Amicus Curiae Brief — Continental/Air Micronesia v. National Mediation Board

2) Supreme Court, U.S.

No. 91-2009 =

JUL 15 1992

OFFIGE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Continental/Air Micronesia and

Continental Airlines, Inc.,

Petitioners,

Vv.

National Mediation Board,

Respondent.

BRIEF OF AIRLINE INDUSTRIAL RELATIONS

CONFERENCE AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Robert J. DeLucia

Airline Industrial Relations

Conference

1920 N Street, N.W.

Washington, D.C. 20036

(202) 861-7552

For Amicus Curiae

The Airline Industrial

Relations Conference

July 15, 1992

TABLE OF CONTENTS

Page

Table Of Authorities ...................... ii

Interest Of The Amicus Curiae ................ 1

WL, 6 6k a We ee ee bo ee Ae ke oe oe. 6

Noack pit aak bee kate eke) ones 12

TABLE OF AUTHORITIES

CASES Page(s)

Air Canada v. NMB, 478 F. Supp. 615

(S.D.N.Y. 1979), aff'd mem.,

659 F.2d 1057 (2d Cir.), cert. denied,

454 U.S. Fas (eas 8. uke eae ee eee 10

Alitalia Airlines vy. NMB,

tae ©.a6 3 GGG: Been 6 ae ie eee 4

Burlington Northern R.R. v. BMWE,

461 U.S. Sap Gee so ee eee eee 4

Detroit & Toledo S.L. R.R. v. UTU,

200 U.S. 868 TE Sh knee 8 eee ee a 4

General Comm. v. Missouri-K-T R.R.,

aa0 U.S. Sas Cee see ee ee eae 2 3

Hawaiian Airlines v. NMB,

107 L.R.R.M. (BNA) 3322 (D. Hawaii 1979),

aff'd mem., 659 F.2d 1088 (9th Cir.),

opinion replaced, 109 L.R.R.M.

