Aerovias De Mexico, S.A. v. National Mediation

• Decision Date: 27 March 2002
• Docket Number: No. CIV. 01-1112(TFH).,CIV. 01-1112(TFH).
• Citation: 211 F.Supp.2d 1
• Parties: AEROVIAS DE MEXICO, S.A. DE C.V., Plaintiff, v. THE NATIONAL MEDIATION BOARD, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

211 F.Supp.2d 1

AEROVIAS DE MEXICO, S.A. DE C.V., Plaintiff, v. THE NATIONAL MEDIATION BOARD, Defendant.

No. CIV. 01-1112(TFH).

United States District Court, District of Columbia.

March 27, 2002.

Tegan M. Flynn, John Martin Faust, Vinson & Elkins, L.L.P., Washington, DC, for plaintiff.

Theodore C. Hirt, Dept. of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN, Chief Judge.

In this lawsuit, Plaintiff Aerovias De Mexico, S.A. DE C.V. ("Aeromexico") is suing Defendant National Mediation Board ("NMB") for violations of the First and Fifth Amendments to the U.S. Constitution for actions taken in conjunction with the certification of the International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM") as the union representative of the passenger service employees of Aeromexico. Pending before the Court is NMB's motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Upon careful consideration of NMB's motion, Aeromexico's opposition and NMB's reply thereto, and the entire record herein, the Court will grant the NMB's motion and accordingly dismiss this case.

I. BACKGROUND

Plaintiff Aeromexico is an airline headquartered in Mexico City, Mexico, authorized to do business in the United States. Defendant NMB is a federal agency, located in Washington, D.C., which has jurisdiction to make certification decisions concerning union representation of employees of air carriers. See 45 U.S.C. §§ 181 and 152, Ninth. The IAM is an international labor organization with headquarters in Maryland.

In March 1997, the IAM filed an application with the NMB seeking to represent Aeromexico's passenger service employees. The NMB conducted an election by secret ballot to determine whether the employees wanted IAM representation. After only forty-nine of 132 eligible employees voted in favor of IAM representation, the NMB denied certification of the IAM as representative of the passenger service employees and dismissed its application. Compl. ¶ 6.

In April 2000, the IAM filed a second application, alleging a representation dispute and once again seeking to be certified as the union representative of Aeromexico's passenger service employees. After an investigation, the NMB found sufficient grounds to conduct an election and mailed ballots to the employees on June 16, 2000, which were to be returned by mail and counted on July 21, 2000. NMB determined that 107 employees were eligible to vote in the election, and after counting the votes on July 21, 2000, it found that forty-seven valid votes had been cast. Because those forty-seven votes constituted less than a majority of eligible voters, the NMB again dismissed the IAM's application to be the employees' representative. Id. ¶ 7.

The IAM then filed charges of election interference with the NMB on August 1, 2000. It alleged, inter alia, that "Aeromexico's managers followed suspected union supporters into break rooms and down the hallways and attempted to eavesdrop on their conversations, creating the impression that the carrier knew which employees had signed authorization cards and supported the Union." Comp. ¶ 8. It further alleged that "Aeromexico managers constantly monitored and taped telephone calls of suspected union supporters creating the impression that Aeromexico was `keeping a close watch' on the employees." Id. The NMB notified Aeromexico and the IAM that the IAM's allegations presented a prima facie case of election interference and set forth a schedule for further submissions by both Aeromexico and the IAM. Decl. of Stephen E. Crable Ex. A ¶ 17 & Tab 15.¹ Aeromexico and the IAM then filed several submissions with the NMB, including affidavits, copies of various books, records, documents, fliers, and videos. Id. Ex. A ¶¶ 18-21 Among the submissions were three videos that had been shown to employees at mandatory meetings. Id. Ex. A ¶ 23; Aeromexico, 28 NMB 309, 310, 322-23, 338-39 (2001). In addition, Aeromexico identified ten non-supervisory employees in the craft or class who had been interviewed by its counsel and by its Director of Human Resources in "one-on-one" meetings concerning the IAM's election interference allegations. Id. Ex. A ¶ 22 & Tab 20. Finally, from November 14 to November 17, 2000, the NMB investigator interviewed twenty-eight Aeromexico employees and former employees and viewed Aeromexico's Houston offices and the work areas of its employees there. Id. Ex. A ¶ 27. During this same period, Aeromexico claims that in an attempt to prepare its defense to the IAM's allegations it conducted non-threatening interviews of some of its employees in which it assured each employee that he or she did not have to agree to be interviewed and that no reprisal would be taken against the employee for anything they said or did not say. Compl. ¶ 9.

