Interior Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1959

122 N.L.R.B. 1538 (N.L.R.B. 1959)

1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all building service employees, including janitors and
janitresses, employed by the Employer in the operation and main-
tenance of Shell Building in Tulsa, Oklahoma, excluding office
clerical employees, professional employees, engineers, guards and
watchmen, and supervisors as defined in the Act constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
Interior Enterprises, Inc. and Gerald T. Goard , Gary Alan
Hodgins, Frederick H. Keith , James S. Gibson , Robert A. Main,
Donald Eugene Loesche, Sherman C. Krause, Guy Benjamin
Shepard , John Arnold Hovland , Harry A. Ward, Bobby
Fischer, Louis S. Hodges, Lynn M. Flint, Frank B . Gregory,
and Billy D. Shelden
Interior Enterprises, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No . 959. Cases Nos. 19-CA-1509, 19-CA-1509-1 to
19-CA-1509-14, respectively, and 19-CA-1511. February 20,1959
DECISION AND ORDER REMANDING CASE
On July 7, 1958, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent, a carrier by air, is not an employer within the
meaning of Section 2(2) of the complaint on the ground, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate. Report ac-
companied by a supporting brief. The Respondent also filed a brief.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions.
Section 2(2) of the National Labor Relations Act, as amended,
provides:
The term "employer" . . . shall not include . . . any persons
subject to the Railway Labor Act. . .."
In addition to others, not pertinent here, the Railway Labor Act
subjects to its coverage:
122 NLRB No. 180.
INTERIOR ENTERPRISES, INC. 1539
... every common carrier by air ... and every carrier by air
transporting mail for or under contract with the United States
Government . . . (45 USCA section 181).
The facts as to the Respondent's operations, essentially as found
by the Trial Examiner, are as follows:
The Respondent, Interior Enterprises, Inc., is engaged in the air
transport business with its principal place of business located in
Fairbanks, Alaska. Operating about 20 planes, its principal business
consists of air transport of personnel and cargo, including "letters
and parcel post packages," under a subcontract with Federal Electric
Corporation, hereinafter referred to as FEC, which has a prime
contract with the Air Force of the United States for maintenance and
operation of certain military sites hereinafter described.'
The Air Force has an installation known as the DEW (Distant
Early Warning) Line which consists of a number of radar stations
located at various points along the Arctic coast of Alaska and
Canada for warning against air attack. With the exception of two
stations located at Point Barrow and Barter Island, these radar
stations are situated in isolated areas which are not visited by any
regularly scheduled airline and which do not have mail service avail-
able to the general public. The radar stations at Point Barrow
and Barter Island are relatively large installations in inhabited areas
which have permanent U.S. post offices and are regularly served by
Wien Alaska Airlines, a common carrier by air.
As indicated above, the Air Force has a contract with FEC under
which FEC has undertaken operation and maintenance of the DEW
Line stations, whose personnel consists of FEC civilian employees
and Air Force military personnel. Under this prime contract,
among other things, FEC is responsible for transportation of per-
sonnel and supplies, including letters and packages, for the various
DEW radar stations.2
As also indicated above, FEC has a contract with the Respondent,
approved by the Air Force, for "air transportation services for the
logistic support of the DEW Line system." Under this subcontract,
the Respondent undertook to perform, services and to furnish air-
craft -to, be "employed principally for the transportation of personnel;
baggage, contractor (FEC) and Government furnished materials
and equipment, and mail other than mail for the general public." 3
Pursuant to this subcontract, the Respondent transports, in its planes
and with its pilots and other personnel, "vertically" from Fairbanks
'The Respondent also sells 'aircraft and provides maintenance service for aircraft
owned by customers.
2 This prime contract is not in evidence , and the record does not disclose its terms,
except as stated above.
3 Appendix A to this subcontract contained an estimate that such mail would make up
approximately 1.4 percent of the supplies carried.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
north to Point Barrow and Barter Island, and return, and "laterally"
between the various radar stations of the DEW Line.
The Respondent carries letters and packages between Fairbanks
and the various DEW stations. These are handled differently de-
pending on whether they involve civilian (FEC) or military per-
sonnel (Air Force).
