663 F.3d 476 (D.C. Cir. 2011), 10-5253, Air Transport Ass'n of America, Inc. v. National Mediation Bd.
| Citation | 663 F.3d 476 |
| Opinion Judge | TATEL, Circuit Judge: |
| Party Name | AIR TRANSPORT ASSOCIATION OF AMERICA, INC., Appellant v. NATIONAL MEDIATION BOARD, et al., Appellees. |
| Attorney | Robert A. Siegel argued the cause for appellants. With him on the briefs were Walter Dellinger, Micah W.J. Smith, John J. Gallagher, Neal D. Mollen, Igor V. Timofeyev, Mitchell A. Mosvick, Robin S. Conrad, and Glenn M. Taubman. Stephen D. Brody entered an appearance. John S. Koppel, Attorney, U.S... |
| Judge Panel | Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges. Dissenting opinion filed by Circuit Judge HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge, dissenting: |
| Case Date | December 16, 2011 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit |
Page 476
Argued Sept. 19, 2011.
Page 477
Appeals from the United States District Court for the District of Columbia (No. 1:10-cv-00804).
OPINION
The Railway Labor Act provides that " [t]he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class." 45 U.S.C. § 152, Fourth. For seventy-five years, the National Mediation Board counted non-voters as voting against union representation, thereby requiring a majority of eligible voters to affirmatively vote for representation before a union could be certified. In 2010, the Board issued a new rule: elections will henceforth be decided by a majority of votes cast, and those not voting will be understood as acquiescing to the outcome of the election. Appellants challenge the new rule, claiming that it violates the statute and is arbitrary and capricious. Rejecting these arguments, the district court granted summary judgment to the
Page 478
Board. For the reasons set forth in this opinion, we agree and affirm.
I.
Labor relations in the railroad and airline industries are governed by the Railway Labor Act. See 45 U.S.C. § 151 et seq. Passed in 1926 and amended several times since, the Act seeks to avoid strikes by encouraging bargaining, arbitration, and mediation. Its goal is to " avoid any interruption to commerce," 45 U.S.C. § 151a, while protecting the right of workers to " organize and bargain collectively through representatives of their own choosing," 45 U.S.C. § 152, Fourth. See generally 45 U.S.C. § 151a (describing the " [g]eneral purposes" of the Act).
The Railway Labor Act has little to say about how employees are to choose their representatives. In section 2, Fourth, the Act provides that " [t]he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class." 45 U.S.C. § 152, Fourth. The statute also established the National Mediation Board, 45 U.S.C. § 154, assigning it the task of recognizing and certifying the chosen representative, 45 U.S.C. § 152, Ninth. " In the conduct of any election [,] ... the Board shall designate who may participate in the election and establish the rules to govern the election[.]" Id. If there are " any dispute[s] ... as to who are the representatives of such employees," the Board must investigate. Id.
Until the rulemaking at issue in this case, the only way employees could vote against union representation was by not voting at all. For example, a ballot might present the option of voting for union A, union B, or union C, and those preferring no union representation would simply abstain. Whichever candidate received a majority of the votes would become the elected representative unless, of course, a majority of voters abstained.
Last year, after issuing a Notice of Proposed Rulemaking, holding an open meeting, and evaluating public comments, the Board, with one member dissenting, changed its approach in several respects. For one thing, ballots will now include a " no union" option so that employees can affirmatively vote against union representation. Moreover, the Board will no longer interpret an abstention as a vote against union representation. Instead, the Board will interpret the intent of non-voters using " the political principle of majority rule with the presumption that those not voting assent to the expressed will of the majority voting." 75 Fed. Reg. 26,062, 26,069 (May 11, 2010) (internal quotation marks omitted). Finally, and setting the stage for this case, the new rule provides that " a majority of valid ballots cast will determine the [union] representative." Id. at 26,082 (emphasis added).
