Amicus Brief — Sedalia-Marshall-Boonville Stage Line, Inc. v. National Mediation Board

SEDALIA-MARSHALL-BOONVILLE STAGE LINE,

Petiti .

vs.

NATIONAL MEDIATION BOARD

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

Respondents.

MOTION OF COMMUTER AIRLINE ASSOCIATION

LINE ASSOCIATION OF AMERICA AS AMICUS

pty oh nant alliage smog FOR WRIT

. MORAKI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTR CIRCUIT

WitiraM F. Forp

Ciaupe T. SuLtiivan, Jr.

Micnae. H. CAMPBELL

LAURENCE R. ARNOLD

1515 Atlanta Gas Light Tower

235 Peachtree Street, N_E.

Atlanta, Georgia 30303

Attorneys for Commuter Airline

Association of America

ison, SULLIVAN & Lowry

1515 Atlanta Gas Light Tower

235 Peachtree Street, N_E.

Atlanta, Georgia 30303

(404) 523-2300

————

— LS

SS rs OC—“— O8 Ol

a

EB L. Mewpewmece. Ivc.. 996 Cherry Street. Keneee Coy. Mo. #4106. (214: 421-8090

t of the United

OCTOBER TERM, 1978

No. 77-1809

SEDALIA-MARSHALL-BOONVILLE STAGE LINE, INC.,

Petitioner,

Vs.

NATIONAL MEDIATION BOARD

CHAUFFEURS, WAREHOUSEMEN AND

OF AMERICA.

Respondents.

MOTION OF COMMUTER AIRLINE ASSOCIATION

OF AMERICA FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Pursuant to Rule 42 of the United States

spectfully moves this Court for leave to file the accom-

panying Amicus Curiae brief.

The consent of the attorney nile Astron chee

as well as the consent of the attorney for the Responder

Teamster, Chautieur, Warcousemen and Helpers of

by the Commuter Airline Association of America as

Amicus Curiae.

2

Tho Commuter Aine Aaeeistien <0 SSR ae ae

vitally concerned with the base lave prevented in SME's

151, et seq.

In its brief, Petitioner has directed its argumen'

ment fo agquavad tay Gils Gaui, Gea an

below must be reversed.

Forp, Harrison, SULLIVAN & Lowry

1515 Atlanta Gas Light Tower

235 Peachtree Street, NE.

Atlanta, Georgia 30303

(404) 523-2300

III.

II.

ES AS SE

EE SS SL ee

The Court of Appeals’ Decision in the Case at

Bar Raises Substantial Constitutional Ques-

EE EN ae ee

A. The Due Process Clause of the Fifth

Amendment Prohibits the Federal Govern-

ment From Depriving Any Person of Life,

Liberty or Property Without Affording

That Person With the Appropriate Pro-

tections Traditionally Associated With

Justice and Fairness 0000.00.00...

B. Direct Interest of a Carrier in the Results

of an NMB Resolution of a Representa-

tion Dispute Are Sufficient to Require

That Due Process Be Afforded to the Car-

rier Before Any Final Administrative De-

cision Which May Affect Those Interests

C. The Representation Dispute Procedures

Set Forth in the Railway Labor Act, As

Implemented and Actually Applied by the

National Mediation Board in This Case,

Do Not Provide for the Due Process Pro-

tections Required by the Fifth Amend-

Si ited cilbtiiensiterttesecncenemmmnensnensssensannnsansnenennes

The Court of Appeals Incorrectly Interpreted

This Court’s Prior Decisions As Holding That

a Carrier Under the Railway Labor Act Is Not

Entitled to Due Process of Law in Representa-

TTI ttl ctscrneseeeserninsnncinescenssmnennnsameniann

13

II

A. The Court of Appeals Misread the Holding

by This Court in the A.B.N.E. Decision ... 18

B. The Court of Appeals Ignored the Ob-

vious and Substantial Factual Differences

Between the Case at Bar and the A.B.N.E.

Decision Upon Which It Relied ................ 19

IV. If the Court of Appeals Properly Interpreted

the A.B.N.E. Decision, Then That Decision

Should Be Reconsidered in Light of This

Court’s Other Due Process Decisions ................ 21

A. Congress Cannot Circumvent the Minimal

Due Process Requirements of the Fifth

Amendment by Legislative Action ............ 21

B. Whether the Protections of Due Process

Attach to a Given Situation Does Not De-

pend Upon the Person’s Statutory Desig-

nation As a “Party” to the Proceedings

Which May Result in the Deprivation of

His Life, Liberty or Property .................... 23

C. Section 2, Ninth of the Railway Labor

Act Can Be Construed So As to Comport

With the Due Process Requirements ........ 24

ET cecccersendnceectinetcepnteunisinicistiadadanietenamanniaitnemnsinenen 25

APPENDIX—Relevant Statutory Provisions ................ 27

Table of Authorities Cited

CASES

Armstrong v. Manzo, 380 U.S. 545, 14 L.Ed. 2d 62

EEE secssenstendbpiiniiinarnneeenenininenresiennnaenebimemensine 8,14

Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed. 2d

ff ES SSA ae ee eee 8,9, 12

Bolling v. Sharpe, 347 U.S. 497, 98 L.Ed. 884 (1954) ... 8

Ill

Brotherhood of Railway and Steamship Clerks v. Asso-

ciation for the Benefit of Non-Contract Employees,

380 U.S. 650, 14 L.Ed. 2d 133 (1965) ....10-11, 13, 15, 16,18

19, 20, 21, 23, 25

Den v. The Hoboken Land and Improvement Co., 18

How. 277, 59 U.S. 277, 15 L.Ed. 372 (1855) ...6, 7, 22, 23

Detroit and Toledo Shoreline Railroad Company v.

