Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) v. National Mediation Bd.

Decision Date14 December 1981
Docket NumberNo. 81-1082,81-1082
Parties109 L.R.R.M. (BNA) 3284, 93 Lab.Cas. P 13,250 CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT), Plaintiff-Appellant, v. NATIONAL MEDIATION BOARD, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Paul L. Glover, Chicago, Ill., for plaintiff-appellant.

Wendy M. Keats, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and CAMPBELL, Senior District Judge. **

CUMMINGS, Chief Judge.

This is the second time that the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) ("Union") has appeared before this Court requesting a reapportionment of the administrative jurisdiction between the National Mediation Board and the National Labor Relations Board. The Union would have us determine that only the National Labor Relations Board has jurisdiction over the certification of labor representatives for the Federal Express Corporation, a chartered Tennessee-based air freight carrier operating a parcel delivery service. For the second time, we affirm the district court's judgment declining that task for want of subject matter jurisdiction.

I

The plaintiff Union would like to represent the truck drivers employed by the Federal Express Corporation at its Elk Grove, Illinois, terminal. In 1974, the Union filed an "Application for Investigation of Representation Disputes" with the National Mediation Board ("NMB"), seeking certification of the Union as the bargaining representative of the Elk Grove truck drivers pursuant to Section 2 Ninth of the Railway Labor Act ("RLA"), 45 U.S.C. § 152 Ninth. The NMB notified the Union that it "does not certify a bargaining representative on a geographical basis. An application for investigation of (a) representation dispute must involve all the employees of the Carrier in the craft or class" (Exhibit 4 to NMB's Motion for Judgment on the Pleadings). Not wanting to represent the entire craft or class of Federal Express truck drivers, assuming that the truck drivers could be separated from other Federal Express employees as a distinct craft or class, the Union abandoned that particular effort for certification.

In a new effort, on August 4, 1977, the Union petitioned the National Labor Relations Board ("NLRB") to hold an election and to certify the Union under the National Labor Relations Act ("NLRA") as the bargaining representative of the Elk Grove and Chicago truck drivers of Federal Express. 1 On August 26, 1977, a Regional Director of the NLRB dismissed the petition, explaining:

From the investigation, the evidence shows that the Employer (Federal Express) is a carrier subject to the jurisdiction of the National Mediation Board under the Railway Labor Act, 45 U.S.C. Sec. 151 et seq. See also Adams v. Federal Express Corporation, 547 F.2d 319, 94 LRRM 2008 (6th Cir. 1976). (Appended to the Adams opinion is a 1976 decision of the NMB that Federal Express is a carrier subject to the RLA.) Further, the evidence shows that the Employer's business operations have not substantially changed since the decision of the National Mediation Board, and that the employees involved herein are engaged in work which is an integral part of the Employer's air carrier operations. Under these circumstances, the Employer is not subject to the National Labor Relations Act. Holston Land Company, Inc., 221 NLRB 249. 2

Appendix at 15.

In March 1978, following the exhaustion of its administrative appeals to the NLRB, the Union filed a complaint in the district court seeking an order requiring the NLRB to exercise authority over the representation dispute and to supervise a representation election. The Union contended that the RLA definition of "carrier" particularly excludes the "trucking service" performed by the Federal Express truck drivers 3 and that therefore the NLRB was incorrect in supposing that the NMB assertion of jurisdiction over Federal Express precluded NLRB jurisdiction over the truck drivers. The district court, however, concluded that the NLRB "did not act in excess of its statutory authority" and dismissed the action for want of subject matter jurisdiction. Chicago Truck Drivers v. NLRB, 85 Lab.Cas. P 11,041 (CCH) (N.D.Ill.1978). On appeal, this Court affirmed the district court, holding that "(a)lthough (the Union's interpretation of NMB and NLRB jurisdiction is) somewhat persuasive, we are unable to conclude that the NLRB disregarded a clear, specific, statutory directive when it ruled that the Employer's truck drivers were covered by the RLA." Chicago Truck Drivers, etc. v. NLRB, 599 F.2d 816, 820 (7th Cir. 1979) (footnote elaborating persuasiveness of Union argument omitted).

