Petition for Writ of Certiorari — Williams v. Air Wisconsin, Inc.
Supreme Court brief1996
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Supremes Comt, 0.8.
FILED
951877 MAY 1 3 19%
——__— O66 06 t6 crew
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
ALAN H. WILLIAMS, PETITIONER
Ve
AIR WISCONSIN, INC., et al.,
RESPONDENTS
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Gary R. Hershner
Virginia State Bar No. 19622
Counsel for Petitioner
MORRISSEY, HERSHNER & JACOBS
Seven South Adams Street
Richmond, Virginia 23220-5601
(804) 788-1956
QUESTIONS PRESENTED
1. Where a whistle biower is
discharged by an air line for whom
he w cked because he gave
informacion damaging to the air line
to the Federal Aviation
Administration, can the Union
representing the whistle blower
simply put on a sham defense to the
wrongful termination and satisfy its
duty of tair representation to the
employee?
2. Where a union rationalizes
its failure to properly defend an
employee’s termination, does this
preempt a jury question as_ to
whether or not the union breached
its duty of fair representation to
the employee?
LIST OF PARTIES
The parties to the proceedings
below were the petitioner before
this Court, Air Wisconsin, Inc.,
Internationa] Association of
Machinists and Aerospace Workers and
[AM Air Transport District 143.
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Cases
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Coates v. Johnson & Jonnson,
756 F.2 524 (7th Cir. 19
Dement v. RF & P R. i. .
845 F.2d 451 (4th Cir. 1988 ‘ 2]
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International Brotherhood of
Electrical Workers v. Foust, °
ie SCC. OOS
Matsushita Elec. Indus. Corp. v.
Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct.
See Ren 6 6 bo oe a ew 2 et
Rakestraw v. United Airlines, Inc.,
765 F.Supp. 747 (n.d. Ill.
1985) Coa oe gw ote eo ele
S.C. Johnson & Son, Inc. Vv.
Lousiville & Nashville R. Co.,
695 F.2d 253 (7th Cir. 1982) . 26
United States v. Esposito,
771 F.2@ 283 (7th Cir. 1985) A 26
Valentino v. United States Postal
Service,
Ore Feae 56 (B.C. Cire tS62) - a4
Vick v. Texas Employment Comm/’n.,
514 P.2d 734, (Sth Cir. 1975) . 26
Welsh v. United S$
844 F.2d 1239 /6t
ates,
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nh ir. 1988 , 26
IN THE
SUPREME COURT OF THE UNITED
OCTOBER TERM, 1995
STATES
ALAN H. WILLIAMS, PETITIONER
Ve
AIR WISCONSIN, INC., et al.,
RESPONDENT:
PETITION FOR WRIT OF CERTIORARI TO
THE JUDGMENT OF THE UNITED
COURT FOR THE FOURTH CIRCUIT
Petitioner V
~ ee Ai Tt
hereinafte k
counsel, respectfully pray:
writ of certiorari issue to
the judgment and opinion
United States Court of Appe
the Fourth Circuit entered
Court on January 16, 1996.
STATES
c«¢ Lew
£ ” ¢
+
-” *
ea a ee
OPINIONS BELOW
The opinion of the Court of
Appeals for the Fourth Circuit is
unpublished and is reprinted in the
Appendix. (App. A-1 to A-6). The
Order denying the Petition With
Suggestion For Rehearing In Banc is
reprinted in the Appendix. (App.
A-7 to A-8). The Order and
Memorandum Opinion of the United
States District Court for’ the
Eastern District of Virginia is
reprinted in the Appendix. (App.
A-9 to A-39).
JURISDICTION
The judgment of the United
States Court of Appeals for the
Fourth Circuit was entered on
January 16, 1996. A timely
Petition for Rehearing With
Suggestion For Rehearing In Banc was
filed in the Fourth Circuit Court of
Appeals on January 30, 1996. Said
Petition was denied on February 13,
1996. This Court has jurisdiction
pursuant to 28 U.S.C. Section
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
29 U.S.C. Sections 411 and 412
are set forth in the Appendix. (App.
A-40 to A-44). 45 U.S.C. Sections
151 through 188 are set forth in the
Appendix. (App. A-44 to A-122).
STATEMENT OF THE CASE
This action was filed in the
United States District Court for the
Eastern District of Virginia,
Richmond Division, against an
employer, Air Wisconsin, Inc.
(hereinafter referred to as "Air
Wisconsin"), for the breach of a
collective bargaining agreement and
against International Association of
Machinists & Aerospace Workers and
IAMAW Air Transport, District 143
(hereinafter collectively referred
to as "the Union"), a labor union
for denial of fair representation
pursuant to 29 U.S.C. Sections 411
and 412. Notwithstanding
plaintiff’s ample evidence, the
Motions for Summary Judgment of the
respondents were sustained.
The plaintiff was employed as a
mechanic and inspector with Air
Wisconsin from October, 1978 until
he was terminated by Air Wisconsin
in August, 1992. At all times
relevant, plaintiff was a member of
the Union. Plaintiff appealed his
termination through the designated
grievance procedure with Union
assistance. This grievance procedure
went all the way through arbitration
where plaintiff lost. Plaintiff
alleged in his action, that he was
wrongfully terminated by Air
Wisconsin and that accordingly Air
Wisconsin breached the collective
bargaining agreement with the Union.
3
Plaintiff further alleged that the
Union acted arbitrarily,
Capriciously and in bad faith in
representing him and therefore
denied him his’ right to fair
representation.
In the fall of 1991, Air
Wisconsin was directing its
personnel to release aircraft N430AW
for service even though it knew it
was unsafe. The plaintiff supplied
critical evidence to the Federal
Aviation Administration ("FAA") and
otherwise assisted the FAA in its
investigation to insure that the
aircraft was grounded until it could
be repaired and flown safely. As a
result of the FAA investigation Air
Wisconsin was given a large fine and
two of its managers were suspended.
Plaintiff always enjoyed an
exemplary record as an employee with
Air Wisconsin. However, Air
Wisconsin had an unwritten policy of
getting rid of employees who
reported safety problems to the FAA.
The evidence shows that Air
Wisconsin then plotted to get rid of
plaintiff on trumped up charges. On
August 6, 1992, plaintiff was
terminated for an alleged abuse of
the premium pay policy.
On July 5, 1992, the day of the
Supposed premium pay abuse, the
plaintiff filled in the block on his
pay card claiming premium pay to
4
which he was entitled if he was
either a lead mechanic or if he
performed inspector duties during
the pertinent shifts. On August 4,
1992, towards the end of the day as
he was getting off work, plaintiff
was asked by a supervisor why he
claimed premium pay on July 5, 1992.
Plaintiff quickly responded in
writing that he had _ performed
inspector duties that day which
entitled him to premium pay. As it
turns out, the plaintiff was
mistaken in his belief that he had
performed inspector duties.
However, plaintiff was still
entitled to the premium pay he
claimed, because he had been made
lead mechanic. A mechanic is
entitled to lead pay for a four hour
block if he is made lead anytime
during the four hour block.
Plaintiff’s work shift on July 5,
1992 began at 7:30 a.m. and would
normally have ended at 3:30 p.m.
Plaintiff was made lead mechanic
during this shift. In addition,
Plaintiff worked four hours of
overtime that day, returning the
beeper to Dale Hassenkamp, his
Supervisor, between 4:30 p.m. and
5:00 p.m., well into the extra four
hour block of time, indicating that
Plaintiff was still lead mechanic up
until that time. Plaintiff would
have been entitled to lead pay even
if there was a lead mechanic on the
2
next shift. Plaintiff filed a
grievance concerning his termination
with the assistance of the Union.
The matter eventually led to an
arbitration hearing. Ron Anderson
and Lonnie Sanders represented
Plaintiff in preparation for and at
the arbitration proceeding. During
this time, Air Wisconsin and the
Union were negotiating a new
contract. In fact, Lonnie Sanders
was a co-negotiator for the contract
between Air Wisconsin and the Union.
At the arbitration hearing, Air
Wisconsin gave a different
"interpretation" of the collective
bargaining agreement between it and
the Union, than that
"interpretation" offered by the
Union. A key witness for Air
Wisconsin was Giles Hieptas
(hereinafter referred to "Hieptas").
The entire transcript of testimony
covering the arbitration proceeding
totalled a little over 400 pages.
Approximately 121 pages contained
the testimony of Hieptas. Hieptas
was not impeached at all by the
Union. Hieptas was never cross-
examined on the fact that’ the
Plaintiff was really terminated for
being a whistle-blower. This is
despite the fact that the Union
representatives had been told by
Manuel Carvalho ("Carvalho"), of the
de facto policy told to him by,
6
among others, Hieptas, of getting
rid of Air Wisconsin employees that
cooperated with the FAA. This is
notwithstanding the fact that
Carvalho had reported this policy to
the Union representatives and
provided this information to the FAA
with a clandestine tape recording of
the discussion.
The thrust of the Plaintiff’s
defense at the arbitration
proceeding should have been the fact
that plaintiff was fired for being a
whistle-blower. Yet no mention of
this defense appears until late in
the arbitration proceeding.
Initially Ron Anderson ("Anderson"),
who was the lead individual
representing Plaintiff’s defense,
declined to give an opening
statement until just before
Plaintiff’s evidence was to be
presented. In the opening statement
that Anderson finally gave, he made
no mention of the fact that the
Plaintiff was fired for being a
whistle-blower. The only place in
the arbitration record that the
whistle-blower defense appears is in
the testimony of the plaintiff
himself. The Union presented no
reasonable evidence that Air
Wisconsin was motivated to lie and
had a policy to terminate plaintiff
because he was a whistle-blower. As
correctly pointed out in the Union’s
memorandum, for what reason we do
7
VO
not know, the arbitrator "expressly
found that there was no evidence to
support Williams’ claim that he had
been fired in retaliation for being
a ‘whistle-blower’ to the FAA in
1991." The battle at the
arbitration proceeding became a
battle of documents and credibility
of witnesses. The Union presented
no evidence by which anyone could
have inferred or concluded that Air
Wisconsin would lie. Even as to the
battle of documents, the Union’s ill
will was clear. The documents were
available for the Union to review by
August, 1992. Yet the Union did not
even attempt to get the records
until one week before the
arbitration hearing was actually
held in April, 1993. Timothy Regan
("Regan"), was called as a witness
for the Union and was the individual
who attempted to get the records for
the Union. Regan stated that had
the case gone on as planned in
February, 1993, then the Union would
have started the document search
about two to three weeks before the
hearing. However, in February the
case was continued, at Plaintiff’s
insistence, two days before the
hearing was to begin, when Plaintiff
learned that the Union had not
subpoenaed witnesses nor requested
or reviewed any documents.
As a result of the Union’s late
8
document request, work orders were
not made available and Regan did not
get what he requested. According to
Regan the "paper chase" was
intricate and required the actual]
viewing of work orders. Regan
testified that the aircraft logs
introduced into evidence by Ajir
Wisconsin were incomplete and that
there were other documents not made
available.
Throughout the Union’s defense
of plaintiff, plaintiff requested
that the Union question/speak with,
among others, Manuel Carvalho, Jonn
Francissen and Gerry Martinez, the
FAA inspectors, and Robert Wilcox.
In fact the Union did speak with
Manuel Carvalho who supplied the
"smoking gun", the clandestine
recording of Air Wisconsin
executives articulating the policy
of getting rid of whistle blowers.
The Union never bothered to contact
or discuss plaintiff’s case with
John Francissen and Gerry Martinez,
who could have "put the icing on the
cake", their discussion with an Air
Wisconsin executive who confirmed
the de facto policy of terminating
whistle blowers. Li
never bothered to discuss with
Robert Wilcox what evidence he could
have provided and otherwise did not
use, what should have been, very
valuable testimony. Hieptas’
credibility, which was deplorable
was untouched at the arbitration
proceeding.
In the case at bar, the
appellees’ discovery was limited to
a discovery deposition of the
plaintiff and document’ requests.
That notwithstanding, in its opening
memorandum, the Union stated that
plaintiff "has failed to produce any
evidence that the defendant union’s
conduct towards him was arbitrary,
discriminatory, or in bad faith..."
and that plaintiff "has not come
forward with a single shred of
evidence to suggest that the IAM’s
representation was short of
exemplary." These statements were
made in bad faith as plaintiff had
no duty to provide any evidence
until a Motion For Summary Judgment
was filed. Similarly, in its Reply
Memorandum to Plaintiff’s Response
to the Motions for Summary Judgment,
Air Wisconsin stated, in bad faith,
in a footnote, that "in a last gasp
attempt to skirt the System Board’s
exclusive jurisdiction over his
claim against Air Wisconsin,
Williams alleges for the first time
that there was ‘collusion between
Air Wisconsin and the Union’ and
that ‘were conspiring against the
plaintiff.’ Before a Motion for
Summary Judgment was filed, there
was no reason for plaintiff to come
forward with any evidence to prove
his clafh or theory. Plaintiff’s
10
contentions and theories remained
the same from the beginning of the
case.
When plaintiff was requested to
come forward with evidence, he
provided dynamite evidence,
including the statement of Carvalho,
who had the "smoking gun" evidence
about Air Wisconsin’s de _ facto
policies to terminate whistle
blowers, and the statements of the
FAA investigators, who were never
contacted by the Union
representatives and who could have
put "the icing on the plaintiff’s
cake". Ronald Anderson, the Union
representative who was supposed to
have ably represented plaintiff at
the arbitration proceedings signed a
"Lying Larry" supplemental
declaration where he acknowledged,
for the first time, that he had in
fact spoken with Carvalho and had
not spoken with the FAA
investigators. ("Lying Larry" is a
colloquial character who when
confronted with evidence/information
that he has' previously skirted,
rationalizes this and punctuates the
rationalization with the familiar
phrase "that’s the ticket". )
Anderson likewise rationalized his
failures as discussed infra.
In defending its apparent
malfeasance/nonfeasance, the Union
repeatedly touted Anderson’s
experience at arbitration
11
proceedings. The Union boasted that
Anderson had handled over 100
grievance procedures. In his "Lying
Larry" declaration, Anderson claimed
discretion in not calling Carvalho
as a witness because he claimed that
Carvalho was not credible and would
have appeared to have an ax to
grind. In his supplemental
declaration, Anderson also claimed,
without explanation, that the FAA
investigators would have had no
evidence as to the reason why
plaintiff was fired.
Interestingly enough in the
supplemental declaration, Anderson
claims that he had discussions with
plaintiff and that at no time did
Williams ever dispute his strategy.
However, Anderson does acknowledge
in paragraph five of the
supplemental declaration that
"Although Mr. Williams did tell us
that he thought he had been fired
because he went to the FAA on an
earlier occasion, we had no
believable evidence to support that
charge." In fact, Anderson had the
"smoking gun" evidence from Carvalho
and would have had more evidence had
he bothered to contact the FAA
investigators.
While touting Anderson’s
experience, the Union and Ajir
Wisconsin seek to have it both ways.
Both the Union and Air Wisconsin
attacked plaintiff because at his
12
discovery deposition, plaintiff was
asked who he recommended should be
subpoenaed. Plaintiff came up with
a list of five witnesses, which did
not include Carvalho or the FAA
investigators. In his affidavit,
plaintiff stated that he recommended
that Anderson and the Union defense
team contact, among others, Carvalho
and the FAA investigators and left
it to the Union, as his
representative, (relying on
Anderson’s expertise), to determine
whether or not to call the others as
witnesses. Yet, the Union and Air
Wisconsin now say that plaintiff
should not have relied on Anderson’s
experience. Interestingly, in his
"Lying Larry" declaration, Anderson
admits having spoken to Carvalho.
This must have been done at the
suggestion of the plaintiff.
During the oral argument on the
Motions for Summary Judgment, when
the Union and Air Wisconsin tried to
again rely upon plaintiff’s
statement taken out of context that
he had listed five witnesses to be
called, the court stated "that’s not
clear enough to put a nail in the
coffin." The oral argument was
heard on September 13, 1994 and the
court enunciated from the bench,
without articulation, that the
Motions for Summary Judgment were
sustained. Yet, the court’s
Memorandum Opinion was not entered
13
until January 20, 1995. In its
Memorandum Opinion, while minimizing
the plaintiff’s evidence, the court
cited with favor, plaintiff’s "list
of five individuals to be
Subpoenaed". The court also cited
with favor that the Union was able
to articulate justifiable reasons
for not calling Carvalho or
contacting the FAA investigators.
