Local 808, Bldg. Maintenance, Service and R.R. Workers Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Mediation Bd.

Citation888 F.2d 1428
Decision Date23 February 1990
Docket NumberNos. 89-5153,89-5154,s. 89-5153
Parties132 L.R.R.M. (BNA) 2913, 281 U.S.App.D.C. 231, 58 USLW 2310, 113 Lab.Cas. P 11,647 LOCAL 808, BUILDING MAINTENANCE, SERVICE AND RAILROAD WORKERS and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellees, v. NATIONAL MEDIATION BOARD and Metro-North Commuter Railroad Company, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Marc Richman, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Stuart E. Schiffer, Acting Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, Washington, D.C., Ronald M. Etters, Gen. Counsel, Nat. Mediation Bd. were on the brief, for appellant Nat. Mediation Bd.

Arnold B. Podgorsky, Washington, D.C., with whom Robert Bergen and Walter E. Zullig, Jr., New York City, were on the brief, for appellant Metro-North Commuter R.R. Co.

Roland P. Wilder, Jr., Washington, D.C., with whom Christy Concanon was on the brief, for appellees.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge MIKVA.

HARRY T. EDWARDS, Circuit Judge:

This appeal challenges an unprecedented judgment of the District Court ordering the National Mediation Board ("NMB" or "Board") to terminate mediation and proffer arbitration in connection with a "major dispute" between Local 808, Building Maintenance, Service and Railroad Workers ("Union" or "Local 808") and Metro-North Commuter Railroad ("Metro-North" or "Railroad"). Appellants NMB and Metro-North claim that the trial court had no authority to review the Board's determination that its efforts to mediate the parties' dispute have not proved unsuccessful, and that, therefore, the Board is not required by section 5 First of the Railway Labor Act ("Act" or "RLA"), as amended, 45 U.S.C. Sec. 155 First (1982), to terminate mediation In a situation such as the one before us, a court has jurisdiction to provide a remedy only "if the Board continues mediation on a basis that is completely and patently arbitrary and for a period of time that is completely and patently unreasonable, notwithstanding the lack of any genuine hope or expectation that the parties will arrive at an agreement." International Ass'n of Machinists & Aerospace Workers v. NMB, 425 F.2d 527, 537 (D.C.Cir.1970) ("Machinists ") (Leventhal, J.). This rule has come to mean that court relief from continuation of mediation "will be available, if at all, only in a most extraordinary situation bordering on patent official bad faith." See Delaware & Hudson Ry. v. United Transp. Union, 450 F.2d 603, 608 & n. 11 (D.C.Cir.) (Leventhal, J.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). Because we find that the Board, in deciding to continue mediation, did not act in patent official bad faith, we hold that the District Court was without authority to review the Board's determination. Accordingly, we reverse and remand to the District Court for dismissal with prejudice.

and proffer arbitration. The appellants also point out that there never has been a final disposition of a case in which a court has required the NMB to discontinue mediation and proffer arbitration.

A. Factual History

In July 1985, Local 808, the collective bargaining representative for Metro-North's track workers, served a notice on Metro-North proposing changes in the pay, rules and working conditions of Metro-North's track workers. 1 Local 808's proposal sought parity with the Long Island Rail Road ("LIRR") track workers and included, inter alia, a demand for a wage increase of twenty percent per year for three years, additional paid holidays and a pension plan equal to that offered by the LIRR. Metro-North, thereafter, served its own section 6 notice on Local 808 offering a two percent wage increase per year in exchange for substantial work rule relief and health and welfare cost containment. Local 808 then informed Metro-North that it would negotiate as a member of a coalition of sixteen bargaining representatives.

The Union and Metro-North met nine times for bargaining during the ensuing ten months. In June of 1986, Local 808, notwithstanding its representation that it would bargain with the coalition on common issues, requested NMB's mediation services. Between October 1986 and February 1988, Local 808 and Metro-North attended fourteen NMB mediated sessions. Representatives of the parties also met privately with the mediator or a member of the NMB many times. In February 1988, Local 808 asked the mediator for the Railroad's last best offer, which failed union membership ratification by a 411-12 vote. Shortly thereafter, Metro-North served the Union with a new contract proposal that offered terms less favorable to the Union than the proposal rejected by the employees.