_ United Transportation Union, 396 U.S. 142, 24 L.Ed.

ee eee 12

Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed. 2d 556 (1972) 14

Fusair v. Steinberg, 418 U.S. 379, 42 L.Ed. 2d 521

CRIED ciceninssitinstntintitiinncapestitcemesiniiaggninencinsseanitintiaianeeasities 7

Galvan v. Press, 347 U.S. 522, 98 L.Ed. 911 (1953),

rehearing denied, 348 U.S. 852, 99 L.Ed. 671 _.......... 21

Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287 (1970) .. 6,8

Greene v. McElroy, 360 U.S. 474, 3 L.Ed. 2d 1377 (1959)

edseeaiienttaaiaoaiideiiadsiastaieaasiaaiideatainidtartitaitaninaieaiiinaeniiael 8, 20, 21, 24

Hannah v. Larche, 363 U.S. 420, 3 L.Ed. 2d 1307 (1960) 7

International In-Flight Catering Co. v. National Medi-

ation Board, 555 F.2d 712 (9th Cir. 1977) ............... 5,11

Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123,

NS Se TTT 7

Lynch v. United States, 292 U.S. 571, 78 L.Ed. 1434

GRRE ceninsnsseectrenepesinamennssesnnsieesemmeneneeuienemmeminnias 12

Meachum v. Fana, 427 U.S. 215, 49 L.Ed. 2d 451 (1976) 9

Miller v. Howe Sound Min. Co., 77 F. Supp. 540 (E.D.

SEED MEE ditesnitecscscatpenetaddvanvcnibbncnestiietiniaimantiaieaieieiinins 23

Provost v. Betit, 326 F. Supp. 920 (D. Vt. 1971) ............ 8

Prudential Insurance Co. v. Cheek, 259 U.S. 530, 66

L.Ed. 1044 (1921) .... iil ela aaah 12

Stanley v. Illinois, 405 U.S. 645, 31 L.Ed. 2d 551 (1972) 8

IV

Switchmen’s Union of North America v. NMB, 320 U.S.

8 FS 8 oF ees 16, 17, 23

U.S. v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974),

cert. denied, 420 U.S. 927, 43 L.Ed. 2d 397 .............. 21

Virginia Ry. Co. v. System Federation, 300 U.S. 515,

8S BF CR ee ree eee 11

STATUTES

Railway Labor Act, 45 U.S.C. §§151 et seq. —.............. passim

REGULATIONS

29 C.F.R. Chapter X, §1206.2(a) & (b) 200... a

NMB Crarrt or CLASS DETERMINATIONS

Pan American Airways, Inc., NMB File No. C-3712,

Vol. 4, Determinations of Craft or Class of the Na-

tional Mediation Board, pp. 219, 130 (1967) _............. 17

United Air Lines, Inc., NMB Case No. R-3806 (C-3461),

Vol. 4, Determinations of Craft or Class of the Na-

tional Mediation Board (1965) 0.000000. 20

MISCELLANEOUS

Aviation Daily, Vol. 237, Nos. 31 & 43, pp. 245-46, 343

I alll elniaiaiecniatensn 2

I i eeetibations 17

— —_——

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1809

SEDALIA-MARSHALL-BOONVILLE STAGE LINE, INC.,

Petitioner,

Vs.

NATIONAL MEDIATION BOARD

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

Respondents.

BRIEF OF COMMUTER AIRLINES ASSOCIATION

OF AMERICA AS AMICUS CURIAE IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

INTEREST OF AMICUS CURIAE

The Commuter Aijrlines Association of America

(“CAAA”) is a trade association whose regular members

are comprised of a commuter air carrier as defined and

classified in Part 298 of the Civil Aeronautics Board’s Ec-

onomic Regulations. Petitioner Sedalia-Marshall-Boonville

Stage Line, Inc. (“SMB”) is a CAAA member. The ap-

2

proximately 100 CAAA members operate throughout 48 of

the states of the union and in its territories and virtually

all members are subject to the Railway Labor Act, 45

U.S.C. 151, et seq."

CAAA members are vitally concerned with the issues

presented in SMB’s petition for writ of certiorari. At

issue are the National Mediation Board (“NMB”) proce-

dures for investigation of representation disputes under

the Railway Labor Act and the extent to which there

may be judicial review of NMB determinations. The NMB

in this case, without notice or opportunity for SMB to

be heard, excluded three employees from participation in

a representation election. There was a one-vote margin

in the election and the votes of the three employees ex-

cluded from eligibility could affect the results of the elec-

tion.

The facts of this case reveal a breach of the NMB’s

duty to investigate the representation dispute and a denial

of fundamental due process and this concerns and could

affect each CAAA member subject to the representation

procedures of the Railway Labor Act.’

1. CAAA members play an increasingly vital role in do-

mestic, territorial and international air commerce. The growth

of the commuter industry is reflected in the fact that commuter

traffic increased from four million two hundred and sixty-nine

thousand six hundred and three (4,269,603) passengers in cal-

endar year 1970, to eight million five hundred thousand (8,500,000)

passengers in the calendar year 1977, an average annual rate of

growth well in excess of 10%. The commuter carriers operate

in 1,469 passenger markets and serve 747 airports. Aviation

Daily, Vol. 237, Nos. 31 & 43, pp. 245-46, 343 (1978).

2. After the application for representation was filed, SMB

cooperated with the NMB by providing it with a -list of its pilots

and copilots and supplying information regarding the duties of

certain pilots pursuant to inquiries by the NMB. (R.53-54). No

inquiries were made regarding Messrs. Barber, Milner or Worden:

nor was SMB informed of any issues regarding them. (R.9, 54-55).

After the election was held, SMB discovered that 9 pilots’

names had been stricken from the eligibility list and two former

(Continued on following page)

3

The district court below was not satisfied with its

decision and Judge Stewart frankly so stated:

The Court is not satisfied with the result it feels

compelled to reach under the authorities. Defendants

state that at the present time we are not “in tune”

with the circumstances existing when the Railway

Labor Act created the NMB. I believe it is more accu-

rate to state the NMB’s authority and procedures are

out of tune with the realities of modern day labor-

management relationship and current due process con-

cepts. Had standing been shown, serious due process

questions would have been presented. Perhaps Con-

gress or the appellate courts will take steps to remove

this anachronism. See, the chastisement of the NMB

in International In-Flight Catering Co., Ltd. v. National

Mediation Board, decided by the Ninth Circuit June

10, 1977. (Emphasis supplied).