While the witnesses for Air
Wisconsin at the arbitration were
unimpeached, after Williams
testified, he was thoroughly
impeached by a host of witnesses.
The first impeachment witness was
that of Lonnie Sanders, an
individual who was supposedly
helping in plaintiff’s defense.
Sanders testified at the arbitration
proceeding, on behal f of Air
Wisconsin, that he was never told by
Bert St. Louis that one of
plaintiff’s time cards had _ been
tampered with and that he never
advised plaintiff of this.
Plaintiff had just testified to such
conversations with Bert St. Louis
and Sanders. Either Anderson did
not bother to check with Sanders to
make sure this evidence checked out,
to assist his client’s credibility,
or plaintiff was set up by Anderson
to sully his credibility.
Lisa Conover ("Conover"), was
then called as a witness by Air
14
ee
Wisconsin in reference to plaintiff
being questioned = about Required
Items [Inspection abuse (the
falsification of time cards).
Conover testified that plaintiff
told her that “everybody does it".
Conover went on to testify that Air
Wisconsin decided to _ investigate
other employees for time card
falsification and discovered no
other abuse. This clearly gave
the arbitrator more reason to
disbelieve the plaintiff and not Air
Wisconsin witnesses.
Bert St. Louis was then cal
by Air Wisconsin and he testifie
that he never told anyone that there
was time card falsificatior
involving plaintiff’s t
Plaintiff, of course, had testified
to this on direct examination.
Dave Higginbotham ther
testified for Air Wisconsin and
denied ever telling the plaintif!
that he was ordered to fire him,
again contradicting plaintiff.
Mike Hohman then testified that
plaintiff told him that he was going
to try and make as much money as he
could at the cost of Air Wisconsin
and that he bragged about it. By
the end of all the evidence,
plaintiff’s credibility had been
4
ruined, not withstanding the missing
er
‘
eet el
ime cards
documents of Air WisconslLn. Air
Wisconsin’s credibility was
unsullied.
REASONS FOR GRANTING THE WRIT
Air Wisconsin is a nefarious
company. For what airline is
willing to put our children on its
aircraft, knowing that aircraft is
unsafe, that is not nefarious? The
actions of Air Wisconsin define
nefarious. Presumably not even
"Lying Larry" can rationalize the
actions of Air Wisconsin.
Plaintiff is a hero who
supplied very valuable information
that saved lives. Yet plaintiff has
been repaid by being terminated from
his job. Plaintiff was then denied
his right to get his job back
because of lack of fair
representation by the Union.
Plaintiff should be granted a writ
because he has no other recourse.
Further, if plaintiff is denied
redress, then this will have a
chilling effect on other people who
would save the lives of children.
Furthermore, the Fourth Circuit
Court of Appeals has entered a
decision in conflict with a decision
from another Circuit, that of Black
Vv. Du@er. 15 7.320 873 -<66n Car.
1994). This question of federal law
should be settled by this Court. To
date, the only case that has given
any solace to a worker is the Black
case.
That plaintiff has presented a
proper case for a jury to consider
can almost be shown by syllogism.
16
Air Wisconsin fires whistle blowers,
those that provide information to
the FAA leading to the grounding of
Air Wisconsin aircraft. Plaintiff
was a whistle-blower who worked for
Air Wisconsin. It was known by Air
Wisconsin that plaintiff provided
information to the FAA that lead to
the grounding of one of its
aircraft, heavy fines and the
suspension of two of its managers.
No evidence of Air Wisconsin’s
de facto policy to fire whistle-
blowers was presented at the
arbitration proceeding, other than
the self serving statement of the
plaintiff who was allowed to be
thoroughly impeached by the Union’s
capricious, malicious handling of
his defense. Air Wisconsin was not
impeached by The Union
notwithstanding the "smoking gun
evidence" it had. Air Wisconsin had
in fact fired plaintiff for being a
whistle-blower. Air Wisconsin was
allowed to prevail at arbitration
because it contended that it relied
on a review of documents, documents
that were not available to the Union
representative when he made a
belated effort to review these
documents. Normally an inference
attaches, where there is missing
evidence, that the evidence would
have been unfavorable to the party
that is charged with custody of the
evidence. In the arbitration
17
proceedings, there was no reasonable
evidence presented to challenge the
veracity. of the Air Wisconsin
witnesses. Clearly the inference
that could have been very strong as
to the missing documents was of no
value at all.
The Union represented its
arbitrariness, capriciousness’9 and
bad faith by failing to interview
key witnesses; by waiting until the
llth hour, and then only before the
second time the arbitration hearing
was scheduled, to attempt to review
documents that had been supposedly
available for eight months; and by
setting up the plaintiff for
impeachment by allowing him to
testify knowing that Larry Sanders,
4 Union representative, would
impeach him, and further by failing
to otherwise impeach Air Wisconsin
witnesses.
In deciding a Motion for
Summary Judgment, the court is to
view the underlying facts in the
light most favorable to the non-
moving party. Matsushita Elec.
Indus. Corp. v. Zenith Radio Corp.,
475 U.S. 574, 106 S.C. 1368 (isso).
In its Memorandum Opinion, the
District Court did anything but view
the evidence in the light most
favorable to the plaintiff. As
presented in the previous
paragraphs, this case almost comes
18
down to a syllogism. Air Wisconsin
is a nefarious company that fires
whistle blowers. Plaintiff is a
whistle blower. Plaintiff was fired
by Air Wisconsin supposedly based on
documents which were not produced to
the Union in its belated effort to
review these documents. Clearly,
plaintiff was fired for being a
whistle blower and no reasonable
evidence of this was’ presented,
despite its availability to the
Union.
There is no mention of the
nefarious nature of Air Wisconsin in
the District Court’s Memorandum
Opinion. Acknowledgement of Ajir
Wisconsin’s nefariousness must be
done in order to view the evidence
in the light most favorable to the
plaintiff. Rather the court cites
in its statements of facts contained
within the Memorandum Opinion, that
Anderson and other Union
representatives repeatedly requested
that Air Wisconsin reinstate
Williams during the grievance
procedure. Evidence of these
efforts is taken strictly from a
statement by Anderson, referencing
activity when plaintiff could not
possibly have been present and is
unable to deny. At the oral
argument, the court accepted
Anderson’s "Lying Larry" declaration
when Anderson contended that he did
not call Carvalho as a witness
19
because he did not believe that
Carvalho was credible. The court
stated "I don’t have any evidence
that that’s not his rational, do
you?", To follow this rationale,
would allow all criminal defendants
to go free if they merely took the
stand and claimed that they lacked
scienter. Obviously courts have
long held that criminal intent can
be inferred by circumstantial
evidence.
In the case at bar, the
malevolence of Anderson and the
Union can easily be shown by their
malfeasance and nonfeasance; by
their faiiure to call Carvalho as a
witness; by their failure to even
interview the FAA investigators; by
their failure to interview witnesses
that could have shown that Hietpas
was a liar; by refusing to review
the documents until the 11th hour,
just prior to the second time the
arbitration hearing was scheduled.
It is interesting to note that
the court initially dismissed, as
insignificant, plaintiff’s testimony
in his deposition that he had given
the Union five witnesses that he
recommended be subpoenaed, and that
apparently all of these, except one,
were subpoenaed, and the other
witness testified on behalf of Air
Wisconsin. In its final order,
which took over four months to
draft, the court ignored the other
20
Henk SP ROMS At
evidence in the case and put the
twist on the deposition testimony of
plaintiff sought by the Union. In
continuing to view the evidence in
the light most favorable to the
moving party, the court in its
memorandum opinion cited with favor
Ron Anderson’s "Lying Larry"
declaration where Anderson
rationalized not calling Carvalho
and not even contacting the FAA
investigators. To show that the
court viewed the evidence in the
light most favorable to the
appellees, the court also stated
"moreover, an examination of the
recently submitted testimony of the
new witnesses established that
Williams has failed to create a
genuine issue of material fact that
the Union breached its duty. fThis
is because, in each instance, the
Union has articulated legitimate
reasons for its actions and Williams
has not shown those reasons to be
pretextual."
In the case at bar Plaintiff
needs to prove that he was
wrongfully terminated by Air
Wisconsin and that the Union
breached its duty of fair
representation by conduct that was
arbitrary, discriminatory and in bad
faith. Dement v. RF & P RR. Co.,
845 F.2d 451 (4th €s2, 1988),
International Brotherhood of
Electrical Workers v. Foust, 442
21
U.S. 42 (1979), Rakestraw v. United
Airlines, Inc. , 765 F.Supp. 747
(n.d. Ili. 1985). Unfortunately
there is very little case law to
give guidance as to when there is a
jury issue for cases like the one at
bar. Most of the cases have been
decidedly against the worker.
However, one particular case, that
of Black v. Ryder, 15 F.3d 573 (6th
Cir. 1994), is very instructive.
In Black, another hybrid
action, the disgruntled employee
presented evidence that at the
arbitration proceeding the Union’s
agent had never gone to the site
where the accident was first
discovered to investigate the
incident nor to talk to any of the
witnesses, particularly the witness
who found the “alleged damage". The
court in Black v. Ryder held that
this evidence was sufficient to
allow a jury to conclude that the
grievance proceeding against him was
the result of collusion between the
Union and management, "that is, that
the Union informed management that
it wished to rid itself of a
troublesome member, and that
management obliged." Id. at 5863.
In Black the Plaintiff argued that
the Union knew that the employer’s
primary evidence against him would
be the written report of the
mechanic who inspected the damaged
truck and to neglect to interview
22
the mechanic amounted to "irrationa
behavior" on the Union’s part. rhe
court in Black ruled that this wa
sufficient evidence to allow a jury
to decide the issues. Id.
Air Wisconsin’s only effort to
distinguish the Black case from the
case at bar was because in Black,
there was direct evidence of
animosity hetween Black and the
Union representative. Such a view
is inaccurate and clearly tries to
skirt iround the key holdings r
Black. However, the court likewise
eemed ae Lor ore the Rlack CASE
because in the rase at bar, tnere
was no direct evidence of animosity
between plaintiff and the Unior
ich A posit Lon is iosurd. rr
would mean that for the plaintiff to
prevail, he would merely have had to
say "I don’t think they like me"
Clearly the facts from. which
person could infer malice (in the
egal sense) are far more important
than a party’s perception that
someone does not like Alm
In the case at bar, plaintiff’
case is far stronger tnan tnat
of fered by the Plaintiff in Black.
The whole key to Plaintiff’s defense
was to show Air Wisconsin’s
prejudice -recause Plaintiff was a
whistle-blower. Carvalho supplied
the "smoking gun" and to not use the
"smoking gun" was irrational and
—*% i a ae ~ + . ce 2 oh h =
UGGestlVve OI ee on DE ween Al!
a oe ae?
Wisconsin and the Union. To not
investigate further and interview
the FAA investigators and Robert
Wilcox was likewise a denial of fair
representation of Plaintiff. What
could have been a very strong
defense turned into a straw defense.
Ron Anderson’s explanation that
he did not call Carvalho as a
witness because he did not find him
credible and that Carvalho had an ax
to grind simply does not wash. The
only witness that the Union put on
for the whistle-blowing defense was
the plaintiff himself who obviously
had a far greater ax to grind.
Under traditional principals, the
testimony of Carvalho and the FAA
investigators would not have been
merely cumulative. Evidence that is
of a different kind or character is
not cumulative. With plaintiff’s
bare naked statements he was shown
to lack credibility. Carvalho would
have been seen to be very credible
with his supporting tape recording
and the testimony of the two FAA
investigators. John Francissen, one
of the FAA investigators, could have
testified to his clandestine meeting
with Kevin Reinhalter, director of
guality assurance for Air Wisconsin,
who confirmed the de facto policy to
terminate whistle-blowers.
From the beginning of the
grievance procedure, plaintiff told
24
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months to review these documents.
The Union’s document review began a
week before the April hearing.
Several documents, of course, were
missing. This document review was
only done at the insistence of the
plaintiff. Without plaintiff’s own
persistence, the Union apparently
would have done nothing towards
plaintiff’s defense. The fact that
the Union begrudgingly did something
at the 11th hour does not magically
transform the representation from
one of bad faith to one of good
faith.
Generally speaking, when a
party charged with custody of
documents or items, no longer has
them, then there is an inference
that the evidence would have been
unfavorable to the party charged
with the custody of those documents.
Depending upon the circumstances,
that inference can be very strong.
Accordingly, the courts very closely
review the facts involved before
evidence Of "spoliation"™ is
permitted. Welsh v. United States,
844 F.2d 1239 (6th Cir. 1988); S.C.
Johnson & Son, Inc. V. Lousiville &
Nashville R. Co., (7th Cir. 1982);
Eaton Corp. v. Appliance Valves
Corp., 790 F.2d 874 (Fea. -Cil:
1986); United States v. Esposito,
771 F.2d 283 (7th Car. 1985);
Friends for All Children, Inc. v.
Lockheed Aircraft Corp., 587 F.Supp.
26
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remeaies must De Known Co tne
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required tc exhaust Union
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CONCLUSION
The juestions presented nere are
Clearly of exceptional importance.
The importance is not only for the
plaintiff, but for all citizens. In
viewing the evidence in the light
most favorable to the appellant,
which the District Court should have
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AIR WISCONSIN, INCORPORATED;
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE, ’
WORKERS; IAMAW AIR TRANSPORT,
DISTRICT 143,
Defendants~-Appeilees.
Appeal from the United States
District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-94-212)
Argued: December 4, 1995
Decided: January 16, 1996
Before HAMILTON, WILLIAMS, and MOTZ,
Circuit Judges.
Affirmed by unpublished per curlam
Affirmed by unpublished per curiam
opinion.
COUNSEL
ARGUED: Gary Raymond Hershner,
MORRISSEY, HERSHNER & JACOBS,
Richmond, Virginia, for Appellant.
Debra Lynn Willen, GUERRIERI, EDMOND
& CLAYMAN, Washington, D.C. for
Appellees IAMAW and IAMAW Air
Transport; Patricia H. Kim,
O’MELVENY & MYERS, New York,
New York, for Appellee Air
Wisconsin. ON BRIEF: John A.
FAlmond, GUERRIERI, EDMOND &
CLAYMAN, Washington, a
for Appcllees ITAMAW and
.TAMAW Air Transport; Michael
A. Curley, O’MELVENY & MYERS,
New York, New York, for Appellee Air
Wisconsin.
Unpublished opinions are not binding
precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant, Alan H. Williams
(Williams), appeals the district
court’s entry of summary judgment in
favor of the appellees, Air
Wisconsin, Inc. (Air Wisconsin),
ee ree ee
ee ee
International Association of
Machinists and Aerospace Workers
(IAM), anLL IAM Air Transport
District 143 (District 143),* in an
action alleging a breach of the
collective bar-
gaining agreement by Air Wisconsi@i
and a breach of the duty of fair
representation by the Union. Finding
no error, we affirm.
I
On July 5, 1992, Williams, who
was employed by Air Wisconsin as
a mechanic, claimed twelve hours
of premium pay on his time
card. Air Wisconsin later
investigated Williams’ claim for
twelve hours of premium pay because
it suspected him of time card
fraud. On August 6, 1992, after an
initial charge hearing, Air
Wisconsin terminated Williams.
After being discharged, Willian,,-
turned to the Union for help in
regaining his job. The Union then
filed a grievance on behalf of Wil-
liatns. After Air Wisconsin denied
the grievance, the Union appealed
the denial of Williams’ grievance
through the steps provided in the
*We will refer to IAM and District
143 collectively as the Union.
A-3
WILLIAMS Vv. AiR WISCONSIN,
INCO@RATED
Collective bargaining agreement,
and, while not required to do _ so,
the Union ultimately took Williams’
claim to arbitration.
While the Union was appealing
Williams’ grievance but before
the arbitration hearing, the Union
and Air Wisconsin were in the
process of renegotiating the
collective bargaining agreement.
