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June 21, 1979

NATIONAL MEDIATION BOARD, International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM") and IAM District Lodge No. 100, Defendants. UNITED STATES of America, Plaintiff, v. IBERIA AIR LINES OF SPAIN, Defendant

The opinion of the court was delivered by: WARD

Iberia Air Lines of Spain ("Iberia"), plaintiff and defendant in these two consolidated actions, *fn1" moves pursuant to Rule 56, Fed.R.Civ.P., for summary judgment declaring that, on February 23, 1979, it lawfully changed the rates of pay, rules, and working conditions of certain of its employees represented by the International Association of Machinists and Aerospace Workers ("IAM"). For the reasons hereinafter stated, Iberia's motion is granted.

The Facts

 Iberia is an air carrier subject to the provisions of the Railway Labor Act ("RLA" or "Act"), 45 U.S.C. §§ 151-88. The IAM is the duly recognized representative of approximately 260 Iberia employees in the United States and Puerto Rico. *fn2" Prior to January 1, 1976 Iberia and the IAM entered into a labor agreement ("the agreement"), effective January 1, 1976, covering the terms and conditions of employment of Iberia's IAM-represented employees. The agreement expired by its terms on December 31, 1978. On September 29, 1978, pursuant to Section 6 of the RLA, *fn3" Iberia and the IAM exchanged notices of intended changes in the agreement and began negotiating a new agreement. From November 6, 1978 through February 10, 1979, the parties conducted negotiating sessions. On February 10, 1979, the negotiations became deadlocked and were terminated.

 Following the deadlock of negotiations, on February 10, 1979 and again on February 13, 1979, Iberia informed its employees that in the absence of a request for mediation or further negotiation between the parties within the next ten days, I. e. by February 20, Section 6 of the RLA gave the employees the right to strike and the carrier the right to make unilateral changes in the terms and conditions of employment. On February 13, 1979 IAM District 100 inaccurately notified its members that it had invoked the NMB's mediation services. What District 100 had actually done was to mail a letter to the IAM's international headquarters in Washington, D.C. requesting that the international union invoke the NMB's mediation services on the local's behalf. *fn4" The request arrived at the IAM's international headquarters on Friday, February 16, 1979.

 The offices of the NMB were closed on Monday, February 19, 1979, in observance of Washington's Birthday, a federal holiday. Because of a snowstorm, the Board's offices were also closed on February 20, 1979, the last day for a request for or proffer of the Board's mediation services under Section 6 of the Act. On the next day, February 21, 1979, the NMB's offices reopened. The IAM's international offices, however, were closed on both February 20 and 21, 1979.

 On February 21, 22 and at approximately 12:00 noon on February 23, 1979 Iberia representatives asked the Executive Secretary of the NMB, Rowland K. Quinn, Jr., whether any request for mediation had been received in connection with the Iberia-IAM dispute. Mr. Quinn informed the Iberia representatives on each occasion that no such request had been received. The Assistant Airline Coordinator of the IAM, William L. Sheri, however, had telephoned the Board on February 22, 1979 and stated that he was filing an application for the Board's mediation services in the Iberia-IAM dispute.

 Since neither party had requested the mediation services of the NMB within ten days of the termination of conferences, Iberia announced at 11:00 A.M. on February 23, 1979 that it was placing into effect the rates of pay, rules and working conditions which it had proposed to the IAM during their unsuccessful negotiations. Later that day, Iberia notified the NMB's Executive Secretary that it had placed the changes into effect.

 Several hours after instituting these changes and notifying all the parties, Iberia was informed by the NMB that it had received an IAM request for mediation at 11:08 A.M. that morning and that the envelope containing the application had been sent the day before, on February 22, 1979. A subsequent letter from the NMB formally advised Iberia that the Board had received the IAM's application and that it had docketed the application as NMB Case No. A-10395. In spite of the fact that the NMB had not received the application within the statutory ten-day period set forth in Section 6 of the Act, the NMB's docketing letter further advised that a mediator would be assigned to the dispute and "reminded (the parties) of the status quo provisions of the Railway Labor Act."

 On February 27, 1979, Iberia advised the Board that it considered the IAM application for mediation as untimely and ineffective to require the restoration of the rates of pay and working conditions which were in effect prior to February 23, 1979. Iberia also advised the NMB that it did not regard the Board as having jurisdiction to mediate the dispute. The NMB responded on March 14, 1979 that it believed the case was properly docketed and that Iberia was obligated to restore the conditions which were in effect prior to February 23, 1979.

 The NMB's mediator appeared at Iberia's offices on March 19, 1979 to begin mediation of the IAM-Iberia dispute. Refusing to meet with the mediator, Iberia's representatives restated the carrier's position that, while it remained willing to discuss incorporating the February 23 rules into an agreement with the IAM, it would decline to meet with the NMB mediator under conditions which would activate the status quo provisions of the Act.

 On March 23, 1979 Iberia commenced the instant action for a declaratory judgment against the NMB and the IAM. *fn5" Later that day, the United States ("the government") commenced the related action for injunctive and declaratory relief against Iberia. *fn6" On April 2, 1979 by order to show cause, Iberia moved, Inter alia, for summary judgment. The government, on April 6, 1979, cross-moved pursuant to Rule 65, Fed.R.Civ.P., for a preliminary injunction directing Iberia to restore the pre-February 23, 1979 working conditions and to participate in mediation before the NMB. On April 18, 1979 the government withdrew its motion for a preliminary injunction.

 The sole issue presented on Iberia's motion for summary judgment is one of statutory construction. The government contends that the Act should be interpreted to require that the status quo be maintained not only during the ten-day period expressly provided in Section 6, but during any subsequent period if the request for mediation is made after the expiration of the ten-day period, but before a change in the status quo. Alternatively, the government contends that the ten-day statutory period was tolled for two days through February 22, 1979 because a snowstorm prevented the IAM from opening its Washington, D.C. offices on February 20 and 21, 1979. Iberia contends that Section 6 of the Act explicitly allows a carrier to change the rates, rules, and working conditions of its employees when ten days have elapsed after termination of conferences without request for or proffer of the NMB's mediation services.


 Section 2, Seventh of the Railway Labor Act, 45 U.S.C. § 152, ...

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