Footnote continued—

pilots had been added. Among the 9 were Messrs. Barber, Milner

and Worden. (R.54).

SMB promptly protested the election on the grounds that

certain employees had been declared ineligible and other former

employees declared eligible, without notice or an opportunity for

SMB to be heard. (R.36). The NMB cursorily responded that

the protest was untimely and that SMB was not a party to the

proceedings. (R.37-39).

SMB then filed a written application with the NMB seeking

vacation of the certification and an investigation regarding the

eligibility of employees Barber, Milner, Worden and Reaves, and

former employee Shaw, setting forth facts supporting their re-

quests. (R.43). The NMB responded that the application was de-

nied in “executive session’’, that its original determination re-

garding the employees was proper, and that while Shaw had been

improperly included, he had not cast a ballot and the outcome

of the election was therefore not affected by the error. (R.47).

Before instituting a suit in District Court, SMB tried un-

successfully to obtain information regarding the NMB’s investi-

gation. (R.58-59). In its answer to the suit, however, the NMB

admitted that it had no facts from any source supporting its de-

cision regarding Messrs. Barber, Milner and Worden and that

it had summarily denied SMB’s post-election application. (R.9,

59).

4

Neither was the Court of Appeals satisfied with the

Court of Appeals further declared that:

It is unfortunate that the statutes, and cases inter-

Se en ee

entune tp-Gey Guinead taney hie bet on

much to be preferred. But the responsibility to make

that decision rests with Congress and not this Court.

574 F.2d 394, 399, fn. 5 (8th Cir. 1978) (Emphasis sup-

plied).

The “statutes and cases interpreting them” do not

permit unilateral and arbitrary imposition of a union upon

a carrier without a hearing of any sort. The Railway

Labor Act and the Fifth Amendment do not stand for

this proposition. CAAA urges that this Court grant review,

in order to clarify that rail and air carriers are entitled

to basic procedural due process rights in NMB determina-

tions of such importance as those involved in the case

at bar.

There is no doubt that the principles of law involved

in this case far transcend the effect on SMB and affect

each air and rail carrier subject to the Railway Labor

Act. if the NMB is permitted to continue a procedure

acihen @ ceautaaig Giz cantante tennk: Gs Ee

situation will continue to exist wherein a union may be

untaterelty and artiteariy impesed upon o carrier end

rently accepted principles of due process, a situation con-

ee ee ee

I. The Case at Bar Creates « Conflict in the Circuit

Eighth Circuit is in direct conflict with the recent

decision of the Court of Appeals for the Ninth Circuit

in International In-Flight Catering Company, Ltd. v. NMB,

555 F.2d 712 (9th Cir. 1977).

The Ninth Circuit, in In-Flight Catering, has adopted

tandard of review under the Railway Labor Act which

judicial inquiry into the merits of the case in

statutory duty to investigate a representation dispute.

The Eighth Circuit, on the other hand, in the case

at bar, adopted a very limited standard of review which

requires that there be a “gross violation” of the NMB's

Statutory duty to investigate before it can review a cer-

sane Se ee ee ee ent

esti Matte mintin aden chenten antic

the Railway Labor Act is unwarranted and CAAA urges

this Court to resolve this conflict between the circuits.

SMB has fully addressed this issue in its petition

and CAAA, therefore, does not specifically address the

issue here. CAAA does, however, fully support the posi-

tion set forth by SMB.

3. CAAA does not concede that the instant case does not

call for udicial review even under the Eighth Circuit's restrictive

Il. The Court of Appeals’ Senn SD See 68 Sine

the extent to which a carrer is entitled to due proces

in such proceedings, the NMB's compliance with its statu-

tory duty to investigate issues in representation disput

will be virtually assured.

The court below ruled that SMB was not entitled

to any Fifth Amendment procedural due process rights

in the NMB's eligibility determinations, and therefore not

entitled to notice and an opportunity to be heard. 574

F.2d at 396. We demonstrate below that inasmuch as

such NMB determinations can and do substantially affect

a carrier's liberty and property, the decision marks a sig-

nificant departure from this Court’s long standing due

process decisions and should be reviewed. See, e.g., Gold-

berg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287 (1970): Den

v. The Hoboken Land and Improvement Co., 18 How. 277,

59 U.S. 277, 15 L.Ed. 372 (1855).

A. The Due Process Clause of the Fifth Amend-

ment Prohibits the Federal Government From

Depriving Any Person of Life, Liberty or

Tageety Walon Siiveting That Feane Wah

sociated With Justice and Fairness.

We begin with the root proposition that the Due Pro-

of the United States is a restriction upon the powers of

Sn SERED ee hn Dunne Tyee Aenean,

ncies created by those branches to implement and en-

of euch powers axsy sumit fm 0 Guid of exp pees

life, liberty and property. See, e.g., Den v. The Hoboken

Land and Improvement Co., supra.

oy es Gees aia de on ee

vary with the nature of that situation, due process being

a flexible concept. See, e.g., Mathews v. Eldridge, 424

U.S. 319, 47 L.Ed. 2d 18 (1976); Hannah v. Larche, 363

U.S. 420, 3 L.Ed. 2d 1307 (1960).

Relevant to a determination of the extent and nature

of the requirements of due process in a particular case

are such factors as (1) the nature of the alleged right

involved, (2) the length of the possible deprivation, (3)

the risk of an erroneous deprivation of the interest in-

volved, FF eit ane

ee ee dminis'

sepieieeied welt amd. See, Mathews v. Eldridge,

supra; Fusair v. Steinberg, 418 U.S. 379, 42 L.Ed. 2d 521

(1975); Hannah v. Larche, supra.

Generally speaking, when the governmental action is

administrative in nature, the proceedings need not pre-

cisely follow the judicial model of an evidentiary hearing.

See, e.g., Joint Anti-Fascist Committee v. McGrath, 341

U.S. 123, 95 L.Ed. 817 (1950) (Frankfurter, J., concurring).

