Virgin Atlantic Airways, Ltd. v. National Mediation Bd.
| Decision Date | 20 February 1992 |
| Docket Number | Nos. 687,688,D,s. 687 |
| Citation | 956 F.2d 1245 |
| Parties | 139 L.R.R.M. (BNA) 2541, 60 USLW 2619, 121 Lab.Cas. P 10,011, 22 Fed.R.Serv.3d 417 VIRGIN ATLANTIC AIRWAYS, LTD., Mario Batista, Lawrence French, Julio Rosa, Jose Marcello Garcia, John Aquino, and Edgar Lambertus, Plaintiffs-Appellees, Cross-Appellants, v. NATIONAL MEDIATION BOARD, an agency of the United States of America, International Brotherhood of Teamsters, Local 851, Anthony Farina, individually and as president of Local 851, International Brotherhood of Teamsters Airline Division, William Genoese, individually and as Director of International Brotherhood of Teamsters Airline Division, Defendants-Appellants, Cross-Appellees. ockets 91-6211, 91-6223, 91-6225 and 91-6253. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank A. Rosenfeld, Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., William Kanter, Dept. of Justice, Washington, D.C., Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., Ronald M. Etters, General Counsel, Nat. Mediation Bd., Washington, D.C., of counsel), for appellant Natl. Mediation Bd.
James A. McCall, Washington, D.C. (James T. Grady, General Counsel, Intern. Broth. of Teamsters, Washington, D.C., Jeffrey P. Englander, Morrison, Cohen, Singer & Weinstein, New York City, of counsel), for appellant Intern. Broth. of Teamsters.
Michael Delikat, New York City (Jill L. Rosenberg, Orrick, Herrington & Sutcliffe, of counsel), for appellees.
Before MESKILL, KEARSE and WINTER, Circuit Judges.
These appeals and cross-appeals involve the validity of a review by the United States District Court for the Eastern District of New York, Glasser, J., of the certification of an employee representative under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. The National Mediation Board (NMB) is empowered by section 2, Ninth of the RLA, 45 U.S.C. § 152, Ninth, to investigate and resolve disputes among employees of a carrier by rail or air as to the identity of their bargaining representative, 132 F.R.D. 342. Once the carrier receives certification from the NMB that a particular individual or organization is the duly authorized representative of a group of employees, the carrier is obligated to bargain with that representative.
The district court erred in determining that it had jurisdiction to review the union certification and incorrectly held that the certification was invalid. The court wrongly dismissed many of the counterclaims brought by the union against the carrier. The district court, however, correctly dismissed the union's counterclaim concerning the status quo provisions of the RLA because there was no pre-existing bargaining relationship between the parties. Finally, we hold that the district court did not abuse its discretion in finding that the NMB violated Fed.R.Civ.P. 11 by filing a repetitive motion.
On February 17, 1988 the International Brotherhood of Teamsters, Local 851 (hereinafter, along with appellant International Brotherhood of Teamsters Airline Division, "Union") filed an application with the NMB to investigate a dispute among certain employees of Virgin Atlantic Airways, Ltd. (Virgin). There had been talk of unionization among this group of workers for several months prior to this application.
Shortly after filing the application, the Union, along with several discharged Virgin employees, brought an action in federal court (the Hodges action) alleging that Virgin had unlawfully interfered with the right of the employees to select their own bargaining representative. The complaint alleged, among other things, that six employees had been discharged because they were vocal supporters of the Union. The discharged employees sought reinstatement. Two of the six were eventually rehired by Virgin, but the remaining four did not work at Virgin after February 6, 1988.