A letter addressed to an FEC employee stationed at a DEW sta-
tion would be delivered through regular U.S. post office channels to
FEC's box in the post office in Fairbanks. There it would be picked
up by FEC and delivered to the Respondent for transportation to
the appropriate DEW station. When an FEC employee wrote a
letter to someone in the United States, for example, he would deposit
it in an FEC-furnished receptacle from which FEC delivered it to
the Respondent which transported it to Fairbanks. As no postal
facilities, civilian or military, existed at the DEW stations proper,
the postage stamps affixed to the outgoing letter were not canceled
at the radar station. At Fairbanks, the Respondent delivered such
letter to FEC which delivered the letter to the post office at Fair-
banks where the stamps would be cancelled and the letter placed in
U.S. post office channels for delivery to the addressee.
Letters addressed to military personnel stationed at the DEW
Line were handled by regular U.S. post office channels until delivery
in Fairbanks to A.P.O. 903 at Ladd Air Force Base. The A.P.O.
delivered these letters either to FEC, which delivered them to the
Respondent, or directly to the Respondent, for transportation to the
appropriate DEW station. Outbound letters from military personnel
at DEW stations were handled in about the same way as letters
from FEC employees, until such letters arrived at Fairbanks, where
the Respondent delivered them to the A.P.O. at Ladd Air Force
Base for cancellation of the postage and. placement in regular U.S.
post office channels.
In addition to the above, the Respondent also handled letters to
and from personnel of naval and merchant vessels which, for "a few
weeks during the summer," visit DEW stations, bringing supplies.
These vessels pick up and dispatch letters at the DEW stations
visited in about the same manner as in the case of the permanently
stationed DEW personnel. However, some of these vessels had on
board ship military personnel acting as mail clerks who were au-
thorized to cancel postage on outgoing letters. As a result, some
letters from these ships had stamps canceled on board ship. Such
letters, when brought by vessel to Point Barrow or Barter Island,
were usually transported to Fairbanks by Wien Alaska Airlines, a
common carrier. However, the Respondent transported ship mail,
both canceled and uncanceled, to Fairbanks.
The Respondent has not been authorized by the Civil Aeronautics
INTERIOR ENTERPRISES , INC. 1541
Board to engage in air transportation as a common carrier. During
all times material , the Respondent had no contract directly with the
U.S. Government.
The alleged unfair labor practices , namely , discriminatory dis-
charge of 15 pilots and refusal to bargain , occurred in about
August 1957.
On August 15, 1957, the pilots wrote to E. C. Thompson, executive
secretary , National Mediation Board, a letter complaining of these
unfair labor practices . This letter contained no facts with respect
to the nature of the Respondent 's business . On August 21, 1957,
Thompson replied, in pertinent part:
The Railway Labor Act , which is administered by this Board
under the provisions of Title II, has jurisdiction over every
common carrier by air engaged in interstate or foreign commerce.
Information available to this Board indicates that Interior
Enterprises , Inc., is not certificated by the Civil Aeronautics
Board either as a scheduled or non-scheduled air carrier. Ap-
parently , Interior Enterprises , Inc., operates as a private contract
carrier. As such it would not be subject to the jurisdiction of
this Board.
In view of these circumstances , it is suggested that you contact
the National Labor Relations Board, ... for assistance.
Thereupon, the instant charges were filed with the Board.
At the hearing , the Trial Examiner rejected the General Counsel's
offer in evidence of the Thompson letter, referred to above, "as an
attempt to prove jurisdiction of the Board ( NLRB ) by an opinion
of NMB (National Mediation Board) without even showing that
NMB knew of the facts hereinabove set forth ." In his Intermediate
Report, the Trial Examiner reversed this ruling to the extent of
admitting the Thompson letter for the limited purpose of showing
that the NMB was notified of the existence of a controversy and
that it "declined to assert jurisdiction."
The Trial Examiner concluded that the Respondent "is carrying
mail for the United States Government ," and thus "is not an em-
ployer within the meaning of Section 2(2) of the Act ." In sub-
stance, he reasoned that the Respondent's functions under its contract
with FEC were performed for the "end benefit" of the United States
Government , particularly as this subcontract required the Respond-
ent to keep available aircraft for the sole use of FEC for the support
of the DEW Line; and that, by "consenting to the Respondent's
subcontract, the Air Force created a form of privity of contract
which, if it did not bring the Respondent into direct contract with
the United States Government for carrying mail, certainly helped
to remove any doubt that the Respondent was expected to, and did
carry mail for the United States Government."
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the Trial Examiner recommended dismissal of the
complaint.
