AM. WEST AIRLINES v. NAT. MEDIATION BD.

• Decision Date: 20 July 1990
• Docket Number: No. CIV 90-925 PHX EHC.,CIV 90-925 PHX EHC.
• Citation: 743 F. Supp. 693
• Parties: AMERICA WEST AIRLINES, INC., Edward R. Beauvais and Michael J. Conway, Plaintiffs, v. NATIONAL MEDIATION BOARD, Defendant.
• Court: U.S. District Court — District of Arizona

743 F. Supp. 693

AMERICA WEST AIRLINES, INC., Edward R. Beauvais and Michael J. Conway, Plaintiffs, v. NATIONAL MEDIATION BOARD, Defendant.

No. CIV 90-925 PHX EHC.

United States District Court, D. Arizona.

July 20, 1990.

Robert Siegel, Dan M. Durrant, for plaintiffs.

Scott Simpson, Ronald M. Etters, for defendant.

MEMORANDUM OPINION (PRELIMINARY INJUNCTION)

CARROLL, District Judge.

On September 9, 1988, the Association of Flight Attendants (AFA), a labor union, filed an application with the National Mediation Board (the Board) pursuant to The Railway Labor Act (RLA), 45 U.S.C. § 152, Ninth alleging a representation dispute among flight attendants at America West. On January 5, 1989, the Board ordered an election among the flight attendants. The ballots were mailed to employees on January 17, 1989, and the count was scheduled for February 15, 1989.¹ 301 of the 1193 eligible employees voted in favor of AFA representation. Two days prior to the ballot count AFA filed a "Motion for Board Determination of Carrier Interference". In its motion AFA alleged that America West: increased benefits during the organizing campaigns, did not post the Board's official notices of election, distributed literature critical of AFA and through coercion deterred employees from voting for AFA. Exhibits and affidavits were submitted in support of AFA contentions. America West filed an opposition to the motion also supported by exhibits and affidavits.

On January 12, 1990 the Board issued Findings Upon Investigation — Order. America West Airlines. Inc., 17 N.M.B. 79 (1990). The Board determined that America West did post notices of election and the evidence of coercive speeches and statements was inconclusive. However, the Board found that by the "`totality' of its conduct" America West "improperly interfered with, influenced, and coerced its flight attendants in their freedom of choice" in violation of 45 U.S.C. § 152, thus tainting "the laboratory conditions which the Board seeks to promote in representation elections".

The Board determined that announcement of work rule changes, implementation of increased layover benefits on January 1, 1989 and the timing of the profit-sharing party with Edward Beauvais and Michael Conway (chairman and president, respectively) and letters criticizing the AFA, contaminated the election process.

The Board authorized a re-run election. Furthermore, the Board ordered that a special "Notice to All Employees" (Notice) be distributed along with the ballot materials to each eligible voter. The Special Notice provides in pertinent part:

After an investigation conducted by the National Mediation Board in which the Carrier and the Union had the opportunity to present statements and evidence, the National Mediation Board found that the Carrier's conduct, taken as a whole, improperly interfered with employees' choice of representative under Section 2, Ninth, of the Act. It is unlawful for a carrier to interfere with the organization of its employees.

The Notice also sets forth the text of 45 U.S.C. § 152, Fourth. This same section is also referenced in the Notice of Election.

On January 25, 1990, America West submitted a motion for reconsideration. America West requested an evidentiary hearing or at the "very least" a modification of the notice including a statement that America West disagreed with the finding of illegal conduct. The motion for reconsideration was denied by the Board on July 12, 1990.

Plaintiffs seek an injunction prohibiting the Board from distributing the special Notice. Plaintiffs contend that: this Court has jurisdiction to enjoin distribution of the Board's proposed Notice, because distribution of the Notice without a hearing would violate their due process rights, the 1st Amendment and the Railway Labor Act.

Defendant asserts that this Court lacks subject matter jurisdiction on the grounds that the plaintiffs' claims are not ripe for review, there is no standing and the Board's election procedures are not subject to review.

