359 F.

2d 303

FLIGHT ENGINEERS INTERNATIONAL ASSOCIATION,

EAL CHAPTER,
AFL-CIO, Appellant,
v.
EASTERN AIR LINES, INC. and Air Line Pilots Association,
Appellees.
No. 173, Docket 29997.

United States Court of Appeals Second Circuit.

Argued Jan. 4, 1966.
Decided April 12, 1966.

I. J. Gromfine, Washington, D.C. (Herman Sternstein, William B. Peer,

and Zimring, Gromfine & Sternstein, Washington, D.C., and Patt &
Heimowitz, New York City, with him on the brief), for appellant.
George G. Gallantz, New York City (Larry M. Lavinsky, Saul G. Kramer,
and Proskauer, Rose, Goetz & Mendelsohn, New York City; W. Glen
Harlan and Gambrell, Harlan, Russell & Moye, Atlanta, Ga., with him on
the brief), for appellee Eastern Air Lines.
Herbert A. Levy, New York City (Henry Weiss and Cohen & Weiss, New
York Ciry, with him on the brief), for appellee Air Line Pilots
Association.
Before MOORE, SMITH and ANDERSON, Circuit Judges.
MOORE, Circuit Judge:

This appeal presents another facet of the drawn-out controversy between the
defendant Eastern Air Lines, Inc. (Eastern), the plaintiff Flight Engineers
International Association, EAL Chapter, AFL-CIO (FEIA), and the defendant
Air Line Pilots Association (ALPA). Portions of the controversy have
previously come before the Civil Aeronautics Board, the National Mediation
Board, and a variety of courts.

The opinion of the District Court ably sets forth the background of the dispute.
243 F.Supp. 701 (S.D.N.Y.1965). Only the barest summary is necessary here.

Federal regulations require a crew of three-- a pilot, a copilot, and a certified

flight engineer-- in certain of the larger commercial aircraft. ALPA, which
represented Eastern's pilots and copilots, and FEIA, which represented
Eastern's flight engineers, clashed in 1958 over the license requirements of the
flight engineer, the 'third man in the cockpit.' FEIA maintained that he should
hold a mechanic's license (A & E license), held by FEIA members but not
generally held by ALPA members. ALPA maintained that he should hold a
pilot's license (P & I license), held by ALPA members but not generally held by
FEIA members. After a strike by FEIA, Eastern agreed to a four-man crew, one
member of which had to have a mechanic's license but did not have to have a
pilot's license. This arrangement continued until 1962, with occasional strikes
by FEIA and repeated attempts by presidential commissions and boards to
solve the underlying problem of who should fill the third seat in the cockpit.

On June 23, 1962, FEIA again went out on strike, causing Eastern to shut down
operations. In mid-July Eastern offered to give pilot's training to FEIA flight
engineers so that they would be eligible for occupancy of the third seat. FEIA
did not accept the offer within the time set. Eastern then made the same offer
individually to each of the striking engineers, informing them that if they did
not report to work by July 24th, they might be replaced. On August 10, 1962,
Eastern made a final proposal to the striking flight engineers, promising them
prior job rights on propeller equipment but not on jets, and stating that those
who did not accept the offer by August 16th would lose all prior job rights.
Under the terms of agreements which Eastern reached with ALPA during this
period, pilots who applied for the position of 'pilot engineer'-- the new title
given to occupants of the third seat in the cockpit-- would suffer no loss of their
pilot seniority.

On August 10th, Eastern began to replace the striking flight engineers with
ALPA pilots and on August 25th Eastern notified all flight engineers still out
on strike that they had been permanently replaced. FEIA and some of the
striking flight engineers wrote Eastern on August 27, 1962, demanding that
their discharge be processed as a grievance under the FEIA-Eastern collective
bargaining agreement. Eastern rejected these demands on the grounds that the
bargaining agreement had been terminated.

