filed as amended february 18 1976.: January 14, 1976.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil Action No. 74-2466.
Biggs, Gibbons and Weis, Circuit Judges.
This appeal is from an order entered by the United States Court for the Eastern District of Pennsylvania dismissing plaintiff's complaint for lack of subject matter jurisdiction. Appellant Raymond Crilly, a bus driver, sued his employer, Southeastern Pennsylvania Transportation Authority (SEPTA), and his union, United Transportation Union Local 1594 (Local), alleging that SEPTA had discharged him in breach of the collective bargaining agreement between the defendants, and that the Local had breached its duty of fair representation by failing to pursue his grievance to arbitration.
Crilly contends that the district court had jurisdiction over his case by virtue of § 301(a) of the Labor Management Relations Act (Taft-Hartley Act), 29 U.S.C. § 185(a).*fn1 SEPTA does not seriously dispute that its operations would, if conducted by a private entity, subject it to federal jurisdiction under § 301(a).*fn2 SEPTA's transportation network is partly in interstate commerce and certainly affects interstate commerce*fn3 as those terms of art are defined in §§ 2(6) and 2(7) of the National Labor Relations Act (Wagner Act), 29 U.S.C. §§ 152(6) and 152(7), and §§ 501(1) and 501(3) of the Taft-Hartley Act, 29 U.S.C. §§ 142(1) and 142(3). SEPTA, however, contends that it is a political subdivision of the Commonwealth of Pennsylvania and therefore excluded from the definition of employer as that term is defined in § 2(2) of the Wagner Act, 29 U.S.C. § 152(2), and § 501(3) of the Taft-Hartley Act, 29 U.S.C. § 142(3).*fn4 Moreover, SEPTA argues that since it is not an employer under either Act, Local 1594 representing its employees is not a labor organization for the purposes of § 301(a), for that term of art defined in § 2(5) of the Wagner Act, 29 U.S.C. § 152(5), and § 501(3) of the Taft-Hartley Act, 29 U.S.C. § 501(3), is also dependent upon the definition of employer.*fn5
After careful consideration of the interrelationship between the definition sections of the Wagner and Taft-Hartley Acts, we hold that the district court was correct in dismissing Crilly's complaint for lack of subject matter jurisdiction. We find that SEPTA is a political subdivision of the Commonwealth of Pennsylvania and therefore excluded from the coverage of both Acts. We reach this decision even though coverage of state and local government employees might be consistent with the dominant purposes of the Taft-Hartley Act. In view of the limited evidence and strong inferences that do exist regarding congressional intent behind the cross referencing of the definition sections, we cannot find such coverage. The extension of coverage is a legislative not a judicial function, and we note that Congress is presently considering the matter.*fn6
I. IS SEPTA A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA?
In NLRB v. Natural Gas Utility District, 402 U.S. 600, 29 L. Ed. 2d 206, 91 S. Ct. 1746 (1970), the Supreme Court determined that federal rather than state law governs the issue whether or not an entity is a political subdivision of a State for the purposes of the Taft-Hartley Act, and therefore adopted a definition which had previously been formulated by the National Labor Relations Board.*fn7 According to the Board, an entity was a political subdivision if it was "either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate." 402 U.S. at 604-05
SEPTA was created by an act of the state legislature as an "agency and instrumentality" of the Commonwealth to "exercise . . . public powers", including that of eminent domain. Metropolitan Transportation Authorities Act of 1963, as amended, 66 Pa. Stat. Ann. § 2001 et seq. (Supp. 1975). It is governed by a Board of Directors composed of an ex officio member appointed by the Governor of Pennsylvania, two members from each of the five counties in its designated service area - Bucks, Chester, Delaware and Montgomery - who are appointed by their respective county commissioners, and two members appointed by the Mayor of Philadelphia with the approval of the City Council. 66 Pa. Stat. § 2016(a)(1). Thus, SEPTA falls squarely within the meaning of public subdivision as that term is used in § 2(2) of the Wagner Act.
II. ARE STATE POLITICAL SUBDIVISIONS ENGAGED IN BUSINESSES AFFECTING INTERSTATE COMMERCE, AND THE LABOR ORGANIZATIONS REPRESENTING THEIR EMPLOYEES, EXCLUDED FROM COVERAGE BY THE LABOR MANAGEMENT RELATIONS ACT?
The Wagner Act, enacted in 1935 as a measure to salvage much of § 7(a) of the defunct National Industrial Recovery Act, 48 Stat. 198 (1933), guaranteed employees the right to organize and bargain collectively, and proscribed certain employer anti-union activities. Section 2(2) of that Act defined employer but excluded from coverage "any State or political subdivision thereof." 29 U.S.C. § 152(2).*fn8 In 1947 Congress passed the Taft-Hartley Act which included five titles. Title I reenacted the Wagner Act with extensive revisions. The definition of employer in Title I, insofar as it excluded states and their political subdivisions from coverage, was not changed. Title I of the Taft-Hartley Act is still commonly referred to as the National Labor Relations Act, and is enforced primarily by the National Labor Relations Board. Titles II through V of the Taft-Hartley Act were entirely new, and are commonly referred to as the Labor Management Relations Act. Title V of this Act contained its own definitions. Section 501 states that:
When used in this Act -*fn9
(1) The term "industry affecting commerce" means any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or ...