author: JAMESON, Senior District Judge.

text:
    BORDEN, INC., a corporation, Plaintiff-Appellant, v. FEDERAL TRADE COMMISSION, Defendant-Appellee.
    No. 73-1502.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 25, 1974.
    Decided May 1, 1974.
    Stuart S. Ball, H. Blair White, Chicago, 111., for plaintiff-appellant.
    Harold D. Rhynedance, Jr., William A. Doying, Attys., Federal Trade Commission, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, 111., for defendant-appellee.
    Before KILEY, Senior Circuit Judge, SPRECHER, Circuit Judge, and JAME-SON, Senior District Judge.

       Ssnior District Judge William J. Jameson of the District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Borden appeals from an order dismissing Count I of its two-count complaint seeking declaratory and injunctive relief to restrain the Federal Trade Commission (Commission) “from any further proceedings” upon Count III of an administrative complaint issued against Borden on October 8, 1971.

In November, 1965 Borden began selling private label fluid milk products in the Chicago area to stores of The Great Atlantic & Pacific Tea Company (A & P). On March 13, 1967 Borden was notified by the Commission that it was investigating whether these sales involved illegal price discriminations in violation of Section 2(f) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(f), or sales as unreasonably low prices or at prices below cost for the purpose of eliminating or lessening competition, in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Pursuant to requests by the Commission, Borden furnished information and documentary evidence regarding its milk sales to A & P.

On June 1, 1971 Borden received a copy of a proposed Commission complaint, charging in Counts I and II that A & P had wrongfully induced discriminatory prices and in Count III that Borden and A & P had combined to effect price stabilization. A formal complaint containing the same charges was filed on October 8, 1971. Borden was not charged with illegal price discrimination.

On October 26, 1972 Borden filed with the administrative law judge a motion to dismiss Count III of the Commission complaint for alleged violation of Commission Rule 2.6, 16 C.F.R. § 2.6, which provides:

“Any person under investigation compelled or requested to furnish information or documentary evidence shall be advised with respect to the purpose and scope of the investigation.”

The administrative law judge denied this motion on February 13, 1973, and on April 24, 1973 denied Borden’s motion for reconsideration or in the alternative for certification of the denial to the Commission pursuant to Rule 3.23, 16 C.F.R. § 3.23.

Borden commenced this action on May 8, 1973, alleging in Count I of its complaint that the “failure to provide the required notice and opportunity to submit information during the investigation was a clear and substantial breach of the requirements of the Commission’s own Rule 2.6, and its unpublished rules and directives”. Borden applied for a preliminary injunction. The Commission filed a motion to dismiss Count I for failure to exhaust administrative remedies.

In a well-reasoned opinion entered June 7, 1973 the district court denied the application for a preliminary injunction and granted the motion to dismiss, holding that “it is deprived of jurisdiction of Count I by the doctrine of exhaustion of administrative remedies”. On this appeal Borden challenges only the ruling on the motion to dismiss. We affirm.

It is well settled that ordinarily courts will not interfere with an agency until it has completed its action and that administrative remedies may be bypassed only if (1) the agency has clearly violated a right secured by statute or agency regulation, Leedom v. Kyne, 358 U.S. 184, 188-189, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); Elmo Division of Drive-X Company v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342, 346-347 (1965); (2) the issue involved is a strictly legal one not involving the agency’s expertise or any factual determinations, Jewel Companies, Inc. v. F.T.C., 432 F.2d 1155, 1159 (7 Cir. 1970); McKart v. United States, 395 U.S. 185, 197-199, 89 S. Ct. 1657, 23 L.Ed.2d 194 (1969); or (3) the issue cannot be raised upon judicial review of a later order of the agency, Jewel, supra at 1159. We agree with the district court that none of these exceptions are applicable here.

Borden argues that under Rule 2.6 it was entitled to notice that it was being investigated for illegal price stabilization and “to submit exculpatory or explanatory information” during the investigative stages of the Commission’s proceedings. In support of this contention Borden relies upon an unpublished directive implementing Rule 2.6, which reads:

“As a matter of standard operating procedure, in any matter in which a recommendation for a complaint is contemplated the proposed respondent should be * * * afforded an opportunity to furnish information respecting the acts or practices involved prior to submitting the matter to the Commission with recommendation for complaint.”

This directive is from a citation “of a recent staff directive” in E. Pollock, Pre-Complaint Investigations by the Federal Trade Commission, 45 Chicago Bar Record 379, 381-82 (1964). Prior to oral argument Borden filed a motion to enlarge the record pursuant to Rule 10(e) F.R.App.Pro. to include the provisions of Section 6-051.7B of the Commission’s Administrative Manual, which was made available to Borden during the pendency of this appeal pursuant to a request for disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Section 6-051.7B provides:

“Notifying the Respondent. When a recommendation for complaint issuance is contemplated, the respondent should be notified that an investigation is being made and given the opportunity to furnish information on the acts or practices involved some time before submitting the matter to the Commission with recommendation for complaint. Where this procedure is not followed, the reason must appear in the memorandum transmitting the proposed complaint and order.”

The request to the Secretary of the Commission for disclosure of the directive was made after the district court’s decision from which this appeal was taken. Rule 10(e) does not give this court authority to admit on appeal any document which was not made a part of the record in the district court. See United States ex rel. Kellogg v. McBee, 452 F.2d 134, 137 (7 Cir. 1971). The motion to enlarge the record accordingly is denied. In any event the staff directive as quoted in the Chicago Bar Record is substantially the same as Section 6-051.7B and was considered by the district court in determining the motion to dismiss.

Borden was fully apprised of the investigation of possible illegal price discrimination with respect to its milk sales to A & P. The Commission contends that Rule 2.6 in no way suggests that if the Commission staff in analyzing the evidence uncovers proof of additional or alternate violations, further notice must be given prior to notice through the proposed complaint. The staff directive, the Commission argues, is “a purely internal admonition designed to serve the efficient operation of the Commission rather than a mandatory rule conferring rights upon potential respondents”.

The district court correctly noted that in deciding whether exhaustion of administrative remedies should be required the initial consideration is whether the agency has violated a clear right. Whatever the merits of the parties’ claims with respect to Rule 2.6 and the staff directive, we agree with the district court’s conclusion that:

“Borden’s asserted right to pursue informal settlement and explanation prior to the filing of a complaint does not appear plainly on the face of Rule 2.6. The unpublished rule cited as evidence of that interpretation simply states that a party should be given an opportunity to supply information respecting the matters under investigation. Granted that the latter rule begins with the phrase ‘as a matter of standard operating procedure,’ it is not clearly mandatory that such an opportunity be provided.”

Relying upon our decision in Jewel, swpra, Borden contends that “it will be unable to raise the Commission’s violation of Rule 2.6 on appeal of a final agency order.” However, as the district court recognized, Jewel is distinguishable in a number of respects. We held in Jewel, supra at 1159, that exhaustion of administrative remedies was not required where the jurisdiction of the Federal Trade Commission was challenged on the ground that “one of the Commissioners did not properly exercise his statutory discretion in voting for the issuance of the complaint”. We noted that review of a final order might not be adequate, since “if the question of the Commissioner's obligation is postponed until final appeal of a Commission order, the standard of review will be different”, that is, “the court of appeals would only decide whether the final order is supported by the evidence and would not question the authority of the Commission in issuing the complaint.” Id. In contrast, the issue here is one of the procedural propriety of the steps taken during the investigatory stage leading to an administrative complaint and may be raised on appeal from the Commission’s final order.

Judicial review of proceedings of the Federal Trade Commission is governed by 15 U.S.C. § 45(c), which provides for review of cease and desist orders by the courts of appeals. Section 10(c) of the Administrative Procedures Act, 5 U.S.C. § 704, provides:

“Agency action made reviewable by statute * * * [is] subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.”

If the administrative proceedings subsequently result in a cease and desist order against Borden, Borden will have an opportunity on review to raise the issue of whether the Commission violated Rule 2.6 and its staff directives in failing to give Borden an opportunity to present exculpatory evidence during the precomplaint stage of the administrative process. We agree with the district court that “The issuance of the Commission’s complaint would seem to constitute intermediate agency action and the decisions of the Administrative Law Judge [on Borden’s motions to dismiss] would appear to be procedural rulings within the scope of the court of appeals’ power to review under 5 U.S.C. § 704.” See Bristol-Myers Company v. F.T.C., 469 F.2d 1116, 1117 (2 Cir. 1972); Frito-Lay, Inc. v. F. T. C., 380 F.2d 8, 10 (5 Cir. 1967).

In addition, the issu'e in Jewel, supra at 1159, was characterized as “inherently a legal one”, involving “statutory construction”. The district court correctly observed that:

“The nature of the legal question involved here differs in a significant way from that in Jewel. There, the legal question required the interpretation of a statute — a task to which the courts are accustomed and well suited and to which administrative agencies have no claim of expertise. 4 Davis § 30.01, at 241. In the area of interpretation of agency rules, however, the primary responsibility of interpretation rests with the agencies themselves and, as noted above, great weight is accorded their interpretations. Thus the determination of the jurisdictional issue in this case, unlike that in Jewel, is not susceptible to determination by the Court without delay.”