Moreover, just as the requirements applicable to an admin-

ee eee ee ee ae

also vary with the nature of the particular administr

proceeding involved, end whether tee chutabaestine catinn

is adjudicatory or regulatory in nature is important in

determining the nature and extent of the due process

pplicable to a Hs is involved. Pi oo v.

Kelly, supra, at 268, Greene v. McElroy, 360 U.S. 474,

496-97, 3 L.Ed. 2d 1377 (1959); Provost v. Betit, 326 F.

Supp. 920, 921-22 (D. Vt. 1971).

Although the precise requirements of due process may

factors described above, Ge Sendementel pyre

time and in a meaningful maner.” Mathews v. Eldridge,

supra, at 333; Armstrong v. Manzo, 380 U.S. 545, 14 L.Ed.

2d 62 (1965). That right was denied in the case at bar.

B. Direct Interests of a Carrier in the Results of

an NMB Resolution of a Representation Dis-

pute Are Sufficient to Require That Due P-o-

a oe Cte ie fay

RR ASE Oa

the Due Process Clause has been broadly defined. See,

e.g., Board of Regents v. Roth, 408 U.S. 564 (1972). It

\ws Boum soceguised thet the property interests pootected

real estate, chattels, or money. Board of Regents v. Roth

supra. Seid “teem tad tien Wats os teeta om

right to contract, and its meaning has been described as

“broad indeed.” Board of Regents v. Roth, supra; Stanley

v. Illinois, 405 U.S. 645, 31 LEd. 2d 551 (1972); Bolling

v. Sharpe, 347 U.S. 497, 98 L.Ed. 884 (1954).

In determining whether an aggrieved party has suf-

fered a deprivation of a “protected interest,” & & Ge

Pig lo geathers naiegedenmen treba ong

v. Fana, 427 U.S. 215, 49 L.Ed. 2d 451 (1976); Board of

all dation ent ee

the right claimed to have been deprived orto be subject

Fe en ee Sa ee

sentation dispute among some or all of its employe

dunia dd andi Gste Gite an teanterwatinend

by NMB decisions in craft or class and eligibility determi-

nations.

The Court of Appeals below only noted that an NMB

See OSES a ite els anaT ae SNEED

which the court apparently ascribed little significance. 574

F.2d 394, 399. _While it is true that a particular craft

burden on a carrier by including more employees in the

craft or class than was originally anticipated, the effects

can also be considerably more substantial. That is, by

expanding or contracting the craft or class, the NMB’s

decision may well be determinative of the issue of whether

the union has made the “showing of interest” necessary

even to trigger the election process.‘ Similarly, the NMB's

4. Where the employees are already represented, the appli-

ar ty ot ee ior

~At FAT. re arg, un-

represented, the requi St diene & am oe C.F.R.

ter X, §1206.2(a) ‘La (b).

have 0 Gitereaieatiee elias tanend Wares aan

sun tt ton Oo Tae eee As in the

“majority” Sat eo pene cole Ge

not have obtained such a majority and would not have

been certified.

In the above situations, the “burden” placed upon

one 5 ee ae Se eee

the NMB's selection of one craft or class as opposed to

another may add only an additional burden in that the

ees as opposed to 100, the situation can also be that the

Board’s determination is directly determinative of wheth

a union will receive certification at all.

duguto poosestings and, to Ges ulead Ea

nity to present evidence on apprepeinte craft or class éo-

According to the Court of Appeals below, however, carriers

may be denied this right. The NMB cannot be expected

to reach a correct decision in these matters when it hears

only from one interested party and does not afford the

other side a chance to rebut the claims made.

The Court of Appeals below did not even consider

the burdens placed on a carrier as the result of an NMB

certification of a union as the bargaining representative.

As this Court noted in Brotherhood of Railway and Steam-

11

ship Clerks v. Association for the Benefit of Non-Contract

Employees, 380 U.S. 650, 14 L.Ed. 2d 133 (1965)

(“A.B.N.E.”), it is true that the Railway Labor Act does

not require a carrier to reach agreement with a certified

union on any issue. Virginia Ry. Co. v. System Federation,

300 U.S. 515, 81 L.Ed. 789 (1936). Even so, however, a

failure to reach an agreement can, in and of itself, result

in severe losses to the carrier in terms of a loss of income,

“goodwill, etc. flowing from strikes and boycotts. See, gen.,

International In-Flight Catering Company v. National

Mediation Board, supra, at 719.

In addition, while the carrier is not required to reach

an agreement with any representative selected by its em-

ployees, it is prohibited from making any changes which

relate to rates of pay, rules and working conditions unless

and until it has satisfied the requirements of Section 6

of the Railway Labor Act (45 U.S.C. §§156, 182) by

bargaining with the representative until it reaches either

agreement or impasse. In the latter event, the parties

are released by the NMB to resort to their respective

economic strengths and while the carrier can then make

the changes it wants, it must risk a strike or other work

stoppage and the losses resulting therefrom in the process.

A myriad of items are covered by the phrase “rates

of pay, rules and working conditions,” including sched-

uling, work force size, subcontracting, selection of nev

equipment, crew complement and utilization of the work

force and equipment, to name but a few. A restriction

on any one of these areas has substantial impact upon

the carrier’s exercise of its liberty and property rights.

In view of the highly competitive and progressive nature

of the airline industry and the fact that it is “capital heavy,”

due process protections should be afforded to the carrier

in any proceeding which may result in a deprivation or

12

restriction of the carrier’s right to utilize its property

as it deems necessary and proper.

A carrier also faces a deprivation or restriction of

its liberty as a result of NMB determinations in a repre-

sentation dispute proceeding. As this Court stated in

Board of Regents v. Roth, supra, “liberty,” as used in

the Fifth Amendment, includes the right to contract freely

and a deprivation of that right can be constitutionally

affected only if due process is afforded to the aggrieved

person. See, also, Lynch v. United States, 292 U.S. 571,

78 L.Ed. 1434 (1934). That the concepts of “liberty” and

“property” include freedom in making contracts of em-

ployment, and that such freedom is “not to be struck

down directly, or arbitrarily interfered with,” is also well

settled. Prudential Insurance Co. v. Cheek, 259 U.S. 530,

536, 66 L.Ed. 1044, 1051 (1921).