We do not agree. Admittedly, there was no direct contract between
the Respondent and the U.S. Government. This fact alone renders
inapplicable here that portion of the Railway Labor Act which
covers "... every carrier by air transportation mail ... under con-
tract with the United States Government." However, the Respond-
ent and the Trial Examiner suggest that there existed, by virtue
of the Air Force's approval of the subcontract here, a privity of
contract between the Respondent and the U.S. Government. It is
true, as the Trial Examiner found, that the Postmaster General has
statutory authority to approve subcontracts for the carriage of mail
and that the statutory scheme in existence confers rights upon the
subcontractor as against the U.S. Government , as for example, to
compensation for services. But, contrary to the Trial Examiner, the
Air Force, with respect to its military postal service, is not in a
position comparable to that of the Postmaster General with respect
to the civil postal service. Although Congress has authorized the
appointment of military personnel to receive, deliver, and dispatch
United States mail and although the military postal service is an
extension of the civilian postal service operating in conformity with
regulations of the U.S. Post Office Department, so far as appears,
no statutory authority has been conferred upon the military to enter
into any contract for the performance of the duties entrusted by
Congress to military personnel." Moreover, there appears to be no
statute authorizing the military to approve any subcontract for the
carrying of mail. The statutory authority,of the military is limited
to the appointment of enlisted personnel to act as postal clerks and
assistant postal clerks. See 39 USCA 141 (1957 Cumulative Annual
Pocket Part). Although the subcontract here, by its terms, required
approval by the Air Force, the approval given by the Air Force
expressly reserved its rights against FEC, the prime contractor, and
stipulated that the approval created no obligation of the U.S. Gov-
ernment running to the Respondent. On the basis of the foregoing,
we conclude that the Air Force's approval of the subcontract did
not create any privity of contract or other contractual relationship
between the Respondent and the U.S. Government within the mean-
ing of the Railway Labor Act.
We further conclude that the Respondent is not engaged in car-
rying mail within the meaning of the Railway Labor Act for the
following reasons :
4 Cf. Twentier v. U.S., 109 F . Supp . 406 (statute providing for the Army Postal System
means that such System is an extension of the U.S. Post Office Department and, therefore,
if any contract of bailment arises, by implication or otherwise , between one who posts
such mail and the agency handling the mail, the contract must be between the mailer
and the U.S. Post Office Department and not between such mailer and the Army).
INTERIOR ENTERPRISES, INC. 1543
The subcontract here expressly obligated the Respondent to carry
only so-called mail of FEC and Air Force personnel; the Respondent
did not undertake to carry mail of the general public and did not
do so. The responsibility of the U.S. Post Office ended, as to inbound
civilian mail, when such mail was delivered in Fairbanks to FEC,
and, in the case of military mail, to the APO in Fairbanks; in the
case of outbound mail, except for the ship-lift mail, the responsibility
of the U.S. Post Office did not begin until delivery of the so-called
mail to the APO or post office, as the case may be, at Fairbanks.
The amount of ship-lift mail involved appears to be so small as to
be inconsequential; we regard it as de minimis.
We further note that no carrier may engage in the business of
air transportation, which includes the carrying of mail, without a
certificate of authorization from the Civil Aeronautics Board or an
exemption from its certification requirements.-' The record in this
case contains a certificate of M. C. Milligan, secretary, Civil Aero-
nautics Board, dated March 12, 1958, to the effect that CAB records
do not show that it has issued to the Respondent "a certificate or
other authority to engage in air transportation." There is no affirma-
tive showing that the Respondent has received an exemption from
CAB certification requirements and there is no claim that it has
such an exemption. Although the Postmaster General has statutory
authority to enter into a contract for the carriage of mail in Alaska,
even though such transportation has not been authorized by the Civil
Aeronautics Authority (39 USA 488(a), 1957 Cumulative Annual
Pocket Part), so far as appears, the military has no comparable
authority. In view thereof, if the Respondent were engaged in car-
rying mail, it would be operating in violation of law, and thus sub-
ject to criminal penalties (49 USCA Sec. 622). Presumably, the
Respondent is engaging in a lawful rather than an unlawful business.
On the basis of these factors, we are persuaded and find that the
Respondent is not engaged in carrying mail in the statutory sense.
Besides, whatever the Respondent carried, mail or otherwise, the
Respondent engaged in air transportation for FEC, and not for the
Air Force. As already indicated, there was no direct contract be-
tween the Air Force and the Respondent. Although the subcontract
called for Air Force approval and the Air Force approved the sub-
contract, the Air Force reserved its rights against the prime con-
tractor and the subcontract created no rights in the subcontractor
against the U.S. Government. The subcontract required the Re-
spondent to perform its services thereunder under the general super-
vision of FEC, albeit subject to military regulations; and FEC paid
5 "Air transportation," as used in 49 USC 481(a), prohibiting such transportation with-
out a certificate from the CAB, means the carriage by aircraft in commerce of persons or
property as a common carrier for compensation or hire or the carriage of mail by aircraft.
