Petition for Writ of Certiorari — Virgin Atlantic Airways, Ltd. v. National Mediation Board
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er MAY 13 1992
Ogaas Of pik CLE
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
>_>
VIRGIN ATLANTIC AIRWAYS, LTD., MARIO. BATISTA,
LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO GAR-
CIA, JOHN AQUINO, and EDGAR LAMBERTUS,
Petitioners,
—_vVv.—
NATIONAL MEDIATION BOARD, an agency of the United States
of America, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, LOCAL 851, ANTHONY FARINA, individually and as
president of Local 851, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS AIRLINE DIVISION, WILLIAM GENOEBSE,
individually and as Director of Internationa] Brotherhood
of Teamsters Airline Division, R no
espondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MICHAEL DELIKAT
Counsel of Record
JILL L. ROSENBERG
ORRICK, HERRINGTON & SUTCLIFFE
599 Lexington Avenue
New York, New York 10022
(212) 326-8800
Attorneys for Petitioners
i
QUESTIONS PRESENTED
1. Whether, as the Court of Appeals for the Second Cir-
cuit held, this Court’s decision in Switchmen’s Union v.
National Mediation Bd. (‘‘Switchmen ’s’’), 320 U.S. 297
(1943), precludes all meaningful judicial review of
actions by the National Mediation Board in the conduct
of union representation elections under the Railway
Labor Act (‘‘RLA’’)?
2. To the extent that Switchmen’s can be read to preclude
all meaningful judicial review of a certification of a bar-
gaining representative by the NMB, should Switchmen’s
(a 4-3 decision whose majority opinion was written by
Justice Douglas) be clarified or overruled?
FF
PARTIES
The Petitioners are Virgin Atlantic Airways, Ltd. (‘‘Virgin
Atlantic’’), a ‘‘common carrier by air’’ within the meaning of
Title I] of the RLA, and Mario Batista, Lawrence French,
Julio Rosa, Jose Marcello Garcia, John Aquino and Edgar
Lambertus, six of Virgin Atlantic’s fleet service employees
covered by the NMB certification. Virgin Atlantic’s parent
company is Voyager Travel (Holdings) Ltd. (U.K.) and Vir-
gin Atlantic has no affiliates or subsidiaries other than wholly
owned subsidiaries.
Respondent National Mediation Board (the ‘‘Board’’ or
‘*‘NMB’”’) is an independent agency in the executive branch of
the United States government charged, among other duties,
with the obligation to investigate representation disputes
among employees of carriers subject to the RLA, and of
mediating disputes over changes in agreements between such
carriers and representatives of their employees.
Respondents International Brotherhood of Teamsters,
Local 851 and International Brotherhood of Teamsters Air-
line Division (collectively referred to as ‘‘Teamsters’’ or the
‘‘Union’’) are the labor organizations certified by the NMB
as the representative of the craft or class of Virgin Atlantic’s
fleet service employees for purposes of collective bargaining
under the RLA. Respondents Anthony Farina and William
Genoese are officers of the Union.
TABLE OF CONTENTS
REASONS FOR GRANTING THE WRIT..........
I.
Il.
Ill.
THE NMB’S ACTIONS HEREIN ARE SUB-
JECT TO FULL JUDICIAL REVIEW
BECAUSE ITS STATUTORY POWER AND
JURISDICTION ARE AT ISSUE...........
THE ROLE OF THE FEDERAL COURTS
IN ENFORCING THE RLA DEPRIVED
THE NMB OF ANY AUTHORITY TO
IGNORE THE RULING OF THE FEDERAL
COURT IN HODGES V. VIRGIN ATLAN-
EEE OS IE een meee
SWITCHMEN’S SHOULD BE CLARIFIED
OR OVERRULED TO THE EXTENT IT
PRECLUDES MEANINGFUL JUDICIAL
REVIEW OF ALL ACTIONS OF THE NMB
WITH RESPECT TO CERTIFICATION OF
BARGAINING REPRESENTATIVES .......
er CS hay awh hin Sach 604040 vk a ees a Ke
14
19
iv
APPENDICES
Appendix A
Opinion and Judgment of the U.S. Court of Appeals
- & ge Pr re er ree
Appendix B
Judgment and Order of the U.S. District Court for the
pe a es. ee
Appendix C
Certification of National Mediation Board...........
Appendix D
ee ee - IE ck Wie ke catweea bt dasexeeuns
Appendix E
Text of National Mediation Board Rules Involved....
Appendix F
Affidavit of Michael Delikat in Support of Plaintiffs’
Motion for Summary Judgment, filed March 7, 1991
Declaration of Charles R. Barnes, Executive Director
of the National Mediation Board, filed December 19,
PE Sa CE Naa RRR Cee ERE MERRIER Rea
PAGE
la
25a
28a
30a
33a
37a
a re ee
TABLE OF AUTHORITIES
Cases PAGE
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 16
Air Canada v. National Mediation Bd., 478 F. Supp.
See Getic: CPTI caicididdcacuwhees choos. 11
-. Airline Dispatchers Ass’n v. National Mediation Bd.,
° 189 F.2d 685 (D.C. Cir.), cert. denied, 342 U.S. 849
SOPON Soh bv nnseeensaccut) sbRcuuadieeecee eee 9, 10
Airline Stewards and Stewardesses Ass’n v. Trans
World Airlines, 173 F. Supp. 369 (S.D.N.Y. 1959),
aff'd, 273 F.2d 69 (2d Cir.), cert. denied, 362 U.S.
MPEP OE PE EEE PEE EE NOUN AN LR on aN e. 10
British Airways v. National Mediation Bd., 685 F.2d
we ee Se Ss dss ca pes Geka ancaee ele 17
Brotherhood of Ry. and Steamship Clerks v. Associa-
tion for the Benefit of Non-Contract Employees, 380
We: WP GHD 2 60 no6 a xuncae nude bese ae 7, =
Chicago & Northwestern Ry. Co. v. United Transp.
ton, 402 U.S. SPO (1971) o.oo cn cn ccenasssscecas 15
Decker v. Linea Aeropostal Venezolana, 258 F.2d 153
(eG. GR. TUE ose eck sccksaee cee eee 14
Delpro Co. v. National Mediation Bd., 509 F. Supp.
TS GP. TGR. FOE ie is do Cidectubscks cele 10, 13
Delpro Co. v. Brotherhood Ry. Carmen, 519 F. Supp.
842 (D. Del. 1981), aff’d, 676 F.2d 960 (3d Cir.),
cert. denied, 459 U.S. 989 (1982) ............. wm, 33, 35
Hodges et al. v. Virgin Atlantic Airways, 88 Civ. 1370
GDIN. Y. SMO kvenddabaenninadee eee 3, 14
vi
PAGE
International Ass’n of Machinists & Aerospace Work-
ers v. Trans World Airlines, 839 F.2d 809 (D.C. Cir.
1987), cert. denied, 488 U.S. 820 (1988)........... 17
International Bhd. of Teamsters v. Brotherhood of Ry.
and Steamship Clerks, 402 F.2d 196 (D.C. Cir.),
cert. denied, 393 U.S. 848 (1968) ................. 17
International In-Flight Catering Co. v. National Media-
tion Bd., SSS F.ad 7i2 Oth Cir. 1977). cccccceces 12
International Longshoremen’s Ass’n v. North Carolina
Ports Authority, 463 F.2d 1 (4th Cir.), cert. denied,
mR errr rere ee rye rrr ee 9, 13
Maas v. Frontier Airlines, 676 F. Supp. 224 (D. Colo.
POUT x 0'0sbackeanncvesncsess ¢beerkeenreeeeeeeeee 14
Philippine Airlines v. National Mediation Bd., 430 F.
Me i es ry ee ee 12
Switchmen’s Union v. National Mediation Bd., 320
Cie PF CEs ces cdchbabenseea keene ean eee passim
United States v. Feaster, 410 F.2d 1354 (Sth Cir.), cert.
Gente, Fe: Wa. Fle Ce a0 ces bn ekeaee ew 9, 13
Virgin Atlantic Airways v. National Mediation Bd.,
ew Bee 2s Ae. | Peni eee 2
Virgin Atlantic Airways v. National Mediation Bd., 15
Ps. ROE COO 6k eRhawkee when ke been cee 4
Virginian Ry. Co. v. System Federation No. 40, 300
Cha SAS CST ce wdc cu sckune bes teenies 14
WES Chapter, Flight Engineers’ Int’l Ass’n v. National
Mediation Bd., 314 F.2d 234 (D.C. Cir. 1962)..... 14
a |
Vii
PAGE
Statutes
8 ee | yr a 2
Railway Labor Act
Section 1, Fifth, 45 U.S.C. § 151, Fifth........... 1]
Section 2, Third, 45 U.S.C. § 152, Third.......... 14
Section 2, Fourth, 45 U.S.C. § 152, Fourth....11, 14, 15
Section 2, Ninth, 45 U.S.C. § 152, Ninth......... 11, 12
Rules
NMB Rule 1206.06, 29 C.F.R. § 1206.6............. 3, 11
NMB Representation Manual, § 5.304............... 3, i2
Other Authorities
Jaffe, The Right to Judicial Review, 71 Harv. L. Rev.
MINS 04 44 Baw 64s uescccawieenaeeieeca ees 16, 17
Sunstein, Interpreting Statutes, 103 Harv. L. Rev. 405
eee eT ee eC eT Te eee eee rerr orn 17
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
No.
—<—>>
VIRGIN ATLANTIC AIRWAYS, LTD., MARIO BATISTA,
-° LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO
GARCIA, JOHN AQUINO, and EDGAR LAMBERTUS,
Petitioners,
—_—vV—
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 BROTH.
ERHOOD OF TEAMSTERS AIRLINE DIVISION, WILLIAM
GENOESE, individually and as Director of Internationa]
Brotherhood of Teamsters Airline Division,
Respondents.
<—
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners respectfully pray that a writ of certiorari issue
to review the judgment of the U.S. Court of Appeals for the
Second Circuit entered on February 20, 1992.
2
OPINIONS BELOW
The opinion of the Court of Appeals (App. A, 1a-24a)' is
officially reported at 956 F.2d 1245 (2d Cir. 1992). The Order
of the District Court granting summary judgment in Petition-
ers’ favor (App. B, 25a-27a) was not officially reported.
JURISDICTION
The judgment of the United States Court of Appeals (App.
A, la) was entered on February 20, 1992. This petition is
filed within ninety (90) days from that date. The jurisdiction
of this Court to review that judgment on petition for certio-
rari rests upon 28 U.S.C. § 1254(1).
STATUTE INVOLVED
The relevant portions of the RLA, as amended, 45 U.S.C.
§§ 151 et seq., are set forth in Appendix D (30a-32a).
STATEMENT OF THE CASE
The opinion below reverses an order entered in the United
States. District Court for the Eastern District of New York,
Glasser J., setting aside the certification by the NMB of the
Teamsters as the bargaining representative of the fleet service
employees of Virgin Atlantic (25a-27a). The basis of Petition-
er’s challenge to the NMB certification arose out of the inclu-
sion of four ballots of former employees of Virgin Atlantic
whose claims for reinstatement had been dismissed by the
United States District Court for the Southern District of New
York (Stanton, J.) at the time the ballots were counted. But
for the inclusion of the ballots of these four non-employees,
the Teamsters would not have obtained a majority and would
not have been certified by the NMB. The NMB therefore cer-
| The pages of the Appendices to this petition are referred to as
ee ae
3
tified a representative not designated by a majority of
employees voting. In reversing the District Court, the Court
of Appeals held that the District Court did not have jurisdic-
tion to review the NMB’s actions (10a).
Factual Background
On or about February 17, 1988, the Union filed with the
NMB an Application for Investigation of Representation Dis-
pute, activating the NMB’s election process (54a-55a, 62a-
63a). Within days after filing this Application, the Union
commenced an action in federal court (Hodges et al. v. Vir-
gin Atlantic, 88 Civ. 1370 (Stanton, J.)) claiming, inter alia,
that Virgin Atlantic had terminated six employees on or
about February 6, 1988 in retaliation for their support of
union representation (64a-70a). The action sought, inter alia,
reinstatement of five of the six named individuals (one of the
individuals had been recalled to work prior to the commence-
ment of the action) (38a, 69a).? Virgin denied the material
allegations of the complaint, asserting that the terminations,
which occurred in the context of other employees being laid
off in a reduction of force, were done for reasons wholly
unrelated to union activity (38a).°
The Hodges court granted Virgin Atlantic’s request to con-
solidate the trial on the merits with the hearing on the prelim-
inary injunction application and ordered expedited discovery
(38a). Virgin Atlantic’s request for an expedited disposition
was based upon the NMB rule (found both in the rules of the
National Mediation Board, 29 C.F.R. § 1206.6 (33a) and in
the NMB’s Representation Manual, Section 5.304 (35a-36a))
that individuals with pending actions for reinstatement were
eligible to vote and the fact that the inclusion of the four dis-
2 Another of the six plaintiffs was ruled ineligible to participate in the
election for reasons unrelated to this case (59a-60a), thereby leaving
four disputed ballots.
3 By commencing the Hodges action, the Union was able to obtain the
necessary showing of interest to proceed to an election, as the authori-
zation cards of the discharged workers who had an action for reinstate-
ment pending were counted (38a).
4
charged- individuals could have an outcome determinative
impact on the election since the unit of employees voting was
less than twenty without these four (39a). The Hodges court
set April 25, 1988 as the date for the trial on the merits and,
aware of the significance of determining the status of the dis-
charged individuals as quickly as possible, announced that
the court would rule upon the claims for reinstatement at the
conclusion of the evidence (39a). In what the NMB has
claimed was sheer coincidence, the NMB set April 25 as the
date for counting the ballots, the same day as the trial date in
Hodges (71a-72a).
Virgin Atlantic thereupon requested that the ballots of the
discharged individuals not be counted until such time as the
Hodges court had determined whether or not such individuals
should be reinstated to their former positions of employment
(80a-82a). By telex dated April 19, 1988 to the parties, the
NMB granted the request for a postponement of the April 25
count date until ‘‘a later date after all questions of eligibility
have been determined’’ (43a).
The Hodges court heard evidence on April 25 and con-
cluded the tral of that action on April 26 (39a). That same
day, in complete disregard of their earlier ruling embodied in
the April 19 telex, the NMB issued a telex announcing it
would count ‘‘all ballots of eligible employees’’ at 2:00 p.m.
on Wednesday, April 27 (83a-84a).* No reference was made
to the NMB’s April 19 ruling that the count would be
delayed until ‘‘a later date after all questions of eligibility
have been determined.”’
On April 27, 1988, at 11:30 a.m., the Hodges court dis-
missed the four claims for reinstatement in their entirety, and
advised counsel that they could advise the NMB that ‘‘by my
order entered on the record this morning, the individual
claims for reinstatement and backpay are dismissed’’ (44a,
4 The April 26 telex was subsequently issued as a formal published
decision of the NMB, Virgin Atlantic Airways, 15 N.M.B. 170 (1988)
(28a-29a).
re eae
5
Sla-52a). The NMB was immediately advised by telephone
and telex of this outcome (40a, 53a).
The NMB acknowledges that it was aware of the Hodges
dismissal before the ballots were counted, yet when the NMB
counted the ballots, it included the ballots of the four indi-
viduals whose claims for reinstatement had been dismissed
(40a). Twelve ballots, including the four in contention, were
cast for Teamsters Airline Division. The NMB ruled that
there were twenty-one eligible voters, including the four in
contention. According to NMB’s determination, 12 out of 21,
or a majority, cast ballots for representation (91a-92a). If the
four ballots had mot been counted, the Union would have
received 8 votes out of /7 eligible voters and would therefore
not have obtained a majority. On May 2, 1988, the NMB
issued its certification of representation (28a-29a).
Virgin Atlantic and several fleet service employees com-
menced the instant action seeking to invalidate the NMB cer-
tification. After the completion of discovery, Virgin moved
for summary judgment. By Judgment and Order dated June
24, 1991, the district court granted summary judgment to
Virgin invalidating the NMB certification (25a-27a). On
appeal, the Second Circuit Court of Appeals reversed (la-
24a).
REASONS FOR GRANTING THE WRIT
The court below has decided an important and recurrent
question of federal labor law—whether the actions of the
NMB with respect to all representation matters are immune
from meaningful judicial review. Although Switchmen’s spe-
cifically speaks to one narrow issue—the NMB’s right to
make determinations free from judicial review involving juris-
dictional disputes between two unions—it has been inter-
preted by subsequent lower court decisions to effectively
preclude any judicial review of the NMB’s actions. Without
the ex ante deterrent of potential judicial review, and the ex
post corrective of actual judicial review, the NMB has, for at
6
least the last two decades, embarked upon its own political
agenda with little regard for effectuating the purpose of the
statute, regulations and in many cases, its own rules codified
in its own Representation Manual.
By this Court’s recent refusals to revisit and clarify the
breadth of Switchmen’s, and the resultant lack of judicial
scrutiny, patently erroneous results such as the one below
have become commonplace. While in this case, the lack of
meaningful review resulted in a union being certified based
upon the inclusions of ballots from individuals who are not
employees within the meaning of the RLA, this ruling and its
result are by no means unique. Dozens of other cases testify-
ing to the NMB’s abusive exercise of its powers have reached
various Courts of Appeals in the past years, at a time when
the airline industry has undergone dramatic change and been
in extreme ferment.
