 F. Supp. 803, 805 (D. Mass. 1972).

As a final matter the defendant, as prevailing party,

seeks to recover its attorney’s fees, however, such fees are

POOR COPY

oe Ee ET

ee ee

18a

Memorandum Opinion of District Court

recoverable only in exceptional circumstances. See Air

Line Pilots Ass'n. International v. Northwest Airlines, Inc.,

415 F.2d 493 (8th Cir. 1969), cert. denied, 397 U.S. 924

(1970). No evidence of exceptional circumstances appear-

ing, the court is of the opinion that justice would be served

best in this particular case by denying defendant’s request.

The parties having demonstrated no genuine issue of |

material fact in dispute, the court will, therefore, grant |

summary judgment for defendant Air Line Pilots Associa-

tion, International. An appropriate Judgment accompanies

this Memorandum Opinion.

Filed November 21, 1974

James F. Davey,

Clerk

Thomas A. Flannery

United States District Judge

a FRR ORCI IS CAPE AR

19a

Judgment of the District Court

UNITED STATES DISTRICT COURT

For tue District or COLUMBIA

Civil Action No. 829-73

—_ *

w

Nortuwest Aris, INc.,

Plaintiff,

v.

Arr Lrxe Pots Association, INTERNATIONAL,

| Defendant.

— *

Vv

This matter came before the court on cross-motions for

summary judgment. It appearing that there exists no

genuine issue of material fact, and it appearing that de-

fendant is entitled to judgment as a matter of law, and in

accordance with the Memorandum Opinion issued with this

Judgment, it is this 21st day of November, 1974,

Orperep that the motion of defendant Air Lines Pilots

Association, International for summary judgment as it

pertains to enforeing the Award of the Northwest Airlines

Pilots’ System Board of Adjustment in the ‘‘out-of-senior-

ity grievance’’ be, and the same hereby is, granted; and

it is further

Orperep that plaintiff’s motion for summary judgment

on the same issue be, and the same hereby is, denied; and

it is further

20a

Judgment of the District Court

Orperep that plaintiff Northwest Airlines, Inc., its of-

ficers, employees and agents immediately comply with the

requirements imposed upon the company by the above-

mentioned Award; and it is further

Orverep that plaintiff Northwest Airlines, Inc. pay in-

terest at the rate of six percent per annum on all monies

owing since the date of the System Board Award until the

date upon which payment is made in accordance with this

Judgment ; and it is further

Orverep that defendant’s motion for summary judgment

as it relates to attorney’s fees be, and the same hereby is,

denied.

Filed Nov. 21, 1974

James F. Davey,

Clerk

Thomas A. Flannery

United States District Judge

21a

Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

For THe District or CotuMsB1a CIRCUIT

().

VU

No. 75-1022

Nortuwest Arrives, Inc., APPELLANT

Ve

Arr Line Pivots Association INTERNATIONAL

No. 75-1095

Nortuwest AIRLINES, INc.,

v.

Arr Lixe Puts Association INTERNATIONAL, APPELLANT

0).

—

APPEALS FROM THE UNITED States District Court

FOR THE District oF COLUMBIA

(D.C. Civil 829-73)

0

Argued December 16, 1975

Decided February 3, 1976

228

Opinion of Court of Appeals

Philip A. Lacovara, with whom David A. Ranheim, was

on the brief for appellant in No. 75-1022 and appellee in

No. 75-1095.

Stephen B. Moldof, of the Bar of the Court of Appeals

of New York, pro hac vice by special leave of court, with

whom Robert S. Savelson and Donald J. Capuano were

on the brief for appellant in No. 75-1095 and appellee in

75-1022. Michael E. Abram and Glenn V. Whitaker, also

entered appearances for appellant in No. 75-1095 and ap-

pellee in No. 75-1022.

Before: Bazeton, Chief Judge, CLarx,* Associate Jus-

tice of the Supreme Court of the United States,

and Rosrxsox, Circuit Judge.