Pacific Northern Airlines v. Alaska Airlines , 80 F. Supp. 592 ( D.C. Alaska , 1948).
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent for its services. Accordingly, we conclude that the
Respondent is not a carrier by air transporting mail for the U.S.
Government.
As the Respondent is concededly not a common carrier by air, nor,
in our view, a carrier by air transporting mail for or under contract
with the U.S. Government, we conclude, contrary to the Trial Ex-
aminer, that the Respondent is not subject to the Railway Labor Act
and is an employer within the meaning of Section 2(2) of the Na-
tional Labor Relations Act.
Because of the nature of the question presented here, we have in
this case, as in other cases in the past, requested the National Media-
tion Board, as the agency primarily vested with jurisdiction under
the Railway Labor Act over air carriers and which has primary
authority to determine its own jurisdiction, to study the record in
this case and determine the applicability of the Railway Labor Act
to the Respondent.' In the present case, we are administratively
advised by the National Mediation Board, under date of January 12,
1959, that ". . . the National Mediation Board has had the record
reviewed and has given the matter careful consideration, neverthe-
less this Board is still of the opinion that it has no jurisdiction over
this company under Title II of the Railway Labor Act...." The
opinion of the National Mediation Board thus confirms our own
view that the Respondent is not subject to the Railway Labor Act.
Accordingly, we shall reverse the Trial Examiner's ruling dismiss-
ing the complaint and remand the case to the Trial Examiner for
further proceedings consistent with this Decision and Order Re-
manding Case.
ORDER
IT IS HEREBY ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner for further proceedings con-
sistent with this Decision and Order Remanding Case, including such
additional hearing as may be necessary and the preparation and
issuance of a Supplemental Intermediate Report, setting forth his
findings of fact, conclusions of law, and recommendations with re-
spect to the unfair labor practices alleged in the complaint.
See, for example, Pan-American World Airways , 115 NLRB 493 , 495, wherein we
reiterated our policy , established in previous cases , that unless the National Mediation
Board definitely declines to assume jurisdiction over employees such as those there in
dispute , this Board will not assert jurisdiction.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by the individuals named in the caption hereof on Septem-
ber 3 and 6, 1957, and upon a charge filed by the Teamsters' Local" named in
1 Successor to Local 183 , which filed the charge . Substitution of Local 959 for 183
was made by amendment to the complaint , dated February 27, 1958, which was duly
served on the parties.
INTERIOR ENTERPRISES , INC. 1545
the caption hereof, herein called the Union , service of which were acknowledged
by the Respondent, the General Counsel for, and on behalf of, the National Labor
Relations Board, herein called the Board, on January 29, 1958, issued a consolidated
complaint alleging that Interior Enterprises , Inc., herein called the Respondent, had
committed unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act, a copy of which, together
with the order consolidating cases and notice of hearing was duly served on the
Respondent, Union, and individual Charging Parties.
In setting out jurisdictional allegations , the complaint states that the Respondent
is engaged in the business of private contract air carrier, is not a common carrier
by air, has not been certificated by the Civil Aeronautics Board as either a sched-
uled or a nonscheduled air carrier, and is not subject to the Railway Labor Act.
With respect to the unfair labor practices, the complaint alleges in substance that
on about August 10, 1957, the Respondent discharged the individual Charging
Parties, herein collectively called the pilots, because of their membership in and
activities on behalf of the Interior Enterprises, Inc., Pilots' Association and because
of their joint activity in presenting to the Respondent a proposed collective-
bargaining contract, and thereafter failed and refused to make a good-faith offer
of reinstatement; that at all times since September 3, 1957, the Union has been
the collective-bargaining representative of the pilots in a unit described as ap-
propriate, and that, although requested by the Union to do so, the Respondent
had failed and refused to bargain collectively with the Union as the collective-
bargaining representative of employees in the alleged appropriate unit and had
interposed certain stated conditions precedent to bargaining, which, although not
so alleged, are on their face illegal. The Respondent's answer, filed on Feb-
ruary 10, 1958, denies that it is engaged in the business of a private contract
carrier, "having been issued by the Civil Aeronautics Administration a commercial
operator's certificate," and denies that it is not subject to the Railway Labor Act.