On September 27, 1962, FEIA offered to end the strike along the lines of
settlement proposed by Eastern in July, provided that striking flight engineers

could return to work in order of seniority. Eastern declined on the grounds that
the striders had been permanently replaced, so that there was no basis for
further negotiation.
7

On September 28, 1962, FEIA informed Eastern that it would raise the
replacement of the flight engineers as a formal grievance before the System
Board of Adjustment established by the parties under the Railway Labor Act.
Eastern refused to participate. As a result, the Mediation Board did not appoint
a neutral member to the System Board of Adjustment.
Previous Litigation

FEIA has been seeking redress from Eastern and ALPA, together or separately,
before a range of administrative and judicial bodies since the summer of 1962,
for wrongs alleged to have been committed during the summer of 1962. The
history of these efforts is necessary to the resolution of the problem before us.

In the union's first attempt at administrative review, FEIA filed a complaint

with the CAB alleging that Eastern had violated Section 401(k)(4) of the
Federal Aviation Act, 49 U.S.C. 1371(k)(4), which makes compliance with the
Railway Labor Act a condition for the holding of a certificate by an air carrier.
The complaint alleged a number of violations of the Railway Labor Act by
Eastern. The CAB dismissed the complaint, partly on the grounds that similar
grievances were the basis of pending actions in the courts, and partly because
the uncertain nature of the FEIA representation of the flight engineers was a
question for the National Mediation Board to decide. The Court of Appeals for
the District of Columbia Circuit held that this dismissal was not an abuse of
discretion by the CAB, although the Court indicated that it believed the CAB
had some independent jurisdiction to decide whether the Railway Labor Act
had been violated. Flight Engineers' International Ass'n, etc., v. Civil
Aeronautics Board, 332 F.2d 312, 317 (D.C.C.ir.1964).

10

In 1964 FEIA sought a preliminary injunction to enjoin the National Mediation

Board from holding an election to determine the bargaining representative of
the flight engineers then working for Eastern, on the grounds that in
determining who was qualified to vote in the representation election, the
National Mediation Board had refused to investigate FEIA's charges of unfair
labor practices. The district court held that the Mediation Board was under no
duty to hold hearings on such charges. Flight Engineers' Int'l Ass'n, etc. v. Nat'l
Mediation Board, 230 F.Supp. 611 (D.D.C.1964). The Court of Appeals
affirmed, indicating that the Mediation Board had made some investigation as

to the voting rights of the ALPA pilots who had replaced FEIA engineers.
Flight Engineers' Int'l Ass'n, etc. v. Nat'l Mediation Board, 338 F.2d 280
(D.C.Cir.1964).
11

In the summer of 1962 FEIA brought suit in the Southern District of New
York, seeking a preliminary injunction against Eastern on the grounds that
Eastern had failed to bargain as required by the Railway Labor Act, and had
bargained improperly by withdrawing earlier offers to the union and by writing
to the individual employees. The district court denied the relief requested on
the grounds that FEIA had shown no clear and convincing evidence of unfair
labor practices and had not demonstrated a reasonable probability of success
after trial. This court affirmed on the opinion below. 208 F.Supp. 182
(S.D.N.Y.), aff'd per curiam, 307 F.2d 510 (2d Cir.1962), cert. denied, 372 U.S.
945, 83 S.Ct. 934, 9 L.Ed.2d 970 (1963).

12

FEIA started the present suit against Eastern and ALPA in the Southern District
of New York on August 21, 1962, requesting that the defendants be
preliminarily enjoined from alleged violations of the Railway Labor Act. The
district court found on the merits that the procedures for bargaining under the
Act had been exhausted so that the parties were free to resort to economic selfhelp; that Eastern had bargained in good faith with FEIA; and that Eastern had
not conspired with ALPA against FEIA. The ocurt denied the request for a
preliminary injunction on the grounds that FEIA had not shown a reasonable
chance of success at a full trial. 45 CCH Lab.Cas. P17,814 (1962). This court
affirmed on the ground that since the case involved problems of representation
and problems of jurisdiction between labor unions, the district court was
without jurisdiction to grant the relief which the plaintiff sought. 311 F.2d 745
(2d Cir.), cert. denied, 373 U.S. 924, 83 S.Ct. 1523, 10 L.Ed.2d 423 (1963). In
February 1964 FEIA filed an amended or supplemental complaint against
Eastern and ALPA, requesting not only an injunction against Eastern ordering it
to recognize FEIA as the exclusive bargaining representative of the flight
engineers, but also a declaratory judgment declaring that the many agreements
between Eastern and ALPA (November 12, 1958, January 1, 1959, July 20,
1962, August 3, 1962, and August 6, 1962) were void and unenforceable; a
mandatory injunction directing that Eastern reinstate the striking FEIA flight
engineers without prejudice, 'ordering and directing Eastern to dismiss, if
necessary, any employees hired to replace the striking Flight Engineers'; and a
judgment for damages of $11,500,000, together with a similar sum 'as
exemplary damages.'