Opinion for the Court filed by Chief Judge Bazevon.

Bazeton, C.J.: Appellant Northwest Airlines brought

this suit to set aside an arbitration award to the Air Line

Pilots Association pursuant to the Railway Labor Act.’

Although the district court concluded that the award was

predicated on a dispositive mistake of fact, it granted the

Association’s motion for summary judgment, holding that

it lacked power to review an arbitrator’s findings on the

* Sitting by designation pursuant to 28 U.S.C. § 294(a) (1970).

145 U.S.C. § 151 (1970) et seq.

In 1936, Congress brought air carriers under the statute, 49 Stat.

1189, as amended, 45 U.S.C. § 181 (1970) et seq.

Pursuant to 45 U.S.C. § 184, Northwest Airlines (“the com-

pany”) and the Air Line Pilots Association (“the union”) have estab-

lished by agreement a System Board of Adjustment with authority

to settle disputes arising out of their collective bargaining agreement.

The board is composed of two members designated by the company,

two members designated by the union, and one “neutral member”

selected by the parties jointly, or, if they cannot agree, by the Na-

tional Mediation Board. J.A. 13-21.

23a

Opinion of Court of Appeals

merits ‘‘regardless of the degree to which the arbitrator’s

views on the facts and the law might be open to question.’’ ?

We reverse.

I

The facts are fully set forth in the district court’s re-

ported opinion.* It suffices to say that the arbitration

board’s opinion turns on the meaning of the term ‘*pilot

seniority list’? in a 1969 letter from the company to the

union. The board deemed it unnecessary to decide that

issue, stating: ‘‘It is agreed that the reference to ‘pilot

seniority list’ in the letter does not include furloughed

pilots, but is limited to those pilots on the active roster.’’ *

This ‘‘agreement’’ was allegedly arrived at between the

company and union representatives during the board’s first

executive session.’ However, the district court found, and

it is essentially undisputed, that in fact ‘‘no such agreement

was made.’’ ®

2 Northwest Airlines, Inc. v. Air Line Pilots Ass'n, 385 F. Supp.

634, 639 (D.D.C. 1974).

3 Jd.

*JT.A. 36.

5 J.A. 47. See supra, note 1.

® Northwest Airlines, Inc. v. Air Line Pilots Ass’n, supra, note

2, 385 F.Supp. at 636, 638.

Union counsel conceded in argument before the district court,

“There is no question that the stipulation was not arrived at, Your

Honor.” J.A. 91. At the court’s suggestion, a formal stipulation was

filed to the effect that the union-appointed board members “do not

recall and are not aware of any stipulation made during the executive

sessions.” J.A. 119, 125. Moreover, the “pilot seniority list” appar-

ently referred to was itself admitted into evidence and was the sub-

ject of testimony before the board. J.A. 25, 42-45, 131. Contrary

to the alleged “agreement,” it contains the names of both active and

furloughed pilots.

[Continued]

ee Por nmReaco TONES tT

oe Pe

24a

Opinion of Court of Appeals

II

We think that granting relief in this case would not

undermine the established policy of settling labor disputes

through arbitration by opening up the merits of arbitration

decisions to judicial review.’ The board’s opinion does not

rest on an allegedly erroneous determination of an issue of

fact or law on the record before it.’ It rests, instead, on the

removal of a dispositive issue of fact from the board’s jur-

isdiction, based on a non-existent stipulation between the

parties.

Courts retain power to set aside arbitration awards

‘for failure of the order to conform, or confine itself, to

matters within the scope of the [board’s] jurisdiction.’’ ®

6 [Continued]

It has been suggested in this court, however, that simply because

the union-appointed board members “do not recall” an agreement, it

does not follow that none was reached. No binding agreement can

exist between a party who strenuously denies it was ever made and

another who is unaware of its existence.

* See, e.g., United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593, 596 (1960); United Steelworkers of Amer-

ica v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers

of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).