The answer denied the unfair labor practices alleged.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Fairbanks, Alaska, between March 19 and 28, 1958. The Respondent and the
Union were each represented by counsel and the individual Charging Parties were
represented by one of their number. At the close of the hearing, the Respondent
moved to dismiss for lack of jurisdiction (i.e., because of the Respondent's conten-
tion that it was subject to the Railway Labor Act and hence was not an employer
within the meaning of Section 2(2) of the Act under which these proceedings were
conducted). Ruling thereon was reserved and the motion is now granted for the
reasons stated in section I hereof. Likewise was ruling reserved on the Respondent's
motion to dismiss on the merits. In view of my ruling on the first motion, there
is no need to rule on the second one. At the request of counsel for the Re-
spondent, time was fixed for the filing of briefs. This time was later duly ex-
tended and, within the extended time, briefs were received from the General Coun-
sel and from the Respondent.
From my observation of the witnesses and on the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE RESPONDENT AS AN EMPLOYER WITHIN THE MEANING
OF SECTION 2(2) OF THE ACT
The Respondent's president, James S. Magoffin, started in the air transport busi-
ness with his wife in 1946. They later conducted a flying school but continued to
carry on their charter business. In 1953 they incorporated when they got a con-
tract involving operations which developed into the later contracts mentioned
herein. As a result of negotiations with representatives of Western Electric
Company and a joint enterprise operating under the name of Puget Sound &
Drake, herein called P.S. & D., the Respondent or its proprietary predecessors,
undertook in March 1953 to furnish flying service on what became known as the
DEW line (Distant Early Warning, a defense project), between Barter Island and
several other sites in the Arctic. In addition to carrying workmen and freight,
the Respondent transported mail between the DEW line sites. Thereafter, the Re-
spondent continued under contract with Western Electric Company and P.S. & D.
alternately. Western Electric was the prime contractor under contract with the
United States Air Force; P.S. & D. was a subcontractor under that contract, and
the Respondent's contract with P.S. & D. was a sub-subcontract.
By January 1, 1957, the Respondent had planes stationed at Point Barrow and
Barter Island and, although its principal function was lateral support of the DEW
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line, it did, to a limited extent, participate in vertical hauling from Fairbanks to
the DEW line. As of the latter date,2 the Respondent entered into a contract with
P.S. & D. for the period of January 1 to February 15, 1957, and later into an
identical contract for the period of February 16 to June 30, 1957, under the terms
of which the Respondent agreed to make available to P.S. & D. aircraft with
crews, and P.S. & D. agreed to pay the Respondent on a time or mileage basis
according to a schedule furnished. P.S. & D. had the right to give notice when
aircraft were to be placed in "contract status." These contracts contain, among
others, the following provisions:
5. An aircraft on contract status hereunder shall be for the sole use of
contractor and no other cargo or passengers shall be carried without express
written permission of contractor. . . . The scheduling and dispatch of aircraft
in contract status shall be at the request of contractor [P.S. & D.], but carrier
[Respondent] shall be the sole judge in matters concerning proper flying con-
ditions. . . .
(a) All aircraft . are warranted by carrier to be properly certificated
and licensed in accordance with applicable Civil Aeronautics Administration
regulations or exempt therefrom.. .
(b) All aircraft shall be operated solely by fully certified commercial pilots
and with all other operating personnel fully accredited. .
(d) All operations hereunder and the maintenance of all aircraft by carrier
shall be accomplished in compliance with CAA regulations or an express
exemption therefrom obtained by carrier.
14. All operations under this agreement shall be in accordance with ap-
plicable provisions of the Armed Services Procurement Regulations. This
agreement is subject to the approval of FEC [Federal Electric Corporation]
and the United States Air Force and shall not be binding until so approved.
Any payment to be made by contractor under this agreement is subject to
prior approval and allowance by FEC and by the United States Air Force....
15. The following renegotiation articles shall be deemed a part of this
agreement:
(a) This contract shall be subject to any Act of the Congress of the United
States of America . . . providing for the renegotiation of said contract... .
1 6 .
(a) Interior Enterprises agrees that the Comptroller General, of the United
States Air Force, . . . shall . . . have access to and the right to examine any
directly pertinent books, documents, papers and records of Interior Enterprises
involving transactions related to this contract.