13

Both defendants moved for summary judgment dismissing the amended

complaint on the ground that the court was without jurisdiction to grant the

relief requested. The district court granted the defendants' motions, partly on
the ground that there was no evidence of violations of the act and partly on the
ground that the district court lacked jurisdiction of the subject matter. 243
F.Supp. 701 (S.D.N.Y.1965).
14

Much of the original complaint survives unaltered in its amended successor;

and the passage of time has made these portions of the complaint no more a
subject for judicial relief than they were at the time of the previous appeal.
They still involve jurisdictional and representational disputes between the two
unions-- disputes which, under the Railway Labor Act, are 'for non-curial
treatment.' FEIA v. Eastern Air Lines, 311 F.2d 745 at 748 (2d Cir.), cert.
denied, 373 U.S. 924, 83 S.Ct. 1523, 10 L.Ed.2d 423 (1963).

15

The amended complaint contains several new allegations: that the striking
FEIA members were wrongfully discharged; that Eastern unlawfully
conditioned the strikers' return to work on their relinquishment of seniority
rights, and unlawfully gave superseniority to the ALPA replacements; and that
Eastern unlawfully refused to process the grievances of the discharged
employees and prevented the effective review of those grievances by the
System Board of Adjustment.

16

These so-called new allegations (the replacement of the strikers, the demand
for reinstatement of the discharged engineers and money damages) must be
examined in the light of the many previous proceedings and decisions involving
the controversies between Eastern, FEIA and ALPA as to the pilot-engineer
status in the cockpit.

17

FEIA concedes that the determination of which union is to represent the

occupants of the third seat in the cockpit is left to the National Mediation Board
by Section 2, Ninth, of the Railway Labor Act. The National Mediation Board
has made this determination. After deciding that both the strikers and their
replacements could vote to choose a bargaining representative, it conducted a
representation election, as a result of which it certified ALPA as the bargaining
representative of the occupants of the third seat.

18

The allegations in the amended complaint which relate to the replacement of

the strikers do not directly challenge the representational decision of the
Mediation Board; but the judicial relief requested by FEIA flies 'in the teeth of
the board's certification' of ALPA, almost as much as a court order directing an
employer not to bargain with a union flies in the teeth of the board's
certification of that union. Order of Railway Conductors of America v.

Pennsylvania R.R., 323 U.S. 166, 172, 65 S.Ct. 222, 89 L.Ed. 154 (1944). As
the complaint itself recognizes, Eastern could afford to reinstate five hundred
striking FEIA members only if it dismissed a comparable number of their
replacements, most of whom voted for ALPA. The result would be a radical
shift in the composition of the work force which might well make possible the
ouster of ALPA by FEIA as the bargaining representative of the third-seat
occupants.
19

The claim for money damages would have a similar effect. If granted in
anything like the amounts requested, employers in similar situations in the
future would never dare to deal with unions newly certified by the National
Mediation Board, until they could obtain declaratory judgments from the courts
as to the validity of the ousted union's claims that the Railway Labor Act had
been violated-- a result which would clash with the evident congressional intent
to have disputed questions of representation in an industry so charged with the
public interest disposed of rapidly. See Ruby v. American Airlines, Inc., 323
F.2d 248, 256 (2d Cir. 1963), cert. denied, 376 U.S. 913, 84 S.Ct. 658, 11
L.Ed.2d 611 (1964).

