Petition for Writ of Certiorari — Pan American World Airways, Inc. v. United Brotherhood of Carpenters & Joiners Local Union 1780

Supreme Court brief1964

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- JOHN F.. BAVI6, CLERK

ers | -

In THE

Supreme Court . of the United ‘States:

Ocrover TERM, 1963 1 om

on AMERIC. AN W ORLD AIRWAYS, INC.,

. : ooreer ‘Petitioner,

a ae,

UNITED BROTHERHOOD OF CA ARPENTERS AND |

JO! NERS OF AMERICA, » LOC: AL UNION 1780, et al.,

Respondents.

» . ~

PETITION FOR A WRIT OF CERTIORARI TO THE ;

UNITED STATES COURT OF APPEALS

¢ ~ . FOR THE NINTH CIRCUIT

, es . JESSE. FRE DIN

? ’

” Attorney for Petitioner

: ay 598 Madison Avenue oo

: ee ‘ New — sa New York

Ae & 3 9 \

Sides GARTNER ae ¥

RicHarp H. Borow

598 Madison Avenue

* New York 22, New York

Of Counsel * -

rn eeeenetentiien eemeneelnmenee

been’ but should be, settled by this: Court Sar eae

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'- TABLE OF CONTENTS .

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eae. PAGE

Opinions. BELOW ..-.,...+-+- Hee de eee Ee eee

_Jortspicr Bs |. see eee EEE ORI e eT eee TE 2:

Ov ESTIONS PRESENTED 134 ERTS G ri es og

bie : Sho tl id - : 3

Stary TE INVOLVED . PRR ERS WAKAO DE hake cae Ye

STATEMENT De ee COME as Pei ett coe

> ° The Relationship Among Pan Am’s NRDS, Canav-

er ral and Airline Station Employees ........... ae

* History Or: NAIB Application of the RL (Pyo Pan

_Am’s Space Site Employees ....... vo peg ee ane 2

-}. Pan Am’s Canaveral! Employees Pe Hoe te

»* rane 2

,- 2. Pan Am’s NRDS Employees ..... Seiwa

. Proceedings. Below: “Application For Injunction

Against Respondents’ Aetivities. ........ me mee 10.

.“ REASONS FOR (aR ANTISNG. THE W RIT. te Sr itedrs 2a Ree ®

= In deciding’ Ww ho are “employees” under the Ruil-

‘way Labor Act, a question of paramount 1m-

portance to thesadministration of that Aet,.the — -

Court of Appeals, contrary to the <pplicable de- —®

cisions of this Court, failed’ to give weight to

* the body charged with 1 the Act’s administration 11

2. Jn holding, contrary to the NMB, that —--

‘| __does nat _apphy to toistransportation employees

of an air carrier who do work -substantially

identical to that. of ‘the carriet’s transport: ation

+ employees with whoni they share commen inter-

ests, the Court of Appes ds w ronyly, detided an

fwiportant question of, federal law w vhich has not?

A. -The NMB" Decisions: ...-......653...

B. The. Court of. Appeal’ Grounds For Reject-

H 6a

ing the NMB’s Construction of the RL.A Do

Not ‘Respond, to the N MB's Reasons ...... ee

1. NRDS is not a shoe factery and its

mechanics and ground service. person-

nél are not shoemakers re, Serer

; 2 ICC* Section 151 Retcrstiations of (-

othe work of employ ees of rail carriers

‘are not instructive as to who are em-

' ployees of. air carriers tinder Section

- - Vii OF TBE ARE 5 es aan acne s .

; 3. Itis the application of the RLA which. |

‘is: involv ed in this case, not of the.

FLSA, a& in Jackson v. N orthawest

Airlines. PE: Sr ee Oe nee ETON

Ffiect-of the Court of Appeals Decision oe ens

ee rere * owes uh ackw ek hice Nain ee

APPENDIX A... 6-0 + nee s ty eeeee a

Judgment of the Court of Appeals .... Le re erre

- Opinion of the Court of Appeals. <., iissks Saeee en

Opinion of the District RAE wh aees on shea can

_ Decision of the Nation’ af Mediation Bogrd of July

10, 1956 eee , oe ee wee * ee ee er Perees

‘4 Becision of the “encguat Mediation Board of No-

vember 9, 1956 (ae N SARS eb eh Ke Pe Bene j

Devidion of the stata Mediatioi Board of Octo:

pee = eae a ec my

bet 29, 165...

Se 2 ER 218 2 DE Cee b OS C'S be 6, kK eS

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2 REPENS Bs. oa fen wee veeeeees Vevnntaves +, 44a

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Seen eS

; $#45U.S

. Ar PENDIX G

eis Afiidavit of Donald W: Hunt, ‘sworn to August 12, :

: 1963 Fete eere er Ge ie ere TE ee eS

Noo) Affidavit of Richard’ L. Yordy, sworn to Adeust 6,

a 1963 ee es eee eee afer ego rssObley atten <

a sarge of” “Richard 1gNofdy) sworn to December ,

, 196. gee > ff + ee ae FT Be ee Re ea ee ae :

Nahi favit of Bob Helgeson, SW@gn- to Gains mber

sie e

“y 1963, 2. Gf. NS cece ete eebee eV esa Kee eee.

Zt = . te ; a ,

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Pc &

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yar oath Att

-Raiiway Labor Act, 45 U.S.C. & 151-188 (1958) °

‘67a

7 LT WW

ioe <i TABLE OF AUTHORITIES i

ea See, . PAGE ©

CASES: + Hater 2a a ees O.-

i Biswanger \ v. ial 32 CCH Labor Cases ¢ 70,840: Sp

_ "+ (D, DeC..1957—Civil No. 4496-56) ....... 7, 16, 21

Brittan Vv. Hudson & Manhattan R. R., 50. F. Supp. -

_ 37 (5. D. N. Y. OAS tse ae seers Te eae |

” EB. 1. Du Pe mt de Nemours Poruder Co. Vv. Masland, a ;

OO SDs OP ABIIE) 5 ior du nis Sense cee es ‘ie dee

Forsyth v. Hammond, 166.U. S; 506 (1397 RS ian ey

. Gray.y. Powell, 314 U.S.402 (1941)... eS i 13

Hanez ‘er Sitar —s Co. v. Metcalf, “aU. 4 403,’ ¢

(1916) | bree eeea ve Raa Mew eben a ee aiuto aces 3:

_ In -the Matter of the Application oe T: ransport:

_ Workers Union of America, NMB File No. C-,

3367 (Oct. 29, ce nn Perey . .10, 16 aia

la the Matter of. Representafton of the Employees :

of the KLM Roya] Dutch Aivli ines, NMB File No.

C-2998 - (195 3), 3, Deternyination of Craft or

if lass of ‘the N ationak Mediation Board 1°.....:. 6 :.

In the Matter of ‘Representaticn.of Emplovees of

. the Pan Americ&n World Airways, Inc., NMB Ete

"File No. C-2505 (Nov.-9,4956) 3.00.00 ecco ee 5 Saiyan

. iw the Matter of Representation of Chibliieees -

cn Unipn Pac. R. Co. (Sun Valley Operations),

NMB Case No. R-2111 (1950), 2 Determination

“of Craft or Class of the deemeae Mediation Board

Kacksoiv v. Northwest Airlines, Inc, 70 EF. Supp.

501 (D. Minn. 1947) LEASED paeet : ire tree .2l1, 22

Keele v. Union Pac. R. R., 78 F. — eS nh -

Cal 1948) oie eee. ees ae.