If ever a case presented a compelling set of circumstances
for judicial scrutiny of administrative agency action, this case
cries out for such review. At issue herein is not only the ulti-
mate decision of the NMB to grant a voting franchise and
outcome determinative power to individuals who were not
“‘employees’’ within the meaning of the RLA and have never
returned to work for Virgin Atlantic. Additionally, the pro-
cess by which the NMB reached that decision, in complete.
disregard of an earlier decision to delay the count of the bal-
lots pending the federal court’s ruling, was completely arbi-
trary, capricious and an abuse of discretion. And finally, the
fact that the NMB’s actions were in complete disregard of a
federal court’s determination in an area where the federal
court is vested with authority to determine whether former
employees shall be reinstated, provides yet another basis*for
judicial review.
This case presents yet another plea to this Court to exam-
ine whether or not Congress intended that the NMB should
be treated so differently in judicial review and neutrality of
action than virtually every other federal agency. Permitting
judicial review in this case will remove the anomaly of an
——
7
administrative agency entrusted with the protection of statu-
tory rights itself functioning free of any check on that admin-
istrative action—despite the fact that the statute itself does
not forbid such judicial review. The NMB will undoubtedly
argue that judicial review of NMB certifications will increase
the number of attempts by carriers, unions and other
employee groups who lose elections to overturn NMB certi-
fied election results. While the proverbial floodgates of litiga-
tion may indeed open in the short term, the ultimate effect
will be the effectuation of the letter and the spirit of the
RLA. That clearly is a desirable result.
I. THE NMB’S ACTIONS HEREIN ARE SUBJECT TO
FULL JUDICIAL REVIEW BECAUSE ITS STATU-
TORY POWER AND JURISDICTION ARE AT ISSUE
In holding that the instant dispute concerning the validity
of the NMB’s certification was not subject to the jurisdiction
of the district court, the court below relies principally on
Switchmen’s Union v. National Mediation Bd. (‘‘Switch-
men’s’’), 320 U.S. 297 (1943), and Brotherhood of Ry. and
Steamship Clerks v. Association for the Benefit of Non-
Contract Employees (‘‘Non Contract’’), 380 U.S. 650 (1965),
for the proposition that representation disputes which involve
controversies surrounding the designation and authorization
of representatives of employees are committed to the exclu-
sive jurisdiction of the NMB. Any fair reading of these cases
establishes, however, that they do not foreclose judicial
review in all cases and specifically do not foreclose review of
whether the NMB had the jurisdictional power to grant
“‘employee’’ status to individuals who are indisputably not on
“‘employees’’ within the meaning of the RLA. Unlike Switch-
men’s and Non Contract, full judicial review is available in
the instant case because of the ‘‘type of problem involved.”’
Switchmen’s, 320 U.S. at 301.
Switchmen’s involved a jurisdictional dispute between two
rival unions to represent the same railroad yardmen. In a 4-3
decision written by Justice Douglas, this Court held that the
Board’s determination made during the representation pro-
ceedings as to which of the two unions was entitled to repre-
sent the employees was within the Board’s discretion and thus
not subject to judicial review, for to permit pre-certification
review would, ‘‘in the face of special circumstances which
obtain[ed]’’ in that case, contrary to Congress’ intent, impede
and drag out the established procedures for certifying a rep-
resentative. 320 U.S. at 300, 305-06. The ‘‘special circum-
stances’’ cited were that the legislative history of Section 2,
Ninth showed that Congress was desirous of insulating from
judicial review the ‘‘explosive problem’’ of ‘‘jurisdictional
disputes between unions.’’ Jd. at 302-03. The Court did not
have occasion to address whether a district court’s jurisdic-
tion to review ‘‘any law regulating commerce’’ might be
available if an action of the Board ‘‘would have robbed the
Act of its vitality and thwarted its purpose.’’ Jd. at 300-01.
Similarly, in Non Contract, this Court held that the NMB’s
determination that a grouping of clerical, office, stores, fleet
and passenger service employees constituted an appropriate
class or craft to participate in a representation election was
also not reviewable so long as the Board, prior to defining
the appropriate group, conducted its statutorily required
investigation. 380 U.S. at 654. This Court also held that the
Board’s selection of a particular ballot form for use in the
representation election was incident to its duty to resolve rep-
resentation disputes and that the Board’s decision was not
subject to judicial review absent a showing that the Board
acted in excess of its statutory authority. Jd. at 669.
Thus, Switchmen’s and Non Contract establish that where
the Board exercises discretionary powers granted by the RLA
to resoive factual or procedural representation disputes such
as determining the appropriate class or craft or selecting a
baliot form for use in an election, judicial review must be
extremely narrow so that the Board is not impeded in its duty
of expeditiously certifying a representative by ‘‘the haggling
and delays of litigation.’’ Non Contract, 380 U.S. at 671.
This action, however, challenges whether the Board can,
through a tortured application of some of its rules, disregard
of other rules and reliance on ‘‘practices’’ not codified by
9
regulation or rule, extend its jurisdiction to embrace individ-
uals who were not employees within the meaning of the
RLA.
In cases where the Board’s statutory authority is at issue,
courts will and should apply a standard of full judicial review
provided that the Board’s proceedings have been completed.
Thus, in United States v. Feaster, 410 F.2d 1354 (Sth Cir.),
cert. denied, 396 U.S. 962 (1969), the Fifth Circuit held that
“‘while Switchmen’s Union holds that there is no judicial
review where the Board has exercised its informed discretion
in resolving inter-union representation disputes, it does not
preclude judicial review of questions of law which bear
directly upon the jurisdiction of the Mediation Board.’’ 410
F.2d at 1361. The court in Feaster concluded that the
Supreme Court intended to proscribe judicial review of NMB
decisions only where the Board was exercising discretionary
powers granted by the RLA, and that it did not intend to
eliminate review of questions relating to the extent of these
NMB powers. Jd. Thus, the NMB’s determination that the
employer in question was a ‘“‘carrier’’ as defined by Section
1, First of the RLA, 45 U.S.C. § 151, First, was a jurisdic-
tional question and might be a proper subject for judicial
review. Id. at 1364.
Relying on the reasoning in Feaster, the Fourth Circuit in
International Longshoremen’s Ass’n v. North Carolina Ports
Authority, 463 F.2d 1 (4th Cir.), cert. denied, 409 U.S. 982
(1972), reviewed a final Board determination that the
employer in question was a ‘“‘carrier’’ within the meaning of
the RLA. The court held that the Board’s finding that the
employer was a ‘‘carrier’’ was subject to review because it
was an issue of the Board’s jurisdictional power. 463 F.2d at
3. The court also took notice of the general presumption in
favor of judicial review of administrative action. Jd.
The D.C. Circuit reviewed a jurisdictional question relating
to Board jurisdiction over employees in Airline Dispatchers
Ass’n v. National Mediation Bd., 189 F.2d 685 (D.C. Cir.),
cert. denied, 342 U.S. 849 (1951). There, the court held that
10
Switchmen’s did not preclude judicial review of whether the
NMB could exercise its powers over employees of an airline
geographically situated outside the continental limits of the
United States. 189 F.2d at 688. Reviewing the NMB’s deci-
sion under Section 10 of the Administrative Procedure Act,
as well as the RLA, the court ultimately affirmed the Board’s
determination that it had no jurisdiction over an air carrier
and its employees located entirely outside the continental
United States. Jd. at 690-91.
Similarly, in Airline Stewards and Stewardesses Ass’n Int’
v. Trans World Airlines, 173 F. Supp. 369, 378 (S.D.N.Y.
1959), aff’d, 273 F.2d 69 (2d. Cir.), cert. denied, 362 U.S.
988 (1960), it was determined after judicial review that NMB
jurisdiction did not extend to employees of airlines who were
foreign nationals flying wholly outside the United States.
In Delpro Co. v. National Mediation Bd., 509 F. Supp.
468 (D. Del. 1981) and Delpro Co. v. Brotherhood Ry. Car-
men, 519 F. Supp. 842 (D. Del. 1981), aff’d, 676 F.2d 960
(3d Cir.), cert. denied, 459 U.S. 989 (1982), the court
reviewed a Board determination that an employer was a car-
rier, recognizing that it was faced with a jurisdictional ques-
tion that did not fall within the limitations on judicial review
established in Switchmen’s and Non Contract. Those limita-
tions apply ‘‘only to factual and procedural determinations
expressly or impliedly delegated to the NMB as necessary to
its duty to resolve representation disputes, and which, if sub-
ject to judicial review either during the course of or after the
completion of the administrative proceedings, would tend to
delay certification of a representative.’’ 509 F. Supp. at 474-
75. Thus, the court made a further distinction between NMB
determinations, such as class or craft decisions, which are not
reviewable, and questions of the Board’s jurisdiction, which
are subject to review. The former, if subject to immediate
judicial review, would delay the representation election or, if
subject to post-certification review, would require a new elec-
tion if the appeal was successful. Jd. at 475. As applied to
the instant case, post-certification review of the NMB’s
actions either would result in the certificate remaining in
ei
1]
force or would void the certificate if the court determines
that the NMB acted without authority. Thus, post-
certification judicial review of the Board’s actions neither
delays the election and certification process nor requires fur-
ther administrative proceedings.
On appeal, the Third Circuit in Delpro affirmed the district
court’s finding of carrier status as well as its conclusions as
to the scope of review. Indeed, the court held:
Whatever the limitations may be upon judicial review of
NMB decisions concerning the division of employees
into appropriate classes or crafts or concerning the selec-
tion of a ballot for use in a representation election, judi-
cial review of NMB decisions concerning its own
jurisdictional authority is not barred.
Delpro Co., 676 F.2d at 962 (footnote omitted) (citations
omitted).
Just as the federal courts can review a decision of the
Board as to whether a company was a ‘‘carrier’’ within the
meaning of the RLA, a court can review the Board’s decision
to count ballots of individuals who were not ‘‘employees”’
within the meaning of the statute at the time their ballots
were counted. The special competence of the NMB lies in the
field of labor relations rather than statutory construction.
Switchmen’s, 320 U.S. at 321 (Reed, J., dissenting).
This is a dispute where the Board ignored clear statutory
language. Section 2, Fourth and Ninth of the RLA limit the
NMB’s authority to conduct elections only of ‘‘employees’’
defined in Section 1, Fifth as persons ‘‘in the service of a car-
rier.”’ 45 U.S.C. §§ 151, Fifth and 152, Fourth; Air Canada
v. National Mediation Bd., 478 F. Supp. 615, 616 (S.D.N.Y.
1979). These provisions are qualified by NMB Rule 1206.06,
29 C.F.R. § 1206.6 (33a), which provides that:
Dismissed employees whose requests for reinstatement
on account of wrongful discharge are pending before
proper authorities . . . are eligible to participate in elec-
tions among the craft or class of employees in which
12
they are employed at the time of dismissal. This does
not include dismissed employees whose guilt has been
determined, and who are seeking reinstatement on a
leniency basis.
This rule is further qualified by the NMB’s Representation
Manual, Section 5.304 (35a-36a), which provides that a dis-
charged or terminated employee shall not be considered eligi-
ble to participate in an election if his or her ‘‘grievance or
court action has been finally acted upon and the discharge
has been upheld prior to the count of the ballots.”’’
Here, there is no dispute that the reinstatement actions had
been dismissed ‘‘prior to the count of the ballots.’’ The
NMB’s failure to follow its Manual in the instant case is
therefore a statutory violation of the RLA. Critically, NMB
Manual Section 5.304 was promulgated pursuant to the
NMB’s statutory duty under Section 2, Ninth of the Act ‘‘to
establish the rules to govern the election’’ and in the further-
ance of the statutory provisions and NMB Rules that define
an employee for purposes of the Act. Section 5.304 of the
Manual specifically cites to Rule 1206.06. Additionally,
NMB Manual Section 5.304 is set forth in the Notice of Elec-
tion which is posted by the employer on its premises in order
to advise the employees of the dates of the election and of
the election and eligibility rules (73a-79a). Finally, in reciting
the statutory and procedural scheme of the RLA, the NMB
has relied heavily on its Manual. The NMB Manual has, in
fact, been found by courts to be binding on the NMB. See
International In-Flight Catering Co. v. National Mediation
Bd., 555 F.2d 712, 718 (9th Cir. 1977). In addition, courts
have closely scrutinized claims that the NMB has violated its
Manual. See Philippine Airlines v. National Mediation Bd.,
430 F. Supp. 426, 429 (N.D. Cal. 1977) (court inquired as to
whether NMB followed definition of ‘‘majority’’ contained in
Section 305.9 of Manual).
There is also no dispute in this case that at the time the
ballots of the four discharged individuals were counted, the
NMB was aware that a United States District Court had
13
determined that they had no right to reinstatement and
hence, were not ‘‘employees’’ under any fair reading of the
statute and regulations. To overcome this undeniable fact,
the court below relies on the self-proclaimed NMB **prac-
tice’’ not codified by regulation, that where the count is
delayed, the status quo that existed on the original count date
will be preserved. Significantly, when the Board by its April
19 telex delayed the count until after ‘‘a// questions of eligi-
bility have been determined,’’ it made no mention of vreserv-
ing the status quo. As such, unwritten NMB **practices’”’
articulated after action has been taken (here, the delay of the
count), should not be permitted to overcome the clear letter
and intent of the regulations and statute.
In counting the votes of these four non-employees, the
NMB not only acted contrary to its own written rules, but
also acted beyond its jurisdictional authority. Just as the
NMB may not exercise control over an employer who is not a
carrier under the RLA, so any action which grants a voting
franchise to persons who are not employees of a carrier is
similarly without authority. Simply put, it is outside of the
NMB’s power to include persons in the ballot count who are
not employees, and the artifice of an after-the-fact pro-
claimed practice should not change that obvious result.
The Board’s counting of the four non-employees’ ballots in
this case was not an exercise of its discretionary authority
simply because the Board had to interpret the meaning of
““employees’’ under the Act. Even in resolving jurisdictional
issues, the Board must interpret language of the RLA. Thus,
in Feaster, North Carolina Ports Authority and Delpro,
supra, courts interpreted and applied the statutory language
defining a carrier in order to determine whether the Board
had properly exercised jurisdiction over the employer. Simi-
larly, in the instant case, the Board was required to determine
whether an individual, whose action for reinstatement was
finally acted upon by a United States District Court, was an
employee for election purposes. Thus, this case stands in con-
14
trast to a line of cases’ where the Board must make factual
discretionary determinations as to the appropriate class or
craft or to the eligibility of certain employees where their sta-
tus as ‘“‘employees’’ of the carrier is not in dispute. There
were no disputed factual or procedural questions in this case
which required the NMB to exercise its investigatory func-
tion.
Il. THE ROLE OF THE FEDERAL COURTS IN
ENFORCING THE RLA DEPRIVED THE NMB OF
ANY AUTHORITY TO IGNORE THE RULING OF
THE FEDERAL COURT IN HODGES V. VIRGIN
ATLANTIC
Under the RLA, an individual who believes he has been
discharged for engaging in union activities must commence
an action in the federal court alleging carrier interference
under Sections 2, Third and 2, Fourth of the RLA, 45
U.S.C. §§ 152, Third and 152, Fourth. The federal court
then determines whether reinstatement as an ‘‘employee’’ is
appropriate. Virginian Ry. Co. v. System Federation No. 40,
300 U.S. 515, 543-4 (1937); Maas v. Frontier Airlines, 676 F.
Supp. 224 (D. Colo. 1987).
In earlier related proceedings in the instant case, the four
individuals in issue were plaintiffs in an action (Hodges et al.
v. Virgin Atlantic Airways, 88 Civ. 1370) seeking reinstate-
ment to their former positions. After a full trial on the merits
which concluded before the NMB counted the ballots, Judge
S See, e.g., Switchmen’s, 320 U.S. at 298-300 (class or craft determi-
nation as to which of two unions was entitled to be employees’ repre-
sentative not reviewable); Decker v. Linea Aeropostal Venezolana, 258
F.2d 153, 154 (D.C. Cir. 1958) (question whether individual employee
was eligible to vote not subject to review); see also WES Chapter,
Flight Engineers’ Int’! Ass’n v. National Mediation Bd. , 314 F.2d 234,
237 (D.C. Cir. 1962), where the court refused to review an NMB deter-
mination that former striking employees were outside of the Board’s
jurisdiction to include in an election, an argument similar to the one
made herein that the four discharged workers were outside the Board’s
jurisdiction to include in an election.
15
Stanton dismissed the claims for reinstatement stating, on the
record:
[Y]ou are free to advise the NMB or anybody else of the
fact which is that by my order entered on the record this
morning, the individual claims for reinstatement and
backpay are dismissed (52a).
The RLA gives the federal court, and not the NMB, exclu-
sive jurisdiction to award reinstatement for alleged union dis-
crimination. In the instant case, the NMB appeared to
recognize the court’s authority on these matters when on
April 19, 1988, the NMB granted Virgin’s request to post-
pone the count pending the court’s determination to ‘‘a later
date after all questions of eligibility have been determined
(43a).’’ Yet, by thereafter disregarding that decision and
counting the four disputed ballots at a time after Judge Stan-
ton had dismissed the claims for reinstatement, the NMB
clearly exceeded its authority with respect to representation
matters. To accept the NMB’s position herein would vitiate
the statutory role expressly delegated to the federal courts to
determine reinstatement rights for employees allegedly dis-
charged as a result of carrier interference.