During these negotiations, the
Union repeatedly requested Air
Wisconsin to reinstate Williams,
and Air Wisconsin agreed to
conduct an independent
investigation into Williams’ fffing.
This investigation showed that in
a forty-five day period Williams had
claimed 167.5 hours of
unauthorized premium pay.
Consequently, Air Wisconsin
refused to reinstate Williams.
On April 28, 1993, Williams’
grievance went to arbitration
before a three-member panel. On
October ‘. 1993, Williams’
grievance was
denied. The panel found that
Williams had abused the premium
pay policy of Air Wisconsin from
July 4 through July 8, and it
reasoned
that discharge was an appropriate
sanction.
A-4
Williams then brought this action
in the United States District
Court for the Eastern District of
Virginia. In the district court,
Williams claimed that Air
Wisconsin breached the collective
bargaining agreement because it
terminated him for reporting
safety problems
with Air Wisconsin’s' planes’~ to
the Federal Aviation
Administration rather than for time
card fraud. Williams also claimed
that the Union
breached its duty of fair
representation by failing to call
certain witnesses at the
arbitration hearing who allegedly
could have cof foborated his
claim that Air Wisconsin fired
him because he was a whistle-
blower.
After holding a hearing on
Williams’ claims, the district
court granted summary judgment in
favor of the Union, holding
that the Union did not breach
its duty of fair representation
to Williams.
Because die Union did not breach
its duty of fair representation
to Williams, the district court
granted Air Wisconsin’s’ motion
for summary judgment, holding that
it lacked the authority to
reconsider the decision of the
A-5
arbitration panel, Williams appeals.
Our review of the briefs and
consideration of the arguments
of the parties has revealed that
this appeal is without merit,
especially since
the Union took Williams’ grievance
to arbitration even though it had
no duty to do so. See Vaca Vv.
Sipes, 386 0.8. a7 eas 191
(1967). Accordingly, we
affirm the judgment of the district
court for the reasons stated in that
court’s persuasive opinion.
Williams v. Air
Wisconsin, Inc., 874 F. Supp. 710
(E.D. Va. 1995).
AFFIRMED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
February 13, 1996
No. 95-1285
CA-94-212
ALAN H. WILLIAMS
Plaintiff- Appellant
AIR WISCONSIN, INCORPORATED;
INTERNATIONAL ASSOCIATION OF
MACHINIST@S AND AEROSPACE WORKERS;
1,AMAW AIR TRANSPORT, DISTRICT 143
Defendants- Appellees
On Petition for Rehearing with
Suggestion for Rehearing In Banc
The appellant’s petition for
rehearing and suggestion for
reheating in banc were submitted to
this Court. As no member of this
Court on the panel requested a poll
on the suggestion for rehearing In
Banc, and as the panel considered
the petition for rehearing and is of
the opinion that it should be
denied,
IT IS ORDERED that the petition
fox rehearing and suggestion for
rehearing in banc are denied.
For the Court,
Beit M. Montague
CLERK
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ALAN H. WILLIAMS,
Plaintiff,
vV. Civil Action No. 3:94cv2l.
AIR WISCONSIN, INC.,
INTERNATIONAL ASSOCIATION
OF MACHINISTS & AERO SPACE
WORKERS and IAM AIR
TRANSPORT, DISTRICT 143,
Defendants.
ORDER
For the reasons set forth in
the Memorandum Opinion issued
herewith, the defendants’ motions
for summary judgment are grantec.
The action is dismissed with
prejudice.
The Clerk is directed to send a
copy of this Order to all counsel of
record.
It is so ORDERED.
United States District Judge
Richmond, Virginia
Date: January 20, 1995
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
VIRGINIA
Richmond Division
ALAN H. WILLIAMS,
Plaintiff,
Vv. Civil Action No. 3:94cv212
AIR WISCONSIN, INC.,
INTERNATIONAL ASSOCIATION
OF MACHINISTS & AEROSPACE
WORKERS and IAM AIR
TRANSPORT, DISTRICT 143,
Defendants.
MEMORANDUM OPINION
Alan H. Williams was employed
by Air Wisconsin, Inc. from 1978
through 1992, when his employment
was terminated on grounds of time
card falsification. In this
action, Williams alleges that
the termination constituted a
breach of the collective
bargaining agreement between Air
Wisconsin and Williams’ former
coliectivse bargaining
representative, International
Association of Machinists and
es el i ei i i i
Aerospace Workers (IIIAMII) and IAM
Air Transport District 143
("District 143") (collectively
"Union") . Williams has also
sued the Union for breach of the
duty of fair representation.
STATEMENT OF FACTS
The collective bargaining
agreement between Air Wisconsin
and the Union provides for
three classifications of
maintenance
employees: mechanics, lead
mechanics, and inspectors. A
mechanic is responsible for various
mechanic and administrative
functions.
A lead mechanic performs the
same work as a mechanic, but
is responsible for coordinating the
work of other mechanics. An
inspector carries out the functions
and duties of the inspection
department. Lead mechanics and
inspectors are entitled to receive
an $0.85 per hour_ premiuli pay
differential not available to
mechanics. During the period that is
the subject of this action,
Williams was employed as a
mechanic.1 However, as work
required, a mechanic could be
temporarily upgraded to lead
mechanic or inspector status,
thereby earning the $0.85 per hour
A-11
premium pay differential.
On July 5, 1992 Williams
claimed 12 hours of premium pay.
The time card does not’ require
specification of whether premium pay
is due for inspector work or for
lead mechanic work. On August
4, 1992, Williams received an
Incident Investigation form
advising that he was being
investigated for time card
falsification on July 5. Also on
August 4, Williams stated in
writing that he had performed
inspector duties on July 5, although
he later retracted that
explanation and claimed to have
worked as a lead mechanic. On
August 6, 1992, Williams and Union
representative Lonnie Sanders
attended an initial hearing on this
charge. At that hearing, Air
Wisconsin terminated Williams.
On August 12, 1992, the Union
filed a grievance on Williams’
behalf and thereafter appealed the
grievance through the several steps
provided in the collective
bargaining agreement.
1 Air Wisconsin originally hired
Williams as a mechanic in 1978 in
Appleton, Wisconsin. He later
transferred to Ft. Wayne, Indiana
and became an inspector in 1983. He
continued to work as an inspector
following his transfer to Richmond,
Virginia. In the spring of 1992,
when Air Wisconsin discontinued
its maintenance
operations in Richmond, Williams
was transferred to Dulles and
reverted to mechanic status. Air
Wisconsin alleges that
Williams’dissatisfaction with this
change motivated him to _ falsely
claim premium pay. Williams denies
this allegation.
Each appeal was denied. Williams and
Sanders agreed that the grievance
should be advanced to arbitration
before the three member System
Board of Adjustment, consisting of
one Union member, one Air
Wisconsin representative, and a
neutral arbitrator.
At the same time that Williams
and the Union were pursuing
Williams’ grievance, the Union was
in the process of renegotiating
the collective bargaining agreement
with Air Wisconsin. During these
contract negotiations, Sanders and
Ronald L. Anderson, the general
chairman of District 143,
repeatedly requested Air Wisconsin
to reinstate Williams. Air
Wisconsin refused to rehire
Williams but agreed to conduct) an
independent investigation into
the matter. A subsequent audit of a
45 day period revealed that
ee
Williams had claimed 167.5 hours of
unauthorized premium pay for work
that he had not performed.
On April 28, 1993, Williams’
grievance went to arbitration
before the three member panel.
Williams was represented by
Anderson, Sanders, and IAM chief
steward Timothy Regan. In
preparation for arbitration,
Anderson had asked Williams’ to
prepare a list of witnesses to
subpoena for the arbitration. All
of the five people listed by
Williams were contacted and four
testified.2
Williams also testified. The
Union attempted unsuccessfully to
limit the arbitration to the events
of July 5.3
2 The fifth declined to
testify on Williams’ behalf and
instead testified for Air Wisconsin.
3 The Incident Investigation
form dated August 4, 1992 referred
only to premium pay claimed on July
| 5, 1992. From this, the Union
| argued that Williams had _ been
discharged for the events on July
| 5 only and that the basis for his
| discharge should not be expanded at
arbitration. The arbitrator’s
decision rejected this argument
| and took into account the
oleae
6 lethal AE as
sd ale
allegations of time card
falsification from
July 4 through July 8, 1992.
After the three day arbitration
hearing, the Union filed a post-
hearing brief on Williams’ behalf.
In a decision dated October 4, 1993,
Williams’ grievance was denied for
the reasons that Williams had
claimed premium pay to which
he was not entitled from July 4
through July 8 and that the
discharge was appropriate and was
=
ui
neither arbitrary, capricious nor
discriminatory.
Williams’ complaint against
Air Wisconsin asserts that he
never claimed premium pay to which
he was not entitled and that he
was fired in retaliation for
cooperating with an FAA
investigation of Air Wisconsin.
According to Williams, in 1991 Air
Wisconsin had directed its
maintenance personnel to release
for service certain aircraft which
it knew were unsafe. Williams
contends that he "supplied
critical information to the (FAA)
and otherwise assisted
the FAA in its investigation to
assure that [an unsafe aircraft]
was grounded until it could be
repaired and flown safely."
(Plaintiff’s Response Mem., pp. l1-
2). Williams alleges that "Air
Wisconsin had an unwritten policy of
getting rid of employees who
reported safety problems to the
FAA." (Plaintiff’s Response
Mem.,Pp- 2).
Williams’ complaint against the
Union is that it breached the duty
of fair representation by failing
to interview and call witnesses
whose testimony could have
proven that Williams was
discharged in retaliation for
cooperating with the FAA.
Williams also makes the assertion
that the Union’s' representation
was deficient because the "whole
thrust of the Plaintiff’s defense
at the arbitration proceeding should
have been the fact that he was
fired for being a whistle-blower,"
and the Union did not properly
emphasize this theory. (Plaintiff’s
Response, p. 4).
DISCUSSION
Summary judgment is
appropriate "if the pleadings,
depositions, answers to
interrogatories, and admissions,
together
with the affidavits, if any, show
that there is no genuine issue as
to any material fact and that the
moving party is entitled to a
judgment as a matter of law." Fed.
R. Civ. P. 56(c). The "mere
existence of some alleged factual
dispute between the parties will
not defeat an otherwise properly
supported motion for summary
judgment; the requirement is’ that
there be no genuine issue of
material fact." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-
48 (1986). It is the function of
the district court not to weigh
the evidence, but to determine
whether there is a genuine
issue for trial and "there is no
issue for trial unless there is
sufficient evidence favoring the
nonmoving party for a jury to
return a verdict for that party.
Id. at 249 (citations omitted)
(emphasis added).
This dispute is governed by
the Railway Labor Act, 45
U.S.C. Section 151 et seq. ("RLA").
The RLA vests in the System
Board of Adjustment exclusive
jurisdiction over "minor"
disputes such as breach of
collective bargaining agreements.4
See Hawaiian
Airlines, Inc. oi Norrié, 114
S. Ct. 2239, 2244 (1994);
Consolidated Rail Consolidation
Vv. Rail-way Labor Executives
Assoc., 491 U.S. 299, 303-04 (1989).
4 The terms "major" and
"minor" as used in the RLA are
terms of art, not judgments of
the importance of the dispute
to any
party. "Major" disputes concern
"rates of pay, rules or
working conditions" and "relate to
‘the formation of collective
bargaining agreements or efforts
to secure them" ’ Hawaiian
Airlines, Inc. v. Norris, 114 S.
Ct. 2239, 2244 (1994) (citations
omitted). "Minor" disputes
"’grow out of grievances or out
of the interpretation or
application of agreements
covering rates of pay, rules,
or working conditions" and
"‘involve controversies over the
meaning of an existing
collective bargaining agreement
in a particular fact
situation. I" Id. Williams
alleges that Air Wisconsin
breached an existing collective
bargaining agreement. Therefore,
the dispute in this action is
"minor."
However, courts have
recognized an exception to the
exclusive and final jurisdiction of
the System Board of Adjustment
where the plaintiff brings a so
called "hybrid action" in
federal court. In
a hybrid action, the plaintiff
seeks redress of the
employers breach of the
collective bargaining agreement
and of a breach by the Union of
its duty of fair representation.
See Glover e. St. Louis-San
francisco Ry. Co., 393 U.S.
324f 328-29 (1969); Bautista v.
Pan Am. World Airlines, 828
F.2d 546, 551-52 (9th Civ.
1987).
The rationale which forms the
basis for this exception is
that, if a union’s breach of duty
"seriously undermines the
integrity of the arbitral
process, the union’s breach also
removes the bar of the finality
provisions of the contract." Hines
v. Anchor Motor Freight, Inc., 424
U.S. 554, 567 (1976).
Under the RLA and the
decisions interpreting § in
hybrid actions, this court has
jurisdiction over Williams’
challenge of
Air Wisconsin’s conduct only if
Williams also has a claim against
the Union for breach of its duty of
fair representation. See Hardee v.
North Carolina Allstate Svc., Inc.,
Fy F.2d 1255, 1258 (4th Cir.
1976); Bautista, 828 F.2d at 551-52;
Trial v. Atchison, Topeka & Santa
Fe Ry. Co., 896 F.2d 120, 123 (5th
Cir. 1990); Hope
v. Continental Baking Co., 729 F.
Supp. 1556, 1558 (E.D. Va. 1990).
If there is no genuine issue of
material fact as to a breach of
this duty by the Union, the court
need not consider the remaining
claim against the employer. See
Bautista, 828 F.2d at 551-52.
Therefore, before addressing the
propriety of Air Wisconsin’s
actions, it is necessary to consider
whether there is a genuine issue
of material fact as to the alleged
breach of the Union’s duty
of fair representation.
A. Union’s Duty of Fair
Representation
The duty of fair representation
requires the Union "to serve the
interests of all members without
hostility or discrimination
toward any, to exercise its
discretion with complete good faith
and honesty, and to avoid arbitrary
conduct." Vaca v. Sipes, 386 U.S.
171, 177 (1967). A union breaches
the duty of fair representation
when its conduct is “arbitrary,
discriminatory, or in bad faith."
Dement v. Richmond, Fredericksburg &
Potomac R. Co., 845 F.2d 451, 458
(4th Cir. 1988).
The judiciary’s eva.uation of a
union’s performance "must be
highly deferential." Air Line Pilots
Ass‘n, Int’l v. 0O,’Neill, 499
U.8. 65, 78 (1991). The Fourth
Circuit has held that "simple
negligence, ineffectiveness, or
poor judgment is insufficient to
establish a breach of the i;nion’s
duty .. . Rather, the union’s
conduct must be ‘grossly deficient’
or in reckless disregard of the
member’s rights." Ash v. United
Parcel Serv., IRC. , 800 F.2d
409,
411 (citations omitted) (emphasis
added). "Honesty and good _ faith
are demanded of [the union], but
as long as there are those
ingredients in its conduct, a
union has broad discretion in
treating competing interests of
members of the collective
bargairing unit.,’ Smith v. Local
7898, United Steelworkers of An.,
834 F.2d 93, 96 (4th Cir. 1987).
"When the evidence does not’ tend
to establish the severely deficient
union conduct required for a
breach of the duty of fair
representation, summary judgment
is appropriate.’’ Ash, 800 F.2d at
4l2.
Accordingly, where the union
makes use of available grievance
and arbitration procedures on the
employee’s behalf and the
employee challenges the union’s
actions in pursuing the
grievance, the district court’s
focus is on whether "the employer
breached the
contract and whether there is
substantial reason to believe that
a union breach of duty contributed
to the erroneous outcome of the
contractual proceedings." Hines v.
Anchor Motor Freight, Inc., 424
U.S. 554, 568 (1976) (emphasis
added). Hines therefore presents
two questions that are pertinent to
the issue of breach of duty by
the Union: whether the evidence is
sufficient to support a finding
that the Union breached its duty,
and whether there is’ substantial
reason to believe that the breach
contributed to the erroneous
outcome of the contractual
proceedings. Hardee V. North
Carolina Allstate Services, Inc.,
537 F.2d 1255, 1258 (1976); Ash,
800 F.2d at 411.
ke Does The Union’s Conduct
Constitute Breach of Duty?
