# Petition for Writ of Certiorari — Pan American World Airways, Inc. v. United Brotherhood of Carpenters & Joiners Local Union 1780 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1531%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 964 ## Text Q & . - 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 ee , 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 om” « tar bg i ‘ oe ge . i e : f Ss vt . P, : '- TABLE OF CONTENTS . 2 yf ; a ae a 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 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 , a / » oe re . B F ‘ Pc & - ? » a ° yar oath Att -Raiiway Labor Act, 45 U.S.C. & 151-188 (1958) ° ‘67a 7 LT WW ioe 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 e oo , 5 4- : oe * c * ' e 5 . ve ° a ~ _ #8 we ee eh Ee era nN Dee o . * : * F * : ; ; : F ; Lod co * e + . s * ° be ‘ : | a a vane! SRR g oS ee ‘Supéeme Court nf the - nited Statis prt 4 ee 3 oe ensue TER, 1963 : . - o> oe. 5 te 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. f. - “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 * : >. > ~*~ ° ef 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- LS > . 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, ” dy 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, © : a 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 . ee e * “_ ad * . . a ss rd ’ ? in 7 , vt oe , \ = 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). . .. > e ° . VF . e i) c . 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. 2 ov ? ti “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] 6 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 A vA « & 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). . rd cat ®The IAM withdrew tfrone the action hefore decision and it was prosecuted*by the individual plaintiffs. “The TWU became a parts ‘ by intervention. ; 2 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). Fa ~~ 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 a ins ey . 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- > 10 ao 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, Oo . — 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 a 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 g 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 V6 “ \ . 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 © NRDS. who, the NMB found, perform wotk substantially 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 ¢ 3 past seven years, should be Riven great weight. The Court - to the Rle\. ‘The NMB had expressed no yiew respecting - 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. te 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. ® . 0 - 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 -? t 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 ~ i ° . ‘ . % : ce . . * ’ q s . J o oe . “YS a ; - e e. a a > "RDS e°: 2 ® Ao 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: : ae . “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 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 | 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 ts OR 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 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 © employees and that the Board’ has ‘jurisdiction over them _@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 ° —_— 24 “ “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, eliplowed wand arctnd the shi-iedge maintained by the railroad. © ~~ 7 > . - 4 . ry “ . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1531%3A02. Public record. Not legal advice.