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August 12, 1963

Charles H. RUBY, as President of the Air Line Pilots Association, International, and Air Line Pilots Association, International, an unincorporated association, Plaintiffs,
AMERICAN AIRLINES, INC., Defendant, and Nicholas J. O'Connell, Jr.,individually and as Chairman of the Master Executive Council of the pilots in the service of American Airlines, Inc., and the Negotiating Committee of said pilots, consisting of Richard Lyons et al., Additional Defendants, and Joseph V. Manning, as President of the American Airlines Chapter, Flight Engineers' International Association, AFL-CIO, and American Airlines Chapter, Flight Engineers' International Association, AFL-CIO, an unincorporated association, Intervenors

The opinion of the court was delivered by: WYATT

This action and the controversies involved form chapters in the troubled history of labor relations in the airline industry. Specifically there are charges here of violations of the Railway Labor Act (45 U.S.C.A. § 151 and following; the 'Act') which was made applicable to the air lines by amendments effective April 10, 1936 (45 U.S.C.A. § 181).

The action is for an injunction, declaratory judgment and damages and was commenced by President Ruby of Air Line Pilots Association ('Alpa') and by Alpa against American Airlines, Inc. ('American' or 'the Company'). Intervention under Fed.R.Civ.P. 24(b) was permitted to President Manning of American Airlines Chapter, Flight Engineers' International Association (the 'Chapter'), and to the Chapter; it was represented that there were questions of law and fact in common. The intervenors filed a complaint also for an injunction, a declaratory judgment and damages.

Thereafter intervenors applied under Fed.R.Civ.P. 21 to add as additional defendants Nicholas J. O'Connell, Jr., Chairman of the Alpa Master Executive Council of American pilots (the 'American MEC'), and also the members of the Negotiating Committee appointed by the American MEC (the 'additional defendants'). After this application had been granted, the intervenors and also plaintiffs served amended complaints, which added averments respecting the additional defendants; the motions are considered on the basis of these amended complaints.

 The motions now to be considered (a motion by plaintiffs for summary judgment and a motion by defendant to strike an affidavit, etc. will be dealt with separately) are five in number:

 1. by plaintiffs for a preliminary injunction restraining American

 a. from negotiating with the additional defendants as a committee of pilots; b. from refusing to negotiate with Alpa; c. from influencing, etc. its pilots in their choice of bargaining representatives; d. from 'subverting' the rights of Alpa as bargaining representative of American pilots; e. from making any agreement as to pilots except with Alpa; and f. from changing working conditions in violation of the Act;

 2. by American for a reference to a master under Fed.R.Civ.P. 53 to determine whether 'a majority of defendants' flight deck employees desire the Joint Negotiating Committee to continue to act as their bargaining representative';

 3. by intervenors for a preliminary injunction restraining American

 a. from negotiating as to flight engineers except with the Chapter; b. from making any agreement as to flight engineers except with the Chapter; and c. from refusing to bargain collectively with the Chapter;

 4. by intervenors for an order restraining all parties, including the additional defendants,

 a. from disseminating a proposed agreement concerning flight engineers; b. from holding any meetings for considering and voting on such proposed agreement; and c. from influencing etc. the flight engineers in their choice of bargaining representative; and

 5. by plaintiffs for an order restraining the additional defendants

 a. from negotiating with American as to pilots; b. from acting with respect to agreements negotiated by them with American; c. from influencing etc. the pilots in their choice of bargaining representative; d. from 'subverting' the rights of Alpa under the Act; e. from making any agreement as to American pilots except through Alpa; and f. from participating in any change in working conditions in violation of the Act.

 1. Relationship between Alpa and American; Internal Structure of Alpa

 Alpa is a national labor organization organized in 1931 and with Home Office in Chicago. For many years, going back at least to 1939, there have been written agreements between American and its pilots, represented by Alpa. These agreements have been signed by the President of Alpa 'for the air line pilots in the service of' American. The last agreement is dated, and became effective, January 21, 1959. It provides that it shall be renewed each year without change unless notice of an intended change is given by one party to the other under Section 6 of the Act (45 U.S.C.A. § 156).