-Pan Amertian Wor rid baleen aa Tnc., ars NL. R: B.

ee gt . - ; PAGE

McC oud v. Union Stock Yards & Transit Co., 168

F. 2d 375 (7th Cir. 1948) .:...... a eeea esas mes

NLRB v.E.C, Atkins & Co., 331 U.S. 398 (1947) Me

NLRB v. f7carst Publications, Inc.; $22 U.S. WT:

‘Northwe e Airlines, Inc, 47, NL: R. B. 498 cee)

St N. L. & B. 1002-1948) vs oi. oc css 22

Northwest Airlines, Inc, v. Jackson,. 185 F. 2d 74

(8th Cir.-1950), cert. denied, 342. U. S$: $12

G5 Mernier ere cts Rie |

Ore Dock Foremen and Laborers, 2% I. ae C. 703

(he 17,20

TR CO ss eg RAR OS pe RE chen Ree 6, 16

Pan American li ‘orld diease, Iné. (Employees at’

re ‘Guided Missile’ Range Base, ‘Cocoa, Florida), -

NMB File No. C-2202 (July 10, | re. 2 5.7; 14

Fair Labor Standards Act, 29 U, S$ C. § 201-219

IE Gio is con oo oe aw ne ee |

National. a Dic “Relations: ‘Act.- as: amienied, 29

5.6.4 raat, eB ed pe ae hie . 6

‘ Norriz- 5 dedi Act, 29 We S. IC. *§§ 101- 115 2

PRO? nei ehcp <b pare a BAD aa tee ed Fa Pe | oe

Gres Railway Labor Act, 45 us S.C. §§ 151-188 (1958) 1,3

° Qa.” Hi

"Republic ‘Steel Corp. 91N, L. R. B..904 (1950)... 18 |

Bown & Country Shoes, Inc., 101 N-TYR. B. 290

eC ) ee ERAN REA OS DES ae 18

U nite d State SN. Drum, 368. U. S. 370 | 1962 oes oe

> Ih ‘alling v. Tw yeffort. Ine., 158 F. 24 944 ( 3 Cir.)..

id denie d, a U. 5. 851 a") ieeeta ce Srecavate eos 18 -

‘ae age a ai a = ease

“S Section 156

Séction 157°......

“ee @ @

‘Section: 158... 00. a

Section 160.5 ..:..

Section 181 .:.2......

Section 182

Section 184

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‘Supéeme Court nf the - nited Statis

prt 4 ee 3 oe ensue TER, 1963 :

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7 “ 7 :

> Pan AMERICAS Wortp Arrwats, Inc.

, Y. Pe titioner, : : e

-° ; v. a . A 4 ° e “es

Ste a :

; Mi, tere No. owes

_ Untren Brotnernocp or CARPENTERS

-/i AND JOINERS (ot ~ AMERICA, | Locat:

| JUNI08 1780, et-al., des (2).

* r . ae . Respondents: Vx’

PETITION FOR 4 WRIT OF CERTIOR ART FO THE.

ae UNITED STATES COURT. OF APPEALS

6 FORTHE NINTH-EIRCUIT

= 8

? . j . : * '_ =

” .

D6 the.Honorable lari I ‘arren, Chief Iustice oft the Untted

Statvs, and té the Honorable Associate Justices of “th

me? wick ORE RY: the United: anates; _s ae

a om Pan Americ: in World Atravays, Iric. ("Pan Am") -peti

o ‘tions for.aw rit Ot cert rari to review a judgement of the

aftirmed an order. of the Unired States Districr Course]

‘ 's the’ District thot Nevada denving Pan, Anvs motion: tor

.prelininary injumetion against respondartts’ picketing and

‘similar: activities at the Nucle; ir Rock®: De velopment So

"U nited States Court of Appéals for the Ninth Circuit which.

“tion (“NRD="). -Roth-courts agreed th: ay such -actiy WN .

were mona. as viol: itionss of the. R. ulway 1. thy Wes

2(“RLA”) ,.45 U.S. C. 88 151-188 (LOSS tha Mer

were applicable. The sole peer the decisions elon

: >.

~*~

trict Court | pe ie pp. Loa-22a) is unreported.

~ + was that the ‘Act*is not applichbie to Pan Am's’employees at .

-NRDS, in Seige and, hence, that the Norris- LaGuardia -

Act, 29 U.S. €. § 201-115 (1958), barred injunctive ‘re.

lief. .The Cour of Appeals thade its detert Wwination despite

the contrary d Cisidns of’ the National Mediation: Board

“NMB") that both Pan Am, as a “catrier”, and its em-

a ces employed -at its space stations ( including NRDS),

as well as at its airline basés, are subject to the RLA.

activities are not subject to the RL PY ~- stablished an

Who have been held by the. NMB, since 1956, and by the

United States District Ggurt for the District of. Columbi;

to be stibjegg to the RLZAAnd its'X RDS’ emplovees engage 4

in substantially identicd ork, whore said by the NMB

to he under “the Act but} bY the court be} mw, ina collateral

pri oceeding, mot tebe. In so doing, thé Court of Appeals

his disre scarded Fe functron of the NALB-sin ths aginimis-

tration of ‘the RLA, and the decisions of this Court: as to

‘the weight te be given to administrative determin: ations, The ,

“uncertainty. thus: created as to the

"> Labor Act’ can be resolved only by thi

-rdge of the ead

Cert.

= Opinions Belo

The opinion .of the: ‘Court: of, Appeals (App. -A, infra,’

pp. 2a-13a )-1s not yet ope ially reported, but may be found

In S49, RL R. Al. 2487 (BNA).. The opinion of the Dit-

. Jurisdiction

- The iniement of the Court of Appeals for the Ninth

Circuit: (App. A, Ee la) was entered on Nov ember 5, 1963;

eo he decision of the Contr ppemhs asec: ori the pre

tise. that carrier emplpy sh SOP rs transportatiorr

fas’

antenable dichotomy’ between: Pan “Ati's beeps of em- |

- ployeeseat the Cape Kennedy ( “Canaveral” ) spaye station,

”

i g ‘ a . F : ey ’

” The jurisdiction. of this: C ourt is invoked under 28 ee

ak. § 1254¢-1) (1958). = ?. Du Pont de Nemours P owder Co. i

v. Masland, 2440. - 100 (1997): Hanover Star Milling * ~

Co. v. Me teal£- 240 u . 403, 408-409 CLILO) ;-Forsyth v.

Hammond, lo U.S. 5006, 312- 514 1897 }.

