Opposition Brief — Professional Cabin Crew Ass'n v. National Mediation Board

; if = Supreng Court, Use

No. 89-17 JOSEPH F. SPANIOL, J

ERK

a ——

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

PROFESSIONAL CABIN CREW ASSOCIATION,

GLENDA LOPEZ-BRUNER, AND DELYNN

KLOSTERHOFF, PETITIONERS

Vv.

NATIONAL MEDIATION BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

JOHN G. ROBERTS, JR.

Acting Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

MARC RICHMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

RONALD M. ETTERS . <

General Counsel ;

National Mediation Board

Washington, D.C. 20572

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QUESTIONS PRESENTED

1. Whether this Court should reconsider the standards

governing judicial review of National Mediation Board

determinations established by the decisions in Brotherhood

of Ry. & S.S. Clerks v. Association for the Benefit of Non-

Contract Employees, 380 U.S. 650, 671 (1965), and Switch-

men’s Union v. National Mediation Bd., 320 U.S. 297

(1943).

2. Whether the court of appeals properly rejected peti-

tioners’ claims that the National Mediation Board violated

express statutory provisions of the Railway Labor Act (a)

by including certain former strikers seeking reinstatement

in a list of “potentially eligible” voters in a representation

election, and (b) by the manner in which the Board in-

vestigated petitioners’ representation application.

3. Whether the scope of judicial review of the Nationa:

Mediation Board’s dismissal of petitioners’ representation

application violated their First or Fifth Amendment rights.

~

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Aeronautical Radio, Inc. v. National Mediation Bd.,

380 F.2d 624 (D.C. Cir.), cert. denied, 389 U.S.

er ee ck ph sce ceeues y

Air Line Pilots Ass’n v. Alaska Airlines, Inc., 735

ee Ee | a rn 14

Air Line Pilots Ass’n International v. United Air

Lines, 614 F. Supp. 1020, later proceeding, 616

F. Supp. 849 (N.D. Ill. 1985), modified, 802

F.2d 886 (7th Cir.), cert. denied, 480 U.S. 946

a ga are a he nites bc oe wk a 4 8 14

Altair Airlines, 7 N.M.B. 507 (1980) .......... 5

British Airways Bd. v. National Mediation Bd. , 685

fe eo oe SD 10

Brotherhood of Ry. & S.S. Clerks v. Association for

the Benefit of Non-Contract Employees, 380 U.S.

Ne ee ae vas Ve ce uae 8 6, 7, 8-9, 14

Brotherhood of Ry. & Steamship Clerks v. Florida

East Coast Ry., 384 U.S. 238 (1966) ........ 14

Chevron U.S.A. Inc. v. National Resources Defense

Council, Inc., 467 U.S. 837 (1984) .......... 1]

Eastern Airlines, 4 N.M.B. 24 (1964) .......... 5

El Al Israel Airlines, 12 N.M.B. 238 (1985) .... 5

Florida East Coast Ry.:

mo. Masur (heer. 3, 1966) ..............%. 5

Pe. mee Gem, EF, POOF) .. 2... ec cess 5

(lil)

IV

Cases — Continued: Page

General Committee v. M.-K.-T. RR., 320 U.S. 323-

tl a ra Ue anita 8, 15

Heckler v. Chaney, 470 U.S. 821 (1985) ....... 1}

ICC v. Brotherhood of Locomotive Engineers, 482

nn oe ea oS ons 11

IFFA v. Trans World Airlines, Inc., 819 F.2d 839

(8th Cir. 1987), rev’d in part, 109 S. Ct. 1225

SE ee SEU REG sd Lae CARE AGEN SAREE Ae 5

IHinois Brick Co. v. Illinois, 431 U.S. 720 (1977) 10

Independent Federation of Flight Attendants v.

Trans World Airlines, Inc., 682 F. Supp. 1003

(W.D. Mo. 1988), aff'd, 878 F.2d 254 (8th Cir.