* But cf. Gunther v. San Diego & Ariz. E. Ry., 382 U.S. 257,

261 (1965); Electronics Corp. of America v. Int. Union of Electrical

Workers, 492 F.2d 1255 (1st Cir. 1974); Brotherhood of R.R. Train-

men v. Central of Ga. Ry., 415 F.2d 403, 414 (Sth Cir. 1969), cert.

denied, 396 U.S. 1008 (1970); Procter & Gamble Mfg. Co. v. In-

dependent Oil Workers, 386 F.Supp. 213, 225 (D.Md. 1975) (court

may set aside arbitrator’s award if “wholly baseless and completely

without reason”).

® Section 3 of the Railway Labor Act, 45 U.S.C. § 153, subd.

First, (p); id., (q) (1970).

While this section applies directly only to railroad boards, the

union concedes the courts look to it for guidance in assessing awards

[Continued]

25a

Opinion of Court of Appeals

When an arbitration board ventures outside the scope of

the authority conferred on it by the collective bargaining

agreement, it lacks power to bind the parties.’ Similar

considerations mandate court intervention when an arbi-

tration panel mistakenly assumes that certain issues are

not before it. There too the board’s award does not derive

its foree from the agreement between the parties, since

the board’s resolution of the controversy is fatally flawed

by a misunderstanding of its assigned task.

This is not to say that courts may lightly disturb in-

terpretations by arbitrators as to what disputes are ar-

bitrable under the language of a contract. The arbitrator

® [Continued]

by air transport boards as well. See 385 F.Supp. at 637; Appellee’s

brief at 17, 59. See also, Int. Ass’n of Machinists v. Central Airlines,

372 U.S. 682, 694-95 (1963); Bower v. Eastern Airlines, 214 F.2d

623 (3rd Cir.), cert. denied, 348 U.S. 871 (1954); Rossi v. Trans

World Airlines, 350 F.Supp. 1263 (C.D.Cal. 1972), aff'd, 507 F.2d

404 (9th Cir. 1974); Gordon v. Eastern Airlines, 268 F.Supp. 210

(W.D.Va. 1967).

10. | . an arbitrator is confined to interpretation and application

of the collective bargaining agreement; he does not sit to dis-

pense his own brand of industrial justice... . {H]is award is

legitimate only so long as it draws its essence from the collective

bargaining agreement. When the arbitrator’s words manifest

an infidelity to this obligation, courts have no choice but to

refuse enforcement of the award.

United Steelworkers v. Enterprise Wheel & Car Co., supra, note 7,

363 US. at 597.

The district court was not unaware of this line of authority, but

construed it narrowly as applying only to the types of remedies

available. Noting that the remedy in this case was of a type “clearly

contemplated by the contract and designed to further its aims,” the

district court concluded that therefore the arbitrators had not ex-

ceeded their jurisdiction. 385 F.Supp. at 639.

Although remedies were at issue in the Enterprise Wheel & Car

case itself, we do not think the principle that the arbitrator’s authority

must derive from the agreement can be so limited. See also Gateway

Coal Co. v. United Mine Workers, 414 U.S. 368, 374 (1974).

FEE RIS OSLER YN LAY SEINE GES LIL OLE IIE TIENT LE EAS L II NES LIL ELIE

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SNORE CAREER TEAL i LRP RTA ALA TN

26a

Opinion of Court of Appeals

made no such determination here, and the policies which

mandate deference to substantive decisions by arbitrators

are inapplicable if a mistake of fact has led the arbitrator

not to resolve the issues tendered.

We hold only that where, as here, an undisputed mis-

take of fact causes an arbitrable issue to be removed from

arbitration, a court has both the power and the duty to re-

fuse to enforce the award. We therefore reverse and re-

mand to the district court with directions to set aside the

award of the System Board of Adjustment and remand this

matter for reopening in further proceedings consistent

with this opinion."