 Alpa has been recognized by American for many years as the representative of its pilots. There has not been until recently any 'dispute' concerning representation which would bring about a certification by the National Mediation Board ('NMB'; 45 U.S.C.A. § 152, Ninth); the January 21, 1959 agreement recites that Alpa has given 'satisfactory proof' of its representation but this recital is a carry-over from earlier years; no proof was in fact given or required and there is no evidence that Alpa was ever chosen as bargaining representative for the American pilots by any ballot or other formal procedure.

 The representation by Alpa with which we are here concerned is of American pilots only, and not of pilots on other air lines. This has been the past pattern, the agreements have been executed on such basis, and it appears to be required or contemplated by the Act (e.g., 45 U.S.C.A. § 151, Fifth and 152, Fourth and Ninth); Alpa policy is firm for negotiations 'individually with each carrier' and against 'industry bargaining'.

 In this connection, the internal structure of Alpa should be noticed.

 For each air line, the fundamental unit is the Local Council, one of which is established at each important base of the air line. The Alpa members in each Local Council elect a Captain Representative and a Co-pilot Representative.

 The Captain Representatives and the Co-pilot Representatives from all the Local Councils of an air line make up the Master Executive Council ('MEC') of that air line.

 The MEC elects a Chairman (called 'Master Chairman') and a Vice-chairman.

 For each air line there is also a Negotiating Committee, which under Alpa policy is selected or elected by its MEC; the Master Chairman is ex-officio a member of the Negotiating Committee.

 Such was the Alpa organization at American. During the relevant period the additional defendant O'Connell was Master Chairman; the Negotiating Committee was composed of Lyons (Chairman), Cuba, Garvey, Atkins, Miller (until his resignation February 18, 1963) and Master Chairman O'Connell (exofficio.)

 The highest governing body of Alpa is its Board of Directors, made up of the Captain and Co-pilot Representatives of all the Local Councils of all the air lines whose employees are represented by Alpa.

 The Executive Committee of Alpa consists of the officers, these being the President, First Vice-President, five Regional Vice-Presidents, a Secretary and a Treasurer.

 There is also an Executive Board of Alpa consisting of the Chairman and Vice-Chairman of the Master Executive Council of each air line.

 2. The Crew Complement Issue Between Alpa and Feia (or its local chapters)

 To act as pilot of any plane, large or small, requires possession of the appropriate certificate under applicable government regulations. There are various types of certificates, some of which are: student, private, commercial pilot, and airline transport pilot. A commercial pilot's certificate (and 'instrument rating') is required to act as a pilot on a commercial passenger plane; the pilot in command must hold appropriate airline transport pilot certificates and ratings. 14 CFR § 40.300.

 The addition of a flight engineer to plane crews came about with the development of larger passenger planes during and after World War II. In 1948 new government regulations required that the crew of large planes include the holder of a flight engineer's certificate.

 Some carriers, including American, then employed flight engineers with a mechanical background and a flight engineer's certificate but without pilot qualifications. These flight engineers have been historically represented for collective bargaining purposes by Flight Engineers' International Association ('Feia'); the Chapter is the local unit for American, has been certified since 1955 by the National Mediation Board ('NMB') as authorized to represent American flight engineers (45 U.S.C.A. § 152, Ninth), and has had contract with American concerning working conditions until the last contract expired according to its terms on April 30, 1963.

 Other carriers employed as flight engineers qualified pilots who also held flight engineer's certificates. On such carriers, Alpa represented all crew personnel and there was thus one union in the cockpit.

 On carriers such as American there were, as indicated above, two unions in the cockpit.

 Applicable regulations require a crew of three for larger planes, including jets, and one crew member must have a flight engineer's certificate. All three may be qualified pilots, provided one has a flight engineer's certificate, or it is sufficient that two only are qualified pilots and that the third holds a flight engineer's certificate without pilot qualifications.

 Alpa has vigorously fought for what it calls a 'fail safe' policy under which all three members of the jet crew must be qualified as pilots (meaning possession of at least a 'Commercial Pilot's Certificate and Instrument Rating', usually referred to in short as 'C and I'), even though one acts as flight engineer. Feia and its chapters fight against a requirement of any pilot qualification for the flight engineer. This issue is usually called the 'crew complement' issue. While supported on each side by safety arguments, the difference in attitude between Alpa and Feia must be to some extent influenced by the struggle over jobs and union membership.