(BNA) 2936 (9th Cir. 1981), cert. denied,

456 U3. Gi tee sh eases ee 10

IAM v. Trans World Airlines, Inc.,

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

3 U2. Ge tien 8 ke eee 9, 10

Japan Whaling Ass’n v. American

Cetacean Society, 478 U.S. 221 (1986) ........ 7

li

NLRB y. Financial Institution

Employees Local 1182, 475 U.S. 192 (1986) .... 6

Maeus Vv. Rave, 309 U.S. 736 (1962)... . ww ee 4

Professional Cabin Crew Ass’n v. NMB,

872 F.2d 456 (D.C. Cir.), cert. denied,

oo koa G6 wl de 44d 4 600.0 9

Russell v. NMB, 714 F.2d 1332 (Sth Cir. 1983),

cert. denied, 467 U.S. 1204 (1984) ......... 11

Switchmen’s Union v. National Mediation Board,

Res”. a ae rr 6, 7, 12

Texas & N.O. Railroad v. BRAC,

I et we hes 2

Virginian Ry. v. System Federation No. 40,

ss en 8

USAir v. NMB, 711 F. Supp. 285 (E.D. Va.),

aff'd mem., 894 F.2d 403 (4th Cir 1989) ....... 9

AGENCY ADJUDICATIONS

Air France, 6 N.M.B. 238, 6 N.M.B. 259 (1977) ... 11

Altair Airlines, 7 N.M.B. 449 (1980) ........... 11

Atcheson, Topeka & Santa Fe Ry., 8 N.M.B. 66,

8 N.M.B. 81 (1980), 8 N.M.B. 469 (1981) .... 11

Chicago Union Station Co.,

We OU ce ek ee ee es 11

ill

Continental Airlines, Inc.,

S.DE. Saw. A Pee IST!) 6c ccc cine 10

Denver & R.G.W. R.R., 12 N.M.B. 303 (1985) .... 11

Eastern Air Lines/Continental Airlines,

ye 8 RM ee ee 11

In re Chamber of Commerce, 14 N.M.B. 347 (1987) . 11

Manufacturers Ry., 7 N.M.B. 451,

pee eee ere 11

North Central Airlines,

78 ek Bo Fi ee er rer 11

Ozark Air Lines, Inc., 6 N.M.B. 473 (1978)....... 10

Pennsylvania R.R., 2 N.M.B. 204 (1951) ........ 11

Pocono Airlines, 9 N.M.B. 173 (1982) .......... 10

Ross Aviation, 9 N.M.B. 162 (1982) ........... 10

Texas International Airlines, 5 N.M.B. 196 (1976)... 11

Transamerica Airlines, 12 N.M.B. 204 (1985) ..... 11

Transkentucky Transp. R.R., 9 N.M.B. 190 (1982) .. 11

- foo eg oe | ere ee eee er 11

a, Be Pes OOF COPED 8 bk eee a wees 11

STATUTES

oP Wen Oe Oe hac ee es Me ee oe 3

iv

Railway Labor Act, 45 U.S.C. § 151 et. seq. ... 2... 2

5S UBtes | Toes WE 6 6k a ee ee ee 6, 7,8

OTHER AUTHORITIES

Louis L. Jaffe, The Right to Judicial Review II,

a8: Sa ® fF ree re 7

Thomas P. Murphy, Deunionization in the

Airline and Railroad Industries: The

Need for Legislative Reform, 35 Fed. B. News

& J. 142 (March/April 1988) ............. 11

Herbert P. Northrop, The Railway Labor

Act--Time for Repeal?, 13 Harv. J.L. & Pub.

ee 9s CO 6 ok vw ee Ge oe ee ii, aa

Martin Shapiro, Administrative Discretion:

The Next Stage, 92 Yale L.J. 1487 (1983) ...... 7

In The

Supreme Court of the United States

October Term, 1991

No. 91-2009

Continental/Air Micronesia and Continental Airlines, Inc.,

Petitioners,

Vv.

National Mediation Board,

Respondent.

Brief of

Airline Industrial Relations Conference

As Amicus Curiae In Support Of Petition

For A Writ Of Certiorari To The

United States Court Of Appeals

For The District of Columbia Circuit

INTEREST OF THE AMICUS CURIAE

Airline Industrial Relations Conference ("AIR

Conference"), and its member air carriers,’ are vitally

1 AIR Conference is an unincorporated voluntary association of United

States scheduled air carriers formed to facilitate the exchange of ideas and

information concerning personnel and labor relations matters, and to

represent the member carriers in legislative, judicial and administrative

matters. The members include ABX Air, Inc., Air Wisconsin, Alaska

(continued...)

concerned that whenever the National Mediation Board

("NMB" or “the Board") certifies a union, the certification

reflects the voluntary choice of a majority of the employees

in question. The premise of majority rule in representation

cases is the “essential foundation"? of the bargaining scheme

created by Congress under the Railway Labor Act, 45 U.S.C.

§ 151 et. seq. ("RLA" or “the Act"), and the "great right"

protected by the Act. This "great right" must be safeguarded

from administrative nullification.

AIR Conference includes virtually every major-air

carrier in the United States. Not only does this industry

employ over half a million people, with a total operating

revenue of $76 billion in 1991, it also performs a vital

function in the economy as a whole, transporting 452 million

passengers over 447 billion miles in 1991. Congress

recognized the indispensable contribution of the airlines in

interstate commerce when, in 1936, it added airlines to the

coverage of the RLA.

The lengthy and expensive procedures for dispute

resolution under the RLA are designed to lead to the peaceful

resolution of labor disputes and avoid interruptions to

interstate commerce. These procedures unfairly bind the

employees and the carrier if the union that is certified is not

1 (...continued)

Airlines, Inc., Aloha Airlines, Inc., America West Airlines, American

Airlines, Inc., American Trans Air, Continental Airlines, Inc., Delta Air

Lines, Inc., Federal Express Corp., Northwest Airlines, Inc., Reeve

Aleutian Airways, Inc., Southwest Airlines, Tower Air, Trans World

Airlines, Inc., United Airlines, Inc., United Parcel Service, and USAir,

Inc. American Airlines and United Airlines do not join in AIR

Conference’s Brief.

2 Texas & N.O. R.R. v. BRAC, 281 U.S. 548, 569 (1930).

3 General Comm. v. Missouri-K-T R.R., 320 U.S. 323, 333 (1943).

truly the chosen representative of a majority of the employees,

as the Court has emphasized:

"Freedom of choice in the selection of

representatives on each side of the dispute

is the essential foundation of the statutory

scheme. All the proceedings looking to

amicable adjustments and to agreements

for arbitration of disputes, the entire policy

of the act, must depend for success on the

uncoerced action of each party through its

Own representatives to the end that

agreements satisfactory to both may be

reached and the peace essential to... .

interstate commerce may be maintained. .

. . [iJt is of the essence . . . that this

liberty should be safeguarded."