PE ha eG ocak er Da tk Cui ORR Naas » 3

International Ass’n of Machinists v. Trans World

Airlines, 839 F.2d 809 (D.C. Cir.), cert. denied,

yy BM DB rn pr eee 6, 7, 15

International In-Flight Catering Co. v. National

Mediation Bd., 555 F.2d 712 (9th Cir. 1977) . 10

Leedom v. Kyne, 358 U.S. 184 (1958) ......... y

Nashville C. & St. L. Ry. v. Railway Employees’

Dep’t, 93 F.2d 340 (6th Cir. 1937), cert. denied,

303 U.S. 649 (1938) .......-cccecceceeceee. 13, 14

Patterson v. McLean Credit Union, 109 S. Ct. 2363

ee 10

Pennsylvania Railroad v. Day, 360 U.S. 548 (1959) 14

Russell v. National Mediation Bd., 714 F.2d 1332

(Sth Cir. 1983), cert. denied, 467 U.S. 1204

ae eee eS Wd a a oe 686 10

| Sedalia-Marshall-Boonville Stage Line, Inc. v. Na-

| tional Mediation Bd., 574 F.2d 394 (8th Cir), cert.

| ee Et, EE ERNE eva vc vcnccwssna> 10

) Switchmen’s Union v. National Mediation Bd., 320

Si CC. cS. Laws cad ken oad tee kes 6, 8, 9

Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, 109 S. Ct. 1225

EN Coane veh Sena hk seh «wo 3, 9, 10

Webster v. Doe, 108 S. Ct. 2047 (1988) ........ 11

Wein Air Alaska, 6 N.M.B. 701 (1979) ........ 5

Cases — Continued:

WES Chapter Flight Engineers, International Ass’n

v. National Mediation Bd., 314 F.2d 234 (D.C.

Cals Ss Chae eae ea aeceelceten eres.

Zantop Int'l Airlines, Inc. v. National Mediation Bd.,

pee oe Bore fe ee ere

Constitution, statutes and regulations:

U.S. Const.:

i aE am HAY, Agee De eae a fone

i Me Meee eet eee eT ee ee eee Te Tee

ee Fee SC ooo wees

Administrative Procedure Act, 5 U.S.C. 701 ef seq.

F reeks O20 x ona te CUS eva vie sore

Railway Labor Act, 45 U.S.C. 151 ef seq. .....

ao AE OE oo kv as eek cena

SP RE eGo a a ok 66a ee

45 U.S.C. 152 (§ 2):

PRG 55 20 kee sr es eA ae cakeus

Se aren arene ane petar eae Ae ers

oe C.F.E.:

Miscellaneous:

be FO. TR. Fee COND oo sk cas Vewaetea eines

Page

10

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-17

PROFESSIONAL CABIN CREW ASSOCIATION,

GLENDA LOPEZ-BRUNER, AND DELYNN

KLOSTERHOFF, PETITIONERS

Vv.

NATIONAL MEDIATION BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-19a)

is reported at 872 F.2d 456. The memorandum of the district

court (Pet. App. 20a-26a) is unreported. The opinion of the

National Mediation Board (Pet. App. 28a-37a) is reported

at 15 N.M.B. 11.

JURISDICTION

The judgment of the court of appeals was entered on

April 7, 1989. The petition for a writ of certiorari was filed

July 5, 1989. This jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATEMENT

1. The Railway Labor Act, 45 U.S.C. 151 ef seq.,

creates a comprehensive plan for the resolution of labor-

management disputes in the rail and air transportation in-

dustries. See 45 U.S.C. 15la. The Act guarantees employees

“the right to organize and bargain collectively through

representatives of their own choosing.” 45 U.S.C. 152

Fourth. The Act further provides that the “majority of any

craft or class of employees shall have the right to determine

who shall be the representative of the craft or class for the

purposes of this chapter.” Jbid.

Section 2 Ninth of the Act, 45 U.S.C. 152 Ninth, charges

the Naticnal Mediation Board with the responsibility for

resolving labor representation disputes under the Act. A

party seeking certification as a bargaining representative

may apply to the Board for an “investigation” to determine

the employees’ wishes. Section 2 Ninth does not specify the

procedures for the Board to use in conducting an investiga-

tion. Instead, it provides that “[i]n such an investigation,

the Mediation Board shall be authorized to take a secret

ballot of the employees involved,” and that “[i]n the con-

duct 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.”