 In order to keep labor peace, American and certain other carriers have been flying large planes with a crew of four (three qualified pilots and a flight engineer).

 American and the other carriers so situated naturally and properly desire (and feel compelled by the laws of economics) to reduce the cockpit crews to three members as permitted by the regulations and as presently believed on all sides to be entirely adequate for safety.

 It is this crew reduction and the handling of the third seat for the flight engineer which is the root cause of the present litigation. In particular, the immediate cause of controversy is that Alpa, a national organization, insists on a national policy that all three members of the reduced crew must have at least a 'C and I'; the Negotiating Committee for American pilots (despite this national policy of Alpa was willing to agree with American that the flight engineer member need not have a 'C and I' (while conforming with all governmental safety regulations) provided the American pilots secured benefits from American in return, such as reduced hours, etc.

 3. Reports of the Feinsinger Commission

 On February 17, 1961, the flight engineers walked out on American and the other major air carriers similarly situated. This forced a virtual stoppage of air transportation.

 The walkout resulted from a controversy before the NMB between Alpa and Feia.

 Alpa had requested certification by NMB as representative of all cockpit crew members (engineers included) of United Air Lines. Feia contended to NMB that flight engineers were a separate 'craft or class' (45 U.S.C.A. § 152, Ninth) and should vote separately from pilots for representative.

 NMB appointed 'a committee of three neutral persons' (45 U.S.C.A. § 152, Ninth), the Chairman being J. Glenn Donaldson, to decide this dispute.

 The Donaldson Committee on January 17, 1961 made a decision that all crew members in the Cockpit -- whether pilots or flight engineers -- are 'one craft or class' and should vote together 'on one ballot' for a bargaining representative.

 This was, of course, a victory for Alpa and the walkout of flight engineers took place as a protest one month later.

 On February 21, 1961 the President appointed a Commission, with Professor Nathan Feinsinger as Chairman, to investigate and report; the engineers returned to work.

 The Feinsinger Commission made a preliminary report on May 24, 1961. The principal recommendations were:

 a. that there be one union in the cockpit and that Alpa and Feia should merge;

 b. that jet planes operate with a three man crew;

 c. that flight engineers on jet planes (subject to job protection in a transition period) be qualified as pilots (that is, have a 'C and I'); and

 d. that job equities of the then pilots and engineers be reasonably protected.

 The President declared that the parties should 'negotiate a final settlement of their differences on the basis of these recommendations.'

 The Feinsinger Commission submitted a supplemental and final report on October 17, 1961 which expanded some of its recommendations, principally (a) as to the detailed pilot qualifications to be expected of flight engineers on jet planes (which included possession of a 'Commercial Pilot's Certificate and Instrument Rating') and (b) as to methods of protecting job equities.

 The recommendations of the Feinsinger Commission did not lead to any quick agreement between the pilots, engineers and any air lines. There were further negotiations as to each air line.

 For example, Pan American and Alpa, after much negotiation, accepted a request made by the President and on April 17, 1962 agreed to arbitrate their differences. The Pan American engineers declined to arbitrate. This particular dispute engaged the attention in July 1962 of the Court of Appeals for this Circuit. Pan American World Airways, Inc. v. Flight Eng. Intern. Assoc., 306 F.2d 840 (2d Cir. 1962).

 It proved impossible to settle in any way the disputes as between Eastern Airlines, its pilots and engineers. A crippling strike was started against Eastern by its flight engineers on June 23, 1962. Some aspects of this were before Judge Feinberg last year in Flight Engineers Intern. Ass'n, EAL Chapter AFL-CIO v. Eastern Air Lines, 208 F.Supp. 182 (S.D.N.Y.1962), affirmed 311 F.2d 745 (2d Cir. 1963).

 The situation as to American will be examined in greater detail.

 4. Pilot Negotiations and Mediation before the TWA Settlement

 Negotiations began between American and its pilots (through Alpa) by the service of 'openers' in March 1961 by American and by Alpa (acting through President Sayen) under Section 6 of the Act (45 U.S.C.A. § 156). The American 'opener' was addressed to the President of Alpa in Chicago.

