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

• Decision Date: 26 February 1993
• Docket Number: No. 90-16337,90-16337
• Citation: 986 F.2d 1252
• Parties: 142 L.R.R.M. (BNA) 2639 AMERICA WEST AIRLINES, INC.; Edward R. Beauvais; Michael J. Conway, Plaintiffs-Appellees, v. NATIONAL MEDIATION BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1252

986 F.2d 1252

142 L.R.R.M. (BNA) 2639

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

J. Conway, Plaintiffs-Appellees, v. NATIONAL MEDIATION BOARD, Defendant-Appellant.

No. 90-16337.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 1991.

Decided July 7, 1992.

As Amended Feb. 26, 1993.

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

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

FACTS AND PROCEDURAL BACKGROUND

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:

NOTICE TO ALL EMPLOYEES

PURSUANT TO FINDINGS UPON INVESTIGATION AND ORDER OF

THE NATIONAL MEDIATION BOARD AND IN ORDER TO EFFECTUATE THE POLICIES OF THE RAILWAY LABOR ACT, AS AMENDED, ALL EMPLOYEES ARE HEREBY NOTIFIED THAT:

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 coercion exercised by the carrier" (emphasis added). The Board also emphasized the extremely narrow scope of judicial review to which the Board is subject.

The district court granted the motion for a preliminary injunction in an unpublished order accompanied by a published opinion. In barring distribution of the Board's notice, the district court reasoned:

The problem here with the form of the Notice is that it overstates, if not directly, by clear inference, that the Board has conducted an adversarial investigation ("The opportunity to present statements and evidence") and found through that process that the carrier had "unlawful[ly]" interfered with the organization of its employees. The Board did neither of those things; it has no jurisdiction to make either an adjudicative decision or to find that a carrier acted unlawfully when it did the things that caused the Board to order a re-run election.

....

The Board has every right to conduct an investigation, in the manner it chooses, and to find whether or not an election or re-election is required. That terminates the investigative process. A notice that it has conducted an investigation and has ordered a re-run election, due to activities of the carrier that could have interfered with the employees' choice of representation, is consistent with its § 2, Ninth jurisdiction. [Emphasis added.] It is only when the Board chooses to mischaracterize the nature of its investigation as an adjudicative proceeding or to cast the carrier's activities as unlawful, that intervention of a court is justified; it is then that Board actions can be characterized as a constitutional violation or a gross violation of the RLA.

743 F.Supp. at 699 (footnote and citation omitted). ⁴

The Board timely appeals from the district court's order; proceedings in the lower court have been stayed pending the outcome of this appeal.

DISCUSSION

I. Jurisdiction

The Board frames its appeal primarily as a challenge to the subject matter jurisdiction of the district court. The leading case holding that the federal courts lack power to review Board decisions in representation matters is Switchmen's Union v. National Mediation Bd., 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943).

In Switchmen's, the Supreme Court was presented with a challenge to the Board's certification of a particular union. Id. at 299, 64 S.Ct. at 96. A rival union charged that the Board's determination of the appropriate "craft or class" was improper. Id. The Court concluded that the federal courts "did not have the power to review the action of the National Mediation Board in issuing the certificate." Id. at 300, 64 S.Ct. at 96. In so concluding, the Court reasoned that Congress had afforded protection of the statutory right to collective bargaining by creating the Board; in the absence of evidence of a contrary intent, Congress's decision not to provide for judicial review of Board decisions is controlling. Id. at 300-06, 64 S.Ct. at 96-100. As a result, "[j]udicial review of [Board] decisions is extraordinarily limited." Professional Cabin Crew Ass'n v. National Mediation Bd., 872 F.2d 456, 459 (D.C.Cir.), cert. denied, 493 U.S. 974, 110 S.Ct. 497, 107 L.Ed.2d 500 (1989).

In arriving at its decision, the Switchmen's Court emphasized that "the type of problem involved and the history of the statute in question become highly relevant in determining whether judicial...