On April 18, 1988, the Union formally requested the NMB to end mediation and to proffer arbitration. The Union declared: "the parties have reached the point where it is apparent that continued mediation will not result in a settlement. It is time to begin the procedures prescribed in Sec. 9A of the Act; perhaps Emergency Board proceedings will lead to settlement." Complaint 24, reprinted in Joint Appendix ("J.A.") 15. The NMB declined to proffer arbitration on the ground that continuing mediation would enhance the prospects for ultimate settlement. Two months later, on June 24, 1988, the Union filed its complaint in district court. As of the date the complaint was filed, the dispute had been on the Board's mediation docket for about two years.

B. Procedural History

The District Court granted Metro-North's motion to intervene, and, on May 19, 1989, the trial judge issued an order directing the NMB to cease mediation and to proffer arbitration within twenty days. See Local 808 v. NMB, Civ. Action No. 88-1730 (D.D.C. May 19, 1989), reprinted in J.A. 430-31. The District Court held that the Board violated its duty under section 5 First of the Railway Labor Act (codified as amended at 45 U.S.C. Sec. 155 First (1982)) when it failed to proffer arbitration after mediation efforts proved unsuccessful. See Local 808 v. NMB, slip op. at 19-21, reprinted in J.A. 427-29.

On June 9, 1989, consistent with the District Court's order, the NMB proffered arbitration. Metro-North accepted arbitration. Local 808 rejected arbitration. Metro-North then requested the President to create an Emergency Board, pursuant to section 9A of the Act, 45 U.S.C. Sec. 159a(c)(1) (1982). On July 13, 1989, appellants NMB and Metro-North filed a renewed motion for a stay pending appeal of the District Court's May 19, 1989 order. This court granted the stay on July 25, 1989. See Building Maintenance, Serv. & R.R. Workers, Local 808 v. NMB, Civ. Action No. 88-01730 (D.C.Cir. July 25, 1989) (Order).

A. Statutory Framework

The Railway Labor Act of 1926, Pub.L. No. 257, 44 Stat. 577 (1926) (codified as amended at 45 U.S.C. Sec. 151 et seq. (1982)), which was drafted in an unusual collaborative effort by a committee representing railroads and railroad unions, 2 was devised to provide a workable solution for resolving disputes in their industry with minimal disruption to the public. See 45 U.S.C. Sec. 151a (1982); H.R.Rep. No. 1944, 73d Cong., 2d Sess. 1-2 (1934); Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 589, 91 S.Ct. 1731, 1741, 29 L.Ed.2d 187 (1971) (Brennan, J. dissenting); Detroit & T. Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148-49, 90 S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). "The major purpose of Congress in passing the Railway Labor Act was to 'provide the machinery to prevent strikes' and the resulting interruptions of interstate commerce." Machinists, 425 F.2d at 533. To achieve this goal, the Act establishes an elaborate mediation and conciliation process, throughout which both parties are required to maintain the status quo. See 45 U.S.C. Secs. 152 Seventh, 155 First, 156, 159a(h), 160 (1982); Shore Line, 396 U.S. at 150-53, 90 S.Ct. at 299-301.

A principal aim of the RLA is to establish a detailed framework to facilitate settlement of "major disputes" 3 between carriers and their employees. As a general matter the statute requires the parties "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce." 45 U.S.C. Sec. 152 First (1982); see also Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, --- U.S. ----, 109 S.Ct. 2477, 2484, 105 L.Ed.2d 250 (1989) (indicating these as "core duties imposed upon employers Most importantly, while the dispute is working its way through these stages--conference, mediation and the waiting period of thirty days after a party refuses the Board's proffer of arbitration--neither party may unilaterally alter the status quo. See 45 U.S.C. Secs. 152 Seventh, 155 First, 156 (1982); Trainmen, 394 U.S. at 378, 89 S.Ct. at 1115. Thus, it is only after the Board has proffered arbitration and a party has waited the requisite thirty day cooling-off period (or sixty days in the event an Emergency Board has been created by the President), 5 that a party may engage in self-help. For this reason, the Board's power to hold a dispute in mediation is the key to the structure Congress established for bringing about settlements without industrial strife.

                and employees by the RLA").  More specifically, "[a] party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice."    Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969);  see 45 U.S.C. Sec. 156 (1982).  If a dispute arises, "[t]he parties must confer, [45 U.S.C. Sec. 152 Second (1982) ],

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