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FLIGHT ENGRS. INTL. ASSN. v. EASTERN AIR LINES

August 10, 1962

FLIGHT ENGINEERS INTERNATIONAL ASSOCIATION, EAL CHAPTER, AFL-CIO, Plaintiff,
v.
EASTERN AIR LINES, INC., Defendant



The opinion of the court was delivered by: FEINBERG

This is a motion for a preliminary injunction by plaintiff union, Flight Engineers International Association, against defendant, Eastern Air Lines, Inc. It grows out of a tangled labor dispute involving effects of technological change, featherbedding and rival union jurisdiction. Both parties, at different stages of the lengthy negotiations, have exhibited something less than an acute awareness of the needs of the public. For the reasons set forth below, the injunction is denied. However, such denial of relief sought by the Flight Engineers reflects no approval of Eastern's action in refusing to accept the most recent settlement proposal of Secretary of Labor Goldberg, as set forth in the papers before me.

I

The facts as they appear from the verified complaint and Eastern's detailed affidavit in opposition *fn1" are the following. The Flight Engineers and Eastern entered into a collective bargaining agreement on December 31, 1958, to be effective the next day. This agreement was to continue in force until April 1, 1960, renewable thereafter on a yearly basis unless notice of a desire to change the agreement was served by either party on the other prior to April 1 of any year, as required by Section 6 of the Railway Labor Act, 45 U.S.C.A. § 156 (the 'Act'). *fn2"

 On February 8, 1960, the Flight Engineers served upon Eastern such a 'section 6' notice. *fn3" Eastern responded by serving a similar notice four days later. *fn4" Both notices were couched in general terms, without articulation of the specific changes in the agreement desired by either party. However, in April 1960, the parties did exchange detailed proposals of changes desired in the agreement. After extensive negotiations based on these proposals failed to yield a settlement, the parties, in July 1960, resorted to the mediation services of the National Mediation Board, as provided for under the Act. *fn5" The case was docketed by the National Mediation Board in July, and the Board proceeded to mediate the dispute.

 In the ensuing year, issues were injected into the negotiations which have since become the crucial ones and which were not included in the original 'section 6' notices served in February 1960. Prior to that time, Eastern had signed an agreement with another union, the Air Line Pilots Association, which included provision for a cockpit crew of three pilots on jet planes. The government regulations applicable to Eastern's operations require that jet aircraft and four-engine propeller aircraft carry a basic cockpit crew of three airmen, two of whom must be qualified air pilots and one of whom must possess a Flight Engineer's Certificate issued by the Federal Aviation Agency ('FAA'). The contract between Eastern and the Flight Engineers provided that the latter would hold an FAA Airframe and Powerplant License ('A&P license' -- sometimes called an 'A&E license' the type required for ground mechanics) in addition to the FAA Flight Engineer's Certificate. The result of these contracts was that Eastern, along with other airlines, carried a basic cockpit crew of four men, one more than required by FAA regulations or desired by Eastern. Three of the four were pilots represented by the Air Line Pilots Association, and the other was a flight engineer, holding an A&P license, represented by the Flight Engineers.

 On February 6, 1961, the National Mediation Board, in another case, held that pilots and flight engineers employed by United Air Lines constituted a single craft or class of employees for the purpose of collective bargaining under Section 2, Ninth of the Act, 45 U.S.C.A. 152, Ninth. On February 17, 1961, the Flight Engineers struck Eastern as well as several other airlines, seriously disrupting the operation of the nation's air transportation system. The strike ended shortly thereafter when, upon Secretary of Labor Goldberg's recommendation, President Kennedy established the so-called Feinsinger Commission to make recommendations with respect to a settlement of the parties' dispute over the crew complement problem. Both Eastern and the Flight Engineers (as well as the Air Line Pilots Association and other airlines) participated in the hearings before the Feinsinger Commission. The Commission issued a preliminary report on May 24, 1961, which stated, inter alia, that both the Flight Engineers and the Air Line Pilots Association agreed that a jet crew of three men was adequate and that:

 'The most obvious solution to this problem is merger or some form of consolidation (of the two unions). In the considered opinion of the Commission, neither peace nor safety on the airlines will be fully assured as long as there are two unions in the cockpit.' *fn6"

 Failing to resolve the crew complement issue in a manner acceptable to all parties, the Feinsinger Commission made final recommendations to the President on October 17, 1961, for a solution to the issues before it. *fn7" From that time on, negotiations between Eastern and the Flight Engineers were concerned not only with the issues originally raised by the 'section 6' notices but also with the crew complement issue. Negotiations on the latter were carried on both under the auspices of the National Mediation Board at that agency's request, *fn8" and also with the assistance of Professor Feinsinger and Undersecretary of Labor Willard Wirtz. These negotiations continued intermittently until February 21, 1962. On that date, the Flight Engineers served a written strike notice on Eastern. The next day, President Kennedy, pursuant to Section 10 of the Act, 45 U.S.C.A. § 160, appointed Emergency Board No. 144 (the 'Emergency Board') to 'investigate certain unadjusted disputes' between Eastern and the Flight Engineers. On March 26, 1962, the Emergency Board convened hearings on the matter and filed its report on May 1, 1962. *fn9" Despite the Flight Engineers' opposition, the Emergency Board concluded that the issue of whether the recommendations of the Feinsinger Commission should be implemented had been submitted to it, and that those recommendations should be implemented by the Emergency Board since they were thought to be a 'critical part of this dispute (between the parties).' *fn10"