Finally, the district court properly recognized that Borden’s claim of irreparable injury based upon the cost and inconvenience of defending itself in administrative proceedings is not alone sufficient to justify judicial intervention in the administrative process. See Myers v. Bethlehem Corp., 303 U.S. 41, 51-52, 58 S.Ct. 459, 82 L.Ed. 638 (1938); and Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974), where the Court reaffirmed the rule of Myers that “Mere litigation expense, even substantial and unreeoupable cost, does not constitute irreparable injury.”

We conclude that there are no exceptional circumstances which would justify Borden’s attempt to bypass the administrative process, and that the district court properly dismissed Count I of Borden’s complaint under the doctrine of exhaustion of administrative remedies.

Affirmed.

      . The Commission initially contended that the dismissal of Count I was not appealable under 28 U.S.C. § 1292(a) (1) as an interlocutory order refusing an injunction, since Count II of the complaint remained as a basis for seeking injunctive relief. At oral argument the parties agreed that the issue with respect to appellate review is now moot, since the district court subsequently dismissed Count II of Borden’s complaint.

      . On January 21, 1969 the Commission by formal resolution authorized a Commission investigation of Borden and A & P with respect to possible price discrimination charges. Borden alleges that it was informed of this resolution in October, 1969.

      . It is undisputed that Borden was not given notice that it was under investigation for possible charges of illegal price stabilization until it received the proposed complaint on June 1, 1971.

      . Administrative hearings were commenced on June 11, 1973. The Commission completed its case in chief just prior to oral argument on this appeal. Borden’s defense was scheduled to begin on March 4,1974.

      . Borden’s contention that no further administrative remedies are available is without merit. 16 O.F.R. § 3.54 (1973) prescribes the scope of review on appeals from initial decisions of administrative law judges. This would include a review of the judge’s order denying the motion to dismiss the administrative- complaint as to Borden, as well as adverse rulings with respect to the exclusion of evidence if obtained in violation of Rule 2.6.

      . By letter to counsel representing the Commission on the administrative complaint, Borden on February 22, 1973 requested voluntary disclosure of the directive mentioned in the Chicago Bar Record. This request was denied February 26, 1973 on the ground that “The Commission’s, internal directions and instructions to the staff are considered confidential.” See 16 CFR § 4.10(a) (1) (1973). On March 15, 1973 Borden requested that the administrative law judge issue a subpoena duces tecum compelling production of the directive. This request was denied on April 18, 1973, the administrative law judge noting that the request for disclosure of confidential records should be addressed to the Secretary of the Commission. See 16 CFR § 4.11 (1973). No further action was taken by Borden until July 5, 1973, almost one month after the district court’s dismissal of Count I of Borden’s complaint on June 7, 1973. On that date Borden filed an appropriate request for disclosure with the Secretary of the Commission, and it was pursuant to this request that disclosure of Section 6-051.7B was obtained.

      . The district court correctly pointed out that its conclusion is buttressed by the discretionary nature of 16 CBTt § 2.21 (1973), which provides for informal settlements during the investigatory stage and states:
      “§ 2.21. Voluntary compliance.
      “(a) The Commission, when it has information indicating that a person or persons may be engaging in a practice which may involve violation of a law administered by it, and if it deems the public interest will be fully safeguarded thereby may afford such person or persons the opportunity to have a matter disposed of on an informal nonadjudicatory basis.
      “(b) In determining whether the public interest will be fully safeguarded through such informal administrative action, the Commission will consider: (1) The nature and gravity of the alleged violation; (2) the prior record and good faith of the parties involved; and (3) other factors, including, where appropriate, adequate assurance of voluntary compliance.”
      See also the Commission’s explanatory statement of § 2.21, 34 Fed.Reg. 19044, November 29, 1969.

      . See Sterling Drug Inc. v. F.T.C., 146 U.S.App.D.C. 237, 251, 450 F.2d 698, 712 at n. 13 (1971) where the court noted that “the rule that agency decisions must be affirmed if supported by adequate findings of fact and substantial evidence in the record obviously does not apply where a proper hearing has not been held.”


source: Caselaw Access Project

author: HAYS, Circuit Judge:

license: Public Domain

text:
    Frederick L. JONES et al., Appellants, v. TRANS WORLD AIRLINES, INC., et al., Appellees.
    No. 388, Docket 73-2029.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 24, 1974.
    Decided April 9, 1974.

      Rains, Pogrebin & Scher, Mineóla, N. Y., on the brief; Bertrand B. Pogrebin, Frederick D. Braid, Mineóla, N. Y., of counsel, for appellants.
    Michael D. Gordon, Kansas City, Mo. (Jolley, Walsh, Gordon & Staab, Kansas City, Mo., on the brief), for appellee District 142.
    Irving Gutin, Lotwin Goldman Gutin Rosen & Greene, New York City, for ap-pellees Intern. Assn, of Machinists and Local Lodge 1056.
    Harold L. Warner, Jr., New York City (Chadbourne, Parke, Whiteside & Wolff, New York City, on the brief; Bernard J. Rosenthal, New York City, of counsel), for appellee Trans World Airlines, Inc.
    Before MOORE, HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

The appellants are employees of Trans World Airlines, Inc. [TWA], currently working in the guard job classification at TWA’s passenger teriminal at John F. Kennedy Airport. TWA is a “common carrier by air engaged in interstate or foreign commerce” as those terms are used in section 201 of the Railway Labor Act, 45 U.S.C. § 181 (1970), and as such is subject to the provisions of the Act.

Appellants brought this action against their employer, their collective bargaining agent, the International Association of Machinists and Aerospace Workers, and District 142 and Local Lodge 1056 of that International. The gravamen of their complaint is that the International and its subdivisions violated their duty to represent them fairly during the negotiations leading to the signing of a contract between the International and TWA in January of 1970, a period during which the appellants were not members of the union. They complain that under the contract, union members were given job seniority over non-members. They pray for a permanent injunction of discrimination, an order directing TWA to give them job seniority from their date of hire, and money damages for salary differentials and salary and benefits lost during periods in which four of the appellants were laid off.

The District Court for the Southern District of New York held for the appel-lees. It found that the union did not negotiate the adjustment in seniority out of hostility toward the appellants, and that the appellants were employees at will since they were not in the collective bargaining unit represented by the union. Accordingly, it held that the union had no duty to protect the appellants’ interests.

We reverse and remand for a hearing on the issue of damages.

Facts

In 1946 pursuant to an order of the National Mediation Board, TWA recognized the International as the exclusive bargaining representative for three collective bargaining units of TWA employees. One of these units, at least until 1970, consisted of “guards,” employees responsible, among other things, for directing and controlling traffic, mainly in the hangar areas.

District 142 is the subordinate body of the International with nation-wide responsibility for bargaining with TWA and Ozark Airlines. Local 1056 is the subordinate body of District 142 representing TWA employees in the New York City area, including those at the John F. Kennedy terminal. Since the International and its subdivisions each played a role in negotiating or implementing the 1970 contract, we will refer to them jointly as the “IAM.”

At various times during the period from May 1964 to April 1969 the appellant employees were hired by TWA to work at the Kennedy terminal as “passenger relations agent-traffic coordinators.” Their primary duty was to control pedestrian and vehicular traffic in and around the terminal, but at times they answered passenger inquiries. The appellants were not members of the IAM when they were hired. Prior to 1970, they were not asked to join the union, and they were not informed that they must join the union as a condition of continued employment under the union security clauses of the TWA-IAM contracts in effect during that period.

The present controversy emerged from the negotiation and implementation of the 1970 collective bargaining contract between the IAM and TWA. The bargaining leading up to the contract began late in 1968, when District 142 served a notice of intended changes under section 6 of the Railway Labor Act. 45 U.S.C. § 156 (1970). After protracted negotiations between District 142 and TWA, on January 28, 1970, the International and TWA entered into a new agreement, which was ratified by a vote of the majority of the members of Local 1056.

One of District 142’s demands in its notice of intended changes was that the work of passenger relations agents be included in the IAM jurisdiction. The union's objective was to cure what it perceived to be an erosion of its jurisdiction, to recoup a work function being performed by non-union employees in violation of its jurisdiction as originally defined by the National Mediation Board. During the negotiations, TWA conceded that the passenger relations agent jobs were subsumed in the guard unit. This concession was consistent with the appellants’ testimony at trial that they had continuously performed guard work while working in the passenger relations agent job classification.

As a result of TWA’s acquiescence, the following language was included as Article 11(a) of the 1970 agreement:

“Whenever the Company [TWA] deems it necessary to assign personnel to alleviate congestion of pedestrian or vehicular traffic, TWA-IAM guards will be used.”

This clause embodies the IAM proposition that the work of alleviating traffic congestion, wherever it occurred, was guard work.

All agreements covering the guard unit as it existed before 1970 defined seniority as follows:

“Seniority will be by work classification and shall be defined as length of continuous service with the Company as a Guard, including the ability to perform required work in a satisfactory manner.”

The January 1970 contract assimilated all guards into the larger unit that had previously covered only mechanics and food service employees. The objective in eliminating the separate guard unit was to prevent a strike by the 60 union guards from forcing the 14,000 other TWA-IAM employees out of work. When the guard unit was assimilated, the guards became subject to a seniority clause in the new contract similar to the clause previously applicable only to the mechanics and food service employees:

“Seniority shall be defined as the length of service for which an employee receives credit, regardless of location, in any of the classifications covered by this agreement with this Company or any of its predecessors. The definition of seniority shall include the ability to perform the required work of the job in a satisfactory manner, and except as hereinafter provided shall accrue from the date of entering a classification on a regular assignment." [Emphasis added.] Article IV(a), 1970 TWA-IAM Collective Bargaining Agreement.

