Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) v. National Mediation Bd., No. 81-1082

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and CAMPBELL; CUMMINGS
Citation670 F.2d 665
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.
Decision Date14 December 1981
Docket NumberNo. 81-1082

Page 665

670 F.2d 665
109 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.
No. 81-1082.
United States Court of Appeals,
Seventh Circuit.
Argued Nov. 2, 1981.
Decided Dec. 14, 1981. *
Opinion Feb. 12, 1982.

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

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

Page 666

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

Page 667

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,

Page 668

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...

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12 practice notes
  • In re Continental Airlines Corp., No. H-84-1747
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 31, 1985
    ...Cir. 1974). For clarity this Court uses the term "ripeness doctrine" throughout this opinion. 32 See e.g., Chicago Truck Drivers v. NMB, 670 F.2d 665, 668 & n. 5 (7th Cir.1981); Delpro, 509 F.Supp. at 472-74 & n. 33 See also Feaster, 410 F.2d at 1363 (judicial review of final NMB determinat......
  • Cobell v. Babbitt, No. 96-1285.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 21, 1999
    ...on the challenger of the action. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) v. National Mediation Bd., 670 F.2d 665, 668 (7th Cir.1981). In practical terms, there can be no greater finality as to Interior's definite current practice of issuing IIM trust money a......
  • Air Line Pilots Ass'n, Intern. v. United Air Lines, Inc., Nos. 85-2726
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 30, 1986
    ...64 S.Ct. 95, 96-97, 98-99, 88 L.Ed. 61 (1943); Chicago Truck Drivers Union, Helpers & Warehouse Workers v. National Mediation Board, 670 F.2d 665, 670 (7th 19 ALPA argues that because the Group of 500 accepted offers of employment from United that, under common law, they were not required t......
  • Wabash Valley Power v. Rural Electrification Admin., No. IP 89-126-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • May 16, 1989
    ...a basis for judicial review.'" Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent) v. National Mediation Board, 670 F.2d 665, 668 (7th Cir. 1981) (quoting California Or. Power Co. v. Federal Power Comm'n, 239 F.2d 426, 430 (D.C.Cir.1956)). However, such action can amount ......
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12 cases
  • In re Continental Airlines Corp., No. H-84-1747
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 31, 1985
    ...Cir. 1974). For clarity this Court uses the term "ripeness doctrine" throughout this opinion. 32 See e.g., Chicago Truck Drivers v. NMB, 670 F.2d 665, 668 & n. 5 (7th Cir.1981); Delpro, 509 F.Supp. at 472-74 & n. 33 See also Feaster, 410 F.2d at 1363 (judicial review of final NMB determinat......
  • Cobell v. Babbitt, No. 96-1285.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 21, 1999
    ...on the challenger of the action. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) v. National Mediation Bd., 670 F.2d 665, 668 (7th Cir.1981). In practical terms, there can be no greater finality as to Interior's definite current practice of issuing IIM trust money a......
  • Air Line Pilots Ass'n, Intern. v. United Air Lines, Inc., Nos. 85-2726
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 30, 1986
    ...64 S.Ct. 95, 96-97, 98-99, 88 L.Ed. 61 (1943); Chicago Truck Drivers Union, Helpers & Warehouse Workers v. National Mediation Board, 670 F.2d 665, 670 (7th 19 ALPA argues that because the Group of 500 accepted offers of employment from United that, under common law, they were not required t......
  • Wabash Valley Power v. Rural Electrification Admin., No. IP 89-126-C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • May 16, 1989
    ...a basis for judicial review.'" Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent) v. National Mediation Board, 670 F.2d 665, 668 (7th Cir. 1981) (quoting California Or. Power Co. v. Federal Power Comm'n, 239 F.2d 426, 430 (D.C.Cir.1956)). However, such action can amount ......
  • Request a trial to view additional results

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