17. The performance of work under this sub-subcontract may be terminated
by Federal Electric Corporation and/or the United States Government and/or
Puget Sound and Drake, in accordance with the applicable United States
Government contracts "termination" clause in whole, or from time to time
in part, whenever FEC and/or the Contracting Officer shall determine that
such termination is in the best interests of the government. . . .
On June 19, 1957, the Respondent made a contract direct with Federal Electric
Corporation, covering-the term from July 1, 1957, to June 30, 1958, with an
option of renewal. This contract, although not identical to those which the Re-
spondent had had with P.S. & D., covered similar, although enlarged, air lift
operations. Federal Electric was a prime contractor with the United States Air
Force for operation and maintenance of the DEW line, and the Respondent be-
came, by its contract. with Federal Electric, a subcontractor. The subcontract
was made subject to approval of the United States Air Force Administration Con-
tracting Officer and was stated not to be binding until so approved. Approval
actually was given in October 1957, but the Respondent operated under the con-
tract as made with Federal Electric after July 1, 1957, and the Air Force tacitly
recognized it by direct delivery to the Respondent of some of the mail required
to be carried by the Respondent under the contract. In the definitions clause of
this contract, "airlift" is defined as "the transportation by aircraft of the fixed wing
or rotary blade classification of personnel, cargo, and mail other than for the
general public." The clause on "Use of Aircraft" provides that the "aircraft shall
2 Apparently at about this time Federal Electric Corporation succeeded Western Electric
as the prime contractor.
INTERIOR ENTERPRISES, INC. 1547
be employed principally for the transportation of personnel, baggage, Contractor
and Government furnished materials and equipment and mail other than mail for
the general public to, from, and between stations and locations as indicated on
Schedule `A' [19 DEW line sites] and from such other points within range of the
aircraft as may be required from time to time by the contractor." The same
article of the contract also provides that "The Contractor shall have the exclusive
use of all aircraft on flights undertaken and reimbursed by the Contractor." In
several clauses of the contract, the Respondent's obligations in handling and car-
rying cargo, mail and passengers are set forth. A schedule attached to the contract
itemizes the anticipated weekly airlift of supplies and passengers, sets up specific
vertical and lateral flight routes, and shows which flights are regular flights and
which are irregular. The schedule shows that in the first quarterly period of the
contract, it was estimated that the Respondent would carry a total of 60,644#
(presumably pounds) of which 903 # was to be mail. In the remaining quarters,
the mail was estimated at 404# of a total of 32,575#. That mail constitutes a
very small portion of the total airlift, however, and is not, in my opinion, an
important factor.
The contract specifies that it does not cover the airlift of mail for the general
public, but only a part of the mail carried is to or from personnel of Federal
Electric itself or persons having their mail addressed in care of Federal Electric.
A substantial portion of it is for servicemen located at one of the DEW line sites,
including personnel on ships at any one of such points. Such mail embraces
communications between servicemen and their friends and relatives, and between
servicemen and mail order houses. Such mail, if originating in the States, goes
through U.S. post office channels to APO 903 in Seattle, Washington, and thence
to Fairbanks either by a certificated air carrier in the case of air mail, or, in the
case of ordinary mail, by barge to Valdez and by freight carriers from there to
Fairbanks. The mail carried in the latter manner is paid for by the military and
I infer that the air mail to Fairbanks by way of certificated carrier is paid for
by the Post Office Department. At Fairbanks, the military has its own postal
crew staffed by Army, Navy, and Air Force personnel at Ladd Air Force Base near
Fairbanks, and it receives mail from the States and prepares it in postal pouches
or sacks for the airlift to the various DEW line sites. Sealed bags of registered
mail, in addition to regular mail bags, are among those carried. Although records
of the Air Force show delivery of such mail to Federal Electric, in practice military
trucks sometimes carry it direct to the Respondent's planes at the Fairbanks Inter-
national Airport. This was especially the case in 1957 when the volume of mail
was heavy. At other times, the mail at Ladd Air Force Base has been delivered
to Federal Electric trucks for delivery to the Respondent at International Airport
in Fairbanks. When mail bags carrying mail to military personnel at DEW line
sites are delivered to those sites by the Respondent, the military resumes respon-
sibility for delivery of the mail to its personnel.
Despite the inference raised by the Respondent's answer to the contrary, the
Respondent is not a certificated air carrier. Normally neither the Post Office
Department nor the military postal arm would make a contract for the carrying
of mail by air except with a certificated air line, but certificated air carriers go
to few of the DEW line sites, and the only practical way to take mail to the sites
not served by certificated carriers is either by military planes or by the Respondent's
planes and, as Federal Electric, by its contract with the Air Force, and the Re-
spondent, by its subcontract, are required to make trips there frequently, the Air
Force uses them as the most expeditious means of getting mail to those sites.