2. On March 7, 1986, flight attendants at Trans World

Airlines, Inc. (TWA), represented by respondent Interna-

tional Federation of Flight Attendants (IFFA), went on

strike. During the strike, TWA continued operations by

using a combination of newly-hired permanent replacements

and flight attendants willing to cross the picket lines. Pet.

App. 20a. On May 17, 1986, IFFA called off the strike and

made an unconditional offer for its members to return to

work. Jd. at 32a. TWA accepted 196 of the former strikers

back on the job immediately. /d. at 2a. The rest were placed

3

on a preferential rehire list, to be recalled to active duty on —

a seniority basis as vacancies arose. /bid.

IFFA then filed two actions seeking immediate reinstate-

ment with back pay for its members who were former full-

| term strikers. In the first action, IFFA alleged that its

members were not “economic strikers,” but were “unfair

labor practice strikers” entitled to reinstatement under prin-

ciples developed in interpreting the National Labor Rela-

tions Act. That claim was later rejected by the district court,

Independent Federation of Flight Attendants v. Trans

World Airlines, Inc., 682 F. Supp. 1003 (W.D. Mo. 1988),

and the court of appeals affirmed, 878 F.2d 254 (8th Cir.

1989). In IFFA’s second action, approximately 1,500 strikers

alleged that even if they were economic strikers, they were

entitled to reinstatement under the Railway Labor Act or

under the terms of the collective bargaining agreements.

That claim ultimately was rejected by this Court in Trans

World Airlines, Inc. v. Independent Federation of Flight

Attend nts, 109 S. Ct. 1225 (1989).

Some months after the strike, and long before the resolu-

tion of IFFA’s legal actions seeking reinstatement for its

members, the National Mediation Board received several

applications alleging a representation dispute among TWA’s

flight attendants pursuant to Section 2 Ninth. The first ap-

plication followed TWA’s merger with Ozark Air Lines. The

Association of Flight Attendants (AFA), which represented

Ozark’s flight attendants, filed a petition with the Board

to determine whether AFA was still certified to represent

the former Ozark flight attendants. In November 1986,

IFFA filed a representation petition seeking to resolve essen-

tially the same issue. In December 1986, petitioner Profes-

sional Cabin Crew Association (PCCA) filed a request for

intervention in the petition filed by IFFA, stating that its

purpose was to challenge IFFA as representative of the

TWA flight attendants. Pet. App. 3a.

A

4

On May 7, 1987, after six days of hearings, the Board

concluded that AFA’s representation of the former Ozark

flight attendants had terminated as a result of the merger.

Both AFA and IFFA then withdrew their representation

petitions. Pet. App. 3a. The Board gave notice to PCCA

of its right to convert its intervention application to a

representation application. Because the class of flight at-

tendants PCCA sought to.represent was already represented

by a union, under applicable Board regulations, 29 C.F.R.

1206.2, PCCA was required +o support its representation

application with authorization cards signed by a majority

of the class. Pet. App. 3a-4a.

On July 30, 1987, PCCA filed an amended application

supported by authorization cards signed by a majority of

the currently employed TWA flight attendants. Pet. App.

4a. The Board appointed a representative to investigate

PCCA’s application. After conducting his investigation, the

Board’s Representative concluded that not only the current

employees, but also the former strikers then seeking

reinstatement were presumptively entitled to vote in the elec-

tion. Taking into account the former strikers as well as the

currently employed flight attendants, the Representative

determined that the class of flight attendants included 9,328

potentially eligible voters (after consideration of challenges

to particular flight attendants by the parties). Pet. App. 33a.

PCCA’s showing of support represented less than a majority

of that number. PCCA then appealed to the Board from

the Representative’s inclusion of the former strikers in the

list of potentially eligible voters. Jd. at 4a.

3. On November 10, 1987, the Board ruled 2-1 that the

Representative’s determination regarding the composition

of the list of potentially eligible voters was correct. Accord-

ingly, the Board dismissed PCCA’s representation applica-

tion for its failure to include a sufficient showing of interest

5

from a majority of the flight attendants in the class. Pet.

App. 34a.

