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04/11/75 Union of Professional v. Civil Aeronautics Board

April 11, 1975





UNION OF PROFESSIONAL AIRMEN (an affiliate of the Air Line

Petition for Review of an Order of the Civil Aeronautics Board.


Bazelon, Chief Judge, and Leventhal and Robb, Circuit Judges. Opinion for the Court filed by Circuit Judge Robb.


This is a petition by Union of Professional Airmen , to review an order of the Civil Aeronautics Board . The order dismissed a complaint filed by UPA against Shawnee Airlines, Inc., based upon alleged violations of the Railway Labor Act by Shawnee. The ground of the dismissal was that the Board lacked jurisdiction over the complaint. The issue presented here is whether the Board lacks jurisdiction to enforce compliance with the Railway Labor Act against an air carrier which, by virtue of a general Board exemption, has been authorized to provide air transportation without a certificate. We affirm the Board.

Section 401(a) of the Federal Aviation Act, 49 U.S.C. § 1371(a), provides that "No air carrier shall engage in any air transportation unless there is in force a certificate issued by the Board authorizing such air carrier to engage in such transportation." Section 401(k)(4) of the Act, 49 U.S.C. § 1371(k)(4), provides: "It shall be a condition upon the holding of a certificate by any air carrier that such carrier shall comply with sections 181 to 188 of Title 45 [title II of the Railway Labor Act, as amended]". Section 416(b)(1), 49 U.S.C. § 1386(b)(1), authorizes the Board under certain conditions to exempt an air carrier from the requirement of certification. Pursuant to this authorization the Board by regulation, 14 C.F.R. § 298.11(a), has exempted air taxi operators *fn1 from the requirement that they obtain certificates. As a "scheduled air taxi operator" Shawnee Airlines operates under such an exemption.

UPA is a labor organization established for the purpose of representing crew members in the employ of air taxi operators, commuter airlines and similar carriers. In 1971 UPA was certified by the National Mediation Board as collective bargaining representative for Shawnee pilots under the Railway Labor Act. The UPA complaint to the CAB in the case before us charged that before UPA was certified as collective bargaining representative Shawnee discharged five pilots for attempting to organize and select a collective bargaining representative, and that by this and other specified acts Shawnee violated the collective bargaining rights of UPA and the pilots. UPA further charged that (1) following the certification of UPA as collective bargaining representative, Shawnee discharged an additional pilot, who was chairman of the Shawnee Pilots' Master Executive Council and Negotiating Committee, solely on account of his union activities, and (2) Shawnee failed and refused to bargain in good faith with UPA during negotiations for an agreement covering rates of pay, rules and working conditions. The complaint alleged that by these acts Shawnee violated and continued to violate the collective bargaining provisions of the Railway Labor Act, 45 U.S.C. § 152, First, Second, Third and Fourth, *fn2 and section 401(k)(4) of the Federal Aviation Act, 49 U.S.C. § 1371(k)(4).

UPA prayed for an order from the Board (1) directing Shawnee to cease and desist from the acts and conduct complained of, (2) directing Shawnee to take immediate and effective measures to comply with section 401(k)(4) of the Federal Aviation Act and with the Railway Labor Act, (3) directing Shawnee to offer immediate reinstatement to the discharged pilots and to make them whole for all losses suffered, and (4) providing that in the event of Shawnee's failure to do so, its authority to engage in air transportation be terminated or revoked.

Shawnee answered the complaint, conceding that it was required to comply with title II of the Railway Labor Act as a condition of holding any certificate to engage in air transportation, but denying that it had been guilty of the violations alleged. The CAB's Bureau of Enforcement concluded that there were reasonable grounds to believe that the Act had been violated and that a formal investigation by the CAB would be in the public interest. Thus, on January 20, 1971 the Bureau docketed a petition for enforcement, thereby instituting an enforcement proceeding against Shawnee Airlines. 14 C.F.R. § 302.206.

Shortly before the hearing on UPA's complaint Shawnee filed a motion to dismiss for lack of jurisdiction. The ground of the motion was that by its terms section 401(k)(4) of the Federal Aviation Act applied only to an air carrier operating under a certificate authorizing such air carrier to engage in transportation, and that since Shawnee operated not under a certificate but under the Board's authority to permit operations without a certificate, section 401(k)(4) did not apply. UPA and the Bureau of Enforcement opposed the motion, contending that it reflected an incorrect interpretation of the Act. Briefs on the jurisdictional issue were filed by all parties and the hearing was postponed pending disposition of the motion. On March 14, 1973 the Board granted Shawnee's motion and dismissed the enforcement proceedings. CAB Order 73-3-43.

"We are unable to conclude" said the Board, "that section 401(k)(4) charges the Board with responsibility for ascertaining whether an air taxi operator is in violation of the Railway Labor Act or vests any special jurisdiction in it with respect to any such violation." The Board reasoned that the fourth subsection of section 401(k) of the Federal Aviation Act, 49 U.S.C. § 1371(k)(4), which conditions "the holding of a certificate" upon compliance with the collective bargaining provisions of the Railway Labor Act, "is restricted to certificated carriers and does not extend to air taxis. Thus, subsections (1) and (2) are worded to apply to 'every air carrier,' whereas subsection (4) is expressed in terms of 'the holding of a certificate by any air carrier.' Such a variation in the language within a section of the Act substantiates the view that the Congress intended the subsections to have differing applicability . . .." *fn3 Although section 416(b)(2) of the Act, 49 U.S.C. § 1386(b)(2), provides, with certain specified exceptions which do not include subsection 401(k)(4), that the "Board shall not exempt any air carrier from any provision of subsection (k)" of section 401 (49 U.S.C. § 1371(k)), the Board thought that since subsection (k)(4) in terms applied only to carriers holding a certificate, that section "itself contains a built-in limitation upon its applicability." Moreover, the Board perceived "no showing that an application of section 401(k)(4) other than in accordance with its literal terms is required to achieve any of the objectives of the Federal Aviation Act." Finally, the Board summarized its position, saying "the Board declines to assume the role of a general labor board for the airline industry. The Board is of the opinion that the UPA complaint does not state facts which warrant an investigation or other action by the Board, and the complaint will be dismissed." *fn4

Both parties in their briefs have delved into the legislative history of section 401(k)(4), and we have carefully considered the materials produced by their research. We find that the question now presented was not discussed or mentioned in any legislative hearing or debate and apparently never occurred to those who drafted and enacted section 401(k)(4) and its statutory predecessors. Nevertheless, since the petitioners rely heavily on their interpretation of the legislative history of the statute we briefly trace its background.

We begin with the Air Mail Act of 1934, ch. 466, 48 Stat. 933. This statute was enacted in the wake of the cancellation of air mail contracts by President Roosevelt February 19, 1934. On March 7, 1934 President Roosevelt wrote to Senator McKellar recommending new legislation to provide for the air mail service and govern the award of air mail contracts. The President's letter, which appears at 78 Cong. Rec. 4041 (1934), suggested a number of provisions which should be incorporated in the new law. One suggestion was "Public safety calls for pilots of high character and great skill. The occupation is a hazardous one. Therefore, the law should provide for a method to fix maximum flying hours, minimum pay, and a system for retirement or annuity benefits." On March 9, Senator McKellar took the ...

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