The IAM and TWA also agreed, though not in writing, that the passenger relations agent jobs would be considered vacancies for the purpose of assigning union members to them, even though they were then occupied by non-IAM-member TWA employees. The airline and union in effect agreed that the persons occupying the passenger relations agent positions would be treated as “new hires” in the guard classification for the purpose of computing their seniority under the 1970 contract. The effect of this agreement and of the italicized language in Article IV(a) of the contract was to make IAM-member transferees senior to all of the non-IAM employees who had previously held the passenger relations agent jobs, this despite the fact that seniority under prior IAM contracts was fixed by the date of assignment to a given job classification.

In June of 1970, TWA announced that the passenger relations agent jobs were guard vacancies. Twelve of the twenty IAM members who had previously bid into the guard classification were accepted for the jobs by the airline. In July and August, eight of these union members were assigned to guard duty in and around the terminal. The remaining guard vacancies were filled by the appellants who had previously been doing the same work under the “passenger relations agent” label. The appellants testified that the nature of their duties did not change as a result of their change in classification.

In July and August of 1970, the appellant employees signed representation notices after they were informed of the union security clause in Article XXVI of the 1970 contract. They are currently IAM members.

In response to the appellants’ inquiries about their seniority, TWA gave them a copy of a letter listing the John F. Kennedy terminal guards in order of classification seniority, showing that all eight IAM transferees had seniority dating from June 22, 1970, and that all of the former passenger relations agents had seniority dating from July 20 or later. A TWA system-wide guard roster circulated in January 1971 showed that the appellants had lower seniority than all IAM members hired before July 20, 1970. Appellants Jones and Dooley protested to TWA representatives, and Local 1056 and District 142 officials, all to no avail. In July, Dooley was demoted from his position of lead passenger relations agent, and two union-member transferees were designated in his place. In December, appellants Donahue and Hunter were laid off, and in April, 1971, appellants Morrisey and Reynolds were laid off. All of the IAM transferees continued to work.

On July 20, 1971, this action was commenced in the District Court for the Southern District of New York. Plaintiffs claimed that the IAM had disregarded its duty to represent them fairly and that the IAM and TWA had discriminated against them on the basis of union membership in negotiating and implementing the 1970 contract. They sought an injunction against continued discrimination, an order directing TWA to credit them with seniority commensurate with their dates of entry into the passenger relations agent classification, and in the cases of employees eligible for the lead passenger relations job and the four laid-off employees, money damages. After a non-jury trial, Judge Duffy denied the requested relief. The employees appealed.

Remedies under the Railway Labor Act and the 1970 Contract

The IAM and TWA claimed in the district court that the administrative remedies of section 3 of the Railway Labor Act, 45 U.S.C. § 153 (1970), and the remedies provided by the contract grievance procedure under the 1970 and subsequent collective bargaining agreements are the appellant employees’ exclusive remedies. We find that these contentions have no merit.

An employee cannot prosecute a complaint against his collective bargaining agent by resorting to the remedies provided in section 3 of the Railway Labor Act. 45 U.S.C. § 153 (1970). Section 3 First (i) of the Act provides only that disputes between an “employee or group of employees and a carrier or carriers” may be referred to the Adjustment Board. Conley v. Gibson, 355 U.S. 41, 44, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Cunningham v. Erie R. R., 266 F.2d 411, 414-415 (2d Cir. 1959).

In this case, the appellants challenge the validity of the 1970 contract as it is applied to them. They claim that the 1970 contract, though fair on its face, is being enforced and administered in a discriminatory manner.

The appellant employees were not required to exhaust the contract grievance procedure provided in the 1970 collective bargaining agreement. Glover v. St. Louis-S. F. Ry., 393 U.S. 324, 329-330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). Were the rule otherwise, the passenger relations agents would be remanded to a remedy administrated and prosecuted by their adversary, the IAM. Pursuit of the contract remedy in this case would have been futile.

The Guard Collective Bargaining Unit

The district court held that the non-IAM member passenger relations agents were not members of the guard collective bargaining unit until they joined the union in July of 1970. The district court thus reasoned that any discrimination in assigning seniority was based on unit membership rather than union membership. It found that unit membership is a permissible basis for variation in benefits.

We find the district court’s reasoning faulty in two respects. In the first place, the assertion that unit membership is an acceptable basis for benefit differentials is overly broad. True, there is language in cases like Schick v. NLRB, 409 F.2d 395, 398-399 (7th Cir. 1969), NLRB v. Whiting Milk Corp., 342 F.2d 8, 11 (1st Cir. 1965), and General Drivers Local 229 (Associated Transport, Inc.), 185 N.L.R.B. 631 (1970), to the effect that a union does not commit an unfair labor practice when it discriminates against employees outside of its collective bargaining unit. Despite this language, it is clear that a union may conduct itself in a manner so arbitrary or malicious vis-a-vis an outside group that it exceeds the limit imposed by the duty of fair representation. Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952), illustrates this principle. In Howard, an all-white union representing brakemen negotiated a contract with their employer which excluded from employment Negro porters, a separate bargaining unit of Negro employees doing essentially brakeman work. The Supreme Court held that an exclusive bargaining agent under the Railway Labor Act cannot eliminate the jobs of nonmembers of the bargaining unit on the basis of race. Id. at 773-774, 72 S.Ct. 1022. The passenger relations agents’ case is closely parallel to Howard, especially since their duties were identical to those of the union-member transferees. Thus the district court gave the duty of fair representation too narrow a scope when it assumed that in no circumstance did the IAM have a duty not to discriminate against non-unit members.

However, there is a second and more basic flaw in the district court’s reasoning. We hold that the non-union-member passenger relations agents were members of the guard unit at least by the time District 142 served the notice of intended changes preceding the negotiations leading to the 1970 contract. The district court’s finding that the seniority adjustments under the contract were based on unit membership is thus unsupportable.

If the passenger relations agents were not in the guard unit in January, 1970 and prior thereto, the IAM and TWA could not have negotiated their inclusion in the guard unit. Section 2 Fourth of the Railway Labor Act gives the majority of the employees in a ■class “the right to determine who shall be the representative of the craft or class” for the purposes of collective bargaining. 45 U.S.C. § 152 Fourth (1970). Since by hypothesis the passenger relations agents were not in the class for which the union was designated the collective bargaining agent in 1946, the IAM could become their representative only if it was later chosen by them. In other words, the airline and union could not negotiate the inclusion of that separate class into the previously established unit without a showing that the class desired to have the union represent it. Under the same hypothesis, TWA would have violated section 2 Fourth of the Act by requiring that the appellants join a union not of their choosing, and by adversely affecting the appellants’ conditions of employment for not having previously joined the IAM.

The IAM did in fact insist that the passenger relations agent jobs were in the guard unit, and in light of the evidence at the trial of this case, its position in this regard was reasonable: the appellants testified that while serving as passenger relations agents they continuously performed guard work.

The IAM argues that even if the passenger relations agent jobs were in the guard unit in 1969, the passenger relations agents themselves were not in the unit until they joined the union. The IAM would have us separate guard duties for the purpose of determining its jurisdiction from guard personnel for the purpose of defining its duty to rep-present the entire unit. This argument is frivolous. Were we to accept it, any union could avoid its duty of fair representation by resorting to the fiction that jobs filled by non-union persons are vacant. The minority unit members would thus be denied the benefit of self-organization without receiving the corollary protection of the duty of fair representation.

Since the passenger relations agents were members of the guard unit prior to January 1970, the source of their seniority rights is evident. They were not, as the district court held, employees at will terminable without notice. They were members of the guard unit whose employment rights were determined by the August 1966 and prior agreements between TWA and the IAM. Under those contracts, seniority accrued from the date of their assignment in the job classification involving guard work.

The Duty of Fair Representation

The one characteristic that distinguishes those transferred into the guard unit in 1970 who were given the highest seniority from the employees who were given lower seniority, but who had performed guard duties all along, is this: the members of the former group all belonged to the IAM before January 1970, while the members of the latter group did not. Discrimination in seniority based on nothing else but union membership is arbitrary and invidious and violates the union’s duty to represent fairly all members of the bargaining unit.

The district court supported its decision for the appellees by a finding that there was no proof that the demotion of the appellant employees was predicated on malice. But it is evident that a union may breach its duty of fair representation by actions other than those motivated by anti-minority animus. While it is true that situations in which a union violates its duty have been identified by such phrases as “hostile discrimination,” Steele v. Louisville & N. R. R., 323 U.S. 192, 203, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Ferro v. Railway Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961), and “arbitrary, discriminatory,” or “bad faith” conduct, Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L.Ed.2d 842 (1967), these phrases do not delimit specific categories of violations of the duty of fair representation. They only serve to emphasize that the union has broad discretion to adjust the demands of competing groups within its constituency as long as it does not act arbitrarily. Humphrey v. Moore, 375 U.S. 335, 343, 349-350, 84 S. Ct. 363, 11 L.Ed.2d 370 (1964). It is also true that the cases decided in this circuit have for the most part involved union hostility or bad faith, Note, The Duty of Fair Representation: A Theoretical Structure, 51 Texas L.Rev. 1119, 1137 n. 80 (1973), see e. g., O’Mara v. Erie Lackawanna R. R., 407 F.2d 674 (2d Cir. 1969), aff’d sub nom. Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), Ferro v. Railway Express Agency, Inc., supra, Cunningham v. Erie R. R., supra, but bad faith is not universally required to support an employee claim against his union. Bad faith or hostile discrimination is certainly a sufficient condition to evidence an irrational decision, but it is not a necessary condition. It is also sufficient that a distinction be arbitrary or not based on some rational consideration. Steele v. Louisville & N. R. R., supra. In the instant case, the IAM’s duty to the appellants was broader than a mere duty not to negotiate the 1970 contract seniority provisions out of hostility toward them. The objective of the duty of fair representation is to provide substantive and procedural safeguards for minority members of the collective bargaining unit.

