Sedalia-Marshall-Boonville Stage Line, Inc. v. National Mediation Bd.

• Decision Date: 29 March 1978
• Docket Number: No. 77-1606,SEDALIA-MARSHALL-BOONVILLE,77-1606
• Citation: 574 F.2d 394
• Parties: 97 L.R.R.M. (BNA) 3224, 83 Lab.Cas. P 10,481 STAGE LINE, INC., Appellant, v. NATIONAL MEDIATION BOARD, Appellee, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 394

574 F.2d 394

97 L.R.R.M. (BNA) 3224, 83 Lab.Cas. P 10,481

SEDALIA-MARSHALL-BOONVILLE STAGE LINE, INC., Appellant, v. NATIONAL MEDIATION BOARD, Appellee and International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, Appellee.

No. 77-1606.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 11, 1978.

Decided March 29, 1978.

John R. Phillips (argued), James R. Swanger and Kathleen A. Reimer, Des Moines, Iowa, on brief, for appellant.

Allan Gerson (argued), Atty., Civ. Div., App. Sec., Dept. of Justice, Washington, D.C., Barbara Allen Babcock, Asst. Atty. Gen., and Ronald R. Glancz, Atty., Washington, D.C., and Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, on brief, for National Mediation Board.

Roland P. Wilder, Jr. (argued), Robert M. Baptiste, Gary S. Witlen, Washington, D.C., and Robert E. Conley, Des Moines, Iowa, on brief, for International Brotherhood of Teamsters.

Before GIBSON, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and ROSS, Circuit Judge.

ROSS, Circuit Judge.

Sedalia-Marshall-Boonville Stage Line, Inc. (hereinafter SMB), an air carrier, appeals from an adverse decision of the district court dismissing its complaint on a summary judgment motion, Fed.R.Civ.P. 56. The case arose under the Railway Labor Act, 45 U.S.C. §§ 151 et seq., wherein SMB challenged the decision of the National Mediation Board, a government agency, to certify the International Brotherhood of Teamsters as the bargaining representative of SMB's employees.

In January 1976 the Teamsters filed an application with the Board seeking to become the labor representative of SMB's pilots and co-pilots. In a subsequent election in March 1976 the Teamsters, according to the Board, won the right to represent these employees, with the union receiving 30 votes among the 58 eligible voters. ¹

In general terms, SMB has disagreed with the Board on who was eligible to vote in the representation election. By telegram to the Board on April 6, 1976, SMB protested the election results, contending that eligible employees had not been permitted to vote and that an ineligible former employee had voted; further SMB complained that these decisions were made without notice to the employer or an opportunity for the employer to be heard.

Specifically, SMB alleged that no investigation had been made by the Board as to the eligibility status of four named employees, and that no notice was given to SMB of a possible dispute concerning these employees' eligibility. After a summary rejection by the Board of the employer's complaints on April 7, 1976, and a renewal of the complaint by SMB in the form of an "Application to Vacate Certification and for Formal Evidentiary Hearing," the Board responded on May 7, 1976, with a letter from its Executive Secretary. The letter related the outcome of an executive session of the Board which reaffirmed that the excluded employees had been "correctly excluded" from voting; however, the Board admitted that one individual declared eligible by it, Shaw, should have been ineligible as SMB had alleged. The Board concluded that the error was harmless, however, since Shaw had not voted in the election anyway. ² In the May 7 letter the Board also briefly gave a reason for excluding each of the four named individuals whom SMB had complained were erroneously declared ineligible.

As a legal matter, SMB's petition in the district court alleged that, based on the foregoing set of facts, the Board had: (1) failed to comply with § 152, Ninth of the Act by failing to investigate a representational dispute and issues of employee voting eligibility; (2) designated an organization as the employee representative which had not been lawfully authorized by a majority of a craft or class of employees in violation of § 152, Fourth of the Act; (3) denied SMB minimal due process rights under the fifth amendment.

The statute with which this case is primarily concerned is § 152, Ninth of the Railway Labor Act, which sets out the duties of the National Mediation Board when a contest over employee representation arises:

Section 152, Ninth:

Disputes as to identity of representatives; designation by Mediation Board; secret elections

Ninth. If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. The Board shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph. (Emphasis added.)

The district court concluded that its jurisdiction to review employee representation proceedings under the Act was limited to "instances of constitutional dimension or gross violation of the statute," further concluded that no such violation of the statutory duty to "investigate" a representation dispute was present in this case, and granted defendant's summary judgment motion. The employer, SMB, appealed this holding, the holding that the employer had no procedural due process rights in the Board's eligibility determinations, and the granting of a protective order which had stayed discovery against the Board.

We affirm though we share the same concerns expressed by Judge Stuart in his opinion. ³

The appellant's request that we invalidate the certification is based on two assertions of error: that the Board had failed to undertake an investigation to determine the eligible electorate, and that the Board had failed to include the employer as a participant in the Board's processes for defining the electorate. On the basis of Brotherhood of Railway & Steamship Clerks v. Association For the Benefit of Non-Contract Employees, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d 133 (1965) (hereinafter Railway Clerks ) and other Supreme Court authority, we do not agree that the district court erred.

In Railway Clerks, supra, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d 133, the Supreme Court set out the principles for evaluating a claim that a decision of the National Mediation Board was subject to judicial review. It is first clear that the Court considered judicial review to be sparing. Citing its earlier opinion, Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), ⁴ the Court in Railway Clerks, supra, 380 U.S. at 659, 85 S.Ct. 1192, first stated that § 152, Fourth of the Railway Labor Act had written into law the "right" of the majority of a class or craft of employees to choose who shall be their representative for purposes of the Act. Congress had determined to protect that "right" in § 152, Ninth of the Act which gave the Mediation Board the "power to resolve controversies" concerning representation. Id. The power to protect the employees' rights thus resided in the Board, not in the judiciary:

Congress decided on the method which might be employed to protect this "right"; and that where Congress "has not expressly authorized judicial review," id., (320 U.S.) at 301, 64 S.Ct. at 97, "this Court has often refused to furnish one even where questions of law might be involved," id., at 303, (64 S.Ct. at 98). The Court's conclusion was that "the intent seems plain the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law."

Railway Clerks, supra, 380 U.S. at 659, 85 S.Ct. at 1197.

To these general principles of judicial nonreview, the Court added one limitation: judicial power may be exerted to require the Board to exercise a duty imposed under § 152, Ninth of the Act. Railway Clerks, supra, 380 U.S. at 661, 85 S.Ct. at 1198. "(T)he Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to 'investigate' the dispute." Id. (footnote omitted).

After a review of applicable "principles," the Court in Railway Clerks proceeded to consider, and reject, the employer's assertion that the Board had failed to perform its statutory duty to investigate in making a class and craft designation for the employees; the employer had argued that the Board had made an arbitrary determination without taking evidence or making findings.

The statute admittedly required the Board to make an "investigation," but, the Court continued, "(t)his command is broad and sweeping." Railway Clerks, supra, 380 U.S. at 662, 85 S.Ct. at 1198. No particular kind of investigation is required in every case:

We should note at the outset that the Board's duty to...