Moreover, to the extent the federal courts have jurisdiction
to protect Section 2, Fourth majority rights against carrier
interference, it follows that the federal courts also have juris-
diction to protect those majority rights against deprivation by
“‘practices’’ followed by the NMB. Under the three part test
of judicial enforceability of RLA obligations set forth in Chi-
cago & Northwestern Ry. Co. v. United Transp. Union, 402
U.S. 570, 578 (1971), judicial review of the Board’s duty to
protect Section 2, Fourth majority rights would be proper.
The test included:
[1] the importance of the duty in the scheme of the Act,
[2] the capacity of the courts to enforce it effectively,
and [3] the necessity for judicial enforcement if the right
of the aggrieved party is not to prove illusory.
16
This case therefore can be distinguished from every case
decided since Switchmen’s as providing for no, or extremely
narrow, judicial review, since none of those cases involved
actions by the NMB nullifying the federal court’s statutory
mandate. As such, this case presents an independent basis of
full judicial review because the NMB’s action was contrary to
an order of a federal court authorized under the statute.
Ill. SWITCHMEN’S SHOULD BE CLARIFIED OR
OVERRULED TO THE EXTENT IT PRECLUDES
MEANINGFUL JUDICIAL REVIEW OF ALL
ACTIONS OF THE NMB WITH RESPECT TO CER-
TIFICATION OF BARGAINING REPRESENTA-
TIVES
As this Court stated in Abbott Laboratories v. Gardner,
387 U.S. 136, 140 (1967):
[A] survey of our cases shows that judicial review of a
final agency action by an aggrieved person will not be
cut off unless there is persuasive reason to believe that
such was the purpose of Congress.
This ‘‘presumption’’ in favor of judicial review of agency
action has been echoed by a number of noted commentators
in the administrative law area. See, e.g., Jaffe, The Right to
Judicial Review, 71 Harv. L. Rev. 401, 432 (1958) (‘‘[JJudi-
cial review is the rule. It rests on the congressional grant of
general jurisdiction to the Article III courts. It is a basic
right; it is a traditional power and the intention to exclude it
must be made specifically manifest’’). Professor Cass Sun-
stein states the case in support of this presumption in favor
of judicial review with clarity:
[C]ourts presume that the legislature has not precluded
judicial review of agency decisions. This presumption is
partly attributable to a_ belief—vindicated by recent
experience—that regulatory agencies are susceptible to
factionalism and self-interested representation. Judicial
review operates as both an ex ante deterrent against dan-
17
gers of this sort and an ex post corrective. If Congress is
to eliminate judicial review, it must do so unambigu-
ously.
Sunstein, Jnterpreting Statutes, 103 Harv. L. Rev. 405, 475
(1989). Therefore, as an aberration to the general presump-
tion of judicial review of agency action, Switchmen’s has
been sharply criticized by one noted scholar of administrative
law:
If the Court [in Switchmen’s] had started with the initial
premise that the principle of review embodies a great
institutional safeguard, these pretended inferences of
statutory intention to exclude review could not have
been seriously entertained. This decision is in some mea-
sure, I believe, an expression of the mood of judicial
self-deprecation and abdication into which the Court of
that period had fallen. Haunted by a past of judicial
arrogance, beguiled by the promise of administrative
action, a majority of the judges who participated were
easily persuaded of the irrelevance of the judicial role.
Jaffe, supra, at 430 (footnotes omitted).
Although a case limited by its facts to a jurisdictional dis-
pute between two competing unions, Switchmen’s has been
taken far beyond its original intent. Without the check of
judicial review, the NMB’s decisions on matters involving
representation disputes have led to erroneous and sometimes |
outrageous results in the industries that form the backbone of |
this country’s transportation system. See, e.g., Jnternational
Ass’n. of Machinists & Aerospace Workers v. Trans World
Airlines, 839 F.2d 809 (D.C. Cir. 1987), cert. denied, 488
U.S. 820 (1988); British Airways v. National Mediation Bd.,
685 F.2d 52 (2d Cir. 1982).
By engrafting onto Switchmen’s the requirement that judi-
cial review can only be had for a ‘‘gross violation’’ of the
RLA, (See, e.g, International Bhd. of Teamsters v. Brother-
hood of Ry. and Steamship Clerks , 402 F.2d 196, 205 (D.C.
Cir.), cert. denied, 393 U.S. 848 (1968)), post-Switchmen
18
courts have effectively provided for no meaningful review of
NMB actions. One must draw this conclusion from the fact
that in the entire 58 years of the NMB’s existence, no plain-
tiff (other than Petitioner Virgin Atlantic in the District
Court below) has ever been able to prove a ‘‘gross violation’’
of the statute. Nor has any court subsequently justified why a
‘*gross’’ violation of the statute would be reviewable, but not
any other type of statutory violation.
A policy that allows the NMB to fashion ‘‘practices’’ like
the one concocted here which preserves the status quo as of
the original count date without meaningful judicial review
validates the concern of the dissent of Mr. Justice Reed in
Switchmen’s that employees have a concrete interest in the
selection of a representative under the RLA:
It was only natural therefore that Congress should
assume that where its own creature, the Mediation
Board, was charged with interference with the right of
employees by a misconstruction of the statute under
which it existed, that error of law would be subject to
judicial examination to determine the correct meaning.
320 U.S. at 318.
The instant case presents this Court with another opportu-
nity to examine whether or not Congress intended that the
NMB be treated so differently in judicial review when its
actions On representation matters are so clearly contrary to
the letter and the spirit of the statute and so notoriously
designed to produce outcome-determinative results which
favor large national labor unions. The effect of this Court’s
refusal to clarify or reconsider Switchmen’s, despite having
previously been presented with the opportunity, will send per-
haps a final signal to the NMB that it can do what it wants—
that it is its discretion, and not the fundamental policies
underlying the RLA, that are preeminent. An interpretation
of the RLA that prevents the federal court from asserting
jurisdiction to review the Board’s action under the special cir-
cumstances of this case cannot be allowed to stand.
19
CONCLUSION
For the reasons set forth herein, Petitioners respectfully
submit that a writ of certiorari be granted to review the deci-
sion below.
Dated: New York, New York
May 19, 1992
Respectfully submitted,
MICHAEL DELIKAT
JILL L. ROSENBERG
Attorneys for Petitioners
APPENDICES
la
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
cae
Nos. 687, 688—August Term, 1991
(Argued December 16, 1991 Decided February 20, 1992)
Docket Nos. 91-6211, -6223, -6225, -6253
VIRGIN ATLANTIC AIRWAYS, LTD., MARIO BATISTA,
LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO
GARCIA, JOHN AQUINO, and EDGAR LAMBERTUS,
Plaintiffs-Appellees, .
Cross-Appellants,
—vV.—
NATIONAL MEDIATION BOARD, an agency of the United
States of America, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 851, ANTHONY FARINA, indi-
vidually and as president of Local 851, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS AIRLINE
DIVISION, WILLIAM GENOESE, individually and as
Director of International Brotherhood of Teamsters
Airline Division,
Defendants-Appellants,
Cross-Appellees.
2a
Before:
MESKILL, KEARSE and WINTER,
Circuit Judges.
Appeals and cross-appeals from entry of summary judg-
ments in the United States District Court for the Eastern
District of New York, Glasser, J. The district court deter-
mined that it had jurisdiction to review the certification
by the National Mediation Board of the Teamsters as the
bargaining representative of certain employees of Virgin
Atlantic Airways. Finding that the procedure used by the
National Mediation Board grossly violated the Railway
Labor Act, the district court set the certification aside.
The district court also dismissed the Teamsters’ coun-
terclaims and imposed Rule 11 sanctions on the National
Mediation Board for a repetitive motion.
We conclude that the district court should not have set
aside the certification. Therefore, with one exception, we
reinstate the Teamsters’ counterclaims. The imposition of
sanctions under Rule 11, however, was not an abuse of
discretion and is affirmed.
Reversed in part, affirmed in part, judgment vacated
and remanded.
>
FRANK A. ROSENFELD, Department of Jus-
tice, Washington, D.C. (Stuart M. Gerson,
Assistant Attorney General, William
Kanter, Department of Justice, Washing-
ton, D.C., Andrew J. Maloney, United
3a
States Attorney for the Eastern District of
New York, Brooklyn, NY, Ronald M.
Etters, General Counsel, National Medi-
ation Board, Washington, D.C., of coun-
sel), for Appellant Nat'l Mediation
Board.
JAMES A. MCCALL, Washington, D.C. (James
T. Grady, General Counsel, Int’! Broth-
erhood of Teamsters, Washington, D.C.,
Jeffrey P. Englander, Morrison, Cohen,
Singer & Weinstein, New York City, of
counsel), for Appellant Int’l Brotherhood
of Teamsters.
MICHAEL DELIKAT, New York City (Jill L.
Rosenberg, Orrick, Herrington & Sut-
cliffe, New York City, of counsel), for
Appellees.
MESKILL, Circuit Judge:
These appeals and cross-appeals involve the validity of
a review by the United States District Court for the East-
ern 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 Media-
tion 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.
Once the carrier receives certification from the NMB that
a particular individual or organization is the duly autho-
ee
4a
rized representative of a group of employees, the carrier
is obligated to bargain with that representative.
The district court erred in determining that it had juris-
diction 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.
BACKGROUND
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 Air-
ways, Lid. (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
Sa
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 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 repre-
sentation. 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 rein-
Statement action. Virgin requested that the NMB stay its
processing of the application until the district court ruled
on the reinstatement claim.
By the end of March, the NMB representative had
authorized an election among the employees and had
included the four Hodges plaintiffs among those employ-
ees 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 repre-
sentative to the NMB. Virgin did not appeal the decision
to include the Hodges plaintiffs within the specified time.
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 fol-
lowing 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 claim promptly, Vir-
gin requested that the challenged ballots be sequestered
litle
6a
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: “Due to eligibility questions raised by telex of
April 19, 1988. . . the count of ballots. . . is postponed.
Ballots received by the board. . . will be impounded at
2:00 p.m. on Monday, April 25, 1988 and counted at a
later date after all questions of eligibility have been deter-
mined.”
On April 26, 1988 the NMB again communicated with
Virgin and reversed its earlier position. It informed Vir-
gin 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 dis-
charged 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 bar-
gaining representative of the employees.
Ta
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 Man-
agement 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 sec-
ondary picketing directed against United Airlines, a com-
pany 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 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 Pro-
cedure Act. Virgin also sought to enjoin picketing by the
Union.
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.
The NMB moved to dismiss the complaint. The NMB
argued that its actions in certifying a bargaining repre-
8a
sentative 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 certifi-
cation. On February 24, 1989, after briefing and oral argu-
ment, 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
“(ujpon 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 the inter-
locutory appeal to be taken and returned the matter to the
district court.
On June 6, 1990 the NMB filed a motion styled as a
“Resubmitted Motion to Dismiss, or in the Alternative,
for Summary Judgment.” That motion fundamentally
relied on the same reasons the NMB had offered in its
first motion to dismiss. After a hearing, the district court
denied the motion on the basis of a local rule requiring
that motions for reargument be made within ten days of
the original decision and the law of the case doctrine. The
district court imposed sanctions on the NMB under Rule
11 ror filing what was essentially the same motion that the
court had denied over a year earlier.
Virgin then moved for summary judgment and, after a
hearing, the district court granted the motion in June
9a
1991. The district court held that the NMB had “grossly
violated” the RLA by counting the votes of the four chal-
lenged individuals. Therefore the district court held that
the certification of the Union was invalid. The district
court dismissed the Union’s counterclaims and granted
summary judgment to the NMB on Virgin’s remaining
claim that the certification violated the First and Fifth
Amendments and the Administrative Procedure Act. Vir-
gin, the Union and the NMB now appeal from the various
determinations of the district court.
DISCUSSION
1. The Certification
The district court invalidated the certification on a
motion for summary judgment pursuant to Fed. R. Civ. P.
56(c). That rule provides that a court should enter judg- .
ment when “there is no genuine issue as to any material
factand. . . the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). In this case, the
parties do not contend that any of the material facts are in
dispute. The parties, however, disagree as to which of
them is “entitled to a judgment as a matter of law.”
The RLA provides that when there is a dispute between
employees as to the identity of their representative the
NMB should investigate and certify the identity of that
representative. 45 U.S.C. § 152, Ninth. The jurisdiction of
a federal court to review the certification of a bargaining
representative by the NMB under the RLA has been held
to be extremely limited. “The scope of judicial review and
intervention is confined to ‘instances of constitutional
dimension or gross violation of the statute.’” British Air-
———————E
10a
ways Board v. National Mediation Board, 685 F.2d 52, 55
(2d Cir. 1982) (citations omitted).
Virgin contends, however, that the NMB’s actions are
susceptible to more exacting judicial review under the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et
seq. The district court correctly rejected this contention.
By its terms, the judicial review provision of the APA
does not apply if “agency action is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). As we have
stated before, “ ‘[r]epresentation disputes,’ which involve
controversies surrounding the designation and autho-
rization of representatives of employees covered under the
RLA, are committed to the exclusive jurisdiction of the
NMB.” Air Line Pilots Ass'n v. Texas Int'l Airlines, 656
F.2d 16, 20 n.6 (2d Cir. 1981) (citations omitted). See also
Railway Clerks v. Employees Ass'n, 380 U.S. 650, 658-60
(1965); Switchmens’ Union v. National Mediation Board,
320 U.S. 297 (1943). Therefore, review of the certifica-
tion is not available under the APA.
Thus, the certification here could properly be set aside
only if the NMB grossly violated the RLA or violated
some constitutional principle. The district court found that
it had jurisdiction to review this certification because the
NMB had grossly violated the terms of the statute. Virgin
argues additionally that the certification violates the Con-
stitution. We disagree with both contentions.
a. Violation of the RLA
As we noted in British Airways, “[i]nspection of the
[RLA] reveals that there are relatively few commands
capable of being violated.” 685 F.2d at 56. Nonetheless,
the district court found that the NMB had grossly violated
lla
the statute by including in the representation election indi-
viduals who were not “employees” of Virgin.
Section 2, Ninth of the RLA provides that when a dis-
pute arises among a Carrier’s employees as to the identity
of their representative “it shall be the duty of the Medi-
ation Board, upon request of either party to the dispute, to
investigate such dispute and to certify. . . the name or
names of the [representative] designated and authorized
to represent the employees.” 45 U.S.C. § 152, Ninth. That
section permits, but does not require, the NMB to “take a
secret ballot of the employees involved.” /d.
Section 1, Fifth, defines “employee” for purposes of the
RLA as “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 offi-
Cial in the orders of the Interstate Commerce Commis-
sion.” 45 U.S.C. § 151, Fifth. Virgin argues that, because
a federal district court denied the challenged voters rein-
statement, the NMB could not include them among the
“employees” for purposes of the vote.
However it is the NMB, not the federal judiciary, that
determines voter eligibility in elections held pursuant to
the RLA. Section 2, Ninth of the statute explicitly states
that “[ijn the conduct of any election for the purposes
herein indicated the Board shall designate who may par-
ticipate in the election and establish the rules to govern
the election.” 45 U.S.C. § 152, Ninth (emphasis added).
The NMB has established a regulation that governs the
participation by discharged employees in representation
elections. 29 C.F.R. § 1206.6 states, in pertinent part:
re
12a
Dismissed employees whose requests for reinstate-
ment [on] account of wrongful dismissal are pending
before proper authorities. . . are eligible to partic-
ipate in elections among the craft or class of employ-
ees in which they are employed at time of dismissal.
This does not include dismissed employees whose
guilt has been determined, and who are seeking rein-
statement on a leniency basis.
29 C.F.R. § 1206.6. Virgin claims that because the four
dismissed employees’ claims for reinstatement were no
longer “pending” when the votes were actually counted,
inclusion of their votes violated the regulation.
However, the NMB has a practice that “[wJhen the bal-
lots in an election are impounded because of a question
which requires resolution prior to the count, and the
impounding results in a delay of the count beyond the
count date. . . the status quo as it existed on the original
count date must be preserved in order to prevent any
change in the outcome as it would have been in the
absence of the delay.” Altair Airlines, 7 NMB No. 254
(1980) (emphasis added); see also Continental Airlines,
14 NMB No. 29 (1987); Trans World Airlines, 13 NMB
No. 64 (1986). Nothing in 29 C.F.R. § 1206.6 or the RLA
prohibits such a practice.
The NMB followed this practice here by, on April 27,
counting the votes as they were on April 25, the original
count date. On April 25, the four challenged voters had
pending actions for reinstatement. Therefore, the NMB
did not violate the regulation or the statute by counting
the four ballots.
Moreover, a major concern of an NMB representation
investigation is to “insure the choice of representatives by
the employees without interference, influence, or coercion
13a
exercised by the carrier.” 45 U.S.C. 152, Ninth (empha-
sis added); see Virginian Railway v. System Federation
No. 40, 300 U.S. 515, 545-47 (1937). The NMB may
properly use its power to designate participants in elec-
tions to counteract or prevent carrier influence in the
choice of a representative by the employees. In British
Airways for example, we refused to examine the propriety
of a certification where the NMB held an election among
employees two years after determining voter eligibility.
