29 F.3d 655 (D.C. Cir. 1994), 91-5223, Railway Labor Executives' Ass'n v. National Mediation Bd.

Docket Nº:91-5223, 91-5310.
Citation:29 F.3d 655
Party Name:RAILWAY LABOR EXECUTIVES' ASSOCIATION; American Railway and Airway Supervisors' Association; American Train Dispatchers Association; Brotherhood of Locomotive Engineers; Brotherhood of Maintenance of Way Employes; Brotherhood of Railroad Signalmen; Brotherhood Railway Carmen; Hotel Employees and Restaurant Employees International Union; Internation
Case Date:July 19, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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29 F.3d 655 (D.C. Cir. 1994)


Airway Supervisors' Association; American Train Dispatchers

Association; Brotherhood of Locomotive Engineers;

Brotherhood of Maintenance of Way Employes; Brotherhood of

Railroad Signalmen; Brotherhood Railway Carmen; Hotel

Employees and Restaurant Employees International Union;

International Association of Machinists and Aerospace

Workers; International Brotherhood of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers and Helpers;

International Brotherhood of Electrical Workers;

International Brotherhood of Firemen & Oilers;

International Longshoremen's Association; National Marine

Engineers' Beneficial Association; Seafarers International

Union of North America; Sheet Metal Workers' International

Association; Transport Workers Union of America;

Transportation Communications International Union; United

Transportation Union, Appellants,



Burlington Northern Railroad Company; National Railway

Labor Conference, Intervenor Defendant-Appellees.

Nos. 91-5223, 91-5310.

United States Court of Appeals, District of Columbia Circuit

July 19, 1994

Argued Feb. 9, 1994.

As Amended July 20, 1994[*]

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John O'B. Clarke, Jr., Washington, DC, argued the cause, for appellants. With him on the briefs was L. Pat Wynns, Washington, DC. William Grattan Mahoney, Washington, DC, entered an appearance.

Edward T. Swaine, Attorney, U.S. Dept. of Justice, Washington, DC, argued the cause, for appellee National Mediation Bd. With him on the brief were Frank W. Hunger, Asst. Atty. Gen., U.S. Dept. of Justice, Eric H. Holder, Jr., U.S. Atty., Barbara C. Biddle, Atty., U.S. Dept. of Justice, Ronald M. Etters, Gen. Counsel, National Mediation Bd., Washington, DC. On the brief, for appellee National Ry. Labor Conference were Richard T. Conway, Ralph J. Moore, Jr. and D. Eugenia Langan, Washington, DC.

Thomas J. Knapp, Fort Worth, TX, argued the cause, for intervenor Burlington Northern R. Co. With him on the brief were Lawrence M. Stroik, Charles W. Shewmake and Odesa L. Gorman-Stapleton, Fort Worth, TX.

On the brief for amici curiae Airline Indus. Relations Conference and Regional Airline Ass'n were Robert J. DeLucia, Harry A. Rissetto, Thomas E. Reinert, Jr. and Walter Coleman, Washington, DC.


Opinion for the Court filed by Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge STEPHEN F. WILLIAMS, with whom Silberman, Ginsburg, and Henderson, Circuit Judges, join.

HARRY T. EDWARDS, Circuit Judge:

Under Section 2, Ninth of the Railway Labor Act ("RLA" or "Act"), the National Mediation Board ("NMB" or "Board") is given very limited authority to investigate representation disputes "among a carrier's employees." See 45 U.S.C. Sec. 152 Ninth (1988). Such investigation is initiated only "upon request of either party to the dispute," and it is clear that a carrier is not a "party" under Section 2, Ninth. Id. Following investigation, the Board certifies "to both parties," and "to the carrier," the employees' designated bargaining agent. Id. Nothing in this statutory provision authorizes the Board to investigate or resolve a representation dispute either sua sponte or pursuant to a petition from a carrier; and for more than fifty years following the enactment of the RLA, the Board acted to address representation disputes only when it received requests from or on behalf of employees.

Despite the absence of any statutory authority, the Board announced in 1989 that carriers, as well as the Board itself, could initiate representation proceedings in the wake of railroad mergers and acquisitions, on the theory that such events were likely to precipitate uncertainty as to the proper representation of employees. See Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Railroad Industry, 17 N.M.B. 44 (1989) ("Merger Procedures"). Appellants, a coalition of unions representing railroad employees, challenged the Merger Procedures as an illegal arrogation of authority not conferred by the Act. The District Court dismissed appellants' suit as unreviewable under Switchmen's Union of North America

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v. NMB, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). On appeal, in an opinion by then-Judge Ruth B. Ginsburg, a divided panel of this court reversed, holding that judicial review was available and that the Board had exceeded its statutory authority. See Railway Labor Executives' Ass'n v. NMB, 988 F.2d 133 (D.C.Cir.1993). Having accepted the Board's suggestion for rehearing en banc, we again reverse.