In the absence of a certified bargaining representa-

tive, a carrier is free to contract with its employees in-

dividually or on whatever basis it chooses. Moreover,

it is free to alter the terms and conditions of the contracts

if it deems a change to be desirable or necessary. Once

a bargaining representative is certified, however, a carrier

may no longer contract with its employees individually

or on any other basis regarding “rates of pay, rules and

working conditions” unless and until it either obtains the

representative’s agreement or is released by the Board

to take unilateral action after impasse is reached. See,

e.g., Detroit and Toledo Shoreline Railroad Company v.

United Transportation Union, 396 U.S. 142, 24 L.Ed. 2d

325 (1969).

As if the above-discussed rights and interests alone

were not sufficient to invoke the protections of due process,

under the Railway Labor Act, a carrier also faces potential

13

criminal liability, otherwise nonexistent, for a violation

of the bargaining obligations imposed upon it by certifica-

tion of a collective bargaining representative. 45 U.S.C.

§152, Tenth.

Thus, not only does a carrier face the necessary depri-

vation of life, liberty or property as a result of Board

decisions in a representation dispute proceeding, but it

faces possible deprivation of liberty and property, and

is entitled to the protections of due process before a bar-

gaining representative is certified.

C. The Representation Dispute Procedures Set

Forth in the Railway Labor Act, As Imple-

mented and Actually Applied by the National

Mediation Board in This Case, Do Not Provide

for the Due Process Protections Required by

the Fifth Amendment.

While it is not doubted that the carrier in A.B.N.E.

may have been afforded the due process protections re-

quired by the Fifth Amendment in that particular case,

especially in view of the NMB extensive proceedings, the

prior hearings in which the carrier was permitted to par-

ticipate, and the amount of evidence actually submitted

by the carrier and received and reviewed by the NMB,

the result obtained in that case was a result of an ad-

ministrative fiat and not any statutory or regulatory re-

quirement or guarantee. The fact that the statute and

administrative regulations are applied so as to comport

with “any possible constitutional requirements” in one case

does not establish the constitutional sufficiency of the pro-

cedures utilized in any other case, and no carrier is guar-

anteed to receive the protections that the carrier in

A.B.N.E. received, as is evidenced by the case at bar.

14

In this case, there is no dispute regarding the perti-

nent facts. While SMB was informed of the existence

of certain issues and given the opportunity to state and

support its position regarding them, it was never informed

of the resolution of, or even the existence of, other issues

until the election process had been completed. While SMB

protested this fact, the only response from the NMB

was a self-serving and conclusory reaffirmation of the

prior “eligibility decision”. It presented no evidence to

the trial court that it had taken any steps to actually

investigate the issues, and, in fact, admitted that it had

no evidence from any source establishing basic facts to

support its decisions.

Even if SMB had been given an opportunity to present

evidence after it requested reconsideration of the eligibility

decisions in question, a postdetermination procedure af-

fording an opportunity to be heard where such opportunity

was denied originally does not satisfy due process in view

of the additional burden of convincing the NMB to reverse

its decision and set aside the already completed election

which is placed on the carrier at the postdetermination

stage. See Armstrong v. Manzo, supra.

Similarly, even if the NMB determination in the case

at bar was correct, that fact cannot support a finding

that there was no denial of due process. In Fuentes v.

Shevin, 407 U.S. 67, 87, 32 L.Ed. 2d 556, 574 (1972), this

Court stated that

[t]he right to be heard does not depend upon an

advance showing that one will surely prevail at the

hearing. To one who protests against taking of his

property without due process of law, it is no answer

to say that in his particular case due process of law

would have led to the same result because he had

no adequate defense on the merits.

15

The constitutional defects of the NMB’s discretionary

investigative procedures in the case at bar are evident.

With regard to the eligibility decisions in question, SMB

was not afforded the opportunity to be heard “at a mean-

ingful time and in a meaningful manner.” Mathews v.

Eldridge, supra, at 333. The only “meaningful” time is

prior to the rendering of a decision on the issues, and

to be heard in a “meaningful” manner requires, a fortiori,

‘some prior notice of the existence of the issues as well

as the assertions made by the opposing party regarding

those issues. None of these protections were afforded to

SMB, however, and, as a result, its freedom to contract

and to utilize and manage its property has been and con-

tinues to be severely restricted.

While a consideration of the various factors declared

by this Court to be important to a determination of whether

sufficient due process has been afforded in a particular

case is relevant to the question of the adequacy of, rather

than the threshold question of the applicability of, due

process, a consideration of these factors serves only to

buttress the conclusion that SMB was denied due process.

As discussed above, a carrier faces substantial restric-

tion or partial deprivation of its liberty and property rights

in the NMB representation dispute proceedings, and these

deprivations are of an indefinite and potentially permanent

duration.°

Moreover, there is a substantial risk that the NMB

will make an erroneous decision, as in the case at bar

it was forced to admit to an error in one of the more

5. Neither the Act nor the regulations explicitly provide

for any decertification proceeding. As a result of the A.B.N.E.

decision, however, it does appear that decertification can result

in the limited situation where a second union challenges an in-

cumbent union and less than a majority of the employees vote

for both unions combined.

16

simplistic eligibility decisions that it made.* This risk

of an erroneous deprivation of liberty or property rights

becomes even more compelling when this Court’s previous

decision that such NMB determinations are not reviewable

on their merits is considered. Switchmen’s Union of North

America v. NMB, 320 U.S. 297, 88 L.Ed. 61 (1943).

The only factor which could conceivably support the

procedures used by the NMB in this case is the consid-

eration of the government’s interest and the burdens im-

posed on the government by requiring that due process

protections be afforded to the carrier; and the govern-

mental interest in expediency does not outweigh the right

of a carrier to notice and an opportunity to be heard.

In the Railway Labor Act, Congress gave instructions to

the NMB that representatives should be certified within

thirty (30) days of the invocation of its services. A.B.N.E.,

supra, at 668. However, this time restriction has never

been recognized as a basis for a total denial of due process.