685 F.2d at 54-56.
Nothing in the RLA requires the NMB to stay elections
pending resolution of a dispute over an allegedly wrong-
ful discharge. Moreover, nothing in the statute mandates
that, having once told the carrier that the election would
be stayed, the NMB may not reverse its decision.
In short, the NMB did not violate any command of the
RLA. Therefore, the district court erred in setting aside
the certification on the ground that the NMB had grossly
violated the statute.
b. Constitutional Concerns
Virgin claims that the certification violated its right to
due process of law guaranteed by the Fifth Amendment
because the NMB violated (1) its own internal procedures
and (2) the regulations set forth in the federal register.
“(I]t is clear that the internal procedures manual of an
executive agency does not create due process rights in the
public.” Lynch v. United States Parole Comm'n, 768 F.2d
491, 497 (2d Cir. 1985). Thus, we need not address
whether the NMB adhered to its internal procedures.
However, an agency’s violation of a federal regulation
relating to it may constitute a violation of due process.
See Accardi v. Shaughnessy, 347 U.S. 260 (1954); Inter-
a
_ es
l4a
national House v. NLRB, 676 F.2d 906, 912 (2d Cir.
1982). Virgin argues that, by counting the votes of four
discharged employees, the NMB violated 29 C.F.R.
§ 1206.6. As noted above, the inclusion of the four chal-
lenged votes did not violate that regulation given the
NMB’s practice of maintaining the status quo in the face
of delays in the count of votes. Therefore, the NMB did
not violate Virgin’s due process rights.
Several Virgin employees join Virgin in objecting to the
NMB certification of the Union as the employee repre-
sentative. These individuals claim that the certification
violated their First Amendment right of free association.
They claim that the First Amendment guarantees them the
right not to be represented by a group chosen by less than
a majority of their co-workers.
Not surprisingly, there is little support for such a propo-
sition. The First Amendment right of free association has
never been held to mandate “majority rule” in the labor
relations sphere. If the First Amendment did protect indi-
viduals from being represented by a group that they do
not wish to have represent them, it is difficult to under-
stand why that right would cease to exist when a majority
of the workers elected the union. See Railway Employes’
Department v. Hanson, 351 U.S. 225 (1956) (upholding
“union shop” provisions of the RLA against First Amend-
ment challenges); Jnternational Ass'n of Machinists v.
Trans World Airlines, 839 F.2d 809, 812 (D.C. Cir.) (dis-
enfranchised employees did not have a First Amendment
claim), cert. denied, 488 U.S. 820 (1988). The district
court properly held that the certification in this case did
not violate the First Amendment rights of any individual
employee.
15a
The NMB, therefore, did not violate any constitutional
provision in certifying the Union as the representative of
the Virgin employees. Because the NMB neither grossly
violated the RLA nor violated the Constitution, the dis-
trict court did not have the authority to set aside the cer-
tification. British Airways, 685 F.2d at 55. The
certification should be reinstated.
2. The Union’s Counterclaims
The Union appeals from the district court’s entry of
summary judgment in favor of Virgin on the Union’s
counterclaims against Virgin. The Union asked the court
for declaratory and injunctive relief, including a decla-
ration that the NMB certification was valid, that Virgin’s
unilateral changes in working conditions and refusal to
recognize the Union violated the RLA and that the strike
against Virgin did not violate the RLA. The Union also
asked the district court to order Virgin to bargain with the
Union. In part because the district court held that the
Union certification was invalid, the court dismissed these
counterclaims.
As our discussion above indicates, the Union is entitled
to a declaration that the certification is valid and that Vir-
gin’s refusal to bargain with the Union violated the RLA.
As we stated with regard to this very situation in United
Air Lines:
[T]he RLA is unambiguous with regard to the car-
rier’s obligation once the NMB transmits that certi-
fication to the employer:
Upon receipt of such certification the carrier Shall
treat with the representative so certified as the rep-
resentative of the craft or class for the purposes of
this chapter.
ee
l6a
45 U.S.C. § 152, Ninth (emphasis added). Thus, the
carrier, Virgin, had an absolute duty under section
152 Ninth to sit down at the bargaining table with the
union.
874 F.2d at 115. That “absolute duty” remains unfulfilled
to this day and the Union is entitled to a declaration and
an injunction to enforce that duty.
The Union also claims that Virgin violated section 2,
Third and Fourth. Section 2, Third provides, in pertinent
part, that “no carrier shall, by interference, influence, or
coercion seek in any manner to prevent the designation by
its employees as their representatives of those who or
which are not employees of the carrier.” 45 U.S.C. § 152,
Third. Section 2, Fourth similarly prohibits employer
interference in the selection of employee representatives.
Id. § 152, Fourth. In support of this counterclaim, the
Union asserts that Virgin discharged employees who were
engaged in a strike designed to enforce the NMB certifi-
cation and solicited employees to sign a prepared state-
ment repudiating the Union. These actions, if proven,
constitute interference by the carrier with the employees’
selection of a representative. See NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964) (increase in benefits, if
undertaken to discourage support for union, unlawful
under the National Labor Relations Act (NLRA));
Nazareth Regional High School v. NLRB, 549 F.2d 873,
883 (2d Cir. 1977) (Under NLRA, coercion normally may
be inferred from the fact that supervisors are involved in
soliciting signatures on anti-union petitions); cf. Broth-
erhood of Railroad Trainmen v. Jacksonville Terminal
Co., 394 U.S. 369, 383-84 (1969) (cases construing
NLRA may be helpful in construing similar provisions of
RLA). The counterclaim states a claim for violation of 45
U.S.C. § 152, Third and Fourth. Therefore, the district
17a
court should not have summarily dismissed this counter-
claim.
The Union further alleges that Virgin, by unilaterally
altering rates of pay, violated section 2, First and Seventh
of the RLA, 45 U.S.C. § 152, First and Seventh. Section
2, First imposes a general duty on carriers to “exert every
reasonable effort” to make agreements concerning work-
ing conditions. 45 U.S.C. §152, First. Section 2, Seventh
states, in pertinent part:
No carrier. . . shall change the rates of pay, rules, or
working conditions of its employees, as a class as
embodied in agreements except in the manner pre-
scribed in such agreements or in section 156 of this
title.
Id. § 152, Seventh. Section 156 of Title 45, section 6 of
the RLA, in turn requires that carriers and representatives
give each other thirty days written notice of “an intended
change in agreements affecting rates of pay, rules, or
working conditions.”
As the district court recognized, the Supreme Court has
held that the phrase “as embodied in agreements” limits
this provision of the act to agreements reached after col-
lective bargaining. Williams v. Terminal Co., 315 U.S.
386, 399-400 (1942). In Williams, the plaintiffs, employ-
ees who had never engaged in collective bargaining with
their employer, tried to halt unilateral changes in working
conditions by the employer. At the time of the unilateral
change in working conditions, one group of plaintiffs had
authorized a representative under the RLA. That repre-
sentative had, prior to the change, requested to bargain
with the employer. The Court held that nothing in the
RLA prevented changes prior to the actual existence of a
collective bargaining agreement:
4
18a
The institution of negotiations for collective bar-
gaining does not change the authority of the carrier.
The prohibitions of § 6 against change of wages or
conditions pending bargaining and those of § 2, Sev-
enth, are aimed at preventing changes in conditions
previously fixed by collective bargaining agreements.
Arrangements made after collective bargaining obvi-
ously are entitled to a higher degree of permanency
and continuity than those made by the carrier for its
own convenience and purpose.
Id. at 402-03 (emphasis added).
The Supreme Court cast some doubt on the vitality of
Williams’ interpretation of section 2, Seventh in Detroit
& Toledo Shore Line RR. v. United Transportation Union,
396 U.S. 142 (1969). However, as the D.C. Circuit stated
when faced with a similar problem, the Detroit & Toledo
decision “plainly stops short of overruling Williams and
leaves it binding in a case like the one before us where
there has been ‘absolutely no prior history of any col-
lective bargaining or agreement between the parties on
any matter.’ ” Trans World Airlines, 839 F.2d at 814 (cita-
tion omitted).
Although some courts have held that something less
than a formalized collective bargaining agreement may be
sufficient to trigger the status quo provisions of the RLA,
see International Ass'n. of Machinists v. Transportes
Aereos Mercantiles, 924 F.2d 1005, 1008-10 (11th Cir.)
(unratified agreement represented status quo), cert.
denied, 112 S.Ct. 167 (1991), here there was not even
that. The Union and Virgin never bargained with each
other. Therefore, section 2, Seventh, does not apply.
Similarly, where no steps toward bargaining have been
taken, the unilateral alteration of rates of pay by an
|
19a
employer does not violate the section 2, First duty to
“exert every reasonable effort” to make agreements. See
Regional Airline Pilots v. Wings West Airlines, 915 F.2d
1399, 1402-03 (9th Cir. 1990), cert. denied, 111 S.Ct.
2891 (1991); Trans World Airlines, 839 F.2d at 814-15.
The district court properly dismissed this counterclaim
under this provision of the RLA.
3. Rule 11 Sanctions
In February 1989 the NMB made a motion to dismiss
Virgin’s action to set aside the Union certification. In that
motion, the NMB argued that the district court did not
have jurisdiction to review the certification, citing many
of the cases and principles discussed above. The district
court denied the motion. The district court recognized the
limited nature of judicial review in this context, but held
that on the precise facts of this case there was jurisdiction
to review the certification.
Approximately sixteen months after the original motion
to dismiss was denied by the district court the NMB filed
what it characterized as a “Resubmitted Motion To Dis-
miss, or in the Alternative, For Summary Judgment.” In
its memorandum supporting that motion, the NMB argued
that the principles that it had argued in its original motion
had been “reaffirmed” by intervening case law.
The NMB argued that their motion was justified by
Fed. R. Civ. P. 54(b), which provides, in pertinent part,
that, unless the court expressly directs otherwise, any
order or decision “is subject to revision at any time before
the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” Fed. R. Civ. P.
54(b). The NMB asserted that this provision impliedly
es
20a
allows motions requesting that the court reverse one of its
earlier decisions.
The district court denied the motion. It held that the
motion was in reality a motion to reargue the prior
motion. As such, the motion was barred by a local rule
that provided that such motions must be made within ten
days. The district court held that the motion also should
be denied based on the law of the case doctrine. It found
that there was no significant new law presented in the
motion. The district court found that the motion merely
rehashed principles with which the court was familiar and
that it had considered at the time of the first motion. The
district court also held that the NMB’s theory under Rule
54(b) was totally without merit.
In addition, the district court rejected the NMB’s
asserted reason for filing the motion. The NMB stated at
oral argument before the district court that the reason for
the motion was to place the case in a posture that would
allow for an appeal. The court concluded that, because the
NMB had repeatedly objected to entry of summary judg-
ment for Virgin—a device that would have allowed for an
appeal to this court—the NMB was insincere in its
avowed reason for the motion.
The district court therefore held that that motion vio-
lated Fed. R. Civ. P. 11 (Rule 11) and ordered the NMB to
pay the reasonable costs incurred by Virgin in opposing
the motion. Rule 11 states in pertinent part:
The signature of an attorney or party constitutes a
certificate by the signer. . . that to the best of the
signer’s knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good faith argu-
ment for the extension, modification, or reversal of
ee
2la
existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation.
Fed. R. Civ. P. 11. The district court held that the filing of
the motion was not justified by existing law or by a good
faith argument for extension, modification or reversal of
existing law. The court stated: “The reasons upon which
the court based its denial of the motion were patent. Local
Rule 3(j) and the law of the case doctrine, each of which
was readily discoverable, would have counseled against
the filing of this motion.”
The NMB contends that the district court erred in find-
ing that it violated the strictures of Rule 11 by making its
second motion to dismiss. In reviewing the imposition of
sanctions under Rule 11, “an appellate court should apply
an abuse-of-discretion standard” to every aspect of the
district court’s ruling. Cooter & Gell v. Hartmarx Corp.,
110 S.Ct. 2447, 2461 (1990). However, “[a] district court
would necessarily abuse its discretion if it based its rul-
ing on an erroneous view of the law or on a clearly erro-
neous assessment of the evidence.” /d.
The NMB argues that because, as we hold today, it was
correct on the merits of its motion to dismiss, the finding
that the motion violated Rule 11 was an abuse of discre-
tion. However, the district court did not impose sanctions
on the NMB for the substance of its motion. The district
court found that the NMB violated Rule 11 because mak-
ing the motion at that juncture in the case, given Local
Rule 3(j) and the law of the case doctrine, was not justi-
fied by existing law or a good faith argument for the
extension, modification or reversal of existing law. There-
fore, the fact that the NMB was correct on the merits of
22a
its motion does not mandate a determination that the Rule
11 sanctions constituted an abuse of discretion.
Although we hold today that the district court erred in
denying the NMB’s initial motion to dismiss, it was jus-
tified in denying the resubmitted motion based on the law
of the case doctrine. See 1B J. Moore, J. Lucas & T. Cur-
rier, Moore’s Federal Practice J 0.404[4.—1], at 124-26.
Similarly, the district court was within its discretion in
characterizing the NMB’s “resubmitted” motion to dis-
miss as in reality a motion for reargument and thus barred
as untimely under Local Rule 3(j).
The law of the case doctrine is admittedly discretionary
and does not limit a court’s power to reconsider its own
decisions prior to final judgment. See Arizona v. Cali-
fornia, 460 U.S. 605, 618 (1983) (“Law of the case directs
a court’s discretion, it does not limit the tribunal’s
power.”); First Nat’l Bank of Hollywood v. American
Foam Rubber Corp., 530 F.2d 450, 453 n.3 (2d Cir.) (“In
this Circuit, the law of the case is a discretionary doctrine
that need not be applied when no prejudice results from
its omission.”) (citation omzitted), cert. denied, 429 U.S.
858 (1976). However, “where litigants have once battled
for the court’s decision, they should neither be required,
nor without good reason permitted, to battle for it again.”
Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert.
denied, 377 U.S. 934 (1964). The major grounds justify-
ing reconsideration are “an intervening change of con-
trolling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.” 18
C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 4478 at 790. Accord, Doe v. New York City
Dep’t of Social Services, 709 F.2d 782, 789 (2d Cir.) (dis-
cussing law of the case in the appellate context), cert.
denied, 464 U.S. 864 (1983). The district court explicitly
23a
found that none of those reasons was present in this case.
Even if Rule 54(b) allows parties to request district courts
to revisit earlier rulings, the moving party must do so
within the strictures of the law of the case doctrine.
Given the deferential standard of review we must use in
reviewing all aspects of a district court’s imposition of
Rule 11 sanctions, we cannot say that the court abused its
discretion in finding that the NMB’s position in making
its motion was not justified. Judge Glasser’s prior deci-
sion emphasized that there was jurisdiction to review the
certification “[u]pon the precise facts of this case.” None
of the intervening cases cited in the NMB’s memorandum
supporting the resubmitted motion addressed the “precise
facts of this case,” or even closely similar facts. Judge
Glasser’s initial error in asserting jurisdiction was not so
clear that the law of the case doctrine would be justifiably
ignored. The imposition of the Rule 11 sanctions, there-
fore, was not an abuse of discretion.
CONCLUSION
Because the procedures used by the NMB in deter-
mining the identity of the bargaining representative of the
contested group of Virgin employees neither grossly vio-
lated the RLA nor raised any constitutional concerns, the
district court had no power to review the certification of
the Union in this case. The district court, therefore, also
improperly dismissed some of the Union’s counterclaims.
Because there was no prior history of collective bar-
gaining between the parties, however, the district court
correctly concluded that Virgin’s unilateral change in the
terms and conditions of employment did not violate 45
U.S.C. § 152, Seventh. Moreover, the imposition of sanc-
tions against the NMB for its resubmitted motion, given
eee
24a
the court’s prior narrow ruling on that subject, the local
rule relating to reargument and the law of the case doc-
trine, was not an abuse of discretion and thus we affirm
the imposition of those sanctions.
We therefore reverse the district court’s invalidation of
the NMB certification of the Union as the representative
of the employees at issue here. With the exception of the
dismissal of the Union’s counterclaim under 45 U.S.C.
§ 152, Seventh, we reverse the dismissal of the Union’s
counterclaims. We affirm the imposition of sanctions
against the NMB under Rule 11. We vacate the judgment
and remand to the district court for further proceedings
not inconsistent with this opinion.
25a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Civil Action No. CV-88-3163 (ILG)
Filed June 24, 1991
7
VIRGIN ATLANTIC AIRWAYS, LTD, et al.,
Plaintiffs,
Vv.
NATIONAL MEDIATION BOARD, et al.,
Defendants.