In proposing the change, the Board observed that the old rule rested not on " legal opinion and precedents, but on what seemed to the [1935] Board best from an administration point of view." 74 Fed. Reg. 56,750, 56,751 (Nov. 3, 2009) (internal quotation marks omitted). And in explaining its rule, the Board noted that in the political context non-voters are assumed to acquiesce in the outcome of elections on the theory that such an assumption better captures what they intend to convey by abstaining. The Board cited evidence that employees may fail to vote for a variety of reasons, including " travel, illness, or apathy," or because they would prefer to register no opinion on the question. 75 Fed. Reg. at 26,073. As to the last point, the Board cited comments, including one submitted by thirty-nine U.S. Senators, that employees should have an opportunity to truly abstain (of course, under the old rule
Page 479
abstaining meant voting against representation). Id. The Board believed that elections conducted under the new rule would, as in the political context, better reflect the true intent of non-participants, thus increasing the overall accuracy of representation determinations. Id.
The Air Transport Association of America, Inc. (ATA), an organization comprising major United States airlines, filed a complaint in the U.S. District Court for the District of Columbia alleging that the Board's new rule runs afoul of section 2, Fourth's plain text because it allows a union to be certified when less than a majority of all eligible voters vote. The complaint also challenged the new rule as arbitrary and capricious in violation of the Administrative Procedure Act. And, based largely on a letter sent from the dissenting member of the Board to several U.S. Senators, ATA sought discovery to explore its allegation that the two-member majority " predetermined" the outcome and " act[ed] with an unalterably closed mind." Appellants' Br. 57 (internal quotation marks omitted). The Chamber of Commerce, along with five Delta employees, who made the additional claim that the new rule violates their First Amendment right to free association, intervened as plaintiffs. The International Brotherhood of Teamsters, the Aircraft Mechanics Fraternal Association, and the United States Airline Pilots Association intervened as defendants.
Citing the general rule that discovery is typically " not available in APA cases," the district court denied ATA's request for discovery because it had failed to make the necessary " significant showing ... that it will find material in the agency's possession indicative of bad faith or an incomplete record." Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd., No. 10-0804, slip op. at 3 (D.D.C. June 4, 2010). The district court then granted summary judgment to the Board. It found that " nothing in the statute unambiguously requires that a majority of all eligible voters select the representative of the employees," nor " does it even require that a majority of all eligible employees vote in order for the election to be valid." Air Transp. Ass'n, 719 F.Supp.2d 26, 33 (D.D.C.2010). Having found the statute ambiguous, the district court then concluded that the Board's reading of the Railway Labor Act was reasonable. Id. at 39. ATA and the other plaintiffs now appeal.
II.
We begin with the key question presented: does section 2, Fourth require that a majority of eligible voters vote, as ATA claims, or does it allow a union to be certified by a majority of votes cast even if a majority of eligible voters do not participate in the election, as the Board's new rule allows?
The Supreme Court came close to answering this question in Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). There, two unions competed to represent the employees, and although one union won a majority of the votes cast, it failed to receive votes from a majority of all eligible voters. Interpreting the very provision at issue in this case— section 2, Fourth— the Supreme Court held that a union could win even without procuring a majority of all eligible votes; the union needed only a majority of votes cast. The Court reasoned:
Election laws providing for approval ... by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. Those who do not participate are presumed to assent to the expressed will of the majority of those voting.
Page 480
Virginian Ry., 300 U.S. at 560, 57 S.Ct. 592 (internal citations and quotation marks omitted). We say the Court came " close" to answering the question because, in the election at issue, a majority of eligible voters had in fact voted, meaning that contrary to the repeated assertions of our dissenting colleague, the Court had no need to determine whether a majority must participate, or in other words, whether a quorum is required. S...
To continue reading
Request your trial
-
Rulemaking
...Discovery would be available only “if a party makes a significant showing— 99. 665 F.3d 177 (D.C. Cir. 2011). 100. Id. at 192. 101. 663 F.3d 476(D.C. Cir. 122 Developments in Administrative Law and Regulatory Practice variously described as a strong, substantial, or prima facie showing—that......