"Questions Presented ) Ms

: : : ¢

® °

ky ee hether a court, in banine a preliminary Injumne-

. yon against viokitions ot i eee Labor Act, on- the.

sole-ground that the Act dees not apply to the em; lovees in

-question, crred } it So dlec iding in the face af the NMB: s lon:

standing application.of that Act Laemplovees identically ent

plo. ed, and to the very employees Invelved in the matter

° : a . » .-

‘ be tore the court. i 4

3 2

— ‘ :

- 2. Whether the -Raihyayv Labor Net applies to--em-

. plovees ofa carrier by air who. alth nigh not engaged im -

air trans sportquion activities, perforni work substantially

: identical to that done by the carriet’s air tyansportation em-

| ployees, and shave a direct igre! COMLITION int tases for | laBor

- relutians Purposes with such, emplovees. ;

ar Statute Involved ;

es ae The pertinent portions ut the: ‘Railway Pan a +8

- oSguy “1185 (1934): 49 Stak. PESO 1936): 45 U, e

SS 15 i-18s (19358). are ~~ forth it 1 wy ok. I}, . Mm fra,

bees ie ‘ e o -

"This petition does not present for review, nor wotild. the Court

por reviev. be requ red to consider, whether the achyities of re share

: Jents against which: is coniplaint 1s directe d COST agte enjpomalde vied

“tions. of the RLA. “The Sausre of Appeals agreed wit! tf Dirk

* * Court that: if the RL A wert applicable. ain injunction shoul issue

~ {App."A, p. 3a). si ds a . 4

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ad *

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= 4 Seah

i‘? ’ Statement of the Case. oe

poration, is a common qartier: by air engaged in interstate

Scien ioreign commerce. (R. ps * Kor approximately, ten

Pan Ame ‘rican Weyld Airways; Inc., a New y dete cor-—

‘ars, P n.Am has render ed technical and base tnaintenance .

services under contract with the U Wit ed” States Air’ Force

at Cape Kennedy, Florida (* Canaveral”), and, for a shotter

period, under. contract with the United States ‘Army at the

kK lectronic Environmental Test’ Facility at Fort Hui achuc; ¥

-Arizgna. (R. 7, 284-85).

Under contract with the United States Atomic dnergy

Commission (“AE C"), dated June 28, 1963, Pan Am per-

forms substantially identical services at the Nuclear Rocket

Development Statton (“"NRDS"), Jackass F laits, Nevada."

NRW S fs the primary research and development test facility

for the Nuclear Rocket Development Program, which is at

joint Program “of the AEC and NASA. concerned with

researk &h and deve elopment, for space travel, Gf nuclear-—

powered | engines and vehicle stages’ pirdpelled by those,

engine sR, 209: App. C, p. Oa), » *

The- ‘Relationship Among Pan’ Ants | NRDs,

Canaver: al and Airline Station Employees. |

The suppert services performed by Pan ‘An's “enl-

plovees at NRDS and/at.Cagaveral are; as the Court of

Appeals found, “substantially idéntieal.”” (App. A, p. dia:

App. Cs PP. S4a, 00a, 632: R. 284).4 That work, } moreover,

“Xeferences identified by “R’. are to pages of the certified Trans-

_eript ef Record (in two: volumes }, -

8This sie is administered ‘by the Sp wwe, Nuclear Propulsion

Othce-—~Nevada Extension; an‘otfice jointly created by the AE C and

the National Aeronautics and Space Administration. ("N: ASA"

(R. 7; App. C, infra, p. 67a): ;

‘Pasi Am’s approximately 6.000 Canaveral atiplovées are responsi

bie ter the maintenance of alP the facilities at that Air Barce base

A nee - p. 28a). The simak: re scope of Pan Am’s work a Pesce hepa i

set Lori ees VEC is describe: ia Dete: va er 5

hibit ry iu the District Court. (R. 300-04). . ..

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. e

Ji. ee 4 . .

acting under the RLA, crtified the Transport Work

ae hion, af America, AFL aN (“TWU") as the exe

is ‘identic: af with the work performed iy other iliglones

of ‘the same craft at the regul; wr esti iblished [airline | bases s-

r [Pan Am]”.”

Pan Am’s employees at @anavernl, at NRDS and at

ort Huachuca: work*in the same job classifications and —

perform identical services in most respects as do those dt

its dirline bases. They. are all. * ‘empleyees ot Pan Am in

‘exactly the’ same. sense afd with ex cactly the same terms

and conditions of er ployment as emplowees of other divi-

sions gf the’ sue - s+. engaged in air transportation.

tApp. C, p. $3a). Emplovees are transterred from

fobs at airline pis to jabs at Can: averal and at NRDS.

{ App. « Cy pp. 33a-S4a, 654 ). Labor relations matters attect-

ing employ ees atany of the loc: tions throughout the Pan’ Am

system shave application t. similar employees employed ail

other locwztiens. Matters of labor polieyw. affecting rules,

ites of pay and other. conditions of ‘empleo: wviment are applica-

ble ‘to emplovees throughout the svstem. ‘They are form

lated and coordinated at Pan Am’s sv stem he: idquarteys in

New York C ity. Questions of their interpretation and ap-

plicdtion contintiously arise “and are resolved. because of

their system-wide as in accordanee with system,

Wide policies. (App. A, pp- 29a, 31a, 38s App. Cy pp. 54a-

SS, 65a-66a : | ee.

History of NMS “Appiicaijon of the RLA: to

Pan Am‘s Space Site, Employees.

1. Pan“ Alin’s Canaveral Fynplovees. In 1980, the NMP.

“Decision of the N MWh, dates 1 uly 10, 105%, p. 4. (NMB Evie NO

C-2202). (R. 226; App. A, p. 29a). °The full text of that decision

is ‘set forth in Appendix A, at pp. 23a-31a. See also App. |

634-65a. oe cont . wie

t » PP.

ra]

sive collective. bargaining representative for the craft or

class of airline mechanics (ancluding plant maintenance

mechanics and ground service employees) employed by Pan

Am anywhere. throughout its system) in the continental

BS: nited States. (N M B Case No,” R-22254 (R. 194. 95). The

system- wide onan tries of the gro up of employees certified?

as part of the single class or craft was consistent w ith the

“NMB's imivarying. practice. (App. A, p. 38a: ‘see: also,

In the Matter of Represe ee of Employees of tite KL "

Royal Duteh Airlines. NMB File No. C-2098 (9933). 3

etermination of Craft’er Class of the National Media- -

tron Board 1). several vearselater, Pan Am e mmicnced its

operations at Canaveral. pyres

y nee - ore, : er sp

On August 19, 195s, the International Association of.

Machitists AM" ) filed with the National Labor Rela-

tions Board (*NLRB"}\a petition for election under the.

National Labor Relations ‘Act, 20,U. S.C. $8 151-187

(1958).‘in a proposed unit confined to some of Pan Am's

Canaveral employees. including. plant maintenance me-

chanics and ground service emplovees. ‘The transcript of

the record made at the. NLRB hearing on that petition was.

in accordance with inter-agency arrangements, transmitted

te the NMB to.enabie it to make a detefmination-on juris

diction. On] anuary 30. 1956, the NMB advised the NLRB

that, in its opinion, Pan Am’s emplovees.at Canaveral were

within the coverage of the RL:\ and that the NXID there

fore had jurisdiction over questions affecting their ‘selec.

tion of 3 -collectivé bargaining representative. . ( App. Ay p.

24a). Accordingly, the 'NLRB dismissed the: TAM _peti-

tion on Kebruary 17, 1986. © Pan: Ameriean World Air-"

ways, Ine. 115 N. L. R.*B: 493 (1956). =

The TAM thereupon. requested dreument before tHe

NAMB on the question of RLA coverage of 'p ani Am’s em

ployees at @anaveral. After argument. the NMB. on

July 10, 1956, reaffirmed i@ opinion to the NLRB of Jamu-

- ary 30, 1956—that the purposes ‘and the language of the

e )

-RLA required that Pan Am and its emplévees at Canaveral:

be treated as carrier and employ ees under the Act. (NMB-°.

File No. C-2202). (App. A. pp. 23a- 31a).

_ The IAM then applied to the NMB to sever from the

_ previously certified system- wide ‘ ‘craft..or. class” of Pan:

Ams mechanics and ground service employ ces, Pt em:

ployed; at Canaveral, and to consider them as a separate

“craft or class”. After

a public hearing, ‘the NMB. on".