The Board explained in detail its reasons for upholding

the Representative’s inclusion of the former strikers in the

list of potentially eligible voters. Citing JFFA v. Trans World

Airlines, Inc., 819 F.2d 839, 842 (8th Cir. 1987), rev’d in

part on other grounds, 109 S. Ct. 1225 (1989), the Board

stated: “It is established that ‘[e]mployees who are not work-

ing because of a labor dispute remain ‘employees’ of the

employer.’ ” Pet. App. 33a. The Board also referred to a

long line of its own precedents holding that strikers “may

be eligible voters even if the employer hires replacement

workers.” /bid. (citing El Al Israel Airlines, 12 N.M.B. 238

(1985); Altair Airlines, 7 N.M.B. 507 (1980); Wein Air

Alaska, 6 N.M.B. 701 (1979); Florida East Coast Ry.,

R-3869 (Jan. 17, 1967) and R-3819 (Mar. 3, 1966)). Final-

ly, relying on its own regulations, 29 C.F.R. 1206.6, and

on its decision in Eastern Airlines, 4 N.M.B. 24 (1964), the

Board explained that the former strikers should be includ-

ed as potentially eligible voters because they had filed an

action that sought reinstatement for their alleged wrongful

dismissal and that action was pending in district court. Pet.

App. 33a-34a. For all of those reasons, the Board “decline[d]

to disenfranchise the former strikers as urged by PCCA.”

Id. at 34a.

4. In December 1987, petitioners filed a complaint in

the United States District Court for the District of Colum-

bia to challenge the Board’s decision not to hold a represen-

tation election. Petitioners argued that the Board’s decision

violated the Act in three respects. First, petitioners con-

tended, the Board’s conclusion that the former strikers were

eligible to vote was inconsistent with the definition of

“employee” set forth in Section 1 Fifth of the Act, 45 U.S.C.

151 Fifth. Second, petitioners claimed that the Board had

failed to satisfy its duty to “investigate” the actual eligi-

6

bility of the former strikers to vote in a representation elec-

tion, as required under Section 2 Ninth. Third, petitioners

argued that the Board erred by dismissing PCCA’s interven-

tion petition and by refusing to accept PCCA’s 35% show-

ing of interest. Pet. App. 23a.

The district court granted the Board’s motion for sum-

mary judgment. The court began by noting that “[{j]udicial

review Of NMB decisions is one of the narrowest known

to the law.” Pet. App. 23a (quoting /nternational Ass’n of

Machinists v. Trans World Airlines, 839 F.2d 809, 811 (D.C.

Cir.), cert. denied, 109 S. Ct. 62 (1988)). “[I]n the absence

of a showing of a gross violation of the Railway Labor Act

or a denial of a constitutiona: right,” the court observed.

“{cJourts have no authority to review NMB decisions.” Pet.

App. 23a. Applying those principles, the court examined

petitioners’ claims and concluded that the Board did not

violate any express provision of the Act. Jd. at 23a-25a. The

court found that the Board had discretion to determine that

the replaced strikers had close enough ties with TWA to

be considered potentially eligible voters under the Act. Jd.

at 23a-24a. The court also found that the Board had satisfied

its statutory duty to investigate the current eligibility of the

former -strikers, both as a group and individually. Jd. at

24a-25a. Finally, the court found that the Board’s decision

to require a majority showing of interest by PCCA “was

well within its discretion and violates no express provision

of the Railway Labor Act.” Jd. at 26a. Consequently, the

court dismissed petitioners’ complaint.

5. The court of appeals affirmed. Pet. App. la-19a.

Relying on Switchmen’s Union v. National Mediation Bd.,

320-U.S. 297 (1943) (Switchmen’s Union), and Brotherhood

of Ry. & S.S. Clerks v. Association for the Benefit of Non-

Contract Employees, 380 U.S. 650, 671 (1965) (Railway

Clerks), the court of appeals noted that judicial review of

National Mediation Board decisions is “extraordinarily

, oe

limited.” Pet. App. 6a. The court explained that under well-

established principles governing the review of Board deci-

sions, the “[c]ourts have authority to review [such] deter-

minations only upon a ‘showing on the face of the pleadings

that the certification decision was a gross violation of the

[Act] or that it violated the constitutional rights of an

employer, employee, or Union,’ ” ibid. (quoting /nterna-

tional Ass’n of Machinists v. Trans World Airlines, 839 F.2d

at 811). In implementing that principle, the courts may only

take a “ ‘peek-at the merits’ to determine if the NMB has

committed an error of ‘constitutional dimension or a gross

violation of the statute.’ ” Pet. App. 6a. Unless this proc-

ess 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,’ ” the courts lack power to proceed further with

the case. /bid. (quoting Railway Clerks, 380 U.S. at 671).

