The opinion of the court was delivered by: NEAHER
Plaintiff District 100,
a district lodge of the International Association of Machinists and Aerospace Workers ("IAM"), brought this action under 45 U.S.C. §§ 151-188, seeking an order compelling defendant Air France, a foreign air carrier, to process a grievance before the System Board of Adjustment ("System Board"). The case is now before the court on defendant's motion to dismiss, Rule 12(b)(6), F.R. Civ. P., or for summary judgment under Rule 56, F.R. Civ. P. For the reasons which follow, defendant's motion is granted.
These facts appear to be undisputed: Prior to May 30, 1974, there were two relevant working agreements between Air France and IAM, one covering ramp service employees, commissary employees, kitchen men, hors d'oeuvre men and cooks and the other covering maintenance supervisors, radio electronic supervisors, provisioning supervisors, load and ramp supervisors and commissary supervisors ("the Supervisors Agreement").
On May 30, 1974, the IAM, by George Kleiman, and Air France signed a Mediation Agreement ending a four and one-half month strike. The pertinent portion of the Mediation Agreement permitted Air France to engage independent contractors to perform commissary work previously done and supervised by Air France employees, who were IAM members,
and for the severance of the latter from the company's employ as indicated below.
On May 24, 1974, the day the IAM ratified the terms of the Mediation Agreement, Air France laid off all commissary employees and supervisors. On May 28, 1974, Air France offered the laid-off commissary employees, whose positions were to be eliminated, a choice of one of four severance options. The first three options presented alternative forms of severance pay and pension rights, while the fourth option permitted the employee to request that Air France attempt, until June 30, 1974, to find a different company position for him, failing which he was requested to choose among the first three options. These options provided greater benefits than are normally available to an employee who is laid off. Article XIII(p). All commissary supervisors except three, Pasquale Ianniciello, John Dwyer and Joe Dwyer, accepted one of the four options.
After the Mediation Agreement became effective, the two working agreements were changed by deleting all references to commissary employees and supervisors both in the titles of the agreements and in the provisions relating to job classification. Article IV. The working agreements, as modified, continue in effect until September 30, 1976.
On July 17 and August 22, 1974, Kleiman, representing the IAM, wrote to Air France complaining that the latter was not honoring its obligation to contract-out the commissary work formerly done by IAM members and was, instead, employing its own management personnel to do the work. Air France responded on August 22, 1974, denying the charged contractual infraction.
By letter dated September 9, 1974, the IAM requested the National Mediation Board to interpret the language of the Mediation Agreement concerning the commissary supervisors. See note 2, supra. After holding a hearing in December 1974, the National Mediation Board rendered its decision on April 11, 1975, interpreting the language to mean as follows:
"We find that the Organization and the Carrier agreed that all duties previously performed by Commissary Supervisors and Senior Commissary Supervisors would be performed by personnel not in the employ of Air France and further that Air France personnel would not in any way directly supervise the employees of the company hired to perform the Commissary work."
On May 2, 1975, Ianniciello, one of the three former commissary supervisors who did not select one of the four severance options, purporting to represent all former Air France commissary supervisors, filed a grievance
complaining of Air France's claimed violation of the Mediation Agreement, as interpreted by the National Mediation Board. On May 19, 1975, Air France, acting by Eugene S. Carrara, Personnel Services Manager, refused to accept the grievance and returned it.
In a letter accompanying the returned grievance, Carrara explained, in essence, that former commissary supervisors were no longer Air France employees and consequently could not grieve.
On May 28, 1975, Adam Dombroski, General Chairman of District 100, wrote to Carrara with reference to the latter's May 19th letter as follows:
"Our position is to follow the procedure contained in the agreement for the orderly resolution of this dispute and proceed to the System Board of Adjustment or directly to Arbitration.
"Therefore, by copy of this letter, you are respectfully requested to contact and arrange with the undersigned a procedure to resolve this matter."
On May 30, 1975, Dombroski and Carrara appeared before the System Board, apparently in the regular course of business, and Dombroski raised the question of the Ianniciello grievance. Carrara refused to discuss the matter, reiterating his position that the grievance procedures, ...