Continental Airlines v. National Mediation Bd.

• Decision Date: 11 June 1991
• Docket Number: Civ. A. No. 91-796 (CRR).
• Citation: 793 F. Supp. 330
• Parties: CONTINENTAL AIRLINES, INC., and Continental/Air Micronesia, Plaintiffs, v. NATIONAL MEDIATION BOARD, Defendant.
• Court: U.S. District Court — District of Columbia

793 F. Supp. 330

CONTINENTAL AIRLINES, INC., and Continental/Air Micronesia, Plaintiffs, v. NATIONAL MEDIATION BOARD, Defendant.

Civ. A. No. 91-796 (CRR).

United States District Court, District of Columbia.

June 11, 1991.

John J. Gallagher, P.C., Patricia A. Casey, and Deborah G. Pitcher of Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., Daniel P. Casey, Associate Gen. Counsel, Continental Airlines, Inc., Houston, Tex., and R. Tenney Johnson, Washington, D.C., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., D.D.C., Theodore C. Hirt and David J.F. Gross, U.S. Dept. of Justice, Washington, D.C.; Ronald M. Etters, Gen. Counsel, Nat. Mediation Bd., of counsel, for defendant.

CHARLES R. RICHEY, District Judge.

Before the Court are cross-motions for summary judgment.¹ The plaintiffs, two air carriers, challenge the validity of a decision by the National Mediation Board ("NMB" or "Board") to transfer the certifications from an employee union to its successor after the merger of the two unions. The NMB argues that the Court lacks jurisdiction to grant the plaintiffs relief. After careful consideration of the parties' memoranda, the arguments of counsel, the underlying law, and the entire record herein, the Court shall grant summary judgment for the NMB and dismiss this case.

I. Background

There is no genuine dispute as to the material facts. On September 13, 1989, the Union of Flight Attendants ("UFA") and the International Association of Machinists & Aerospace Workers ("IAM & AW") requested that the NMB transfer certifications issued to UFA in NMB Case Nos. R-5352 and R-5337 to the IAM & AW after the merger of the two organizations. The NMB then investigated the circumstances of the IAM/UFA merger for one year.² The Board considered hundreds of pages of evidence and also reviewed submissions by the plaintiffs attacking the validity of the union merger.

The Board concluded from its investigation that UFA had merged into the IAM in 1984; the UFA flight attendants had supported the merger in an internal ratification election by a vote of 1,077 to 161; the ratification vote was free of procedural irregularities; despite the five-year delay, the unions had timely filed a transfer request; and a transfer of certifications from UFA to IAM was appropriate. See In Re: Rep. of Empl. of Continental Airlines and Air Micronesia — Flight Attendants, 18 N.M.B. 40 (1990).

The plaintiffs filed the instant suit challenging the Board's decision on the ground that the Board failed to investigate properly the unions' request for a transfer of certifications. The plaintiffs argue that NMB violated the Railway Labor Act and the Constitution by basing its transfer decision on a union merger ratification vote which occurred in 1984 and which was based on a plurality vote.

II. Analysis

A. The Standard for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure requires that the Court grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." It is well established that the Court must believe the nonmovants' evidence and draw all justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). However, "the mere existence of a scintilla of evidence in support of the nonmovants' position will be insufficient; there must be evidence on which the jury could reasonably find for the nonmovants." Id. at 252, 106 S.Ct. at 2512.

B. The Scope of Judicial Review

Under the Railway Labor Act ("RLA"), judicial review of a Board decision is "one of the narrowest known to the law." Internat'l Ass'n of Machinists v. TWA, 839 F.2d 809, 811 (D.C.Cir.1988), amended 848 F.2d 232, (D.C.Cir.1988) cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 40 (1988). A reviewing court only takes a "peek at the merits" to determine whether it is "obvious on the face of the papers" that the Board totally failed to undertake an investigation of a representation dispute. Teamsters v. Bhd. of Ry. Clerks, 402 F.2d 196, 205 (D.C.Cir.), cert. denied, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968); see Brotherhood of Ry. & S.S. Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 650, 661, 85 S.Ct. 1192, 1198, 14 L.Ed.2d 133 (1965). The Court "is empowered to proceed no further" unless the "peek" reveals such an obvious error. Prof. Cabin Crew Ass'n v. NMB, 872 F.2d 456, 463 (D.C.Cir. 1989), cert. denied, 493 U.S. 974, 110 S.Ct. 497, 107 L.Ed.2d 500 (1989).