November 9, 1956, dismissed’ the IAM application. (NMB

File No. C-2505). It‘affirmec ] once again that.the emplovee

involyed were subject to the RLA, that it had jurisdiction;

over the representation dispute, and held that the previortsly

established system-wide *

‘craft or class” of Pan Ams nie-

chanics and ground service e employees, of which the T we

had beén designated the exchisive bargaining representative...

. included those at Canaveral as well as at other Pan Am sta

‘tions. (App. A, pp. 32a-39a).

The IAN and.seme of the C Canav eral. employees brough;

suit in the United States District Court for the District af

Columbia ‘against. P

A declaration that the RLA was not applicable to, and that

the NMB had no Jurisdiction, over, Pan-Am’s Canaveral

employees." On motion for summary judgment. the Dis-"

trict Court. on june 17,

1957, rendered: judgment for’ the

-defendants. he ding that the RLA was applicable, and that

“the asserted. jurisdiction of the National Mediation Poard

is not only lawfill yer@eampulsive.” Biswanager v. Boyd.

‘Civil No: 4496-56, 32 CCH Labor Cases € 70,840 {not

officially reported).

cat

®The IAM withdrew tfrone the action hefore decision and it was

prosecuted*by the individual plaintiffs. “The TWU became a parts

‘

by intervention. ;

ann the SEM Bai fit NUCRB. for.

—

“App. C, pp. S4a- 53a; 60a).

ae oe

Ad a consequence of the NMB’s dec -ision and its afiirm-

ance by the District Court, which was binditig on it and

-TWU, Pan Am chas continueusly treated with TWU as

the exclusive representative oi Pan Am’s employees, in thre

vcraft or class of mechanics, whierev er employed throughotit

the United States. , (App: C, p. 60a). Thus, Pan Am’s air-

line and maintenance mechanics and its ground service em- —

ployees, wherever employed in the United States. whether

at airline stations, Canaveral, Fort Huachuca or NRDS,

have been.and are covered. by a single’ s system- wide agree-

_ment with TWU, prov iding rules, rates of pay and working

conditions uniformly applicable to all such employees. ( R9;

Z to, Am’'§ NRDS' ‘Fuaivcots By sekttion dated

July 1i, 1963 (R. 235-36), local unions at Las Vegas,

Nevada. aftili: ited with, the. ‘Hotel and Restaurant Em-

_. plovees & Bartenders-Union. International: ( “H&RE”) (in!

ie Aes re spondent; Culinary Workers Union, Local Union

220 “Sought certi ification under the Natianal Labor Re-

‘lations Act as the exclusive representative of a unit of

emplovees including a small number of Pan Am’s NRDS

ground sevice employees. although they were apparently ~

within the system- wide class or craft certified by the NMB..

covered by Pan Ani's system-wide agreement with TWEE.

Oneluly 22. 1963, TWU SO informed the NMB.- {R. 201).

~~ eas es . » ; -

?The* NRDS employeees of Pan Am whom the “Culinary

Wearkers’ sought to meckide within the pri oposed unit perform ctus-

-todia!l services as dg other ground service emplovees at Canaveral

and the airline stations

@y December 5, 1963, after the pene and jillababiee of the

Coudt of sppeats, the respondent Building & Construction Trades

Cognicil also. filed a petition with the NLRB seeking certification

ak the, fepre sentative of the greatef number of. other Pan “Am em-'

hidvees at NRDS classitied as mechanics and ground service: em-

-plovees and alseyapparentiv covered by the NMB's system-wide class

or craft determination -and Pan Am‘s corresponding contract with

TWww | 2

ins

The NMEB bnidinediately notified the NE RB and the H&RE

of the TWU’'s advice and informe deal parties that past.

_ precedent indicated that-it had jurisdiction over Pan Ams

“NRDS cemplovees dut that it- was “prepared to in ld fat

“Reger hearing on,{the] question of its jurisdiction.” 7

pans). -.

On July 29, 1963, the NMB inf rmed Pan Am. T WU.

the NURD. aid H&RE that it reg carded the controversy

mechanics). ds “amplified relevantly’von -Noyember 9, 1056

(holding the 1950 certification anfti®able to “a Am’s

employees ai Ci maveral ). and. announced that iver”

vhold-a hearingon the, m: utter after notice fo all interested

parties. (Kk. 204). On July

the NMB of picketing at NRDS, with severe consequences

to the operations there corried on, and having an apparent,

purpose, of. foreing acpeptance of the respondent Building |

‘& Construction Trades € ‘ouneil CIBECTC”) as the repre-

_ sentative of certain of Pan Am’s emplovees’ there. Phe

’ NMB nadie the B&CTC a party to the proposed hearine.

CR. 205). corey

eS) 1K om notice to all parties. the NMBrheld hearings at Las.

Vegas on August 20 and 21. 1963 on the question bf its’

jnr&@etion. under the RLA, over questions of representa-

tion affectine Pa An’ s.mechanics and wrod service em-

_ plovees at SRDS! On October 29, 1963; the. NMR - “On- |,

— 8

®The. parties. who appeared and par rticinated the Liatiais befor re

NAIB Member Woward Ganiser were: TW, respondent B&CTC.

and its affiliated Jocal unions (all of which are respondents herein);

respondent International fratherhood, ¢ “Te: TS. and its léral

union in Tas Vegas: H&RF and re cronies Hinary’ Workers

Union, oral tenion 224% the Building & Con@Mfittion Trades De-

parinient of the AFL-CI0: and the Brotherhood of Railay and

Steamship Clerks In addition, in the words of the NMB, *P an Am

and the AEC “were permitted to participate to the extent of furnish-

ing the Board with technical advice and. guidance.’ *" (App. A, p. 41a}.

30. 1963. Pan Am informed —

as une calling for clarification of its 1950 Certification __

TW cas the representative of the class or pa of.

- (App. A, pp. 40a-43a).. The NMP. deferred consideration *-

Injunction Agetnet Respondents’ Activities.

“contrary to*the pr dures and provisions of the RELA gov- >

cluded (NMB File No. C-3367). that Pan Am and its-me-

chanics and ground sérvice employees at NRDS “are Tée-* -

spectivei¥ a carrier and employees within the meaning of the

Railway Labor Act’, and that the NMB has jurisdiction,

—

of the applicability of current certifications, or class or craft

determinations, until raised by “proper applic: ition under

. the statute.” (App. A, pp. a

Proceedings: es Application For. nia ae

On July 3I, 1963, after respondents began picketing a

NRDS apparently to procure recognition as the bargaining

- re oresentatives of Pan Am’s NRDS mechayics and. ground

service employ ees and to affect their terms of employment,

erning representation (45 U.S. C. $152 Ninth), and -

changes of employment terms (45 U. S. C. § 152 Seventh,

§ 156), Pan Am began this action to enjoin such violations / 2

of the RLA. (R. 1221; App. A, p.22a).- On-that day, thé

United States District Court for the District af ‘Nevada.

after. notice and: argument, “granted Pan Am's application. «|

for a temporary order restraining the picketing and other ,

activities violating the Act, which then ceased. After hear-

ing on Nugust 2 2, 1963. the District Court denied Pan Am’s

motion for a preliminary injunction. upoh the sole ground

that the RLA does not apply .to Pan Am employees at ,

NRDS." (App. A, p.'22a). The District Court. Inywever, ,

acknowledging the novelty and importance of the question.