General Comm. of Adjustment v. Missouri-K-T R.R., 320

U.S. 323, 329-30 (1943) (quoting Texas & N.O. R.R. vy.

BRAC, 281 U.S. 548, 569 (1930)).

AIR Conference believes that this is particularly true

because the RLA places restrictions upon carriers that are not

imposed upon other industries, whose labor obligations are

established and governed by the National Labor Relations Act

("NLRA"). Some of the more significant differences between

the duties imposed by the RLA and the NLRA include:

1. The RLA does not expressly provide for

decertification, unlike the NLRA in 29 U.S.C.

§ 159 (c).* Under the NLRA, an employer’s good

faith doubt of continued majority support based on

objective circumstances allows an employer to

withdraw recognition. Under the RLA, the only

court that has addressed the question has held the

4 See infra note 16.

NLRA rule does not apply, and that a carrier must

bargain with a certified union regardless of objective

evidence that it does not have majority support.

Alitalia Airlines v. NMB, 753 F.2d 3 (2d Cir. 1985).

2. The bargaining obligation imposed upon covered

carriers by the RLA is far more extensive in scope

than the correlative duty imposed by the NLRA.

Under the NLRA, an employer may bargain to

impasse with the union and thereupon implement the

terms and conditions it has bargained. NLRB vy.

Katz, 369 U.S. 736 (1962). Under the RLA, by

contrast, carriers are bound by statute to the status

quo throughout lengthy dispute resolution

procedures, which may include direct bargaining,

mediation by the NMB, a proffer of arbitration by

the NMB, a 30-day cooling off period, and a

Presidential Emergency Board. The terms of a

collective bargaining agreement remain in effect

throughout these “almost interminable"* procedures,

often for years after the agreement’s expiration date.

3. A union governed by the RLA not only is free to

strike, but also may engage in secondary boycotts

that seriously disrupt interstate commerce generally,

as well as the specific operation of the struck

carrier. Burlington Northern R.R. v. BMWE, 481

U.S. 429 (1987). Airline and railroad operations

are particularly vulnerable to secondary boycotts.

Because of their far-flung operations, carriers enter

into numerous agreements with other carriers to

provide needed services (e.g. maintenance, baggage

handling, or ticketing at distant stations, railroad

interchange agreements). A union can wreak

economic damage upon the primary carrier by its

5 Detroit & Toledo S.L. R.R. v. UTU, 396 U.S. 142, 149 (1969).

4

attack upon other carriers that provide such

supportive services.

For these reasons, it is even more essential that the

NMB’s certification of a union rest upon the desires of a

majority of the employees. Absent the consent of the

governed, employee disaffection will lead to unnecessary

workplace disruption and labor disputes, frustrating the

regime created by Congress under the RLA.

This case provides a classic example of the practical

implications of the bedrock majority representation principle.

In this case, the NMB transferred a certification from the

Union of Flight Attendants ("UFA") to the International

Association of Machinists and Aerospace Workers ("IAM")

without any attempt to determine whether a majority of the

employees desired IAM representation.

This change of representation is of great significance

for both the employees and the carrier. In contrast to the

UFA, an independent union that represented employees only

at Continental and Continental/Air Micronesia (a separate

division of Continental which is separately certified by the

NMB), an international union like the IAM is likely-to have

interests that reach beyond the confines of the particular

carrier. The IAM is well known for “pattern bargaining"

whereby it insists that each carrier agree to terms no less

favorable than those’ achieved at other carriers, ratcheting up

wages and working conditions throughout the entire industry.

Such pattérn bargaining can foster intransigent bargaining

positions if the union pays less attention to unique factors or

economic necessities at a particular carrier than to the

interests of union members elsewhere.

The NMB’s decision here to allow transfer of a

certification without even examining whether the new union

has any support among the employees creates the potential for

a "market" in certifications. Nearly defunct unions like UFA

(that lost support in an unsuccessful strike) may be taken over

by large international unions that assume the waning union’s

operating expenses and pay its salaries. Under the NMB’s

policy announced in this case, the Board will transfer

certifications in such circumstances without examining

whether the new union is an entirely different bargaining

entity than the old union, with an entirely different

relationship to the employees whom it ostensibly represents,

and whether the employees desire to be represented by the

new union.® Once the transfer of certification is effected, the

employees have no ready mechanism to rid themselves of the

new union.