20

We do not mean to say that courts may never consider claims that the Railway
Labor Act has been violated, if two unions are present. The second Ruby case
makes clear that even if two unions are on the scene, such claims may be heard
by the courts in certain circumstances. Ruby v. American Airlines,329 F.2d 11
(2d Cir. 1964), vacated as moot sub nom. O'Connell v. Manning,381 U.S. 277,
85 S.Ct. 1456, 14 L.Ed.2d 430 (1965). But in that case, the issue was whether a
court could order an employer to bargain with a union (the one most recently
certified by the National Mediation Board); and that issue had been heard by no
other court or administrative body. The allegations here more directly affect
questions of representation; the relief requested, if granted, would to a large
extent conflict with the certification of ALPA by the board; and many of the
questions presented have previously been considered on the merits by the
courts.

21

FEIA maintains broadly that Congress did not intend in the Railway Labor Act
to create rights without remedies, and that as a result courts should step in to
hear Railway Labor Act complaints where administrative agencies have
declined to do so. The law is not that simple; nor is its application to the facts of
this case. The Mediation Board considered the legality of the replacement of
the strikers, at least to the extent of holding that the replacements were entitled
to vote in the representational election. See FEIA v. National Mediation Board,
338 F.2d 280, 282 (D.C.Cir.1964).

22

Judge Levet found that the third seat positions on Eastern's jets were filled by
replacements before Eastern's letter of August 8, 1962. This finding cuts the
heart out of FEIA's argument that Eastern unfairly discriminated against the
strikers by denying them access to work on jets. Judge Levet also found
Eastern's temporary contracts with ALPA were fair, and that Eastern had
completely and permanently replaced all the strikers by August 25, 1962-- a
finding inconsistent with FEIA's present claim that its members were
discharged before they had been replaced. 45 CCH Lab. Cas. P17,814 (1962).

23

Moreover, it seems clear that Congress did not intend courts to hear claims
under the Act whenever no administrative body would hear them. In certain
narrow areas, where the command of the statute is clear and the issue does not
impinge on one committed for resolution to other bodies, judicial enforcement
of the Railway Labor Act has been held proper. E.g., Virginian R'y v. System
Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). Courts
may also require the Mediation Board to carry on its statutory duties to
investigate and to certify. Air Line Dispatchers Association v. National
Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685, cert. denied,342 U.S.
849, 72 S.Ct. 77, 96 L.Ed. 641 (1951). But the history of the Railway Labor
Act, as interpreted by the Supreme Court, makes clear that in all other areas,

24

'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 implied.
Unless that test is met the assumption must be that Congress fashioned a
remedy available only in other tribunals. There may be as a result many areas in
this field where neither the administrative nor the judicial function can be
utilized. But that is only to be expected where Congress still places such great
reliance on the voluntary process of conciliation, mediation and arbitration * *
* Courts should not rush in where Congress has not chosen to tread.'

25

General Committee of Adjustment, etc. v. Missouri-Kansas-Texas R.R., 320

U.S. 323, 337, 64 S.Ct. 146, 152, 88 L.Ed. 76 (1943).

26

To grant the judicial relief requested in FEIA's wholesale attack on the

replacement of the strikers would directly affect the previous determination of
the representational dispute by the National Mediation Board;1 would reopen a
controversy which has plagued the airlines for years and which has been fought
to a rough conclusion by resort to the self-help envisaged by the act; and would
lay down a precedent that would mean the inordinate protraction of comparable
struggles in years to come. For these reasons, we do not feel that courts should
consider the claims for judicial relief in FEIA's amended complaint which are

directly ocnnected with the replacement of the strikers.

27

The last of the new allegations in the amended complaint, concerning Eastern's
refusal to process grievances and its paralyzing of the System Board of
Adjustment, raises somewhat different problems.