‘and the seriousness of the i injury\to the government's as W ell.

as toe ‘Pan Ams interest, were the Picketing to be resumed:

fi The. court t said that it would, otherwise, ‘readi ly enjoin picketing |

in this labor dispute,. which appears essentially to be a jurisdictional

dispute... .” ( App. A, P. 22a). : . [

fa | \ e b

“ \ .

i 2 >

11 Fae

continued the. restraining order pending application by Pan

Am to the United States Court of: Appeals for the Ninth

Circuit for.an injunction pending appeal: é R. 319). ~

“On August 15, 1963, the Court of Appeals;.on Pan Am’s

application and after extensive argument before a bench:

.. consisting of Judges Hamlin, Koelsch and Brow ning,

"granted an order enjoining picketing and similar activities -

pending hearing and determination of the appeal. (R. 346-

47). *The appeal was argued on October 10, 1963 before

Judges Hamlin, Browning and Madden. - When, on Octo-

ber 29, 1963, the NMB decided that the RLA was-appli- ‘

cable to Pan Am’s employees at NRDS. (App. A, pp. 40a-.

43a). that decision was c: led to the court's attention. On *

- November 5, 1963, the Court’of Appeals affirmed the Dis-

trict Court’s denial of the preliminary injunction on the

sole ground that the RLA is not applicable to Pan Am’s

NRDS employees and that the Norris- LaGuardia Act, 29

U.S.C. $§ 101-115 Sait deprived Jt of jurisdigtion to

grant the injunction."

Rinsens for. Césnting the Writ |

: % In n deciding who. are “employees” under the, Railway Labor.

Act.-a question of paramount importance to the udministra-

. 2 tion of that Act, the Court: of Appeals. contrary to the

applicable decisions of this Court, failed ‘to give weight” to”

_ prior decisions of the National Mediation Board, the body

charged with the Act’s administration. —

Pan Am urged below that the decisions of the NMB. ‘

rendered in the course of its administration.of the RLA—

that the purposes of the ‘Act ‘require that Pan Am and its

14O)n -December 3, 1963. Pan ‘Am applied for and obtained an’

order staying cthe mandate of the Court of Appeals and ‘continuing

ip effect the injugction previously. issued by that Court, pending the

filing and disposition of this petition. (R 397-400).

=~,

space site employ ees ceed: not be excluded from. RL. \ cove

erage—decisions under which Pan Amand the various

” uniong with which it deals have continuously acted for the

-ot Appeals gave them no weight at all.

Judge Madden's Opinion for the Court of Appeals —

quoted merely a fragment of the 1956 NI determination -

which it said, “we cantess with dqgerence, does not.seem: per®

suagive to us” (App. A. p. 12a): and then incorrectly .

-paraphrased.what-the Board had said; ©

“in short, the NMB’ s stated view ‘was that’ if ay

_ empivyee works fer an airline as a pilot. a ground

P ; crew member, or‘a bench w orker in the- airline s shoe

: factory having no remotest relati.> to its- business

” >. as an air.carrier, he is governed by the’). ¢ [RLA]

oe ~ LApp. A; p..12a):

This was a distortion of the NMB's opinion, °F or it was not

the NME's “stated view” that a bench worker. in a shoe

factory hypothetically owned br Pan Am * ‘having ‘no re-

motest relation to its business as an air carrier” 1s subject

a hypothetical’ bench worker in a hypothetical shoe factory.

The view the NMB had expressed in. 1950 was in respect

to Pan Am’s mechanits and ground’ service employees ‘at

Caniiveral, ands in 1963, in respect to similar employees at

identical to work verformed at Pan Ams airline stations.’

twas tl 1¢ NMB’s view thtxsuch employ ees were. tor pur-

sg “poses of the RLM, subject to that statute's previsions be-

cause there was a relation between those activities and Pan

Afn’s.air service: ‘It defined that relationship as the com-

_mon interests shared bt Pan Am’s space site and airline sta-~

: tion employees: because they perf. THE the same ‘kind of work

, foret he same employer, under comnion ‘policy directiv es oT

H MM + ° .

¢ wom fe 4

° 33 Ly ng

2 is, ; ; :

4 . .??

rs : ee ae

oe ,

J *

é ¢

past seven years, should be Riven great weight. The Court -

to the Rle\. ‘The NMB had expressed no yiew respecting -

<« Rey

i ‘ eS, . . ; ae : . tas

the same corporate officials: It pointed to the danger,

its experience in the administration ol the Act fed it to be-

lieve was gentiine ani probable, that a di spute and strike:

. invelvi ing the space site employees might spread * to or be.”

supported. by airline static employees, with the consequent

threat of disriiption in Pan Am's:air conittierce,

Ina footnote, Judge Madden said that the current NME

decision as sto the NRDS employees did not persuade the

court to change its opinion which had beer written prior (a

receipt-of that decision... (App. A, p. 13a).

In failing to give “aveight to the NMB glecisions on se

important a question in the administration Of the Act. atid

in failing to respond to the reasons ottered by sthe NMI:

ter holding. the view it had exprgssed (not the hypo-

thetical view it hi Ligh pt), the Court of. Appe vals acte? con-

trary to the clear and established’ doctrine’ of this Court

thatereasoned determinations as to the reach of- a statute,

hy an agency ‘charged by Congress wath its administratien

are eniitled to the oreatest weight. E.g., United States v.

Drun:, 368 U.S. Ob, (1962); NLRB v.-E.-C _ dthyrs co

Co: S3t- v.32. 3 x eI 47); NLRB vy Co st Pubhca—,

tious, Ine., 322 UC S. 111 (1944) Giay v. owell, 3la

U: S. 402 (1941): | .

- In NLRB v. Hearst Peblinibines. “ne. supra, this

Court reversed the Court of Appeals for the, Ninth Gireui’

tor having tailed to, accord suitable weight to a decision hy

the NLRB. that certain. workers were ‘empl®ees” within -

- the meaning of the National Labor Relations Act. Here. as’

there, the Court,ot Appeals failed to. give weight fo a similar -

decision by tl he Nz ional Mediatien Board, Ola similar ques-

tion under the NE Asa nate statute. Indifference to stich

‘an padminis strative determination fs ‘particul: irly Mmappno-

" priate et th application for a preliminary inj function which

does not present to. the court the record from which that

determination was distilled, ‘

2 IE FORE” ERE eet BUTE ens o®

©}

2. in holding, contrary to the NMB, that the RLA dies not |

_ apply to non-transportation employees of an air carrier who

do work substantially identical 1 at of the carrier's ©

transportation employees with whom they share common

interests, the Court. of Appeals wrongly decided an im-

portant question of federal law which has. not ee but

,* shoutd-he, settled by als Court. :

A. The’ NMEE Decisions,

In 1956, the NMB was called upon to determine w hether,

to achieve ‘the aim of Congress to avoid interruptions to air

“epmmerce, Pan Am’s mechanics and ground service em-.-

loyees at C anaveral, who were rigt engaged in air trans-

portation activities, should -be excluded from the a

scttling procedvtres of the RLA. It held. that’ if the Congres

sional purpose were to be accomplished, they should not be,

its reasons were given in the course of a thoughtful opinion,

based on its experience in. administering the statyfeS

“The k ind of work the employees - , ber tort fat

Canavan is identical with the wotk “performed

by other employees of the same craft at the regular’

cestablished [airline | bases of [Pan Am]. The de .

partmental. organization of 4 Pan Am] at thé, Mis: ‘e

- Dase is similar to that m effect: on the other div-

siops of, |.Pan Am] and the executive controls frogn

headquarters are the same as On othgr divisions.’ .