In reversing, we do not suggest that a union has a duty to dovetail seniority when consolidating two groups of employees. Compare NLRB v. Whiting Milk Corp., supra. Furthermore, it is only coincidental to the outcome in this case that seniority will be reordered to conform to date of job assignment: pre-1970 contracts applicable to the guard unit based seniority on the date of assignment. In another case, a union might base seniority on other considerations. Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513 (1949); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). We hold only that union membership was not a proper ground for determining seniority.

TWA shares the IAM’s responsibility for the injury suffered by the appellant employees. It was the immediate cause of their injury. It displaced their names downward on the seniority roster. It participated in the negotiation of a seniority agreement that resulted in laying off four passenger relations agents in violation of seniority rights accrued under the pre-1970 contracts. It interpreted the 1970 contract, a document fair on its face, according to a tacit understanding with the IAM and so demoted and laid off the appellants. It delayed in informing the appellants of their precarious positions to the prejudice of their ability to preserve their seniority by joining the IAM before TWA announced that their jobs were vacant. TWA cannot take refuge behind the IAM’s misfeasance. Its breach of the pre-1970 contracts and the subsequent wrongful discharge of four employees were the direct causes of the appellants’ financial injuries. Vaca v. Sipes, supra, at 197. TWA is liable with the union, jointly and severally, for such damages, if any, as the appellants may prove on remand.

Statute of Limitations, Laches, Estoppel

The appellees asserted the defenses of the statute of limitations, laches and es-toppel at the trial of this case, and renew them on this appeal. None of these defenses has any merit.

The appellants seek to enforce an obligation arising from the substantive provisions of the Railway Labor Act, but the Act does not specifically limit the period for bringing this type of action. See Abrams v. Carrier Corp., 434 F.2d 1234, 1251 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971). The two-year limitations period of section 3 First (r) of the Act applicable to proceedings to enforce the awards of the Adjustment Board does not by its terms apply to a case like this: there is no means of determining the beginning of the section 3 First (r) limitations period in the instant case, since under that section time starts to run only when the Adjustment Board makes an award. 45 U.S.C. § 153 First (r) (1970).

As a general rule, when a federal district court enforces a federal right without a specifically applicable statute of limitations, it looks to the appropriate limitations period of the state in which it sits. This action was brought in' the Southern District of-New York, so the New York limitations period applies. Section 213(2) of the New York Civil Practice Laws and Rules limits actions on contracts to six years of the time at which they accrue. N.Y.C. P.L.R. § 213(2) (McKinney’s 1972). The present action sounds in contract. It seeks to restore the appellant employees to the seniority positions they enjoyed under the pre-1970 collective bargaining contracts. The damages sought are contract damages: lost wages and benefits minus income from outside employment during the lay-off periods. It is conceded by the appellees that the present action was brought within six years of the date on which it accrued, however that date is determined.

The appellant employees did not commit laches in seeking equitable relief. They commenced their action shortly after several of them were laid off. At least six months of the 18-month delay from the time the 1970 contract was signed to the filing of this action is attributable to TWA’s delay in effectuating the contract. In any event, in the absence of special circumstances, in determining whether an equitable remedy is timely sought the federal chancellor has “usually permitted his conscience to be controlled quite exactly by the state statutory period.” H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 826 (Bator et al. 2d ed. 1973).

Reversed and remanded.

      . At all times relevant to this appeal prior to January 28, 1970, the guard collective bargaining agreements defined the scope of guard work as follows:
      “The Company [TWA] agrees that all work involving the guarding of certain gates, entrances, and other designated posts in and about Company premises, the patrolling of designated areas, the punching of watchman clocks, or other similar assigned duties involving internal security and protection of Company property is recognized as coming within the jurisdiction of the International Association of Machinists, and is covered by this Agreement.” Agreement of August 25, 1966, Article 11(c).

      . The term “seniority” in this provision and throughout this opinion refers to “classification seniority,” seniority determined by the date on which an employee starts work in a given classification. Under the 1970 and prior contracts, classification seniority determines the order in which employees are laid off. The 1970 contract did not affect the appellants’ “company seniority” which dates to the original date of hire regardless of classification, and which is used to determine rights to vacation time, sick leave, and passes.

      . The seniority of the employees who had bid into the new classifications relative to employees already in the classification and new hires was governed by Article X(b) (18) of the 1970 contract:
      “The seniority date and the effective date of wage rate of the successful bidder, including employees promoted, shall be the reporting date set forth in the bid notice received by the Local Union Representative at the time the vacancy was announced. Regardless of the reporting date of the successful bidder, no employee will be required to transfer to another point on the system with less than seventeen (17) days written notice. The seniority date of newly hired employees Shall he one (1) calendar day after the reporting date specified in the hid notice or the date they first report to worh, whichever is later. An employee entering a higher classification will start at the minimum pay rate of the higher classification or the pay rate he then held in his former classification, whichever is higher. He will remain at such rate until the date of his next automatic increase, at which time he shall advance to the next higher pay rate of the higher classification.” [Emphasis supplied.]
      TWA and the IAM interpret this clause to require that the appellants be treated as new hires relative to the successful union bidders. They claim that this interpretation was consistent with the “long-established” practice in the administration of TWA-IAM agreements. Needless to say, the long period of time during which the IAM and TWA have been practicing discrimination based on union membership does not justify that dis-r crimination. The fact that this practice was “long-established” only serves to emphasize its invidious nature.

      . The turn-over rate among passenger relations agents was such that real vacancies occurred with sufficient frequency to make it possible to transfer the eight union employees without laying off any non-union employees.

      . This letter, dated August 25, 1970, showed ■ that the appellants’ seniority was inferior to union transferees who did not begin work in the guard unit until after the letter was written.

      . The appellants’ dates of seniority are precisely the same as their membership dates in the union. This fact belies the IAM’s claim that seniority was based on some factor other than union membership.

      . All of the appellants were subsequently called back to work pursuant to recall rights created by the 1970 agreement. The lay-off periods were as follows :
      Hunter — December 13, 1970 to February 21, 1972
      Donahue — December 13, 1970 to April 10, 1972
      Reynolds — April 11, 1971 to February 23, 1973
      Morrisey — April 8, 1971 to January 17, 1972.

      . The seniority provisions found in Articles VI(a) and X(b) (18) and the Article 11(a) requirement do not by a narrow reading of their terms affect the seniority of the passenger relations agents. These provisions demote the appellants only when superimposed on the tacit agreement between the IAM and TWA that the passenger relations agent jobs would be treated as vacancies and that the persons bolding those jobs would be treated as new hires.

      . The appellant Jones testified at trial that the President of Local 1056 told him that it would be “futile” to initiate a grievance or take the union to court.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ramon ALBARADO, Appellant.
    No. 323, Docket 73-1954.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 26, 1973.
    Decided April 1, 1974.

      William Epstein, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.
    David DePetris, Asst. U. S. Atty. (Robert A. Morse U. S. Atty., for the Eastern District of New York, Paul B. Bergman, Asst. U. S. Atty., on the brief), for appellee.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This case is an addition to the growing body of case law developing around “airport searches,” now a part of everyday air travel, resulting from the threat to the traveling public and to the airlines from hijacking. Here, in the course of a “pat-down” by a United States Customs Security officer following activation of a magnetometer by appellant, a would-be passenger, counterfeit bills were found on appellant’s person in a package wrapped in aluminum foil. Prior to trial on a one-count indictment charging possession of counterfeit currency with intent to defraud in violation of 18 U.S.C. § 472, a suppression hearing was held on appellant’s motion challenging the legality of the search and the admissibility of statements made by him subsequent to and as a result of the search. The district court denied all aspects of the motion and following conviction after a two-day jury trial appellant was sentenced to three years’ imprisonment, to serve six months, with execution of the remainder suspended and probation imposed for two and one-half years.

Appellant, an older man who does not speak English but does speak Spanish, was approaching the boarding area of Pan American Flight 233 from Kennedy Airport to Santo Domingo at 7:25 a. m. on October 26 1972. Throughout the Pan Am terminal and at the boarding gate to Flight 233 there were signs posted in both Spanish and English stating that it is a federal crime to board an aircraft carrying a weapon and that passengers are subject to search. In addition, there was evidence that from time to time announcements are made at boarding time in both Spanish and English advising passengers that there would be a search conducted, although there was no specific evidence to the effect that these particular announcements were made as to Flight 233 or that appellant himself heard them.

The initial security procedure there in operation was basically that which has also been used for other international and domestic flights: the passenger places his carry-on luggage on a table where it is then searched, and the passenger then proceeds through a magnetometer, a device that is activated solely by metal on the person of the would-be passenger. There is no indication whatsoever that appellant up to the time of his passage through the magnetometer at the gate to Flight 233 had engaged in any conduct that could in the slightest way be considered suspicious. The much-heralded “profile” procedure, whereby through observation a given individual is said to have an appearance or characteristics similar to those who have engaged in hijacking with the result that he is subject to subsequent further search or closer scrutiny, was not in use because it was not part of the screening procedure for international flights.

