Garrett Burke v. Compania Mexicana De Aviacion, S.A., D/B/A Mexicana Airlines

Burke appeals from an order of the District Court dismissing his action for failure to state a claim upon which relief can be granted. The sole issue presented is whether an employee alleging wrongful discharge in violation of section 2 (Fourth) of the National Railway Labor Act, 45 U.S.C. § 152 (Fourth), and who is not represented by a union, may bring suit in his own name against his employer seeking reinstate ment and damages. We hold that he may, and reverse.

The material allegations of Burke’s First Amended Complaint must be taken as true for the purpose of this appeal. It alleges that defendant is a Republic of Mexico corporation doing business in California under the name Mexicana Airlines. (It is subject to the Act. ( 45 U.S.C. § 181 .)) Before May 29, 1967 Burke was employed by defendant as an “outside salesman.” During his employment the International Association of Machinists and Aerospace Workers (the union) began to organize employees of defendant. Burke became active in the organizational effort. He attempted to join the union and to extend its coverage to his employee unit, outside salesmen. Ultimately, a certification election, excluding Burke’s unit, was…