The Supreme Court has made clear both that the Board's authority under Section 2, Ninth is "exclusive" only "[i]f the present dispute falls within Sec. 2, Ninth," General Comm. of Adjustment v. Missouri-Kan.-Tex. R.R., 320 U.S. 323, 336, 64 S.Ct. 146, 152, 88 L.Ed. 76 (1943) (emphasis added), and that the Board's role under Section 2, Ninth is very narrow. See Switchmen's, 320 U.S. at 304, 305, 64 S.Ct. at 98, 99, 88 L.Ed. 61. The Board does not even claim that the terms of Section 2, Ninth support the authority that it asserts, and it can point to no other provision in the RLA giving it the authority to promulgate the Merger Procedures. Instead, the Board would have us presume a delegation of power from Congress absent an express withholding of such power. This comes close to saying that the Board has the power to do whatever it pleases merely by virtue of its existence, a suggestion that we view to be incredible. Because we find that the Board's attempt to expand its jurisdiction has no basis whatsoever in the language of the statute or its legislative history, and because the Board's novel claim of authority is belied by longstanding agency practice, we hold that the Merger Procedures constitute a "gross violation" of Section 2, Ninth. 1

Judicial review is available because the challenged action constitutes a "gross violation" of the Act. Having found such a violation, it is clear that appellants must prevail on the merits. Accordingly, we reverse the judgment of the District Court dismissing appellants' complaint; we remand case number 91-5223 for entry of declaratory and injunctive relief in appellants' favor; and we remand case number 91-5310 for reconsideration in light of the new judgment in case number 91-5223.


Enacted in 1926, the RLA is a comprehensive statute governing labor relations in the railroad and airline industries. In 1934, Congress amended the Act to create the National Mediation Board, a three-member agency whose primary function is to mediate labor disputes among employees and carriers covered by the RLA. See 45 U.S.C. Sec. 154 (1988). Section 2, Ninth of the Act also endows the Board with limited jurisdiction to investigate representation disputes among employees "upon request of either party to the dispute," and, following such investigation, to certify to the parties and to the carrier the identity of the designated bargaining representative. Id. at Sec. 152 Ninth.

For more than fifty years following its creation, the Board unvaryingly conducted representation investigations only at the behest of employees or their representatives. In 1987, however, with no direction from Congress, the Board decided that existing procedures under Section 2, Ninth were "inadequate to provide for a fair and orderly resolution of representation matters put into flux by a merger." Trans World Airlines/Ozark Airlines, 14 N.M.B. 218, 241 (1987). The Board announced its intention to promulgate revised procedures with prospective application for handling representation disputes sparked by mergers, acquisitions and consolidations, and it set forth immediately effective interim procedures which permitted carriers to invoke the Board's jurisdiction in those cases. See id. at 241-42; see also Missouri Pacific Railroad (Union Pacific), 15 N.M.B. 95, 111 (1988) (clarifying that Trans World Airlines/Ozark Airlines "interim procedures were meant to apply to the railroad industry as well as the airline industry"). Thereafter, the Board sought comment from carriers and labor organizations on a draft of the Merger Procedures,

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and, in November 1989, issued them in final form.

The Board purported to rest promulgation of the Merger Procedures on "established authority under Section 2, Ninth, of the Railway Labor Act." 17 N.M.B. at 44. The Board cited no specific language in the statute to support this assertion. Rather, recognizing that mergers 2 may lead to changes in craft or class designations and may result in multiple certifications for the same craft or class of employees, the NMB concluded that expanded investigatory procedures were appropriate in order to further the Board's purported mandate of certifying only unions which represent the "majority of a system-wide class of employees." See id. at 46. Accordingly, the Merger Procedures seek to require carriers to inform the NMB in writing of intent to merge, after which the Board will conduct an investigation to resolve "the status of the certifications on the merged carrier." Id. at 51.

The Merger Procedures also contemplate that the Board sua sponte may investigate the status of post-merger certifications. Thus, for example, the Procedures state that it is "the affirmative responsibility of the Board" under the Act to determine the status of its prior certifications. Id. at 47; see also id. at 49 (asserting that the Board retains "flexibility to appropriately investigate...

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