Williams, argument that the
Union breached its duty of fair
representation focuses on the
purported failure to interview
and call certain witnesses and on
the Union’s failure properly to
emphasize the argument that
Williams was fired because of
his cooperation with the FAA. A
review of the record is necessary
to put these arguments in
perspective.
Williams consistently has
contended that he "never claimed
time or pay to which [he] was. not
entitled." (Williams Dep., p.1)
Nevertheless, Williams now argues
that the Union’s decision to focus
his defense on his innocence was
arbitrary, discriminatory or in bad
faith. Nothing in the record
suggests that the Union’s
decision to focus on Williams’
innocence of the offense charged
was motivated by anything other
than strategic factors borne of
Williams’ strenuously asserted
Claims of innocence. Indeed,
by proving that Williams had claimed
only that pay to which he was
entitled, the Union would have
secured certain reversal of his
discharge, making unnecessary a
speculative sojourn into Air
Wisconsin’s alleged improper
motives. Although, the Union’s
strategic judgment "need not appear
as wise in the glaring light of
hindsight," Smith v. Local 7898,
United Steelworkers of Am., 834
F.2d 93, 96 (4th Cir. 1987),
even with hindsight, the Union’s
strategy here appears neither
arbitrary, discriminatory, or in
bad faith. That result is not
altered because the strategy
was
unsuccessful. Williams also argues
that, because his Union
representatives were involved in
contract negotiations with Air
Wisconsin at the time of this
arbitration, the Union’s strategy
was motivated by a desire to stay
on Air Wisconsin’s good side.
This speculation is not supported
by a shred of evidence. A party
cannot create a genuine issue of
material fact "through mere
speculation or the building of one
inference upon another." Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir.
1985).
The record establishes that the
Union went to arbitration with
Air Wisconsin on Williams’
behalf, notwithstanding the ongoing
contract negotiations. Indeed, the
Union even made Williams,
reinstatement an issue in those
negotiations. This approach secured
an independent investigation of
the time card fraud
allegations. Unfortunately for
Williams, the investigation
revealed numerous other instances of
fraud on his part. Even if a
reasonable juror could conclude from
the evidence that the Union’s
strategy was erroneous, the
evidence could not support a
finding that the Union’s conduct
was arbitrary, discriminatory, or
in bad faith because "a violation
of the duty of fair
representation is not made out by
proof that the union made a
mistake in judgment." Smith, 834
F.2d at 96.
in this action that the Union was
deficient. However, what iS more
important on a motion for
summary judgment, a reasonable
juror
could not find that the Union
committed the egregious conduct
required f or a breach of the duty
of f air representation by failing
to communicate with, or call,
witnesses whom Williams himself
did not include on his witness list
when he had the opportunity.
Moreover, an examination of
the recently submitted testimony
of the new witnesses establishes
that Williams has failed to
create a genuine issue of material
fact that the Union breached its
duty. This is because, in_- each
instance, the Union has
articulated legitimate reasons for
its actions and Williams has not
shown those reasons to be
pretextual. Therefore, a
reasonable jury could not find
the Union’s actions to have been
arbitrary, discriminatory, or in
bad faith.
Williams first submits’~ the
sworn affidavit of Manuel
Carvalho who avers that he, like
Williams, cooperated with the FAA;
that Air Wisconsin pressured
employees to release aircrafts
that were unsafe; that Air
Wisconsin officials had told him
that employees who reported safety
problems to the FAA would. be
terminated; and that he _ tape
recorded a conversation in which
he was told to get
the planes out "or else." (Carvalho
Affidavit,
p. EL}. Williams contends’ that
Carvalho is the "smoking gun"
which necessitates a trial.
(Plaintiff’s Response Mem., p. 6).
The Union responds that
Anderson spoke with Carvalho
before the hearing and decided not
to have him testify for the
reason that Anderson concluded that
Carvalho would lack credibility
because he had recently been fired
by Air Wisconsin for time card
fraud. Further, Anderson had used
Carvalho as a witness in a
previous arbitration and, based on
that performance, Anderson had
concluded that Carvalho was an
extremely poor witness who
appeared evasive and lacked
credibility. Finally, Carvalho’s
affidavit admits that he did not
tell Anderson that he had a_ tape
recording to support his story.
These are cogent and ersuasive
reasons not to have called
Carvalho as a witness. Williams
presents no evidence suggesting
that this explanation is
pretextual. From this
evidence, a reasonable juror could
not f ind that the Union breached
its duty in failing to call
Carvalho.
Next, Williams presents’ the
declarations of John Francissen
and Gerry Martinez, two FAA
inspectors who apparently would
have testified that Williams
cooperated in their investigation
of Air Wisconsin. The affidavits
of Francissen and Martinez also
set forth that they had heard the
tape recording to which Carvalho
now refers, although neither can
recall what was on it. Francissen
attaches to his affidavit a document
which includes notes on the
statement of an Air Wisconsin
supervisor, Kevin Reinhalter,
taken by another FAA
investigator. According to this
document, Reinhalter had been told
that, if he could not keep his
inspectors in line, Air Wisconsin
would find someone who could.5
For the Union, Anderson
explains that he does not recall
any mention of these two individuals
by Williams.6 However, Anderson
5 Incidentally, Reinhalter
was Air Wisconsin’s designated
representative on the arbitration
panel.
6 On a motion to dismiss, the
court takes as true Williams’ sworn
statement that he did mention these
witnesses to the Union.
states that he would not have
called them in any event
because their testimony would have
related to the uncontested fact
that Williams cooperated with the
FAA. Williams did not request
that the Union subpoena Francissen
and Martinez, nor did he inform
the Union that they possessed any
information other than the
undisputed fact that he had
cooperated with the FAA.
A juror might conclude that the
Union showed poor judgment in
failing to communicate with these
witnesses, or even that it was
negligent in its failure to do so.
However, "simple negligence,
ineffectiveness or poor judgment is
insufficient to establish a
breach of the union’s duty." Ash v.
United Parcel Serv. , Inc., 800
F.2d 409, 411 (4th Cir. 1986).
There is no evidence that’ the
failure to contact Martinez and
Francissen was the result of bad
faith, or discriminatory intent, nor
was the Union’s conduct so
egregious as to be deemed arbitrary.
A reasonable jury could not
permissibly conclude that the
Union breached its duty of fair
representation.
Williams next challenges’ the
Union’s failure to call as a
witness Robert Wilcox, who in
affidavit states now that he
would
have testified to Williams’ good
character and to Williams’ ability
as a mechanic. Anderson
considered Wilcox’s testimony to
be cumulative and
unnecessary because another Union
witness had testified at length to
Williams’ good character. There was
no
contention that Williams’ lacked
ability to perform as a
mechanic. There is no basis from
which a jury could infer that the
failure to
call Wilcox was arbitrary,
discriminatory, or in bad faith.
Williams also has tendered the
declaration of James Neitzke.
Although Neitzke testified on
Williams’ behalf., Neitzke claims
to have informed the Union that
Giles Hieptas, a key witness for
Air Wisconsin, had a bad reputation
for truthfulness and that, in
his
opinion, Hieptas was not worthy of
belief. Anderson concedes that he
did not question Neitzke about
Hieptas’ credibility, but he
explains that he extensively
cross-examined Hieptas himself.
The Union’s failure to question
Neitzke about the particular
subject of Hieptas’ credibility
does not rise to the level of a
breach of the Union’s duty of
fair representation, especially
where the Union attacked Hieptas
extensively on cross-examination.
Williams’ contention that the
Union’s conduct respecting these
five putative witnesses
>
i
30
constitutes a breach of duty is
based almost exclusively on Black v.
Ryder/P.I.E. Nationwide, Inc., 15
F.3d 573 (6th Cir. 1994). In Black,
a truck driver was suspended and
later d@charged for having returned
a truck to a depot without
reporting that the truck had been
damaged. In his grievance
proceeding, Black argued that the
truck was undamaged when he left
it at the terminal and that any
damage must have occurred after
that time. Black was represented by
a union rival with whom he had
an “acrimonious history." Id. at
577.7 The union representative
refused to travel to Birmingham to
interview the mechanic who had
repaired the truck and had signed
the damage report, the crucial
piece of evidence on which the
employer rested its case against
Black. Had the representative
interviewed the mechanic, he
would have learned that the mechanic
had no knowledge of the
condition of the truck when Black
left it at the terminal.
On these _ facts, the Sixth
Circuit held:
Evidence presented at trial
was such as to allow the
jury to conclude either that
the union’s conduct, under the
circumstances, was so arbitrary
and unreasonable as to be
beyond the realm of the
rational, or that the union
was motivated by bad faith or
discriminatory animus against
Black, an intra-union rival.
7 The representative held a
position of power in the union
and Black was an active leader
of a dissident group which
had threatened the positions of
the union leadership. Tensions
between Black and union leadership
had culminated in a lawsuit in
which Black was awarded $40,000 in
damages.
Black, 15 F. 3d at 585
(emphasis added). From this,
Williams argues that the Union’s
failure to interview and call
certain witnesses and to properly
emphasize the whistle-blower
theory are either arbitrary or
suggestive of collusion between
Air Wisconsin and the Union.
(Plaintiff’s Response Mem.., p. 7).
Turning first to the collusion
issue, Black did not hold that
the union’s failure to
interview the mechanic was
itself "sufficient -t-o allow a
jury to conclude that the
grievance proceeding against him
was the result of collusion
between the union and management.
11 (Plaintiff Is Response Men. , p.
7) . Rather, the court
articulated, as the basis for
its decision, the substantial
evidence of animus between the union
representative and Black. This
evidence, which, of course, is
completely lacking in the present
case, created a basis on which the
jury could have found that the
union representative acted in bad
faith and colluded
with the employer. Willi@ms
admits that he has no reason to
believe anyone in the Union bore him
any animosity or ill-will.
(Williams Dep., pp. 35-36).
Williams also asserts that a
jury could infer collusion’ from
the facts that contract negotiations
were ongoing at the time of the
arbitration and that the Union did
not emphasize the theory that
Williams had been fired because he
cooperated with the FAA. Williams
offers no evidence to support a link
between those facts.
Moreover, the record establishes
that the Union even tried to use
the contract negotiations as a
vehicle to secure reinstatement for
Williams. On this’~ record, the
decision in Black does not
require submission of the collusion
issue to a jury.
Black did hold that, on its
facts, the Union’s’ failure to
communicate with a witness could be
so arbitrary and unreasonable as
to constitute a breach of duty.
However, Black is not applicable
to the facts in this action. In
Black, the union failed, for no
apparent reason, to communicate with
a key witness on the outcome
determinative issue: whether the
truck was returned in a damaged
condition. The knowledge of that
witness was crucial to the
employer’s ability to prove that
Black committed the offense
for which he was terminated and
conversely to Black’s effective
defense. That simply is not what
happened here.
None of the witnesses now
raised by Williams possessed any
information respecting whether
Williams had claimed premium pay
to
which he was not entitled. The
testimony of each went’ either
to the collateral theory of Air
Wisconsin’s improper motives or
to more general issues, such as
character and ability. The Union
has articulated reasons for each
of its decisions and there is
no evidence showing those reasons to
be pretextual. Moreover, in
perspective of the extensive efforts
that the Union actually made on
Williams’ behalf, the failure to
communicate with these
peripheral witnesses can be
considered neither arbitrary
nor capricious nor in bad faith.
Therefore, the Union did not
breach
its duty of fair representation in
its handling of these witnesses.
As a last ditch effort to prove
some egregious misconduct by the
Union, Williams argues that the
Union did not gather certain
documents as early in the
proceedings as it should have. As
Williams puts it: "Tejven as to
the battle of documents, the
union’s ill will is clear."
(Plaintiff’s Response Men., p.
5).
However, Williams presents no
evidence that any delay in
requesting documents was the result
of ill-will, bad faith,
discriminatory intent, or even
that it was arbitrary. Nor does
Williams even contend that the
proceedings were prejudiced in
any way by the alleged delay in
requesting documents. Therefore,
this delay provides no basis
from which a jury could infer a
breach of duty by the union.
Because the evidence is
insufficient to support a finding
that the Union breached its duty
of fair representation, summary
judgment is appropriate as to the
A-34.1
Union.
Re Is There Substantial
Reason To
Believe Union’s Conduct
Contributed To An Erroneous
Outcome?
Williams has also failed to
present evidence that "there is
substantial reason to believe
that a union breach of
duty contributed to the
erroneous outcome of the
contractual proceedings." Hines v.-
Anchor Motor Freight, Inc., 424
U.S. 554, 568 (1976); Hardee v.
North Carolina Allstate Services,
Inc., 537 F. 2d 1255, 1258 (4th
Cir. 1976) ; Ash v. United Parcel
Serv., Inc., 800 F.2d 409, 411 (4th
Gis. 1986). The plaintiff must
show that the alleged misconduct
"influenced" the result of the
arbitration. Hardee, 537 F.2d at
1258. Williams has presented an
alternative
approach that the Union’ could
have pursued without providing
sufficient evidence for a jury to
conclude that, had this approach
been followed, the result of
arbitration would have been
A-35
4
k
'
t
different. If Williams’ evidence
cannot support a finding that
there is substantial reason to
believe that the challenged
conduct contributed to an erroneous
outcome or influenced the
arbitrator’s decision, the "arbitral
bar" is not lifted and this
court lacks jurisdiction to
reconsider the arbitrator’s
decision. Id.
Williams argues that, had
the Union properly emphasized
the whistle-blower theory, the
arbitrators "could have inferred
or
concluded that Air Wisconsin would
lie." (Plaintiff’s Response, p.
5). The arbitration award held
that Williams was not’ entitled
to the premium pay that he had
claimed and that he did not
mistakenly believe that he was so
entitled. Neither the evidence
nor basic logic suggests that a
different conclusion would have
been reached had the Union focused
less on Williams’ innocence of
that charge and more on the
whistle-blower theory of his
discharge. The arbitration award
is a very deliberate analysis of the
kind of work for which’ premium
pay was appropriate under the
collective bargaining agreement
and whether the evidence
reflected that Williams performed
that kind of work on the days
in question. Williams has_ not
demonstrated that the approach
that he now
proposes would have altered this
analysis or its outcome.
Had the Union presented
evidence that Williams cooperated
with the FAA and that Air
Wisconsin officials suggested
that such employees would be fired,
the arbitrators would presumably
have been left with two lines of
evidence. one would have
suggested that Williams was a
whistle-blower and that Air
Wisconsin had expressed an
intention to fire whistle-blowers.
The other, however, would still have
suggested that Williams committed
time
card falsification. The only
evidence that refutes the facts
underlying the decision against
Williams on the issue of time card
falsification, Williams’ own
testimony of his innocence, was
considered at the arbitration and
rejected in light of evidence to
the contrary. Williams simply cannot
prove that he would have been
exonerated h-ad the Union
followed the approach that he
now advocates. z
B. Air Wisconsin and the Alleged
Breach of Collective
Bargaining Agreement
Po ANS AER AO 50 INS
Because summary judgment is
appropriate as to the complaint
against the Union, the
arbitration decision in favor of
Air Wisconsin is final and this
court lacks jurisdiction to
reconsider it. Hardee v. North
Carolina Allstate Services.,
iInc., 537 F.2d
1255, 1258 (4th cir. 1976) ;
Bautista v. Pan American World
Airlines, Inc., 828 F.2d 546, 551-
52 [Sen Bax. 1987); Trial v.
Atchison, Topeka & Santa Fe Ry. Co.,
896 F.2d 120, 123 (5th Gir.
1990); Hope v. Continental Baking
Co., 47a9 =O oF Supp. 1556, 1558
(E.D. Va. 1990). Therefore, Air
Wisconsin’s motion for summary
judgment is granted as well.
CONCLUSION
Williams has failed to create a
genuine issue of material fact that
the Union breached its duty of fair
representation or that the
conduct contributed to an erroneous
outcome of the proceedings.
Therefore, the motion for summary
judgment by IAM and District -143
is granted.
Because summary judgment is
appropriate as to the Union, this
court lacks jurisdiction over the
claim against Air Wisconsin.
A-38
ae
Therefore, the motion for summary
judgment by Air Wisconsin is’ also
granted.
The action is therefore_
dismissed with prejudice.