——>— _
JUDGMENT AND ORDER
GLASSER, United States District Judge:
This Court heard oral argument on plaintiffs Virgin Atlan-
tic Airways, Ltd., Mario Batista, Lawrence French, Jose
Marcello Garcia, John Aquino and Edgar Lambertus’
Motion for Summary Judgment on May 10, 1991. This Court
also considered plaintiffs’ Motion to Dismiss the counter-
claims of defendants Local 851, Anthony Farina, Interna-
tional Brotherhood of Teamsters Airline Division and
William Genoese (collectively ‘‘union defendants’’). Based
upon the papers filed in connection with plaintiffs’ motions,
the statements made at oral argument, the papers filed in
connection with the National Mediation Board’s (‘‘NMB’’)
two Motions to Dismiss or, in the Alternative, for Summary
Judgment, filed on December 19, 1988 and June 5, 1990, and
statements made at oral arguinents on February 24, 1989 and
July 20, 1990, it is hereby ORDERED that:
1) Upon the precise facts of this case, this Court has juris-
diction to review the defendant NMB’s certification of the
union;
|
26a
2) Summary judgment is granted for plaintiffs on the issue
of this Court’s jurisdiction because the Court finds, for rea-
sons it stated upon the record at the oral arguments on Feb-
ruary 24, 1989 and July 20, 1990, that defendant NMB’s
certification of the union as the bargaining representative
grossly violated the Railway Labor Act;
3) The NMB’s May 2, 1988 certification in NMB Case
Number R-5768 is null and void;
4) The union defendants’ counterclaims are dismissed for
the reasons stated by the Court during oral argument on May
10, 1991;
5) Plaintiffs’ claims that the certification is invalid due to
alleged ex parte contacts between the NMB and union defen-
dants and that the certification violated the employees’ Fifth
Amendment right to equal protection, both of which plain-
tiffs withdrew in their May 7, 1991 Reply Brief, are dismissed
with prejudice;
6) Summary judgment is granted for defendant NMB on
plaintiffs’ claims that the certification violated the employees’
First Amendment rights to freedom of association and that
the NMB’s actions violated the Administrative Procedure
Act;
7) The Court considered, but finds it unnecessary to
decide, plaintiffs’ alternative claim that the certification vio-
lated the employees’ Fifth Amendment rights to due process
because the Court has already determined that the certifica-
tion is null and void since it constituted a gross violation of
the Railway Labor Act;
8) Pursuant to the Court’s October 16, 1990 Order, plain-
tiffs are awarded sanctions in the amount of $8,731.99, i.e.,
$7,801.25 in attorneys’ fees and $930.74 in other expenses.
The NMB’s obligation to make this payment is stayed pend-
ing appeal. If the United States Court of Appeals for the Sec-
ond Circuit affirms this Court’s decision regarding sanctions,
the National Mediation Board shall pay plaintiffs interest
27a
from the date of this Order at a rate as established in 28
U.S.C. § 2516(b); and
9) This constitutes a final judgment pursuant to Rules 54
and 56, Federal Rules of Civil Procedure. Judgment shall be
entered immediately upon the filing of this Order.
So ORDERED,
/s/ 1.L. GLASSER
United States District Judge
Dated: Brooklyn, New York
June 14, 199]
vv
28a
[LETTERHEAD OF THE NATIONAL MEDIATION BOARD]
15 NMB No. 55
CASE No. R-5768
May 2, 1988
>
In the Matter of the
REPRESENTATION OF EMPLOYEES
of
VIRGIN ATLANTIC AIRWAYS
Fleet Service Employees
—
CERTIFICATION
The services of the National Mediation Board were invoked
by the International Brotherhood of Teamsters-Airline Divi-
sion (IBT), on February 8, 1988, to investigate and determine
who may represent for the purposes of the Railway Labor
Act, as provided by Section 2, Ninth, thereof, personnel
described as ‘‘Fleet Service Employees’’, employees of the
Virgin Atlantic Airways.
At the time this application was received, these employees
were not represented by any organization or individual.
The Board assigned Board Representative Gale L. Oppen-
berg to investigate.
FINDINGS
The investigation disclosed that a dispute existed among
the craft or class of Fleet Service Employees, and by direc-
tion of the Board the Board Representative was instructed to
conduct an election by secret ballot to determine the employ-
ees’ representation choice.
29a
The following is the result of the election as reported by
Board Representative William A. Gill, Jr., who was assigned
to count the ballots in this case.
Number of Employees Voting:
IBT Number of Employees Eligible
Fleet Service
Employees 12 21
The National Mediation Board further finds that the Car-
rier and employees in this case are, respectively, a Carrier
and employees within the meaning of the Railway Labor Act,
as amended; that this Board has jurisdiction over the dispute
involved herein; and that the interested parties, as well as the
Carrier, were given due notice of the Board’s investigation.
CERTIFICATION
Now, THEREFORE, in accordance with Section 2, Ninth, of
the Railway Labor Act, as amended, and based upon its
investigation pursuant thereto, the National Mediation Board
certifies that the International Brotherhood of Teamsters-
Airline Division has been duly designated and authorized to
represent for the purposes of the Railway Labor Act, as
amended, the craft or class of Fleet Service Employees,
employees of the Virgin Atlantic Airways.
By direction of the NATIONAL MEDIATION BOARD.
/s/ CHARLES R. BARNES
Charles R. Barnes
Executive Director
CRB/dsa
30a
RAILWAY LABOR ACT,
45 U.S.C. §§ 151-188
Section 1. Fifth [45 U.S.C. § 151, Fifth]
The term ‘‘employee’’ as used herein includes 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 now in effect, and as the same may be amended
or interpreted by orders hereafter entered by the Commission
pursuant to the authority which is conferred upon it to enter
orders amending or interpreting such existing orders: Pro-
vided, however, That no occupational classification made by
order of the Interstate Commerce Commission shall be con-
strued to define the crafts according to which railway
employees may be organized by their voluntary action, nor
shall the jurisdiction or powers of such employee organiza-
tions be regarded as in any way limited or defined by the
provisions of this chapter or by the orders of the Commis-
sion.
Section 2. Third Designation of representatives. [45 U.S.C.
§ 152, Third]
Representatives, for the purposes of this chapter, shall be
designated by the respective parties without interference,
influence, or coercion by either party over the designation of
representatives by the other; and neither party shall in any
way interfere with, influence, or coerce the other in its choice
of representatives. Representatives of employees for the pur-
poses of this chapter need not be persons in the employ of
the carrier, and no carrier shall, by interference, influence, or
coercion seek in any manner to prevent the designation by its
employees as their representatives of those who or which are
not employees of the carrier.
| '
3la
Section 2. Fourth Organization and collective bargaining;
freedom from interference by carrier;
assistance in organizing or maintaining
organization by carrier forbidden;
deduction of dues from wages forbid-
den. [45 U.S.C. § 152, Fourth]
Employees shall have the right to organize and bargain col-
lectively through representatives of their own choosing. 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. No carrier, its offi-
cers or agents, shall deny or in any way question the right of
its employees to join, organize, or assist in organizing the
labor organization of their choice, and it shall be unlawful
for any carrier to interfere in any way with the organization
of its employees, or to use the funds of the carrier in main-
taining or assisting or contributing to any labor organization,
labor representative, or other agency of collective bargaining,
or in performing any work therefor, or to influence or coerce
employees in an effort to induce them to join or remain or
not to join or remain members of any labor organization, or
to deduct from the wages of employees payable to labor
organizations, or to collect or to assist in the collection of
any such dues, fees, assessments, or other contributions: Pro-
vided, That nothing in this chapter shall be construed to pro-
hibit a carrier from permitting an employee, individually, or
local representatives of employees from conferring with man-
agement during work hours without loss of time, or to pro-
hibit a carrier from furnishing free transportation to its
employees while engaged in the business of a labor organiza-
tion.
Section 2. Ninth Disputes as to identity of representatives;
designation by Mediation Board; secret
elections. [45 U.S.C. § 152, Ninth]
If any dispute shall rise among a carrier’s employees as to
who are representatives of such employees designated and
authorized in accordance with the requirements of this chap-
EE ————
32a
ter, it shall be the duty of the Mediation Board, upon request
of either party to the dispute, to investigate such dispute and
to certify to both parties, in writing, within thirty days after
the receipt of the invocation of its services, the name or
names of the individuals or organizations that have been des-
ignated and authorized to represent the employees involved in
the dispute, and certify the same to the carrier. Upon receipt
of such certification the carrier shall treat with the represent-
atives so certified as the representative of the craft or class
for the purposes of this chapter. In such an investigation, the
Mediation Board shall be authorized to take a secret ballot of
the employees involved, or to utilize any other appropriate
method of ascertaining the names of their duly designated
and authorized representatives in such manner as shall insure
the choice of representatives by the employees without inter-
ference, influence, or coercion exercised by the carrier. In the
conduct of any election for the purposes herein indicated the
Board shall designate who may participate in the election and
establish the rules to govern the election, or may apy2int a
committee of three neutral persons who after hearing shall
within ten days designate the employees who may participate
in the election. The Board shall have access to and have
power to make copies of the books and records of the carri-
ers to obtain and utilize such information as may be deemed
necessary by it to carry out the purposes and provisions of
this paragraph.
1 a naiennnaanecaeamemaaa ei
33a
RULES OF THE NATIONAL MEDIATION BOARD
29 CFR Parts 1200-1209
Section 1206.6 Eligibility of dismissed employees to vote.
[29 CFR 1206.6]
Dismissed employees whose requests for reinstatement on
account of wrongful dismissal are pending before proper
authorities, which includes the National Railroad Adjustment
Board or other appropriate adjustment board, are eligible to
participate in elections among the craft or class of employees
in which they are employed at time of dismissal. This does
not include dismissed employees whose guilt has been deter-
mined, and who are seeking reinstatement on a leniency
basis.
34a
REPRESENTATION MANUAL
TABLE OF CONTENTS*
PAGE
SECTION NO.
*1.0 INITIAL NMB PROCESSING ]
2.0 NOTICE OF INTEREST ]
3.0 BOARD REPRESENTATIVE’S
INVESTIGATION ]
3.1 Board Representative’s Objectives l
3.2 Intervention 2
3.3 Review & Maintenance of Loan File y
3.4 Board Representative’s Reports 2
3.401 Daily 2
3.402 Initial Report Form 2
3.5 Meeting With Representatives 3
; 3.501 General Guidelines 3
3.501-1 Method of Contact 3
3.501-2 Type of Meeting 3
.502 Meeting With Employee
Representatives 3
3.503 Meeting With Carrier Representatives 4
3.503-1 Access to Bocks and Records 4
3.503-2 Preliminary Information 4
3.503-3 Carrier Status 4
3.503-4 List of Potential Eligible Voters 5
*3.503-5 Cut-Off Date 6
4.0 DISTRIBUTION OF LIST OF
POTENTIAL ELIGIBLE VOTERS 6
5.0 PRELIMINARY DETERMINATIONS 6
5.1 Craft or Class 6
Classifications 7
5.3 Eligibility of Individuals 7
° Indicates Section amended by Board on November |, 1985.
———————
|
35a
5.301 Part Time Employees 7
5.302 Temporary Employees 8
5.303 Working in Another Craft or Class 8
5.304 Discharged Employees 8
5.305 Furloughed Employees 8
5.306 Leave of Absence 9
5.307 Probationary Employees v)
5.308 Working for Another Carrier 9
5.309 Contractor’s Employees 9
5.310 Individuals Based in Foreign
Countries 9
5.311 Retired Employees 10
5.312 Officials 10
5.313 Preponderance 10
7 a7 *
NATIONAL MEDIATION BOARD
REPRESENTATION MANUAL
Revised Edition—Effective November 1, 1985
5.0 PRELIMINARY DETERMINATIONS
The Board representative should make preliminary
determinations regarding craft or class and inclusion
of individuals on the eligibility list before evaluating
the showing of interest. In so doing the Board repre-
sentative should be guided by the following principles:
* * *
> Eligibility of Individuals
* *
5.304 Discharged Employees
Ordinarily, discharged or terminated employees
shall not be considered eligible unless the dis-
charge is being appealed through the applicable
grievance procedure or an action for reinstate-
36a
ment has been filed before a court of competent
jurisdiction. An individual shall not be considered
eligible if the grievance or court action has been
finally acted upon and the discharge has been
upheld prior to the count of ballots (see NMB
Rules, Part 1206.6).
» *. *
| incline
37a
UNITED STATES DISTRICT COURT |
EASTERN DISTRICT OF NEW YORK
88 Civ. 3163 (ILG)
~
VIRGIN ATLANTIC AIRWAYS, LTD., MARIO BATISTA,
LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO
GARCIA, JOHN AQUINO and EDGAR LAMBERTUS,
Plaintiffs,
—against—
NATIONAL MEDIATION BOARD, an agency of the UNITED
STATES OF AMERICA; LOCAL 851, International Brother-
hood of Teamsters; ANTHONY FARINA, individually and
as President of Local 851; INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS AIRLINE DIVISION; and WILLIAM
GENOESE, individually and as Director of International
Brotherhood of Teamsters Airline Division,
Defendants.
—
AFFIDAVIT OF MICHAEL DELIKAT IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
STATE OF NEW YORK )
- Soe
COUNTY OF NEW YORK )
Michael Delikat, being duly sworn, deposes and says:
1. I am a member of the firm of Baer Marks & Upham,
counsel for Plaintiffs in this matter. I submit this Affidavit
and the attached documents inm-support of Plaintiffs’ Motion
for Summary Judgment.
2. Since 1988, I have served as counsel for Plaintiff Atlan-
tic Airways, Ltd. (‘‘Virgin Atlantic’’ or ‘‘Virgin’’) in connec-
tion with the events that form the basis of this lawsuit—the
38a
representation dispute involving the fleet service employees of
Virgin Atlantic, and the lawsuit entitled Hodges et al. v. Vir-
gin Atlantic—and thus, am fully familiar with the matters set
forth herein.
3. In February, 1988, the Internationa] Brothersod of
Teamsters Airline Division (‘‘Teamsters Airline Division’’)
filed an application with the National Mediation Board
(‘“‘“NMB”’) for investigation of a representation dispute.
4. Within days after filing the Application for Investiga-
tion of Representation Dispute, Local 851 of the Interna-
tional Brotherhood of Teamsters (‘‘Local 851°’) and six
former employees of Virgin, commenced an action in the
United States District Court for the Southern District of New
York, in the matter entitled Hodges et al. v. Virgin Atlantic
Airways, Litd., 88 Civ. 1370 (LLS) claiming, inter alia, that
Virgin Atlantic, a United Kingdom Corporation offering air
service between London and the United States, had termi-
nated six employees in retaliation for their support of Union
representation. The action sought, inter alia, reinstatement of
five of the six named individuals (one of the individuals had
been reinstated prior to the commencement of the action).
5. Virgin Atlantic denied the material allegations of the
Hodges complaint, asserting that the terminations, which
occurred in the context of other employees being laid off in a
reduction force, were done for reasons having nothing to do
with union activity.
6. By commencing this action for reinstatement, Local 851
was able to obtain the necessary showing of interest to pro-
ceed to an election, as the authorization cards of the dis-
charged workers with an action for reinstatement pending
were counted.
7. After denying a request by the Hodges plaintiffs for a
preliminary injunction, the district court granted Virgin
Atlantic’s request to consolidate the trial on the merits with
the hearing on the preliminary injunction application and
ordered expedited discovery.
39a
8. Virgin Atlantic’s request for an expedited disposition of
the matter was based upon the NMB Rule that individuals
with pending actions for reinstatement were eligible to vote
and the fact that the inclusion of the four discharged individ-
uals (one of the five individuals seeking reinstatement was
ruled ineligible for reasons unrelated to the case, thereby
leaving four disputed ballots) could have an outcome deter-
minative impact on the election since the ‘‘unit’’ of employ-
ees voting was less than twenty without these four.
9. The Hodges Court set April 25, 1988 as the date for the
trial on the merits and, aware of the significance of determin-
ing the status of the discharged individuals as quickly as pos-
sible, announced that the Court would rule upon the claims
for reinstatement at the conclusion of the evidence.
10. The NMB also set April 25, 1988 as the date for count-
ing the ballots.
11. On April 19, by telex to the NMB with a copy to Local
851, Virgin Atlantic requested that the ballots of the dis-
charged individuals not be counted until such time as the
Hodges Court had determined whether or not such individ-
uals should be reinstated to their former positions of employ-
ment. A copy of Virgin’s April 19 telex is attached hereto as
Plaintiffs’ Exhibit 1.
12. By telex dated April 19, 1988 to the parties, the NMB
granted the request for postponement of the April 25 count
dated until ‘‘a later date after all questions of eligibility have
been determined.’’ A copy of the NMB’s April 19 telex is
attached hereto as Plaintiffs’ Exhibit 2.
13. The Hodges court heard evidence on April 25 and con-
cluded the trial of that action on April 26. That same day the
NMB issued yet another decision by telex announcing that it
would count ‘“‘all ballots of eligible employees’’ at 2 o’clock
p.m. on Wednesday, April 27. A copy of the NMB’s April 26
telex is attached hereto as Plaintiffs’ Exhibit 3.
14. No reference was made in the April 26 telex to the
NMB’s April 19 ruling that the count would be delayed until
40a
‘a later date after all questions of eligibility have been deter-
mined.”’
15. On April 27, 1988, at 11:30 a.m., the Hodges Court
announced its decision dismissing the claims for reinstatement
in their entirety and advised counsel that they could advise
the NMB that ‘‘by my order entered on the record this morn-
ing, the individual claims for reinstatement and backpay are
dismissed.’’ The NMB was immediately advised by telephone
and telex of this outcome. A copy of the portion of the trial
transcript announcing this decision is attached hereto as
Plaintiffs’ Exhibit 4.
16. At 2 o’clock p.m. on April 27, after again being
advised of Judge Stanton’s decision to deny the requests for
reinstatement of the four discharged individuals (as counsel
for Virgin Atlantic, 1 was present at the ballot count), the
NMB counted the ballots. Twelve ballots, including the four
in contention, were cast for the Teamsters Airline Division.
