Railway Labor Executives' Ass'n v. National Mediation Bd.

Decision Date23 July 1993
Docket NumberNos. 91-5223,91-5310,s. 91-5223
Citation988 F.2d 133
Parties142 L.R.R.M. (BNA) 2705, 143 L.R.R.M. (BNA) 3093, 300 U.S.App.D.C. 185, 61 USLW 2575, 124 Lab.Cas. P 10,581 RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Appellants, v. NATIONAL MEDIATION BOARD, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia.

John O'B. Clarke, Jr., with whom L. Pat Wynns was on the brief, for appellants. William G. Mahoney, Washington, DC, entered an appearance for appellants.

Edward T. Swaine, Atty., Dept. of Justice, with whom Ronald M. Etters, Gen. Counsel, Nat. Mediation Bd., and Barbara C. Biddle, Washington, DC, Atty., Dept. of Justice, were on the brief, for appellee Nat. Mediation Board.

Richard T. Conway, Washington, DC, Thomas J. Knapp, and Lawrence M. Stroik, Fort Worth, TX, filed a brief, for appellees Burlington Northern R.R. Co. and Nat. Ry. Labor Conference.


Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge STEPHEN F. WILLIAMS.


In response to the increase in railroad mergers and consolidations in the 1980s, the National Mediation Board (NMB or Board) changed its approach to the certification--and decertification--of collective bargaining representatives for railroad employees. To assume a more active role, and to allow employer involvement, the Board revised its interpretation of the governing Railway Labor Act (RLA or Act) prescription, Section 2, Ninth, 45 U.S.C. § 152 Ninth. In the two cases before us, unions representing railroad workers challenge the NMB's current reading of Section 2, Ninth as patently incorrect and an arrogation of authority Congress did not give to the Board. The district court dismissed both suits on the ground that the challenged Board actions are not reviewable in court.

We reverse the district court's decisions and remand the cases for the entry of declaratory judgments in favor of the unions. Section 2, Ninth, as Congress shaped the provision, does not bear the new construction the Board has placed upon it. Satisfied that the NMB has created action-initiating roles for employers and for itself without legislative license, we explain in this opinion why judicial review is available in this exceptional instance.


In the 1930s, principally to prevent disputes between carriers and unions from disrupting transportation by rail, Congress amended the Railway Labor Act to create the National Mediation Board. Mediation of labor disputes in the railroad industry is the Board's main function. The RLA assigns to the Board, as an ancillary function, responsibility for the resolution of disputes concerning union representation for a rail carrier's employees. The dispositive provision of the Act, Section 2, Ninth, instructs that, "upon request of either party" to a dispute "among a carrier's employees" over the identity of their collective bargaining representative, the Board shall investigate and certify the result. Since the Board's creation in the 1930s and until the actions challenged here, the Board has conducted Section 2, Ninth certification (or representation) investigations in the railroad industry only at the request of the involved employees or organizations representing them.

In 1989, in response to an increase in railroad mergers and consolidations, the Board published new procedures delineating a more active approach to certification determinations. See Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Railroad Industry, 17 N.M.B. 44 (1989) (the Merger Procedures ). 1 As explained in these Merger Procedures, "[i]t is the Board's longstanding practice ... to certify only unions that represent the majority of a system-wide class of employees," that is, only unions that represent the majority of all persons doing the same job throughout an entire (integrated) company. Id. at 46 (construing Section 2, Fourth of the RLA). Mergers and consolidations, the Board recognized, combine once separate groups of employees into a single integrated workforce, and may therefore generate "question[s] as to who is the authorized or designated [employee] representative." Id.

The Merger Procedures were designed to facilitate the Board's prompt response to, and resolution of, merger-sparked representation questions. See id. at 47. Specifically, where the old procedures required the Board to wait until the employees became dissatisfied with the new situation and brought a dispute to the Board's attention, the Merger Procedures allow the Board to act at the request of a carrier or on the Board's own initiative. 2 As explained by the NMB's counsel at oral argument, the Board sought an "orderly procedure" that would allow the NMB to "anticipate" and "prevent chaos," rather than "react" to it. The Board rested its authority to install invigorated procedures on Section 2, Ninth. See id. at 44, 48-49.