(App. p. 294 J: age ‘a #4 :

a ® oe .

Jn the ‘NMB' s View, the “principal question”'' was: .

P °

*. 'Earher in its opinion, the NMB had quite eneny Aaa: to

the ~wordsapt the statute ‘as indicative of its coverage: “I. the em-

ployer a conimon carrier by air engaged in interstate conimerce ?

Does the individual perform any work’as an employee? If both |

‘ answers are in the affirmative, ‘the Board's. jurisdiction is clear.’

(.\pp. A, p. 28a). That statement folluws the gXpress words oF

45°. S: ¢ $181 which. makes applicable pertinent provisions: @f

the RIA to air Carriers and their erhployees. (See. note 13, infra).

But as the Board later: wade: ve i in its opinion, this initial test Was

\ r/

or,

° . ‘o :

iff fet “ighether the RON at [Clnaveral): are en. :

- ~ gagetl in activity so remote from the activity of the .~

~ employer, as.a carrier-by air, that it may reasonably

bezsaid that the, purposes of the [RLAY will be:

achieved iti‘the event such entployees are excluded

' troui the ansaid of the Act.” CApp. A, p. 30a).

° ‘ *

™ solvine that question against the éxchusion ot the env j ;

ployees trom: the Act’s- cov rage. the Board’ said, in part: a

J “Suppose ‘the position of. the [IAM] ts ailopted: - Seb

ah ‘fe and the employees-at the Missile Base are held ty

oto be under-the | RLA|; and turther- suppose tihae “e

— sometime hereafter a, labor disputy arises hetween o *s

“gotich em mployees ana !Pan Am|], 5 .

a with attendant picket lines. Jf plcket ,

‘‘lines. were then to ‘be established, it is: reascable

at to st}ipose that the main offices and air bases would

; _ > be picketed. What effect w ould suc picketing have

.° . upon the function of {Pan Am} asa common car-

“se Tier of persons or property: aie Me bis ¢

‘It is the Xpress purpose of the. [RLA], to

bvokt any “interruption ty commerce or to the opera~ “.

tion) of any carrier erigaggd therein i d te accom- 7

plish* such, purpose the Act prov "ides ° a number otf /

ster that may: be required of the” parties for the:

protection of the public... [f these employees ar’

« deemed to be excluded from the Act, then in

i tacy of a serious labor disputé.-the [NMB] wi

; mv ra not bein a position tw proffer its mediatory SCFYICes 3 RS

under Sec tron 3 of ‘the Leoarig ; and it a labsog

- ‘

_rupt interstate. commerce to a eat

° deprive & section of ie cauintry ot essentt; trans-

6 ooo Bisseau

pe wae primary basis for its decision. Yet the Sua of " Kiabe als |

mirized the NMB decision as turning exclusively/on that por- .

-tion of its opinion (App. A, p 12%, and did net diyouss at al} the

: substantial reasons given by the Board for its interpretation of the °

statute,

“the President so that he might create an emer gency

board, as provided in Section 10 of the [RL Al.

In the light of- the purpose8%of. the [RIA] to

( . * insure to the public, to the efployees and to em-

ploxers ameans of settling disp of the emplovees_

as te whoanay represent then} for collective lear-

.* 8). gaming purposes and fo settle disputes ... + $0 as to

avoted interruption to commerce, we must conclude

. that the relations hip of employees | performing the

» . functions that are per tormed for [Pan Am] at!’

[Canaveral] by its employees is not so tenuous and

Teiote as ty remove them tront the jurisdiction of

¢ the etR LAI." -(Npp. A. pp. 304-314}.

Since “Pan ee at NRDS perform servives.

“substantia[ly identical” (App. AJ. Dba oo rendered

by it. Canaveral emplovees, thy, 19S 320 NMB deetsion and -

jts careful expheatiog have equal relevance to NRDs.

Unzil the istrict Court tn this, case rende red its -deci-

be Hl

sion on Atig cust 2, 1903, the NMB S ‘construction of “em-

foyer”. as tised in the Act, to. cover carrier employees othe:

% gaged in Iransp tation, had not been.

Fibocied ori ] any res} wel chal! en ea bX anv Court or ad- ;

Mministrat@e aecncy. it Was affirm ed by the District Cou "nt

bor the District ot. Ci dus yal Ce eae. Boyd, : Sup rar.

accepted hy the SERBS" a Be by carrier a nd ynions. And

‘.-atter the lecision Wa the District Cour hee in, the NMIB

. re-agirmed its cartier: determinati m ee on October. 29,

13. it held th cat 2 an \m's emplovees at NRDS are su hiect

the RIAA. g. in part: st ;

" “The activities on which these empl wees of th 1 gar.

rier, who are based at the New ada “Test Site, ure

engaged have such a ftthetion: il -relat ionship a the

emmy © -

“The NL RB had at an early date deferred to she jurisdiction ‘of

the SMB Pan simericon World Atrways, Ric, 113 N. L.R. B.

- decisions and im 4s curregt decision ‘as to Pan As

over-all operations of this carrier that assertion of

Apia sees is mandated. by ~ Statute.” .(.App. A,

wp. 42a ? .

B. The Court of hele Guam For Reporting

the NMB’ - ‘the SMBs Rea the RLA A Be Not

Respond to the NMB's easons. .

Starting with the eXpress words of Section ISN] ot the

RLA whieh extends the sTateate te all em] ployees ot an air:

carrier.. but basing its deciswwns ritnarily upon what, in

view Of its experience under the Act.aweuld best effectuate

the statutory purposes. the NMB determined in «its

employees thatethose ptirposes would | ie subverted Were such’

empIn} iyees to be exc fied from the express coverag ot the.

Act."¢ The'Court of Appeals did not 4 lirectly review tlits

Most recent decision of.the NMB nor, of course, ‘the earlier

- glecisions ut 195 0. it h: is nevertheless disapproved Weir

» result, and’ megrounds not addressed to the Board's reasons

set forth at length in-its 1956 dec ‘sions CXpp. A, pp. 23a-

39a).° The court below excluded all- nop -trans portation em-

ployees, from the covérgge of the RE A although, 4 a® the

NMB has found,.mansyghch employees. by their relation

hp tw transportation employees mayatiect the maintenance

1 transportation sorvices. T he grounds on wich the cour

hel nv relied do not. suppert such a limited construction of, =

emplovees subject to the Act:

— 4 . * . - ] 4

3345 U.S. C. $181 extends the coverage of the RICA, in broad

C21 ed Y ° 7 . - 7

terms, to “evePy" air carrier and “every . . . persen who performs

: ry a ) - - es "nx =

any wi hr emplovee ... of such carrier...” 42 U.S. cg S J82

116 ‘orporat tes, ii terms, the-oT ad coverage a S181 ifto the” rior

pr wisiens af the RJA prescribing “duties, | requirements, penalties

benefits, and privilegés”. Thus, cantrary* to the ‘Suggestion of the

tourt below, | 5p. \. pp. 4a-5a, 7a-Sa) the scope of $ IRL is not

ae 4 ee ae +ls le Os 4 beer eae

limited ‘by € 11% reither.-the ¢ hnltions of $141 are’expanided to,

include thé eexPrage of § 181.

i Am (

i, =,

r v

° 4

e ~

° . ‘ .

% : ce .

