Petition for Writ of Certiorari — Capital Airlines, Inc. v. Edwards

7 OPY FILE]

AUG 3194

Ee CHRRTES ELMORE (I

IN THE “4

Supreme Court of the United States

Octosprtr TERM 1949

®

No. 229

CapitaL ArrLings, Inc., Petitioner,

against

Ricuarp I. Epwarps and

James A. Youne, Respondents

a

PETITION OF CAPITAL AIRLINES, INC. FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT.

\ CuarLes H. Murcuison

Rosert B. Hankins

JosepH K. Griuican

Attorneys for Petitioner,

Camtal Airlines, Inc.

Stockton, Umer & Murcuison

1016 Ring Building

Washington 6, D. C.

Of Counsel

aeRO

Press or Byron S. Apams, WASHINGTON, D.C.

INDEX.

Page

PetiTion FoR Writ oF CERTIORARI ...............0005 1

STATEMENT OF THE Matter INVOLVED............ 2

JURISDICTIONAL STATEMENT ..........ceccceccees 6

ac tin du abueacden bic 6

Reasons FoR ALLOWANCE OF THE WRIT ........... 6

Brier in Support or Petirion ror Writ or CertioaRI.. 9

SPECIFIOATION OF EGRRORS ....... 0.0... cece ccscces 9

OUEMRAME GH ARGUMEMT oo occ ccc ec cccccssncs 10

te eri eia eke... cauvinane obea sean 11

Jurisdiction of the Federal Courts over the con-

troversy in issue is completely lacking since

Congress vested complete and final authority

to settle such controversies in the System

SE SINS cs cc cd uvacucactcepaces 11

TABLE OF CASES CITED.

Co., 159 F. (2d) 822 (CCA-Fifth) .............. 17

Elgin, J. d E. Ry. Co. v. Burley, 325 U. S. 711, 89 L.

8 8 Rs i eee 12,17

I a Sa a ne a dS 12, 13, 14

Switchmen’s Union of North America v. National Me-

diation Board, 320 U. S. 297, 88 L. Ed. 61, 64 S. Ct.

NR ate nak eae ee 10, 16, 17, 18

Tunstall v. Brotherhood, 323 U. 8. 210, 89 L. Ed. 187,

IS era ck a'k is CER EU MGS CARA GS OR AW CRE 12,17

Index Continued.

Page

TABLE OF STATUTES CITED.

Railway Labor Act (45 U. 8. C. 1946 ed. ¢. 8, § 151 et

seq.; 44 Stat. 577 as amended by 48 Stat. 926, 1185,

49 Stat. 1921, and 54 Stat. 785, 786) .. .3, 6, 10, 11, 12,15

45 U.S. C. 1946 ed., c. 8, § 152, Ninth.......... 16

45 U.S. C. 1946 ed., c. 8, § 153, First.......... |

45 U.S. C. 1946 ed., c. 8, § 153, Second......... 3 ff

45 U. 8. C. 1946 od, 0. & § 1664 2... 00 ..ceees 3

Se Wes Sk ie a OD cic us vewsadvescccen 6

ee ee a es I a EE A oh oe ox Sakae was es ceceseis 10

8, BG BURR BONN FOP i ok so vk ns vivcceciccs 6

a

IN THE

Supreme Court of the United States

Ocroser Term 1949

No.

Capitau Arruings, Inc., Petitioner,

against

RicHarp I. Epwarps and

James A. Youna, Respondents

ns

PETITION OF CAPITAL AIRLINES, INC. FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT.

The Petitioner, Capital Airlines, Inc., respectfully prays

that a writ of certiorari be issued to review the judgment

of the United States Court of Appeals for the District of

Columbia Circuit entered in the above case on May 10,

1949, which judgment denied Capital Airlines’ petition for

rehearing and reaffirmed a judgment entered March 14,

1949,

2

Statement of the Matter Involved.