A hearing (oral argument) was held before this Court on July 10, 1990. On July 17, 1990, the date which the Board was to mail the ballots and Notice in question, this Court issued an Order, enjoining the Board from disseminating the special Notice in its present form. The Order did not enjoin the holding of the election as scheduled.

Jurisdiction

It is unquestionable that the courts have extremely limited review of the Board's actions. One Circuit has held that Judicial review of National Mediation Board decisions is one of the narrowest ("`a peek at the merits'") known to the law. International Association of Machinists v. Trans World Airlines, Inc., 839 F.2d 809, 811-812 (D.C.Cir.1988).

The Supreme Court has held that the RLA precludes review of the Board's certification of a collective bargaining representative. Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943).

In Brotherhood of Railway and Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d 133 (1965) United Airlines challenged the Board's voting class determination and selection of the form of ballot. It was held that the Board's action is reviewable only to the extent that it bears on the question of whether it performed the statutory duty to investigate the dispute. Id. at 1198. Furthermore, when addressing the ballot form issue the Supreme Court concluded that the Board's selection of a ballot is not subject to judicial review where there is no showing that it has acted in excess of its statutory scheme. Id. at 1202.²

Courts may intervene in a representation dispute only to correct a constitutional violation or a gross violation of the RLA. Long Island Railroad Co. v. National Mediation Board, 703 F.2d 680, 681 (2nd Cir.1983).

Accordingly, this Court has jurisdiction to ascertain whether the determined action of the Board, i.e. dissemination of the special Notice in its present form, declaring the actions of America West unlawful, violates the carrier's constitutional rights or is a violation of 15 U.S.C. § 151 et seq.

Standing

Essentially it is defendants' contention that the plaintiffs fail to allege a sufficient or substantial injury. Defendant further alleges that plaintiffs cannot bring this action until after any election when any damage from the special notice may be determined.

The Board concedes in its motion to dismiss that it does not have authority to determine that America West is guilty of a 45 U.S.C. § 152, Fourth violation.

The total effects of this Notice on the election process would be difficult, if not impossible to quantify. Further, extensive litigation would ensue, and a final determination of the issue would be delayed interminably. This is not the type of a case where it is appropriate to have a verdict now and the trial later. The issues involved in this case and the election itself are too important for that. Plaintiff, America West, has standing to bring this suit.

I conclude that review of the proposed action of the Board after the election would foreclose any effective relief to plaintiffs should their claims have merit.

Ripeness

Defendant asserts that America West's claim is not ripe for review.

The basic rationale of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the parties". Pac. Gas & Elec. v. St. Energy Resources Conserv., 461 U.S. 190, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983). The question of ripeness turns on the "fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration". Pac. Gas & Elec., 103 S.Ct. at 1720 (1983) citing Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir.1986). A claim is fit for decision if the issues raised are primarily legal and do not require further factual development and the challenged action is final. Trustees for Alaska, 806 F.2d at 1381 (1986).

The issues raised by this action are primarily if not entirely legal: whether the Board's sending of the Notice to Employees violates the plaintiff's constitutional rights and the RLA. There are no relevant disputed facts.

Secondly, further factual development will not help this Court decide whether the language contained in the Notice is violative of the Constitution or exceeds the authority of the Board. This Court must decide whether the Board's representation that America West has acted unlawfully is appropriate. There is no need for any further facts as to whether America West's actions were unlawful because that is not a determination for the Board or this Court to make. Abstaining from any decision until after the Board has distributed the Notice in question would not assist this Court in deciding whether such action was constitutional or within the strictures of the RLA.³

Lastly, the challenged action of the Board is final for the purposes of this review. The Board has ordered that the Notice be sent to America West employees along with the representation ballots and notice of election. The Board denied America West's motion to reconsider its order. Accordingly, the plaintiffs could seek review of the proposed action in no other forum but this Court. As stated above, the actual mailing of the Notice would do nothing to assist the Court's eventual ruling. Waiting for the distribution of the Notice would merely deprive plaintiffs of an adequate remedy if it is determined that the proposed action of the Board exceeds its authority. The disputed portions of the Notice have implications for America West — both with respect to...