Furthermore, this practice avoids extra costs of carrying mail, because cargo has
to be taken to the same sites anyway and the mail can be carried on the same
planes as the cargo cheaper than it can by a flight undertaken for mail only.
If the Respondent is subject to the Railway Labor Act, and thus is under the
jurisdiction of the National Mediation Board, herein called the NMB, the Re-
spondent is not an employer within the meaning of Section 2(2) of the Act, and
the Board here would not have jurisdiction over it. For the purpose of proving
that the NMB does not have jurisdiction in this case, the General Counsel offered
in evidence a certified copy of a letter from NMB to James Gibson, one of the
Charging Parties herein, in reply to a letter written by the latter, setting forth the
basis of the complaint of the Interior Enterprises, Inc., Pilots' Association, herein
called the Association, against the Respondent. Gibson's letter furnished none of
the facts hereinbefore set forth. I rejected the offer as an attempt to prove juris-
diction of the Board by an opinion of NMB without even showing that NMB
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew of the facts hereinbefore set forth.3 The General Counsel takes the position
that the Respondent is not a common carrier by air and is not certificated by the
Civil Aeronautics Board as either a scheduled or nonscheduled air carrier, and he
contends that this means that the Respondent is a private contract carrier not
subject to the Railway Labor Act. Except for the fact that the Respondent carries
mail, this conclusion would undoubtedly follow in view of the fact that the Re-
spondent has not been certificated as an air carrier by the Civil Aeronautics
Authority,4 but the fact that the Respondent carries mail cannot be dismissed as
irrelevant. It must be examined in the light of statutes applicable thereto.
The Respondent does not carry any mail pursuant to any contract or subcontract
to which the Postmaster General is a party. However, the Postmaster General's
authority does not extend to the military postal services, so this lack of participa-
tion by the Post Office Department in the contract is not material. The Post Office
Department, itself, ceases to have any function with respect to the mail here in-
volved after it is delivered to the military through APO 903. From that point on,
the military postal service takes over. Congress has authorized the appointment
of military personnel to receive, deliver, and dispatch United States mail (39 USC
141), and the military postal service is an extension of the civilian postal service
and operates in conformity with the Postal Manual, U.S. Post Office Department,
Title 39, Code of Federal Regulations, and other Post Office Department instruc-
tions as well as military regulations and directions.5
I do not consider it as important that the prime contract for the carrying of the
mail to the DEW line sites was made between the Air Force and Federal Electric
and that the Respondent is merely a subcontractor of Federal Electric. I infer
that it is not an infrequent practice for a contractor for the carrying of mail to
make a subcontract therefor, because statutory provisions are to be found recog-
nizing and regulating the rights of subcontractors.6 No such rights can be ac-
quired by a subcontractor under the Post Office Department regulations unless his
subcontract is given written consent or approval by the Postmaster General. Such
consent or approval, of course, was not given to the Respondent's contract by the
Postmaster General, but this was not required, because the prime contract was not
made by the Postmaster General in the first place. As the military mail was under
the military postal service, the Postmaster General would have no part in the
letting of the prime contract. However, the Respondent's subcontract was formally
approved by the United States Air Force, the contracting agent for the Govern-
ment, which, with respect to military air postal service, was in a position com-
parable to that of the Postmaster General with respect to nonmilitary postal
service. Although the Air Force did not give formal approval to the Respondent's
subcontract until October 1957, several months after operations began under the
contract, the Air Force knew of the subcontract and approved thereof from the
outset. I conclude that the formal approval was retroactive in effect to the date
of the making of the contract.
The Railway Labor Act, 45 USC §181, provides, so far as material here:
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 ... and every carrier
by air transporting mail for or under contract with the United States Gov-
ernment.. . .
It will be noted that a carrier by air transporting mail is mentioned in this section
apart from common carrier by air and that there are mentioned two types of
carriers by air transporting mail-those that transport mail under contract with
the U.S. Government and those that transport mail for the U.S. Government.
Apparently a contract is not an essential part of the description of the latter type
or it would not have been mentioned in the alternative with the type that carries
mail under contract with the U.S. Government.