In its findings issued on February 23, 2001, the NMB found that "the laboratory conditions required for a fair election were tainted," and it ordered a re-run election using a "Laker" ballot. Aeromexico, 28 NMB at 344-46.² The NMB also directed that notice be provided to the employees stating that the NMB had found that "Aeromexico's conduct interfered with, influenced, or coerced employees' choice of representative," that a second election had been authorized, and that "Aeromexico is not permitted to influence, interfere with, or coerce employees in any manner in an effort to induce them to participate or refrain from participating in the upcoming election." Id. at 345, 347.

Aeromexico moved for reconsideration of the NMB's findings, which the NMB ultimately denied. Aeromexico also filed a lawsuit against the NMB in the U.S. District Court for the Southern District of Texas, in which it alleged violations of the First and Fifth Amendments and sought to enjoin the re-run election. The court denied Aeromexico's motion for preliminary injunction, and Aeromexico dismissed its lawsuit shortly thereafter. Decl. of Stephen E. Crable ¶¶ 8-13.

The NMB mailed "Laker" ballots to Aeromexico's employees, which were counted in April 2001. Ninety-three employees were eligible to vote in the election, and forty-eight—a majority—voted for IAM representation. On April 30, 2001, the NMB accordingly certified the IAM as the collective bargaining representative of Aeromexico's passenger service employees.

Aeromexico filed the instant lawsuit on May 23, 2001, seeking to set aside the results of the re-run election and certification of the IAM as the representative of its passenger service employees. It charges the NMB with two constitutional violations. First, it claims that the NMB violated its due process rights, pursuant to the Fifth Amendment, to interview employee witnesses in an effort to defend itself against the IAM's charge that it had unlawfully interfered in the first election: "On information and belief, the NMB would not have ordered a re-run election, much less one with a punitive `Laker' ballot, but for Aeromexico's interviewing of its employees in furtherance of its exercise of its constitutional right to defend itself against the Union's charges of interference." Compl. ¶ 17. Second, Aeromexico claims that the NMB violated its First Amendment rights to express anti-union views and to make objective, non-misleading statements about union representation by "ordering Aeromexico not to `influence' its employees during the time period leading up to the re-run `Laker' ballot." Id. ¶ 19; see id. ¶ 12.

II. DISCUSSION

It generally is presumed that a district court lacks jurisdiction to review certification decisions of the NMB pursuant to section 2, Ninth of the Railway Labor Act ("RLA"), 45 U.S.C. § 152, Ninth. U.S. Airways, Inc. v. NMB, 177 F.3d 985, 989 & n. 2 (D.C.Cir.1999) (citing Railway Labor Executives' Ass'n v. NMB, 29 F.3d 655, 662 (D.C.Cir.) (en banc); id. at 673 (Randolph, J., concurring, joined by Mikva, C.J., Wald, J., Edwards, J., and Sentelle, J., together comprising a majority of the court), amended 38 F.3d 1224 (D.C.Cir.1994) (en banc)); IAM v. TWA, 839 F.2d 809, 811 (D.C.Cir.) ("Judicial review of NMB decisions is one of the narrowest known to the law."), amended 848 F.2d 232 (D.C.Cir.1988). There are, however, two exceptions to this general rule. The presumption of unreviewability is rebuttable if the complainant can show either (1) that "the certification was a gross violation of the [RLA]" or (2) "that it violated the constitutional rights of an employer, employee, or Union." TWA, 839 F.2d at 811; accord U.S. Airways, 177 F.3d at 989; Prof'l Cabin Crew Ass'n v. NMB, 872 F.2d 456, 458 (D.C.Cir.1989). In alleging only constitutional violations in this case, Aeromexico seeks review solely through the latter exception. The Court of Appeals for this Circuit has stated that "[o]nce an employer (or employee or union) pleads a violation of its constitutional rights or a gross violation of its statutory rights arising from an NMB order, jurisdiction depends on the merits of the argument." U.S. Airways, 177 F.3d at 989 (emphasis added). The Court of Appeals has further explained that while a court need only "peek at the merits" when a challenge is predicated on the exception for a gross violation of the RLA, it must review the "full merits" when evaluating a constitutional challenge. Id. at 989-90; see, e.g., TWA, 839 F.2d at 812 (rejecting TWA's constitutional challenge to the NMB's disenfranchisement of the temporary flight attendants because it offered no authority for their argument and thus "failed to demonstrate" a constitutional violation).³

Under this standard, the NMB argues that there is no jurisdiction to review its actions because Aeromexico has not demonstrated any constitutional violations. It first contends that Aeromexico's due process claim is meritless because no court has recognized a carrier's constitutional right to conduct coercive interviews of its employees during an investigation by...