Petitioner Capital Airlines is an interstate air carrier,

Respondent Edwards was first employed by Capital as a

probationary co-pilot on December 31, 1940. Subsequently,

on November 1, 1941, the active employment of Edwards

was discontinued by Capital under circumstances which

later gave rise to a controversy as to whether Edwards

had been ‘‘permanently severed’? (and thus lost seniority

rights) or had merely been ‘‘released due to reduction in

force’’ (and thereby retained certain seniority rights),

Similarly, respondent Young was first employed by

Capital as a probationary co-pilot on February 18, 194],

Later, on May 31, 1942, the active employment of Young

was discontinued by Capital under circumstances which

gave rise to a controversy as to whether he too had been

*‘permanently severed’’ or had merely been ‘‘released due

to reduction in force’’.

After such discontinuance of employment by Capital,

both Edwards and Young entered upon active duty with

the armed services of the United States. Upon their dis-

charge, they applied to Capital for reemployment as pilots,

and Capital gave them such employment, reinstating each

upon the pilots’ seniority list with accrued seniority dating

back to the date of original employment. Edwards was

thus reemployed beginning November 15, 1945, and Young

was reemployed as of October 16, 1945.

Thereupon, eight other pilots whose seniority was

affected by the reinstatement of Edwards and Young filed

grievances with the Company, contending that both Ed-

wards and Young had been permanently severed from the

employment of Capital Airlines prior to the date of their

entry into the armed services, and should therefore be

treated as new employees with respect to seniority.

The protesting pilots were members of the Air Line

Pilots Association, which is the authorized collective bar-

gaining representative for the pilots employed by Capital

Airlines. Edwards and Young were not members of the

3

Association, although they had applied for membership.

Since the reinstatement of Edwards and Young affected

the seniority of a great many pilots who were members,

the Association filed with the Company a “ group griev-

ance’. This matter was heard by Company officials, and

the acerued seniority of Edwards and Young was upheld.

Thereafter, the Association presented the matter to

Capital’s System Board of Adjustment. This Board had

been established as required by the federal Railway Labor

Act, and under that Act, the Board had jurisdiction for

“adjusting and deciding’’ disputes as to seniority (45

U. S. C. 1946 ed. c. 8, secs. 184 and 153 Second; 49 Stat.

1189 and 48 Stat. 1189). This jurisdiction of the Board

was implemented by an agreement between Capital and

the Association (as bargaining representative for Cap-

ital’s pilots), and the agreement provides that the awards

of the Board as to seniority shall be ‘final and binding’’

(R. 27). The System Board consisted of two nominees

of the Company and two nominees of the Association.

Both Edwards and Young were given full notice of the

hearings and issues before the Board. Both were present

personally and by counsel, and both had full and fair

opportunity to present to the Board any evidence which

they might deem proper. Both had full and fair oppor-

tunity to cross-examine and to controvert evidence which

proved damaging to their canses. (R. 77, 78, 88, 98-102).

The System Board of Adjustment received a very substan-

tial amount of evidence with respect to the two cases, five

volumes of transcript and 28 exhibits.

Upon the basis of all this evidence the System Board of

Adjustment carefully prepared a written decision (R. 145-

146; 148-149). It held unanimously that Edwards and

—_—_

‘Throughout this brief such references in parentheses refer to

the pages of the printed record filed in this Court. On May 4,

1948 the name of Petitioner was legally changed from Pennsyl-

vania-Central Airlines Corporation (as set forth in some parts of

the record) to Capital Airlines, Ince.

+

Young had been ‘‘let go permanently’’ at the termination

of the original periods of employment. Accordingly, the

Board ordered Capital to conform to the collective bar.

gaining agreement by affording Edwards and Y oung

seniority only from the dates of their reemployment after

the war (R. 149, 146).

Dissatisfied with the award of the System Board,

Edwards and Young then filed complaints in the District

Court for the District of Columbia. They alleged that they

had been treated unfairly, and they sought an injunction

to prevent Capital from abiding by the award of the

System Board (R. 1-30; R. 45-51).

The two cases were consolidated and were fully tried in

the District Court. After trial the District Judge found in

each case as follows:

“*T find that plaintiff has exhausted any rights he

conceivably had under the GI Bill of Rights.

