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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0821%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 827

## Text

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

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