Even if Congress was enunciating a strong desire to

resolve representation disputes expeditiously, this Congres-

sional instruction should not be used to deny or re-

strict a carrier’s rights to due process in view of the

NMB’s actual practice. It is doubtful, in recent years,

that the NMB has ever had a year in which it certified

election results within thirty (30) days of the filing of

an application for representation in even a simple majority

6. The inadequacy of the current “fact finding” procedure

is laid bare by this error since the issue involved in the admittedly

erroneous determination was the employee in question’s continued

employment status. Had SMB been notified or consulted regard-

ing this issue prior to the rendering of the origirial decision, the

issue could have been quickly and correctly resolved in the first

instance. If erroneous p me occur in such simple issues, what

assurance is there that more difficult issues involving factual

questions such as job duties, functions and responsibilities -an

be correctly decided without the participation of the carrier, who

has a more thorough knowledge of the facts than some outside

union, person or organization.

17

of the cases handled. This observation is not meant as

a criticism of the NMB, for it is submitted that this 30-

day timetable is both unrealistic and unworkable in cases

involving air and rail carriers, which very often involve

hundreds, if not thousands, of employees in a single craft

or class.’

Moreover, as many Railway Labor Act elections are

conducted by mail ballot and allow at least three weeks

for the voting process alone, it is easy to understand the

impossibility of meeting the thirty-day timetable for rea-

sons wholly unrelated to due process considerations. Medi-

ator’s Manual, §334.311.

That the thirty (30) day time frame is unrealistic in

light of the NMB’s actual practice is further evidenced

by the case at bar. Here, the dispute involved a small,

admittedly appropriate craft or class of approximately 60

employees. Nevertheless, the union was not certified until

71 days after the services of the Board were invoked.

Accordingly, apart from considerations of expediency,

there are no other significant or undue burdens which

would be placed on the NMB by holding that prior notice

and an opportunity to be heard and to rebut evidence

must be provided to the carrier, and that the NMB’s de-

cisions must contain basic findings of fact and supportive

reasoning. The NMB currently incorporates notice and

opportunity to be heard in some cases, without apparent

difficulty, see, e.g., Pan American World Airways, Inc.,

NMB File No. C-3712, Vol. 4, Determinations of Craft

or Class, pp. 129, 130 (1967), and it should be required

to do so in all cases.

7. Unlike the procedures under the Labor Management Re-

lations Act, representation issues under the Railway Labor Act

are handled on a system-wide basis and are not broken down on

a smaller, fragmented basis. Cf., Switchmen’s Union, supra.

18

Ill. The Court of Appeals Incorrectly Interpreted This

Court’s Prior Decisions As Holding That a Carrier

Under the Railway Labor Act Is Not Entitled to

Due Process of Law in Representation Disputes.

In spite of the foregoing considerations discussed in

II, supra, the Court of Appeals below held that SMB

was not entitled to due process and, thus, there was no

denial of due process to SMB when the NMB did not

notify the carrier of the existence of certain voting eligi-

bility questions or give it the opportunity to be heard

regarding those questions.

In so holding, the Court of Appeals stated a reliance

upon this Court’s opinion in A.B.N.E., supra, at 666-667,

quoting the following language therefrom:

. the Act [does not] require that United [the

carrier] be made a party to whatever procedure the

Board uses to define the scope of the electorate. This

status is accorded only to those organizations and in-

dividuals who seek to represent the employees, for

it is the employees’ representative that is to be chosen,

not the carriers’. Whether and to what extent carriers

will be permitted to present their views on craft or

class questions is a matter that the Act leaves solely

in the discretion of the Board. [Bracketed material

supplied }.

A. The Court of Appeals Misread the Holding by

This Court in the A.B.N.E. Decision.

Although the Court of Appeals below viewed this

Court’s A.B.N.E. decision as a broad constitutional decision

applicable to all NMB proceedings relating to representa-

tion disputes, it was actually decided based on its par-

19

ticular facts. Despite the language quoted by the Court

of Appeals, this Court’s holding was that

[ijn view of these considerations, [the carrier’s ex-

tensive participation among others], we hold that the

Board performed its statutory duty to conduct an in-

vestigation and designate the craft or class in which

the election should be held and that it did so in a

manner satisfying any possible constitutional require-

ments that might exist. [Bracketed material sup-

plied].

380 U.S. at 668, 14 L.Ed. 2d at 145.

The holding was not that the carrier was unentitled

to any due process protections as the Court of Appeals

interpreted it. Rather, the clear import of the holding

was that, in view of the extensive carrier participation

in the proceedings, the necessary protections, whatever

they might be, had been afforded.

B. The Court of Appeals Ignored the Obvious and

Substantial Factual Differences Between the

Case at Bar and the A.B.N.E. Decision Upon

Which It Relied.

As noted above, this Court apparently decided the

A.B.N.E. case on its particular facts. In its decision in

the case at bar, however, the Court of Appeais ignored

the multitude of significant factual distinctions between

the A.B.N.E. case and the case at bar, which distinctions

made A.B.N.E. inapplicable to this case.

In A.B.N.E., the carrier was challenging the craft

or class determination rather than individual eligibility

20

issues as were challenged in the case at bar.* Moreover,

the carrier in A.B.N.E. had participated extensively in

prior NMB hearings involving the propriety of the craft

or class challenged and, in fact, had been permitted to

participate extensively in the very proceedings out of

which its challenge arose. Thus, the carrier was not claim-

ing that it had not been giv n notice or opportunity to

be heard; rather, it was seeking a more formal hearing.

In the case at bar, on the other hand, SMB did not

participate in and, in fact, did not even receive notice

of, the investigation of eligibility questions involving sev-

eral employees.