In light of that established framework, the court of ap-

peals, after a careful analysis of petitioner’s allegations,

found “neither a complaint of constitutional dimension nor

a gross violation of the statute.” Consequently, the court

held, the Board’s decision “is not reviewable.” Pet. App. 19a.

ARGUMENT

The court of appeals’ decision is correct and, indeed, is

compelled by this Court’s decisions in Rai/way Clerks and

Switchmen’s Union. Petitioners offer no sound reason for

this Court to reconsider, let alone depart from, the prin-

ciples announced in those cases. Because the court proper-

ly applied Railway Clerks and Switchmen’s Union to the

particular facts, and because there is no conflict between

this decision and any decision of this Court or another court

of appeals, further review is not warranted.

Te NT NT

1. Forty-six years ago, this Court made clear in Switch-

men’s Union that the determinations of the National Media-

tion Board in resolving labor disputes under the Railway

Labor Act are generally not subject to judicial review. 320

U.S. at 300. As the Court explained in that case, Congress

entrusted the responsibility for protecting the collective

bargaining rights secured by the Railway Labor Act ex-

clusively to the Board, not to the courts. Consequently, ab-

sent a showing that the failure to provide access to the courts

would result in “a sacrifice or obliteration of a right which

Congress has created” (ibid.), the Board’s determinations

are unreviewable because a dispute “was to reach its last

terminal point when the administrative finding was made.

There was to be no dragging out the controversy into other

tribunals of law.” Jd. at 305.!'

Twenty-two years later, in Railway Clerks, this Court

reaffirmed the fundamental principles of Switchmen’s

Union. The Court noted with approval that Switchmen’s

Union had refused to consider whether the Board had cor-

rectly determined the scope of the “craft or class” of

employees for purposes of holding an election because “it

was for the Board, not the courts, finally to resolve such

questions.” 380 U.S. at 659. The Railway Clerks Court,

however, undertook to review a claim that the Board had

failed to “perform[ ] its statutory duty to ‘investigate’ the

dispute.” Jd. at 662. After reviewing the Board’s actions

~ ' The Court made much the same point in the companion case to

Switchmen’s Union, General Committee v. M.-K.-T. RR., 320 U.S. 323,

336 (1943) (footnotes omitted): “However wide may be the range of

jurisdictional disputes embraced within § 2, Ninth, Congress did not ~

select the courts to resolve them. To the contrary, it fashioned an ad-

ministrative remedy and left that group of disputes to the National

Mediation Board. If the present dispute falls within § 2, Ninth, the ad-

ministrative remedy is exclusive.”

9

to resolve the dispute in question, the Court held that the

Board had carried out its statutory responsibility to in-

vestigate and that “[i]ts determination * * * is not subject

to judicial review.” Id. at 668.

In its more recent cases, the Court has not questioned

the continued vitality of Switchmen’s Union and Railway

Clerks. Just last Term, in a case growing out of the same

labor dispute that produced the instant petition, this Court

took pains to restate the governing principles of Switchmen’s

Union in declaring that “we have understood judicial in-

tervention in RLA procedures to be limited to those cases

where ‘but for the general jurisdiction of the federal courts

there would be no remedy to enforce the statutory com-

mands which Congress has written into the Railway Labor

Act.’ ” Trans World Airlines v. Independent Federation of

Flight Attendants, 109 S. Ct. at 1234 (quoting Switchmen’s

Union, 320 U.S. at 300).?

Petitioners point to no circuit conflict on the scope of

judicial review of Board representation decisions, and we

are aware of none. The courts of appeals have uniformly

held that such decisions, made incident to the Board’s in-

vestigatory function, are not reviewable. See, e.g.,

Aeronautical Radio, Inc. v. National Mediation Bd., 380

F.2d 624, 626-627 (D.C. Cir.) (per curiam) (meaning of “ma-

jority”), cert. denied, 389 U.S. 912 (1967); WES Chapter

Flight Engineers, International Ass’n v. National Media-

tion Bd., 314 F.2d 234, 236-237 (D.C. Cir. 1962) (voting

> Cf. Leedom vy. Kyne, 358 U.S. 184, 188 (1958) (recognizing that

the principles of Switchmen’s Union were “controlling” and holding that

review was available where the agency acts “in excess of its delegated

power and contrary to a specific prohibition in the Act”).

ain

eligibility of employees who walked off job).? Only on rare

occasions, as petitioners note (Pet. 8 n.9), have the courts

stepped in to review Board representation decisions when

appropriate under the standards established by this Court.

