AIR LINE STEW. & STEW. ASS'N, INTERN. v. NORTH. AIR.

• Decision Date: 10 June 1958
• Docket Number: Civ. No. 3-57-110.
• Parties: AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, INTERNATIONAL, Petitioner, v. NORTHWEST AIRLINES, Inc., Respondent.
• Court: U.S. District Court — District of Minnesota

162 F. Supp. 684

AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, INTERNATIONAL, Petitioner, v. NORTHWEST AIRLINES, Inc., Respondent.

Civ. No. 3-57-110.

United States District Court D. Minnesota, Third Division.

June 10, 1958.

Lee Loevinger, Minneapolis, Minn., Lee Leibik and Ruth Weyand, Chicago, Ill., by Lee Leibik, Chicago, Ill., for petitioner.

Dorsey, Owen, Barker, Scott & Barber, Minneapolis, Minn., by Henry Halladay, Minneapolis, Minn., for respondent.

DONOVAN, District Judge.

This case is before the court on petitioner's motion for summary judgment.¹ The motion is based upon the pleadings, exhibits and affidavits filed with the court. The parties will be referred to as petitioner and respondent.

The file reveals that respondent is a common carrier by air in interstate and foreign commerce, operating domestic and foreign routes under certificates of public convenience and necessity issued by the Civil Aeronautics Board. It flies a foreign route from Seattle, Washington, to Anchorage, Alaska, or Shemya, Aleutian Islands, to Tokyo, Japan; and from Tokyo to Seoul, Korea; Okinawa; Manila, Philippine Islands; and Hong Kong, through intermediate points.

Petitioner has been duly authorized and designated by the National Mediation Board to represent the craft or class of Airline Flight Pursers, Flight Service Attendants and Stewardesses employed by respondent for the purposes of the Railway Labor Act,² hereinafter referred to as the Act.

The instant case stems from a dispute arising out of respondent's hiring foreign nationals as pursers and attendants on flights between Tokyo, Seoul, Manila, Hong Kong and intermediate points referred to by disputants as routes "south and west of Tokyo." The dispute was initiated by a group of respondent's employees filing a grievance with the petitioner's and respondent's System Board of Adjustment, charging that the criticized practice violated the governing employment agreement between the parties.

The employees were awarded a decision in the hearing on said grievance to the effect that the employment agreement had been violated by employment of foreign nationals on routes south and west of Tokyo. Respondent contended the award (known as the "Lindquist Award") was impossible of implementation. Extended negotiations between petitioner and respondent followed with a view to compromise. These culminated in a mediation agreement which provided that in the event further contemplated negotiations on the issues were unsuccessful, the respondent's proposals thereon shall be submitted to arbitration under the Act; the specific question to be as follows: "What, if any portion, of the Company's proposals for the use of foreign nationals shall be granted by the Arbitration Board?" This agreement also provided that respondent pay the sum of $10,000 as liquidated damages for any claim or claims arising under the Lindquist Award prior to settlement or arbitration award on the hiring issue, and that thereafter the Lindquist Award be without force and effect.

Failing to reach a settlement, the hiring issue was submitted to arbitration as provided by the mediation agreement. A third member (other than the two representing the disputants) not having been agreed upon, the National Mediation Board, pursuant to the mediation agreement and the Act, appointed the third or neutral member.³

Hearings were had, and determination made by the Arbitration Board. Two members of the Board joined in an award amending the employment agreement to read:

"Award

* * * * * *

"(a) In accordance with the certification (R-1747), made by the National Mediation Board on December 17, 1946, and as amended by the National Mediation Board on October 22, 1948 (R-2079), and June 20, 1950 (R-2295), the Company hereby recognizes the Air Line Stewards and Stewardesses Association, International, as the duly designated and authorized representative of the flight pursers, the flight service attendants, and the stewardesses in the employ of the Company for the purposes of the Railway Labor Act, as amended.

"(b) This Agreement covers all flight pursers, flight service attendants and stewardesses in the employ of the Company who are employed and assigned within the continental limits of the United States and its territories, and of employees in such positions when assigned to those segments of the Company's international passenger flights which originate or terminate in the United States and its territories, and, also, of employees in such positions when assigned at the discretion of the Company on other international passenger flights except as specifically limited herein.

"(1) The Company shall have the right to assign foreign nationals to all cabin attendant positions on all international passenger flights operating over all international routes south and west of Japan including but not limited to the routes to and from Japan to points in Korea, Okinawa, Formosa, the Philippine Islands, Hong Kong, and to and from any other foreign station that the Company many may be certificated to serve, except that one employee covered by this agreement in a classification to be selected by the Company will be assigned to such passenger flights.

"(2) Foreign national cabin attendants assigned to flights under Paragraph (1) of this section will not come within the jurisdiction or scope of this agreement, nor shall any such foreign national employees be covered by nor subject to any provisions of this agreement. * * *"

This award was duly acknowledged and filed with the Clerk of this Court. Petitioner seasonably filed a petition to impeach said award on the ground that it plainly does not conform to the substantive requirements laid down by the Act for such awards.⁴ Specifically, the petitioner alleges that the award is contrary to the provisions of Section 2, Fourth, Sixth, Seventh and Ninth of the Act⁵, in that it:

(a) Deprives the majority of the craft or class of flight pursers, flight service attendants and stewardesses employed by respondent of the rights granted them by the Act to bargain collectively on behalf of all members of the craft or class, and to protect their wages, hours, seniority and other conditions of employment;

(b) Deprives all foreign nationals hired by respondent as members of the craft or class represented by petitioner of their rights under the Act and the Fifth Amendment to the Constitution to be represented nondiscriminately by the petitioner and to enjoy the same collectively bargained rates of pay, hours, seniority and conditions of employment applicable to all members of the craft or class;

(c) Requires the petitioner to violate its duty under the Act and the Fifth Amendment to represent all members of the craft or class fairly and without discrimination because of race, color, citizenship or national origin.⁶

The respondent's answer admits all the allegations of the petition except that it denies that portion of paragraph 4 which alleges that petitioner is certificated by the National Mediation Board to represent a system wide craft or class comprising all of the employees of respondent in the designated job classifications wherever they are stationed and whatever their race, color, citizenship or national origin, and paragraphs 8, 9 and 10, in which petitioner sets forth its reasons why the award should be impeached. The answer alleges that insofar as this court should support petitioner's position, the petitioner is not the proper party to represent the foreign national employees of the respondent.

The issue is thus raised whether the Act applies to respondent and its employees with respect to its flights between points outside the continental United States and its territories. If, as petitioner contends, the Act applies to such flights, those portions of the award which permit respondent to bargain independently with foreign nationals employed by it as cabin attendants (hence within the craft or class which petitioner has been certificated to represent) would violate Section 2, Fourth, of the Act,^* and the entire award would, by statutory command, be set aside.⁷

The question is not wholly one of first impression. In Air Line Dispatchers Ass'n v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685, certiorari denied 342 U.S. 849, 72 S.Ct. 77, 96 L. Ed. 641, the Court of Appeals for the District of Columbia concluded that the National Mediation Board had properly dismissed an application looking to certification under the Act. In 189 F.2d 690, 691, the court stated:

"Turning to the merits of the decision made by the Board, we agree that the Act does not extend to an air carrier and its employees located entirely outside the continental United States and its territories. The basic statute, the Railway Labor Act, defines the carriers to which it applies as `any * * * carrier by railroad, subject to chapter 1 of Title 49 Interstate Commerce Act * * *.' (45 U.S.C.A. § 151,

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