The NMB ruled that there were twenty-one eligible voters,
including the four in contention. A copy of Virgin’s April 27
telex to the NMB is attached hereto as Plaintiffs’ Exhibit 5.
17. According to the NMB'’s determination, twelve out of
twenty-one, or a majority, cast ballots for representation. If
the four ballots had not been counted, the Union would have
received eight votes out of seventeen eligible votes and would
therefore not have obtained a majority.
18. On May 2, 1988, the NMB, on the basis of the dis-
puted tally, issued a certification of the Teamsters Airline
Division as the representative for purposes of the Railway
Labor Act of the ‘‘employees’’ of Virgin Atlantic (the ‘‘Cer-
tification’’).
19. On or about October 16, 1988, Virgin Atlantic and
several of its employees commenced the instant action seeking
to set aside the Certification on the grounds that the NMB
had committed a violation of the Railway Labor Act by
including the ballots of the four non-employees in the ballot
4la
count in disregard of the Hodges Court’s ruling denying said
individuals’ claims for reinstatement.
20. Attached hereto as Plaintiffs’ Exhibit 6 is a copy of
the Notice and Rules of Election posted by Virgin Atlantic in
connection with the election.
21. Attached hereto as Plaintiffs’ Exhibit 7 is a copy of
the decision in Northwest Airlines, 14 N.M.B. 25 (1986).
22. Attached hereto as Plaintiffs’ Exhibit 8 is a copy of
the decision in Rich Airlines, 14 N.M.B. 171 (1987).
23. Attached hereto as Exhibit 9 is a copy of pp. 55-58 of
the Transcript of Motion dated February 24, 1989.
24. Attached hereto as Plaintiffs’ Exhibit 10 is a copy of
this Court’s Amended Memorandum and Order dated March
1, 1989.
25. Attached hereto as Plaintiffs’ Exhibit 11 are copies of
the district court and Ninth Circuit Court of Appeals deci-
sions in Union of Flight Attendants, Local No. 1 vy. Air
Micronesia, Civil No. 85-0125 HMF (D. Hawaii August 30,
1988), aff'd, (9th Cir. May 10, 1990).
26. Attached hereto as Plaintiffs’ Exhibit 12 is a copy of
the decision in Union of Flight Attendants, Local No. | v.
Continental Airlines, Case No. 88-3517 DT mee. (el.
August 25, 1988).
27. Attached hereto as Plaintiffs’ Exhibit 13 is a copy of
the Complaint in the instant action.
28. Attached hereto as Plaintiffs’ Exhibit 14 are copies of
the Answers and Counterclaims of Defendants Local 851 and
Teamsters Airline Division.
/s/ MICHAEL DELIKAT
MICHAEL DELIKAT
42a
Sworn to before me
this 7th day of March, 1991
/s/ RUTH D. RAISFELD
Notary Public
[NOTARY SEAL]
ee
43a
[EXHIBIT 2]
7105812780, APR 19 4:42 PM ’88
/Z\P NATIONAL MEDIATION
WILLIAM GENOESE DIR BOARD
NATIONAL AIRLINE DIVISION
IBT
15 EAST 26TH STREET SUITE 1508
NEW YORK NY 10010,
/FORM
FAX 212-966-9706 +
MICHAEL DELIKAT
COUNSEL FOR VIRGIN ATLANTIC AIRWAYS
STEPHEN KAHN
COUNSEL FOR IBT
DUE TO ELIGIBILITY QUESTIONS RAISED BY TELEX
OF APRIL 19, 1988 FROM BAER, MARKS AND UPHAM,
ATTORNEYS FOR VIRGIN ATLANTIC AIRWAYS THE
COUNT OF BALLOTS IN NMB CASE R-5768 VIRGIN
ATLANTIC AIRWAYS FLEET SERVICE EMPLOYEES
AND IBT SCHEDULED IN THE OFFICES OF THE
NATIONAL MEDIATION BOARD, WASHINGTON, DC
AT 2:00 P.M. ON MONDAY, APRIL 25, 1988 IS POST-
PONED. BALLOTS RECEIVED BY THE BOARD IN
NMB CASE R-5768 WILL BE IMPOUNDED AT 2:00 P.M.
ON MONDAY, APRIL 25, 1988 AND COUNTED AT A
LATER DATE AFTER ALL QUESTIONS OF ELIGIBIL-
ITY HAVE BEEN DETERMINED. YOU WILL BE
INFORMED OF THE NEW DATE OF COUNT WHEN IT
HAS BEEN SCHEDULED. ADDITIONALLY YOU MAY
IF YOU WISH BE PRESENT WHEN THE BALLOTS ARE
IMPOUNDED. JOINT KAHN, DELIKAT AND GENO-
ESE. MAIL COPY TAIT, BOMPHY, LIEBMAN, OPPEN-
BERG AND STROM.
CHARLES R. BARNES, EXEC DIR, NATIONAL
MEDATION BOARD
TLX 89-2710 (DR/AK237)
[EXHIBIT 4]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
88 Civ. 1370 LLS
>
RICHARD HODGES, et al.,
Plaintiffs,
Vv.
VIRGIN ATLANTIC AIRWAYS, LTD.,
Defendant.
April 27, 1988
11:00 a.m.
Before:
HON. LOUIS L. STANTON,
District Judge
>
APPEARANCES
STEPHEN H. KAHN,
Attorney for Plaintiffs
BAER MARKS & UPHAM
Attorneys for Defendant
MICHAEL DELIKAT,
Of Counsel
(Trial resumed)
THE COURT: The court set this down today for announce-
ment of its findings and decision, and these findings and con-
clusions may later be amended or supplemented by the court,
but not in such a manner as to change their basic tenor.
45a
Either side may submit proposed amendments or supplemen- ©
tal findings or conclusions within ten days.
From my observation of the witnesses, their testimony,
documentary evidence and the submission of counsel, I find
that the preponderance of the credible evidence establishes
that:
1. Richard Hodges, Charles L. James, William Nicholson,
Juan Plaza and Jose Soto are individuals residing in the State
of New Jersey. They were employed by defendant Virgin
Atlantic Airways, Ltd. in its Virgin Atlantic Cargo Division
at its Newark, New Jersey facility in the position of freight
agents until their employment was terminated on or about
February 6, 1988. One or two weeks after that plaintiff Soto
was rehired.
2. Plaintiffs James and Nicholson were hired in July and
August 1987 to help Virgin Atlantic with its then increasing
volume of work. In August 1987 Virgin Atlantic was
expanded to a 24 hour operation. Its new customer, Summit
Airlines, needed service around the clock and Virgin Atlantic
used the opportunity to reschedule some of its other work as
well.
One of the reasons William Nicholson as hired was his
prior experience with Summit work during his earlier employ-
ment with Serv Air. Nicholson worked the night shift, and 50
to 60 percent of this time was spent on Summit work.
3. Reports and rumors of union activity were frequent at
Virgin Atlantic. The major carriers are unionized so discus-
sion of the topic of union organization was not unusual.
Management was aware of that fact and was not disturbed by
it although management did not favor unionization.
4. In November or December 1987 Jose Soto talked with
several of the other employees about joining a food handlers
union. No attempt was made to speak secretly. The talk died
down quickly.
Several of the employees believed that Colin Tubb, a
Virgina Atlantic officer, had summoned Julio Rosa to his
office and asked him about the union, asked him which
Ieee
46a
employees were involved and why they felt a union might be
desirable.
Nicholson testified that that was perceived as a threat, but
there is no evidence that whatever Tubb said on that occasion
discouraged or dissuaded anyone from being interested in the
Teamsters organizing effort in January 1988.
5. The Teamsters effort to organize in January 1988 was
discussed openly among the employees who made no effort
to hide their actions. Indeed, Nicholson discussed it freely
with two co-employees whom he believed to be supervisors.
There is no evidence of any discouragement or interference
by any member of management at any time with respect to
that organizational effort except for a single speech given by
Angelo Pusateri to a group of eight to ten employees at the
warehouse on February 4, 1988.
6. When Pusateri spoke to the men on February 4 he was
aware of the following facts:
A. He knew that between August and the end of Decem-
ber 1987 Virgin Atlantic had lost three of its five largest out-
side customers. It had lost SMB, which because of an air
crash was not using Newark Airport anymore; it had lost
Highland Express which was in an English equivalent of
Chapter XI] proceedings; and it had lost UPS which had
obtained customs clearance to handle overseas air freight out
of its own facility. Of Virgin Atlantic’s previous five major
customers, this left only Summit and Air France.
Summit itself had been the biggest of Virgin Atlantic’s out-
side customers, responsible for a third of total cargo tonnage
Virgin Atlantic handled. Summit was billed monthly and by
January 15, 1988 it was approximately $60,000 in arrears.
B. He knew that the Newark operation had started incur-
ring losses in October, that it was necessary to cut expenses
and that payroll should be reduced by 10 employees, a point
on which Pusateri had been stalling because if he kept the
Summit business he would need those employees to handle it.
ieee
47a
C. He knew that the Summit business was in peril. He had
learned on that morning of February 4 that Summit intended
to change a different cargo agent within a short time, and he
had responded that Virgin Atlantic would stop handling Sum-
mit’s business at the end of the following day if Summit did
not -make payment. He had done that in the hope that Sum-
mit would make that payment in order to continue its busi-
ness and facilitate its transfer to its new agent. However, on
February 4 Pusateri had no answer from Summit and did not
know what they would do.
And D, he knew that the employees at the warehouse were
upset about the delays and the computation of their overtime
and did not understand their shifts and benefits. He had been
told that the situation was ripe for a union.
Although he had no knowledge of any particular union
activity, he knew that a teamster representative had been
talking to the men on the premises recently.
At the suggestion of Mr. Piol, Mr. Pusateri spoke to the
group of men who were in the warehouse on February 4. He
said that he had heard there were a lot of problems in the
terminal, that they were unhappy with the pay and thought
the company was cheating them on overtime and did not
understand the shifts or their benefits. He explained person-
nel changes in the company. Mr. Tubb was gone and Carmel
Marnel, the new personnel manage., was preparing a manual
listing the benefits which Pusateri pointed out were expensive
and he felt the men would appreciate when they understood
them.
He said he understood there was talk about a union. He
said that he believed a union would not solve their problems,
that they could form a committee and their spokesman could
come to him and that he had been a union shop steward and
knew how that worked and didn’t think it was so great.
He said that if faced with outrageous demands from a
union, the company had the option of farming out the busi-
ness as it had done when Virgin Atlantic was started.
j “ae ;
48a
He said they were having payment problems with Summit
but that he did not expect major layoffs and hoped for new
business and that they could work the problem out.
He also pointed out that they paid a good salary scale,
higher than their competitor, CDG.
He asked what would make the company run smoother.
Julio Rose mentioned lockers, improved heating and a micro-
| wave oven. Pusateri said that he would look into it.
Mr. James didn’t find this a satisfactory answer because
Pusateri didn’t say when anything would be done.
Pusateri maintains that he made no threat to terminate
anyone who affiliated with a union. And in light of his union
background and my observation of him as a witness during a
| trial day of direct and cross-examination, I credit that testi-
mony.
However, his statement about farming out the work was
interpreted as a threat to their employment by at least some
of the employees. Nevertheless, all of the employees disre-
garded the threat and continued undeterred with their union
activities with the single exception of Julio Rosa who asked
for the return of his union authcrization card. In fact,
Hodges said to James that Pusateri was full of baloney and
James agreed.
7. The following day Pusateri learned that no payment had
been made by Summit and decided that it was necessary to
eliminate the night shift and discharge ten people as well as
cutting their costs. He instructed the duty managers to dis-
charge ten people.
It was not Pusateri who selected who should be cut. In
fact, the discharge of ten people was excessive and left Virgin
Atlantic unable to handle the work.
On the managers’ complaints that too many had been let
go, Jose Soto was hired a week or two later before the com-
mencement of this suit and Michael Wilson and Roland
Casey have since been rehired.
8. Alistair Bell and the other duty managers decided who
would be discharged based on performance, attendance and
|
|
|
|
i
49a
seniority. Specifically the plaintiffs were discharged for the
following reasons:
Charles James because he had arrived late and was absent
without notification and twice left from work without telling
anyone and without punching out.
Jose Sote because he had some absenteeism, although it
was not as bad as some of the others.
Richard Hodges because he had made inacurrate freight
counts and weighings which created some problems. He had
arrived late on several occasions. He had been reduced from
checker to cargo agent. Once he had been sent home from
work for refusing to help with work as requested.
William Nicholson because of his history of lateness. He
was part of the third shift, which was to be eliminated. His
overall performance was poor, and he had been primarily
hired in connection with Summit work.
Juan Plaza had a history of no shows, especially around
weekends. He had no home telephone so he could not be
reached when they needed extra help and did not call in.
Mr. Bell was unaware of any union activity by any of the
named plaintiffs and the presence or absence of such activi-
ties by any person on the list played no part in Bell’s selec-
tion of their names. There is no evidence that such activities
were discussed by Bell, Pauletti and Williams in deciding who
should be discharged.
9. Mr. Kane was a leader of the Teamsters organizing
drive. Mr. Butters handed out a card. Mr. Insalacco, Mr.
Velazquez and Mr. Spencer all favored the union. None of
them were laid off.
Jose Soto was the leader of the food workers organization
d-ive and although he was laid off, he was the first rehired
before this suit was commenced.
On the other hand, there is no evidence of particular union
organizing activity on the parts of Michael Wilson, Roland
Casey, Mary Insalacco, Elizabeth Robles, all of whom were
laid off. There is no evidence that any employees who were
retained had worse performance records than those who were
50a
fired. Thus, there is no overall pattern of union discrimina-
tion which emerges from the ten discharges.
On those facts I reach the following conclusions:
1. The individual plaintiffs were not fired for union
activity.
2. Even if union considerations had entered into the deci-
sion to terminate the employees, the decisions would have
been made in any event and reinstatement would not be
required under the mixed motive doctrine.
3. Mr. Pusateri’s speech to the men was not an unlawful
solicitation of grievances. The employees suggested lockers,
improved heating and a microwave oven. Pusateri did not
promise to remedy any of their grievances but only said that
he would have the situation looked into.
4. Mr. Pusateri’s statement that Virgin Atlantic had the
option to farm business out as had been done in the past,
however innocently intended, was reasonably interpreted as a
threat affecting the continued employment of the labor force.
Either separately, or together with statements made to him by
Colin Tubb in connection with the food handlers union or-
ganization, these statements were sufficient to persuade Julio
Rosa to request return of his authorization card, and whether
separately or together, the effect of those statements was to
influence Mr. Rosa, and that is chargeable to the employer.
Plaintiff Soto has standing to raise that point.
Accordingly, the plaintiffs’ claims for reinstatement and
‘ for back wages are dismissed; the application for an order
that a corrective notice be posted is granted.
The parties are directed to submit a proposed form of
judgment on consent, if possible. If the parties cannot agree
as to the form of the notice or the duration or location or
locations where it should be posted, they may apply to the
court within 15 days for its resolution of such matters.
Does either counsel have anything further?
MR. DELIKAT: Yes, your Honor, thank you.
,
6 cnn
Sla
I have prepared a short form order which partially
embodies your findings of fact and conclusions of law, the
reason being I am about to catch a plane for Washington for
the ballot count at 2:00 today.
1 would propose to show that to Mr. Kahn and propose to
submit that to the court.
I will read it. It says:
Proposed Order.
Whereas, the trial on the merits of within action was held
on April 5 and 26, 1988;
Whereas the court has this day announced its findings of
fact and conclusions of law which may hereafter be amended
or supplemented by the court;
Now therefore it is hereby ordered that the individual
claims for reinstatement of Plaintiff Hodges, Nicholson
James and Plaza are hereby dismissed in their entirety, and it
is further ordered that the parties hereto shall take such other
actions necessary to effectuate the conclusions of law reached
herein.
I think that does allow for the submission of the order and
the posting of the notice that your Honor has stated in his
conclusions, and I would ask the indulgence of the court if
Mr. Kahn would agree to that language, if we could get an
order signed at this point given the exigencies of the circum-
stances.
MR. KAHN: Your Honor, I would respectfully oppose the
proposed order. | certainly would not object to Mr. Delikat
advising the NMB that you have dismissed the discharge
claims, in fact, I will speak to the NMB or at least I will try
to speak ‘to the NMB officials before 2:00 and I will advise
them of the same, that you have done it, that nobody is
going to shilly-shally about it.
But that proposed order really doesn’t fairly encompass
your conclusions or findings or your order and I don’t think
that a document of that type which really serves only the
convenience of the plaintiff in this suit should be entered.
I have another comment on another subject.
52a
THE COURT: Mr. Delikat, on your proposed order, I think
you are free to advise the NMB or anybody else of the fact
which is that by my order entered on the record this morn-
ing, the individual claims for reinstatement and back pay are
dismissed.
At least one problem with your proposed order, probably
easily remedied, is that it should provide, although my find-
ings may be amended or supplemented, they may not be
changed in substance. You had something else, Mr. Kahn.
MR. KAHN: Two matters, your Honor.”
Perhaps in trying to take notes and follow you I didn’t
hear—fhere were proposed findings with regard to a company
union being formed or Mr. Pusateri attempting to establish
an in-house union and deal with a minority union. Was that
encompassed in the findings, your Honor?