‘*There is no evidence to indicate that the hearing

before the System Adjustment Board was otherwise

than fair. It was in no way prejudicial to plaintiff’s

rights. The decision of the Board is final, and binds

this plaintiff. Counsel for defendants will present for

settlement Findings of Fact and Conclusions of Law

consistent with this announcement, and a judgment

form dismissing the complaint and dissolving the tem-

porary restraining order and the preliminary injune-

tion.’’ (R. 40-41, 56)

Thus the District Court found, as a fact, that Edwards and

Young had been fairly treated, and ruled that under such

circumstances the award of the System Board is ‘‘final and

binding’’.

On appeal to the United States Court of Appeals for the

District of Columbia Circuit, the judgment of the trial

court was reversed and the cause remanded with instrue-

tions (R. 192-200). In its opinion the Court of Appeals

held:

: 5

1, Edwards and Young did not leave their employment

with Capital ‘‘in order to perform such training and

service’? with the armed forces, and therefore they

have no rights under the federal statutes relating to

the reemployment of veterans (R. 193-194).

2. The award of the System Board of Adjustment is sub-

ject to review de novo in the federal courts because

two members of the Board were nominees of the Pilots

Association whereas Edwards and Young were not

members of that Association (R. 196-199).

3. The Court of Appeals then made its own findings of

fact on the merits of the controversy, finding that the

two pilots had not been ‘‘permanently severed’? from

the employment of Capital but had merely been ‘‘re-

leased due to reduction in force’’ (R. 199-200).

Since the Court of Appeals was ‘‘not quite sure’’ of the

exact meaning of the order of the System Board of Adjust-

ment, it remanded the case for the ascertainment of the

meaning of the award. The Court of Appeals ruled that

the award of the Board must be held invalid unless it

recognizes the seniority of Edwards and Young as found

and decided by the Court of Appeals (R. 200). ‘

Actually, the award of the System Board is clear, and

the Court of Appeals has substituted its own findings of

fact for the clear findings of the Board. The Board found

that Edwards and Young had been ‘‘let go permanently”’

and therefore were entitled to seniority only from the

dates of their reemployment by Capital Airlines. Thus the

System Board applied section 23 of the collective bargain-

ing agreement, which section provides for the forfeiture

of seniority rights when pilots are permanently severed

(R. 17). The Court of Appeals substituted its own findings

of fact (that the two pilots had been released due to re-

duction in force), and ruled that Capital must afford

Edwards and Young additional seniority for the first

periods of employment.

6

Following the issuance of the original opinion of the

Court of Appeals, Capital Airlines filed with that court a

timely petition for rehearing and for modification of the

decree. On May 10, 1949, the Court of Appeals issued a

memorandum opinion denying the petition for rehearing,

and entered its final judgment in the case. (R. 201 et seq.)

Jurisdictional Statement.

The jurisdiction of this Court is invoked under Title 28,

United States Code 1948 ed., secs. 1254(1) and 2101(c).

Questions Presented.

1. When the Railway Labor Act has vested in the System

Board of Adjustment full jurisdiction for ‘‘deciding”

seniority disputes and for making ‘‘final and binding”

awards in such disputes, and when the System Board has

fairly decided such a dispute and has made its award, as

in this case, do the federal courts nevertheless have juris-

diction to hear the dispute de novo and to substitute their

findings of fact for those of the Board?

2. Even if it is decided that the federal courts do have

jurisdiction to hear and decide such a case de novo, was

the Court of Appeals for the District of Columbia Circuit

correct in its application of the collective bargaining

agreement?

Reasons for Allowance of the Writ.

1. The United States Court of Appeals for the District

of Columbia Circuit has decided a question of substance

relating to the construction of a statute of the United

States (the Railway Labor Act), which question has not

been, but should be, settled by this Court.

2. The United States Court of Appeals for the District

of Columbia Circuit has not given proper effect to the ap-

plicable decisions of this Court.

