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December 20, 1965

Charles H. Ruby, as President of the Air Line Pilots Association, International, et al., Plaintiffs,
Pan American World Airways, Inc., et al., Defendants

Palmieri, D.J.

The opinion of the court was delivered by: PALMIERI


This is a motion for a preliminary injunction in which the plaintiffs *fn1" seek to restrain the defendants from requiring certain third crew members in Pan American World Airways, Inc. (Pan American) cockpits to pay dues to the Flight Engineers' International Association, PAA Chapter (FEIA) or be discharged.

 Preliminary Statement

 This dispute, like so many others which have affected the airlines industry in recent years, revolves about the widely publicized crew complement problem. See e.g., Ruby v. American Airlines, Inc., 329 F.2d 11 (2d Cir. 1964); Flight Engineers' Int'l Ass'n v. Eastern Air Lines, Inc., 311 F.2d 745, 746 (2d Cir. 1963); Pan American World Airways, Inc. v. Flight Engineers' Int'l Ass'n, 306 F.2d 840 (2d Cir. 1962).

 The controversy here has its origin in the fact that FEIA and ALPA have separate crew complement agreements with Pan American which deal, in part, with the third crew member position.

 FEIA also has an agency shop agreement with Pan American which has been in effect for many years. The question which has given rise to this litigation is whether certain pilots who are assigned to the third crew member position are subject to FEIA's agency shop agreement. The answer to this question hinges upon the interpretation of the various crew complement agreements.

 The FEIA crew complement agreement, which was entered into on May 13, 1963, provides in Section XV, which is the Section involved here:

A Pilot who is a member of the Air Line Pilots Association International and is assigned a third crew member position . . . shall not be considered covered by the Pan American-FEIA Chapter Agency Shop Agreement. . . .

 ALPA, on the other hand, has entered into four separate written agreements with Pan American, all of which have provisions relating to the third crew member position. The first was adopted in September, 1962; the second in April, 1963; the third in December, 1963; the fourth in April, 1965. The difficulties of the parties are compounded by the fact that there is a dispute as to which language is the effective language. The pertinent provisions of the ALPA-Pan American instruments and the contentions of the parties with respect thereto are discussed hereafter.

 About one year ago, FEIA raised a question as to the meaning of Section XV (quoted above) of its agreement with Pan American. Under an arbitration clause, the interpretation of Section XV was submitted to Professor Nathan P. Feinsinger. *fn2" In an award dated July 7, 1965, Professor Feinsinger ruled that under FEIA's contract with Pan American all newly employed personnel assigned subsequent to May 13, 1965, to Flight Engineer status (new hires) are subject to FEIA's agency shop. *fn3" The precise wording of the arbitration award was:

(1) Any occupant of a Flight Engineer position, including the so-called "Third Crew Member" position, in the employ of the Company since the date of the execution of the said Crew Complement Agreement and who at the time of his assignment to such position was not a full-fledged, dues paying member of ALPA, shall be considered covered by the PAA Chapter's Agency Shop Memorandum of Understanding with the Company dated May 13, 1963, and commencing with the date of this Award, shall be required to pay or tender to the PAA Chapter such dues and assessments as are uniformly required of members of the PAA Chapter under said Agency Shop Agreement, and in accordance with its terms; . . .

 This arbitration award in FEIA's favor was not what Pan American had sought or, apparently, anticipated. Nor was the award to the liking of ALPA which maintains that under its agreement with Pan American all pilots serving as third crew members and including the new hires are exempted from FEIA's agency shop.

 Under FEIA's contract with Pan American, any employee who is covered by the agency shop memorandum, but who does not pay his dues, is subject to discharge. The procedure followed is that FEIA sends to each delinquent individual a 15-day notice which says, in substance: "You are delinquent in the payment of your dues and if you do not pay them within the ensuing 15 days, you are subject to discharge." If within the ensuing 15 days the dues have not been paid by the delinquent individual, the contract further provides that FEIA then will notify Pan American that the individual has not paid his dues and Pan American is thereupon obliged to send to the individual a notice "that you will be discharged unless you file a grievance".

 After FEIA received the favorable arbitration award, ALPA instituted this action seeking, in substance, an order enjoining FEIA and Pan American from acting under the arbitration award to discharge men who ALPA felt were exempted from FEIA's agency shop by virtue of ALPA's own contract with Pan American. The complaint also seeks a judgment declaring the rights of the parties.

 The parties arrived in court in a state of emergency because FEIA had, in fact, sent out the above-described 15-day notices to the men in question. At oral argument of the motion, however, a stipulation was agreed upon by the parties which served to remove any urgency from the proceedings. That stipulation provides as follows:

. . . Pending the disposition by this Court of the motion for preliminary injunction before it now, and during the period of 15 days following said disposition, FEIA will not request discharge of any flight engineers and will accept, if tendered, the delayed tender of dues.
FEIA agrees that it will send notice of this stipulation to each flight engineer confirming the understanding reached in court and that eventually it will advise them, with all convenient speed, of the disposition of this Court. Pan American is advised of these undertakings, has no objection to and acquiesces in them.

 The parties then submitted affidavits and memoranda and proposed findings of fact and conclusions of law. What follows is designed to demonstrate that this Court has no jurisdiction to grant the relief sought.

 ALPA has argued that it is entitled to injunctive relief because an implementation of the Feinsinger award would constitute a unilateral change in the working conditions of those men covered by its contract in violation of Section 2, Seventh and Section 6 of the Railway Labor Act. 45 U.S.C. §§ 152, Seventh, 156. It also contends that a discharge of any pilot serving as a third crew member would constitute unlawful influence, interference, and coercion with respect to the right of such pilots to a voluntary choice in union affiliation in violation of Section 2, First, Third, Fourth, Seventh, and Eleventh of the Railway Labor Act. 45 U.S.C. § 152, First, Third, Fourth, Seventh, and Eleventh.

 To reach its conclusion, ALPA argues that an agreement reached with Pan American in 1965 in effect reinstated language adopted in 1962 by the parties. In this way ALPA avoids the two 1963 agreements with Pan American which would otherwise cause it difficulty. Thus, the language ALPA seeks to rely on, and which is identical in the 1962 and 1965 agreements, is as follows:

2(b) All third crew member positions on three-man jet crews which are not filled in accordance with 2(a) above shall be filled by pilots now or hereafter employed by the Company and on the pilots' system seniority list and shall be qualified in accordance with Section 1(c) 1(d).
3 Third Crew Members on Propeller Aircraft. All third crew member positions on propeller aircraft which are not filled by flight engineers in the active employ of the Company on May 21, 1962 shall be filled by pilots now or hereafter ...

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