THE CourT: I think those are words I never used in my
findings. 1 found what he said and | reached conclusions,
part of it violated the act.
MR. KAHN: I would like to apply for an extension of the
time to proposed amendments, the reason being that I don’t
think we will have a transcript back in time to make pro-
posed amendments. It was difficult to write down everything
you said.
THE Court: I don’t think the time is critical. It probably
makes life easier for you, Mr. Delikat.
Mr. DELIKAT:. I have no objection.
THE CourT: How long would you like?
MR. KAHN: Perhaps 20 days, your Horor.
THE COURT: No problem.
MR. KAHN: Could we extend our time to reach a notice,
perhaps, to 20 days also?
THE CouRT: Surely.
MR. KAHN: Thank you.
THE COURT: Court is adjourned.
53a
[EXHIBIT 5]
62153590
62153590ESL UD
/JULIBEAR NYK
DATE: APRIL 27, 1988
TO: MR. CHARLES BARNES, EXECUTIVE DIRECTOR
NATIONAL MEDIATION BOARD, WASHINGTON,
pA.
RE: NMB CASE NO. 4-5768. VIRGIN ATLANTIC AIR-
WAYS
DEAR MR. BARNES:
PLEASE BE ADVISED THAT AT 11:20 A.M THIS
DATE, JUDGE STANTON, THE UNITED STATES DIS-
TRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, ANNOUNCED FINDINGS OF FACT AND
CONCLUSIONS OF LAW ORDERING THE INDIVIDUAL
CLAIMS FOR REINSTATEMENT OF PLAINTIFFS
HODGES, NICHOLSON, JAMES AND PLAZA BE DIS-
MISSED IN THEIR ENTIRETY.
VERY TRULY YOURS,
BAER MARKS & UPHAM
ATTORNEYS FOR VIRGIN ATLANTIC AIRWAYS, LTD.
BY:
MICHAEL DELIKAT
62153590ESL UD
54a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CIV. No. 88-3163 (Judge Glasser)
>
VIRGIN ATLANTIC AIRWAYS, LTD., et al.,
Plaintiffs,
v.
NATIONAL MEDIATION BOARD, and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION, et al.,
Defendants.
—
DECLARATION OF CHARLES R. BARNES EXECUTIVE
DIRECTOR OF THE NATIONAL MEDIATION BOARD
Charles R. Barnes hereby dec!ares and states as follows:
1. I am the Executive Director of the National Mediation
Board (Board) and I have held that position continuously
since May, 1986. In my capacity as Executive Director, I am
responsible for and oversee all representation matters arising
under the Railway Labor Act (Act) which come before the
Board. I am personally familiar with the regulations, policies,
procedures and practices of the Board in connection with rep-
resentation proceedings. From 1975 to 1986 I served at the
NMB in the capacity of ~MeGator”, **Head Mediator’’, and
‘*Regional Head Mediator’’
2. The Executive Director is the National Mediation
Board’s chief executive officer and official custodian of the
Board’s files and records, including those pertaining to all
representation cases. This declaration is based on my review
of those records, as well as on my personal knowledge.
3. On February 17, 1988, the International Brotherhood of
Teamsters Airline Division (IBT) filed an application dated
RcRREETarerermae eee
55a
February 8, 1988 with the Board pursuant to Section 2, Ninth
of the Act, seeking an investigation of an asserted representa-
tion dispute among the fleet service employees at Virgin
Atlantic Airways (Virgin Atlantic). (Attachment 1). This
investigation was assigned NMB Case No. R-5768. (Attach-
ment 2).
4. On February 22, 1988, the Board issued a telegram to
Virgin Atlantic and the IBT advising them that Board Repre-
sentative (Mediator) Gale L. Oppenberg would commence the
investigation of NMB Case No. R-5768 on March 1, 1988 at
Virgin Atlantic’s New York City office. (Attachment 3). In
that telegram, the Board also requested Virgin Atlantic to
furnish the Board with a list of potential eligible voters for
Virgin Atlantic’s fleet service employees.
5. On March 1, 1988, Board Representative Gale L.
Oppenberg arrived at the office of the Carrier’s attorneys to
commence the field investigation in R-5768. After review of
the employee list provided by Virgin Atlantic, the IBT sub-
mitted a copy of a complaint and supporting documentation
filed on February 29, 1988, in the United States District
Court for the Southern District of New York. (Attachment
4). Said complaint sought, among other things, ‘‘immediate
and full reinstatement to Richard Hodges, Charles L. James,
William Nicholson, Juan Plaza and Michael Wilson to their
former positions . . .”’ at Virgin Atlautic.
6. During the March 1, 1988, meeting in New York City
Board Representative Gale L. Oppenberg notified Virgin
Atlantic and the IBT that their challenges and objections to
the list of potential eligitle voters furnished by Virgin Atlan-
tic in NMB Case No. R-5768 were due no later than March
11, 1988.
7. On March 11, 1988, the Board received a letter from
Virgin Atlantic objecting to the inclusion as potential eligible
voters of Messrs. Hodges, James, Nicholson, Plaza, Soto and
Wilson. (Attachment 5). Virgin Atlantic also requested that
the Board ‘‘stay its processing of the application unti! the
District Court makes a ruling on plaintiffs’ allegations’’.
56a
8. On March 14, 1988, the Board received a letter from the
IBT requesting that Messrs. Hodges, James, Nicholson,
Plaza, Soto and Wilson be included as potential eligible vot-
ers pursuant to Section 5.304 of the Board’s Representation
Manual. (Attachment 6). The letter also alleged ‘‘pervasive
carrier interference with the election process’’ and requested
an election by Laker ballot.
9. On March 15, 1988, counsel for the IBT telephoned the
NMB to withdraw, while reserving the right to raise the mat-
ter at a later dated, the IBT’s previous request received on
March 14, 1988 for an election by Laker ballot. IBT stated
this decision was based on the fact that it was more impor-
tant to have a speedy election than to spend the time needed
by the Board to develop a record on the question of carrier
interference and a Laker ballot.
10. On March 21, 1988 the NMB issued a telegram, stan-
dard in form, finding ‘‘a dispute to exist in R-5768’’ and
authorizing a mail ballot election, the standard agency elec-
tion procedure. The term ‘‘box’’ used in this telegram was an
obvious typographical error and was not applied. (Attach-
ment 7). The February 26, 1988 ‘‘cut-off date’’ directed by
this telegram solely precludes individuals who were newly
hired into the craft or class subsequent to that date from
being eligible to vote. It does not preclude the NMB’s consid-
eration of other eligibility evidence which may have devel-
oped subsequent to the ‘‘cut-off date.’’
11. On March 25, 1988 Virgin Atlantic submitted to the
NMB address labels covering all employees on the list of
potential eligible voters with the exception of three individ-
uals the carrier stated were ‘‘no longer eligible.’’ (Attachment
8).
12. On March 29, 1988 Virgin Atlantic submitted address
labels for the three individuals not submitted on March 25,
1988 while ‘‘reserving all rights’’ that said individuals were
‘‘ineligible to vote.’’ (Attachment 9).
57a
13. By letter dated March 30, 1988 (Attachment 10) NMB
Mediator Oppenberg transmitted the ‘‘Official List of Eligi-
ble Voters’’ as well as the Notice and Rules of Election in
NMB Case No. R-5768 to Virgin Atlantic and the IBT. Medi-
ator Oppenberg’s letter notified the participants in R-5768,
that Messrs. Hodges, James, Nicholson, Plaza and Wilson
were determined to be ‘“‘eligible voters’’ pursuant to NMB
Representation Manual Section 5.304 due to their pending
‘faction for reinstatement’’. The list of eligible voters also
reflected the fact that one of the individuals seeking reinstate-
ment with Virgin Atlantic, Jose Soto, had been recalled to
work. An appeal deadline of April 11, 1988 was specified. In
addition, Mediator Oppenberg’s letter notified the partici-
pants that the ballots would be mailed on April 1, 1988 and
counted on April 25, 1988 as specified on the official Notice
and Rules of Election. Consistent with established NMB pol-
icy, Virgin Atlantic was requested to post the Notice and
Rules of Election on carrier bulletin boards.
14. The NMB’s official Notice and Rules of Election uti-
lized in R-5768 is standard in form and content. (Attachment
11). Consistent with NMB policy, the date for the ‘“‘COUNT
OF BALLOTS’” is specified on the first page, which in this
case was April 25, 1988. The election in R-5768 was by stan-
dard mail ballot with the ballots mailed on Friday, April 1,
1988 and directed to be counted on Monday, April 25, 1988.
This election period is quite within the NMB’s customary
election duration. At the time the election period and count
date were established the NMB was not aware of any antici-
pated date or dates for the resolution of the court case relat-
ing to the reinstatement of the five discharged employees
found eligible by Mediator Oppenberg.
15. On April 11, 1988 the NMB received a letter from Vir-
gin Atlantic requesting the deletion of Ms. Rapczynski, Ms.
Quevedo and Mr. Ruiz from the ‘‘election eligibility list.”’
(Attachment 12).
16. On April 15, 1988 Mediator Oppenberg ruled by tele-
gram that Ms. Rapczynski, Ms. Quevedo and Mr. Ruiz were
iit cual
58a
ineligible. (Attachment 13). An appeal deadline of April 22,
1988 was provided.
17. On April 19, 1988 the NMB received a telegram from
Virgin Atlantic stating that ‘‘on April 25, Judge Stanton will
hold a final trial on the merits and will determine whether
said individuals were discharged in violation of the RLA.’’
The telegram also requested the NMB to take various steps to
revise established NMB procedures so that the eligibility of
Messrs. Hodges, James, Nicholson, Plaza and Wilson would
be determined at some point subsequent to the official count
date of April 25, 1988 if the Court had not ruled by then.
(Attachment 14).
18. On April 19, 1988 the NMB received a telegram from
Virgin Atlantic asserting that Mr. Michael Wilson was ineligi-
ble to vote. (Attachment 15). Mr. Wilson was one of the
individuals named in the reinstatement action involving Vir-
gin Atlantic but he was subsequently recalled to work and
then, according to the carrier’s letter he resigned ‘‘for a sec-
ond time.’’
19. On April 20, 1988 the NMB issued a telegram which
advised the participants in R-5768 that ‘‘ballots received by
the Board. . . will be impounded at 2:00 p.m. on Monday,
April 25, 1988 and counted at a later date after all questions
of eligibility have been determined.’’ (Attachment 16). This
telegram did not change the official count date of April 25,
1988 but, rather, provided for the preservation of the eligibil-
ity conditions as they existed on that date until the NMB
could attend to the eligibility issues raised regarding Mr.
Michael Wilson and other possible eligibility matters the
agency was unable to attend to during the week of April 18,
1988. Ordinarily such matters would have been resolved prior
to the April 25, 1988 count date but from April 18, 1988 to
April 22, 1988 the entire NMB leadership and mediators were
attending a special agency conference in Quebec, Canada.
The necessary agency decisionmakers similarly were unavail-
able on Saturday, April 23 and Sunday, April 24 preceding
the count date.
59a
20. On April 26, 1988 the NMB issued a formal published
decision, 15 NMB 170, which had been personally approved
in writing by the Members of the Board in accordance with
customary agency policy. (Attachment 17). Said decision
reflected a consistent application of established NMB policy
with regard to precluding changes in the official count date.
The NMB’s determination that ‘‘the status quo as it existed
on the original count date must be preserved”’ is fully consis-
tent with my experience over the years as well as my under-
standing of standard agency practice.
21. On April 26, 1988 the NMB received a telegram from
Virgin Atlantic requesting that ‘‘the ballots not be counted
until the court rules’. (Attachment 18).
22. On April 26, 1988 the NMB issued a telegram to Vir-
gin Atlantic and the IBT containing the full text of the April
26, 1988 decision published at 15 NMB 170. (Attachment 19).
23. On April 26, 1988 the NMB issued a telegram confirm-
ing that the ballot count physically would take place in
Washington, D.C. on April 27, 1988. (Attachment 20).
24. On April 26, 1988 counsel for Virgin Atlantic and the
IBT each called the NMB offices concerning the status, date
aud time of the ballot count in R-5768. Hearing Officer
David Strom took these phone calls. After inquiry, counsel
for Virgin Atlantic was advised that any unresolved eligibility
decisions would be made consistent with the Board proce-
dures including the NMB’s Findings at 15 NMB 170. Conver-
sation with counsel for the IBT pertained only to the date
and time of the ballot count in R-5768.
25. On April 27, 1988 the ballots in NMB Case No. R-
5768 were opened, and counted. Ballots were received from
12 of the 21 eligible voters and all of these ballots were valid
and cast for the IBT. The NMB April 27, 1988 Report of
Election Results confirms these results. (Attachment 21).
Consistent with the NMB’s ruling in 15 NMB 170 (Attach-
ment 17), Michael Wilson was removed from the list of eligi-
ble voters because it was reported to the NMB that prior to
60a
2:00 p.m., April 25, 1988: 1) he had been dismissed from the
reinstatement action involving Virgin Atlantic; and 2) he had
voluntarily resigned from Virgin Atlantic, after being rehired,
on March 14, 1988. .
26. On April 28, 1988, the NMB received a telegram from
Virgin Atlantic apparently sent on April 27 stating that the
court would rule in the ‘‘Hodges’’ case ‘‘this morning’’ and
noting various matters concerning eligibility and the count of
ballots. (Attachment 22).
27. On April 28, 1988 the NMB received a telegram from
Virgin Atlantic apparently sent on April 27 stating that the
claims for reinstatement of Messrs. Hodges, Nicholson,
James and Plaza had been ‘‘dismissed in their entirety.’’
(Attachment 23).
28. On May 2, 1988, the NMB issued a ‘‘Certification’’ in
R-5768, 15 NMB 179, following approval by the Members of
the Board. (Attachment 24). Said Certification officially
declared that the IBT had been ‘‘duly designated and autho-
rized to represent for the purpose of the Railway Labor Act,
as amended, that craft or class of Fleet Service Employees,
employees of Virgin Atlantic Airways.’’
29. Copies of the NMB May 2, 1988 Certification in R-
5768 were sent to Virgin Atlantic and the IBT by the NMB’s
transmittal letter dated May 2, 1988. (Attachment 25).
30. On June 24, 1988 the NMB received a transmittal letter
dated June 22, 1988 from Virgin Atlantic as well as an
attached letter dated May 20, 1988. (Attachment 26). The
May 20, 1988 letter- stated that the NMB should not have
counted the four ballots associated with the litigation before
Judge Stanton.
31. On June 24, 1988 the NMB advised Virgin Atlantic
that the issues raised in the Carrier’s May 20, 1988 letter pre-
viously had been brought to the Board’s attention and
resolved by the NMB’s decision of April 26, 1988. (Attach-
ment 27).
6la
32. The Board’s ‘‘Representation Manual’’ conspicuously
provides in a ‘‘Notice’’ on the cover page that the ‘‘manual
provides general procedural guidance to the Board’s staff
with respect to the processing of representation cases’’ and
that its provisions are ‘‘neither obligatory’? on the Board
‘‘nor do they constitute the exclusive procedure for the
Board’s investigation of representation matters.’’ Other appli-
cable or potentially applicable portions of the Manual are
included herein. (Attachment 28).
33. On October 31, 1988 the NMB received a copy of an
“JUDGMENT AND ORDER”? in Richard Hodges, et al. v.
Virgin Atlantic Airways, Ltd. which was signed by Judge
Stanton on June 8, 1988 and ‘‘FILED”’ on June 9, 1988.
(Attachment 29). This document states that the claims of
Messrs. ‘‘Hodges, Nicholson, James, Plaza and Wilson are
hereby dismissed in their entirety’’. In addition, the Court
found that a ‘‘representative’’ of Virgin Atlantic had ‘‘vio-
lated Section 2, Third and Fourth of the Railway Labor
Act.”’
34. The documents attached hereto are true copies of those
portions of the official files of the Board referred to as
**Attachments’’ in this declaration.
I declare under penalty of perjury that the foregoing is true
and correct.
Executed on December 14, 1988, in the City of Washing-
ton, the District of Columbia.
/s/ CHARLES R. BARNES
Charles R. Barnes
Executive Director
National Mediation Board
62a
ATTACHMENT 1 Form NMB3 aproved.
OMB No. 3140-0002
NATIONAL MEDIATION BOARD
APPLICATION FOR INVESTIGATION
OF REPRESENTATION DISPUTE
TO THE NATIONAL MEDIATION BOARD,
Washington, D.C. 20572
A dispute has arisen among the employees of VIRGIN
ATLANTIC AIRWAYS as to who are the representatives of
these employees designated and authorized in accordance
with the requirements of the Railway Labor Act. The under-
signed, one of the parties to the dispute, hereby requests the
National Mediation Board to investigate this dispute, and to
certify the name or names of the individuals or organizations
authorized to represent the employees involved in accordance
with Section 2, Ninth, of the Act.
Parties to dispute
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
AIRLINE DIVISION ~
(Petitioning organization or representative)
Craft or class of employees involved
If more than one craft or class, \ Estimated
list separately \ Number of Employees
1. FLEET SERVICE \ 22
Evidence of representation \
This application is supported by (check, applicable box):
L\ At least a majority, if the employees are represented.
| \
) ix At least 35%, if the employees are unrepresented.