7

3. The United States Court of Appeals for the District

of Columbia Circuit has so far departed from the accepted

and usual course of judicial proceedings as to call for an

exercise of this Court’s power of supervision.

Wuererore, your Petitioner prays that a writ of certi-

orari issue under the seal of this Court, directed to the

United States Court of Appeals for the District of Colum-

bia Circuit with respect to the case entitled in its Docket

Nos. 9989 and 9990 (Richard I. Edwards, Appellant v.

Capital Airlines, Inc. and Air Line Pilots Association,

Appellees; and James A. Young, Appellant v. Capital Air-

lines, Inc. and Air Line Pilots Association, Appellees) to

the end that this cause may be reviewed and determined

by this Court; and that the order of said Court of Appeals

be reversed by this Court.

Cuar.tes H. Murcuison

Rosert B. Hankins

JoserH K. Griuuican

Attorneys for Petitioner,

Capital Airlines, Inc.

Srockton, Umer & Murcuison

1016 Ring Building

Washington 6, D. C.

Of Counsel

9

IN THE

Supreme Court of the United States

Ocroser Term 1949

No.

Seed

Capitan Airings, INc., Petitioner,

against

Ricwarp I. Epwarps and

James A. Youne, Respondents.

-

BRIEF OF CAPITAL AIRLINES, INC., IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI.

Sa

The opinions of the Court of Appeals below are not yet

reported but appear in the Record before this Court (R.

192 et seq.). The opinion of the District Court below also

appears in-the Record (R. 40, 56).

The statement of this Court’s jurisdiction, and the state-

ment of the case, have previously been set forth in the

attached petition for writ of certiorari.

Specification of Errors.

a,

The Court of Appeals erred in reviewing a controversy

which is not justiciable, and in substituting its own findings

of fact for those of the System Board of Adjustment. The

10

Railway Labor Act conferred ‘‘final and binding’ juris-

diction of seniority disputes upon the System Board. Con-

gress did not intend that the federal courts should have

power to review orders of the System Board in cases such

as this one.

II.

Even if the Court of Appeals had power to decide the

case of its merits, the Court erred in its ruling that the

rights of Edwards and Young are governed by Section 27

(a) of the collective bargaining agreement, rather than

by Section 23 as the System Board had determined.

Summary of Argument.

The Court of Appeals here made its own findings of fact,

and a decision on the merits, in a case as to which it had

no power whatsoever to take judicial cognizance. Section

1337 of the Judicial Code (28 U. S. C. 1948 ed., sec. 1337)

gives the federal district courts ‘‘original jurisdiction of

any civil action or proceeding arising under any Act of

Congress regulating commerce’’. However, it was held in

Switchmen’s Union of North America v. National Media-

tion Board, 320 U. 8. 297, that this statute which governs

the general jurisdiction of the federal courts does not

apply to controversies arising under the Railway Labor

Act. Consequently, jurisdiction of the federal courts, if it

exists at all, must stem from the Railway Labor Acct itself.

Essentially, the question in issue here involves interpre-

tation of the Railway Labor Act to determine whether it

empowers the federal courts to review orders of the

System Board of Adjustment. This System Board was

established as required by Congress for the purpose of

‘fadjusting and deciding’’ disputes involving seniority,

and for making ‘‘final and binding’’ awards in such dis-

putes. Careful examination of the Railway Labor Act,

which the Court of Appeals below evidently neglected ‘o

make, shows the intent of Congress to keep judicial review

11

of the orders of the various settlement boards at a mini-

mum. Instances wherein judicial review is allowed are

clearly expressed. The instant case is not one of them.

Argument.

Jurisdiction of the federal courts over the controversy in

issue is completely lacking since Congress vested complete

and final authority to settle such controversies in the Sys-

tem Board of Adjustment.