Ordinarily only common carriers carry mail, and such carriers have to be cer-
tificated by the Civil Aeronautics Authority as a prerequisite to the making of a
3 For the purpose of showing that NMB was merely notified of the existence of a
controversy and declined to assert jurisdiction without learning of the mail-carrying
activities of the Respondent, the letters might have been received, and I now reverse my
previous ruling and receive the two exhibits in evidence for this limited purpose.
4-No evidence was offered to show that the Respondent was expressly exempted from
the CAA requirement of certificate as required by the Respondent 's contracts, but pre-
sumably it was exempt.
5 See 20 F.R. 489; 82 Code of Federal Regulations (1957 Supplement), § 148.2
6 See 39 U.S.C. §§445-8.
INTERIOR ENTERPRISES, INC. 1549
contract for the carrying of the U.S. mail. The Postmaster General is required
to tender mail to the holder of a certificate issued by the CAA, authorizing the
transportation of mail by aircraft, for transporting of the mail between the points
named in such certificates. [49 USC 485(g)]. I assume that the military postal
service would do so likewise so far as would be practical and expedient. But even
in the Post Office Department there are exceptional cases where mail is required
to be carried to places where no common carrier goes or is certificated to go.
There are statutory provisions under which the Postmaster General can deal with
such situations, as for example 39 USC §§ 422, 488, 488(a). The latter section,
which is particularly pertinent, provides in part:
When in the opinion of the Postmaster General the needs of the Postal Service
require the transportation of mail by aircraft in the Territory of Alaska, where
no transportation of mail by aircraft has been authoribed by the Civil Aero-
nautics Authority under sections 481-485 and 486-496 of Title 49, the Post-
master General, notwithstanding any other provision of law, is authorized to
contract for the carriage of all classes of mail bearing the appropriate postage
for its respective class by aircraft after advertisement in accordance with law.
The transportation of mail under contracts entered into under this act shall
not, except for sections 481(1) and 496(b) Title 49, be deemed to be "air
transportation" as that term is defined in the Civil Aeronautics Act of 1938.
Any such contract shall be canceled upon the issuance by the Civil
Aeronautics Authority of an authorization under said sections 481-485 and
486-496 of Title 49 to any air carrier to engage in the transportation of mail
by aircraft between any of the points named in such contract... .
As the military postal service is an extension of the service of the Post Office
Department, the same method of dealing with mail going to points not on the
schedule of certificated airlines would presumably be authorized, and this is
precisely what the Air Force did in its contract with Federal Electric and its
consent to the subcontract between Federal Electric and the Respondent.
The language of the Respondent's contracts, in the sections previously quoted,
give P.S. & D. and Federal Electric, respectively, sole use of the Respondent's
aircraft on contract status. From this it might be argued that the Respondent
carries the mail for P.S. & D. or Federal Electric and not for the U.S. Government.
I do not so interpret the "sole use" phrase. Because P.S. & D. and Federal
Electric were bound under their respective contracts mediately or immediately with
the U.S. Air Force to support the DEW line, it was essential that the Respondent's
planes be available at all times for that purpose and not be off on an independent
trip for some one else when they were needed to carry food, mail, and other
cargo to DEW line sites on behalf of the military forces of the United States.
The functions of the Respondent under its respective contracts were performed to
the end benefit of the U.S. Government, and this benefit was not just an incidental
or collateral result of the respective contracts between the Respondent and P.S. & D.
and Federal Electric. By consenting to the Respondent's subcontract, the Air Force
created a form of privity of contract which, if it did not bring the Respondent
into direct contract with the U.S. Government for carrying mail, certainly helped
to remove doubt that the Respondent was expected to, and did, carry mail for
the U.S. Government. If such a subcontract had been given approval and consent
of the Postmaster General for mail carrying functions under his authority, I have
no doubt that the subcontractor in that case would be said to be carrying mail
for the U.S. Government. The case is not altered by the fact that another agency
of the U.S. Government, having authority in this instance to the exclusion of the
Postmaster General, approved and consented to the subcontract. The end result
is the same within the limits of the authority of the U.S. Air Force to contract
for the carrying of U.S. mail.
The fact that the poundage of mail carried by the Respondent is small in com-
parison with the cargo as a whole which it carries, cannot alter this conclusion,
for the Railway Labor Act is explicit that it covers anyone carrying mail for the
U.S. Government. No particular quantity of mail is fixed as essential for the
application of the Railway Labor Act. I conclude and find, therefore, that, as the
Respondent is carrying mail for the U.S. Government, it is not an employer within
the meaning of Section 2(2) of the Act.
[Recommendations omitted from publication.]