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November 9, 1967

Pan American World Airways, Inc., Plaintiff
International Brotherhood Of Teamsters et al., Defendants

Bryan, D.J.

The opinion of the court was delivered by: BRYAN


This suit arises out of a lengthy and bitter dispute between defendant Brotherhood of Railway Airline and Steamship Clerks *fn1" (Clerks Union) and defendant International Brotherhood of Teamsters (Teamsters Union) over union representation of some 8,000 clerical and related employees of Pan American World Airways, Inc. (Pan Am), a major international air carrier. Representation proceedings under Section 2, Ninth, of the Railway Labor Act, 45 U.S.C. § 152, Ninth, arising out of this dispute have for a long time been and are still pending unresolved before the National Mediation Board (NMB).

 The Clerks Union entered into the current collective bargaining agreement with Pan Am on behalf of these employees and that agreement is now ripe for renegotiation. Despite the pending representation proceedings before the NMB the Clerks Union demanded that Pan Am enter into negotiations with it for a new agreement. Pan Am took the firm position that the Railway Labor Act prohibited such negotiations while the representation proceedings before the NMB were pending. The Clerks Union nevertheless called a strike to compel Pan Am to conduct such negotiations immediately.

 In this action Pan Am seeks a judgment pursuant to 28 U.S.C. § 2201 declaring that the Railway Labor Act prohibits it from negotiating a new collective bargaining agreement while the representation proceedings are pending, and also seeks injunctive relief against the strike called by the Clerks Union.

 The Clerks Union challenges the jurisdiction of the court to adjudicate the questions presented or to grant the injunctive relief sought. It asserts that in any event Pan Am is violating the Railway Labor Act by refusing to negotiate with it and is not entitled to injunctive relief.

 The Teamsters Union joins in seeking the same relief as Pan Am.

 On the argument before me of a motion by Pan Am for an injunction pendente lite against the strike by the Clerks Union, it appeared that the facts for all practical purposes were undisputed and that everything necessary to a final determination of the action on the merits was before the court. At my suggestion the parties stipulated that the court should determine the merits of the action and render final judgment on the record before it.


 The rather complicated facts giving rise to the action are as follows:

 In May 1946 the NMB certified the Clerks Union as the collective bargaining agent representing the clerical and related employees of Pan Am. Since then successive collective bargaining agreements between the Clerks Union and Pan Am were negotiated and went into effect. The last of these agreements became effective on January 1, 1965 to "continue in full force and effect through March 16, 1967 and thereafter, unless written notice of intended change is served at least thirty days in advance of March 16, 1967, or any date thereafter in accordance with Section 6, Title 1 of the Railway Labor Act as amended. *fn2"

 On August 6, 1965, the Teamsters Union filed a representation petition with the NMB pursuant to Section 2, Ninth, of the Act, claiming the right to represent the clerical and related employees of Pan Am. The Board docketed the case as No. 3781, found that the Teamsters had made a showing of approved authorizations from a majority of the class or craft sought to be represented, as required by Section 1206.2 of the Board's regulations, 29 C.F.R. § 1206.2, and ordered an election. The election was conducted between August 8 and September 7, 1966. The Clerks Union refused to have its name appear on the ballot, taking the position that if the Teamsters failed to obtain more than 50% of the eligible votes the Clerks Union would remain as the certified bargaining representative. Thus only the Teamsters Union appeared on the ballot.

 The first election was challenged by the Clerks Union. On October 4, 1966, the Board set aside the election on the ground that "fraudulent representations" and "elements of campaign trickery" had created a serious doubt whether the balloting had been conducted in an atmosphere permitting the voters to exercise a free and untrammeled choice. The ballots were impounded and a new election was ordered with ballots to be mailed to all eligible voters on November 14, 1966 for return by December 12, 1966.

 Thereupon the Clerks Union commenced an action in the District Court for the District of Columbia to enjoin the election. A dismissal for want of jurisdiction was affirmed by the Court of Appeals. Brotherhood of Railway and Steamship Clerks v. National Mediation Board, 126 U.S. App. D.C. 55, 374 F.2d 269 (D.C. Cir. 1966).

 Thereafter the ballots were counted. Of 6936 employees eligible to vote 3091 cast ballots for the Teamsters and 426 voted for other organizations, with 39 void ballots. In this election also only the Teamsters appeared on the ballot. The Clerks Union challenged the second election on a variety of grounds. The District Court and the Court of Appeals in the action brought by the Clerks to enjoin the second election had expressed concern that the second election was scheduled too soon after the first and that the effect of communications alleged to have been fraudulent on the voting employees had not been fully dissipated by the Board's election communication. The Board, in light of the courts' views reviewed the election at length. It was not until September 12, 1967, some nine months after the second election had been held, that the Board handed down a decision in which it set aside the second election, primarily on the ground that it had erroneously failed to require the incumbent Clerks Union either to have its name on the ballot or to inform the Board that it had abandoned its right to represent the employees concerned. *fn3" It ordered a new election at which the Clerks Union as well as the Teamsters Union was to appear on the ballot unless the Clerks Union elected to abandon its right of representation and appointed a mediator to conduct the election. The date of the election has not yet been fixed.