The question of the justiciability of disputes involving

the seniority of railroad and airline employees, which is

the main issue here, has never been before this Court for

decision. However, the justiciability of several other types

of labor disputes arising under the Railway Labor Act has

been denied by this Court for the very evident reason that

the Act vested ‘‘final and binding’’ jurisdiction of such

disputes in the various Boards created therein. Only in

a few exceptional cases, which will be discussed in this

brief, has this Court recognized the power of the federal

courts to review orders of the various settlement Boards

established by the Railway Labor Act.

True, Edwards and Young are non-members of the

union which presented the grievance against their accrued

seniority, but no trace of discrimination against them

existed in any of the preliminary grievance hearings be-

fore Company officials, or subsequently at the hearing

before the System Board of Adjustment. Actually, these

hearings involved the rights of Edwards and Young only

incidentally. The real controversy was between the Com-

pany and the Association. The Company vigorously upheld

the accrued seniority of Edwards and Young while the

Association contested this position. This the Association

was entitled to do since the action of the Company in re-

employing Edwards and Young with accrued seniority

adversely affected the seniority of a great many other

pilots.

12

Clearly, the Association had every right to protest an

action on the part of the Company which the Association

honestly deemed a violation of the labor agreement. It is

the duty of the Association to protest and oppose all

actions on the Company’s part which appear to be a

breach of the collective bargaining agreement. Whether

Edwards or Young were members or non-members of the

Association would make no practical difference in such a

case. Neither Edwards nor Young had occasion to file

grievances at any stage of the proceedings since neither

one was aggrieved except by the final order of the System

Board of Adjustment. Until that moment the Company's

position was that of a powerful champion of Edwards and

Young. Indeed, if the System Board had decided the case

in favor of Edwards and Young, the other pilots might

well have challenged the decision on the ground that the

Company favored the two minority pilots. The reasoning

of the court below would seem to require such an incon-

gruous result.

In ruling that Edwards and Young were entitled to judi-

cial review, the Court of Appeals cited the Steele, Tunstall

and Elgin cases in support of its recconing. Steele vy.

Louisville € N. R. R., 323 U. S. 192, is in reality a boom-

erang since there this Court asserted the ‘‘final and bind-

ing’? nature of the Adjustment Board’s authority in

matters involving interpretation of a labor agreement,

which is exactly what Capital is contending in this

proceeding.

The chief question in the Steele case was whether the

Railway Labor Act imposes upon the exclusive bargaining

representative the duty to represent all of the employees

in the craft without discrimination because of their race,

and if so, do the courts have authority to protect the

minority of the craft or class from the violation of such

obligation? In the Steele case the non-member minority

was a group of negro firemen who were abused and de-

moted by the Company without even a pretense of notice

13

or a hearing. The rights protected by judicial review in

that case were constitutional as well as statutory. Accord-

ingly, in the Steele case it was held that the negro minority

had ‘‘rights’’ which were enforcible by the federal courts.

This Court stated:

“In the absence of any available administrative rem-

edy, the right here asserted, to a remedy for the

breach of the statutory duty of the bargaining repre-

sentative to represent and act for the members of a

craft, is of judicial cognizance. That right would be

sacrificed or obliterated if it were without the remedy

which courts can give for breach of such a Gmy...

The statutory provisions which are in issue are in the

form of commands. For the present command there

is no mode of enforcement other than resort to the

courts, whose jurisdiction and duty to afford a remedy

for a breach of statutory duty are left unaffected’?

323 U. S. at 207).

By contrast, all of the rights of Edwards and Young in

the proceeding before the System Board of Adjustment

were fully and fairly protected. No statutory ‘‘com-

mands’’ were involved.

The Court of Appeals below concluded that ‘‘because the

making of the award was in the hands of their active ad-

versaries’’, Edwards and Young had the right to judicial

review. There is no authority for such a principle of law

in the Steele case or any other case. Furthermore, the

Court below committed a factual error in concluding that

the award was in the hands of the ‘‘active adversaries”’ of

Edwards and Young. The record shows that the member-

ship of the System Board of Adjustment consisted of two

Company employees and two Union members. Since the

Company had ruled in the preliminary proceedings that

Edwards and Young were entitled to accrued seniority,

and continued to take that position until overruled by the

order of the System Board, it cannot fairly be said that

the award of the System Board was in the hands of the

“active adversaries’ of Edwards and Young. The two

14

Company members cannot be presumed to have favored

the Association’s position in the matter. A contrary pre-

sumption would be more apt.