The Clerk is directed to
send a copy of this Memorandum
Opinion to all counsel of record.
It is so ORDERED.
United States District
Judge
Richmond Virginia
Date: JAN 20 1995
Ee ae a a rae eae ere reraerrer
:
-
B
;
¢
BILL OF RIGHTS OF MEMBERS OF LABOR
ORGANIZATIONS
Section 411. Bill of rights;
constitution and bylaws of labor
organizations. Every member of a
labor organization shall have
equal privileges within such
organization to nominate
candidates, to elections or
referendums of the labor
organization, to attend membership
meetings, and to participate in the
deliberations and voting
upon the business of such
meetings, subject to reasonable
rules and regulations in _ such
organization’s constitution and
bylaws. ;
(2) Freedom of speech and
assembly. Every member of any
labor organization shall have the
right to meet and assemble freely
with other members; and to
express any views, arguments, or
opinions; and to express at
meetings of the labor organization
A-40
his views, upon candidates in an
election of the labor organization
Or upon any business’ properly
before the meeting, subject to the
organization’s established and
reasonable rules pertaining to the
conduct of meetings: Provided,
That nothing
herein shall be construed to impair
the right of a labor organization
to adopt and enforce reasonable
rules as to the responsibility
of every member toward the
organization as an institution and
to his refraining from conduct
that would interfere with its
performance of its legal or
contractual obligations.
(3) Dues, initiation fees, and
assessments. Except in the case
of a federation of national or
international labor organizations,
the rates of dues and initiation
fees payable by members of any
labor organization in effect on
the date of enactment of this Act
[enacted Sept. 14, 19591 shall not
be increased, and no general or
special assessment shall be
levied upon such members, except-
(A) in the case of a local labor
organization, (i) by majority
vote by secret ballot of the
members in ood standing voting
at a general or special
membership meeting, after
reasonable notice of the
intention to vote upon such
guestion, or (ii) by majority vote
RIGS cere +
aT ares
# Sng Set ee OPW a Le A aT | ay FN
of the members in good standing
voting in a membership
referendum conducted by secret
ballot; or
(B) in the case of a labor
organization, other than a local
labor organization or a federation
of national or international
labor organizations, (i) by
majority vote of the delegates
voting at a_ regular convention,
or at a special convention of such
labor organization held upon not
less than thirty days’ written
notice to the principal office of
each local or constitutent labor
organization entitled to such
notice, or (ii) by majority vote of
the members in good standing of
such labor organization voting in
a membership referendum conducted
by secret ballot, or (iii) by
majority vote of the members of
the executive board or’ similar
governing body of such _ labor
organization, pursuant to express
authority contained in the
constitution and bylaws of such
labor organization: Provided,
That such action on the _ part
of the executive board or
similar governing’ body shall be
effective only until the next
regular convention of such labor
organization.
(4) Protection of the right to sue.
No labor organization shall limit
the right of any member thereof to
institute an ac.tion in any court,
A-42
or in a proceeding before any
administrative agency,
irrespective of whether’ or not
the labor organization or its
officers are named as defendants
or respondents in such action or
proceeding, or the right of any
member of a labor organization to
appear as a witness in any
judicial, administrative, or
legislative proceeding, or to
petition any legislature or to
communicate with any legislator:
Provided, That any such’ member
may be required to exhaust
reasonable hearing procedures (but
not to exceed a four-month lapse
of time) within such organization,
before instituting legal or
administrative proceedings against
such organizations or any officer
thereof. And provided further,
That no interested employer or
employer association shall directly
or indirectly finance, encourage,
or participate in, except as a
party, any such action,
proceeding, appearance, or
petition.
(5) Safeguards against improper
‘disciplinary action. No member
of any labor organization may be
fined, suspended, expelled, or
otherwise disciplined except for
nonpayment of dues by such
organization or by any officer
thereof unless such member has been
(A) served with written specific
charges; (B) given a reasonable time
to prepare his defense; (C)
afforded a full and fair hearing.
(b) Invalidity of constitution and
bylaws. Any provision of the
constitution and bylaws of any
labor organization which is
inconsistent with the provisions
of this section shall be of no force
or effect. (Sept. 14, 195%, P. L.
86-257, Title 1, § 101, 73 Stat.
$22.)
Section 412. Civil
action for infringement of rights;
jurisdiction. Any person whose
rights secured by the provisions of
this title [29 USCS §§ 411 et
seq.] have been infringed by any
violation of this title [29 USCS §§
411 et seq.} may bring a civil
action in a district court of
the United States for such relief
(including injunctions) as may
be appropriate. Any
such action against a labor
organization shall be brought in
the district court of the United
States for the district where
the alleged violation occurred,
or where the principal office
of .such labor. organization is
located.
(Sept. 14, 1959, P. L. 86-257, Title
a, § 102, 73 Stat. 523.)
Section 151.Definitions; short title
When used in this Act and for the
purposes of this Act--
A-44
First. The term "carrier includes
any express company, sleeping-car
company, carrier by railroad,
subject to the Interstate Commerce
Act, and any company which is
directly or indirectly owned or
controlled by or under common
control with any carrier by railroad
and which operates any equipment or
facilities or performs any service
(other than trucking service) in
connection with the transportation,
receipt, delivery, elevation,
transfer in transit, refrigeration
or icing, storage, and handling of
property transported by railroad,
and any receiver, trustee, or other
individual or body, judicial or
otherwise, when in the possession of
the business of any such "carrier":
Provided, however, That the term
"carrier" shall not include any
street, interurban, or suburban
electric railway, unless such
railway is operating as a part of a
general steam-railroad system of
transportation, but shall not
exclude any part of the general
steam-railroad system of
transportation now or hereafter
operated by any other motive power.
The Interstate Commerce Commission
is hereby authorized and directed
upon request of the Mediation Board
or upon complaint of any party
interested to determine after
hearing whether any line operated by
electric power falls within the
terms of this proviso. The term
A-45
.
.
"carrier" shall not include any
company by reason of its being
engaged in the mining of coal,, the
supplying of coal to a carrier where
delivery is not beyond the mine
tipple, and the operation of
equipment or facilities therefor, or
in any of such activities.
Second. The term "Adjustment Board"
means the National Railroad
Adjustment Board created by this
Act.
Third. The term "Mediation Board"
means the National Mediation Board
created by this Act.
Fourth. The term "commerce" means
commerce among the several States or
between any State, Territory, or the
District of Columbia and any foreign
nation, or between any Territory or
the district of Columbia and any
State, or between any Territory and
any other Territory, or between any
Territory and the District of
Columbia, or within any Territory or
the District of Columbia, or between
points in the same State but through
any other State but through any
other State or any Territory or the
District of Columbia or any foreign
nation.
Fifth. The term "employee" as used
herein includes every person in the
service of a carrier (subject to its
continuing authority to supervise
A-46
and direct the manner of rendition
of his service) who performs any
work defined as that of an employee
or subordinate official in the
orders of the Interstate
Commerce Commission now in
effect, and as the same
may be amended or
interpreted by orders hermftr
entered by the Comnussion
pursuant to the authority
which is hereby conferred
upon it to enter orders
amending or interpreting such
existing orders: Provided,
however, That no
occupational classification made
by order of the
Interstate Commerce Commission
shall be construed to define
the crafts according to
which railway employees may be
organized by their voluntary
action, nor shall the
jurisdiction or powers of such
employee organizations be
regarded as in any way
limited or defined by the
provisions of this Act or by the
orders of the Commission.
The term "employee" shall
not include any individual
while such individual
is engaged in the physical
operations consisting of the
mining of coal, the
preparation of coal, the
handling (other than movement
by rail with standard
railroad locomotives) of coal
not beyond the mine tipple,
or the loading
of coal at the tipple.
Sixth. The term
"representative" means any
person or persons, labor
union,
organization, or corporation
designated either by a
carrier or group of
carriers or by its or _ their
employees, to act for it or then.
Seventh. The term "district
court" includes the
Supreme Court of the
District of Columbia [United
States District Court for the
District of Columbia]; and the
term "circuit - court of appeals
[court of appeals]" includes the
Court of Appeals of the
District of Columbia [United
States Court Of Appeals for the
District of Columbia].
This Act may be cited as the
"Railway Labor Act."
(May 20, 1926, cn 347, Title
1, §1, 44 Stat. 577; June 21,
1934, ch 691, § 1,
48 Stat. 1185; April 10, 1936,
ch 166, 49 Stat. 1189; Aug.
13, 1940, ch 664,
§§ 2, 3, 54 Stat. 785.)
olinenetiaemead
§ 152. General duties
First. Duty of carriers and
employees to settle disputes. It
shall be the duty of all
carriers, their officers, agents,
and employees to exert every
reasonable effort to make = and
maintain agreements concerning
rates of pay, rules, and working
conditions, and to settle all
disputes, whether arising out of
the
application of such agreements or
otherwise, in order to avoid any
interruption to commerce or to the
operation of any carrier growing
out of any dispute between the
carrier and the employees thereof
Second. Consideration of disputes
by representatives. All disputes
between
a carrier or carriers and its or
their employees shall be
considered, and, if possible,
decided, with all expedition, in
conference between representatives
designated and authorized so to
confer, respectively, by the carrier
or carriers
and by the employees’ thereof
interested in the dispute.-
Third. Designation of
representatives. Representatives,
for the purposes of this Act shall
be designated by the respective
parties without interference,
A-49
influence, or coercion by either
party over the designation of
representatives by the other; and
neither party shall in any way
interfere with, influence, or
coerce the other in its choice of
representatives. Representatives
of employees for the purposes of
this Act need not be persons’ in
the employ of the carrier, and no
carrier shall, by interference,
influence, or coercion seek in
any manner to prevent the
designation by its employees as
their representatives of those who
or which are not employees of the
carrier.
Fourth. Organization and collective
bargaining; freedom from
interference by carrier; assistance
in organizing or maintaining
organization by carrier forbidden;
deduction of dues from wages
forbidden.- Employees shall have
the right to organize and bargain
collectively through representatives
of their own choosing. The majority
of any craft or class of employees
shall have the right to determine
who shall be the representative of
the craft or class for
the purposes of this Act. No
carrier, its officers or agents,
shall deny or in any way question
the right of its employees to join,
organize, or assist in organizing
the labor organization of their
choice, and it shall be unlawful
for
any carrier to interfere in any way
with the organization of its
employees, or to use the funds of
the carrier in maintaining or
assisting or contributing to any
labor organization, labor
representative, or other agency of
collective
bargaining, or in performing any
work therefor, or to influence
or coerce employees in an effort to
induce them to join or remain or
not to join or remain members of
any labor organization, or to
deduct from the wages of
employees any dues, fees,
assessments, or other
contributions payable to labor
organizations, or to collect or to
assist in the collection of any
such dues, fees, assessments, or
other contributions: Provided,
That nothing in this Act shall be
construed to prohibit a carrier
from permitting an employee,
individually, or local
representatives of employees from
conferring with management during
working hours without loss of
time, or to. prohibit a carrier
from furnishing free transportation
to its employees while engaged
in the business of a labor
organization.
Fifth. Agreements to join or not to
join labor organizations
forbidden. No carrier, its
officers, or agents shall require
any person seeking employment to
Sign any contract or agreement
promising to join or not to join
a labor organization; and if any
Such contract has been enforced
prior to the effective date of this
Act [enacted May 20, 1926], then
such carrier shall notify the
employees by an appropriate order
that such contract has been
discarded
and is no longer binding on them in
any way.
Si xX ER. Conference of
representatives; time; p@; private
agreements. In case of a dispute
between a carrier or carriers and
its or their employees, arising
out of grievances or out of the
interpretation or application of
agreements
concerning rates of pay, rules, or
working conditions, it shall be the
duty of the designated
representative or representatives
of such carrier or carriers and
of such employees, within ten days
a Ter the receipt of notice of a
desire on the part of either party
to confer in res@t to such
dispute, to specify a time and place
at which such’ conference ihall
be held: Provided, (1) That the
place so specified shall be situated
upon the line of the carrier
involved or as otherwise mutually
agreed upon; and (2) that the time
SO specified shall allow the
designated conferees reasonable
opportunity to reach such place
of conference, but shall not exceed
twenty days from the’ receipt of
such notice: And provided
further, That nothing in this
Act shall be construed to supersede
the provisions of any agreement (as
to conferences) then in effect
between the parties.
Seventh. Change in pay, rules or
working conditions contrary to
agreement or to section 156
forbidden. No carrier, its officers
or agents shall change the rates of
pay, rules, or working conditions
of its employees, as a class
as
embodied in agreements except in
the manner prescribed in such
agreements or in section 6 of this
Act [45 USCS § 1561.
Eighth. Notices of manner of
settlement of disputes; posting.
Every carrier shall notify its
employees by printed notices in such
form and posted at such times
and places as shall be
specified by the Mediation Board
that all
disputes between the carrier and its
employees will be handled in
accordance with the requirements of
this Act, and in such notices there
shall be printed verbatim, in
large type, the third fourth, and
fifth paragraphs ~f this’ section.
The provisions of said paragraphs
are hereby made a part of the
contract of
employment between the carrier
and each employee, and shal]
be held binding upon the parties,
regardless of any other express
or implied agreements between
them.
Ninth. Disputes as to identity of
representatives; designation by
Mediation
Board; secret elections. If any
dispute shall arise among 4
carrier’s employees as to who are
the representatives of such
employees designated and
authorized in accordance with the
requirements 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 to certify to both parties,
in writing, within thirty days
after the receipt of the invocation
of its services, the name or
names of. the individuals or
organizations that have been
designated and authorized to
represent the employees involved in
the dispute, and certify the
same to the carrier. Upon receipt of
such certification the carrier
shall treat with the representative
so certified as the representative
of the craft or class for the
purposes of this Act. In such an
investigation, the Mediation
Board shall be authorized to take a
secret ballot of the employees
involved, or to utilize any other
appropriate method of ascertaining
the names of their duly
@esignated and authorized
representatives in such manner as
shall insure the choice of
representatives by the employees
without interference, influence,
or coercion exercised by 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 after hearing
shall within ten days designate
t .2@ ewployees who may participate in
the election. he Board shall
have access it. and have power’ to
make copies of the books’ and
records of the carriers to obtain
and utilize such information = as
may be deemed necessary by it to
carry out the purposes and
provisions of this paragraph.
Tenth. Violations; prosecutions and
penalties. The willful failure or
refusal of any carrier, its officers
or agents to comply with the terms
of the third, fourth, fifth,
ee Pe Pe he ee Oe ye
seventh, or eighth paragrap of this
section shall be a misee-
meanor, and upon convictior thereof
the c*rrier, officer, or agent
offend:jrg shall be subject to a fine
of not less than $1,000 nor more
than $2%9,000 or imprisonment for
not more than Six months, or
both fine and imprisonment,
for each offense, and each day
during which such carrier,
officer, or agent shall willfully
fail or refuse to comply with the
terms of the said paragraphs of
this section shall constitute a
separate offense. It shall be the
duty of any
district attorney of the United
States [United States attorney]
to whom any duly designated
representative of a carrier’s
employees may apply to institute
in the proper court and to prosecute
under the direction of the
Attorney General of the United
States, all necessary proceedings
for the enforcement of the
provisions of this section, and for
the punishment of all violations
thereof and the costs and expenses
of such prosecution shall be
paid out of
the appropriation for the
expenses of the courts of the
United States: Provided, That
nothing in this Act’ shall _ be
construed to require an
individual employee to render
labor or service without his
A-56
consent, nor shall anything in
this Act be construed to make the
quitting of his labor by an
individual employee an illegal act;
nor shall any court issue _ any
process to compel the performance
by an individual employee of
such labor or service, without
his consent.
Eleventh. Union security
agreements; check-off.