 Further negotiations between Eastern and the Flight Engineers failed to resolve the issues before them, and in late May the Flight Engineers served a strike notice effective at any time on or after June 1, 1962. On this date, thirty days after the Emergency Board report was issued to the President, the union was first legally free to strike under the Act, 45 U.S.C.A. § 160. In June, the parties met fruitlessly, and the Flight Engineers told Eastern that any new agreement had to provide that all men hired by Eastern in the future as flight engineers must have the A&P license, a position contrary to the Feinsinger and Emergency Board recommendations. Both parties, and the other airlines affected by the crew complement issue, were exhorted by Secretary Goldberg and President Kennedy in June to arbitrate all unresolved issues. On June 14, 1962, Eastern agreed to arbitrate but the Flight Engineers refused. On the same day, President Kennedy, at his press conference, strongly urged the Flight Engineers 'to either submit this case to arbitration or agree with the carriers on some other means of settling this dispute without any interruption of operations.'

 Thereafter, the president of the Flight Engineers issued a press release which apparently 'offered' to submit to arbitration unresolved economic issues outstanding between Eastern and the union, although it expressly excluded submission of the crew complement issues. Further negotiations between the parties broke down shortly thereafter, and on June 23, 1962, the Flight Engineers struck Eastern. The day before, the National Mediation Board made a proffer of mediation to the union, which was rejected.

 On June 23, 1962, the day the strike commenced, President Kennedy stated, among other things, that a sensible solution was open to both parties, and he cautioned the Flight Engineers that 'to persist in the strike course would be the height of irresponsibility on their part.' On the same day, George Meany, president of AFL-CIO, made an effort to avoid the strike and urged the union to resume negotiations. On June 25, 1962, at the request of the government, Eastern and the Flight Engineers met in Washington. A few days before, a strike between Trans World Airlines ('TWA') and the TWA chapter of the Flight Engineers had been settled. At the meetings in Washington, Eastern agreed to settle all unresolved issues, including the crew complement dispute, on the basis of the TWA settlement. The Flight Engineers rejected the offer and stated, in effect, that they would never give up the requirement of an A&P license.

 On July 17, 1962, Eastern sent a letter to the president of the Eastern chapter of the Flight Engineers setting forth the severe economic losses it was suffering as a result of the strike. After stating that changed circumstances brought about by the strike necessitated modifications in offers previously made by Eastern to the union, Eastern withdrew its previous offers, and made modified proposals on the basis of which it would sign an agreement if the Flight Engineers accepted them in writing on or before July 18, 1962. The letter also stated that if acceptance were not received by 6 P.M. on July 18, Eastern would offer the same terms and conditions to all of the flight engineers; those who did not return to work on or before July 24, 1962 and agree to receive pilot-engineer training as recommended by the Feinsinger Commission would be permanently replaced as rapidly as possible. On July 19, 1962, Eastern called 80 jet copilots into immediate training to complete their qualifications for a Flight Engineer's Certificate. It also advised all Eastern flight engineers that anyone reporting to work on or before July 24, 1962 would not lose his job to any copilot receiving such training.

 From July 17 to July 19, Eastern and the Flight Engineers met with Undersecretary Wirtz and Professor Feinsinger to consider the crew complement and other unresolved issues. On July 23, 1962, at the request of Secretary Goldberg, further talks were held. At their conclusion, Secretary Goldberg proposed a method for settling the dispute. According to the record before me, the Secretary recommended that the parties agree to arbitrate all unresolved economic issues. He did not recommend that the crew complement issue be submitted to arbitration, but proposed that 'upon receipt of the arbitration award of the unresolved economic issues' the parties 'will complete agreement regarding the crew complement issue within the framework of the heretofore agreed-upon basic principles and subject to the concurrence of the Eastern Airlines Pilots.' The Secretary stated that he and other governmental officials and agencies would assist the parties in reaching agreement on the crew complement issue, and that 'any crew complement issue not resolved is to be finally settled by such procedures as they shall prescribe.' Finally, the Secretary recommended immediate cancellation of the Flight Engineers' strike and resumption of operations by Eastern. The same day, Eastern informed the Secretary that it could not accept the proposal, principally on the ground that the solution to the crew complement issue was 'still one that will not immediately include or definitely bind the pilots.' It further stated that after strikes by the Flight Engineers over this very issue, 'we cannot accept the solution that amounts to a 'truce' * * * with no assurance of pilot acquiescence.'

 The next day, the union accepted Secretary Goldberg's recommendation to submit the unresolved economic issues to arbitration. With regard to the crucial crew complement issue, the Flight Engineers proposed that the parties immediately 'write an agreement * * * regarding the crew complement issues within the framework of the already agreed-upon basic issues.' The ...


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