INTERNATIONAL BRO. OF TEAM., ETC. v. Zantop Air Transport Corp.

• Decision Date: 24 April 1968
• Docket Number: No. 17609.,17609.
• Citation: 394 F.2d 36
• Parties: INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Plaintiff-Appellant, v. ZANTOP AIR TRANSPORT CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

394 F.2d 36 (1968)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Plaintiff-Appellant, v. ZANTOP AIR TRANSPORT CORP., Defendant-Appellee.

No. 17609.

United States Court of Appeals Sixth Circuit.

April 24, 1968.

Gerry M. Miller, Milwaukee, Wis., Lawrence A. Burns, Detroit, Mich., David Leo Uelmen, Milwaukee, Wis., Goldberg, Previant & Uelmen, Milwaukee, Wis., on brief, for appellant.

John A. Kruse, Detroit, Mich., Alexander, Buchanan & Conklin, Detroit, Mich., on brief, for appellee.

Before PHILLIPS and COMBS, Circuit Judges, and WEINMAN, District Judge.^*

WEINMAN, District Judge.

This is an action brought by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) against Zantop Air Transport Corp.¹ (Zantop the carrier) seeking judicial relief against unlawful carrier interference with the statutory rights of its employees under the Railway Labor Act, 45 U.S.C.A. §§ 151-188 to select the Teamsters as bargaining representative in representation elections conducted by the National Mediation Board.

Under the Railway Labor Act, 45 U.S. C.A. § 152, par. 9, jurisdiction over representational disputes is vested in the National Mediation Board. Section 152, paragraph 9 of Title 45 provides as follows:

"If any dispute shall arise among a carrier\'s employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence or coercion exercised by the carrier. * * *"

The Teamsters Union invoked the services of the National Mediation Board, pursuant to the provisions of Section 152, paragraph 9, requesting the Mediation Board to conduct a secret ballot election to investigate and certify its status as bargaining representative of Zantop employees. An election was held and the Teamsters received 121 votes as against 21 for the Air Line Pilots Association, International. However, the National Mediation Board deferred certification of the Teamsters as bargaining representative pending an investigation into employee charges that fraudulent conduct on the part of the Teamsters during the course of the election tended to prevent a free expression of the employees representative choice.

While the Mediation Board was investigating the validity of the election in order to determine whether to certify the Teamsters Union as bargaining representative, the Teamsters Union filed this action in the District Court charging Zantop with various acts of unlawful conduct during the union's organizing campaign. The District Court sustained Zantop's motion to dismiss, holding that an uncertified labor organization may not seek judicial enforcement of statutory provisions guaranteeing the right of employees to organize and select a bargaining representative; that Congress, under the Railway Labor Act, has vested exclusive jurisdiction over such disputes in the National Mediation Board and that no jurisdiction lies in the Federal Courts until the remedies set forth in the Act have been fully exhausted.

The District Court did not question the right of employees, either individually or in concert, to obtain judicial relief for violation of their organizational rights under the provisions of the Railway Labor Act. See Brady v. Trans World Airlines, Inc., 223 F.Supp. 361 (1963). The District Court only held that an uncertified labor organization could not enforce such rights for the employees it sought to represent.

During oral argument before the Court, it was suggested that the issues in this appeal were rendered moot due to subsequent events. Counsel informed the Court that during the pendency of this appeal the National Mediation Board had set aside the election won by the Teamsters and conducted a second election upon the application of the Teamsters and the Air Line Pilots Association. In a decision and order styled:

NATIONAL MEDIATION BOARD WASHINGTON, D. C. 20572 In the matter of | CASE NO. R-3795 REPRESENTATION OF EMPLOYEES | DISMISSAL of > MARCH 16, 1967 UNIVERSAL AIRLINES, INC.² | Pilots and Co-Pilots |

The Board declined to certify either union because a majority of eligible employees failed to cast valid ballots in the second election.³

On July 10, 1967, the Board conducted a third election among the carriers employees upon the application of the Air Line Pilots Association, International and the applicant won the election by a vote of 187 to 41. In a decision and order styled:

NATIONAL MEDIATION BOARD WASHINGTON, D. C. 20572 In the matter of | CASE NO. R-3962 REPRESENTATION OF EMPLOYEES | (C-3782) of > CERTIFICATION UNIVERSAL AIRLINES, INC. | January 15, 1968 Pilots, Co-Pilots & Flight | Engineers |

the Board issued an order certifying the Air Line Pilots Association, International as bargaining representative of the carriers employees for the purposes of the Railway Labor Act.⁴

The Teamsters questioned whether an appellate court could consider matters which were not part of the appellate record.⁵ However, while an appellate court is not obligated to take notice of matters not brought to the attention of the lower court, it may take judicial notice where necessary to affirm or to show the impropriety of the decision of the lower court. American Legion Post No. 90 of Village of Mamaroneck v. First National Bank and Trust Co., 113 F.2d 868 (C.A. 2, 1940). Furthermore, the appellee asserts that the subsequent certification of the Air Line Pilots Association, International as bargaining representative of its employees renders this appeal moot. Decisions of the Supreme Court have established that when a fact not appearing in the appellate record renders the issues on any appeal moot, such fact may be proved by extrinsic evidence. Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895); Heitmuller v. Stokes, 256 U.S. 359, 41 S.Ct. 522, 65 L.Ed. 990 (1921). See Moore's Federal Practice § 57.13.

Many cases have recognized that a Court may take judicial notice of the rules, regulations and orders of administrative agencies issued pursuant to their delegated authority. Carter v. American Telephone & Telegraph Co., 365 F.2d 486 (C.A. 5, 1966); Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380 (C.A. 9, 1953). United States v. Rice, 176 F.2d 373 (C.A. 3, 1949); Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 63 S.Ct. 347, 87...