America West Airlines, Inc. v. National Mediation Bd.

• Decision Date: 29 September 1997
• Docket Number: AFL-CI,No. 96-17056,D,96-17056
• Citation: 119 F.3d 772
• Parties: 155 L.R.R.M. (BNA) 2803, 156 L.R.R.M. (BNA) 2496, 134 Lab.Cas. P 10,035, 97 Cal. Daily Op. Serv. 5492, 97 Daily Journal D.A.R. 8904 AMERICA WEST AIRLINES, INC., Plaintiff-Appellant, v. NATIONAL MEDIATION BOARD; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,efendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 772

119 F.3d 772

155 L.R.R.M. (BNA) 2803, 156 L.R.R.M. (BNA) 2496,

134 Lab.Cas. P 10,035,

97 Cal. Daily Op. Serv. 5492,

97 Daily Journal D.A.R. 8904

AMERICA WEST AIRLINES, INC., Plaintiff-Appellant, v. NATIONAL MEDIATION BOARD; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers AFL-CIO, Defendants-Appellees.

No. 96-17056.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 10, 1997.

Decided July 11, 1997.

Rehearing Denied Sept. 29, 1997.

Robert A. Siegel, O'Melveny & Myers, Los Angeles, CA, for plaintiff-appellant.

Marc Richman, United States Department of Justice, Washington, DC, David P. Dean, James & Hoffman, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CV-96-00940-RGS.

Before: ALARCON, BEEZER and O'SCANNLAIN, Circuit Judges.

BEEZER, Circuit Judge.

This case arises out of the National Mediation Board's ("NMB" or "Board") decision to certify the International Brotherhood of Teamsters as the bargaining representative for America West Airlines' employee mechanics following a representation election. America West contends that the NMB exceeded its authority under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151, et seq., by allowing 378 discharged employees to vote in the election. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1292(a)(1), and we affirm in part and dismiss in part.

I

As a result of America West's decision to subcontract out its heavy maintenance, the Airline discharged 378 mechanics and related employees. Three hundred seventy-five of the discharged employees signed individual release agreements which waived their right to reinstatement in exchange for cash compensation.

The Teamsters and five of the discharged employees, including four who had signed release agreements, filed a purported class action against the Airline seeking reinstatement of the terminated employees.

The Teamsters also filed an application with the NMB to represent the mechanics. The NMB found that a representation dispute existed and ordered a representation election. Over America West's objection, an NMB mediator found that all 378 of the terminated employees were eligible to vote in the election because they had a pending claim, the purported class action, for reinstatement.

The NMB proceeded to mail ballots to both current and dismissed employees. The dismissed employees received "Challenged Ballots," pursuant to the NMB's standard practice for those individuals whose voter eligibility is at issue. Votes cast by such ballot were to be counted only after the Board made a final decision regarding voter eligibility.

After the ballots were returned, the NMB issued its final determination that the dismissed employees were eligible to vote. Of the total 722 votes cast, 587(81%) were for the Teamsters. Out of the 345 current employees who voted, 272(79%) voted for the Teamsters. Out of the 377 dismissed employees, 317(84%) voted for the Teamsters. Based on the results of the election, the NMB certified the Teamsters as the collective bargaining representative for America West's mechanics and related employees.

America West then filed this action. The Airline sought to enjoin the NMB and the Teamsters from enforcing the certification of the Teamsters as the mechanics' bargaining representative and to have the court declare the certification null and void. The district court granted the NMB's motion to dismiss the claims against the NMB for lack of jurisdiction. The court also granted the Teamsters' motion for a preliminary injunction to compel America West to meet with the Teamsters and denied America West's motion for preliminary injunction to prevent the NMB and the Teamsters from enforcing the certification or to commence bargaining prior to final resolution of this action. The district court certified its order dismissing the NMB under F.R.C.P. 54(b), and this timely appeal followed.

II

America West first argues that the district court erroneously concluded that it lacked subject matter jurisdiction to hear the claims against the NMB. The existence of subject matter jurisdiction is a question of law reviewed de novo. Sahni v. American Diversified Partners, 83 F.3d 1054, 1057 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997).

A.

The RLA provides that when there is a dispute as to the identity of the employee's representative, the NMB should investigate and certify the identity of that representative. 45 U.S.C. § 152, Ninth. In Brotherhood of Railway & Steamship Clerks v. Association for the Benefit of Non-Contract Employees, ("Railway Clerks "), the Supreme Court declared that § 152, Ninth of the RLA gives the NMB, and not the judiciary, the "power to resolve controversies" concerning representation:

where Congress 'has not expressly authorized judicial review ... this Court has often refused to furnish one even where questions of law might be involved.... [T]he intent seems plain-the [representation] dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.'