Notwithstanding any other
provisions of this Act, cr of any
other statute or law of the
United States, or Territory
thereof, or any State, any carrier
or carriers as defined in this
Act and a labor organization or
labor organizations duly
designated and authorized to
represent employees in accordance
with the requirements of this
Act shall be permitted-
(a) to make agreements,
requiring, as a condition of
continued employment, that within
sixty days | following the
beginning of such employment, or
the effective date of such
agreements, whichever is the
later, all em-
ployees shall become members’ of
the labor organization
representing their craft or
class: Provided, That no_- such
agreement shall require such
condition of employment with
respect to employees to whom
A-57
membership is not available upon
the same terms and conditions
as are generally
applicable to any other member
or with respect to employees
to whom membership was denied or
terminated for any reason other
than the failure of the
employee to tender the periodic
dues, initiation fees, and
assessments (not including fines
and penalties) uniformly required
as a
condition of acquiring or retaining
membership
(b) to make agreements providing
for the deduction by such
carrier or carriers from the wages
of its or their employees in a
craft or class and payment to the
labor organization representing the
craft or class of such
employees, of any periodic dues,
initiation fees, and assessments
(not including fines and
penalties), uniformly required as
a condition of acquiring or
retaining membership, Provided,
That no such agreement shall be
effective with respect to any
individual employee until he
shall have furnished the employer
with a written assignment to the
labor orga-
nization of such membership dues,
initiation fees, and assessments,
which shall be revocable in writing
after the expiration of one year or
upon the termination date cf the
A-58
applicable collective agreement,
whichever occurs
sooner.
(c) The requirement of membership
in a labor organization in an
agreement made pursuant to
subparagraph (a) shall be
satisfied, as to both a present
or future employee in engine, train,
yard, or hostling service, that is,
an employee engaged in any of the
services or capacities covered
in section 3, first (h) of this act
[45 USCS § 153, subsec. First,
para. (h) ] defining the
jurisdictional scope of the first
division of the National Railroad
Adjustment Board, if said
employee shall hold or acquire
membership in any one of the
labor organizations, national in
scope,
organized in accordance with this
act and admitting to membership
employees of a craft or class in any
of said services; and no agreement
made pursuant to subparagraph (b)
shall provide for deductions from
his wages for periodic dues,
initiation fees, or assessments
payable to any labor organization
other than that in which he
holds membership: Provided,
however, That as to an employee in
any of said services on a
particular carrier at the effective
date of any such agreement on a
carrier, who is not a member of
any one of the labor
ere ee ee eS AS ee ee eee ee ee ee
organizations, national in scope,
organized in accordance with this
act and admitting to membership
employees of a craft or class in any
of said services, such employee,
as aocondition of continuing his
employment, may be required to
become a member of the organization
representing the craft in which he
is employed on the effective date
of the first agreement applicable
to him; Provided,
further, That nothing herein or in
any such agreement or agreements
shall prevent an employee from
changing membership from one
organization to another
organization admitting to
membership employees of a craft
or
class in any of said services.
(d) Any provisions in paragraphs
fourth and fifth of section 2 of
this act [this section] in conflict
herewith are to the extent of
such conflict amended.
(May 20, 1926, ch 347, Title 1, § 2,
44 Stat. 577; June 21, 1934, ch 691,
§ 2, 48 Stat. 1186; April 10, 1936,
cn i66, 49 Stat. i897 wan. i¢,
1951, cn i220, 64 Stat. 3238. }
§ 153. National Railroad Adjustment
Board
Firs=. Establishment; composition;
powers and duties; divisions;
hearings a awards Judicial review.
There is hereby established a
Board, to be known the "National
Railroad Adjustment Board", the
members of which shall selected
within thirty days after approval of
this Act [enacted June 21, 193
and it is hereby provided-
(a) That the said Adjustment Board
shall consist of thirty-four
members, seventeen of whom shall be
selected by the carriers and
seventeen by such labor
organizations of the employees,
national in scope, as have been
may be organized in accordance with
tae provisions of section 2 of
this Act [45 USCS §§ 15la, 152].
(b) The carriers, acting each
through its boards of directors or
its receiver or receivers, trustee
or trustees or through an officer or
officers designation for that
purpose by such board, trustee or
trustees or receiver or receivers
shall prescribe the rules’ under
which its representatives shall
be selected and shall select the
representatives of the carriers
on the Adjustment Board and
designate the division on _ which
each such representative shall
serve, but no carrier or system of
carriers shall have more than one
vote representative on any division
of the Board.
(c) Except as provided in the
second paragraph of subsection
(h) of this section, the national
labor organizations, as defined
in paragraph (a) this section,
acting each through the chief
A-61
executive or other media
designated by the organization or
association thereof, shall
prescribe the rules under which
the labor members of the
Adjustment Board shall
selected and shall select such
members and designate the division
which each member shall serve; but
no labor organization shall have
more than one voting representative
on any division of the Board.
(d) In case of a permanent or
temporary vacancy on the
Adjustment Board, the vacancy shali
be filed by selection in the
same manner as the original
selection.
(e) If either the carriers or the
labor organizations of the
employees fails to select and
designate representatives to the
Adjustment Board, as provided in
paragraphs (b) and (c) of this
section, respectively, within
sixty days after the passage of this
Act [enacted June 21, 1934], in
case of any original appointment to
office of a member of the
Adjustment Board, or in case of a
vacancy in any such office within
thirty days after such
vacancy occurs, the Mediation
Board shall thereupon directly
make the appointment and shall
select an individual associated in
interest with the carriers or the
group of labor organizations of
employees, whichever he is
A-62
to represent.
(f) In the event a dispute arises as
to the right of any national labor
organization to participate as per
paragraph (c) of this section in the
selection and designation of the
la@r members of the Adjustment
Board, the Secretary of Labor
shall investigate the claim of
such labor organization to
participate, and if such claim in
the judgment of the Secretary
of Labor
has merit, the Secretary shall
notify the Mediation Board
accordingly, and within ten days
after receipt of such advice
the Mediation Board shall request
those national labor organizations
duly qualified as per paragraph
(c) of this section to participate
in the selection and designation
of the
labor members of the Adjustment
Board to select a
representative. Such
representative, together with a
representative likewise designated
by the claimant, and a third or
neutral party designated by the
Mediation Board, constituting a
board of three, shall within thirty
days after the appointment of the
neutral member, investigate the
claims of the labor organization
desiring participation and decide
whether or not it was organized
in
accordance with section 2 hereof [45
uscS §§ 15la, 152] and is
otherwise properly qualified to
participate in the selection of the
labor members of the Adjustment
Board, and the findings of - such
boards of three shall be final
and binding.
(g) Each member of the
Adjustment Board shall be
compensated by the party or
parties he is to represent. Each
third or neutral party selected
under the provisions of (f) of this
section shall receive from the
Mediation
Board such compensation as_~ the
Mediation Board may tix,
together with his necessary
traveling expenses and expenses
actually incurred for
subsistence, or per them allowance
in lieu thereof, subject to the
provisions of
law applicable thereto, while
serving as such third or neutral
party.
(h) The said Adjustment Board shall
be composed of four divisions,
whose proceedings shall be
independent of one another, and the
said divisions as well as the
number of their members shall be as
follows:
First division: To have jurisdiction
over disputes involving’ train-
and yard-service employees of
carriers, that is, engineers,
firemen, hostlers, and outside
hostler helpers, conductors,
trainmen, and yard-service en-
ployees. This division shall
consist of eight members, four
of whom shall be selected and
designated by the carriers and
four of whom- shall be selected
and designated by the labor
organizations, national in scope
and organized in accordance with
section 2 hereof [45 USCS §§
15la, 152] and which’ represent
employees in engine, train,
yard, or hostling service;
Provided, however, That each
labor organization shall select
and designate two members on the
First Division and that no
labor organization shall have
more than one vote in any
proceedings of the first Division
or in the adoption of any
award with respect to any
dispute submitted to the First
Division: Provided further,
however,
That the carrier members of the
First Division shall cast no
more than two votes in any
proceedings of the division or in
the adoption of any award with
respect to any dispute submitted to
the First Division.
Second division: To
have, jurisdiction over disputes
involving machinists, boilermakers,
blacksmiths, sheet-metal workers,
electrical workers, car men, the
helpers and apprentices of all
the foregoing, coach cleaners,
>
!
65
power-house employees, and
railroad-shop laborers. This
division shall consist of ten
members, five of whom shall be
selected by
the carriers ane five by the
national labor organizations of
the employees.
Third division: To have
jurisdiction over disputes
involving station, tower, and
telegraph employees, train
dispatchers, maintenance-of-way
men, clerical employees, freight
handlers, express, station, and
store
employees, signal men, sleeping-
car conductors, sleeping-car
porters, and maids and dining-car
employees. This division shall
consist of ten members, five of
whom shall be selected by the
carriers and five by the
national labor organizations of
employees.
Fourth division: To have
jurisdiction over disputes
involving employees of carriers
directly or indirectly engaged
in transportation of passengers or
property by water, and all
other employees of carriers
over which jurisdiction is not
given to the first, second, and
third divisions. This division
shall consist of six members,
three of whom shall be selected
by the carriers and three by
the national labor organizations
of the employees.
(i) The disputes between an employee
or group of employees and a
carrier or carriers growing out of
grievances Or out of the
interpretation or application of
agreements concerning rates’7 of
pay, rules, or working
conditions, including cases
pending and unadjusted on the
date of approval of this Act
[enacted June 21, 1934], shall be
handled in the usual manner up to
and including the chief
operating officer of the carrier
designated 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 the appropriate division
of the Adjustment Board with a
full statement of the facts’ and
all supporting data bearing upon
the disputes.
(j) Parties may be heard either
in person, by counsel, or by
other representatives, as they may
respectively elect, and the several
divisions of the Adjustment Board
shall give due notice of all
hearings to the em-
ployee or employees and the carrier
or carriers involved in any
disputes submitted to then.
(k) Any division of the
Adjustment Board shall have
authority to empower two or
more of its members to conduct
>
I
67
hearings and make findings upon
disputes, when Properly
submitted, at any place
designated
by the division: Provided, however,
That except as provided in
paragraph (h) of this section,
final awards as to any such
dispute must be made by the
entire division as hereinafter
provided.
(1) Upon failure of any division
to agree upon an award because
of a deadlock or inability to
secure a majority vote of the
division members, as provided in
paragraph (n) of this section, then
such division shall forth-
with agree upon and select a neutral
person, to be known as
"referee", to sit with the division
as a member thereof and make an
award. Should the division fail to
agree upon and select a referee
within ten days’ of the date of
the deadlock or inability to secure
a majority.s: vote, then the
division, or any member thereof, or
the parties or either party to
the dispute may certify that fact
to the Mediation Board, which
Board shall, within ten days from
the date of receiving such
certificate, select and name the
referee to sit with the division as
a member thereof and make = an
award. The Mediation Board shall
be bound by the same provisions
in the appointment of these
A-68
neutral referees as are provided
elsewhere in this Act iror the
appointment of arbitrators and shall
fix and pay the compensation of
such referees.
(m) The awards of the several
divisions of the Adjustment
Board shall be stated in writing.
A copy of the awards shall be
furnished to the respective
parties to the controversy, and the
awards shall be final and
binding upon both parties to the
dispute. In case a dispute arises
involving an interpretation of the
award the division of the Board
upon request of either
party shall interpret the award in
the light of the dispute.
(n) A majority vote of all
members of the division of the
Adjustment Board eligible to vote
shall be competent to make _ an
award with respect to any dispute
submitted to it.
(o) In cese of an award by any
division ‘of ‘the Adjustment Board
in favor of petitioner, the
division of the Board shall make
an order, directed to the
carrier, to make the award
effective and, ae the award
includes a
requirement for the payment of
money, to pay to the employee
the sum to which he is entitled
under the award on or before a
day named. In the event any
division determines that an
rh
NG ae ine OH sll ERE: Alia
award favorable to the
petitioner
should not be made in any dispute
referred to ze; the division
shall make an order to the
petitioner stating such
determination.
(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 principal
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 ‘ras: cther civil suits,
except that on the trial of such
suit the findings and order of the
division of t@e 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 mandamus or
otherwise, as may be appropriate
to enforce or set aside the order
of the division of the
Adjustment Board: Provided,
however, That such order may not be
set aside except for failure of
the division to comply with the
requirements of this Act, for
failure of the order to conforn,
or confine itself, to matters
within the scope of the
Givision’s jurisdiction, or for
fraud or corruption by a member
of the division making the order.
(q) If any employee or group of
employees, or any carrier, is
aggrieved by the failure of any
division of the Adjustment Board
to make an award ina dispute
referred to it, or is aggrieved by
any of the terms of an award
or by the failure of the division 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 petition under
paragraph (p) could
be filed, a petition for review of
ven reel io
“na heeled
i Badass tes sain a baa IS Ra api a Rte rE
the division’s order. A copy of the
petition shall be forthwith
transmitted by the clerk of the
court to the Adjustment Board. The
Adjustment 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 set aside, in whole or in part,
or remanded to the division, for
failure of the division to comply
with the requirements of this Act,
for
failure of the order to conform, or
confine itself, to matters within
the scope of the 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,
United States Code.
(r) All actions at law based upon
the provisions of this section
shall be begun within two years
from the time the cause of
action accrues under the award of
the division of the Adjustment
A-72
Board, and not after.
(s) The several divisions of the
Adjustment Board shall maintain
headquarters in Chicago, Illinois,
meet regularly, and continue in
session so long as there is pending
before the division any matter
within its jurisdiction which has
been submitted for its
consideration and which has not
been disposed of.
(t) Whenever practicable, the
several divisions or subdivisions
of the Adjustment Board shall be
supplied with suitable quarters
in any Federal building located at
its place of meeting.
(u) The Adjustment Board may,
subject to the approval of the
Mediation Board, employ and fix
the compensations of such
assistants as it deems necessary
in carrying on its’ proceedings.
The compensation of such en-
ployees shall be paid by the
Mediation Board.
(v) The Adjusitsent Board shall meet
within forty days after the
approval of this Act [enacted June
21, 1934] and adopt such rules as
it deems necessary to control
proceedings before the respective
divisions and not in
conffict with the provisions of
this section. Immediately
following the meeting of the entire
Board and the adoption of such
rules, the respective divisions
shall meet and organize by the
A-73
selection of a chairman, a vice
chairman, and a secretary.
Thereafter each division shall
annually designate one of its
members to act as chairman and one
of its members to act as’ vice
chairman: Provided, however, That
the chairmanship and vice-
chairmanship of any division shall
alternate as between the groups,
so that both the chairmanship and
vice-chairinanship shall be held
alternately by a representative of
the carriers and a_ representative
of the employees. In case of a
vacancy, such vacancy shall be
filled for the unexpired term
by
the selection of a successor from
the same group.
(w) Each division of the
Adjustment Board shall annually
prepare and submit a report of its
activities to the Mediation Board,
and the substance of such report
shall be included in the annual
report of, the Mediation
Board to the Congress of the United
States. The reports of each
division of the Adjustment Board
and the - annual report of the
Mediation Board shall state in
detail all cases heard, all actions
taken, the names, salaries,
and duties of all agencies,
employees, and officers receiving
compensation from the United States
under the authority of this Act,
and an account of all moneys
A-74
appropriated by Congress pursuant
to the authority conferred by
this Act and disbursed by such
agencies, employees, and officers.
(x) <Any division of the
Adjustment Board shall have
authority, in its discretion, to
establish regional adjustment boards
to act in its place and stead
for such limited period as_ such
division may determine to be
neces-
sary. Carrier members of such
regional boards shall be
designated in keeping with rules
devised for this purpose by the
carrier members of the Adjustment
Board and the labor members
shall be designated in keeping
with rules devised for this purpose
by the labor members of the
Adjustment Board. Any such regional
board shall, during the time
for which it is appointed, have
the same authority to conduct
hearings, make findings
upon disputes and adopt the
same procedure as the division
of the Adjustment Board
appointing it, and its decisions
shall be enforceable to the same
extent and under the same
processes. A neutral person, as
ref-
eree, shall be appointed for service
in connection with any such
regional adjustment board in the
same circumstances and manner as
provided in paragraph (1) hereof,
with respect to a division of
the Adjustment Board.
Second. Systen, group, or
regional boards: establishment
by voluntary agreement; special
adjustment boards:
establishment, compenmsation
designation of representatives by
Mediation Board, neutral
member , compensation quorum,
finality and enforcement of
awards. Nothing in this’ section
shall be
construed to prevent any individual
carrier, systen, or group of
carriers and any class or classes
of its or their employees, all
acting through their accordance
with the provisions of this Act,
from of system, group, or
regional boards of adjusting and
deciding disputes of the sect on.