28

The facts underlying FEIA's allegation are as follows. After Eastern told the
striking engineers that they had been permanently replaced, FEIA and some of
the strikers requested that the discharge of the engineers be processed as a
grievance under the FEIA-Eastern collective bargaining agreement. Eastern
refused to do so on the theory that the agreement had been terminated. The
union attempted to bring the matter before the System Board of Adjustment,
but the System Board split 2-2 on the problem. The collective bargaining
agreement provided that if the System Board could not agree within a certain
time, 'it shall request the National Mediation Board to name a referee.' Only the
employee members of the System Board requested the naming of a referee, and
the Mediation Board held that it had no power to name a referee under the
circumstances. The District Court for the District of Columbia upheld the
position of the Mediation Board. FEIA v. National Mediation Board, 230
F.Supp. 611 (D.D.C.), aff'd on other grounds, 338 F.2d 280 (D.C. Cir. 1964).
FEIA maintains that Eastern's refusal to join in the request for the appointment
of a neutral referee was in violation of Eastern's duty under Section 204 of the
Railway Labor Act 'to establish a board of adjustment.'

29

This issue is properly one for judicial consideration, since the relief requested is
not the circumvention of the act's provisions for adjustment and mediation, but
rather the enforcement of those provisions. International Ass'n of Machinists,
etc. v. Central Airlines, Inc., 372 U.S. 682, 690, 83 S.Ct. 956, 10 L.Ed.2d 67
(1963); Aaxico Airlines, Inc. v. Air Line Pilots Association, 331 F.2d 433, 437
(5th Cir.), cert. denied, 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344 (1964); cf.
Virginian R'y v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81
L.Ed. 789 (1937). However, we agree with the trial court that since the
collective bargaining agreement between the parties had terminated, Eastern
was no longer under any obligation to process as grievances the allegations of
the union, or to maintain the System Board of Adjustment for the resolution of
the claims here asserted by the Union.

30

As the Supreme Court made clear in International Ass'n of Machinists, etc. v.

Central Airlines, Inc., 372 U.S. 682, 690, 83 S.Ct. 956, 961, 10 L.Ed.2d 67
(1963), 'the extent and nature of the legal consequences' (Deitrick v. Greaney,
309 U.S. 190, 200-201, 60 S.Ct. 480, 84 L.Ed. 694) of the duty to establish a
board of adjustment under Section 204 are to be determined by the courts. In

making this determination, we must bear in mind the intended function of the
System Boards of Adjustment: to resolve minor disputes, i.e., disputes as to the
interpretation and application of existing contracts, as opposed to 'major
disputes connected with a negotiation of contracts or alterations in them' (372
U.S. 687, 83 S.Ct. 959), which the Act leaves for resolution to the processes of
mediation. See Elgin, J. & E. R'y v. Burley, 325 U.S. 711, 722-724, 65 S.Ct.
1282, 89 L.Ed. 1886 (1945). The Act's provisions for boards of adjustment
serve the same function as provisions for arbitration under the typical collective
bargaining agreement-- a means for deciding 'the smaller differences which
inevitably appear in the carrying out of major agreements * * *' 325 U.S. at
724, 65 S.Ct. at 1290.
31

As long as it appears that the underlying collective bargaining agreement is still

in effect, all disputes as to grievances and their processing should be solved by
resort to the System Board of Adjustment, and courts will not permit this
machinery to be paralyzed by unilateral action on the part of either the carrier or
the representatives of the employees. See International Ass'n of Machinists, etc.
v. Central Airlines, Inc., supra; Aaxico Airlines, Inc. v. Air Line Pilots
Association, supra.

32

The collective bargaining agreement between Eastern and FEIA was signed on
December 31, 1958. By its terms, it was to continue in force until April 1,
1960, renewable thereafter on a yearly basis until notice of a desire to change
the agreement was served by either party on the other prior to April 1st of any
year. Such a notice was sent by FEIA on February 8, 1960. Negotiations
between the parties continued intermittently until February 1962, and were
followed by the appointment of a presidential emergency board under Section
10 of the Act. The Board filed its report to the President on May 1, 1962, and
the freezing of the situation which had been caused by the appointment of the
emergency board ended thirty days later. After June 1, 1962 the contract was no
longer in effect and the union was free to strike. FEIA v. Eastern Air Lines, 208
F.Supp. 182 (S.D.N.Y.), aff'd per curiam, 307 F.2d 510 (2d Cir. 1962), cert.
denied, 372 U.S. 945, 83 S.Ct. 934, 9 L.Ed.2d 970 (1963). Unlike the collective
bargaining agreement considered in Manning v. American Airlines, Inc., 329
F.2d 32 (2d Cir.), cert. denied, 379 U.S. 817, 85 S.Ct. 33, 13 L.Ed.2d 29
(1964), the status quo provisions of the Railway Labor Act had ceased to
operate. Nor does FEIA suggest the existence of any conduct on the part of
both parties which could serve as the basis for an argument that the parties had
agreed to keep the former contract in effect although it was extinct by its own
terms. The time for economic warfare had arrived, and the battle was not slow
in coming.