380 U.S. 650, 659, 85 S.Ct. 1192, 1197, 14 L.Ed.2d 133 (1965) (quoting Switchmen's Union v. National Mediation Board, 320 U.S. 297, 301-305, 64 S.Ct. 95, 97-99, 88 L.Ed. 61 (1943)). The court explained that arguments "in terms of policy and broad generalities as to what the [RLA] should provide ... are matters for Congress and the Board rather than the courts." Railway Clerks, 380 U.S. at 671, 85 S.Ct. at 1203. The Court restricted judicial review of NMB decisions to questions concerning whether the Board "performed its statutory duty to 'investigate' the dispute." Id. at 661, 85 S.Ct. at 1198.

As we have noted before, Railway Clerks makes clear that judicial review of NMB decisions is to be extraordinarily limited: "so long as the Board is acting with the purpose of find[ing] the fact as to who is the employees' representative, the courts are deprived of jurisdiction to review Board decisions." America West Airlines, Inc. v. National Mediation Bd., 986 F.2d 1252, 1256 (9th Cir.1992) ("America West I ") (internal quotation omitted) (alteration in original). The general rule is that judicial review of a NMB representation decision is available only upon a showing, on the face of the pleadings, that the NMB either violated the Constitution or committed a gross violation of the RLA. See Hunter v. National Mediation Bd., 754 F.2d 1496, 1498 (9th Cir.1985) (per curium) (refusing to review a NMB investigatory procedure because plaintiff failed to show that NMB action was unconstitutional, an egregious violation of the RLA or made in excess of delegated powers); see also Kiamichi R.R. v. National Mediation Bd., 986 F.2d 1341, 1344 (10th Cir.1993) (complaining party must show, on the face of the pleadings, that the NMB violated the constitutional rights of the employer, employee, or union, or grossly violated the RLA); Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1249-50 (2d Cir.1992) (scope of judicial review is limited to "instances of constitutional dimension or gross violation of the statute"); Professional Cabin Crew Ass'n v. National Mediation Bd., 872 F.2d 456, 459 (D.C.Cir.1989) ("PCCA ") (same).

Further, other circuit courts have held that a court may only "peek at the merits" in order to determine if the NMB committed a constitutional violation or egregious violation of the RLA; if no error of this magnitude is disclosed, the case should be dismissed. Brotherhood of Maintenance of Way Employees v. Grand Truck Western R.R., 961 F.2d 1245, 1249 (6th Cir.1992); PCCA, 872 F.2d at 459. We adopt this limitation because it furthers the purpose of the RLA. The Supreme Court has stated that Congress committed representation disputes to the NMB's discretion because speedy resolution is the Act's "objective of the first order." Railway Clerks, 380 U.S. at 668, 85 S.Ct. at 1201. Permitting a full review of the merits in order to determine jurisdiction would defeat Congress' intent "to avoid the haggling and delays of litigation." Railway Clerks, 380 U.S. at 671, 85 S.Ct. at 1203. Allowing a "peek" at the merits enables a court to determine if the NMB has committed a gross violation of the RLA without causing undue delay.

B.

We now decide whether the district court properly concluded, based on a "peek" at the merits, that the NMB did not grossly violate the RLA by permitting the discharged employees to vote. This is an issue of first impression in this Circuit.

America West's argument that the NMB egregiously violated the RLA is best understood as presenting separate challenges to the NMB's pre-election decision to allow the casting of provisional ballots by the discharged employees and to its post-balloting decision to count the votes of the discharged workers. We address each challenge in turn.

1. Pre-Election Decision

America West asserts that the NMB mediator's decision permitting discharged employees to cast provisional ballots was in gross violation of the RLA. The Airline asserts that it sustained an injury from this improper voter eligibility determination even though a majority of the then-current employees elected the Teamsters as their bargaining representative. The mediator's decision, the argument continues, improperly influenced the current employees' votes by validating the Teamsters' campaign rhetoric that America West violated the RLA by discharging the mechanics.

America West urges this court to declare that the NMB committed a per se violation of the RLA by permitting the discharged employees to cast provisional votes. The Airline argues that the language of the RLA compels the conclusion that only current employees may vote in representational elections. America West cites, for example, §...