Appellant’s boarding line consisted of approximately 30 or 40 individuals ahead of him. We are told that five or six of these were stopped and patted down after they set off the magnetometer. Again, there is no specific evidence that appellant saw these individuals being patted down. In any event, when his turn in line came, he did place his carry-on luggage on the table and it was presumably searched. He then passed through the magnetometer and activated it. The United States Customs Security officer, Ronald Bliss, then motioned for appellant to come over and open his coat. This he did, in the immediate vicinity of the magnetometer. Bliss then patted him down and felt a bulge in appellant’s inside jacket pocket. At Bliss’s request appellant removed the object, a package wrapped in aluminum foil with a frontal size approximately that of United States currency and a thickness of about one-quarter inch or a little bigger. Bliss indicated to appellant to open one end of it. Appellant complied, without protest, and Bliss observed what he thought was a counterfeit $20 bill. . Appellant was then taken to another room, where the package was ascertained to consist of 51 bogus $20 bills, and after being shown a Spanish language “rights card” by a Spanish-speaking Customs Security officer, appellant claimed that a stranger had approached him in front of his house and asked him to exchange the money in question. He explained the wrapping of the bogus bills (so that they would not get wet). He also had approximately $2,360 in genuine currency on his person that was not wrapped in foil. We do not know whether the magnetometer had. been activated by the foil.

As we have said, the usual airport search consists of an examination of the individual passenger and the opening of carry-on luggage and a look at its contents. The search of the individual is made initially by a magnetometer; then, if the device is activated, further investigation is made. The search of the carry-on luggage may be made manually or by X-ray machines where available. Each aspect of the procedure is, however, a search within the meaning of the fourth amendment.

Even the unintrusive magnetometer walk-through is a search in that it searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy. United States v. Epperson, 454 F.2d 769, 770 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972). While subject to the fourth amendment’s requirement of reasonableness, nevertheless, such a search is carried out upon each and every passenger without a warrant or without probable cause.

The airport search is a direct reaction to the wave of airplane hijackings which began in 1968, at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so. Airplane hijacking is a particularly frightening crime. Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence, willing to bargain with the lives of defenseless passengers for money, transportation to a safe haven, the release of “political” prisoners, or some other otherwise unattainable demand. Congress’s penalty for hijacking reflects the public mood: death, if the jury so recommends. 49 U.S.C. § 1472(i)(1)(A). The present antihijack-ing system did not spring full blown into life. “Profiles” and selective investigation came first; plainclothes sky marshals became regular forward seat passengers; anathema as it was to some to do so, diplomatic overtures were made to Cuba to eliminate it as a refuge for hijackers. Finally, technology with magnetometers, metal detection devices and X-rays was brought to bear. Today, the general methodology of the airport search has become more or less routine.

Inevitably, the legality of these searches has been contested, and courts have responded differently. Our own circuit has indeed demonstrated in its confrontations with the problem that it has no unanimous point of view. This is not surprising perhaps when one considers the fact that neither component of the usual airport search of the person — the use of the magnetometer or the frisk — seems to fit readily within any of the traditional exceptions to the warrant requirement, and yet each seems reasonable in light of the overwhelming public acceptance of the search, and the necessity for it. It is helpful to consider these two components separately. Before doing this, however, we note our guideline for decision lies in the language — though not the specific holding—of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), that “the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures,” since an airport search “as a practical matter could not be subjected to the warrant procedure.” The ultimate standard of the fourth amendment on which we must base our opinion, therefore, is one of reasonableness. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). And the reasonableness of a search depends upon the facts and circumstances and the total atmosphere of each case. Chimel v. California, 395 U.S. 752, 765, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Our inquiry here must be directed to the basic issue whether in the totality of circumstances such a search is reasonable.

In treating each component of the airport search, it is necessary to focus on the governmental interest which supposedly justifies intrusion on the privacy of the person, or simply to focus on the need to search. Terry v. Ohio, 392 U.S. at 20-21, 88 S.Ct. 1868. See also Ca-mara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

ín 1969 the number of successful hijackings and hijacking attempts of United States carriers peaked at 33 and 40, respectively. FAA, Office of Air Transportation Security, Hijacking Attempts on U. S. Registered Aircraft (Oct. 5, 1973). As the airport searches became more widespread and other aspects of the anti-hijacking program took effect, the number of successful hijackings dramatically declined to 10 in 1972, and, surprisingly, there have been no successful hijackings of a commercial airliner in the United States in over a year. Id. These statistics would seem to indicate that the total anti-hijacking system has had some considerable success.

In addition to firearms alleged and real used in 117 incidents, other weapons used include knives, razors, bombs, a hatchet, an ice pick, and a tear gas pen. FAA, Office of Air Transportation Security, Hijacking Statistics (Aug. 1, 1973) 14. In this age of miniaturization a bomb may be fashioned out of plastic and placed inside a shaving cream can with a firing device with no more metal than a small fountain pen. In other words, no practical inspection will be able to insure absolutely the safety of airplane passengers. On,the other hand, the overwhelming majority of weapons will respond to a magnetometer or be picked up in a carry-on baggage search. One of the prime purposes of the search, moreover, is deterrence, the knowledge that such searches are conducted acting to deter potential hijackers from even attempting to bring weapons on a plane. Depriving a hijacker of his weapon is critical, because by means of a weapon like a pistol or even a knife the hijacker may literally turn the plane itself into a weapon, threatening not only those within it, but those on the ground as well. In short, the plane may become a weapon of mass destruction that no ordinary person would have any way of obtaining except through a hijacking.

In determining the reasonableness of a search, one must also balance the need for the search against the invasion of privacy involved. There is a compelling need for a search to detect weapons before they are brought on an airplane. While this might justify some search of all prospective passengers at an airport, the question becomes whether it will justify in any given case the search as carried out and, for this case, the search of appellant here, first by use of the magnetometer.

I. USE OF THE MAGNETOMETER.

Initially it may be noted that the magnetometer search as we have it here could be viewed as “inefficient” in that all passengers are searched, but only a fraction of one per cent have weapons. The magnetometer, although calibrated supposedly to be activated by a mass of metal approximating a .25 calibre pistol, often is activated by car keys, ladies’ sewing scissors, briefcase hinges and latches, and the like. Indeed, one case says that there is evidence that up to 50 per cent of the passengers passing through a magnetometer may activate it. See United States v. Lopez, 328 F. Supp. 1077, 1086 (E.D.N.Y.1971). Thus the device is activated by numerous objects not useful as weapons, and if in each instance the person were subsequently to be frisked as a matter of course, a large number of unnecessary invasions of privacy would result.

This “inefficiency” in the use of the magnetometer to search for weapons is troublesome for two reasons. First, whatever the extent of airplane hijackings in the future, one suspects that anti-hijacking measures and the accompanying airport search will remain a part of our way of life for some time to come. While the system was justified originally as a means to stop hijackings, now that it seems to be proven successful, its retention will be justified as necessary to stop their resurgence. In any case, the search may eventually remain without an actual, existing threat to justify it. Second, there is the possibility that the purpose of the airport search may degenerate from the original search for weapons to a general search for contraband. Again, the recent experience of courts with airport searches, including the present one, is not wholly reassuring from this point of view. And as potential hijackers are further deterred by the search, the only defendants before us as a result of airport searches will be those caught with contraband.

To the extent that “inefficiency” as we have referred to it is a necessary concomitant of a successful anti-hijacking system, the standard of reasonableness still prevails and the system must be viewed with due allowance therefor. To the extent, however, that the system were allowed to degenerate into bureaucratic shortcuts which served no legitimate purpose and still constituted an invasion of protected rights of privacy, then the system would be unreasonable per se. As was said by the Supreme Court in Terry, “The scope of the search must be 'strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 392 U.S. at 19, 88 S.Ct. at 1878, quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring). In other words, it is, and indeed for preservation of a free society must be, a constitutional requirement that to be reasonable the search must be as limr ited as possible commensurate with the performance of its functions.

It has been suggested that those who seek to travel on a common carrier have a lower “expectation of privacy” regarding their person and the bags they carry than those who, say, merely walk on a public street. Such a suggestion has little analytical significance; if it were announced that all telephone lines would be tapped, it could be claimed that the public had no expectation of privacy on the telephone. What is clear is that the public does have the expectation, or at least under our Constitution the right to expect, that no matter the threat, the search to counter it will be as limited as possible, consistent with meeting the threat.

While the magnetometer may be “inefficient” in that it searches every passenger, balanced against this is the absolutely minimal invasion of privacy involved. There is no detention at all; there is no “probing into an individual’s private life and thoughts . . . . ” Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676 (1969). The passing through a magnetometer has none of the indignities involved in fingerprinting, paring of a person’s fingernails [Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (upheld where incident to a valid arrest)], or a frisk. The use of the device does not annoy, frighten or humiliate those who pass through it. Not even the activation of the alarm is cause for concern, because such a large number of persons may activate it in so many ways. No stigma or suspicion is cast on one merely through the possession of some small metallic object. Nor is a magnetometer search done surreptitiously, without the knowledge of the person searched. Signs warn passengers of it, and the machine is obvious to the eye.