In the event that either party to
such a system, group, or regio
board of adjustment is
dissatisfied wit’. such
arrangement, it may upon ninety
days’ notice to the other party
elect to come under the
jurisdiction of the Adjustment
Board.
If written request is made upon any
individual carrier by the
representative of any craft or class
of employees of such carrier for the
establishment of a special board of
adjustment to resolve disputes
otherwise referable to the
Adjustment Board, or any dispute
which has been pending before
the Adjustment Board for twelve
months from the date the
dispute (claim) is received by the
Board, or if any carrier makes such
a request upon any such
representative, the carrier or the
representative upon whom such
request is made shall join in an
agreement establishing such a board
within thirty days from the date
such request is made. The cases
which may be considered by such
board shall be deaned in the
agreement establishing it. Such
board shall consist of one person
designated by the carrier and one
person designated by
the representative of the employees.
If such carrier or such
representative fails to agree upon
the establishment of such a board as
provided herein, or to exercise
its rights to designate a member of
the board,,, the carrier or
representative making the request
for the establishment of the
special board may request’ the
Mediation Board to designate a
member of the special board
on behalf of the carrier or
representative upon whom such
request was made. Upon receipt of
a request for such designation
the Mediation Board shall
promptly make such designation and
shall select an individual
a Se RGD SiR PR a as ao a
aire cnh ate ny
piace
ee eS
ie a Sta BRS SNE hah Silla a
thn lig Pl 8
associated in interest with the
carrier or representative he is to
represent, who, with the member
appointed by the carrier or
representative requesting the
establishment of the special board,
shall constitute the board. Each
member of the board shall be
compensated by the party he is to
represent. The members of the
board so designated shall determine
all matters not previously
agreed upon by the carrier and the
representative of the employees
with respect to
the establishment and jurisdiction
of the board. If they are unable to
agree such matters shall be
determined by a neutral member of
the board selected or appointed
and compensated in the same manner
as is hereinafter provided with
respect to situations where the
members of the board are unable
to agree upon an award. Such neutral
member shall cease to be a
member ci
the board when he has determined
such matters. If with respect
to any dispute or group of disputes
the members of the board
designated by the carrier and the
representative are unable to ugree
upon an award disposing of the
dispute or group of disputes they
shall by mutual agreement’ select
a neutral person to be a member of
the board for the consideration
and dispo-
sition of such dispute or group of
disputes. In the event the members
of the board designated by the
parties are unable, within ten days
after their failure to agree upon
an award, to agree upon the
selection of such neutral
person, either member of the
board may request the Mediation
Board to appoint such neutral
person and upon receipt of such
request the Mediation Board
shall promptly make such
appointment. The neutral
person selected or appointed
shall be compensated and
reimbursed for expenses
the Mediation Board. Any two
members of the board shall _ be
competent render an award. Such
awards shall be final and
binding upon’ both to the dispute
and if in favor of the petitioner,
shall direct the other party
comply therewith on or before
the day, named. Compliance
with awards shall be enforcible by
proceedings in the United States
district court in the same
manner and subject to the - same
provisions that apply
proceedings for enforcement of
compliance with awards of the
Adjustment
Board.
(May 20, 1926, ch 347, Title 1, § 3,
44 Stat. 578; June 21, 1934, ch
691, §48 Stat. 1189; April 10,
1936, ch 166, 49 Stat. 1189;
June 20, 1966, P. 89-456, §§ 1,
2, 80 Stat. 208, 209; April 23,
1970, P. L. 91-234, §§ 1-6,
Stat. 199, 200.)
154. National Mediation Board
First. Board of Mediation
abolished; National Mediation
Board established; composition;
term of office; qualifications;
Salaries; removal. The Board of
Mediation is hereby abolished,
effective thirty days from the
approval of this Act [enacted June
y 5 1934] and the members,
secretary, officers, assistants,
employees, and agents thereof, in
office upon the date of the approval
of this Act [enacted June 21,
1934}, shall continue to function
and receive their
Salaries for a period of thirty days
from such date in the same
manner as though this Act had not
been passed. There is hereby
established, as an independent
agency in the executive branch of
the Government, a board to be
known as the "National
Mediation Board", to be
composed of three
members appointed by the President,
by and with’ the advice and
consent cof the Senate, not more
than two of whom shall be of the
same political party. Each member
of the Mediation Board in office
on January 1, 1965, shall be
deemed to have been appointed for
A-80
a term of office which shall
expire on
July 1 of the year his term would
have otherwise expired. The
terms of office of all successors
shall expire three years after the
expiration of the terms for which
their predecessors were
appointed; but any member
appointed to fill a vacancy
occurring prior to the expiration
of the term for which his
predecessor was appointed shall be
appointed only for the unexpired
term of his predecessor.
Vacancies in the Board shall
not impair the powers nor affect
the duties of the Board nor of
the remaining members of the
Board. Two of the members in office
shall constitute a quorum (for
the transaction
of the business of the Board. Each
member of the Board shall
receive [a salary at the rate of $
1 0,000 per annum, together’ with]
necessary is traveling and
subsistence expenses, or per them
allowance in lieu thereof,
subject to the
provisions of law applicable
thereto, while away from the
principal office of the Board on
business required by this Act.
No person in the employment of
or who is pecuniarily or otherwise
interested in any organization
of employees or any carrier shall
enter upon the duties of or
continue to be a member of the
Board. Upon the expiration of
his term of office a member
shall continue to serve until
his successor is appointed and
shall have qualified.
All cases referred to the Board of
Mediation and unsettled on the
date of the approval of this Act
[enacted June 21, 1934] shall be
handled to conclusion by the
Mediation Board.
A member of the Board may be
removed by the President for
inefficiency, neglect of duty,
malfeasance in office, or
ineligibility, but for no other
cause.
Second. Chairman; principal office;
delegation of powers; oaths;
seal; report. The Mediation Board
shall annually designate a
member to act as chairman. The
Board shall maintain its principal
office in the District of
Columbia,:., but it may meet at any
other place whenever it deems it
necessary so to do. The
Board may designate one or _ more
of its members to exercise the
functions of the Board in
mediation proceedings. Each
member of the Board shall have
power to administer oaths_= and
affirmations. The Board shall
have a sea] which shall be
judicially noticed. The Board
shall make an annual report to
Congress.
Third. Appointment of experts
and other employees; salaries of
employees; expenditures. The
Mediation Board may (1)
appoint such experts and
assistants to act in a confidential
capacity and, subject to the
provisions of the civil-service
laws, such other officers and
employees [subject to the pro-
visions of the civil service laws,
appoint such experts and assistants
to act ina confidential capacity
and such other officers and
employees ] as are essential to
the effective transaction of the
work of the Board; (2) in
accordance with
the Classification Act of 1923, fix
the salaries of such experts,
assistants, officers, and employees;
and (3) make such expenditures
(including expenditures for rent
and personal services at the seat
of government and elsewhere, for
law books, periodicals, and books
of reference, and for. printing
and
binding, and including expenditures
for salaries and compensation,
necessary traveling expenses) and
expenses actually incurred for
subsistence, and other necessary
expenses of the Mediation Board,
Adjustment Board, Regional
Adjustment Board established under
paragraph (w) of section 3 [45
USCS Section 153(w)], and the boards
of arbitration, in accordance with
the provisions of and 7 [45 USCS
§§ 153, 157], respectively), as
may be necessary for the execution
of the functions vested in the
Board, in the Adjustment Board
and in the boards of
arbitration, and as _ may be
provided for by the Congress from
time to time. All expenditures
of the Board shall be allowed and
paid on the presentation of
itemized vouchers therefor approved
by the chairman.
Fourth. Delegation of powers and
duties. The Mediation Board is
hereby authorized by its order to
assign, or refer, any portion of its
work, business, or functions
arising under this or any other Act
of Congress, or referred to
it by Congress or either branch
thereof, to an individual member
of the Board or to an employee or
employees of the Board to be
designated by such order for
action therecr., ead by its order
at any time to amend, modify,
supplement, or rescind any such
assignment or reference. All
such orders shall take effect
forthwith and remain in effect until
otherwise ordered by the Board.
In conformity with and_ subject
to the order or _ orders of
the
Mediation Board in the premises,
[and] such individual member of
the Board or employee designated
shall have power and authority to
act as to any of said work,
business, or functions so assigned
or referred to him for _ action
by the Board.
Fifth. Transfer of officers and
employees of Board of Mediation;
transfer of appropriation. All
officers and employees of the
Board of Mediation (except the
members thereof, whose offices are
hereby abolished) whose services
in the judgment of the Mediation
Board are necessary to the
efficient operation of the Board
are hereby transferred to the
Board, without change in
classification or compensation;
except that the Board may
provide for the adjustment of such
classification or compensation to
conform to the duties to which
such officers and employees may be
assigned.
All unexpended appropriations for
the opereticqi of the Board of
Mediation that are available at the
time of the abolition of the Board
of Mediation shall be transferred
to the Mediation Board and shall be
available for its use for
salaries and other authorized
expenditures.
(May 20, 1926, ch 347, Title I, § 4,
44 Stet. S793 June 21, 3934, cn
691, § 4, 48 Stat. 1193; April 10,
1936, ch 166, 49 Stat. 1189; Aug.
7 1964, P. L. 98-542, 78 Stat.
748.)
Section 155. Functions of Mediation
Board
First. Disputes within jurisdiction
of Mediation Board. The parties, or
either party, to a dispute between
an employee or group of employees
and a Carrier may invoke the
services of the Mediation Board in
any of the following cases:
(a) A dispute concerning changes
in rates of pay, rules, or
working conditions not adjusted by
the parties in conference.
(b) Any other dispute not
referable to the National
Railroad Adjustment Board and not
adjusted in conference between the
parties or where conferences are
refused.
The Mediation Board may proffer its
services in case any labor
emergency: is found by it to exist at
any time.
In either event the said Board
shall promptly put itself in
communication with the parties to
such controversy, and shall use
its best efforts, by mediation,
to bring them to agreement. ib
such efforts to bring about an
amicable settlement through
mediation shall be unsuccessful,
the said Board shall at once
endeavor as its final required
action (except as provided in
paragraph third of this section and
in section 10 of this Act [45 USCS §
160])
to induce the parties to submit
their controversy to arbitration,
in accordance with the provisions
of this Act.
If arbitration at the request of
the Board shall be refused by one
or both parties, the Board shall at
once notify both parties in
writing that its mediatory efforts
have failed and for thirty days
thereafter, unless in the
intervening period the parties agree
to arbitration or an emergency
board shall be created under section
10 of this Act [45 USCS § 160],
no change shall be made in the
rates of pay, rules, or working
conditions or established
practices in effect prior to the
time the dispute arose.
Second. Interpretation of
agreement. In any case in which
a controversy arises over the
meaning or the application of any
agreement reached through
mediation under the provisions of
this Act, either party to the
said agree-
ment, or both, may apply to the
Mediation Board for an
interpretation of the meaning or
application of such ' agreement.
>
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87
The said Board shall upon
receipt of such request notify the
parties to the controversy, and
after a
hearing of both sides give its
interpretation within thirty days.
Third. Duties of Board with respect
to arbitration of disputes;
arbitrators; acknowledgment of
agreement; notice to arbitrators;
reconvening of arbitrators; filing
contracts with Board; custody of
records and documents. The
Mediation Board shall have the
following duties with respect to
the arbitration of disputes under
section 7 of this Act [45 USCS §
157]:
(a) On failure of the arbitrators
named by the parties to agree
on the remaining arbitrator or
arbitrators within the time set by
section 7 of this Act [45 USCS §
157], it shall be the duty of the
Mediation Board .to name
such remaining arbitrator or
arbitrators. It shall be the duty of
the Board in naming such arbitrator
or arbitrators to appoint only
those whom the Board shall deem
wholly disinterested in the
controversy to be arbitrated and
impartial and without bias as
between the parties to such
arbitration. Should, however, the
Board name an arbitrator or
arbitrators not so disinterested
and impartial, then, upon proper
investigation and presentation of
the facts,
the Board shall promptly remove such
arbitrator.
If an arbitrator named by the
Mediation Board, in accordance
with the provisions of this Act,
shall be removed by such Board as
provided by this Act, or if such
an arbitrator refuses or is unable
to serve, it shall be the duty of
the Mediation Board, promptly,
to select another arbitrator, in
the same manner as provided in this
Act for an original appointment
by the Mediation Board.
(b) Any member of the Mediation
Board is authorized to take the
acknowledgment of an agreement
to arbitrate under this Act,
When To) acknowledged, or when
acknowledged by the parties
before a notary public or the
clerk of a ,#istrict court or a
circuit court of appeals [court of
appeals] of the United States, such
agreement to arbitrate shall be
delivered to a member of said
Board or transmitted to said Board,
to be filed in its office.
(c) When an agreement to arbitrate
has been filed with the
Mediation Board, or with one of its
members, as provided by this
section, and when the said Board
has been furnished the names of
the arbitrators chosen by the
parties
to the controversy it shall be the
duty of the Board to cause a
notice in writing to be served upon
said arbitrators, notifying them
of their appointment, requesting
them to meet promptly to name
the remaining arbitrator or
arbitrators necessary to complete
the Board of Arbitration, and
advising
them of the period within which, as
provided - by the agreement to
arbitrate, they are empowered to
r.ame such arbitrator or arbitrators.
(d) Either party to an arbitration
desiring the reconvening of a
board of arbitration to pass
upon any controversy arising
over the meaning or application
of an award may so notify the
Mediation Board in writing,
stating in such notice the
question ..or questions to be
submitted to such
reconvened Board. The Mediation
Board shall thereupon promptly
communicate with the members of
the Board of Arbitration, or a
subcommittee of such Board
appointed for such purpose
pursuant to a provision in
the
agreement to arbitrate, and
arrange for the reconvening of
said Board of Arbitration or
subcommittee, and shall notify
the respective parties to the
controversy of the time and place
at which the Board, or the
subcommittee, will meet for hearings
upon the matters in controversy to
be submitted to it.
No evidence other than that
contained in the record filed
with the original award shall be
received or considered by such
reconvened Board or subcommittee,
except such evidence as may be
necessary to illustrate the
interpreta-
tions suggested by the parties. If
any member of the original
Board is unable or unwilling to
serve on such reconvened
Board or subcommittee thereof,
another arbitrator shall be named
in the same manner’ and with
the same powers and duties as such
original arbitrator.
(e) Within sixty days after the
approval of this Act [enacted
June 21, 1934] every carrier shall
file with the Mediation Board a
copy of each contract with its
employees in effer-t on the Ist day
of April 1934, covering’ rates
of pay, rules, and working
conditions. If no contract with any
craft or class of
its employees has been entered into,
the carrier shall file with the
Mediation Board a statement of that
fact including also a statement of
91
>
I
the rates of pay, rules, and
working conditions applicable in
dealing with such craft or class.
When any new contract is executed or
change is made in an_ existing
contract
with any class or craft of its
employees covering rates of pay,
rules, or working conditions, or in
those rates of pay, rules, and
working conditions of employees not
covered by contract, the carrier
shall file the same with the
Mediation Board within thirty days
after such new contract or
change in existing contract has
been executed or rates of pay,
rules, and working conditions have
been made effective.
(f) The Mediation Board shall be the
custodian of all papers and
documents heretofore filed with or
transferred to the Board of
Mediation bearing upon the
settlement, adjustment, or
determination of disputes between
carriers and
their employees or upon mediation
or arbitration proceedings held
under or pursuant to the provisions
of any Act of Congress in respect
thereto; and the President is
authorized to designate a custodian
of the records and property of
the Board of Mediation until the
transfer and delivery of such
records to
the Mediation Board and to
require the transfer and
delivery to the Mediation Board
of any and all such papers and
documents filed with it or in
its possession.
(May 20, 1926, ch 347, Title 1, § 5,
44 Stat. 580; June 21, 1934, ch 691,
§ 5, 48 Stat. 1195; April 10, 1936,
ch 166, 49 Stat. 1189.)
