Metcalf v. NATIONAL AIRLINES, INCORPORATED, 17773.

• Decision Date: 01 December 1959
• Docket Number: No. 17773.,17773.
• Parties: Paul I. METCALF, Jr., Appellant, v. NATIONAL AIRLINES, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

271 F.2d 817 (1959)

Paul I. METCALF, Jr., Appellant, v. NATIONAL AIRLINES, INCORPORATED, Appellee.

No. 17773.

United States Court of Appeals Fifth Circuit.

December 1, 1959.

Wyatt Johnson, Miami, Fla., Hoffman, Kemper & Johnson, Miami, Fla., for appellant.

Alfred L. McCarthy, Miami, Fla., Scott, McCarthy, Preston, Steel & Gilleland, Miami, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from an order dismissing the complaint of Metcalf suing for "two days pay" as a clerical employee of appellee, National Airlines, Inc. Both parties are residents of Florida. Thus no jurisdiction rests in the Federal courts to entertain this suit by reason of diversity of citizenship or because it "arises under the constitution, laws, or treaties of the United States."¹ The single question thus posed, is agreed to by the parties:

"May an airline employee sue under 45 U.S.C.A. 153(p) in federal district court to enforce the award of an airline system board of adjustment established under 45 U.S. C.A. 184?"

The complaint in this case alleged that the appellant was a clerical worker who had been laid off without the requisite notice provided for in the collective bargaining agreement in effect between employees and the airline; that all the required procedural steps had been taken and the dispute thus arising had been submitted to the system's adjustment board; that the board had made an award of "two days pay" to appellant, but that the company had failed and refused to make payment.

The theory on which appellant contends that he is entitled to bring his action in the district court is that the Railway Labor Act, 45 U.S.C.A. § 153, sets up a National Railway Adjustment Board; that disputes of the kind here involved relating to the construction of collective bargaining agreements, if not settled within the company's grievance procedures, may be taken by either party to this National Adjustment Board; that if its order is not complied with by the carrier then under the express provisions of subsection (p) of Section 153 the employee is given the right to sue on the award in the federal district court; finally that Congress has made these provisions of the Railway Labor Act applicable to like situations arising in the air industry.

The fallacy with this reasoning is that the provision of the law which makes the National Railway Labor Act applicable to air carriers and their employees is couched in this language:

"Application of sections 151, 152, and 154-163 to carriers by air.

"All of the provisions of sections 151, 152, and 154-163 of this title are extended to and shall cover every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service." 45 U.S.C.A. § 181.

"Same; duties, penalties, benefits, and privileges.

"The duties, requirements, penalties, benefits, and privileges prescribed and established by the provisions of sections 151, 152 and 154-163 of this title shall apply to said carriers by air and their employees in the same manner and to the same extent as though such carriers and their employees were specifically included within the definition of `carrier\' and `employee\', respectively, in section 151 of this title." 45 U.S.C.A. § 182.

The significant thing here is that Section 153 of the Railway Labor Act, which is omitted from those which are thus made applicable, is the section which contains subsection (p) which confers federal jurisdiction for suits on awards by the National Railway Labor Adjustment Board. Moreover, instead of enacting provisions for the air industry similar to those of Section 153 relating to railroads Congress enacted Sections 184 and 185, which, in substance, required every carrier and its employees to create a board of adjustment "of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system, group, or regional boards of adjustment,² under the authority of section 153 of this title." (Emphasis added.)

Congress made even more clear that it was not elevating to the same rank the status of an award by such system board in the airline industry as was granted to an award of the National Railway Labor Adjustment Board by then providing in Section 185 for the future creation of a similar National Board for the air industry when in the judgment of the National Mediation Board "it shall be necessary to have a permanent national board of adjustment." In such event, by the precise language of the section "* * * hearings shall be held, findings and awards made, stated, served, and enforced * * * in the same manner and to the same extent as provided with reference to the National Railroad Adjustment Board by section 153 of this title."

Thus, the legislative scheme is complete. All the provisions of the Railway Labor Act are adopted for the air industry except section 153; instead of giving similar...