U.S. Airways, Inc. v. National Mediation Bd., AFL-CI

• Decision Date: 28 May 1999
• Docket Number: A,No. 98-5435,AFL-CI,98-5435
• Citation: 177 F.3d 985
• Parties: 161 L.R.R.M. (BNA) 2419 US AIRWAYS, INC., Appellant, v. NATIONAL MEDIATION BOARD and Communications Workers of America,ppellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

177 F.3d 985

161 L.R.R.M. (BNA) 2419

US AIRWAYS, INC., Appellant, v. NATIONAL MEDIATION BOARD and Communications Workers of America, AFL-CIO, Appellees.

No. 98-5435.

United States Court of Appeals, District of Columbia Circuit.

Argued May 3, 1999.

Decided May 28, 1999

Appeal from the United States District Court for the District of Columbia (97cv01508).

Robert A. Siegel argued the cause for appellant. With him on the briefs was Tom A. Jerman.

Bruce G. Forrest, Attorney, United States Department of Justice, argued the cause for appellee National Mediation Board. With him on the brief were Frank W. Hunger, Assistant Attorney General at the time the brief was filed, William Kanter, Deputy Director, and Ronald M. Etters, General Counsel, National Mediation Board. Theodore C. Hirt, Attorney, United States Department of Justice, entered an appearance.

James B. Coppess argued the cause for appellee Communications Workers of America, AFL-CIO. With him on the brief were Daniel M. Katz, Larry Engelstein, and Marsha S. Berzon.

Before: SILBERMAN, WILLIAMS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The National Mediation Board (NMB) found that U.S. Airways had interfered with its employees' free choice in a union representation election, and issued an order setting aside the results of that election (which the union had lost) and prescribing a re-run election (which the union won). US Airways challenged the Board's order in the district court on First Amendment grounds, requesting that the results of the re-run election be set aside, but was rebuffed. We reverse.

I.

The Communications Workers of America (CWA) failed in the first election to garner the votes necessary to represent the passenger service employees of U.S. Airways. The union saw its defeat as the product of a coercive anti-union campaign waged by the carrier's management leading up to, and during, the representation election. Pursuant to § 2, Ninth of the Railway Labor Act, the union requested that the Board "investigate" the "representation dispute" and "utilize any ... appropriate method of ascertaining the names of [the employees'] 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." 45 U.S.C. § 152, Ninth.

No one disputes the underlying facts found by the Board in its investigation. For some time prior to the representation election, an institution known as the "employee roundtable" was a key feature of management's relationship with the several categories of non-represented passenger service employees. The roundtables, while focusing on operational and other issues in their periodic meetings, also provided a forum for occasional discussion and alteration of U.S. Airways' employment policies. The impact has been real. Modifications to the carrier's rules governing vacation scheduling, supervisors' disciplinary authority, and overtime were only a few of the changes made from 1991-95.

In early 1996, a new management team announced the formation of a company-wide "System Roundtable," an umbrella entity unifying the existing roundtables that would continue, in the words of one executive officer, to provide a forum for "issues affecting employees." The System Roundtable continued the tradition of its constituent bodies, implementing changes to the carrier's policies governing tardiness and trading of shifts among employees, and also delegated to several "task forces" the responsibility to study other policies. The most notable of these task forces was assigned the job of proposing changes to the carrier's apparently widely despised policy governing paid days off for vacation and sick days.

Between the Board's authorization of the election in November 1996 and the ballot count on January 30, 1997, U.S. Airways' management highlighted the above described employment policy changes and the potential for future progress on the matters under study by the task forces. In informational newsletters, telephone hotlines, and meetings, management communicated to the employees that the informal management-employee relationship embodied in the roundtables was inconsistent with union representation: "Electing CWA would force the company to eliminate face-to-face policy making between management and employees at a time when we are beginning to make real progress. Labor laws require employees to deal exclusively with the union on issues of employment policy."

After reviewing these facts, the Board's order set forth five "initial standards" viewed as indicative of a carrier's interference with employee freedom of choice in the context of a workplace in which roundtables (also called employee committees) are present.

