Air Line Stewards, Etc., Ass'n v. Northwest Airlines, Inc.

• Decision Date: 26 June 1959
• Docket Number: 16060.,No. 16059,16059
• Citation: 267 F.2d 170
• Parties: AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, International, Appellant, v. NORTHWEST AIRLINES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F.2d 170 (1959)

AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, International, Appellant, v. NORTHWEST AIRLINES, INC., Appellee.

Nos. 16059, 16060.

United States Court of Appeals Eighth Circuit.

May 29, 1959.

Rehearing Denied June 26, 1959.

Ruth Weyand, Washington, D. C. (Lee Leibik, Chicago, Ill., and Lee Loevinger, Minneapolis, Minn., were with her on the brief), for appellant.

Henry E. Halladay, Minneapolis, Minn. (Dorsey, Owen, Scott, Barber & Marquart, and Edward J. Schwartzbauer, Minneapolis, Minn., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

Air Line Stewards and Stewardesses Association, International, hereinafter referred to as the Association, instituted this action by petition to impeach an arbitration award issued in a controversy between employees whom the Association claims to represent and the employer, appellee, Northwest Airlines, Inc., hereinafter referred to as Northwest. The controversy giving rise to the arbitration award arose out of disagreement between the Association and Northwest over the terms and conditions of employment to govern employees of Northwest who are hired to perform duties as flight service attendants, stewardesses or pursers on the entirely foreign segments of flights between the United States and Japan, Korea, Okinawa, Taiwan, Hongkong or the Philippines. The Association took the position that it was the certified bargaining agent of all persons hired by Northwest within the craft or class of flight service attendants, stewardesses and pursers; that it was willing to admit to full membership Northwest employees within the craft or class and to represent such fairly and nondiscriminatorily, and therefore it had the right and the duty to bargain collectively with Northwest with respect to rates of pay, hours, seniority, and other terms and conditions for such persons. The basic issue is whether or not the Railway Labor Act, 45 U.S.C.A. § 151 et seq., as amended to include common carriers by air engaged in interstate or foreign commerce, 45 U.S.C.A. § 181 et seq., covers the employees of a common carrier by air who are hired outside the United States and its territories and perform services entirely outside the United States and its territories.

The arbitration award which the Association attempted to impeach in this action provided:

"(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, Hongkong, 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. * * *"

The District Court considered the contentions of the Association as hereinafter referred to and in a clear and logical opinion, Air Line Stewards and Stewardesses Association, International, v. Northwest Airlines, Inc., D.C.Minn. 1958, 162 F.Supp. 684, held that the Railway Labor Act as applicable to air carriers does not include employees who are crew members on flights between points outside the continental United States and its territories, thus sustaining the award. The Association here seeks reversal of that holding.¹

As we see the problem, it is solely one of proper interpretation of the jurisdictional applicability of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.

The Railway Labor Act provides, § 151:

"First. The term `carrier\' includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, * * *." (Emphasis supplied.)

And:

"Fifth. The term `employee\' as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect, and as the same may be amended or interpreted by orders hereafter entered by the Commission pursuant to the authority which is conferred upon it to enter orders amending or interpreting such existing orders: * * *." (Emphasis supplied.)

The Interstate Commerce Act, 49 U.S. C.A. § 1(2), restricts coverage as follows:

"Transportation subject to regulation

"(2) The provisions of this chapter shall also apply to such transportation of passengers and property and transmission of intelligence, but only insofar as such transportation or transmission takes place within the United States, * * *." (Emphasis supplied.)

In 1936 Congress extended the Railway Labor Act to include carriers by air, 45 U.S.C.A. §§ 181-188.

"§ 181. 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."

"§ 182. The duties, requirements, penalties, benefits, and privileges prescribed and established by the provisions of section 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." (Emphasis supplied.)

It seems to us inescapable that the Railway Labor Act, which incorporates by reference pertinent provisions of the Interstate Commerce Act, is limited in its territorial scope by 49 U.S.C.A. § 1(2), supra. Sections 181 and 182 extend the provisions of the Railway Labor Act to air carriers and their employees. The legislative history of the act which extended the Railway Labor Act to include air carriers and their employees indicates that it was the intention of the Congress by such amendment to give the same range to employees engaged in air transport as would be invoked by men engaged in railroad employment.

The question of the applicability of the act to employees with respect to air flights between points outside the continental United States and its territories is not raised here for the first time. The Court of Appeals for the District of Columbia, in Air Line Dispatchers Association v. National Mediation Board, 1951, 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, met the issue squarely and held, 189 F.2d at page 690:

"* * * the Act does not extend to an air carrier and its employees located entirely outside the continental United States and its territories."

The Association claims here that the Air Line Dispatchers case is distinguishable on the facts as well as "wrongly decided". It is pointed out that the carrier in the Air Line Dispatchers case did not conduct flights to or from the continental United States or conduct operations within the continental United States, and that the flight dispatchers performed their work entirely on foreign soil and were not members of the crew of an airplane and did not perform any of their work upon or within any airplane. Such distinguishing factors, however, were not made the basis of the court's decision in the Air Line Dispatchers case. The court there held, without equivocation or exception whatsoever, that the Railway Labor Act as extended to include air carriers was limited to the continental United States and its territories. We agree with the District Court that the Air Line Dispatchers case is in point and persuasive.

Of significance here is a Senate committee's conclusion in 1955 that the Railway Labor Act had been interpreted by the National Mediation Board and the United States Court of Appeals for the District of Columbia not to cover employees based abroad and the Congress' failure to thereafter amend the act so as to include such employees. The committee stated:

"The act as it is presently worded has been interpreted by the National Mediation Board and the courts not to extend to employees of air carriers based outside the continental limits of the United States and its territories. In 1949, the National Mediation Board ruled that title II of the Railway Labor Act does not cover foreign-based employees. The Board\'s ruling was based on the view that to extend the act to cover employees based abroad would bring this labor legislation into direct conflict with labor laws of foreign countries. In addition, the Board held that to attempt application of the Railway Labor Act in a foreign country, rather than the law of the country, would be a challenge to its national

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