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June 5, 1951

Petition of BRINK et al.

The opinion of the court was delivered by: BYERS

Hearing on a petition under U.S.C.A. Title 45 Sec. § 159, Railway Labor Act, to impeach, vacate, and set aside an award of arbitrators dated April 6, 1951. The petition was timely, having been filed April 16, 1951 (Id. Par. Second).

Hearing was held on May 16, 1951, and brought to light:

 A. The dispute has to do with the seniority of Pilots employed by Pan American World Airways, Inc. (to be called Pan American) and so is proper for arbitration under the Act, which is made to apply to carriers by air, § 181.

 B. The arbitration was provided for in an agreement between Pan American and its air line pilots as represented by their bargaining agent, the Air Line Pilots Association, International (to be called Association) dated April 13, 1951.

 The important provisions seem to be:

 That the question for arbitration 'stems from a dispute regarding the proper seniority position upon Pan American's * * * list of a certain group of * * * pilot-employees.' The question is precisely stated in Paragraph Twenty-Second to be: 'What is the proper seniority position and date of employment of each 'subject pilot' on the Pan American System Seniority List?'

 It appears that the dispute is between two groups of pilots constituting together the 'subject pilots' known as the Northeast and the Southwest Groups, respectively, although they are not so designated in the agreement; but that such is the nature of the controversy appears from Paragraph Sixteenth, which provides for representation by each group. Thus there is no showing of a dispute between the carrier and an employee or group of employees within § 184. However, the parties seem to have proceeded upon the theory that this is deemed to be an arbitration within the design of the Act, and neither urges the right to withdraw because of a mistake in that respect. Indeed the case for the petitioners is that the formalities prescribed by the Statute have not been observed, not that the arbitration itself should be considered as without statutory warrant.

 The agreement does not recite that arbitration is to be had under the provisions of Chap. 8 Title 45 U.S.C.A., being the Railway Labor Act., as directed in § 158(b), but it does specify three arbitrators whose names are states, instead of the Board. Not all of the other requisites stated in § 158 are embodied in the contract, but since there is attached thereto a stipulation dated March 30, 1951, which provides that the agreement shall be deemed to be amended to conform to the Act, and specifications are set forth in that behalf, the proceeding can well be treated as the parties evidently intended that it should be, namely, as one governed by the arbitration procedure of the Act.

 Acquiescence in that approach raises its own doubts, however, for if the dispute was indeed not between those having the right to animate arbitration processes peculiar to the Act, others, such as employee groups, could not stipulate the Statute into potency any more than they could stipulate jurisdiction in a court. It seems plausible to reason in answer to the foregoing, that since the seniority list, however contrived, is in fact maintained by the employer, the latter may be thought to occupy a kind of vicarious role in the controversy sufficient to justify decision of the motion upon the theory that the provisions of the Act must be thought to apply.

 No one disputes that the arbitrators met as the agreement contemplated; that they conducted hearings commencing March 30, 1951, and continuing until April 6, on which day they made and signed their award with one member dissenting whose minority award and opinion were filed April 10th.

 If the latter document is understood (and for the sake of stating what the dispute seems to be about, but not by way of making a finding), the subject-matter apparently involves the status for the purpose of seniority, of those pilots in the Northeast Group, who were paid a salary by Pan American during their period of training and before they qualified as pilots and were so carried in the records of their employer. If that preliminary period were to be credited to a given full fledged pilot when he should become such, his seniority would antedate that of other pilots who might be first carried on the company's payrolls simultaneously with his attainment of full status. Seemingly it was the Northeast Group which contained some pilots whose seniority involved pre-pilot status, while the Southwest Group did not.

 Since the award by a vote of two to one was that the seniority positions of the 'subject pilots' known as the Northeast Group is that shown on the 'Seniority List of January 1, 1950', annexed to the award; and since the award was stipulated (paragraph 5) to be final and binding, there is no duty resting upon this Court to undertake a review on the merits.

 The Act provides in § 159 (Paragraph Third) the grounds upon which an award may be impeached; they are three in number, (a) non-conformity with substantive requirements of the Chapter, or that the proceedings were not substantially in conformity therewith; (b) award not confined to the agreement to arbitrate; (c) effective fraud or corruption by a member of the Board of Arbitration.

 The last ground is not presented by this petition. The arguments in the petitioners' brief are directed to:

 As to (a) the failure of the arbitrators to take and file a record, as ...

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