In the very question now before the Court, the Steele

decision is contrary to the decision of the Court below. In

the instant case the Court of Appeals’ reversal was based

upon what was asserted to be an error on the part of the

System Board in construing certain sections of the collec-

tive bargaining agreement. The Court ruled that Section

27(a), rather than Section 23, of the collective bargaining

agreement governed the rights of Edwards and Young.

These sections provide as follows:

“*Sec. 23. Any pilot whose services with the Com-

pany are permanently severed shall forfeit his seni-

ority right’’. (R. 17)

**Sec. 27(a). A pilot who is released from the ser-

vice of the Company due to reduction in force and is

subsequently rehired shall retain his seniority to the

time of release but shall not continue to accrue seni-

ority after release unless and until he is reemployed.

Such pilot, if he keeps the Company advised of his

address, will be reemployed in the order of his seni-

ority, provided the Company finds his flying ability

and physical condition still meet the required stand-

ards. The right of preference in employment shall

expire at the end of one year from the date of re-

lease’’. (R. 19)

It is evident, therefore, that the controversy over which

the court below has asserted jurisdiction, is a controversy

involving the interpretation of the collective bargaining

agreement. In the Steele case all questions involving in-

terpretation of the collective bargaining agreement were

left to the expert judgment of the Adjustment Board.

Federal jurisdiction over such rhatters was ruled out. This

Court, summarizing various types of labor disputes which

are non-justiciable, stated:

‘The question here presented is not one of a jurisdic-

tional dispute, determinable under the administrative

15

scheme set up by the Act. . . . or restricted by the Act

to voluntary settlement by recourse to the traditional

implements of mediation, conciliation and arbitration.

There is no question here of who is entitled to repre-

sent the craft, or who are members of it, issues which

have been relegated for settlement to the mediation

Board. . . . Nor are there differences as to the inter-

pretation of the contract which by the Act are com-

mitted to the jurisdiction of the Railroad Adjustment

Board.’’ (323 U. S. at 205)

The Act itself is explicit enough on this point. Section

153, First, (i) and (m), of the Railway Labor Act, confers

upon the Adjustment Board final and binding jurisdiction

over disputes ‘‘growing out of grievances or out of the

interpretation or application of agreements concerning

rates of pay, rules, or working conditions’’. The dispute

in the instant case, being a controversy between a group

of employees and a carrier growing out of an interpreta-

tion of the collective bargaining agreement, clearly falls

within the import of this Section.

This Court went very thoroughly into the question of

justiciability of railroad labor disputes in General Com-

mittee, B. L. E. v. Missouri-K. T. R. Co., 320 U. S. 323.

That case, unlike the instant case, involved a jurisdictional

dispute, but the reasoning of the Court is very illuminat-

ing. The District Court had decided the case on the merits,

but this Court ruled that the Federal courts had no power

under the Railway Labor Act to resolve the controversy.

In tracing the history of the Act, this Court stated:

“In short, Congress by this legislation has freely

employed the traditional instruments of mediation,

conciliation and arbitration. Those instruments, in

addition to the available economic weapons, remain

unchanged in large areas of this railway labor field.

On only certain phases of this controversial subject

has Congress utilized administrative or judicial ma-

chinery and invoked the compulsions of law. Congress

was dealing with a subject highly charged with emo-

tion. Its approach has not only been slow; it has been

16

piecemeal. Congress has been highly selective in its

use of legal machinery. The delicacy of these prob-

lems has made it hesitant to go too fast or too far,

The imference is strong that Congress intended to go

no further in its use of the processes of adjudication

and litigation than the express provisions of the Act

indicate. (320 U. S. at 332-3).

