The opinion
JOHN R. BROWN, Circuit Judge
(dissenting) .
It is a paradox that the strength of the Court’s opinion is that the result does not make sense. Of course the Court is not quite that harsh in its characterization of the result, but after spending pages demonstrating why Congress must have looked to the varying attitudes of 48 states for the enforcement of industrialarbitral decisions thought necessary to secure continuity to interstate air commerce, the Court puts it no less plainly *221 in this euphemism: “If any industry should have ready access to federal courts because of the interstate character of its business, it is the airline industry.” 295 F.2d 220 .
The strength is derived from the inescapable historical fact that Congress also errs, and that if, as a consequence, the legislative machinery thus established is not adequate, the deficiency cannot be supplied by the Judiciary. But we ought to be very certain that the result is both inescapable and may not be bridged over by legitimate statutory interpretation within the traditional competence of the courts.
Of course my disagreement with this opinion carries with it a like difference with our earlier one in Metcalf v. National Airlines, Inc., 5 Cir., 1959, 271 F.2d 817 . 29 The thesis of that case, echoed here, is that Congress deliberately chose to have the federal right vindicated in state courts. 30 That highlights this curious result. Under this case, Metcalf, and more directly under Sigfred, 31 the law to be applied by the tribunal is federal law. This presupposes that the right is of federal origin — here specifically under 45 U. S.C.A. §§ 181-188. Yet our present opinion proceeds on the assumption that the contract is a creature of state law. I am unable to comprehend how a contract compelled by federal law and to be interpreted by courts under federal law principles may relatistically be characterized as a creation of the state, so that a suit to enforce it is not one “arising under” federal law.
Air carrier and their employees are compelled to provide for industrial arbitration through System Boards of Adjustment. That was a recognition that serious disputes involving the most troublesome problems of constitutional law, due process and the like were being committed to tribunals made up of airplane pilots, aircraft engineers, mechanics and similar employees wholly untrained in the law or the business of judging. Moreover, it contemplated decision by boards made up of partisans with a neutral chairman only if needed to prevent an impasse. 32
If there is anything clear in this legislative muddle, it is this: Congress in *222 1936 could not seriously have thought that stability and continuity to interstate air commerce would come from the undulating policies and frequently demonstrated hostilities of the legislatures and courts (or both) of 48 states in the enforcement of anything thought so essential to industrial peace as this system of governmentally compelled arbitration. Indeed, §§ 181-188 expressly include by reference §§ 157-159. These actions of the Railway Labor Act provide for arbitration over and beyond action before the Adjustment Board or the Mediation Board. These sections make the decision of the Board of Arbitration reviewable and enforceable solely in the United States District Courts. 45 U.S.C.A. § 157 , § 158 (k) (1), § 159, First, Second.
Whether for an airlines labor controversy the submission to and processing by a § 184 System Board of Adjustment constitutes such a § 157 “arbitration,” I need not decide. What is plain is that any such § 157 arbitration is the substantial equivalent of the arbitration award discussed at great length in Part II of the Court’s opinion. There the Court develops the thesis that Congress was optimistic that whereas state courts would be hostile to executory contracts to arbitrate, they would give cordial, effectual welcome to completed arbitration awards. 33 Here § 157 is proof, however, that where the decision partakes of an agreed contractual arbitration which has proceeded through decision, Congress recognized that the proper, and only proper, tribunal for review and enforcement was the federal system.
The result becomes even more incongruous if it is assumed that an arbitration decision of an airways System Board of Adjustment made pursuant to a collective bargaining contract under compulsion of § 184 is not a § 159 arbitration. According to this Court, “jurisdiction” of a suit for the enforcement of a System Board of Adjustment award “lies with state courts of Tarrant County, Texas.” 295 F.2d 220 . If, as to this very controversy, the parties would have prepared an agreement of arbitration under § 157, it is expressly required that review and enforcement be solely in the local United States District Court. If Congress, with its rather rich experience in the jealous hostility of the Judiciary to lay arbitration 34 was content with state tribunals as the sole effective means of endorsement of the compulsorily required contractual arbitration, it is strange indeed that it prescribed the federal route as to § 157 arbitration.