The Railway Labor Executives' Association and numerous national labor unions (collectively RLEA) challenged the Board's authority under Section 2, Ninth, to promulgate the Merger Procedures. The district court dismissed the suit for want of judicial authority to review the Board's action. See Memorandum Opinion, Railway Labor Executives' Ass'n v. NMB, No. 89-3306 (D.D.C. June 4, 1991); Order, Railway Labor Executives' Ass'n v. NMB, No. 89-3306 (D.D.C. July 2, 1991).

Burlington Northern Railroad Co. (Burlington) was involved in various mergers and consolidations between 1970 and 1985. Invoking the Board's new procedures, Burlington asked the Board to investigate the effect these mergers may have had on earlier employee representation certifications. The Board investigated over eighty certifications, extinguishing those involving defunct railroads and issuing new ones on Burlington. See In re Merger of Northern Pacific Ry., 18 N.M.B. 240 (1991). Maintaining that the NMB could investigate representation questions only upon request of employees or their representatives, RLEA sued both the Board and Burlington. Again, the district court dismissed the case on the ground that the Board's decision was unreviewable. See Order, Railway Labor Executives' Ass'n v. NMB, No. 91-1135 (D.D.C. Sept. 12, 1991). In both of these rulings, the district court relied on the line of cases headed by Switchmen's Union v. NMB, 320 U.S. 297, 305, 64 S.Ct. 95, 99, 88 L.Ed. 61 (1943) (holding that Congress intended a Section 2, Ninth dispute between labor organizations, as to representation of a carrier's employees for collective bargaining purposes, "to reach its last terminal point when the administrative finding [is] made. There [is] to be no dragging out of the controversy into other tribunals of law.").

In this appeal, RLEA argues that the unambiguous text of Section 2, Ninth imposes two unyielding, essentially jurisdictional restraints: Board authority to investigate a certification exists only when a "party" calls a "dispute" 3 to the Board's attention; only the employees (or their representatives) involved in the dispute qualify as "parties." The Board 4 responds, first, that its Section 2, Ninth reading is immune from judicial review. Alternately, justifying its construction, the Board asserts that Section 2, Ninth describes when the NMB must investigate, but does not limit, and therefore leaves open for Board decision, when it may do so. 5

A. Reviewability

In Switchmen's Union v. NMB, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the Supreme Court held that the Board's certification of representatives for collective bargaining pursuant to Section 2, Ninth was not judicially reviewable. Switchmen's Union was a run of the road Section 2, Ninth case, a dispute resolved by the Board between two labor organizations over the representation of yardmen on lines operated by the New York Central system. The decision homed in on "the type of problem involved," and the Court cautioned that "[g]eneralizations as to when judicial review of administrative action may or may not be obtained are of course hazardous." Switchmen's Union, 320 U.S. at 301, 64 S.Ct. at 97.

Courts have endeavored, after Switchmen's Union, to distinguish run of the road cases in which judicial review is not available from exceptional instances in which a court check is in order. It is settled that, when a dispute "arise[s] among a carrier's employees," 45 U.S.C. § 152 Ninth, then, "so long as the Board is acting with the purpose of 'find[ing] the fact' as to who is the employees' representative," court review is precluded. See America West Airlines v. NMB, 969 F.2d 777, 781 (9th Cir.1992) (quoting Switchmen's Union, 320 U.S. at 305, 64 S.Ct. at 99). "On the other hand, when the Board acts in excess of its statutory authority, judicial review may be available." Id. at 781. A stock formulation describes court oversight as confined to instances of the Board's "gross violation" of the RLA. See International Ass'n of Machinists v. Trans World Airlines, 839 F.2d 809, 811 (D.C.Cir.) (quoting and affirming 654 F.Supp. 447, 450 (D.D.C.1987)), amended, 848 F.2d 232, cert. denied, 488 U.S. 820, 109 S.Ct. 62, 63, 102 L.Ed.2d 40 (1988).

In related administrative action settings, courts have used a variety of formulas to describe exceptional cases in which judicial review may be had despite a statutory regime generally precluding review. See Leedom v. Kyne, 358 U.S. 184, 188, 189, 79 S.Ct. 180, 183, 184, 3 L.Ed.2d 210 (1958) (National Labor Relations Board acted "in excess of its delegated powers and contrary to a specific...

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