. * ’

q s

. J

o oe

. “YS

a ;

- e

a a >

"RDS

e°:

1. NRDS is not‘a shoe factory and its mechanics and

ground serzicd personnel are not shoe makers. The opinion

of the Court of Appeals, after stating that Pan Am’s op-

erations at NRDS had ee to do with ee

by air or by rail,” “says: :

“It wonld-seem, then, that the same -problem 61.

interpretation, and npr of the pertinent Stat- °

utes would, be présetited, if Pan Anierican’s mari-'

agement had acquired and were ‘operating’ a shoe

factory for profit.” CADP, 4 - p.-6a’).

It goes = tocay: 7 +

* “The purpose of the restrietive provisions .of

the Railway Laber. Act is to keep transportation

moving. If the Act has the effect of \keeping em-

plovets ina shoe t factory working against their will,

“tt would seem that the etiect of the Act is not co--

% incident with its purpose.” (App. A, p. 7a).

; ,

\W hether application of the procedures’ cof the RI. A to

nonexistent shoe Tactory en iplovees in a nonex <istent shoe

factory “could reasonably he saul to be necessary to avoid

interruption of air commerce ts not an issue in this case and

gis never. so tar as we kn ow. been an issue before the NMB.-

‘The NR DS employees in this case are mec! ianics and. grestid

Brice emplovees doing, in the main, the same work as Pan

Ams other mechanics and ground service em: yf ees at‘its -

airlin® bases. «dn the administration of labor statutes. simi-

larity of work and-cenim: uttity of int erest have been made:

“the basis for many determinations T hy adnnitistrat ive hades

and courts.’ There would seentto be no need, therefore.

to belabor the plain impropriety’ of deciding a question of

statitery construction suth as. ts involyed, here by starts ing.

See, ¢.g.. Walling v. Twveffort. inc., } 58 F. 2d 944 (2d Cir.)

cert. denied. 331.U. S. 851 (1947): Town & Country Shoes. Imnc..

OL N. LL R. B..290 (1932) ; Republic Stee! Corp., OY N. Ig R. B.

O04 (1950). a .

with the assumption that shy wmakers eaiploved in shoe fac-

tories and mechanics employed at space installations are

equivalent, and then, because ot the 5 yparems incongruity of

applying the statute to “bench wo kers” owhoy by uifstated

prenfise, do not have coninon interest with the/usual carrier

employs ces, deciding that Congress ould iy t/have intended

to apply it to mechanics, who do> such comm mn

interest.)°- : ¢

2. ICC Sect int 151 determ: matic ms of the stork of em-

lovees of rail carriers are not. instruc tec as to who are

‘employees of air carricrs under Nectio®@18: 1 of the Act.

After noting that Pan Am had reterred to.a part of Sec-

tion’ 15] of the RLA, the ¢ ourt of Appeals, in support of

‘the limited meaning it gave 1a ‘emplovee”, called attention *

to that part which reters to ofders of the Inienst: ite Com-

merce Commission ("UICC") define the work ef em-

. . . * ote Pa . ° :

plovees ot railr ads. Phe opitmen then says:

ae c ‘suppose that the Imterstate Commerce Com-

mission did not have in effect anv orders relating’ to

employees in d@ shoe factory, even, Ui mugh the shoe

bracts ry dee pened to he’ “owned | by a vajiroad.” -¢ App:

4 j

A, p. 4 ae F

That comment misc MccesHthe. neaning of Sectyon 151,

‘and its ° “application fo Section 181. The ICC itselt has

acknowléaged that it is the NMB, not the ICG, which is’

The Court of Appeals, in tha course of its opinion, said: “Pan

American sds, obviously correctly, that it as a carrier, hence the

‘person who works in its shoe fadt ry, or in its NRDS enterprise

isan emploveee wihin the me amg 4 the RLA.” (App. A, p. Za).

In fact. Pan Adi has not argued jin any -of ‘the courts, below, and

.does notargue here, that if mt owned a shoe fa

Ber ld‘ upse facie he covered’ by the RLA.«-lf the NMB. hewever.

after hearings; found that such hay plovees did the same work «as

transporiation empiovees of Pan Am. that. comfnon labor policte

applied, and that therr Tabor disputes cor ald result in the interrupiiuion of

air commerce, presumably the NAMB would take jurisdiction over

-them, under the RL a .

fact@ry, thost employees |

piped by the RLA to eiereaine who are employees

under that Act; the iC C's orders only detine the kind” or

work Which-those Ww ho- are Piet ees do. Ore Dock, | ‘ore-

“men and Laborers, 246 I. G:C. 703 19415. “Rus, con-

trary to tite suggestion Qt a court below, the reference

of Section 151 to ¢he i¢ ¢ does not contine the coveFage of

the RL.\, in the-case of rail cerriers’ to transport: itipn

e workers.

The NMB, on the gontr: ary. has ruled that’ em-

6 ployees of a railroad, doing. work ae in 1C@ orders, at a’

ski-lodge, are employees under the RLA. /n_the: Matter of

‘Representation .of Emplo vees of. the Uj inion Pac. R. Co.

(Sun Valley Operations), N MB, Case No. R-2111 (2950),

2 De

‘rmination Gi Cratt or Class of the Nati mal \Ledia-

tion Doard-113. The work there involved included that of

mechanics, carpenters, painters and ntdintenance men. classi

‘teations long-established on ther: tilroads, just as the classi-

NRIIS hate been long-established on the airlines:

The Court of Appeals singularly could not tind any

° . L

; sy “to litt the employees of our hypothetical shoe fac

tory. or -of our attual Nuclear Research jsic |

Develop: nent. Station, out e > the legal area occupied

by most other workmen in the ecuntr v whogoe xactly

® s'the s same work underexactly the same conditions are

surryundings. and place them. fdr empk vinent rela-

Hons purposes, in the ‘stare’ within a : state’ occupied by

> railroad and Spina ation Wotkers. ..."" (App

‘A, pea), =~ - s ;

* [tis precisely because the actual NRDS workers, and not the

hypothetical shoemakers, do “exact ly. the same work.ander

exactly the same conditions and sur raoumedines” "gts the « ther

base ni: un tenance emplovees: ‘of Pan Ami at its ne sta-

tions, and: bee: use a dispute affecting them m ight atfect

their brothers engaged in the same .work ¥ the airline

Stations, that the NMB thought they were. included, for’

~ -employinent relations purposes, under the same statute.

3, It is the phiaiag 9; the RLA whielr is iz volved

an this.case, not.of the FLSA, as in Jackson v. Nortlivest.

dlirlines. The case whith.the Court of Appeals regarded

“as direcily in point” ( App. A; p. T4a) is Jackson v. North-

west Airlines, Inc., 70F. Supp. 501 (D. Minn. 1947}, That

case, decided nine vears‘before the NMB Canaveral decision.

‘and its affirmance on review,” was. thought. by the NMB

and the District Coftrt’ of the District of Columbia ( Bis-

wanger V. Boyd, supra) to be quite heside the point.

It did not involve our quiesgion—how far. in light of the —

_ purpose s of the RLAsdo the dispute -setthug procedures of

- that, statute reach—but: the quite different question of how

toehnfine the exemption. frotn the overtime obligations. of

the Fair Labor Standards Act.-(“FLSA”), 29 U. S.C.