1 do not mean to overemphasize § 157 as a technically precise investment of federal jurisdiction. We are searching for probable congressional intent. In that quest it points the way that Congress surely thought that for interstate air commerce it was essential that one system, and only one system, should undertake to police and enforce labor relations between air carriers and their employees. It must be remembered that the airline Labor Act was a complete departure from the existing structure. Whereas the National Labor Relations Board had only the power to protect bargaining in good faith, the airline Labor Act brought into play the National Mediation Board (§ 183) for the solution of “major” disputes — those on which the parties had not made a contract. 35
It is inconceivable to me that with respect to contracts induced by the opera *223 tion of the National Mediation Board under § 183 and the incorporation of §§ 151-152 and §§ 154-156, Congress at the same time meant for enforcement of arbitration decisions under such contracts to be committed to the unknown, unpredictable and uncontrollable attitudes of 48 states. Not the least of the absurdities is that an airplane flies from state to state. What state is to be the forum? 36 What state was the parent of this creature — the consensual contract containing the agreement to arbitrate? May any or all of the states beneath the route or routes traveled by the airline be resorted to? Is the continuity of essential air traffic to be at the plaintiff's choice of forum? What is to happen when several plaintiffs bring several suits in several states? Is effective federal control of an operational activity deemed so essential to national welfare to be precariously dependent upon the accident of diversity of citizenship?
Of course this Court does not shirk the obvious answers to these queries. It avoids them as ironical proof either of congressional aberration, of indecision or, more questionable, a conscious choice of turning it all back to 48 states. And under some ascetical discipline demonstrating real judicial restraint because the result is so obviously unsound, it despairs that with the signs all pointing one way, a barricade was somehow left across the road.
Just as Lincoln Mills cut through similar logical considerations to effectuate a clearly revealed policy, so here industrial arbitration compelled under §§ 181-188 is so much a part of the legislative machinery to protect the free flow of interstate air commerce that effectual enforcement of an award is realistically the assertion of a claim arising under a law regulating commerce.
I therefore respectfully dissent.
. As the briefs in that case reflect, all— the parties and this Court — were preoccupied with the jurisdictional amount of $3,000 under 28 U.S.C.A. § 1331 . No mention was made of § 1337.
. See footnote 12, supra. In these words we recognized that it was a federal right subject to federal principles: “There is nothing unusual in the holding that the state courts apply the federal law just as do the federal courts if the cause is one as to which [the] federal law controls.” 271 E.2d 817, 820.
. Sigfred v. Pan American World Airways, 5 Cir., 1956, 230 E.2d 13, 16-17, certiorari denied 351 U.S. 925 , 76 S. Ct. 782 , 100 L.Ed. 1455 , discussed in note 7, supra.
. The Court apparently sees some basis for congressional distinction between system, group or regional boards of adjustment under § 184 pending establishment of a National Air Transport Adjustment Board under § 185 and those of § 153 on the ground that the National Railroad Adjustment Board is a governmental tribunal. The Court says: “Whatever the motivation, the 1936 amendment extending the Railway Labor Act to the airline industry does not go as far in establishing federal control over the settlement process as the original Act, under which the adjustment proceeding itself is conducted hy government officials with a national hoard of adjustment. This difference in congressional treatment of the railroad industry as against the airline industry, and between these industries and other industries, cannot be ignored.” 295 F.2d 215 . (Emphasis added.)
Of course this is erroneous. The Railroad Adjustment Board and its four Divisions are each made up of partisan apappointees of labor and management. Government enters the picture only through the designation of a neutral umpire and the payment of his compensation by the National Mediation Board. See 45 U.S.C.A. § 153 , subd. 1(g) (h) (k) (1). The National Mediation Board *222 does, of course, bear the burden of compensation paid to certain staff clerks and assistants of the Adjustment Board. 45 U.S.C.A. § 153 , subd. l(t).
. See notes 12 through 15 and related text. 295 F.2d 214 .
. See United States Arbitration Act, 9 U.S.C.A. §§ 1-14 (1925).
. Elgin, Joliet & Eastern R. Co. v. Burley, 1945, 325 U.S. 711, 722-728 , 65 S. Ct. 1282 , 89 L.Ed. 1886 ; Brotherhood of Railroad Trainmen v. New York Central R. Co., 6 Cir., 1957, 246 F.2d 114 , certiorari denied 355 U.S. 877 , 78 S.Ct. 140 , 2 L.Ed.2d 107 ; Norfolk & P. B. L. R. Co. v. Brotherhood of Railroad Trainmen, 4 Cir., 1957, 248 F.2d 34 , certiorari denied 355 U.S. 914 , 78 S.Ct. 343 , 2 L.Ed.2d 274 .
. The selection of the state is only the beginning. What local law of the local state applies? For example, in Texas is it the arbitration Act, Tex.Civ.Stat. arts. 224-238 (Vernon 1959), or the special one covering labor controversies in arts. 239-249, or the case-made law? See 6 Tex.Jur.2d Arbitration and Award §§ 54-57 (1959).