International Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Trans World Airlines, Inc.

• Decision Date: 01 June 1988
• Docket Number: Nos. 87-5092,87-5093 and 87-5176,AFL-CIO,s. 87-5092
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: 127 L.R.R.M. (BNA) 2854, 268 U.S.App.D.C. 130, 108 Lab.Cas. P 10,312 INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS,v. TRANS WORLD AIRLINES, INC., Appellant. TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al. TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al.

Page 809

839 F.2d 809

127 L.R.R.M. (BNA) 2854, 268 U.S.App.D.C. 130,

108 Lab.Cas. P 10,312

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO v. TRANS WORLD AIRLINES, INC., Appellant.

TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al.

TRANS WORLD AIRLINES, INC., Appellant, Deborah K. Boller, et al. v. NATIONAL MEDIATION BOARD, et al.

Nos. 87-5092, 87-5093 and 87-5176.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 7, 1988.

Decided Feb. 19, 1988.

As Amended June 1, 1988. ^*

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 86-01912 and 86-02980).

Eric Rosenfeld, New York City, for appellant Trans World Airlines. Deborah A. Folloni and Ronald A. Lindsay, Washington, D.C., entered appearances for appellant Trans World Airlines.

Michael E. Avakian, North Springfield, Va., for appellants Deborah K. Boller, et al.

Mark W. Pennak, Atty., Dept. of Justice, with whom, Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Ronald M. Etters, General Counsel, Nat. Mediation Bd. and John F. Cordes, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees Nat. Mediation Bd. William Kanter, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellee Nat. Mediation Board.

John A. Edmond, with whom Joseph Guerrieri, Jr., Washington, D.C., was on the brief, for appellee Intern. Ass'n of Machinists and Aerospace Workers.

Before RUTH BADER GINSBURG, WILLIAMS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

These three consolidated appeals concern union representation of passenger service employees of Trans World Airlines, Inc. (TWA). In the District Court, TWA and the individual plaintiffs sought to set aside the National Mediation Board (NMB) certification of the International Association of Machinists and Aerospace Workers (IAM) as bargaining representative. IAM sought an order requiring TWA to commence bargaining and enjoining TWA from altering wages, rules and working conditions, and to retroactively restore conditions to those that existed on May 23, 1986 (the date on which IAM was certified as the bargaining representative for the passenger service employees). The District Court held that the certification of IAM as the bargaining representative was unreviewable pursuant to Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). The District Court then ordered TWA to commence bargaining and enjoined prospective, unilateral changes in working conditions. TWA appeals both the certification and the injunction against prospective unilateral changes. As to the first of those questions, we find no error and affirm. As to the second, we reverse.

I.

The threshold question is whether this Court should reverse the District Court and vacate the NMB certification of IAM as the representative of TWA's passenger service employees. If we answer this issue in favor of TWA and against IAM, the injunction becomes void. TWA's attack on the certification is grounded on the NMB's decision to exclude from the representation election TWA passenger service employees serving as temporary flight attendants while regular flight attendants were on strike. The relevant facts are set out in detail in the District Court's opinion, International Association of Machinists v. TWA, Inc., 654 F.Supp. 447 (D.D.C.1987), and we will repeat only those necessary to an understanding of this decision.

The employees in question, including individual plaintiffs in this action, were concededly on temporary assignment as flight attendants. All were regularly employed as passenger service employees within the bargaining unit relevant to the controversy out of which the disputed election arose. As passenger service employees, they enjoyed higher wages than flight attendants and accepted the volunteer assignments after TWA's announcement that they would retain their current job title, salary, benefits, status, and seniority. Nonetheless, since the employees were actually working in "another craft or class" on the date of the election, the NMB declared them ineligible, purportedly on the basis of its prior decision in Trans World Airways, Inc., 8 N.M.B. 663 (1981). In that opinion, the employees in question, rather than being on temporary assignment, were actually on permanent assignments but sought eligibility to vote in prior positions as to which they retained "recall" rights. The affected employees in the case before us, together with TWA, suggest that the prior NMB decision is plainly distinguishable since the employees in the prior case had a "present interest in their present craft or class" not paralleled by the concededly temporary flight service attendants who desired to vote in the craft or class of their regular employment. TWA and the individual plaintiffs contend that this resulted in unfairness and was not supported by the evidence before the Board.