Accordingly, the members of AIR Conference have

an interest in ensuring that the NMB fulfills its statutory duty

to investigate the wishes of employees in all representation

disputes, including those that entail transfer of certification

from one union to another. The NMB’s decision in this case

to transfer two certifications without regard to the employees’

choice is a perversion of the statutory scheme. It is critical

that the Board be directed to certify only a union that is in

fact tbe choice of a majority of employees.

ARGUMENT

In Switchmen’s Union v. National Mediation Board,

320 U.S. 297 (1943), the Court held that a decision of the

6 ~In NLRB vy. Financial Institution Employees Local 1182, 475 U.S. 192

(1986), the Court viewed union mergers as internal matters outside the

jurisdiction of the NLRB only if they did noi entail a question concerning

representation. Under the NLRA, a question concerning representation is

present if there is discontinuity in the rights and obligations between the

union’s leadership and membership, as shown by such factors as whether

the two have the same officers, internal organization, dues structures, and

whether employees have the same voice in decisions such as approval of

collective bargaining agreements, and calling strikes. In this case, the

NMB has agreed that the transfer of certification from UFA to IAM

created a representation dispute subject to section 2, Ninth of the RLA.

6

NMB concerning the appropriate grouping of employees’ for

representation purposes was not subject to judicial review,

principally because the RLA provides for review in certain

sections but is silent as to judicial review of NMB decisions

concerning jurisdictional disputes under section 2, Ninth.*

Subsequent courts have interpreted Switchmen’s broadly to bar

review of virtually all NMB representation decisions.

Courts have expanded the reach of Switchmen’s even

though the judicial attitude that led to the Switchmen’s

decision has changed markedly. Since passage of the

Administrative Procedure Act, the sustained effort of

administrative law has been to “continuously narrow[] the

category of actions considered to be so discretionary as to be

exempted from review." Martin Shapiro, Administrative

Discretion: The Next Stage, 92 Yale L.J. 1487, 1489 n.11

(1983). Due to the broad presumption in favor of judicial

review that now exists in American jurisprudence, the Court

7 One rationale why judicial review was not available was that Congress

could not have intended this particular “explosive problem," 320 U.S. at

303, to be “drag[ged]. . . into other tribunals of law," id. at 305. The

legislative history used to support this point refers only to jurisdictional

disputes between unions at issue in Switchmen'’s, not to all representation

questions under section 2, Ninth.

8 "[T]he danger of relying on inference was exemplified precisely in the

Switchmen’s case, in which the materials for inference were negligible and

the result reflected a judicial rather than a legislative attitude." Louis L.

Jaffe, The Right to Judicial Review II, 71 Harv. L. Rev. 769, 791 (1958).

Today, it no longer would be permissible to infer that Congress meant to

preclude review simply because Congress did not specifically provide for

review:

the rule is that the cause of action for review of such action is

available absent some clear and convincing evidence of

legislative intention to preclude review.

~ Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 231

n.4 (1986).

should reconsider Switchmen’s. At the very least, the Court

should clarify whether Switchmen’s properly is being used by

the lower courts to bar judicial review in virtually all

representation matters, even those which implicate the

fundamental rule of majority choice.

Judicial review has become the presumption because

it helps to prevent arbitrary and capricious agency action,

ensures that questions of law are decided correctly, and forces

agencies to articulate-the rationale for their decisions, thus

providing guidance for the parties subject to agency action.

The NMB, without the benefit of judicial oversight for the last

50 years, has often fallen into the very patterns that judicial

review is meant to curb.

This case provides a classic example. The NMB

certified a transfer of union representation rights pursuant to

a union-conducted merger election vote held six and one-half

years before the Board’s decision. The Board repeatedly

admitted that the transfer of the certificate constituted a

"representation dispute" covered by section 2, Ninth.

Contrary to the explicit provisions of section 2, Ninth,

however, it did not “designate who may participate in the

election and establish the rules to govern the election"; neither

did it “appoint a committee of three neutral persons" to

perform these statutory requirements. 45 U.S.C. § 152,

Ninth. Indeed, the NMB admittedly took no action at all to

investigate or ascertain the “basic facts"? that must underlie

any certification, namely, who are the employees and what is

their choice. The NMB merely deferred to an outdated

election conducted by the interested parties, thus allowing the

fox to watch the hen-house.

9 The Court in Virginian Railway v. System Federation No. 40, 300

U.S. 515, 562 (1937), laid out the “basic facts" upon which a union

certification rests under section 2, Ninth: "[T]he number of eligible voters,

the number participating in the election and the choice of the majority of

those who participate."

