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11/03/89 Local 808, Building v. National Mediation Board

November 3, 1989

AMERICA, APPELLEES

v.

NATIONAL MEDIATION BOARD AND METRO-NORTH COMMUTER RAILROAD COMPANY, APPELLANTS 1989.CDC.339



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

LOCAL 808, BUILDING MAINTENANCE, SERVICE AND RAILROAD

WORKERS and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

Appeals from the United States District Court for the District of Columbia, Civil Action No. 88-1730.

APPELLATE PANEL:

Mikva, Edwards and Williams, Circuit Judges. