Pan American World Airways v. UNITED BRO. OF CARPENTERS

• Decision Date: 05 November 1963
• Docket Number: No. 18822.,18822.
• Parties: PAN AMERICAN WORLD AIRWAYS, INC., Appellant, v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 217 (1963)

PAN AMERICAN WORLD AIRWAYS, INC., Appellant, v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, etc., et al., Appellees.

No. 18822.

United States Court of Appeals Ninth Circuit.

November 5, 1963.

Poletti, Freidin, Prashker & Harnett, and Jesse Freidin, New York City, Pillsbury, Madison & Sutro, and Eugene M. Prince, San Francisco, Cal., for appellant.

Carroll, Davis, Burdick & McDonough, and Roland C. Davis, San Francisco, Cal., for appellee Culinary Workers Union, Local 226.

George Rudiak, Las Vegas, Nev., for appellee Building and Construction Trades Council, etc.

Before MADDEN, Judge of the Court of Claims, and HAMLIN and BROWNING, Circuit Judges.

MADDEN, Judge of the Court of Claims.

This is an appeal from an order of the United States District Court for the District of Nevada, denying the plaintiff Pan American's motion under Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction against the defendant Brotherhood's labor organization and certain individually named respondents restraining them from striking, picketing, and otherwise interfering with Pan American's operations at the Nuclear Research Development Station (NRDS) at Jackass Flats, Nevada.

If the labor law applicable to Pan American's enterprise at this location was the ordinary federal law applicable to most industrial enterprises of substantial size, the District Court was right in denying the injunction because the Norris-La Guardia Act, 29 U.S.C. § 101 et. seq., forbids the issuance of an injunction in cases of labor disputes in such enterprises, in the circumstances of this case. Pan American's contention is that the generally applicable labor law did not apply to its situation; that the special provisions of the federal Railway Labor Act, 45 U.S.C. § 151 et seq., were the applicable law in its case, and that under that law it was entitled to its injunction. If Pan American is correct as to which law is applicable, the injunction should have been granted.

The District Court, though denying the motion for a preliminary injunction, granted a ten-day stay to preserve the status quo pending Pan American's appeal to this court. Rule 62(e), Fed.R. Civ.P. The appeal was taken in time under 28 U.S.C. § 1292(a) (1); and Pan American made a motion in this court for an interlocutory injunction pending appeal, under 28 U.S.C. § 1651(a) and Rule 62(g), Fed.R.Civ.P. The motion was granted, and the appeal has now been heard.

The Railway Labor Act, which Pan American says is the applicable law in this case, when it was enacted in 1926, applied only to railroads. This original part of the Act is in 45 U.S.C. §§ 151-163. In 1936 the Act was amended to include carriers by air. The added sections are §§ 181-188 of 45 U.S.C. Sections 181 and 182 provide:

"§ 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 * * *."

"§ 182. 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."

The reference to section 151 and the other sections of the original act requires that the coverage of the original act be kept in mind in determining the coverage of the new air carrier sections.

Section 151 of 45 U.S.C. in its first paragraph, which is section 1, First, of the Act, says:

"First. The term "carrier" includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad * * *."

So the Railway Labor Act applies to every carrier by railroad which is subject to the Interstate Commerce Act. And Section 1, Fifth of the RLA, 45 U. S.C. § 151, Fifth, says:

"Fifth. The term "employee" as used herein includes every person in the service of a carrier * * * who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect * * *."

The Interstate Commerce Act, involved here by the foregoing reference to the orders of the Interstate Commerce Commission says, in section 1, 49 U.S.C.:

"The provisions of this chapter shall apply to common carriers engaged in — (a) the transportation of persons or property wholly by railroad."

Because Congress thought that it was necessary that railroad transportation of persons and property should not be interrupted by labor disputes, if those disputes could be settled by negotiation and mediation, and certain other procedures, Congress in the Railway Labor Act, 45 U.S.C. §§ 151a-160 provided for the creation of various boards, for mediation, arbitration, and finally for Emergency Boards to be appointed by the President, when important transportation service is seriously threatened by labor trouble. At the time of the 1926 legislation, there were no federal labor relations statutes applying generally to industry or other important activities in the United States. Railroad labor was by the Railway Labor Act given certain advantages over other labor, but it was subjected to certain restraints, and strikes were forbidden unless and until the mediation and other procedures provided for in the RLA had been followed. If strikes or other labor activities imperiling this continuity of transportation occurred in violation of the RLA they could be enjoined, the Norris-La Guardia Act excepting such unlawful activities from its prohibition of injunctions.

The air transportation industry was, then, in effect subjected to the labor provisions of the RLA by the 1936 amendments.

In our instant case, Pan American's operation at the Nuclear Research Development Station where the labor troubles with which we are concerned occurred, had nothing to do with transportation by air or by rail. The United States Atomic Energy Commission had in June, 1963, awarded to Pan American a contract for "housekeeping" and general support services at the Commission's station located at its Nevada Test Site at Jackass Flats. Pan American's work was the preventive maintenance of electrical, electronic and ventilation equipment and such technical functions as the storage and use of liquids, fuels and gases. The work is in connection with the development of a nuclear rocket engine to be used for the propulsion of space vehicles.

It would seem, then, that the same problem of interpretation and application of the pertinent statutes would be presented, if Pan American's management had acquired and were operating a shoe factory for profit. Would the employees in that factory be obliged to comply with the waiting periods and mediation provisions of the Railway Labor Act before they would be free to do what the employees in a clothing factory across the street from them were guaranteed the right to do, viz. to strike if they were not bound by contract not to strike?

The purpose of the restrictive provisions of the Railway Labor Act is to keep transportation moving. If the Act has the effect of keeping employees in a shoe factory working against their will, it would seem that the effect of the Act is not coincident with its purpose. Pan American urges us to keep our attention on the text of the legislation; that the legislation says, in section 1, Fifth, 45 U.S.C. § 151, Fifth:

"The term `employee\' as used herein includes every person in the service of a carrier."

Pan American says, obviously correctly, that it is a carrier, hence the person who works in its shoe factory, or in its NRDS enterprise is an employee within the meaning of the RLA. Even literally and textually the matter is not quite that simple, because the section says more than we have quoted above. It says:

"The term `employee\' as used herein includes every person in the service of a carrier * * * who performs any work defined as that of an employee * * * in the orders of the Interstate Commerce Commission now in effect."

We suppose that the Interstate Commerce Commission did not have in effect any orders relating to employees in a shoe factory, even though the shoe factory happened to be owned by a railroad.

The defendants point to § 151, hereinbefore quoted, which defines the word "carrier" as used in the RLA as including not only railroads themselves, but

"any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad * * *.

The statute thus made certain that railroads could not escape the application of the statute to activities closely related to railroad transportation, by having those activities carried on by subsidiary or controlled enterprises. Here the attention of the statute was upon transportation and activities accessory to transportation. Would Congress at the same time and in the same statute, in § 151, Fifth, have intended to make the...