Upon this balance we have no difficulty in reaffirming the conclusion of United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), that the use of a magnetometer is a reasonable search despite the small number of weapons detected in the course of a large number of searches. The absolutely minimal invasion in all respects of a passenger’s privacy weighed against the great threat to hundreds of persons if a hijacker is able to proceed to the plane undetected is determinative of the reasonableness of the search.

In this regard we do not predicate decision upholding magnetometer searches in general on the basis of “consent.” While a search which would otherwise be unlawful may through the consent of the person searched become lawful, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Callahan, 439 F.2d 852 (2d Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971), such consent entailing as it does the waiver of a constitutional right, must be freely and voluntarily given; it must not be directly or indirectly the result of coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Thompson, 356 F.2d 216 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). To make one choose between flying to one’s destination and exercising one’s constitutional right appears to us, as to the Eighth Circuit, United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), in many situations a form of coercion, however subtle. Cf. Lefkowitz v. Turley, 414 U.S. 70, 79-82, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). While it may be argued there are often other forms of transportation available, it would work a considerable hardship on many air travelers to be forced to utilize an alternate form of transportation, assuming one exists at all.

II. THE FRISK.

We pass then to the question of the frisk after activation of the magnetometer. Normally a frisk is considered a gross invasion of one’s privacy. In Terry the Court rejected the claim that it was only a “petty indignity,” for, in a proper frisk, the

officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.

Priar & Martin, Searching and Disarming Criminals, 45 J.Crim.L.C. & P.S. 481 (1954), as quoted in Terry v. Ohio, 392 U.S. at 17 n. 13, 88 S.Ct. at 1877.

While the typical airport frisk may be more in the nature of a “pat-down,” involving only the patting of external clothing in the vicinity of pockets, belts or shoulders where a weapon such as a gun might be secreted, in any given case the right to pat-down carries with it authorization for a full frisk since presumably, if we are authorizing anything, we are authorizing what is necessary to get the job done.

The fact that many persons undergo frisks or pat-downs at the airport boarding gate does not stop the frisk from being a gross invasion, but the frisk of many does mitigate the invasion to one to the extent that stigma attaching to one who endures it is lessened by being one of a crowd. This at least makes the airport frisk less noxious than a frisk on the street.

The intrusiveness of the airport frisk is also limited by foreknowledge of it. Signs warn of searches and one standing in line may see those in front being frisked. Thus, when one is himself frisked, it is not a surprise, and there is an element of voluntariness. Even after activating the magnetometer, the prospective passenger may refuse to submit to a frisk and instead forfeit his ability to travel by air, because this serves the purpose of the whole search procedure, which is not to catch criminals, but rather to keep armed hijackers from getting on airplanes. United States v. Davis, 482 F.2d 893, 908 & n. 41 (9th Cir. 1973). The signs and highly visible magnetometers and frisks serve as a deterrent, and indeed the hope is that the prospective hijacker will turn around and leave. Thus, while there is coercion to submit to the airport frisk, there is no compulsion, as there is in an ordinary street frisk, and the airport frisk is, as we say, less intrusive thereby.

It is unfortunate, but not necessarily fatal, that there, is not an explicit warning that the person may avoid the frisk by not flying. Because, however, as we view it, the legality of the search does not rest on a “consent” theory, but rather on the reasonableness of the total circumstances, the fact that a passenger may withdraw at any time plus the general knowledge that one is subject to a search if one flies is sufficient in light of the otherwise minimized invasion of the passengers’ privacy.

There is, of course, a compelling need for further investigation after an initial magnetometer reading showing metal. Without further investigation the magnetometer would not serve any valid purpose. It would be absurd to require the airlines either to deny passage to everyone activiating the magnetometer or to allow passage to any without discovering what the metal was. We refer back to our basic test: how may the search be limited commensurate with the performance of its functions? Put another way, what is the minimal invasion of privacy consistent with the need for the further investigation? Differences in equipment and facilities may change the actual procedure, but the rule is easy to state: exhaust the other efficient and available means, if any, by which to discover the location and identity of the metal activating the magnetometer before utilizing the frisk.

At the outset it should be noted that any further investigation after activation of the magnetometer is for the metal which did the activation; activating the magnetometer is not a general license to search for anything. Next, it is clear that compared with other methods the frisk is “inefficient” in that a whole body may be frisked only to discover that the keys in the passenger’s pocket set the machine off. It would be easier and more effective merely to ask the passenger to remove all his metal items and return through the magnetometer. This procedure is clearly preferred over the immediate frisk becaue, while still a search, it entails far less invasion of the privacy or dignity of a person than to have a stranger poke and pat his body in various places. Such a procedure is, as we have said, supra note 3, frequently used. It is proper for several reasons. It limits the search to the metal detected by the magnetometer. If the person passing through the magnetometer the second time does not activate the machine, the metallic items have all been made visible to the officer. If, on the other hand, the machine is activated again, the person has failed to divest himself of all metallic items on his own. While this in itself may not provide “probable cause” or even a reasonable suspicion in Terry terms, it necessitates that further measures be taken. At this point the only further practical measure is a pat-down, or frisk if necessary. And it is reasonable at this point because no lesser readily available means presently exist for determining what unexplained metal object remains on the passenger’s person. See United States v. Epperson, 454 F.2d at 772. This is the factual situation — a second walk-through followed by a second activation of the magnetometer — that- was involved in United States v. Mitchell, 352 F.Supp. 38 (E.D.N.Y.1972), aff’d without opinion, No. 73-1953, 486 F.2d 1397 (2d Cir., 1973).

Of course, the second magnetometer walk-through is not the only alternative available to the authorities. Where airports are equipped with hand-held magnetometers they may be used to locate the metal on the passenger’s body and he then may be required to remove it so that they may be assured that it is not a weapon. Another additionally proper possibility is to provide instruction to all passengers that metal items should be removed prior to passing through the magnetometer initially and to provide a table or whatever on which these items may be placed so that they may be viewed by an official. These examples are not to be considered exhaustive, but, again, the rule is easy to state: the frisk in the typical boarding situation we have been talking about is to be used only in the last instance.

It is clear that - the search of appellant was not as limited in its obtrusiveness as it might have been. It would not have entailed any significant time to require him, for example, to remove any metal from his body and to pass through the magnetometer again. The fact that he spoke no English is no excuse, since a Spanish translator was available, and since this was a flight to Santo Domingo from a major airport there is no reason this possibility could not have been provided for.

In view of our determination that the frisk of appellant was unlawful, we need not reach the question whether the officer’s opening of the aluminum foil would have been lawful. In light of the recurrent nature of such problems, however, a few words may be in order. It might be said that inasmuch as the officer is only looking for the item which activated the magnetometer, he could not open a container, which he knew upon feel could not contain the offending metal. Generally, this is so, because a passenger’s activation of the magnetometer does not give the officer a license to search him generally, but only for the offending metal. This is not to say, however, that an officer may never investigate something which is not metallic. Hijackers as well as airport officers know of the existence of plastic explosives or even ordinary dynamite. If an officer comes lawfully upon a container which may conceal such items, he may require that they be opened to his inspection before the passenger is allowed to proceed on board with the container. United States v. Kroll, 481 F.2d at 886-887. In Kroll, the Eighth Circuit quoted with approval the statement of the district court that a search would be permissible “ ‘of that which may reasonably be deemed to conceal a weapon or explosives. Reasonableness, in this context, is a matter of probabilities.’ ” Id. at 886, quoting 351 F.Supp. 148, 153 (W.D.Mo.1972). Moreover, the probabilities may be affected by the unusualness of the container, the size or shape of the object, the failure or inability of the passenger to explain what is present therein, and other considerations.

To some it may seem that we are splitting hairs, and on its face there may seem to be little difference between what was done to appellant and the additional step or steps that we are requiring. Nevertheless, in this way we believe that the airport search is made effective and not frustrated, while at the same time an individual passenger’s privacy is preserved to the greatest extent commensurate with safeguarding his fellow passengers from the possibility of hijacking. Only upon such minimizing of the invasion of privacy can the rigorous requirements of the fourth amendment be met.

Nothing we say herein is to be treated as prohibiting searches of persons where specific, articulable facts exist to support a reasonably prudent man’s belief that his or others’ safety might be in danger — that is, where the requirements of Terry v. Ohio are met, as, e. g., in our own United States v. Bell, supra. Nor do we intend in any way to preclude questioning on the one hand or on the other hand such searches as may be proper where other information on the part of the authorities would make such action reasonable.

With this in mind, in the thought that the rule of law here enunciated has not been sufficiently clear to the airport authorities in the past, we announce it as prospective only in effect, applying it to the search in the case at bar and searches subsequent to the effective date of this opinion. Cf. Linkletter v. Walker, 381 U.S. 618, 622-629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

We reverse and remand with directions that the motion to suppress be granted.

      . United States v. Miner, 484 F.2d 1075 (9th Cir. 1973); United States v. Moore, 483 F. 2d 1361 (9th Cir. 1973); United States v. Fern, 484 F.2d 666 (7th Cir. 1973); United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973), petition for cert. dismissed, 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459 (1973); United States v. Doran, 482 F.2d 929 (9th Cir. 1973); United States v. Kroll, 481 F.2d 884 (8th Cir. 1973); United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Miller, 480 F.2d 1008 (5th Cir. 1973); United States v. Legato, 480 F.2d 408 (5th Cir. 1973); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973; United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973); United States v. Echols, 477 F.2d 37 (8th Cir.), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973); United States v. Burton, 475 F.2d 469 (8th Cir. 1973); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v. Clark, 475 F.2d 240 (2d Cir. 1973); United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972); United States v. Epperson, 454 F. 2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971).