1) The establishment of a committee at any time after the carrier becomes aware of a labor organization's organizing efforts;

2) A material change, or a carrier representation of such a change during the critical period in the purpose or activities of a pre-existing committee;

3) The use of a pre-existing committee to expand employee benefits during the critical period (the continuation of existing benefits is a prerequisite of a fair election);

4) Carrier campaigns which indicate a pre-existing committee is, or should be, a substitute for the collective bargaining representative;

5) Carrier campaigns which indicate that the certification of a labor organization as the representative of the employees will lead to the termination of a pre-existing committee.

US Airways, 24 N.M.B. 354, 385-86 (1997). The Board determined that the carrier's activities ran afoul of each of these five factors: the carrier had established a new roundtable during the critical period; represented to the employees that pre-existing committees had been materially changed so as better to address employment practices; used the roundtables to accomplish the recent changes in attendance and shift-trading policies and the creation of the task forces; portrayed the roundtables as an alternative to union representation; and predicted that the election of the union would result in the elimination of the roundtable process. See id. at 388. The Board concluded that "[b]ased upon the totality of the circumstances in this case, ... the laboratory conditions required for a fair election were tainted." Id. at 393.

The Board ordered a re-run election, making clear that "[t]he Carrier is not permitted to influence, interfere [with] or coerce employees in any manner ... in the upcoming election." Id. at 396. ¹ The carrier, after failing to persuade the Board to stay its order pending a motion for reconsideration, filed a complaint in district court, along with an application for a temporary restraining order barring enforcement of the Board's order. Relying in part on the Board's representation at the TRO hearing that "[i]f the election goes forward, and then a decision is issued by the court that the board's decision is invalid, the election will be null and void," the district court denied the application. See U.S. Airways, Inc. v. NMB, Civ. Act. No. 97-1508, Mem. Order at 3 (D.D.C. July 3, 1997) ("If at some point, the provisions of that Order are held to violate either the statute or the Constitution, the election will be set aside.").

US Airways, its request for a TRO denied, complied with the Board's order. The carrier understood the order's fourth and fifth factors to bar it from advocating the roundtables as an alternative to union representation and from predicting that election of the union would result in the disbanding of the roundtables. So U.S. Airways' management remained silent on these matters. The union won the re-run election by a slim margin: the ballot count on September 29, 1997, revealed that of the 8,772 eligible voters, 4,773--or roughly 54%--cast ballots in favor of CWA. The NMB soon thereafter certified CWA as the bargaining representative for the carrier's passenger service employees. Still awaiting a decision by the district court on the merits of its complaint, U.S. Airways amended its complaint to take account of the now completed re-run election: "Because U.S. Airways' speech was unconstitutionally restrained during the rerun election by the Board's Order ..., U.S. Airways seeks an order setting aside the election and the certification of CWA." Supplemental Verified Complaint for Declaratory and Injunctive Relief p 7 (filed Mar. 27, 1998) (emphasis added).

The district court ultimately rejected the carrier's constitutional arguments, granting the Board's motion for summary judgment. US Airways, Inc. v. NMB, Civ. Act. No. 97-1508, Mem. Op. (D.D.C. July 21, 1998). The court rejected the carrier's analogy to cases, including NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), recognizing an employer's First Amendment right to express its views on unionization prior to a representation election. Those cases, the district court observed, arose in the context of the National Labor Relations Act, not the Railway Labor Act, and were inapplicable because "[t]he role of employers in representation elections governed by the RLA is more limited than the activities permitted employers under the NLRA." Mem. Op. at 14. Alternatively, the district court assumed that the NLRA caselaw does apply to the RLA context, and held that U.S. Airways' activities are not protected under that framework.

II.

The carrier seeks the invalidation of the results of the rerun election. Its arguments in support are two-fold: the carrier first submits that the Board's order unconstitutionally penalized it for the expressive activity in which it engaged prior to the first election; alternatively, the carrier claims that the order unconstitutionally restricted its expression during the re-run election period. We begin, for reasons that will become apparent,...