The NMB proceeded to investigate the representation dispute among the Virgin employees. In March 1988 an NMB representative held a conference with Virgin and By the end of March, the NMB representative had authorized an election among the employees and had included the four Hodges plaintiffs among those employees eligible to vote. The election was scheduled for April 25, 1988. The NMB representative explicitly informed the parties that they could appeal any decision of the representative to the NMB. Virgin did not appeal the decision to include the Hodges plaintiffs within the specified time.
the Union. Virgin requested that the four plaintiffs in the Hodges action not be included among those employees eligible to vote in any election held to determine representation. Under an NMB rule, discharged employees with pending reinstatement actions are eligible to vote. See 29 C.F.R. § 1206.6 (1991). Virgin recognized this rule, but argued that the four should not be allowed to vote because the Hodges action was merely an attempt to take advantage of that rule rather than a bona fide reinstatement action. Virgin requested that the NMB stay its processing of the application until the district court ruled on the reinstatement claim
On April 19, 1988 Virgin sent a telex to the NMB with two requests. First, Virgin noted that the trial in the Hodges case had been scheduled for the same date as the election and requested that the count be moved to the following day as Virgin wished its attorneys to be present at the vote count. Second, because the district court was expected to rule on the reinstatement claims promptly, Virgin requested that the challenged ballots be sequestered and that, if those ballots proved determinative, the NMB postpone the count until the determination of the district court.
The NMB responded the next day with a telex to Virgin that stated:
On April 26, 1988 the NMB again communicated with Virgin and reversed its earlier position. It informed Virgin that the votes would be counted on April 27 and that all ballots from those eligible to vote as of the original April 25 count date would be included. Citing similar determinations in other cases, the NMB denied Virgin's request for a delay in the count.
On April 27, 1988 the district court in the Hodges action held that the four employees had not been discharged because of their union activity and thus were not entitled to reinstatement. Virgin informed the NMB of this decision immediately and again requested that the votes of the four employees not be counted.
The NMB again denied this request and counted all the ballots. The Union received twelve of a possible twenty-one votes, including the four challenged votes. Thus, a majority of the eligible voters designated the Union as their representative. Had the four challenged ballots been excluded, the Union would not have had majority support. On May 2, 1988 the NMB certified the Union as the bargaining representative of the employees.
Despite the certification by the NMB, Virgin refused to bargain with the Union. Instead, Virgin solicited its employees to sign a prepared statement that read: "I have rethought my position regarding Virgin Atlantic and the Union and would like to collectively work with Management for one year after which time I would like the option of considering a Union to represent me."
After repeated overtures to Virgin to negotiate, the Union called a strike on July 6, 1988. Virgin again refused to negotiate with the Union at a mediation session on August 8, 1988 called at the direction of the NMB. The striking workers, led by the Union, then engaged in secondary picketing directed against United Air Lines, a company that did business with Virgin. See United Air Lines v. Airline Div., etc., 874 F.2d 110 (2d Cir.1989).
On October 11, 1988 Virgin and six of its fleet service employees filed this action in the United States District Court for the Eastern District of New York against the NMB, the Union and others. They sought The Union filed a counterclaim against Virgin, seeking enforcement of the NMB certification and alleging that Virgin had violated the RLA by unilaterally altering the terms and conditions of employment. The Union also alleged that Virgin had impermissibly interfered with the employees' choice of a bargaining representative through the solicitation of signatures for the prepared statement.
to set aside the certification, claiming that the NMB had grossly violated the RLA, had violated the First and Fifth Amendments to the Constitution and had violated the Administrative Procedure Act. Virgin also sought to enjoin picketing by the Union
The NMB moved to dismiss the complaint. The NMB argued that its actions in certifying a bargaining representative were not subject to judicial review except where the NMB had "grossly violated" the terms of the RLA. The NMB argued that no such violation had occurred and therefore the district court could not review the certification. On February 24, 1989, after briefing and oral argument, the district court denied the NMB's motion to dismiss. The district court recognized the limited judicial review available for NMB certifications. However, the court held that, because the NMB counted the votes of individuals who were not "employees" for purposes of the RLA, there was jurisdiction to review the certification "[u]pon the precise facts of this case."
The parties agreed that the litigation should be stayed pending an interlocutory appeal of the denial of the motion to dismiss to this Court. After a delay, the district court entered an order pursuant to 28 U.S.C. § 1292(b) for an interlocutory appeal in February 1990. On March 15, 1990 we, in our discretion, declined to permit...
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