      . The use of a “profile” of “objective” characteristics to screen passengers thought to be potentially likely to hijack an airplane has apparently been abandoned in favor of the magnetometer or detection-device search.

      . The initial magnetometer search was generally made by a walk-through “magnetometer,” a device that is activated by ferrous metal. This is as opposed to newer, more sophisticated metal-detection devices which can also be activated by non-ferrous metals. In many cases, the follow-up investigation after initial activation of the walk-through device is made by a portable magnetometer which is run up and down next to the passenger’s body to discover the location of the metal on the body. Where a portable magnetometer is not available or used, passengers sometimes are asked to remove all metal objects from their body and to proceed again through the magnetometer. In other cases, apparently, as in this one, activation of the walk-through magnetometer is utilized immediately to conduct a frisk. A frisk would likely be only the last resort under the other systems. It was, after two activations of the magnetometer, in United States v. Mitchell, 352 F.Supp. 38 (E.D.N.Y.1972), aff’d without opinion, No. 73-1953, 486 F.2d 1397 (2d Cir., 1973).

      . See generally United States v. Mapp, 476 F.2d 67, 76-81 (2d Cir. 1973). See also Stanford v. Texas, 379 U.S. 476, 481-482, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Weeks v. United States, 232 U.S. 383, 389-391, 34 S. Ct. 341, 58 L.Ed. 652 (1914).

      . For more detailed histories of the development of the anti-hijacking system and the involvement of the United States in an official capacity therein, see United States v. Davis, 482 F.2d at 897-904 (Browning, J.); McGinley & Downs, Airport Searches and Seizures — A Reasonable Approach, 41 Ford.L.Rev. 293, 294-97 (1972).

      . Compare United States v. Davis, supra, with United States v. Skipwith, supra. See also United States v. Kroll, supra.

        . See United States v. Bell, supra (three separate opinions) ; United States v. Ruiz-Estrella, supra (Hays, J., concurring and dissenting)'.

      . Because this case does not involve a search of carry-on baggage, this aspect of airport searches is not dealt with here.

      . E. g., the exception for an “administrative search,” See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed.2d 930 (1967). United States v. Davis, supra, while styling the airport search as “administrative,” placed no analytical significance on this label. Nor do we.

      . An interesting statistic which demonstrates how significant changes in the pattern of hijackings can occur for no readily apparent reason is the number of hijack attempts to Cuba. Each year through 1969 approximately 85 per cent of all hijacks attempted of United States planes were to Cuba. In 1970 this percentage dropped to 55 per cent; in 1971, 52 per cent; in 1972, 22 per cent. EAA, Office of Air Transportation Security, Hijacking Attempts on U.S. Registered Aircraft (Oct. 5, 1973).

      . In the instant case the percentage was at least 15 per cent and might have been as high as 25 per cent. Compare this with the only %0th of one per cent of all passengers who meet the “profile.”

      . Of the cases we have found reaching courts of appeals, four involved the discovery of a weapon and 16 involved discovery of drugs. Less than 20 per cent of the arrests resulting from the anti-hijacking system have been for offenses related to aircraft security. See N.Y. Times, Nov. 26, 1972, at 1, col. 2. See also United States v. Davis, 482 F.2d at 909 n. 43.

      . Faced with the possibility of abuse, some have suggested that the searches would be reasonable if only weapons could be seized and used as evidence; any evidence unrelated to the legitimate purpose of the regulatory search would be excluded. See United States v. Skipwith, 482 F.2d at 1279 (Simpson, J., concurring); 482 F.2d at 1281 (Aidrich, J., dissenting) ; Note, Skyjacking: Constitutional Problems Raised by Anti-Hijacking Systems, 63 J.Crim.L.C. & P.S. 356, 365 (1972).

      . Again by analogy, if the government were to announce that hereafter all telephones would be tapped, perhaps to counter an outbreak of political kidnapings, it would not justify, even after public knowledge of the wiretapping plan, the proposition that anyone using a telephone consented to being tapped. It would not matter that other means of communication exist — carrier pigeons, two cans and a length of string; it is often a necessity of modern living to use a telephone. So also is it often a necessity to fly on a commercial airliner, and to force one to choose between that necessity and the exercise of a constitutional right is coercion in the constitutional sense.

      . At the same time, by conditioning air travel on a waiver of fourth amendment rights, the prospective air traveler is often being “coerced” in a sense, as we have said. The condition itself, if it serves a compelling governmental interest, may be justified, thereby making the search reasonable; it is lawful, however, not through consent, but rather through reasonableness.
      Even were this not so, upon the facts of this the government has failed to meet its burden of proof to show that appellant’s consent was, “ ‘in fact, freely and voluntarily given.’ ” Schneckloth v. Bustamonte, 412 U.S. at 222, 93 S.Ct. at 2045, quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Appellant was an older man. He spoke no English. A uniformed, armed officer made a motion to him to raise his hands. The officer then without hesitation proceeded to frisk appellant. All that has been shown is submission to lawful authority, which is insufficient. Schneckloth v. Bustamonte, 412 U.S. at 233, 93 S.Ct. 2041. See Davis v. United States, 328 U.S. 582, 599, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946) (Frankfurter, J., dissenting). See also United States v. Miner, 484 F.2d 1075, 1077 (9th Cir. 1973).

      . In United States v. Davis, supra, the Ninth Circuit reached the opposite conclusion, requiring actual knowledge of the ability to withdraw. We note, however, that court’s suggestion that signs, announcements and general public knowledge might make the alternatives “so self-evident that his election to attempt to board necessarily manifests acquiescence in the initiation of the screening process.” Id. at 914. See also United States v. Bell, 464 F.2d at 674-675 (Friendly, C. J., concurring).

      . It should be clear that we do not uphold in general a routine frisk after mere activation of the magnetometer. A routine frisk after nothing more than such activation of the magnetometer does not present the issue passed upon in United States v. Bell, supra. There specific and articulable facts existed to support a reasonably prudent man’s belief that his or others’ safety might be in danger. In Bell, not only did the defendant activate the magnetometer, he also met the “profile,” he could not produce any identification, and he stated that he was out on bail from an attempted murder charge. We do not read Bell as justifying routine frisks after simple activation of the magnetometer merely because the search occurred at an airport. In United States v. Ruiz-Estrella, 481 E.2d 723, 726-727 (2d Cir. 1973), this court rejected the claim that a passenger’s fitting the “profile” was sufficient reason for a Terry search. Yet, as set forth in one case, the use of the “profile” screening device had a six per cent “success” rate, meaning that one in 15 of the “profile” selectees were found to have weapons. United States v. Lopez, 328 F.Supp. 1077, 1097 (E.D.N.Y.1971). There was no evidence here that the magnetometer had a higher probability of locating weapons on those who activate it, and it .was conceded that magnetometers may be and often are activated by a number of common metal objects. There is, then, no basis for us to believe that an officer has any more reason to suspect one activating a magnetometer than on meeting the “profile.” Since merely meeting the “profile” does not justify a frisk, United States v. Ruiz-Estrella, supra, merely activating the magnetometer — on the evidence before us — ■ does not do so.


author: KNOCH, Senior Circuit Judge.

text:
    John H. NORTH, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
    No. 72-1885.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 25, 1973.
    Decided April 18, 1974.

      William G. Conover, Valparaiso, Ind., for plaintiff-appellant.
    G. Edward McHie, Charles A. Myers, Hammond, Ind., for defendant-appellee.
    Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   KNOCH, Senior Circuit Judge.

Plaintiff-appellant, John H. North, brought action against the defendant-ap-pellee, his employer, to recover punitive damages for personal injuries attributed by plaintiff to his employer’s wilful and reckless violation of Indiana statutes respecting provision of a safe place for employees to work.

The cause was removed on motion of defendant to the U.S. District Court for the Northern District of Indiana, Hammond Division. The plaintiff contends that the District Judge improperly construed Indiana law in granting defendant’s motion to dismiss, from which this appeal is taken.

The facts appear in the District Court’s Memorandum, hereto appended as Appendix A, which we adopt as our own.

As in the District Court, plaintiff argues that his right to seek exemplary (as distinguished from compensatory) damages for violation of specific statutes imposing a duty on his employer is unaffected by the passage of the Indiana Workmen’s Compensation Act.

We have cai’efully studied the plaintiff’s argument, with specific reference to his attempt to distinguish the cases on which the District Judge relied in determining the applicable law of Indiana. We are compelled to agree with the District Court that plaintiff’s remedy under the Compensation Act is exclusive regardless of the plaintiff’s allegation that the cause of his injury was wilful and reckless violation of the statutes and his prayer for punitive damages. The decision of the District Judge is affirmed.

Affirmed.