Russell v. National Mediation Bd., 714 F.2d 1332 (Sth Cir. ©

1983), cert. denied, 467 U.S. 1204 (1984); International In-

Flight Catering Co. v. National Mediation Bd., 555 F.2d

712 (9th Cir. 1977).

Against that background, petitioners’ suggestion (Pet.

9-16) that this Court reconsider Switchmen’s Union is

without merit. None of the considerations for departing

from the rule of stare decisis is applicable here. Cf. Patter-

son Vv. McLean Credit Union, 109 S. Ct. 2363, 2370-2371

(1989); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736

(1977). The principal reason adduced by petitioners in urg-

ing this Court to overrule Switchmen’s Union is that three

years after this Court decided that case, Congress enacted

the Administrative Procedure Act (APA), 5 U.S.C. 701 ef

seq., which embodies a general policy in favor of judicial

review of agency action. Pet. 10-11. In relying on the APA,

however, petitioners ignore that this Court reaffirmed the

holding of Switchmen’s Union in Railway Clerks — many

years after the enactment of the APA —and has continued

to adhere to it in recent cases, see Trans World Airlines v.

Independent Federation of Flight Attendants, 109 S. Ct.

at 1234.

Moreover, this Court has recognized in other contexts that

the APA did not obliterate all traditional limitations on

judicial review that evolved before the APA’s enactment.

3 See also Zantop Int'l Airlines, Inc. v. National Mediation Bd., 732

F.2d 517 (6th Cir. 1984); British Airways Bd. v. National Mediation

Bd., 685 F.2d 52 (2d Cir. 1982); Sedalia-Marshall-Boonville Stage Line,

Inc. v. National Mediation Bd., 574 F.2d 394 (8th Cir.), cert. denied,

439 U.S. 881 (1978).

11

ICC v. Brotherhood of Locomotive Engineers, 482 U.S.

270, 282 (1987) (discussing the relevance of pre-APA tradi-

tions of nonreviewability in construing the APA’s excep-

tion for agency action that is “committed to agency discre-

tion by law” (5 U.S.C. 701(a)(2)); Heckler v. Chaney, 470

U.S. 821, 832 (1985) (same); see also Webster v. Doe, 108

S. Ct. 2047, 2057 (1988) (Scalia, J., dissenting) (“[W]Je have

continued to take into account for purposes of determin-

ing reviewability, post-APA as before, not only the text and

structure of the statute under which the agency acts, but

such factors as * * * whether it is the sort of decision that

has traditionally been non-reviewable.”). The same con-

siderations apply here. The Switchmen’s Union doctrine is

a well-established component of the law governing review

of the National Mediation Board’s activities, has never been

revised by Congress in the years since it was announced,

and has produced no untoward consequences in the ad-

ministration of the Railway Labor Act. Petitioners have

identified no adequate reason for this Court to reconsider

that doctrine.*

* Petitioners’ assertion (Pet. 13-16) that the standard of review ap-

plied in Switchmen’s Union and Railway Clerks is toothless is simply

incorrect. As the analysis conducted by the court of appeals in this case

demonsirates, the courts take seriously their responsibility to ensure

that the express commands of the Railway Labor Act are honored by

the Board. See Pet. App._7a-19a. What the courts have properly resisted,

however, under the aegis of Switchmen’s Union and Railway Clerks,

is what petitioners apparently desire: the judicial determination of

discrete policy issues regarding the application of the Act, rather than

the development of the law regarding such matters by the agency

charged by Congress to administer the Act. Petitioner’s approach would

frustrate Congress’s decision to entrust Railway Labor Act matters to

the Board, and is out of harmony with the prevailing concepts govern-

ing judicial review of agency action, cf. Chevron U.S.A. Inc. v. Na-

tional Resources Defense Council, Inc., 467 U.S. 837 (1984).