If Congress did not select the courts to resolve jurisdic-

tional disputes, neither did it select the courts to settle

seniority disputes involving technical interpretation of a

collective bargaining agreement. To the contrary, it fash-

toned an administrative remedy, and vested final and bind.

img jurisdiction over seniority disputes in the System

Board of Adjustment. The Railway Labor Act does not

contain the slightest suggestion that disputes involving

seniority may be reviewed by the federal courts. As this

Court further stated in the General Committee, supra:

“In view of the pattern of this legislation and its

history the command of the Act should be explicit and

the purpose to afford a judicial remedy plain before

an obligation enforcible in the courts should be im-

plied. Unless that test is met the assumption must

be that Congress fashioned a remedy available only in

other tribunals. ... Courts should not rush in where

Congress has not chosen to tread’’ (320 U. S. at 337)

In Switchmen’s Union v. National Mediation Board, 320

U. S. 297, this Court also held that, lacking any specific

provision for judicial review in the Act, labor disputes en-

trusted to settlement boards are non-justiciable. That

case, like the General Committee case, involved a jurisdic-

tional dispute. This Court ruled that the “‘right’’ of the

majority of any craft to determine who shall be the repre-

sentative of the craft is protected by Section 2, Ninth, of

the Railway Labor Act, which Section gives the Mediation

Board power to determine the issue. Since a proper ad-

ministrative method has been determined by Congress to

settle such questions, this Court ruled:

17

‘‘review by the federal district courts of the Board’s

determination is not necessary to preserve or protect

that ‘right’. Congress for reasons of its own decided

upon the method for the protection of the ‘right’ which

it created. It selected the precise machimery and

fashioned the tool which it deemed suited to that end.

Whether the imposition of judicial review on top of

the Mediation Board’s administrative determination

would strengthen that protection is a considerable

question. All constitutional questions aside, it is for

Congress to decide how the rights which it creates shall

be enforced. ... In such a case the specification of one

remedy normally excludes another’’ (320 U. S. at 301)

By the same reasoning, in the instant case, the judicial

review imposed by the Court of Appeals on top of the de-

termination of the System Board of Adjustment was su-

perfluous and unauthorized by law. All constitutional and

statutory rights of Edwards and Young were fully pro-

tected by both parties to the dispute, and the hearing be-

fore the System Board was a model of fairness and thor-

oughness.

The two remaining United States Supreme Court cases

cited by the court below lend no weight to the court’s con-

clusion that the seniority dispute in the instant case could

be judicially reviewed. The Tunstall case involved racial

discrimination and the result was the same as in the Steele

case, discussed supra. Elgin, J. & E. v. Burley, 325 U.S.

711, was so dissimilar to the instant case in the question

involved that it is entitled to no consideration whatsoever.

Careful study of all Supreme Court decisions on the point

shows that the cases cited by the court below in support of

its decision allowing judicial review state only the narrow

exceptions to the general rule.

This question was carefully examined by the United

States Cireuit Court of Appeals, Fifth Circuit, in Brother-

hood of Railroad Trainmen v. Texas & P. Ry. Co., 159 F.

(2d) 822, where the Court stated:

18

:

‘In the Steele and Tunstall cases, the court fully

recognized the broad scope and binding force of the

general rule as declared in the Switchmen’s Union and

the General Committee cases. In sustaining the right

of Steele and Tunstall to judicial relief, it took the

greatest pains to point out that it sustained that right

because, with the Union acting adversely on racial

grounds to the very persons they were supposed to

represent, the constitutional right of the plaintiffs not

to be discriminated against would be sacrificed or ob

literated if it were without the remedy which courts

can give for breach of such an obligation.’ (159 R,

(2d) at 826)

Since the ruling of the court below is in conflict with the

general rule adopted by this Court in the Switchmen’s and

General Committee cases, a writ of certiorari should be

granted.

Cuar.Les H. Murcuison,

Rosert B. Hankins,

JosEepH K. Gruuican,

Attorneys for Petitioner,

Capital Airlines, Inc.

Stockton, Umer & Murcuison,

1016 Ring Building,

Washington 6, D. C.,

Of Counsel.