The Court may review Board decisions which violate its "clear and mandatory" statutory duties, Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 184, 3 L.Ed.2d 210 (1958), but only if the violation is obvious without the need for "arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide." Brotherhood of Ry. & S.S. Clerks, 380 U.S. at 671, 85 S.Ct. at 1203; see Prof. Cabin Crew, 872 F.2d at 459; Teamsters v. NMB, 136 L.R.R.M. 2193, 2194, 1990 WL 264 708 (D.D.C.1990).

The central issue in this case is whether the NMB failed to carry out its statutory duty to investigate the representation dispute. See Brotherhood of Ry. & S.S. Clerks, 380 U.S. at 661, 85 S.Ct. at 1198 ("the Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to `investigate' the dispute"). The focus of the inquiry is whether the Board investigated the dispute, not how it conducted its investigation:

Reviewing a certification after an investigation by the NMB and reviewing whether the NMB made its statutory investigation at all are two completely different matters. While we cannot, and do not review the former, we can and do review the latter.

In-Flight Catering v. NMB, 555 F.2d 712, 717 (9th Cir.1977). Here, the plaintiffs fail to meet their heavy burden of proving that the Board committed an error of "constitutional dimension or gross violation of the RLA." Internat'l Brotherhood of Teamsters v. Brotherhood of Ry., Airline & S.S. Clerks, 402 F.2d 196, 205 (D.C.Cir.), cert. denied sub nom., Brotherhood of Ry., Airline & S.S. Clerks v. NMB, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968).

C. Plaintiffs' Contentions

At bottom, the plaintiffs advance three major arguments that the NMB's investigation violated the RLA. The plaintiffs complain the Board based its transfer decision on (1) a union's ratification vote (2) that occurred in 1984 and (3) in which a plurality of flight attendants supported the merger. Moreover, the plaintiffs argue that NMB violated the Constitution. However, the plaintiffs fail to demonstrate that the NMB violated a clear and mandatory duty, and therefore judicial review is unavailable. See Teamsters, 136 L.R.R.M. at 2194.

1. NMB Did Not Violate the RLA By Basing Its Transfer Order on the Union Merger Ratification Vote

The plaintiffs argue that RLA § 2, Ninth prohibits the Board from granting the request for transfer of certifications on the basis of the unions' merger ratification vote. This argument must fail. Section 2, Ninth provides in that conducting an election, the Board:

shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after a hearing shall within 10 days designate the employees who may participate in the election.

While this language requires the Board to take certain steps when and if it decides to conduct an election, the RLA does not prohibit the Board from investigating the circumstances of a union merger ratification vote and granting a transfer of certifications based on that vote if the circumstances warrant. Section 2, Ninth imposes no "clear and mandatory" obligation on the NMB to refrain from investigating the circumstances of a union merger vote and to abstain from granting a transfer of certifications based on that vote. Cf. Teamsters, 136 L.R.R.M. at 2194 (rejecting the analogous argument that the RLA imposed a clear and mandatory duty on the Board to refrain from investigating in the wake of a carrier request).³

2. NMB Did Not Violate the RLA By Basing Its Transfer Order on Five-Year-Old Data

The plaintiffs allege that NMB violated the RLA by basing its transfer decision on the UFA's ratification vote, which had occurred five years before the Board's investigation.⁴ However, the plaintiffs fail to demonstrate that the Board violated any clear and mandatory provision of the RLA by using the five-year-old data. The resolution of the issues concerning the timeliness of the data was within the Board's discretion, and did not rise to a "gross violation of the statute." For example, in British Airways Bd. v. NMB, 685 F.2d 52 (2d Cir.1982), the Court of Appeals held that "selecting a cutoff date, even though as events unfolded it was not possible to conduct the election until more than two years after the date, and counting ballots that reasonably appeared from postmarks to have arrived at the post office before the deadline were decisions well within NMB's discretion," and therefore the District Court had no jurisdiction to review NMB's certification in the election case. Id. at 55. See also USAir v. NMB, 711 F.Supp. 285 (E.D.Va.), aff'd, 894 F.2d 603 (4th Cir.1989) (NMB's refusal to adjust voter eligibility cut-off dates for representation election to accommodate 197 employees not subject to judicial review). The Board was within its discretion in examining the circumstances surrounding the unions' delay in filing a petition and considering that petition "timely filed."

3. The RLA Did Not Prohibit the NMB from Basing its Transfer Order on a Plurality Vote

The plaintiffs also contend that NMB violated the RLA because the union merger ratification on which the NMB...