Instead of fulfilling its statutory duties, the Board

asserted that it had not only "the unfettered discretion to

determine how to ascertain employee preference" but also "the

power to decide whether to ascertain employee wishes at

all."° The NMB stated five times in its brief to the Court

of Appeals" that the Board was entitled to "presume" that

the union and its officers could speak for the bargaining unit

on the issue whether it was their representative. This

reasoning, which assigns to the interested unions the very

issue that the Board is charged with independently

investigating, clearly misinterprets the statutory scheme.’

This case is not an isolated instance of the NMB’s

cavalier attitude towards its statutory duty to ascertain the

wishes of affected employees."? In IAM v. Trans World

10 NMB Reply to Plaintiffs’ Opposition to Defendant’s Motion to

Dismiss or for Summary Judgment at 11, Continental Air Lines vy. NMB,

No. 91-796 (D.D.C.) (Reply filed May 22, 1991).

11 _ Brief For The National Mediation Board at 18, 36 n.25, 37, 40, and

45, Continental Air J.ines v. NMB, 957 F.2d 911 (D.C. Cir. 1992)

(No. 91-5189).

12 The Board’s error in relying on a union-conducted election to ensure

the employees’ choice is particularly apparent in the case of the

- Continental/Air Micronesia flight attendants. Only 33 of 59 received a

ballot and the union kept no separate record whether any of them actually

voted.

13 In USAir v. NMB, 711 F. Supp. 285, 293 (E.D. Va.), aff'd mem.,

894 F.2d 403 (4th Cir 1989), the court expressed concern that the NMB

did not investigate allegations of union interference in an election, but felt

constrained by Switchmen’s to withhold judicial review. In Professional

Cabin Crew Ass'n v. NMB, 872 F.2d 456 (D.C. Cir.), cert. denied, 493

U.S. 974 (1989), the NMB refused to investigate whether individuals

whose names were on a recall list, but who had not worked for more than

a year after they went on strike, were still employees entitled to vote under

the Act, or whether they had obtained employment elsewhere so as to be

ineligible even by the NMB’s own criteria. In IAM v. Trans World

| (continued...)

Airlines, Inc., 839 F.2d 809, 812 and n.1 (D.C. Cir.), cert.

denied, 488 U.S. 820 (1988), the NMB asserted that the RLA

does not require it to be neutral on representation issues."

This position is illustrative of the attitude that can develop

without judicial oversight.

The Board’s action in this case not only disregarded

the governing statute and the bedrock principle of employee

free choice; it also reflected an abrupt about-face in NMB

policy.'* While the Board claimed its policy of non-

13 (...continued)

Airlines, Inc., 839 F.2d 809, 811 (D.C. Cir.), cert. denied, 488 U.S. 820

(1988), the NMB excluded from the election a block of employees

temporarily working in another craft to help in a strike, in contravention

of the Board’s own rules. The court deemed the carrier’s argument

“appealing” but stated it was without power to grant relief under

Switchmen’s. Indeed, the NMB repeatedly states it is not bound to follow

its own regulations or its published Representation Manual, and the courts

nevertheless have considered that they are without jurisdiction per

Switchmen’s. Air Canada v. NMB, 478 F. Supp. 615 (S.D.N.Y. 1979),

aff'd mem., 659 F.2d 1057 (2d Cir.), cert. denied, 454 U.S. 965 (1981)

(NMB’s published rules on timeliness of authorization cards need not be

strictly adhered to); Hawaiian Airlines v. NMB, 107 L.R.R.M. (BNA)

3322 (D. Hawaii 1979), aff'd mem., 659 F.2d 1088 (9th Cir.), opinion

replaced, 109 L.R.R.M. (BNA) 2936 (9th Cir. 1981), cert. denied, 456

U.S. 929 (1982) (NMB Representation Manual not binding on Board):

14. The NMB’s position is stated in the Brief of Defendant-Appellee

National Mediation Board at 22-24 and n.9, filed by the Department of

Justice on December 4, 1987, in JAM v. Trans World Airlines (D.C. Cir.

No. 87-5092).

15 Previously, in cases where one union affiliated or merged with

another, the NMB consistently refused to certify the new union without

itself investigating whether a majority of the employees actually chose the

new union as their representative. For example, when members of the Air

Transport Mechanics Union at Continental voted to affiliate with the IAM,

the “Board refused to transfer the certification on the basis of a private

election." Continental Airlines, Inc., 8 N.M.B. Supp. A 709, 713 (1977).