33

Under such circumstances, what purpose could be served by maintaining the

System Board of Adjustment? Presumably, it was still the appropriate forum
for the assertion of rights which had arisen while the collective bargaining
agreement was still in effect, see Elgin, J. & E. R'y v. Burley, 325 U.S. 711,
723, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). Conceivably it was the appropriate
forum to consider the fairness of disciplinary action against the strikers, if a
new agreement eventually was reached between Eastern and FEIA.
International Air Line Pilots Ass'n v. Southern Airways, Inc., 44 CCHLab.Cas.
P17,460 (M.D.Tenn.1962). But no such rights are asserted here. The only
'grievances' are those arising from the replacement en masse of the strikers,
which began after the agreement had ceased to be effective. Even if we assume
that this issue, despite its large scale, would have been a 'minor' dispute to be
resolved by the System Board had the agreement remained in effect, the
agreement was no longer in effect. All-out economic war had begun, and the
replacements were Eastern's answer to FEIA's strike. Under such
circumstances, Eastern was not under an obligation to maintain the System
Board so that it could hear disputes of this sort.2 Cf. Manning v. American
Airlines, Inc., 221 F.Supp. 301 (S.D.N.Y.1963), aff'd, 329 F.2d 32 (2d Cir),
cert. denied, 379 U.S. 817, 85 S.Ct. 33, 13 L.Ed.2d 29 (1964).

34

In summary, FEIA bases its appeal largely upon the theory thay there were
genuine issues of material facts relating to (1) the discharge of FEIA engineers
and their replacement by ALPA polots; (2) Eastern's refusal to bargain in good
faith; and (3) Eastern's efforts to promote ALPA as the bargaining agent instead
of FEIA. However, as the trial court found, 'since the agreement between
Eastern and FEIA was no longer in force, Eastern was under no obligation to
re-employ all the strikers' (243 F.Supp. at 708). The court concluded that the
'additional claims advanced by FEIA do not change the nature of the
controversy as found by the Court of Appeals' to be one for non-curial treatment
(p. 708). As to reinstatement and damages, it would follow, as the trial court
held, that 'since the Court is without jurisdiction of the subject matter, it is
equally without jurisdiction to direct the reinstatement of the strikers or to
award damages' (p. 708).

35

Although there may be interesting factual issues which FEIA might desire to
explore, in view of the previous decisions they do not qualify as 'material' facts.
The trial court, therefore, was justified in deciding this case upon the motion
for summary judgment 'for lack of jurisdiction over the subject matter.'

36

Affirmed.

As the trial court stated in its opinion, 'Moreover, to entertain FEIA's claims for
reinstatement of its members would be to bring into issue the certification of
the Mediation Board of ALPA as the bargaining agent for Eastern's flight
engineers.' (243 F.Supp. at 707.)

International Ass'n of Machinists, etc. v. International Aircraft Services, 302

F.2d 808 (4th Cir. 1962), on which FEIA relies, is readily distinguishable. In
that case, arising not under the Railway Labor Act but under the National Labor
Relations Act, the court held that an employer could not avoid a duty to
arbitrate grievances with a union on the grounds that the union, because of the
employer's allegedly unlawful replacement of union members, no longer
represented a majority of the work force. Apart from the obvious differences
between the breadth of the arbitration clause there in question and the
jurisdiction of the boards of adjustment under the Railway Labor Act, the union
and the employer there had entered into a new collective bargaining agreement
which was explicitly made retroactive to the termination date of the old
agreement