12

2. Petitioners next contend (Pet. 17-20) that the court

of appeals misapplied Switchmen’s Union in concluding that

the Board actions in this case were not reviewable. Peti-

tioners’ argument is principally that the Board violated ex-

press commands contained in the Act and that the courts

should have rectified this violation. Both courts below prop-

erly rejected that claim. Pet. App. 7a-19a; id. at 23a-26a.

Petitioners place primary reliance on Section | Fifth of

the Act, 45 U.S.C. 151 Fifth, arguing that the definition

of “employee” is an express statutory command that the

Board transgressed in determining to include the former

strikers on the list of potentially eligible voters. Section |

Fifth begins with the introductory phrase “[t]he term

‘employee’ * * * includes,” and goes on to describe as covered

persons “every person in the service of a carrier (subject to

its continuing authority to supervise and direct the manner

of rendition of his service) who performs any work defined

as that of an employee or subordinate official in the orders

of the Interstate Commerce Commission * * *.” /bid. (em-

phasis added). Contrary to petitioners’ contention, that

definition does not preclude the Board from considering

former strikers who are seeking reinstatement as

“employees.” While Section | Fifth contains a proviso ex-

cluding a particular category of workers (coal miners) from

coverage, it contains no similar exclusion of former strikers. °

Ibid. In light of the generality of the statutory scheme, the

Board plainly enjoys a degree of latitude in determining

5 Contrary to petitioners’ suggestion (Pet. 13-14, 15), the distinction

noted in our brief in Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, No. 87-548, at 16-17 n.10, between the word-

ing of the National Labor Relations Act and that of the Railway Labor

Act with regard to the definition of “employee” does not establish that

the Board’s decision disregarded an express statutory mandate. Our brief

proposed no conclusion on that point, nor does the statute supply an

explicit answer.

13

the proper composition of a voting class when former

Strikers are seeking reinstatement and are on preferential

rehire lists.®

In rejecting petitioners’ contention, the district court

reasoned that the Act “simply sets forth the indicia relevant

to the existence of an employment relationship” and leaves

it up to the Board to exercise discretion in light of varying

factual settings. Pet. App. 24a. The court-of appeals found

no flaw in this logic, and further noted that petitioners’ con-

struction would have the untenable consequence of ex-

cluding “from the definition of employees not only former

strikers, but furloughees, individuals on leaves of absence,

and dismissed employees with pending claims for reinstate-

ment.” Jd. at 8a. That “extreme position has been rebuffed

by the Board and courts alike.” bid. (citing Nashville C.

& St. L. Ry. v. Railway Employees’ Dep’t, 93 F.2d 340, 342

(6th Cir. 1937), cert. denied, 303 U.S. 649 (1938)).

The Board’s decision to include the former strikers here

also deserved deference because it reflected the Board’s

established construction of the Act. Under a Board regula-

tion, 29 C.F.R. 1206.6, promulgated more than 40 years

ago, 12 Fed. Reg. 3083 (May 10, 1947), the Board’s policy

has been to accord voting rights to “[d]ismissed employees

whose requests for reinstatement [on] account of wrongful

dismissal are pending before proper authorities.”’ Moreover,

® As noted above, page 2, 196 of the former strikers were rehired

immediately; moreover, by the time of the Board decision, approximate-

ly 800 had been recalled. Pet. App. 2a.

’ 29 C.F.R. 1206.6 provides: “Dismissed employees whose requests

for reinstatement [on] account of wrongful dismissal are pending before

proper authorities * * * are eligible to participate in elections among

the craft or class of employees in which they are employed at the time

of dismissal.” The principles underpinning this regulation were ap-

plicable here, even though the claims of the particular flight attendants

who were seeking reinstatement were ultimately denied.

14

the decision is consistent with the applicable case law. See

Nashville C. & St. L. Ry. v. Railway Employees’ Dep’t, 93

F.2d 340 (6th Cir. 1937), cert. denied, 303 U.S. 649 (1938).

