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July 14, 1965.

Flight Engineers' International Association, EAL Chapter, AFL-CIO, Plaintiff
Eastern Air Lines, Inc., et al., Defendants.

The opinion of the court was delivered by: BONSAL


This action was commenced on August 21 1962. The original complaint was the subject of the proceedings herein after described. The amended or supplemental complaint here involved was filed on February 13, 1964. In this amended or supplemental complaint, plaintiff, Flight Engineers' International Association, EAL Chapter, AFL-CIO (FEIA), seeks permanent injunctive relief enjoining the defendants Eastern Air Lines, Inc. (Eastern) and Air Line Pilots Association (ALPA) from alleged violations of the Railway Labor Act, 44 Stat. 577, 45 U.S.C. § 151 et seq. (Act) and damages against Eastern and ALPA in the sum of $11,500,000, and for exemplary damages in an equal amount.

Defendant Eastern and ALPA have each moved for summary judgment dismissing the amended or supplemental complaint on the ground that this Court is without jurisdiction to grant the relief sought.

 The dispute here involved is one of a series of similar disputes which have plagued the air transportation industry since the advent of jet aircraft. It revolves around the representation of cockpit personnel, and has been accentuated by rival claims of FEIA and ALPA for representation of the crews in the cockpits of Eastern's aircraft.

 Since 1948 Federal regulations have required Eastern to man all of its 4-engine aircraft weighing in excess of 80,000 lbs. with a crew of three, consisting of a pilot, a co-pilot and a certified flight engineer. Eastern's pilots and co-pilots were at that time, and continue to be, represented by ALPA. Each of them is a commercially qualified pilot with a P & I license (pilot license and instrument rating). At least since 1957 the flight engineers on Eastern's aircraft were represented by FEIA, and each flight engineer held a flight engineer's certificate and an A & E license (airframe and engine license). In 1957 an industry-wide controversy arose on the "crew complement" issue, which continued for several years and, because of the threatened disruption of the nation's commercial aviation system, it became the subject of extensive proceedings involving the President of the United States, the Secretary of Labor and a specially appointed presidential commission (Feinsinger Commission), and proceedings before various administrative agencies of the Federal Government and in the courts.

 In 1958, Eastern was faced with conflicting demands with respect to the third man in the cockpit, ALPA insisting that he have a P & I license, and FEIA insisting that he have an A & E license.

 Following a 38-day strike by FEIA at the end of 1958, FEIA and Eastern entered into an agreement on December 31, 1958. In this agreement, Eastern in effect agreed to a 4-man complement (even though the Federal regulations only called for three), which would include a flight engineer holding an A & E license and without pilot qualifications. At the same time, Eastern had an agreement with ALPA that at least three members of the crew complement would have a P & I license. The agreement between FEIA and Eastern was to continue in force until April 1, 1960, and to be renewed automatically thereafter on a yearly basis unless a thirty-day notice of 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 Act (45 U.S.C. § 156).

 In February 1960 FEIA and Eastern exchange notices of proposed modifications in the December 31, 1958 agreement, and negotiations continued until June 1962. While the original notices did not involve the crew complement issue, this issue became crucial in February 1961 when the National Mediation Board (Mediation Board) ruled that pilots, co-pilots and flight engineers on United Air Lines jet aircraft constituted a single craft or class under the Act and were therefore to select a single bargaining representative.To protest the decision of the Mediation Board, FEIA struck Eastern and other carriers, and President Kennedy, to terminate the strike, established the Feinsinger Commission to recommend solutions for the controversy. The report of the Feinsinger Commission, issued on October 17, 1961, recommended that ALPA and FEIA merge into one union and that, pending the merger, the air lines should provide FEIA members with pilot training in order that they could maintain their jobs while enabling the air lines to switch from 4-man jet cockpit crews to three, having pilot qualifications.

 On October 20, 1961, eastern accepted the recommendations of the Feinsinger report, and during the next five months Eastern and ALPA negotiated on the implementation of the Feinsinger Commission's recommendations, with the assistance of the Secretary of Labor, the Mediation Board and members of the Feinsinger Commission. The negotiations broke down, and on February 21, 1962 FEIA sent Eastern a strike notice. The following day the President established Emergency Board No. 144 (the Kheel Board), which took evidence and made recommendations to the parties that they enter into an agreement implementing the Feinsinger Commission's recommendations.

 Upon receiving the Kheel Board's recommendations, further negotiations were undertaken between the parties until June 9, when FEIA again served Eastern with a strike notice. On the same day, the President proposed that the parties submit their differences, including the crew complement issue, to arbitration, which proposal was accepted by Eastern and rejected by FEIA.

 On June 21, 1962 another airline, TWA, reached a settlement with its flight engineers, under the auspices of the Secretary of Labor, by which the TWA flight engineers agreed to accept pilot training in exchange for guarantees that they would be given preference on all third seats in TWA's jet cockpits. Eastern sought to enter into a similar agreement with FEIA, but the effort was unsuccessful, and on June 23, 1962 FEIA struck Eastern. By reason of the strike, Eastern shut down all operations from June 23, 1962 until July 23, 1962, when it resumed operations on a limited basis. During this period efforts by the Federal Government to terminate the strike were unsuccessful, as were efforts by Eastern to have FEIA accept a settlement modeled on the TWA settlement.

 On July 17, 1962, Eastern notified FEIA that it was withdrawing all prior offers, including offers of retroactive wage increases, but would enter into an arrangement, effective immediately, under which its jet aircraft would be manned by a flight crew of three and would require flight engineers to have pilot training which Eastern would provide, to serve as a member of the cockpit crew. FEIA was given one day, to July 18, 1962, to accept Eastern's proposal, and was informed that if it failed to do so Eastern's offer would be made to the striking flight engineers individually. Those who accepted Eastern's offer and returned to work by July 24 would receive pilot training sufficient to make them eligible for flight engineers' duty on jet aircraft, while those who did not accept pilot training would, if reemployed, be restricted to service on propeller aircraft. Eastern also announced its intention of permanently replacing all flight engineers who did not return to work by July 24, 1962.

 FEIA did not accept Eastern's offer, and on July 18 the offer was made to the striking flight engineers individually. On the same day, Eastern commenced negotiations with ALPA to replace the flight engineers who did not return to work by the July 24 deadline, and these negotiations resulted in three agreements under which Eastern would give ALPA pilots the training necessary to enable them to obtain a flight engineer's certificate. The agreements provided for a flight crew of three - pilot, co-pilot and pilot engineer. The pilot engineer would have a flight engineer's certificate and a P & I certificate. Any pilot accepting flight engineering training would suffer no loss in pilot seniority or pay, and pilots would have their choice in bidding on the three positions on the basis of seniority.

 On July 23, 1962 the Secretary of Labor again called upon Eastern and FEIA to terminate the strike within the framework of the TWA settlement, subject to concurrence by ALPA. Eastern declined because there was no assurance that ALPA would accept the proposal, and on August 6 the Secretary of Labor withdrew from the dispute.

 On August 7-8 Eastern and FEIA made a final unsuccessful effort to negotiate a settlement of the strike, and on August 10, 1962 Eastern made a final proposal to the striking flight engineers who had not previously returned to work, promising them prior job rights on propeller aircraft, but not on jets, and stating that those who did not accept the offer by August 16 would lose all prior job rights on any of Eastern's aircraft.

 On August 10, Eastern began to replace the striking flight engineers with pilots obtained from ALPA, and on August 23 Eastern began to resume full operations, and reached ...

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