63a
Signed at NEW YORK this 8 day of FEBRUARY, 1988
Name /s/ WILLIAM F. GENOESE
(Signature of applicant)
WILLIAM F. GENOESE
Title DIRECTOR, AIRLINE DIVISION
64a
ATTACHMENT 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
88 CIV.
>
RICHARD HODGES, CHARLES L. JAMES, WILLIAM
NICHOLSON, JUAN PLAZA, JOSE SOTO, MICHAEL
WILSON and LOCAL 851, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS,
Plaintiffs,
—against—
VIRGIN ATLANTIC AIRWAYS, LTD.,
Defendant.
>
VERIFIED COMPLAINT AND JURY DEMAND
Plaintiffs, by their attorney Stephen H. Kahn, complaining
of Defendant Virgin Atlantic Airways, Ltd. allege as follows:
JURISDICTION AND VENUE
1. The jurisdiction of this court is invoked under the Railway
Labor Act (‘‘RLA’’), 45 U.S.C. § 151 ef. seq. and the Fed-
eral Aviation Act, 49 U.S.C. § 1371 (k)(4).
2. Venue lies in the Southern District of New York where
Defendant has a place of business.
NATURE OF ACTION
3. This is an action for injunctive and other equitable relief,
including back wages and reinstatement, to restrain Defen-
dant from engaging in, and continuing to engage in, wrong-
ful and unlawful conduct violative of its employees’ rights of
* * * ”
self-
65a
PARTIES
4. Richard Hodges, Charles L. James, William Nicholson,
Juan Plaza, Jose Soto, and Michael Wilson (the ‘‘Individual
Plaintiffs’’) are individuals residing in the State of New Jer-
sey. The Individual Plaintiffs were all employed by Defen-
dant Virgin Atlantic Airways, Ltd. (‘‘Virgin Air’’) in its
Virgin Atlantic Cargo Division at its Newark, New Jersey
facility in the position of freight agents until their employ-
ment was wrongfully terminated on or about February 6,
1988.
5. Plaintiff Local 851, International Brotherhood of Team-
sters (‘‘Union’’), an unincorporated association, is a labor
organization with offices in Valley Stream, New York.
6. Virgin Air, a corporation, is a common carrier by air
engaged in interstate commerce within the meaning of RLA
Title II, § 201, 45 U.S.C. § 181, and is subject to the general
duties of Title 1, § 2, of said Act, 45 U.S.C. § 152.
7. Virgin Air employs approximately twenty-two employees,
excluding managerial employees and office clericals, at its
Newark cargo-handling facility.
STATEMENT OF CLAIM
8. In late December, 1987, a union which upon information
and belief is named the United Food and Commercial Work-
ers Union, commenced an organizing campaign among the
freight agents at Virgin Air’s Newark Facility.
9. In late December, 1987, Virgin Air’s Vice President, Colin
Tubb, threatened to fire any employee who supported a
union or attempted to unionize Virgin Air’s employees.
Shortly thereafter, in response to Virgin Air’s threats, the
Organizing drive was abandoned.
10. In January, 1988, the Plaintiff Union began an organiz-
ing campaign among the employees of Virgin Air at its New-
ark terminal. As part of its campaign, the Union met with
66a
employees and requested that they sign cards authorizing the
Union to both represent them and to request the National
Mediation Board to conduct an election for representation
purposes in accordance with the Railway Labor Act.
11. In mid-January, 1988, more than one-half of the non-
managerial, non-office clerical employees employed by Virgin
Air at its Newark facility signed union authorization cards.
12. Management officials employed by Virgin Air at its New-
ark facility knew of the Union’s organizing campaign at least
as early as January 20, 1988.
13. Beginning in January, 1988, Virgin Air engaged in a
widespread and pervasive course of conduct to interfere with,
influence and coerce its employees; to prevent them from des-
ignating the Union as their representative; and to deny or
question the right of its employees to join, organize or assist
in organizing the labor organization of their choice. Such
conduct has included the following acts:
A. The president of Virgin Air’s Atlantic Cargo North
American Division held a captive audience speech among
some of its employees during which he threatened to dis-
charge Union adherents, threatened to close Virgin Air’s
Newark facility in order to discourage unionization; threat-
ened to transfer all of Virgin Air’s work to another
employer; and promised to improve wages and benefits if
employees would abandon their support of the Union or any
other labor organization.
B. Various Virgin Air officials individually interrogated
employees in order to discover their attitudes towards union-
ization and to coerce employees to abandon their support of
the Union.
C. Various Virgin Air officials engaged in surveillance of
employees and created the impression of surveilance in order
to discourage employees from freely designating any union as
their representative.
67a
14. Plaintiffs Hodges, James, Nicholson, Plaza, Soto and
Wilson, all of the Individual Plaintiffs, were discharged from
their employment with Virgin Air on or about February 6,
1988 because they supported the Union and in fulfillment of
the threat to fire union adherents. Soto, alone among the
Individua] Plaintiffs, has subsequently been recalled to
employment.
15. The Railway Labor Act provides in relevant part at Sec-
tion 2, Third and Fourth, 45 U.S.C. § 152, Third and
Fourth:
Representatives . . . shall be designated by the respec-
tive y:arties without interference, influence or coercion
by either party over the designation of representatives by
the other; and neither party shall in any way interfere
with, influence or coerce the other in its choice of repre-
sentatives. Section 2, Third
No carrier, its officers, or agents shall deny or in any
way question the rights of its employees to join, orga-
nize, or assist in organizing the labor organization of
their choice and it shall be unlawful for any carrier to
interfere in any way with the organization of its employ-
ees. . . Or to influence or coerce employees in an effort
to induce them to join or remain or not to join or
remain members of any labor organization . . . Section
2, Fourth
16. The acts and conduct by Virgin Air alleged above vio-
lates RLA Section 2, Third and Fourth, RLA § 152, Third
and Fourth.
17. As a proximate result of Virgin Air’s wrongful conduct:
A. The Individual Plaintiffs and their co-workers at Virgin
Air’s Newark facility are fearful of losing their jobs because
of the organizing campaign.
B. The Individual Plaintiffs and their co-workers at Virgin
Air’s Newark facility have been chilled in the exercise of their
68a
rights to organize and freely choose a collective bargaining
representative.
C. Plaintiff Union’s organizing campaign has stalled.
D. The Individual Plaintiffs will be deprived of their oppor-
tunity to vote in the election which it is anticipated the
National Mediation Board will conduct in the near future,
this permanently depriving them of their statutory right to
express their choice of representative.
E. The Individual Plaintiffs have been deprived of their live-
lihoods and will not be able to provide the necessaries of life
for themselves and their families.
18. Virgin Air’s conduct has caused irreparable and continu-
ing harm which cannot be remedied in an action at law or an
administrative proceeding; and greater injury will be inflicted
on the Individual Plaintiffs and the Union by the denial of
injunctive relief than could possibly be inflicted upon Virgin
Air by granting such relief.
WHEREFORE Plaintiffs request the following relief:
1. That this Court issue a preliminary injunction: A) enjoin-
ing and restraining Defendant, its officers, representatives,
agents, servants, employees, and all persons acting in concert
or participation with them pending final disposition of the
matters in this lawsuit, from in any manner interfering with,
influencing or coercing its employees in their choice of repre-
sentative by any means including: threatening employees with
economic or other reprisal because of their participation in
activities on behalf of any union; interrogating employees
about union activities; engaging in surveilance, or creating
the impression or such surveilance of union activity; threaten-
ing plant closure to discourage union activity; soliciting griev-
ances or expressions of employee dissatisfaction, or
promising benefits to discourage union activity; and interfer-
ing with or influencing organizational activity or membership
in the Union by laying off, discharging, or in any other man-
ner terminating the employment of employees in order to dis-
courage them from participating in union activity; B)
69a
ordering Defendant to offer immediate and full reinstatement
to Richard Hodges, Charles L. James, William Nicholson,
Juan Plaza, and Michael Wilson, to their former positions,
without prejudice to their seniority or other rights and privi-
leges, and to refrain from interfering with, influencing, coerc-
ing or discriminating against them or Plaintiff Jose Soto in
the future, and to make all Individual Plaintiffs whole for all
lost wages and other benefits which they lost as the result of
their discharges, including interest; and C) Ordering Defen-
dant to conspicuously post copies of this preliminary injunc-
tive order at locations in Virgin Air’s Newark facility
regularly frequented by employees without written comment
thereon, for a period of sixty days.
2. That on final determination hereof, the Court issue a per-
manent injunction restraining and enjoining the same acts
and conduct and directing the same actions preliminarily
ordered.
3. That Plaintiffs each be awarded $1,000,000 punitive dam-
ages.
4. That Plaintiffs be awarded their costs.
5. That the Court grant to Plaintiffs such other and further
relief that may be equitable, including the reasonable award
of attorney’s fees for the public service performed.
/s/ STEPHEN H. KAHN
STEPHEN H. KAHN
Attorney for Plaintiffs
35 Worth Street
New York, New York 10013
(212) 966-8686
JURY DEMAND
Plaintiffs demand trial by jury.
/s/ STEPHEN H. KAHN
STEPHEN H. KAHN
70a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
88 CIV.
a
RICHARD HODGES, CHARLES L. JAMES, WILLIAM
NICHOLSON, JUAN PLAZA, JOSE SOTO, MICHAEL
WILSON and LOCAL 851, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS,
Plaintiffs,
—against—
VIRGIN ATLANTIC AIRWAYS, LTD.,
Defendant.
<i
VERIFICATION
STATE OF NEW YORK )
: &
COUNTY OF NEW YORK)
Anthony Farino, being duly sworn, deposes and says:
I am the President of Local 851, International Brotherhood
of Teamsters, a named Plaintiff herein allied in interest with
all of the named Plaintiffs. I have read the attached verified
complaint and believe it to be true. The basis for my belief is
interviews and meetings with the individual named Plaintiffs.
/s/ ANTHONY FARINO
Anthony Farino
Sworn to and subscribed before me
on this 29th day of February, 1988
/s/ STEPHEN H. KAHN
Notary Public
[NOTARY SEAL]
T7la
ATTACHMENT 10
[LETTERHEAD OF THE NATIONAL MEDIATION BOARD]
March 30, 1988
Stephen H. Kahn, Esq.
35 Worth Street
New York, N.Y. 10013
Michael Delikat, Esq.
Baer, Marks & Upham
805 Third Avenue
New York, N.Y. 10022
Gentlemen:
Enclosed please find copies of the Official List of Eligible
Voters in NMB Case # R 5768. Please review it carefully.
NMB Representation Manual Section 5.304 provides that
employees have been terminated but who have an action for
reinstatement before a court of competent jurisdiction shall
be eligible to vote. I have therefore determined that Richard
Hodges, Charles L. James, William Nicholson, Juan Plaza
and Michael Wilson are eligible voters and their names have
been added to the list.
You have the right to appeal the above decision and any
other issue to NMB. All appeals must be in writing and must
be supported by substantive evidence and argument rather
than unsupported allegations. Your appeal should clearly
indicate that you have provided a copy to the other partici-
pants in the case. All appeals must be received at the NMB’s
offices no later than close of business on April 11, 1988.
Appeals which are not received by this time will be denied as
untimely.
The carrier has recently informed us that Lillian Quevedo
has been promoted and that Victoria Rapcaynski and Michael
Wilson have resigned. The carrier requests that their names
be removed from the list. Any comments with regard to this
issue must be submitted in writing and must be received at
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the NMB’s offices no later than close of business on April
11, 1988. The carrier and organization should submit docu-
ments supporting their positions. After receiving this infor-
mation | will rule on the eligibility of these individuals and
you will then be given an opportunity to appeal my decision
on this issue to the NMB.
Also enclosed are copies of the Notice of Election and
sample Ballots. The carrier is directed to immediately post
these on carrier bulletin boards, at least one per station so
that employees will be notified of the election in a timely
manner. The Ballots will be mailed on April 1, 1988, and will
be counted at 2 P.M., April 25, 1988, at the NMB’s offices
in Washington D.C.
Sincerely,
/s/ GALE LYNN OPPENBERG
Gale Lynn Oppenberg
Mediator
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ATTACHMENT 11
FORM NMB-R-1
UNITED STATES OF AMERICA
NATIONAL MEDIATION BOARD
NOTICE AND RULES OF ELECTION
Washington D.C. R 5768 April 1, 1988
TO ALL CONCERNED:
This notice of election to be held under the Railway Labor
Act involves the following:
FLEET SERVICE OF EMPLOYEES
OF
VIRGIN ATLANTIC AIRWAYS
SOUGHT TO BE REPRESENTED BY:
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
(AIRLINE DIVISION)
AND PRESENTLY
UNREPRESENTED
COUNT OF BALLOTS:
2:00 P.M., April 25, 1988, Washington D.C.
When applicable, a ballot box voting schedule is attached hereto and made
a part hereof.
Gale Lynn Oppenberg /s/ GALE LYNN OPPENBERG
BOARD REPRESENTATIVE, NATIONAL MEDIATION BOARD,
WASHINGTON, D.C. 20572
THIS IS THE ONLY OFFICIAL NOTICE OF THE ELEC-
TION AND MUST NOT BE DEFACED BY ANYONE.
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NOTICE
An election, pursuant to Section 2, Ninth of the Railway
Labor Act, will be conducted by secret ballot under the
supervision of the Board Representative, whose name is
affixed hereto, among the eligible voters described on the
attachment to this NOTICE OF ELECTION, to determine
the question of representation presently before the
NATIONAL MEDIATION BOARD.
Section 2, Fourth, of the Railway Labor Act, provides that
‘‘The majority of any craft or class of employees shall have
the right to determine who shall have the right to determine
who shall be the representative of the craft or class for the
purposes of this Act.’’
The Railway Labor Act further provides that elections shall
be free from interference, influence or coercion, and that it is
unlawful for a carrier to interfere with the organization of its
employees. Electioneering will not be permitted within the
voting area perimeters established by the Board Representa-
tive.
Violations should be reported immediately to the Board Rep-
resentative or the NATIONAL MEDIATION BOARD,
Washington, D.C. 20572.
RULES OF ELECTION
BALLOTING
Balloting will be conducted in the manner prescribed in the
attached NOTICE OF ELECTION. In the event the election
is conducted by United States Mail, official secret ballots will
be mailed by the Board Representative to the eligible voters.
Instructions for voting by mail will be included with each bal-
lot. SHOULD ANY ELIGIBLE VOTER FAIL TO
RECEIVE A BALLOT WITHIN A REASONABLE TIME,
SUCH VOTER SHOULD PERSONALLY REPORT THE
FACT TO THE BOARD REPRESENTATIVE IN CARE OF
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THE NATIONAL MEDIATION BOARD, WASHINGTON,
D.C. 20572.
ELIGIBILITY
All employees in the crafts(s) or class(es) referred to in this
NOTICE OF ELECTION who appear on the payroll of the
carrier during the designation period and who retain an
employment relationship with the carrier on the date the vote
is taken, and those individuals with rights to recall, not
appearing on the above mentioned payroll, whose last service
performed was in the involved craft or class are eligible to
vote.
A dismissed individual whose request for reinstatement, alleg-
ing wrongful dismissal, is pending before proper authorities
(including the National Railroad Adjustment Board, other
appropriate Boards, or any court of competent jurisdiction)
is eligible to participate. A dismissed employee whose guilt
has been determined, and who is seeking reinstatement on a
leniency basis is not eligible.
VOTERS LIST
A list of the eligible voters has been prepared by the Board
Representative, based upon information furnished by the car-
rier, and opportunity has been afforded party representatives
to review the list. Only those individuals whose names appear
on the list will be permitted to vote, except that upon proof
of error, such error will be corrected.
SUPERVISION OF ELECTION
The Board Representative is personally responsible to the
National Mediation Board for the conduct of the election.
Only the Board Representative and an individual voter will be
allowed to handle the ballot in order to maintain its secrecy.
The Board Representative will interpret and apply the rules
governing the election and shall decide on all challenged
votes. The Board Representative’s decisions shall be final as
to the immediate conduct of the election, but appeal may be
76a
made to the National Mediation Board, provided that timely
notice of such appeal is given in writing to the Board Repre-
sentatives. Each organization that is a party to this dispute
may, if it so desires, appoint an observer. Such observers
shall be under the supervision and direction of the Board
Representative at all times.
ELECTION RESULTS
The Board Representative will count and tabulate all ballots
at a time and place designated by the Board Representative.
A report giving the results of the election will be made by the
Board Representive on a form prescribed by the National
Mediation Board and copy of this report will be furnished to
the parties to the dispute and the carrier involved.
CERTIFICATION
Certification of the name or names of the organization or
individual that has been designated and authorized to repre-
sent the employees involved in this dispute will be made by
the National Mediation Board to the parties to the dispute
and the same will also be certified to the carrier.
DISPOSITION OF BALLOTS
The original ballots and tabulation sheets together with the
report of the results of the election by the Board Representa-
tive will be filed with the National Mediation Board, Wash-
ington, D.C. 20572, for reference and safekeeping.
By order of the NATIONAL MEDIATION BOARD.
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UNITED STATES OF AMERICA
OFFICIAL BALLOT OF NATIONAL
MEDIATION BOARD
Involving CASE NO. R5768
FLEET SERVICE EMPLOYE
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