International Ass'n of Mach. & A. Wkrs. v. National Med. Bd., 23409

• Citation: 425 F.2d 527
• Decision Date: 30 January 1970
• Docket Number: No. 23409,23412.,23409
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Appellee, v. NATIONAL MEDIATION BOARD et al., National Airlines, Inc., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

425 F.2d 527 (1970)

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Appellee, v. NATIONAL MEDIATION BOARD et al., National Airlines, Inc., Appellants.

Nos. 23409, 23412.

United States Court of Appeals, District of Columbia Circuit.

Argued October 15, 1969.

Decided January 30, 1970.

Mr. Walter H. Fleischer, Atty., Dept. of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, were on the brief, for appellants, National Mediation Board, et al., in No. 23,412. Messrs. Morton Hollander and Stephen R. Felson, Attys., Dept. of Justice, also entered appearances for appellants, National Mediation Board, et al., in No. 23,412.

Mr. William J. Curtin, Washington, D. C., with whom Messrs. Robert J. Hickey and Julius Schlezinger were on the brief, for appellant, National Airlines, Inc., in No. 23,409.

Mr. Bernard Dunau, Washington, D. C., with whom Mr. Plato E. Papps, Washington, D. C., was on the brief, for appellee.

Messrs. Francis M. Shea and Richard T. Conway, Washington, D. C., filed a brief on behalf of the National Railway Labor Conference, as amicus curiae, urging reversal.

Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.

LEVENTHAL, Circuit Judge:

This appeal concerns the reviewability of a determination by the National Mediation Board that its efforts to mediate a major labor dispute have not proved unsuccessful and that therefore it is not required by section Five, first of the Railway Labor Act, 45 U.S.C. § 155, to terminate mediation and proffer arbitration. The issue is an important one in the context of the Railway Labor Act because while mediation is under way and has not been terminated by the Board, by a proffer of arbitration, employees are prohibited from striking and management is prohibited from making unilateral changes in the terms and conditions of employment. The Act was extended to air carriers by 1936 amendment.

I. Proceedings in the District Court

This action to compel the Board to proffer arbitration was brought by the International Association of Machinists and Aerospace Workers, AFL-CIO (sometimes hereafter "IAMAW" or "Union") which since October 31, 1968, has been engaged in a labor dispute with National Airlines concerning the renegotiation of the collective bargaining agreement. The dispute was docketed by the Board for mediation on December 23, 1968. In the District Court proceedings the Board insisted that it could not be compelled to state the reasons why it felt that efforts to secure an amicable settlement through mediation had not proved unsuccessful in as much as (1) the District Court had no jurisdiction to review the Board's determination, and (2) it would be destructive of the mediation function of the Board to require it to justify its decision to continue with mediation. The District Court, however, was of the view that "there has been sufficient indication that these mediation efforts may be unsuccessful that the Mediation Board should not any longer proceed without acquainting the Court in prompt fashion and in detail as to the reasons why it may feel mediation will be successful, if that is its view." The Board was ordered to respond to interrogatories, which had been filed by the Union,¹ that asked the basis on which the Board believed efforts to mediate might still be successful.

On August 4, 1969, a hearing was held on cross-motions for summary judgment. Francis A. O'Neill, Jr., Chairman of the National Mediation Board, was present in the court room. The District Judge announced at the outset that he had some concern about the adequacy of the affidavits filed by defendants and wished to address some questions to a Board member. He thereupon discussed with Mr. O'Neill various aspects of the process of mediation and the function of the Board therein. Counsel for the Board objected, however, to questions by the Court seeking to discover the Board's basis for its decision not to proceed to arbitration in the case at bar. The Court then advised counsel that the Board's answers to the Union's interrogatories had been unresponsive and that the Court was prepared to resolve the issue in favor of the Union if the Board was unwilling to explain its actions. Mr. O'Neill was asked no further questions.

