Russell v. National Mediation Bd.

• Decision Date: 22 September 1983
• Docket Number: No. 82-1466,82-1466
• Citation: 714 F.2d 1332
• Parties: 114 L.R.R.M. (BNA) 2800, 98 Lab.Cas. P 10,483 Laurence G. RUSSELL, William L. Hanna and Eddie D. Langwell, Plaintiffs- Appellants, v. NATIONAL MEDIATION BOARD, the Atchison, Topeka and Santa Fe Railway Company, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1332

714 F.2d 1332

114 L.R.R.M. (BNA) 2800, 98 Lab.Cas. P 10,483

Laurence G. RUSSELL, William L. Hanna and Eddie D. Langwell Plaintiffs- Appellants, v. NATIONAL MEDIATION BOARD, the Atchison, Topeka and Santa Fe Railway Company, et al., Defendants-Appellees.

No. 82-1466.

United States Court of Appeals Fifth Circuit.

Sept. 22, 1983.

Rehearing and Rehearing En Banc Denied Nov. 28, 1983.

Robert F. Gore, Nat'l Right to Work Legal Defense Foundation, Inc., Springfield, Va., John Cosmic, Amarillo, Tex., for plaintiffs-appellants.

Ann Sheadel, Atty., Dept. of Justice, Washington, D.C., for National Mediation Bd.

Joseph Guerrieri, Jr., John J. Sullivan, Washington, D.C., for Broth. of Railway, etc.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN and JOLLY, Circuit Judges, and PUTNAM^*, District Judge.

E. GRADY JOLLY, Circuit Judge:

This case, one of first impression, involves the question of whether jurisdiction exists under the Railway Labor Act, 45 U.S.C. §§ 151-188, to review refusal by the National Mediation Board to process an employee's application to hold an election among a class of employees after the Board determined that those employees apparently desired to terminate collective representation. We find that while judicial review of Board actions is limited, jurisdiction does exist to compel compliance with the Act. We find further that the Board has here failed to fulfill its statutory duty to investigate a representational dispute so as to allow full and free expression of employee desires with regard to collective representation. Jurisdiction exists, therefore, and we reverse the lower court and remand this case for disposition consistent herewith.

I.

In June 1943 the police officers and special agents below the rank of captain on the Atchison, Topeka and Santa Fe Railroad elected to be represented under the Railway Labor Act by the National Council of Railway Patrolmen's Union, AFL. This selection was certified by the Board in Case R-1091 (1943).

As revealed by the record, the employees in the bargaining unit over the years apparently considered the union a good representative. No attempt was made, prior to the events involved here, either to oust the union or to replace it with another union. No subsequent ratification of the union's representation has ever been made, even when the Railway Patrolmen's Union was replaced as the collective bargaining representative by its successor in interest, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees ["BRAC"].

For whatever reason, however, this era of good feelings between BRAC and the Santa Fe police officers became inclement in 1980. In the wake of similar efforts by other Santa Fe employee groups, some of the officers formed an "Association of Santa Fe Railway Police Officers." On January 4, 1981, the Association mailed a letter to members of the bargaining unit soliciting their support in the attempt to "discertify" BRAC as the collective bargaining representative. According to the letter, the Association "will have its own representation, with collective bargaining rights, to bargain for our own needs, not those of the clerks." A follow-up letter on February 22, 1981, from two of the plaintiffs and a third bargaining unit employee indicated that response to the January 14 letter had been favorable and proposed selection of "a rank and file employee," Larry Russell, as the unit's representative "for purposes of getting us placed in the 'exempt employees' category." The letter indicated that such "exemption" should "result in improved benefits and conditions ...." The letter included a detailed list of proposed salary terms and conditions of employment. The last "proposal" stated that "[a]ll agreements, rules, practices, interpretations, and/or understandings, however established, shall be abrogated ...." Also included with the letter was an authorization card designating Larry Russell as representative "for all purposes under the Railway Labor Act." According to the plaintiff's brief, BRAC responded to the February 22 letter with two letters in opposition to the proposed rejection of BRAC as collective bargaining agent. These letters, however, are not included in the record.

In response to the second letter, 113 cards were returned "authorizing" Larry Russell to serve as "representative" for the employee unit. According to the plaintiffs, the unit comprised 210 employees and, thus, also according to the plaintiffs, a majority of the employees desired to be "exempt," i.e., desired no permanent collective bargaining representative.