8. Craft or class determination more closely resemble rule-

making determinations than do individual eligibility determina-

tions and may therefore uire less stringent due process safe-

guards. See Greene v. McElroy, supra. It is CAAA’s position,

however, recognizing, of course, that no issues involving craft or

class determinations are presented to this Court in the case at

bar, that craft or class determinations are also adjudicative ac-

tions requiring substantial due process safeguards since they seek

to apply general standards (e.g., communities of interest, func-

tional integration, etc.) to particular individual cases. That the

NMB itself views such determinations similarly can be seen from

its own language in a craft or class determination rendered at

almost the same time as this Court decided the A.B.N.E. case,

to wit:

The Board is cognizant of the fact that when it is dealing

with controversies involving individuals functioning in a

supervisory capacity, titles and responsibilities vary accord-

ingly to the internal organization of the Carrier.

* o

The Board recognizes changes in the dynamic and progressive

airline industry, and although the Board may rely on past

determinations in carrying out its duties and responsibilities,

it must also consider the changes in the industry and that

the functions of various job classifications change accordingly.

United Air Lines, Inc., NMB Case No. R-3806 (C-3461), Vol. 4,

Determinations of Craft or Class of the National Mediation Board,

p. 32 (1965).

These statements clearly reflect the Board’s own views that

it must apply general standards to individual cases in making

craft or class determinations.

21

The two cases differ materially, then, since in A.B.N.E.

only the sufficiency of the protections afforded to the

carrier was being challenged, while in the case at bar

the challenge involves a complete denial by the NMB

of the carrier’s due process rights. In view of this differ-

ence, the A.B.N.E. decision should not be applied to the

instant case as if the two were identical.

IV. If the Court of Appeals Properly Interpreted the

A.B.N.E. Decision, Then That Decision Should Be

Reconsidered in Light of This Court’s Other Due

Process Decisions.

A. Congress Cannot Circumvent the Minimal

Due Process Requirements of the Fifth Amend-

ment by Legislative Action.

If the A.B.N.E. decision stands for the proposition

ascribed to it by the Court of Appeals, that decision stands

in conflict with this Court’s other due process decisions.

The language from A.B.N.E. quoted by the Court of Ap-

peals refers to the fact that “the Act” (Railway Labor

Act) does not require that the carrier be made a party

to craft or class determinations and leaves to the NMB’s

discretion the extent to which, if any, a carrier will be

allowed to participate. This Court, however, has re-

peatedly held that Congress is restricted by the due process

requirements of the Fifth Amendment, even where it is

exercising its plenary powers under another clause of the

Constitution such as the Commerce Claus. See, e.g.,

Greene v. McElroy, supra; Galvan v. Press, 347 U.S. 522,

98 L.Ed. 911 (1953), rehearing denied, 348 U.S. 852, °9

L.Ed. 671. See also U.S. v. Stoeco Homes, Inc., 498 F.2d

597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 43 L.Ed. 2d

397.

22

Similarly, this Court has held that the fact that Con-

gress prescribes a particular procedure to be followed does

not automatically make that procedure “due process” as

contemplated by the Constitution. This view was suc-

cinctly stated in Den v. The Hoboken Land and Improve-

ment Co., supra, at 374:

[t]he Constitution contains no description of those

processes which it was intended to allow or forbid.

It does not even declare what principles are to be

applied to ascertain whether it be due process. It

is manifest that it was not left to the legislative power

to enact any process which might be devised. The

article is a restraint on the legislative as well as on

the executive and judicial powers of the government,

and cannot be so construed as to leave Congress free

to make any process “due process of law” by its mere

will.

Thus, it is clear that the mere fact that the Railway Labor

Act authorizes the use of certain procedures, vests some

discretion in the NMB and does not expressly designate

the carrier as a party cannot serve to justify the denial

of due process to a carrier; nor can the Railway Labor

/sct itself prescribe the minimum due process requirements.

Rather, the protections of due process come into play when

the carrier’s liberty and/or property are threatened, irre-

spective of the desires, intentions and expressions of Con-

gress.

23

B. Whether the Protections of Due Process At-

tach to a Given Situation Does Not Depend

Upon the Person’s Statutory Designation As

a “‘Party”’ to the Proceedings Which May Re-

sult in the Deprivation of His Life, Liberty

or Property.

In the A.B.N.E. decision, this Court, in holding that

no particular form of hearing was required for the NMB’s

proceedings in a representation dispute, construed the lan-

guage of Section 2, Ninth of the Railway Labor Act as

excluding carriers from “party” status in such proceed-

ings.” As noted above, however, Congress cannot circum-

vent the requirements of due process by resorting to legis-

lative device, see, e.g., Den v. The Hoboken Land and

Improvement Co., supra, and consistent with this holding,

it has been further held that Congress cannot circumvent

due process by the expedient of withdrawing jurisdiction

from every court in which suits for enforcement of consti-

tutionally protected property rights can be brought. Miller

v. Howe Sound Min. Co., 77 F. Supp. 540, 545 (E.D. Wash.

1948). Yet this very situation results from the Court

of Appeals decision, based on this Court’s strict construc-

tion of the term “party” in A.B.N.E. If the decision below

is allowed to stand, Congress has effectively circumvented

due process by excluding persons with constitutionally

protected rights and interests from “party” status in admin-

istrative proceedings, which are, or can be, determinative

of those rights and interests, and by withholding jurisdic-

tion from the courts to review the decisions rendered in

such proceedings. See, Switchmen’s Union of North Amer-

ica v. NMB, supra.

9. The term “party” is not defined in the Railway Labor

Act.

24

That due process protections cannot be dependent upon

the statutory bestowal or withholding of “party” status

is also evident when the effects of a decision to the contrary

are examined. Were the right of Congress to dispense

or withhold due process as it sees fit to be judicially

recognized or sanctioned, the Due Process Clause would

be gutted of all real substance and only the illusory protec-

tions of due process “when, if and as prescribed by Con-

gress” would remain.

C. Section 2, Ninth of the Railway Labor Act

Can Be Construed So As to Comport With the

Due Process Requirements.