On August 15, 1969, the District Court entered its judgment ordering the Board to proffer arbitration and discontinue its attempt to bring about a settlement of the controversy by mediation. In its memorandum opinion of August 7, the Court concluded that it had jurisdiction to compel the Board to act where there exists a clear violation of the statutory provision, requiring the Board to proffer arbitration when mediation is exhausted, by reason of the Board's patently arbitrary refusal to act; that the Union affidavits showing that mediation was being continued although 97 issues remained unresolved after 48 mediation sessions and 179 hours of talk made out a prima facie case of patently arbitrary action; that when the Board is responsibly accused of having abused its powers, it must answer the Court or take the consequences; that the Board had refused to justify its conduct, its answers to the Union interrogatories being unresponsive and consequently stricken under Fed.R.Civ.Pro.Rule 37(b) (2) (i); and that, standing alone, the affidavits filed and showing made by the Union entitled it to summary judgment.

II Overview of the Controversy The Labor Dispute

The IAMAW is the certified representative for approximately 1,350 mechanical, stock room and related employees of National Airlines. The last collective bargaining agreement between the company and the Union was entered into on August 25, 1966, terminable on December 31, 1968 on sixty days notice by either party. On October 31, 1968, both National and the Union exchanged notices of proposed changes in the terms of this agreement. These also served as notices given pursuant to § 6 of the Railway Labor Act, 45 U.S.C. § 156, which requires, inter alia, 30-day notices and collective bargaining in case of a major labor dispute between a carrier and its employees. National noticed proposed changes in 17 of the 25 Articles of the agreement. The Union proposed changes in 21 Articles and in addition proposed the establishment of a pension plan. In all 162 separate notices were exchanged. Some of the topics are indicated in the footnote; they serve to evidence the wide range of matters involved.²

Negotiations, Mediation and other Proceedings Prior to the Filing of the Complaint Seeking Proffer of Arbitration

The various § 6 notices were discussed at meetings between IAMAW and National on November 12, 13, 14, 15, and 18, 1968. Although these meetings provided an opportunity for clarification of proposals and some substantive discussions, it was decided "to recess until December 9, 1968, when we will get down to serious negotiations." When on that date at 10 a. m. negotiations resumed, the Union at the outset charged National with having made a unilateral change in the conditions of employment by using employees outside the class represented by the IAMAW to perform work claimed by the Union. National suggested that this issue should be resolved through existing grievance procedures; the Union stated that this response was unacceptable and that in view of National's attitude it considered negotiations to be deadlocked and further conferences useless. The Union then withdrew from the conference and that day wired the Company that it deemed "negotiations between National Airlines and the IAMAW deadlocked as of 10:07 this date."

On December 16, 1968, National applied for the services of the National Mediation Board, and the Board docketed the dispute on December 23.

Shortly thereafter the Company and the Union became involved in controversy concerning an order issued by the carrier reducing the number of men needed to taxi an aircraft from three to two. The controversy led to the use of self-help by both parties to the dispute. The course of events, fully set out in the opinion of the Fifth Circuit in National Airlines, Inc. v. IAMAW, 416 F.2d 998 (September 23, 1969), may be summarized as a sequence of escalating responses: the refusal of three employees to taxi aircraft, their discharge by the carrier, a wildcat strike by the employees, and the carrier's firing of approximately 940 workers who were members of IAMAW.

The Fifth Circuit held that although National may have been entitled under the Act to some self-help when faced with an illegal strike over which the Union had lost all control such defensive self-help was permissible only to the extent necessary to maintain uninterrupted carrier service. National, the court concluded, though entitled to replace strikers and not rehire those replaced, had exceeded the bounds of permissible self-help because the mass discharge of strikers was not needed to restore service. The case was remanded to the district court for determination of the precise extent to which the carrier exceeded the permissible bounds of self-help.

On January 27, 1969, six days after the issuance of a second injunction against the wildcat strike by the U.S. District Court for the Southern District of Florida, and five days after the mass discharge of employees by National, the President of the Union wired the Board to protest the Board's failure to assign a mediator and to insist that it immediately "make a proffer of arbitration of this dispute."

On February 27, 1969, the Union commenced an action in the U.S. District Court for the District of Columbia, complaining of the Board's failure to assign a mediator, and March 3 moved for a preliminary injunction to require the Board to make an assignment. On March 5, prior to a ruling on this motion, the Board assigned mediator Arthur J. Glover to the dispute. He met separately with the parties on March 10, 11 and 12. On March 11, the Union again requested a proffer of...