Cf. Brotherhood of Ry. & Steamship Clerks v. Florida East

Coast Ry., 384 U.S. 238, 246-247 (1966) (collective bargain-

ing agreement represents the “rules governing the communi-

ty of striking employees and the carrier. That community

is not destroyed by the strike, as the strike represents only

an interruption in the continuity of the relation”); Penn-

sylvania Railroad v. Day, 360 U.S. 548, 552 (1959) (retired

worker does not cease to be an “employee” under the RLA

for purposes of resolving a dispute over compensation ini-

tiated during worker’s employment); Air Line Pilots Ass’n

v. Alaska Airlines, Inc., 735 F.2d 328, 329 (9th Cir. 1984) —

(same conclusion as to worker who seeks retirement benefits

after his retirement); Air Line Pilots Ass’n International v.

United Air Lines, 614 F. Supp. 1020, 1041 (carrier has the

right to hire replacements during a strike but also has duty

to maintain its employment relationship with the strikers

because “[t]hat relationship, like the collective bargaining

agreement which memorializes the relationship, ‘is not

destroyed by the strike’ ”), later proceeding, 616 F. Supp.

849 (N.D. Ill. 1985), modified, 802 F.2d 886 (7th Cir. 1986),

cert denied, 480 U.S. 946.(1987).

Petitioners also contend that the Board violated the ex-

press statutory command to “investigate” a dispute. Cf.

Railway Clerks, 380 U.S. at 661. The courts below proper-

ly rejected that contention. The Act, in Section 2 Ninth,

requires the Board to certify the results of its investigation

“within thirty days after the receipt of the invocation of its

services.” “[S]peed” of resolution by the Board is “an ob-

jective of the first order.” Railway Clerks, 380 U.S. at 668.

In this case, the Board, in the limited time frame contem-

15

plated by the statute, fully investigated the situation; deter-

mined that the former strikers had a sufficient interest in

the election’s outcome to be potentially eligible voters; and

allowed the parties the opportunity — which they used —to

challenge the interest of particular replaced strikers.

3. Finally, petitioners advance (Pet. 20-22) a claim that

the application of Switchmen’s Union to this case somehow

denies the flight attendants of TWA an adequate oppor-

tunity to select a bargaining representative, in violation of

the First and Fifth Amendments. There is no violation of

the First Amendment in entrusting the supervision of elec-

tions in the rail and air transportation industries to the

Board. Congress’s assignment of that task to the Board,

subject to limited judicial review, no more violates the con-

stitutional rights of employees here than it did in Switch-

men’s Union itself. The Board has simply defined the

universe of employees from which a majority may select

a representative. Petitioners’ interest in the determination

of a representative was adequately protected by that pro-

cedure. See Jnternational Ass’n of Machinists v. Trans

World Airlines, 839 F.2d at 812 (rejecting analogous claim).

Petitioners fare no better with their claim that the Board’s

procedures in this case violated the Due Process Clause.

Petitioners had ample notice and an opportunity to be heard

by the Board’s Representative, enjoyed an appeal to the

Board itself, and obtained the determination by two courts

* Petitioners also suggests in passing (Pet. 17) that the Switchmen’s

Union standard of review should be confined to its particular facts:

a determination by the Board of whether to divide a carrier’s employees

into more than one “craft or class.” But the rationale of Switchmen’s

Union tully applies here. The importance of avoiding protracted litiga-

tion that would undermine the Board’s authority in settling labor

disputes is not limited to the determination of a “craft or class.” See

General Committee \. M.-K.-T. RR., 320 U.S. at 336.

16

that the Board did not transgress its proper zone of authori-

ty. That process was entirely sufficient to satisfy the

Constitution.?

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General *

STUART E. SCHIFFER

Acting Assistant Attorney General

MARC RICHMAN

Attorney

RONALD M. ETTERS

General Counsel

National Mediation Board

OCTOBER 1989

9 We note that petitioner PCCA is not foreclosed from filing a repre-

sentation petition with the Board in light of changed circumstances.

Not only have almost two years passed since the Board’s determina-

tion, but the former strikers’ legal actions seeking reinstatement have

been decided adversely to them. See page 3, supra. PCCA may at any

time submit current authorization cards in support of an election ap-

plication, and the Board will consider the application in light of con-

temporary conditions.

* The Solicitor General is disqualified in this case.

<z US GOVERNMENT PRINTING OFFICE: 1989—262-203/00574