We submit that Section 2, Ninth of the Railway Labor

Act can be construed so as to avoid the undesirable conclu-

sion that Congress has enacted a procedure which denies

due process of law to carriers subject to the Railway

Labor Act. Such a construction is judicially preferred

and would be in keeping with this Court’s standing “as-

sumption” that “[w]here administrative action has raised

serious constitutional problems, ... Congress . . . intended

to afford those affected py the action the traditional safe-

guards of due process.” Greene v. McElroy, supra, at 507.

Such a construction can be reached through a process

which does no harm to the legitimate purposes of the

Railway Labor Act. Initially, the phrase “consistent with

due process requirements” or “consistent with the applica-

ble constitutional safeguards” can be read into the statutory

language, as such language should, in any event, be implicit

in all Congressional actions involving a potential depriva-

tion of life, liberty or property.

Moreover, the term “party,” as used in the Railway

Labor Act, need not be read in the strictest sense of

25

a “party” to litigation or administrative proceedings.

Rather, a fairer reading would be that the term is only

used to encompass more conveniently the various forms

which employees’ representatives may take (e.g., individ-

uals, associations, corporations, etc.). That is, the preferred

reading would be that the term “party” is used to denomi-

nate collectively those entities which normally are on one

side of the dispute.

In support of this reading of Section 2, Ninth, we

point out that construing the word “party” in the strict

sense has the untoward but logically necessary result of

excluding, in addition to carriers, the very employees

whose rights the Railway Labor Act is intended to pro-

tect."° Surely employees can and should be parties to a

representation dispute involving them if they so desire.

They are at the very heart of the representation dispute.

If that is the case, then there are already “parties” to

the dispute other than those statutorily denominated as

such by Congress and the term as used therein must be

intended to be read in a sense other than the strictest

sense of a “party” to an administrative proceeding.

CONCLUSION

For the foregoing reasons, the Commuter Airline Asso-

ciation of America as Amicus Curiae urges the Supreme

Court to grant SMB’s petition and to decide the extent

to which air carriers are entitled to procedural due process

10. This Court recognized this dilemma in A.B.N.E., but did

not have to resolve it because, as was noted, no issue concerning

the “party” status of employees was presented to it for decision.

A.B.N.E., supra, at 660.

of law in representation dispute proceedings determinative

of their liberty and property rights.

Dated July 29, 1978.

Respectfully submitted,

WiuiaM F. Forp

CLAupE T. SULLIVAN, JR.

MICHAEL H. CAMPBELL

LAURENCE R. ARNOLD

1515 Atlanta Gas Light Tower

235 Peachtree Street, N.E.

Atlanta, Georgia 30303

Attorneys for Commuter Airline

Association of America

Of Counsel:

Forp, HARRISON, SULLIVAN & Lowry

1515 Atlanta Gas Light Tower

235 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 523-2300

27

APPENDIX

Relevant Stautory Provisions

45 U.S.C. §152

Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working conditions of

its employees, as a class, as embodied in agreements except

in the manner prescribed in such agreements or in section

156 of iniz title.

Ninth. If any dispute shall arise among a carrier’s

employees as to who are the representatives of such em-

ployees 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 dis-

pute, to investigate such dispute and to certify to both

parties, in writing, within 30 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 dis-

pute, and certify the same to the carrier. Upon receipt

of such certification the carrier shall treat with the repre-

sentative 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 name

of their duly designated and authorized representatives

in such manner as shall insure the choice of representatives

by the employees without interference, influence, or coer-

cion exercised by the carrier. In the conduct of any elec-

tion 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 com-

mittee of three neutral persons who after hearing shall

within ten days designate the employees who may partici-

pate in the election. The Board she” have access to and

have power to make copies of the books and the records

of the carriers to obtain and utilize such information as

may be deemed necessary by it to carry out the pur-

poses and provisions of this paragraph.

Tenth. The willful failure or refusal of any carrier

its officers or agents, to comply with the terms of the

third, fourth, fifth, seventh, or eighth paragraph of this

section shall be a misdemeanor, and upon conviction there-

of the carrier, officer, or agent offending shall be subject

to a fine of not less than $1,000.00, nor more than $20,000.00

or imprisonment for not more than six months or both

fine and imprisonment, for each offense, and each day

during which such carrier, officer, or agent shail willfully

fail or refuse to comply with the terms of the said para-

graphs of this section shall constitute a separate offense.

It shall be the duty of any United States attorney to

whom any duly designated representative of a carrier’s

employees may apply to institute in the proper court and

to prosecute under the direction of the Attorney General

of the United States, all necessary proceedings for the

enforcement of the provisions of this section, and for the

punishment of all violations thereof and the costs and

expenses of such prosecution shall be paid out of the

appropriation for expenses of the courts of the United

States: Provided That Nothing In This Chapter Shall

Be Construed To Require An Individual Employee To Ren-

der Labor or Service Without His Consent, Nor Shall Any-

thing In This Chapter Be Construed to Make The Quitting

of His Labor By An Individual Employee An Illegal Act;

ee

29

Nor Shall Any Court Issue Any Process To Compel the

Performance By An Individual Employee of Such Labor

or Service, Without His Consent.

45 U.S.C. §156

Carriers and representatives of the employees shall

give at least 30 day’s written notice of an intended change

in agreements affecting rates of pay, rules, or working

conditions, and the time and place for the beginning of

conference between the representatives of the parties in-

terested in such intended changes shall be agreed upon

within ten days after the receipt of said notice, and said

time shall be within the 30 days provided in the notice.

In every case where such notice of intended change has

been given, or conferences are being held with reference

thereto, or the services of the Mediation Board had been

requested by either party, or said Board has proffered

its services, rates of pay, rules or working conditions shall

not be altered by the carrier until the controversy has

been finally acted upon, as required by §155 of this title,

by the Mediation Board, unless a period of 10 days has

elapsed after termination of conferences without request

for or proffer of the services of the Mediation Board.

45 U.S.C. §182

The duties, requirements, penalties, benefits, and priv-

ileges prescribed and established by the provisions of sec-

tions 151 to 152 and 154 to 163 or this title shall apply

to said carriers by air and their employees in the same

manner and to the same extent as though such carriers

and their employees were specifically included within the

definition of “carrier” and “employee”, respectively, in

section 151 of this title.