§ 156. Procedure in changing rates
of pay, rules, or working
conditions
Carriers and representatives of the
employees shall give at least
thirty days’ written notice of an
intended change in agreements
affecting rates of pay, rules, or
working conditions, and the time and
place for the beginning of
conference between the
representatives of the parties
interested in,such intended charges
shall be agreed upon within ten days
after the receipt of said notice,
and said time shall be within the
thirty days provided in the notice.
Section 157. Arbitration
First. Submission of controversy
to arbitration. Whenever a
controversy shall arise between a
carrier or carriers and its or their
employees which is not settled
either in conference between
representatives of the parties or
by the appropriate adjustment
board or through mediation, in
the manner
provided in the preceding sections,
such controversy may, by
agreement of the parties to such
controversy, be submitted to the
arbitration of a board of three
(or, if the parties to the
controversy so stipulate, of six)
persons: Provided, however, That the
failure or refusal of either party
to submit a
controversy to arbitration shall not
be construed as a violation of any
legal obligation imposed upon such
party by the terms of this Act or
otherwise.
Second. Manner of selecting board of
arbitration. Such board of
arbitration shall be chosen in the
following manner:
(a) In the case of a board of
three the carrier or carriers
and the representatives of the
employees, parties respectively
to the agreement to arbitrate,
shall each name one arbitrator;
the two arbitrators thus chosen
shall select a third arbitrator. If
the arbitrators chosen by the
parties shall
fail to name the third arbitrator
within five days after their
first meeting, such third
arbitrator shall be named by the
Mediation Board.
(b) In the case of a board of six
the carrier or carriers and the
representatives of the employees,
parties respectively to the
agreement to arbitrate, shall
each name two arbitrators; the four
arbitrators thus chosen shall,
by a majority vote, select the
remaining two arbitrators. If the
arbitrators chosen by
the parties shall fail to name the
two arbitrators within fifteen
days after
their first meeting, the said two
arbitrators, or as many of them
as have not been named, shall be
named by the Mediation Board.
Third. Board of arbitration;
organization; compensation;
procedure.
(a) Notice of selection or failure
to select arbitrators. When the
arbitrators selected by the
respective parties have agreed
upon the remaining arbitrator or
arbitrators, they shall notify the
Mediation Board; and, in the
event of their failure to agree
upon any or upon all of the
necessary arbitrators within the
period fixed by this Act, they
shall, at the expiration of
such period, notify the Mediation
Board of the arbitrators selected,
if any, or of their failure to
make or to complete such selection.
(b) Organization of board;
procedure. The board of
arbitration shall organize and
select its own chairman and make
all necessary rules for
conducting its hearings: Provided,
however, That the board of
arbitration shall be bound
to give the parties to the
controversy a full and fair
hearing, which shall include an
opportunity to present evidence
in support of their claims, and
an opportunity to present their case
in person, by counsel, or by
other representative as they may
respectively elect.
(c) Duty to reconvene; questions
considered. Upon notice from the
Mediation Board that the parties,
or either party, to an
arbitration desire the reconvening
of the board of arbitration (or a
subcommittee of such board of
arbitration appointed for such
purpose pursuant to the
agreement to arbitrate) to pass
upon any controversy over the
meaning or application of their
award, the board, or its
subcommittee, shall at once
reconvene. No question other than,
or in addition to, the
questions relating to the
meaning or
A-96
application of the award, submitted
by the party or parties in
writing, shall be considered by the
reconvened board of arbitration or
its subcommittee.
Such rulings shall be
acknowledged by such board or
subcommittee thereof in the same
manner, and filed in the same
district court clerk’s office, as
the original award and become a part
thereof.
(da) Competency of arbitrators.
No arbitrator, except those
chosen by the Mediation Board,
shall be incompetent to act as an
arbitrator because of his
interest in the controversy to be
arbitrated, or because of his
connection with
or partiality to either of the
parties to the arbitration.
(e) Compensation and expenses.
Each member ,,cf any board of
arbitration created under the
provisions of this Act named by
either party to the arbitration
shall be compensated by the party
naming him. Each arbitrator
selected by the arbitrators or named
by the Mediation Board shall
receive from the Mediation Board
such compensation as the
Mediation Board may fix, together
with his necessary traveling
expenses and expenses actually
incurred for subsistence, while
serving as an arbitrator.
(f) Award; disposition of original
and copies. The board of
arbitration shall furnish a
certified copy of its award to
the respective parties to the
controversy, and shall transmit the
original, together with the
papers and
proceedings and a transcript of the
evidence taken at the hearings,
certified under the hands of at
least a majority of the arbitrators,
to the clerk of the district court
of the United States for the
district wherein the controversy
arose or the arbitration is entered
into, to be filed in said clerk’s
office as hereinafter provided. The
said board shall also furnish a
certified copy of its award, and the
papers and proceedings, including
testimony relating thereto, to the
Mediation Board, to be filed in its
office; and in addition a certified
copy of its award shall be filed in
the office of the Interstate
Commerce Commission: Provided,
however, That such award shall
not be construed to diminish or
extinguish any of the powers or
duties of the Interstate Commerce
Commission, under the Interstate
Commerce Act as amended.
(g) Compensation of assistants to
board of arbitration; expenses;
i aaa ta a i i i
quarters. A board of arbitration
may, subject to the approval of
the Mediation Board, employ and
fix the compensation of - such
assistants as it deems necessary
in carrying on the _ arbitration
proceedings. The compensation of
such employ-
ees, together with their necessary
traveling expenses and expenses
actually incurred for subsistence,
while so employed, and the
necessary expenses of boards of
arbitration, shall be paid by the
Mediation Board.
Whenever practicable, the board
shall be supplied with suitable
quarters in any Federal building
located at its place of meeting or
at any place where the board may
conduct its proceedings or
deliberations.
(h) Testimony before board; oaths;
attendance of witnesses;
production of documents; subpoenas;
fees. All testimony before said
board shall be given under oath
or affirmation, and any member of
the board shall have the power
to administer oaths or affirmations.
The board cf arbitration, or any
member thereof, shall have the power
to require the attendance of
witnesses and the production of
such books, papers, contracts,
agreements, and documents as
may be deemed by the board of
arbitration material to a just
determination of the matters
submitted to its arbitration, and
may for that purpose request the
clerk of the district court of the
United States for the district
wherein said arbitration is being
conducted to issue the necessary
subpoenas, and upon such request
the said clerk or his duly
authorized deputy shall _ be, and
he hereby is, authorized, and it
shall be his duty, to issue such
subpoenas.
Any witness appearing before a board
of arbitration shall receive the
same
fees and mileage as witnesses in
courts of the United States, to be
paid by the party securing the
subpoena.
(May 20, 1926, ch 347, Title 1, § 7,
44 Stat. 582; June 21, 1934, ch 691,
§ 7, 48 Stat. 1197; April 10, 1936,
ch 166, 49 Stat. 1189; Oct. 15,
1970, P.L. 91-452, Title II Section
238, 84 Stat. 930.)
Section 158. Agreement to
arbitrate; form and contents;
signatures and acknowledgement ;
revocation
The agreement to arbitrate-
(a) Shall be in writing;
(b) Shall stipulate that the
arbitration is had under the
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provisions of this Act;
(c) Shall state whether the board of
arbitration is to consist of three
or of six members;
(da) Shall be signed by the duly
accredited representatives of the
carrier or carriers and the
employees, parties respectively to
the agreement to arbitrate, and
shall be acknowledged by said
parties before a notary public,
the clerk
of a district court or circuit court
of appeals [court of appeals] of
the United States, or before a
member of the Mediation Board,
and, when so acknowledged, shall
be filed in the office of the
Mediation Board;
(e) Shall state specifically the
questions to be submitted to the
said board for decision; and that,
in its award or awards, the said
board shal}, confine itself
strictly to decisions as to the
questions so specifically submitted
to it;
(f) Shall provide that the
questions, or any one or _ more
of them, submitted by the parties
to the board of arbitration may
be withdrawn from arbitration on
notice to that effect signed by the
duly accredited representatives
of all the parties and served on
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the board of arbitration;
(g) Shall stipulate that the
signatures of a majority of
said board of arbitration affixed
to their award shall be competent to
constitute a valid and binding
award;
(h) Shall fix a period from the date
of the appointment of the
arbitrator or arbitrators necessary
to complete the board (as
provided for in the agreement)
within which the said board shall
commence its hearings;
(i) Shall fix a period from the
beginning of the hearings within
which the said board shall make
and file its award: Provided,
That the parties may agree at any
time upon an extension of this
period;
(3) Shall provide for the date
from which the award shall
become effective and shall fix the
period during which the award shall
continue in force;
(k) Shall provide that the award of
the board of arbitration and
the evidence of the proceedings
before the board relating thereto,
when certified under the hands of
at least a majority of the
arbitrators, shail he filed in the
clerk’s office of the district
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court of the United States’ for
the district wherein the
controversy arose or the arbitration
was entered into, which district
shall be designated in the
agreement; and, when so_ filed,
such award and proceedings shall
constitute the full and complete
record of the arbitration;
(1) Shall provide that the award,
when so filed, shall be final
and conclusive upon the parties as
to the facts determined by said
award and as to the merits of
the controversy decided;
(m) Shall provide that any
difference arising as to the
meaning, or the application of the
provisions, of an award made by
a board of arbitration shall be
referred back for a ruling to the
same board, or, by agreement, to
a
subcommittee of such board; and
that such ruling, when
acknowledged in, the same manner, and
filed in the same district court
clerk’s office, as the original
award, shall be a part of and shall
have the same force and effect
as such original award; and
(n) Shall provide that the
respective parties to the award
will each faithfully execute the
same.
The said agreement to arbitrate,
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when properly signed and
acknowledged as herein provided,
shall not be revoked by a party to
such agreement:
§ 159. Award and judgment
thereon; effect on individual
employee
First. Filing of award. The award
of a board of arbitration,
having been acknowledged as herein
provided, shall be filed in the
clerk’s office of the district
court designated in the agreement to
arbitrate.
Second. Conclusiveness of award;
judgment. An award acknowledged
and filed as herein provided shall
be conclusive on the parties as
to the merits and facts of the
controversy submitted to
arbitration, and unless, within
ten days after the filing of the
award, a petition to impeach the
award, on the grounds hereinafter
set forth, shall be filed in the
clerk’s office of the court in
which the award has been filed,
the court shall enter judgment
on the
award, which judgment shall be final
and conclusive on the parties.
Third. Impeachment of award;
grounds. Such petition for the
impeachment or contesting of any
award so filed shall be entertained
by the court only on one or more
of the following grounds:
(a) That the award plainly does
not conform to the substantive
requirements laid down by this
Act for such awards, or that
the proceedings were not
substantially in conformity with
this Act;
(b) That the award does not conforn,
nor confine itself, to the
stipulations of the agreement to
arbitrate; or
(c) That a member of the board
of arbitration rendering the
award was guilty of fraud or
corruption; or that a party to
the arbitration practiced fraud or
corruption which fraud or
corruption affected the result
of the arbitration: Provided,
however, That no court shall
entertain any such petition on
the ground that an award is
invalid for uncertainty; in such
case the proper remedy shall be
a submission of such award
to a reconvened board, or
subcommittee thereof, for
interpretation, as provided by
this Act: Provided further, That
an award contested as herein
provided shall be construed
liberally by the court, with a
view to favoring its validity, and
that no award shall be set aside for
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trivial irregularity or clerical
error, going only to form and not to
substance.
Fourth. Effect of @al invalidity
of award. If the court’ shall
determine that a part of the award
is invalid on some ground or
grounds designated in this section
as a ground of invalidity, but shall
determine that a part of the
award is valid, the court shall set
aside the entire award: Provided,
however, That, if the parties shall
agree thereto, and if such valid
and invalid part, are separable,
the court shall set aside the
invalid part, and order judgmen
to stand as to the valid part.
Fifth. Appeal; record. At the
expiration of ten days from the
decision of the district court
upon the petition filed as
aforesaid, final judgment’ shall
be entered in accordance with said
decision, unless during said _ ten
days either party shall appeal
therefrom to the circuit court of
appeals [court of appeals]. In
such case only such portion of the
record shall be transmitted to
that appellate court as is necessary
to the proper understanding and
consideration of the questions of
law presented by said petition and
to be decided.
Sixth. Finality of decision of
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a ae
circuit court of appeals [court of
appeals]. The determination of said
circuit court of appeals [court of
appeals] upon said questions shall
be final, and, being certified by
the clerk thereof to said
district court, judgment pursuant
thereto shall thereupon be entered
by said district court.
Seventh. Judgment where
petitioner’s contentions are
sustained. If the petitioner’s
contentions are finall:
sustained, judgment shall be
entered setting aside the award in
whole or, if the parties so agree,
in part; but in such case the
parties may agree upon a judgment
to be entered disposing of the
subject matter of the
controversy, which judgment when
entered shall have the same force
and effect as judgment entered upon
an award.
Eighth. Duty of, employee to render
service without consent; right
to quit. Nothing in this Act shall
be construed to require an
individual employee to render
labor or service without his
consent, nor shall anything in
this Act be construed to make the
quitting of his labor or _ service
by an individual
employee an illegal act; nor shall
any court issue any process to
compel the performance by an
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individual employee of such labor
or service, without his consent.
(May 20, 1926, ch 347, Title I, § 9,
44 Stat. 585; April 10, 1936, ch
166, 49 Stat. 1 189.)
§ 159a. Special procedure for
commuter service
(a) Applicability of provisions.
Except as provided in section 5
10(h) of the Rail Passenger
Service Act [45 USCS § 590(h)], the
provisions of this section shall
apply to any dispute subject to this
Act between a publicly funded and
publicly operated carrier
providing rail commuter’. service
(including the Amtrak Commuter
Services Corporation) and its
employees.
(b) Request for establishment of
emergency board. If a dispute
between the parties described in
subsection (a) is not adjusted under
the foregoing provisions of this
Act and the President does not,
under section 10 of this Act [45
USCS § 160], create an
emergency board to investigate
and report on such dispute, then
any party to the dispute or the
Governor of any State through which
the service that is the
subject of the dispute is
operated may request the
President to establish such an
emergency board.
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(c) Establishment of
emergency board. (1) Upon the
request of a party or a
Governor under subsection (b),
the President shall create an
emergency board to investigate and
report on the dispute in
accordance with section
10 of this Act [45 USCS § 1601. For
purposes of this subsection, the
period during which no_ change,
except by agreement, shall be
made by the parties in the
conditions out of which the dispute
arose shall be 120 days from the
date of the creation of such
emergency board.
(2) If the President, in his
discretion, creates a board to
investigate and report on a dispute
between the parties described in
subsection (a), the provisions of
this section shall apply to the same
extent as if such board
had been created pursuant to
paragraph (1),9f this subsection.
(d) Public hearing by National
Mediation Board upon failure of
emergency board to effectuate
settlement of dispute. Within 60
days after the creation of an
emergency board under this
section, if there has been no
settlement between the parties,
the National Mediation Board
shall conduct aé public
hearing on the dispute at which
each party shall appear and
provide testimony setting forth the
reasons it has not accepted the
recommendations of the emergency
board for settlement of the dispute.
(e) Establishment of second
emergency board. If no _ settlement
in the dispute is reached at the
end of the 120-day period beginning
on the date of the creation of
the emergency board, any party to
the dispute or the Governor of
any State through which the service
that is the subject of the
dispute is operated may request the
President to establish ‘another
emergency board, in which case the
President shall establish such
emergency board.
(f) Submission of final offers to
second emergency board by
parties. Within 30 days after
creation of a board under
subsection (e), the parties’ to
the dispute shall submit to the
board final offers for settlement of
the dispute.
(g) Report of second emergency
board. Within 30 days after the
submission of final offers under
subsection (f), the emergency board
shall submit a report to the
President setting forth its
selection of the most reasonable
offer.
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(h) Maintenance of status quo during
dispute period. From the time a
request to establish a board is made
under subsection (e) until 60
days after such board makes its
report under subsection (g), no
change, except by agreement shall
be made by the parties in the
conditions out of which the
dispute arose.
(i) Work stoppages by employees
subsequent’ to carrier offer
selected; eligibility of employees
for benefits. If the emergency board
selects the final offer submitted
by the carrier and, after the
expiration of the 60-day period
described in subsection (h), the
employees of such carrier
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