986 F.2d 1252 (9th Cir. 1992), 90-16337, America West Airlines, Inc. v. National Mediation Bd.

Docket Nº90-16337.
Citation986 F.2d 1252
Party NameAMERICA WEST AIRLINES, INC.; Edward R. Beauvais; Michael J. Conway, Plaintiffs-Appellees, v. NATIONAL MEDIATION BOARD, Defendant-Appellant.
Case DateJuly 07, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1252

986 F.2d 1252 (9th Cir. 1992)

AMERICA WEST AIRLINES, INC.; Edward R. Beauvais; Michael

J. Conway, Plaintiffs-Appellees,



No. 90-16337.

United States Court of Appeals, Ninth Circuit

July 7, 1992

Argued and Submitted Oct. 11, 1991.

As Amended Feb. 26, 1993.

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John S. Koppel, U.S. Dept. of Justice, Washington, DC, for defendant-appellant.

Robert A. Siegel, O'Melveny and Myers, Los Angeles, CA, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: TANG, and TROTT, Circuit Judges, and BREWSTER, [*] District Judge.

TANG, Circuit Judge:

The National Mediation Board ("Board") appeals the decision of the district court reported at 743 F.Supp. 693 (D.Ariz.1990) granting the motion of America West Airlines, Inc., ("America West" or "Carrier") for a preliminary injunction. The district court enjoined the Board from mailing a notice to America West employees indicating America West violated provisions of the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. The notice was to be sent in conjunction with a rerun representation election which the Board found necessary in light of America West's conduct prior to the original election. Because distribution of the proposed notice would be in

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excess of the Board's statutory authority, we affirm the ruling of the district court.


This case arose when the Association of Flight Attendants ("AFA") filed an application with the Board pursuant to the Railway Labor Act, 45 U.S.C. § 152, Ninth, alleging a representation dispute among a "craft or class" of America West employees which the Board eventually defined as "Flight Attendants." See In re Association of Flight Attendants, 17 N.M.B. 79, 79-80 (1990). 1 Under section 152, Ninth, the Board is obligated in such instances "to investigate [the] dispute and to certify to both parties ... the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier."

In carrying out its investigation of the dispute at America West, the Board ordered a secret ballot election, see 17 N.M.B. at 80, as authorized by statute:

In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier.

45 U.S.C. § 152, Ninth (excerpt). 2

Following this first election, the AFA filed with the Board a "Motion for Board Determination of Carrier Interference." 17 N.M.B. at 80. In response, the Board concluded that "the carrier has improperly interfered with, influenced, and coerced its flight attendants in their freedom of choice, by the 'totality' of its conduct." Id. at 98. In reaching this conclusion, the Board cited "the timing of benefits, the presence of [America West Chairman and Chief Executive Officer] Beauvais and [America West President and Chief Operating Officer] Conway at [a] profit-sharing party, as well as the timing of the party, [and] the letters from Beauvais and Conway with their criticism of AFA." Id. at 102; see also Northrup, supra note 1, at 499-500 (discussing Board's decision).

In arriving at this conclusion, the Board apparently considered the AFA's motion, America West's written reply, and various affidavits, declarations, and exhibits accompanying the parties' arguments. See 17 N.M.B. at 80. The AFA also filed a request for a particular kind of ballot to be used in a second election, and the Carrier filed a "position statement" opposing the request. See id. Despite America West's persistence in requesting a hearing on the allegation of election interference, see America West Airlines, 17 N.M.B. 226, 228 (1990), no hearing was held nor was America West's request ever discussed by the Board in its published decisions.

Having concluded that America West interfered with the first election, the Board ordered a rerun election. 17 N.M.B. at 102. The Board further ordered that "a special 'Notice to All Employees' ... be distributed along with the ballot materials to each eligible voter in these elections." Id. The notice states in pertinent part:



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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.

Section 2, Fourth of the Act, 45 U.S.C. § 152, allows employees the right to select representatives without carrier influence or interference....


All employees are free to express their desire to be represented by a labor organization or remain unrepresented. The Carrier is not permitted to influence, interfere or coerce employees in any manner in an effort to induce them to participate or refrain from participating in the upcoming elections.

17 N.M.B. at 104-05. After the Board rejected America West's motion for reconsideration, see 17 N.M.B. at 234-35, the Carrier and two of its officers filed this action seeking to enjoin the Board's use of the notice. 3

In the district court, America West argued that, while the proposed rerun election in itself was a permissible investigatory tool, the notice as proposed would be in excess of the Board's investigative authority. The Carrier emphasized that the Board was attempting to usurp remedial powers similar to those with which the National Labor Relations Board is endowed. America West also raised arguments under the First and Fifth Amendments. 743 F.Supp. at 695.

In response, the Board argued that its notice was a permissible means of conducting the investigation authorized under section 152, Ninth, particularly in light of the statute's mandate that the Board "shall insure the choice of representatives by the employees without interference, influence, or...

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