Armed with the authorization cards, on March 21, 1981, Russell filed an "Application for Investigation of Representational Dispute" with the Board. The application stated that "a dispute has arisen among the employees of [Santa Fe] as to who are the representatives ... designated and authorized in accordance with the requirements of the Railway Labor Act." Russell requested that the Board "investigate this dispute and certify the name or names of the individuals or organizations authorized to represent the employees involved in accordance with Section 2, Ninth, of the Act."

The Board requested responses to Russell's application from Santa Fe and BRAC. BRAC filed a Statement of Position, opposing the application on the grounds that "(1) Russell's application in effect constitutes a petition for decertification," not authorized by the Act; "(2) Russell lacks any intention to act as the 'representative' of employees, as that term is used in the Railway Labor Act;" and (3) Santa Fe had "assisted and encouraged, if not initiated and orchestrated," Russell's application.

In a significant portion of its statement, BRAC discussed three previous Board cases in which a Santa Fe employee, acting on behalf of his craft or class of employees, had sought to oust the incumbent union, abrogate the collective bargaining agreement, and then have the Board revoke the certification, thereby leaving the employees unrepresented. ¹

The Board received the statements and evidence from BRAC and Santa Fe, as well as a statement from the plaintiffs in response to BRAC's statement. The Board also considered a documented telephone conversation between the chief hearing officer for the Board and Russell's attorney. According to the officer's report, dated April 13, 1981, the attorney indicated that Russell intended "to do what McDaniel did with the Yardmasters ..., namely, win, negotiate an 'exempt' status and walk away from his status as a representative." Among other things, the hearing officer told Russell's attorney that "the Board could dismiss an application any time it found a lack of intent to represent employees."

The other items of information considered by the Board in its investigation were three letters, verbatim copies each of the others, dated April 17, 1981, from Russell to his congressman, Representative Hightower, and to his two senators, Senator Tower and Senator Bentsen. These letters, consistent with the representation made by Russell's attorney to the Board's chief hearing officer, complained that the Board's officer had indicated that Russell could not be elected despite the employees' desire to elect him.

Consideration of these items was the extent of the Board's investigation. On May 21, 1981, the Board issued an order dismissing Russell's application. In pertinent part, that order stated:

The Board finds that Laurence G. Russell lacks an intent to represent the subject craft or class if elected and certified, as evidenced by his announced and undisputed plan to abrogate all existing collective bargaining agreements, thereby leaving the employees unrepresented in effect, notwithstanding the certification and the obligations which attach thereto.

The order declared that, absent intent to represent, certification was not appropriate under the Act:

The Railway Labor Act, unlike the National Labor Relations Act, contains no statutory provision for decertification of a bargaining representative. [ATSF], 8 NMB No. 18 (1980) [the Blankenship case]. See also, Manufacturers Railway Company, 7 NMB Nos. 233 and 250 (1980). The Board will not progress an application for investigation of a representation dispute where the applicant lacks the intent to represent the craft or class, if certified. Chicago Union Station, 8 NMB No. 45 (1980), and will dismiss such an application because it is void ab initio. Id.

II.

Russell et al. filed this suit in July 1981 alleging two causes of action. The plaintiffs sought a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 that the Board's actions were unlawful, arbitrary and capricious, an abuse of discretion, in excess of statutory authority and violative of the plaintiffs' first amendment right to freedom of association. Also, a writ of mandamus was sought to compel the Board to hold a representational election.

The second cause of action sought an injunction directed to BRAC and Santa Fe to invalidate the union security agreement, at least until a representational election were held, requiring membership in BRAC as a condition of employment with Santa Fe.

The Board filed a Motion for Summary Judgment urging that the district court lacked jurisdiction to review its action. The district court granted that motion, holding that "[i]t is well established that [the Board's] decisions regarding representational disputes, made pursuant to Section 2, Ninth, of the Railway Labor Act, are not subject to judicial review." The lower court found "two limited exceptions" to this judicial bar: where the Board's action violates a party's constitutional rights and where it acts " 'in excess of its powers or contrary to a statutory mandate.' " (Citations omitted.) The court found that neither exception was present, holding that the Board's investigation was "sufficient and within its...