Having failed to have the NLRB accept jurisdiction over the Federal Express truck drivers, the Union again turned to the NMB, which in the meantime had ruled in a different matter involving the International Brotherhood of Teamsters that the truck drivers (denominated couriers therein) were within its jurisdiction. Federal Express Corp., 6 NMB No. 1032 (1978). 4 On April 18, 1980, the Union filed with the NMB a "Petition Requesting a Jurisdictional Determination," requesting that the NMB decline to assert jurisdiction over the Federal Express truck drivers. On April 29, 1980, the NMB responded by letter from its Executive Secretary that it had no authority or desire to reconsider its 1978 decision:

The subject petition before this Board has not been filed with respect to an application for the investigation of a representation dispute pursuant to Section 2 Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth. The National Mediation Board does not issue advisory opinions under the circumstances of this matter. Jurisdictional decisions are reserved for representation cases arising under the Railway Labor Act filed in accordance with the Board's rules, as well as those matters specifically referred to the NMB by the National Labor Relations Board or by a court of competent jurisdiction.

Appendix at 14. The Union still desired to represent only a geographical sub-unit of all Federal Express truck drivers, and accordingly did not file a representation petition to contest the NMB's jurisdictional determination.

Instead, on May 8, 1980, the Union brought a new action in the district court requesting that the NMB's assertion of jurisdiction be set aside as beyond its statutory authority. The Union made the same argument it had used in its prior action against the NLRB, viz., the RLA definition of "carrier" excludes the Federal Express truck drivers. The district court, however, granted the NMB's motion for judgment on the pleadings and dismissed the complaint "for lack of a claim upon which relief can be granted." Appendix at 7. The district court reasoned that (1) the April 29, 1980 NMB letter refusing to retract jurisdiction did not constitute "final agency action" that would permit judicial review under Section 10(c) of the Administrative Procedure Act "APA") (5 U.S.C. § 704) and (2) because the NMB did not act "arbitrarily or in disregard of (a) clear, specific, statutory obligation," the exception to non-review established in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, was inapplicable. Appendix at 4, 6-7. The Union now appeals the decision of the district court. We agree with the district court's reasoning and consequently we affirm its dismissal of the Union complaint for lack of subject matter jurisdiction.

II

"The abstract assertion of jurisdiction by an agency is not ordinarily a basis for judicial review." California Oregon Power Co. v. Federal Power Commission, 239 F.2d 426, 430 (D.C.Cir.1956). Ordinarily, only "final agency action for which there is no other adequate remedy in a court (is) subject to judicial review." APA § 10(c), 5 U.S.C. § 704 (emphasis added). See United States v. Barr, 81 LRRM 2219, 2219-2220 (4th Cir. 1972) (per curiam ); United States v. Feaster, 410 F.2d 1354, 1364 (5th Cir. 1969); American Air Export & Import Co. v. O'Neill, 221 F.2d 829, 830 (D.C.Cir.1954).

The Union cites International Longshoremen's Ass'n v. North Carolina Ports Authority, 463 F.2d 1 (4th Cir. 1972), as a supposed precedent for applying in these circumstances the standard contained in Section 10(a) of the APA (5 U.S.C. § 702) that any "person suffering legal wrong because of agency action * * * is entitled to judicial relief thereof." International Longshoremen's Ass'n held that a federal court has power to review the NMB's jurisdictional determination that an employer is a "carrier" within the RLA, following the proper invocation of NMB processes and the subsequent NMB certification of a bargaining representative. See also Air Canada v. NMB, 478 F.Supp. 615 (S.D.N.Y.1980), aff'd mem., 659 F.2d 1057 (2d Cir. 1981), certiorari denied, --- U.S. ----, 102 S.Ct. 506, 70 L.Ed.2d 381. But in both those cases there was final agency action within Section 10(c) of the APA. 5 Judicial review under Section 10(a) (5 U.S.C. § 702) is of course qualified by Section 10(c) (5 U.S.C. § 704) and accordingly is inappropriate when as here the questioned agency action is not final.

To determine whether an agency action is to be deemed "final" for purposes of judicial review, we look "in a pragmatic way" to whether the challenged agency action is "definitive" and to whether it has a "direct and immediate ... effect on the day-to-day business" of the challenger. FTC v. Standard Oil Co. of California, 449 U.S. 232, 239, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 151, 152, 87 S.Ct. 1507, 1515, 1516, 1517, 18 L.Ed.2d 681). The Union argues that the assertion of jurisdiction by the NMB is definitive because, as a local union, it is unable to initiate the NMB machinery and therefore there can be no further agency proceedings on the...

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