Professional Cabin Crew Ass'n v. National Mediation Bd., 88-5200

Citation872 F.2d 456
Decision Date07 April 1989
Docket NumberNo. 88-5200,88-5200
Parties131 L.R.R.M. (BNA) 2034, 277 U.S.App.D.C. 21, 111 Lab.Cas. P 11,080 PROFESSIONAL CABIN CREW ASSOCIATION, et al., Appellant, v. NATIONAL MEDIATION BOARD, an Agency of the United States, Independent Federation of Flight Attendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-03446).

Ky P. Ewing, Jr., with whom Charles D. Tetrault and Christopher T. Corson, Washington, D.C., were on the brief, for appellants.

Marc Richman, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., John F. Cordes, Atty., Dept. of Justice, Washington, D.C., and Ronald M. Etters, Gen. Counsel, National Mediation Bd., were on the brief, for appellee, the National Mediation Bd.

Patrick J. Szymanski, with whom Roland P. Wilder, Jr., and Christy Concannon, Washington, D.C., were on the brief, for appellee, Independent Ass'n of Flight Attendants.

Before ROBINSON, EDWARDS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Professional Cabin Crew Association ("PCCA" or "appellant") appeals from a summary judgment entered by the District Court in favor of defendants National Mediation Board ("NMB" or "Board") and Independent Federation of Flight Attendants ("IFFA"). PCCA argued before the District Court that the NMB exceeded its authority under the Railway Labor Act ("RLA"), 45 U.S.C. Secs. 151-88 (1982), when it dismissed PCCA's application for certification as the representative of flight attendants employed by Trans World Airways, Inc. ("TWA"), an interstate common carrier subject to the provisions of the RLA. The District Court held that it lacked jurisdiction to review the NMB's prior dismissal. PCCA appealed to this Court. We affirm.

I. FACTUAL BACKGROUND

The facts are not in dispute. Since 1977, IFFA has been the certified bargaining representative of the craft or class of flight attendants employed by TWA. In March, 1986, a majority of the approximately 6,000 flight attendants struck the airline. Nearly 1,000 of the attendants either remained at work or left the picket lines early. Before the striking employees offered to return to work at strike's end, TWA exercised its right to hire permanent replacements. It immediately rehired 196 former strikers and placed the rest in seniority order on a "preferential rehire" list. By the time of the NMB decision, approximately 800 were recalled from the list.

IFFA subsequently filed two federal civil actions challenging TWA's conduct. In the first, it sought immediate reinstatement of all of the former strikers, alleging that TWA had failed in its obligation to bargain in good faith. The action was later dismissed by the district court and an appeal is currently pending. Independent Fed'n of Flight Attendants v. Trans World Airlines, 682 F.Supp. 1003 (W.D.Mo.1988), appeal docketed, No. 88-1984WM (8th Cir. Jul. 7, 1988). In the second, approximately 1,500 of the strikers alleged that even if the strike was economic, they were entitled to reinstatement under the terms of the collective bargaining agreement or under the RLA itself. The Supreme Court recently rejected their claim for reinstatement in preference to less senior attendants who returned to work before the strike ended. Trans World Airlines v. Independent Fed'n of Flight Attendants, --- U.S. ----, 109 S.Ct. 1225, 103 L.Ed.2d 456 (1989) rev'g 819 F.2d 839 (8th Cir.1987). As will be seen below, it is significant that both cases were pending when the Board issued the challenged decision.

Several months after the strike ended, TWA acquired Ozark Air Lines by merger. The representative of Ozark's attendants, the Association of Flight Attendants ("AFA"), thereafter filed a petition with the NMB seeking to ascertain whether it or IFFA was now the representative of the attendants formerly employed by Ozark. Believing that AFA's petition was procedurally defective, IFFA filed its own petition seeking to have the same question resolved. On December 15, 1986, the recently formed PCCA requested intervention in the IFFA action, stating as its purpose the ousting of IFFA as the representative of TWA's attendants. After a six-day hearing on the AFA petition, on May 7, 1987, the NMB concluded that AFA's representation of the former Ozark attendants now employed by TWA had been terminated by the merger. 14 Determinations of the National Mediation Board ("N.M.B.") at 256, 257 (1987). IFFA withdrew its petition shortly thereafter, stating as its reason the Board's resolution of the "single carrier" issue. See Joint Appendix ("J.A.") at 159. On July 20, 1987, the NMB announced that it would accept IFFA's withdrawal, and that for this reason it would no longer consider PCCA's application for intervention. 14 N.M.B. at 343 (1987). It alerted PCCA of its right to convert its application into a representation application in its own right, which would require "a verified showing of interest 'from at least a majority of the craft or class.' " 14 N.M.B. at 345 (quoting 29 C.F.R. Sec. 1206.2(a)).