$§ 201-219 (1958). directed by that statute for en mplovees

covered by the RLA..so as to give tit fullest play to the-

beneficent purposes of the I “LSA. aig :

Jackson w as an action for overtime comp yensation under

the FLSA. The defendant airline argued, among 6ther

things. that its emplovees. engaged in a bomber niodification

project were, under a provision of. the FLSA, j then. 29

UL Se. § 213(a)(4). later § 21305) (3), as amended in

_ 1949] exempted from its overtime provisiin~ as employees:

” of an air "carrier sthiect to the RLA. The Districf Court

Since 1950, whey the Court of Appeals for th: Sughth Circust

partially affirmed the District Court 85. F. 2d 74, and until the’

courts: belaw relied updn-oit. Jocksen had net been followed bw any

other reported deci-ien: Views contrary to these expressed im

Jackson had previouslY heen s 1g y¢ ste} 111 a mumber of other dec:

¢ ways . - > ppg : -° . 375

sions. MeComby Union Stock Vards e<¥€¥igs! Co: 168 F. 24

7th Cir. 1948); Keele vo Unbn Pac. RoR. 78 F. Supp. 678. 623

(S. 1). Cal. 19483— Rrittan v,, Hudson &. Manhattan Ges | frees AS

Supp. a7 (8S. 2) CY 1945)

MContrary to the st: ateme nt cf the opinion below (App. A. p 13a}.

the RLA did not provide * ‘for overtime for work above 48 hours”

extiusion of emplovees from the FLSA overtime provisions, on the

ground that they were under the RLA, would thereiore have meant

ne such coverage for oe. es %

> <=

22. .

> NFR ° :

said that the exemptiofi did not apply; the basis of its deci-

_ sion’* was that: oo

'“Broadly and-literally construed. the |exemptiorr]

provision may sustain the latter meaning, as defend~ «,

ant jasr’ne| contends: But it is well settfed that

the’ exemption provisions of the Wage and Hour

oActmusibe constesed-stréetly: not broadly-and-that—--~ ~..

_its remedial provisfons ‘must’ be construed liberally, -

a » so that the -|Wage and Hour] Act's words will ac-.

complish the purpose at. which ‘the Act is aimed.”

: 704F. Supp.. at 504. See also, 185 F. 2d 74, at 77.

[t may have Been proper to’give a strict-construction to

the RLA exemption to the overtime provisions of the FLSA,

at a time when there was no contrary determination of RIA

coverage, in order to effectuate the “remedial provisions”

of the FLSA, where the necessary consequence of not

; « doing se would be to deprive the employees of all statutory

| protection in respect to ‘overtime. But it cannot follow

from that, as the court below thought it did. that the cover-

age of the RLA in this case is to be similarly confined. The

objective ‘here is not application of the femedial provisions

of the FIZA: achievable only by: a narrow construction

of its exemption grovision, but appheation of the remedial

provisions of the RLA, which the MB beliey& is required

by that Act sgavowed purpose: and a plaifreading of its

neo words, aly ci mMsequence Gf such appliGation is not the |

‘ deprivation of statutory protection but the substitution of-

one’ set of statutory procedures (RLA) for ‘another

(NLRA).™

Vlackson was affirmed in part and reversed.in part. sub nom

Vorthwest Airlines, Inc. v. Jackson. 185 F. 2d 7% (8th Cir. 1950). '

\ petition for certiorari by the plaintiff—not the ‘carrier—solely on

the question of the applicalgity of the Portal-to-Portal Act of 1947

was denied. 342 U.S 8127/1051,” ¥

The only other decision relied upon by the Court o1 Appeals

was Northwest Awlines.Inc.. 47 N. 1... R..B. 498 (1943). mn whteb’

the NLRB dismissed. for lack of ‘Surisdigtion, a certihcaticn petition.

MEO...

: er,

; 23

Effect of the Conte of Appeals Decision. Wyk e

~The - nature of Pan Am’s labor - celations With all its

employees over the past sever years has been compelled by

‘the cor@istent-NMB decisions. Pan Am has, under the

RLA, applied its. system-wide contract with TWU (and

cther system contracts with other unions ) to its NRDS

~~-~-employegs as “well ‘as ‘to its employees at. Canaveral, Fort

- Huachuca, ‘and it its ‘Zirtie--stations. The NMB's déterm-

ination that the RLA is applicable to Pan Am’s NRDS

_@s part and parce! of [Pan Am|

‘has not been directly rev lew ed by any court and must there-.

fore be presumed to be in full force and effect. Accord-

ingly, Pan Am is bound in law to continue to discaarge its

“many statutory obligations: under. the RLA both for its.

NRDS and ‘its airline station. employees. See: @g., 45

U.S. C. §§-152, 156- 158, 160, 184. "App. BL pp. 45a.

494, 31a).

The Court of Appeals rear not reviewed, bint only dis-

agreed with, the prior NMB deci. That court believes

that the Nationai Labor Relations Act, not the Railway

Labor Act. governs Pan Am’s labog relations at NRDS.’

_and presumably at othértspace sites. This Court should

review the judgment. below in order that the applicable law

be tinaliy and definitively determined. and the irrecgncilable

filed by the UAW - for a - of Northwest Airlines” bomber mod:

fication employees. The NILRED said that since the NM had -not

declined to assume jutriscie tion in thé case. it (the NLRB) would

not undertake to assert jurtsdiction. 47 N. L. R. B., at 501-02. On

re hearing, the NLRB adhered to'its previous decision, 51 NL. R.B

1012 (1943). and said. a> 2 further reason why it could not assert

carrier activities as to preclude a finding that the Project fs a sepa-

rate and distinct enterp wise. 5] N. L. R. B... at 1015. Signinics aptly.

the NMB here has found that “the activities fat NRDS] have’ suc

a functional, relatioush!p to the over-all operations of { Pan Am] that

assertion. jurisdiction is mandated by thef RIA ¢ App. A. p

42a). te Sym 1950, the NMB said that “|the Canaveral project!

~ (App. A, p. 38a)...

“)

s Caeaasion. that eg fatrline’s} project’ 1s se integrated with its °

—_—

“

“Ss

disparity between the court below and the NMB reso

Indeed. there seems to be no-other way-in which this |

nificant conflict can be determined, for, despite. the decistor

of the court below that the RLA does not apply to a c: re

rer’s non-transportation empiyiyees,”” the NMB has deciddd sae

that it does, has asserted its jurisdiction over Pan .Am’s

NRDS employees and, presumably, will continue te do so. \

‘

Conclusion - heey eee:

‘For the reasons stated’ it is respectfully submitted’ that

this petition fora weit of certiorari should bdjgranted “> *

Dated: New York, New York ni :

January 3, 1964

Respectfully submitted, .°

ty eae ae *-?. JESSE Ereiprn :

ee O.. Attorney for Petitioner .

MurRRAy GARTNER, ,

RicuaArn H. Borow, |

. OF Counsel

. *"The ‘question has Sgmificance to all -carriers. “rail and air

For example, the WMis has held that powerhouse employees, auto-

nytive mechapics, maintenance mechanics, carpenters, painters, up-

lielsterers, and maintenance and engine¢ring employees, ail emploved

by the Union Pacific Railroad Co, at its ski-lodge operations at Sun

Valley, Idaho, are employees within the scope of the RLA, and that.

the NMBE. has Jurisdiction over representation disputes » affecting

them. Jn the Matter of Representation of Employees of the Union

Pac. R. Co. (Sun Loailey “Operations, NMB Case: No R-2111.

(19305) 2 Determination or raft or’Clasé ef the National Mediation

Hoard 113. The record of that Proceeding shows that.-those en-

? og? . —_— ve - | 7 - - } ¢ “

pioyees were not engaged in transpertation. but were exchusivel,

7 > .

- 4

. ry “

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.