APPENDIX A

August 24, 1972

MEMORANDUM

Plaintiff was employed by defendant as an overhead crane operator at the No. 1 basic oxygen steel making shop. He brought this action to recover damages for personal injuries received when steel supports which suspended defendant’s piping system from the ceiling of the shop collapsed and struck plaintiff. The complaint alleges that defendant produced steel in the shop far in excess of the design limits for such a facility, and this production caused sludge to accumulate in the elbows of the furnaces and in the entire piping system. Plaintiff contends that defendant knew of this dangerous condition, and that the defendant’s actions were reckless and malicious. Defendant allegedly made inadequate attempts to remedy the dangerous condition and included no warning devices in the design of the facility. The condition of the shop was allegedly a violation of Ind.Ann.Stat. §§ 40-2139, 40-2140, IG 22-1-1-10, 22-1-1-11 (Burns Repl.1965).

Defendant contends that since plaintiff was an employee who was injured during the course of his employment, plaintiff is subject to the Indiana Workmen’s Compensation Act and remedies provided for personal injury under the Act are exclusive. Hickman v. Western Heating and Air Conditioning Co., Inc., 207 F.Supp. 832 (N.D.Ind.1962).

Ind.Ann.Stat. § 40-1206, IC 23-3-2-6 (Burns 1965 Repl.) provides:

The rights and remedies herein granted to an employee subject to this act . on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death.

Plaintiff, however, asserts that this provision does not apply to a common law action for punitive damages for reckless and wilful violation of a duty to furnish employees with a safe place to work. Secondly, plaintiff contends that the provision does not apply to an action under the Indiana Employers Liability Act, Ind.Ann.Stat. § 40-1101, IC 22-3-9-1 (Burns 1965 Repl.), to recover punitive damages for reckless and wilful violation of statutory duties.

The theory of plaintiff is based upon the rationale that the repealing clauses of the Workmen’s Compensation Acts have not been all encompassing. Plaintiff contends that the Employer’s Liability Act codified the common law action for negligence and added an action for injuries sustained because of an omission of duty on the part of the employer which resulted in strict liability for statutory violations. Thus, though the Workmen’s Compensation Act eliminated the common law action for negligence, plaintiff argues it left untouched the action in strict liability for statutory violations. To support this theory, plaintiff points to the repealing clause of the original Workmen’s Compensation Act:

All acts and parts of acts inconsistent with any provisions of this act are hereby repealed to the extent of such inconsistency. Ind.Acts. 1915, Chr. 106, § 78.

Plaintiff argues that the cause of action based upon absolute liability for failure to perform statutory duties survived under this clause, since it was in no way inconsistent with the Compensation Act.

The 1929 amendments would seem to contradict this contention. They provided :

Except as herein otherwise provided, the Indiana Workmen’s Compensation Act of 1915 and the amendments thereof, and all other acts supplemental thereto are hereby repealed. Ind. Ann.Stat. § 40-1703, IC 22-3-6-2 (Burns 1965 Repl.)

Nevertheless, plaintiff argues that the general repealing clause is a nullity, because repeals by implication occur only when the intent of the legislature is clear and a later statute is so inconsistent with an earlier statute that the provisions are irreconcilable. There is no such conflict here, contends plaintiff, since the Compensation Act was designed to eliminate questions of negligence — not the actions plaintiff asserts exist: wilful and wanton misconduct and absolute liability for failure to perform a statutory duty.

Moreover, plaintiff asserts that the right to recover punitive damages is supported by the provisions of the present Compensation Act. Ind.Ann.Stat. § 40-1207, IC 22-3-2-7 (Burns Repl. 1965) provides:

Nothing in this act . . . shall be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty.

Plaintiff argues that the absence of the words “statutory penalty” indicates that the , legislature intended an action for punitive damages to be included in the proviso. The statute plaintiff relies upon (§ 40-2148, IC 22-1-1-19) does not provide criminal penalties. Thus, plaintiff contends the employee is also entitled to recovery exemplary damages in the court where his exclusive remedy for compensation for job-related injuries lies under the Workmen’s Compensation Act. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934).

Defendant argues that the purpose of the Workmen’s Compensation Act was to remove obstacles and delays which had hindered the recovery of employees for injuries and to eliminate litigation. The employee was given a statutory right to compensation regardless of fault, and the employer’s liability was limited to that provided in the Act. The Court agrees. See Stainbrook v. Johnson County Farm Bureau Coop Assn., 125 Ind.App. 487, 122 N.E.2d 884 (1954). Defendant notes that the Employers Liability Act did not create absolute liability, but merely made the defenses of contributory negligence and assumption of the risk unavailable in certain situations. Nevertheless, even assuming that the actions enumerated by plaintiff existed in 1915, defendant contends that § 40-1206 completely negates them, and § 40-1207 does not preserve them. The Court agrees.

The Compensation Act specifically abolishes common law actions against an employer subject to its provisions. Hickman, supra, 207 F.Supp. at 833-834. The remedies of the act should extend to all situations where the employee would have his remedy at common law if there were no act, and the act should be so construed where its language reasonably permits such a construction, since the general purpose of the act was to substitute its provisions for pre-existing rights and remedies. In re Bowers, 65 Ind.App. 128, 116 N.E. 842 (1917).

Plaintiff’s contention that § 40-1206 preserves an action for violation of statute has been foreclosed. In Selby v. Sykes, 189 F.2d 770 (7th Cir. 1951) the plaintiff claimed that an employer’s violation of a statutory duty took the claim out of the classification of Workmen’s Compensation cases, and the court held that contention could not be sustained. Selby involved a claimed violation of the Dangerous Occupations Act, but the court discussed Indiana cases involving other statutes, including the Employer’s Liability Act. See Harshman v. Union City Body Co., 105 Ind.App. 36, 13 N.E.2d 353 (1938). Selby held that wilful and wanton violations of statutory duties were precluded by the exclusive remedy provision of § 40-1206.

Plaintiff’s contention that § 40-1207 preserves a right of action was also advanced by the plaintiff in Selby and rejected by the court. Selby found that whether or not a compensable injury to an employee arises out of the statutory violation and is discharged is immaterial in a prosecution for the penalty. 189 F.2d at 773. The statute in Selby provided for criminal penalties upon violation, and plaintiff argues that since the statutory violation alleged here results only in civil penalties, an action for punitive damages is not foreclosed. The penalty provision which plaintiff relies upon, Ind.Ann.Stat. § 40-2148, was repealed in 1971. However, the repeal of the penalty provision does not alter plaintiff’s argument, for plaintiff argues that the word “penalty” in § 40-1207 should be construed as including an action for exemplary damages in the absence of a statutory provision for criminal penalties.

The Indiana courts have clearly established that common law actions for punitive damages are foreclosed by the Compensation Act. In Burkhart v. Wells Electronics Corp., 139 Ind.App. 658, 215 N.E..2d 879 (1966) the court refused to draw any distinction between compensatory and punitive damages for intentional torts and found that punitive damages were not recoverable when the tort arose out of and in the course of employment. The question remaining is whether an action for punitive damages for statutory violations is preserved by § 40-1207. In light of the Indiana cases, the Court is of the opinion that the term “penalty” must be interpreted in the strict sense as any pecuniary charge imposed and enforced by the state for the violation of statute. .See generally, 36 Am.Jur.2d Forfeitures and Penalties § 2. Although Selby did not expressly hold that punitive damages were foreclosed under the theory advanced by plaintiff, it did hold that an action for damages was foreclosed and the holding impliedly included both compensatory and punitive damages. Fort Worth Elevators, supra, is inapposite, because Texas has a constitutional provision specifically granting the right to exemplary damages for wilful acts of a corporation resulting in homicide. Texas Const., Art. 16, § 26. Moreover, Burkhart indicates that damages which are grounded upon the public policy of the state, as well as damages grounded upon a compensatory policy, are foreclosed to an employee by the Compensation. Act. Thus, the Court is of the opinion that it is firmly established that when an injury to an employee is caused by an accident arising out of his employment, his remedy under the Compensation Act is exclusive regardless of whether the cause of the accident was negligence or whether his complaint seeks punitive damages. Cf. Seaton v. United States Rubber Co., 223 Ind. 404, 61 N.E.2d 177, 180 (1945).

Plaintiff seeks to distinguish Selby and Pearson v. Rogers Galvanizing Co., 115 Ind.App. 426, 59 N.E.2d 364 (1945), on the ground that those eases dealt with violations of statutes enacted prior to the Workmen’s Compensation Act, while this case involves safety statutes passed after 1915. Plaintiff argues that the legislature must be presumed to have passed these statutes with the Workmen’s Compensation Act in mind. The Court agrees, but draws the opposite conclusion from that of plaintiff. The fact that the legislature did not provide for a private action for punitive damages must be interpreted as an af-firmance of the exclusive remedy provisions of the Workmen’s Compensation Act. Moreover, as defendant notes, statutes similar to the one relied upon by plaintiff, § 40-2139, have existed since 1899. See notes to § 40-2138. The wording of § 40-1207 cannot be read in isolation, but must be construed in the light of the legislative intent to substitute the Workmen’s Compensation Act’s provisions for all pre-existing rights and remedies of the employee. In Re Bowers, supra. Other states have expressly reserved actions resulting from statutory violations or wilful torts from their Workmen’s Compensation Acts. See C. J.S. Workmen’s Compensation §§ 927-929. Indiana has not chosen to do so under this statute.

Therefore, since there is no allegation of rejection of the Compensation Act by the employee or employer, plaintiff’s remedy under the Compensation Act is exclusive, and the action must be dismissed for failure to state a claim upon which relief can be granted. Hickman, supra.

      . Indiana did reserve a right of action growing out of violation of § 40-1602, IC 22-3-5-2. This language was later deleted from the statute. See Hiehmam, supra.