 In the meantime, while the challenge to the second election was pending and undetermined before the NMB, on February 14, 1967, the Clerks Union served a Section 6 demand upon Pan Am calling for renegotiation of the subsisting collective bargaining agreement. Pan Am advised the Clerks Union that it considered it unlawful under the Railway Labor Act for it to bargain with respect to a new contract until the representation proceedings before the NMB were finally resolved and it was determined which Union was to represent its employees. Pan Am requested the NMB to expedite its decision on the representation question.

 By August 1967 both Unions understandably were becoming impatient with the very long delay of the Board in determining representation. On August 24, 1967 there was a work stoppage by clerical employees of Pan Am at Kennedy Airport, apparently in protest against the delay. The Clerks Union urged the employees to return to work stating "Unauthorized work stoppages are in violation of our constitution, contract and federal law." *fn4"

 Pan Am thereupon commenced this action against both Unions, seeking a declaration that the work stoppage was illegal under the Railway Labor Act and an injunction against the Teamsters Union only. It immediately moved for a preliminary injunction enjoining the Teamsters from causing a strike or work stoppage to protest the failure of the NMB to resolve the representation question. On August 25, 1967 Judge Wyatt issued a temporary restraining order to this effect and the work stoppage ended. This action then remained in abeyance until the NMB handed down its decision on September 12, 1967, setting aside the second election and ordering a third.

 Upon learning of this decision the Clerks Union renewed its demand that Pan Am immediately commence negotiations with it regarding the new contract. Pan Am reiterated its previous position that negotiations during the pendency of the representation proceedings would violate the Railway Labor Act.

 Dennis, the International President of the Clerks Union, then wrote to the NMB seeking a clarification of the bargaining obligations of Pan Am and the Clerks *fn5" pending the outcome of the newly ordered election and also inquiring as to the status of any agreements that might be made with it as a result of such negotiations. The reply of the Board on September 14th was, to say the least, highly ambiguous and left the questions posed to the Board completely up in the air. *fn6"

 When Pan Am adhered to its position with respect to the illegality of negotiation, the Clerks Union on September 18, 1967, called a strike for September 20th.

 On the night of September 18, 1967, the NMB, by telegram, proffered its mediation services under Section 5, First, of the Railway Labor Act on the dispute which caused the strike. It docketed the dispute as Case E-329, stating "Parties are requested to respect provisions of the RLA and organization is requested to defer strike action pending handling of the dispute in accordance with provisions of the Act." When the Clerks Union failed to call off the strike on September 19, 1967 Pan Am served a supplemental complaint in this action seeking both a judgment declaring that negotiations with the Clerks Union were unlawful under the Railway Labor Act while representation proceedings were pending and injunctive relief against the strike called by the Clerks Union. Simultaneously it brought on a motion for a preliminary injunction restraining the Clerks Union from causing or carrying on a strike and an application for a temporary restraining order to that effect. These applications came on before me on September 19, 1967. Leave to file a supplemental complaint was granted, a temporary restraining order was issued and, as previously indicated, the court took the action under advisement for decision on the merits. At the request of the parties October 20, 1967 was fixed as the date for the submission of all papers and the temporary restraining order was successively extended by stipulation, approved by the court, to November 9, 1967. On September 28, 1967 the temporary restraining order of August 24 against the Teamsters Union was dissolved by stipulation, the motion for a preliminary injunction against the Teamsters was withdrawn, and the Teamsters joined in seeking the same declaratory and injunctive relief requested by Pan Am.

 There have been further developments since these applications were argued on September 19. On September 20, 1967, the day after the temporary restraining order was issued the parties met with the NMB in Washington. *fn7" At the conclusion of the meeting the NMB Chairman issued the following statement:

The Board has met with the parties and is happy to announce that normal operations have resumed pursuant to its request. The Board will be in further contact with the parties, but it is not unmindful of the litigation pending in New York. *fn8"

 The mediator appointed by the NMB to conduct the third representation election was scheduled to come to New York on October 10, 1967, to commence making arrangements for that election. However, on September 28, 1967 the Clerks Union filed a petition with the NMB for reconsideration of its decision of September 12th setting aside the second election and directing a third, asserting, among other things, that the Teamsters Union was not supported by authorization cards from a majority of the employees involved and that the Board's ruling that the name of the incumbent Clerks Union must appear on the ballot, or it must elect to withdraw as representative of the employee group was erroneous.

 The petition for reconsideration was argued before the Board on October 12, 1967 and in the meantime the mediator's trip to New York was postponed. On October 24, 1967 the Board made its findings and order on the petition for reconsideration, ruling that sufficient authorization cards had been filed by the Teamsters to require the election and refusing to change its determination that the Clerks Union must elect to appear on the ballot or withdraw.

 Pan Am has continued to press the Board for a prompt final determination of the representation question and has consistently stated its willingness to negotiate with any representative of ...

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