Accord Pocono Airlines, 9 N.M.B. 173 (1982); Ross Aviation, 9 N.M.B.

162 (1982); Ozark Air Lines, Inc., 6 N.M.B. 473 (1978); North Central

(continued...)

10

. Lee ee

investigation was its established practice, in fact it was a new

approach adopted without any citation to prior practice or

precedent or expression of any rationale for the change. Such

unexplained changes in NMB policy are not infrequent, but

generally have been found unreviewable.' See generally

Herbert P. Northrup, The Railway Labor Act--Time For

Repeal?, 13 Harv. J. L. & Pub. Pol’y 441, 482, 501 (1990)

15 (...continued)

162 (1982); Ozark Air Lines, Inc., 6 N.M.B. 473 (1978); North Central

Airlines, 6 N.M.B. 612 (1978); Texas International Airlines, 5 N.M.B.

196 (1976); see also Pennsylvania R.R., 2 N.M.B. 204 (1951).

16 The NMB has totally reversed itself on the showing of interest a

union must make before obtaining an investigation of the status of related

air carriers. Compare Transamerica Airlines, 12 N.M.B. 204 (1985), with

Eastern Air Lines/Continental Airlines, 17 N.M.B. 432, 436 (1990). The

NMB frequently has applied diametrically opposed policies on whether to

impound ballots if a party files a challenge to some aspect of the election,

and never has explained this divergence. Compare Denver & R.G. W.

R.R., 12 N.M.B. 303 (1985) (impounding ballots), and Altair Airlines, 7

N.M.B. 449 (1980) (same), with USAir, 8 N.M.B. 131 (1980) ("[iJn

accordance with the Board’s normal procedure, ballot. in this election will

be counted as scheduled. Following the count, the Board will determine

what action is appropriate with respect to the issues raised in your protest"

(emphasis added)), and USAir, 17 N.M.B. 377, 378 (1990) (request to -.

delay ballot count called “extraordinary” ). The NMB has reversed itself ..

several times on allowing "strawman" elections by individuals who sought -

to replace a certified union. See generally Thomas P. Murphy,

Deunionization in the Airline and Railroad Industries: The Need for

Legislative Reform, 35 Fed. B. News & J. 142, (March/April 1988)

(criticizing NMB stance an decertification). Compare Air France, 6

N.M.B. 238, 6 N.M.B. 259 (1977) (individual wins election among

dispatchers and immediately disclaims representation rights), with

Manufacturers Ry., 7 N.M.B. 451, 7 N.M.B. 485 (1980) (Beard refuses

to allow strawman decertification attempt), and Chicago Union Station

Co., 8N.M.B. 141 (1980) (same), and Atcheson, Topeka & Santa Fe Ry.,

8 N.M.B. 66, 8 N.M.B. 81 (1980), 8 N.M.B. 469 (1981) (same).

Following Russell v. NMB, 714 F.2d 1332 (Sth Cir. 1983), cert. denied,

467 U.S. 1204 (1984), where the Fifth Circuit held employees had a right

to become non-union, the Board refused to create a procedure for

decertification, but began once again to allow strawman elections. Jn re

Chamber of Commerce, 14 N.M.B. 347 (1987).

11

(criticizing NMB’s inconsistency and failure to follow own

rules; "[a] basic reason that the NMB can continue to operate

with so many procedural shortcomings in the representation

area is that the Supreme Court has severely restricted judicial

review. . . . [i]n Switchmen’s ... .")

Judicial review would greatly improve representation

proceedings under the RLA, for "[t]he special competence of

the National Mediation Board lies in the field of labor

relations rather than in that of statutory construction."

Switchmen’s, 320 U.S. at 321 (Reed, J., dissenting). Judicial

review would not only protect the bedrock principle of

employee freedom of choice, it would also lead to better

informed and articulated NMB decisions, which in turn would

provide guidance to the parties subject to NMB authority. It

would control arbitrary and capricious NMB action, a curb

sorely needed after 50 years without judicial oversight.

CONCLUSION

The petition for a writ of certiorari should be

granted, to assess the continued viability and application of

Switchmen’s Union, and to insure integrity in the

administration of the Railway Labor Act.

Respectfully submitted

Robert J. DeLucia

Airline Industrial Relations

Conference

1920 N Street, N.W.

Washington, D.C. 20036

(202) 861-7552

For Amicus Curiae

The Airline Industrial

Relations Conference

July 15, 1992

12