On July 30, 1987, PCCA filed its application, which was accompanied by a showing of interest alleged to be a majority of the approximately 5,100 attendants then currently working for TWA. The showing of interest also allegedly represented more than thirty-five percent (but less than half) of the total of currently working attendants and former strikers whose reinstatement claims were then pending. After conducting an investigation (discussed more fully in Part II-D, below), the NMB's Representative concluded that the former strikers were presumptively eligible to vote. 1 PCCA appealed to the full Board from the ruling on the status of the former strikers as a class.

A. NMB Decision

On November 10, 1987, the NMB ruled by a 2-to-1 vote that the former strikers should be considered as potentially eligible voters. Professional Cabin Crew Ass'n, 15 N.M.B. at 11 (1987). Its decision that the strikers were presumptively eligible rested on two apparently independent bases: (1) it and the Eighth Circuit had previously held that employees who are not working because of a labor dispute remain in the employ of the carrier; and (2) the pendency of reinstatement litigation made the strikers eligible under the NMB'sRepresentation Manual and Rules. Because PCCA's representation application lacked a majority showing of interest from the 9,328 formerly and currently working attendants, the Board dismissed its application. Id. at 16-17. After the Board denied its request for reconsideration, PCCA filed a complaint with the District Court.

B. District Court Decision

PCCA contended before the District Court that the NMB had exceeded its authority under the RLA by including the approximately 4,000 former strikers as potentially eligible voters, by requiring PCCA to file a representational request, as opposed to treating the union as an intervenor in the IFFA petition (thereby requiring a fifty percent, rather than a thirty-five percent, showing of interest), and by failing to fulfill its statutory duty to investigate the actual eligibility of individual former strikers. IFFA intervened and participated as a defendant.

After noting that " '[j]udicial review of NMB decisions is one of the narrowest known to the law,' " the District Court concluded that PCCA failed to show that the challenged conduct constituted a gross violation of the RLA or a denial of a constitutional right. Professional Cabin Crew Ass'n v. NMB, No. 87-3446-LFO, 1988 WL 59667 (D.D.C. May 7, 1988) (quoting International Ass'n of Machinists v. Trans World Airlines, 839 F.2d 809, 811 (D.C.1988)) (J.A. at 668, 672). The Court reached this conclusion by finding that the NMB "did not violate any express provision" of the RLA, J.A. at 672, "fulfilled its statutory duty to investigate," id. at 673, and did not err in requiring a fifty percent showing of interest to justify an election. Id. at 675. Having so concluded, the Court held that it lacked jurisdiction to review the NMB's dismissal, and accordingly granted summary judgment in favor of NMB and IFFA. PCCA appealed to this Court.

II. DISCUSSION
A. Jurisdiction

Judicial review of NMB decisions is extraordinarily limited. See Switchmen's Union of N. Am. v. NMB, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Brotherhood of Ry. & S.S. Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d 133 (1965) (Railway Clerks ). Courts have authority to review NMB determinations only upon a " 'showing on the face of the pleadings that the certification decision was a gross violation of the [RLA] or that it violated the constitutional rights of an employer, employee, or Union.' " International Ass'n of Machinists v. Trans World Airlines, 839 F.2d 809, 811 (D.C.Cir.) (citation omitted), cert. denied, --- U.S. ----, 109 S.Ct. 62, 102 L.Ed.2d 40 (1988). Courts take only a "peek at the merits" to determine if the NMB has committed an error of "constitutional dimension or gross violation of the statute." International Bhd. of Teamsters v. Brotherhood of Ry., Airline & S.S. Clerks, 402 F.2d 196, 205 (D.C.Cir.), cert. denied sub nom. Brotherhood of Ry., Airline & S.S. Clerks v. NMB, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968). The court is empowered to proceed no further unless the "peek" reveals an error that is "obvious on the face of the papers ... without extension to 'arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide.' " Id. (quoting Railway Clerks, 380 U.S. at 671, 85 S.Ct. at 1203). See also WES Chapter, Flight Eng'rs' Int'l Ass'n v. NMB, 314 F.2d 234, 236 (D.C.Cir.1962) (stating that courts have taken jurisdiction where "the Board had acted in excess of its delegated powers and...

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