So ordered.

11 Arbitration proceedings by their nature as not generally amen-

able to the remedy of a remand. See Washington-Baltimore News-

paper Guild v. Washington Post Co., 143 U.S.App. D.C. 210, 442

F.2d 1234, 1238-39 (1971). There a decision had already been

rendered on the record before the arbitrator. Because the parties

had agreed to private arbitration, in which the subpoena power is

lacking, certain evidence was not originally available. We concluded

that to remand for additional evidence would be to give one side

“more than the benefit of its bargain.” Id.

In this case, however, remand is necessary if the parties are to

receive what they bargained for—a board decision resolving their

arguments and evidence one way or the other, as opposed to relying

on a non-existent stipulation of dispositive fact.

27a

Order of Court of Appeals Denying

Petition for Rehearing

UNITED STATES COURT OF APPEALS

For tHE District or CoLumsBia CIRCUIT

September Term, 1975—Civil Action 829-73

0

No. 75-1022

Nortuwest AIRLINES, Inc.

Appellant

v.

Ar Line Pirwots Association INTERNATIONAL

No. 75-1095

Nortuwest AIRLINES, INC.,

v.

Am Lixe Ports Association INTERNATIONAL,

Appellant

—0o

Before: Justice Tom CiarK*, Associate Justice of the

Supreme Court of the United States ; BaZzELoN,

Chief Judge; Rosrnson, Circuit Judge.

ORDER

On consideration of the petition for rehearing filed by

Air Line Pilots Association, it is

Orverep by the Court that the aforesaid petition is

denied.

Per Curiam

For the Court:

Grorce A. FISHER

Clerk

Filed February 27, 1976

Georce A. FISHER

Clerk

* Sitting by designation pursuant to Title 28 U.S. Code Section

294(a).

Sai RT PER OS CAE HOT OG BA FO MERIT EM I fe

3

palit a cece. |

s

|

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ore

28a

Order of Court of Appeals Denying

Suggestion for Rehearing In Banc

UNITED STATES COURT OF APPEALS

For THE District oF CoLuMBIA CIRCUIT

September Term, 1975—Civil Action 829-73

ra’

No. 75-1022

NortHwest AIR.InEs, Inc.,

Appellant

v.

Ar Linge Prwots Association INTERNATIONAL

No. 75-1095

NortHwest Arr.INEs, Inc.,

v.

Ar Lint Pivots Association INTERNATIONAL,

Appellant

ra’

Vv

Before: BazeLton, Chief Judge; Wricut, McGowan,

Tamm, LeventHat, Rosinson, MacKinnon,

Ross and Wiikey, Circuit Judges.

ORDER

The suggestion for rehearing in banc filed by Air Line

Pilots Association having been transmitted to the full

Court and no Judge having requested a vote thereon, it is

OrpERED by the Court im banc that the aforesaid sugges-

tion for rehearing in banc is denied.

Per Curiam

For the Court:

GrorceE A. FisHER

Clerk

Filed February 27, 1976

Grorce A. FisHer

Clerk

29a

Statutory Provisions

Railway Labor Act, as amended, Section 3(p), 45 U.S.C.

§ 153(p):

(p) If a carrier does not comply with an order of

a division of the Adjustment Board within the time

limit in such order, the petitioner, or any person for

whose benefit such order was made, may file in the

District Court of the United States for the district

in which he resides or in which is located the prin-

cipal operating office of the carrier, or through which

the carrier operates, a petition setting forth briefly

the causes for which he claims relief, and the order

of the division of the Adjustment Board in the

premises. Such suit in the District Court of the

United States shall proceed in all respects as other

civil suits, except that on the trial of such suit the

findings and order of the division of the Adjustment

Board shall be conclusive on the parties, and except

that the petitioner shall not be liable for costs in the

district court nor for costs at any subsequent stage

of the proceedings, unless they accrue upon his

appeal, and such costs shall be paid out of the

appropriation for the expenses of the courts of the

United States. If the petitioner shall finally prevail

he shall be allowed a reasonable attorney’s fee, to be

taxed and collected as a part of the costs of the suit.