 Meetings were held from time to time in 1961 between American (whose principal representatives have been Vice-presidents Whitacre and Lamond) and the Negotiating Committee. According to practice, the Alpa Home Office in Chicago participated in such meetings through a paid employee (called a 'staff negotiator') who reported back to the Home Office. Harkenrider was Alpa staff negotiator with the American Negotiating Committee until withdrawn on November 28, 1962 as later described. It was not usual for any Alpa officer to take part in the negotiations, except in such a case as Miller who was an American pilot and member of the Negotiating Committee and was also a Regional Vice-president of Alpa.

 Agreements were not reached in 1961 (possibly waiting on or observing the Feinsinger Commission) and on September 21, 1961 Alpa asked NMB for its mediation services.

 On October 21, 1961, American notified Alpa that it accepted the recommendations of the Feinsinger Commission and added them to its Section 6 openers, specifically mentioning the crew complement recommendations.

 The situation in American was importantly and significantly affected by the desire (known to the Alpa Home Office) on the part of American pilots for a reduction in hours, an improved retirement plan, and other changes. Alpa President Sayen on November 7, 1961 wrote the NMB that the crew complement problems were 'but minor issues on American Airlines' compared to the pilot proposals on retirement and working conditions. While American was willing to accept the Feinsinger Commission recommendations, it evidently did not feel that it could afford to train its flight engineers at its expense to comply with these recommendations and also at the same time grant to its pilots reduction in hours, better retirement treatment, etc.

 A mediator from NMB (Michael or 'mediator O'Connell', to distinguish him from the additional defendant O'Connell) had been designated in due course and was attending the pilot negotiations but by June 29, 1962 the pilot situation on American was at a stalemate. The pilots insisted on a reduction in hours, etc.; American insisted that it was impossible to grant these benefits in the face of the expected expense of training flight engineers to secure pilot qualification, the major expense being the qualification of flight engineers with a 'commercial pilot's certificate and instrument rating'. The mediator felt that an impasse had been reached.

 On July 2, 1962, NMB notified the parties that mediation had been unsuccessful and urged an agreement to arbitrate (45 U.S.C.A § 155, First).

 American accepted the proffer of arbitration but on July 11, 1962 Alpa declined it.

 NMB therefore on July 18, 1962 notified the parties that its services had terminated; this meant that after the thirty day period under the Act, the parties were free from the Act's restrictions (45 U.S.C.A. § 155, First).

 5. Flight Engineer Negotiations and Mediation Before the TWA Settlement

 The last agreement executed between the Chapter and American was effective May 1, 1958 and was to continue until April 30, 1963 except that 'openers' under Section 6 of the Act were permitted to be served as to compensation provisions (Sections 5 and 6 of the May 1, 1958 agreement) to be effective not earlier than May 1, 1961. American by the agreement recognized the Chapter as 'duly designated bargaining representative' of its flight engineers as certified by NMB (the certification had been made on May 25, 1955). Unlike Alpa which has Local Councils at each important base, the Chapter includes all flight engineers at all American bases.

 In February 1961, Section 6 'openers' as to compensation were served both by the Chapter on American and by American on the Chapter.

 The Chapter had a Negotiating Committee on which were President Manning, Apkarian, Petree, and Simpson; unlike Alpa (where the Negotiating Committee was elected by the pilot's MEC), the flight engineers' membership at large elected the Negotiating Committee, the last such election having been held in March or April 1961.

 There were negotiating sessions between the flight engineers and American in August and October 1961 but no agreement was reached, again probably because of the developments associated with the Feinsinger Commission.

 There were other negotiating sessions in January and March 1962; the engineers believed, however, that American would not negotiate to a conclusion on their wages until the crew complement issue had been settled. Accordingly on March 14, 1962 the Chapter asked NMB for mediation.

 Thereafter the NMB assigned Holaren as mediator and meetings took place; that these were unsuccessful was doubtless because of the unresolved crew complement issue and the then pending proceedings in this connection before Presidential Emergency Boards involving other air lines.

 NMB recognized mediation as unsuccessful and urged an agreement to arbitrate (45 U.S.C.A. § 155, First). On June 19, 1962 the Chapter refused arbitration and NMB then on June 21, 1962 terminated its services, leaving the parties -- after the statutory 30 day period -- free from the Act's restrictions (45 U.S.C.A. § 155, First).

