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January 7, 1982

NATIONAL MEDIATION BOARD; International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM"); and IAM District Lodge No. 100, Defendants

The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

This action arises out of a representation dispute among certain employees of British Airways Board ("BA") under section 2, Ninth of the Railway Labor Act ("RLA"), 45 U.S.C. § 152, Ninth (1976). In early 1978, the International Association of Machinists and Aerospace Workers (the "IAM") filed an application with the National Mediation Board (the "NMB") for an investigation of the dispute. In June 1980, the NMB issued formal "Findings Upon Investigation" after eight days of hearings. In its 28-page report, the NMB found, inter alia, that a craft or class of office clerical employees and a separate craft or class of fleet and passenger employees existed among BA's personnel. The NMB conducted a further investigation to determine whether, in fact, a representation dispute existed within the two separate craft or class of BA employees (application with regard to Office Clerical Employees was docketed as NMB Case No. R-4842; application with regard to Fleet and Passenger Service Employees was docketed as NMB Case No. R-4843). The NMB dismissed the IAM application covering the craft or class of Office Clerical Employees for the union's failure to support the application with the necessary authorizations from employees. However, with respect to BA's Fleet and Passenger Service Employees, the NMB determined the existence of a representation dispute and authorized an all-mail ballot using an eligibility cut-off date of May 14, 1978.

The complaint alleges various substantive violations of the RLA, 45 U.S.C. §§ 151-188 (1976). Plaintiff requests this court to review three determinations made by the NMB in conducting the election which led to its certification of the IAM as the workers' representative. The challenged determinations are: (1) the NMB's definition of the class or craft of workers among whom the election was conducted and for whom the IAM was certified; (2) the NMB's establishment of a May 14, 1978 cut-off date by which BA's workers had to be employed in order to be eligible to participate in the election; and (3) the NMB's decision to tally certain ballots which had been mailed prior to the end of the balloting period (November 21, 1980), but of which the NMB did not learn until after the balloting period had ended.

 Numerous motions have been presented by each of the parties. IAM and IAM District Lodge No. 100 have moved pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) for an order dismissing the complaint, or in the alternative, pursuant to Rule 56 Fed.R.Civ.P., for summary judgment. Defendant NMB thereafter moved for judgment on the pleadings, Rule 12(c) Fed.R.Civ.P., or in the alternative, for summary judgment pursuant to Rule 56 Fed.R.Civ.P. Plaintiff opposes the battery of motions directed against its claims and has cross-moved for summary judgment. Plaintiff has also moved to amend its complaint. In addition to the motions by the parties, Barbara McCloskey, an employee of BA in the capacity of reservations agent, has requested leave to intervene on her own behalf and on behalf of certain of her fellow workers at BA.

 Based on the material factual allegations contained in the pleadings which are not in dispute, and those which are beyond dispute as discerned from the record of the administrative proceedings before the NMB, we find that defendants are entitled to summary judgment and that the complaint must be dismissed.

 A. Intervention

 The employees seeking to intervene in this action satisfy the requirements of Rule 24(a)(2) Fed.R.Civ.P. in that they "claim( ) an interest relating to the ... transaction which is the subject of the action and (they are) so situated that the disposition of the action may as practical matter impair or impede (their) ability to protect that interest (since) the applicant's interest is (not) adequately represented by existing parties." The interests of the employees, who are apparently without funds to prosecute an independent action challenging the NMB's certification of IAM, are unquestionably different than the interests of BA. Since defendants are not unduly prejudiced by intervention, the motion to intervene is granted.

 Prior to the motion for intervention, a serious question was raised with respect to BA's standing to challenge the NMB's certification of the IAM. At oral argument, the parties conceded that a BA employee whose statutory rights in selecting a representative under the RLA had been affected by the election would unquestionably have standing to challenge NMB certification. We quite agree. Accordingly, because a determination that BA lacked standing would not obviate the resolution of any of the issues in this case, we assume without deciding that BA also has standing to maintain this suit. California Bankers Association v. Shultz, 416 U.S. 21, 44-45, 94 S. Ct. 1494, 1509, 39 L. Ed. 2d 812 (1974); Local 1814 International Longshoremen's Association, AFL-CIO v. The Waterfront Commission of New York Harbor, 667 F.2d 267 (2d Cir. 1981).

 B. Requested Leave to Serve and File an Amended Complaint

 BA filed its amended complaint more than six months after it had instituted the instant action, more than four months after IAM and IAM District Lodge No. 100 had answered the complaint, and approximately two and one-half months after NMB had moved for dismissal. Nevertheless, the delay was not undue since the new allegations were principally based upon facts revealed in the NMB's papers in support of its motion for summary judgment and not previously known to plaintiff. Because we find that undue prejudice will not result to defendants and there is no reason to believe that leave to file an amended complaint was not made in good faith, plaintiff's motion under Rule 15(a) Fed.R.Civ.P. is granted.

 C. The Claimed Substantive Violations of the RLA

 Defendant NMB is an independent administrative agency of the United States established pursuant to section 4, First of the RLA, 45 U.S.C. § 154, First. By certification dated December 11, 1980, the NMB certified the IAM as the representative, for purposes of the RLA, of the craft or class of Fleet and Passenger Service Employees, employees of BA. By way of this action, plaintiff seeks declaratory and injunctive relief including, inter alia, setting aside the NMB certification which recognized the IAM as the representative of BA Fleet and Passenger Service Employees.

 The preliminary question which has been raised by all defendants addresses this court's subject matter jurisdiction over BA's challenges to various determinations made by the NMB in the context of the representation dispute. Generally, the parties agree that " "(representation) disputes,' which involve controversies surrounding the designation and authorization of representatives of employees covered under the RLA, are committed to the exclusive jurisdiction of the NMB." Air Line Pilots Ass'n. v. Texas International Airlines, 656 F.2d 16, 20 n.6 (2d Cir. 1981), citing, Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61 (1943). The doctrine of exclusive jurisdiction was identified by the Supreme Court in Switchmen's Union, supra, based on its construction of section 2, Ninth, 45 U.S.C. § 152, Ninth, which reads as follows:

"If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the 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 designated 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 representative 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 interference, influence or coercion exercised by the carrier. In the conduct of any election for the ...

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