The district courts are empowered, under the rules

of the court governing actions at law, to make such

order and enter such judgment, by writ of manda-

mus or otherwise, as may be appropriate to enforce

or set aside the order of the decision of the Adjust-

ment Board: Provided, however, That such order

may not be set aside except for failure of the division

Re a eS a) Dagh st LO a ok a a a

ee ae eS ee ee ——— Oe rrr ———

30a

Statutory Provisions

to comply with the requirements of this chapter, for

failure of the order to conform, or confine itself, to

matters within the scope of the division’s jurisdic-

tion, or for fraud or corruption by a member of the

division making the order.

Railway Labor Act, as amended, Section 3(q), 45 U.S.C.

§ 153(q):

(q) If any employee or group of employees, or

any carrier, is aggrieved by the failure of any divi-

sion of the Adjustment Board to make an award in

a dispute referred to it, or is aggrieved by any of

the terms of an award or by the failure of the divi-

sion to include certain terms in such award, then such

employee or group of employees or carrier may file

in any United States district court in which a peti-

tion under paragraph (p) could be filed, a petition

for review of the division’s order. A copy of the

petition shall be forthwith transmitted by the clerk

of the court to the Adjustment Board. The Adjust-

ment Board shall file in the court the record of the

proceedings on which it based its action. The court

shall have jurisdiction to affirm the order of the

division or to set it aside, in whole or in part,

or it may remand the proceeding to the division

for such further action as it may direct. On such

review, the findings and order of the division shall

be conclusive on the parties, except that the order of

the division may be set aside, in whole or in part,

or remanded to the division, for failure of the

division to comply with the requirements of this

chapter, for failure of the order to conform, or

confine itself, to matters within the scope of the di-

nintiiadaa

RIFED THROUGH

- Sa

——EE

ee ESS ae» ee ————————eeeororresnrnrnrnrerereres ——E

3la

Statutory Provisions

division’s jurisdiction, or for fraud or corruption by

a member of the division making the order. The

judgment of the court shall be subject to review

as provided in sections 1291 and 1254 of Title 28.

Railway Labor Act, as amended, Section 204, 45 U.S.C.

§ 184:

Sec. 204. The disputes between an employee or

group of employees and a carrier or carriers by air

growing out of grievances, or out of the interpreta-

tion or application of agreements concerning rates

of pay, rules, or working conditions, including cases

pending and unadjusted on the date of approval of

this Act before the National Labor Relations Board,

shall be handled in the usual manner up to and in-

cluding the chief operating officer of the carrier des-

ignated to handle such disputes; but, failing to reach

an adjustment in this manner, the disputes may be

referred by petition of the parties or by either party

to an appropriate adjustment board, as hereinafter

provided, with a full statement of the facts and

supporting data bearing upon the disputes.

It shall be the duty of every carrier and of its

employees, acting through their representatives,

selected in accordance with the provisions of this

title, to establish a board of adjustment of jurisdic-

tion not exceeding the jurisdiction which may be

lawfully exercised by system, group, or regional

boards of adjustment, under the authority of section

3, Title I, of this Act.

Such boards of adjustment may be established by

agreement between employees and carriers either on

any individual carrier, or system, or group of car-

oDmAmnD CfnopDpyv

PR ET" ELT EO BGT

32a

Statutory Provisions

riers by air and any class or classes of its or their

employees ; or pending the establishment of a perma-

nent National Board of Adjustment as hereinafter

provided. Nothing in this Act shall prevent said

carriers by air, or any class or classes of their em-

ployees, both acting through their representatives

selected in accordance with provisions of this title,

from mutually agreeing to the establishment of a

National Board of Adjustment of temporary dura-

tion and of similarly limited jurisdiction.