 6. TWA Settlement and Resumption of Negotiations on American

 On June 21, 1962, then Secretary of Labor Goldberg was able to announce that TWA and its flight engineers had settled the crew complement issue, subject to ratification by the engineer membership. The settlement was made on the basis of the Feinsinger Commission recommendations, including an eventual merger of the TWA Chapter of Feia into Alpa and possession of a 'C and I' by the flight engineer member of three man crews. Unresolved economic issues were to be arbitrated.

 This TWA settlement came about after a serious situation had been created by a strike notice from its flight engineers to TWA and after an Emergency Board had been appointed by the President (on March 20, 1962) under Section 10 of the Act (45 U.S.C.A. § 160).

 7. Washington July 1962 -- Pilots and Flight Engineers Meet Separately with American

 After the settlement between TWA and its flight engineers had been announced on June 21, 1962, the Labor Department officials wished to encourage a similar and prompt settlement on American. Among other reasons, this was expected to help toward ratification by the TWA flight engineers of the TWA settlement and to help toward settlement on Pan-American and Eastern (whose flight engineers had rejected the TWA settlement and announced a strike for June 23, 1962, which began on Eastern but not on Pan-American); at the same time, a long range labor solution on American itself (a most important domestic carrier) would obviously be in the public interest.

 After being so requested by the Labor Department, the Chapter (through its MEC acting unanimously) on July 6, 1962 approved the terms of the TWA settlement as a formula for settling the crew complement issue on American. The Secretary of Labor promptly announced this in a press release.

 The Labor Department officials then requested the flight engineers and American to meet with them in Washington; they did so in the week of July 9, 1962.

 These officials brought the Company and the flight engineer's committee together for a series of meetings that week in Washington, proposing the TWA formula as the basis for crew complement settlement. The engineers were primarily interested in discussing wages at once, but little progress on this could be made; they were told by the company to forget about crew complement until it could be negotiated with the pilots.

 The Company representatives explained privately to the Labor Department officials that the problem on American was not so much with the engineers as with the pilots, this because the American pilots were far more interested in reduction of hours and other benefits (which would be very expensive for the Company) than in crew complement. In this connection, it was also explained that the American pilots as far back as 1958 had wanted a reduction in hours, etc. rather than the agreement for a four man crew, and that the agreement for a four man crew had been made by American with then President Sayen of Alpa. In fact, the American pilots had suggested to the Company as recently as May of 1962 that they were not interested in having the Company spend its money to qualify flight engineers with a 'C and I' under the Feinsinger Commission formula; they wanted a reduction of hours and other benefits instead.

 The Secretary of Labor, after considering this explanation by the Company, arranged to bring the pilots to Washington; in the week beginning July 16, 1962, representatives of the pilots, of the engineers, and of the Company were in Washington. Meanwhile, President Ruby of Alpa had also come to Washington by request; he (a long time pilot for National Airlines) had just been elected in June as President of Alpa.

 The engineers played little part in the Washington meetings which began July 16; they did not see the Company team at any time; they had one meeting with the pilots; and on July 20 they were excused by the Secretary while the Company and its pilots negotiated.

 At the request of the Labor Department officials and with the participation of Chairman Edwards of NMB, the pilots and the Company worked steadily in Washington from July 16, 1962 until July 25, 1962.

 The effort, under suggestions from Chairman Edwards, was first to try to agree on as many items as possible and leave to one side those items on which it appeared difficult to agree. Thus many provisions were in fact agreed upon, but these are of no significance here.

 Ruby of Alpa was present at many of these meetings and Harkenrider of Alpa was present at all of them (and at all other pilot meetings with the Company until his removal by Alpa on November 28, 1962); the agreed items were in fact initialed by Harkenrider for the American pilots.

 The differences between the Alpa national organization and the Alpa local American organization -- those differences which finally led to the present litigation -- became more evident in Washington in July 1962 to those organizations, as well as to the Company itself.

 For example, Ruby met informally with the Company and two of the chief pilot negotiators at the Hay-Adams Hotel on July 22. O'Connell, one of the chief pilot negotiators and now an additional defendant, there made it clear that his group was primarily interested in reduction of hours and other benefits and if it were necessary to save the Company money on flight engineer training in order to secure such benefits, his group would consider agreeing to a reduction in flight engineer training below that required for a 'C and I' as recommended by the Feinsinger Commission. While thus put on notice, Ruby did not agree and stated a contrary Alpa position. O'Connell had ...

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