The election was in fact a very close one. Certification would be granted only if a majority of eligible voters cast ballots in favor of representation. The decertification decision, with reference to the individual plaintiffs and others of their class, was made after all ballots had been received. 1,279 eligible voters cast ballots for IAM, 935 for International Brotherhood of Teamsters, and 36 for the IFFA. Thus, 2,250 valid ballots were cast in favor of representation. The total number of eligible voters was 4,330 so that 51.96% voted in favor of representation. Had the 302 questioned employees been eligible, the 2,250 votes cast would have amounted to only 48.88%, and certification would not have been in order. It was on this basis that TWA and the individual plaintiffs prayed the District Court to void the certification.

They argue that under the Board's own representation manual, revised edition effective on November 1, 1985, temporary employees of the sort represented by plaintiffs here should have been counted in their regular craft. Section 5.302 of that manual reads:

Employees who are working regularly in another craft or class on the same carrier will be considered ineligible to participate in the craft or class involved in the Board representative's investigation. (Emphasis supplied).

Plaintiffs contend that under no reasonable construction of "regularly" can these employees be found ineligible. Certainly, their argument is an appealing one. Unfortunately for plaintiffs, both the District Court and this Court are without the power to grant the relief prayed. Judicial review of NMB decisions is one of the narrowest known to the law. As the District Court noted, "It has been established for over twenty years that courts have no authority to review NMB certification decisions in the absence of the showing on the face of the pleadings that the certification decision was a gross violation of the Railway Labor Act or that it violated the constitutional rights of an employer, employee, or Union." 654 F.Supp. at 450. Citing Brotherhood of Railway and S.S. Clerks v. Association for the Benefit of Noncontract Employees, 380 U.S. 650, 658-60, 661-62, 85 S.Ct. 1192, 1196-97, 1198-99, 14 L.Ed.2d 133 (1965); Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943), inter alia.

In the instant case, plaintiffs contend that the pleadings reflect such a gross violation of the statute in that the Board's decision to decertify the decisive block of eligible voters on so tenuous a basis after the cut-off of eligibility date and the receipt of all ballots violates a statutory duty of neutrality. However, there is no express statutory duty of neutrality, even if plaintiffs' complaints were taken to adequately allege a violation of such duty. ¹ And the "peek at the merits" permitted to this Court when reviewing NMB decisions, IBT v. BRAC, 402 F.2d 196, 205 (D.C.Cir.1968), cert. denied sub nom. BRAC v. NMB, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968), does not disclose a "gross violation of the statute."

Similarly unavailing is plaintiffs' argument that the Board's disenfranchisement of the temporary flight attendants constitutes a violation of constitutional rights. The disenfranchised voters and TWA claim that the voters' "right of association" was violated by NMB's decertifying them, which they contend was for associating with TWA. They offered the District Court no authority for this proposition, nor have they offered any here, nor indeed have we independently found any such authority. While the treatment of these employees certainly does not cast the NMB in a very favorable light, that treatment does not reach the level of violating a constitutional right, and we are constrained to hold, for the reasons stated by the District Court, that plaintiffs have failed to demonstrate either a gross violation of the Railway Labor Act, 45 U.S.C. Sec. 151 et seq., ² or any violation of the Constitution. Therefore, under the principles set forth in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the certification of the IAM as bargaining representative is not reviewable.

II.

TWA's challenge to the District Court injunction against unilateral change of working conditions is more troublesome. After certification, TWA refused to treat with the newly certified representative pending resolution of litigation over the validity of the certification and made unilateral changes in working conditions, specifically by giving flight attendants a role in passenger pre-boarding--"a change that, however desirable as an economy or an efficiency, would have been clearly bargainable if a collective bargaining agreement had been in place." 654 F.Supp. at 452. IAM prayed the District Court to order TWA to bargain in good...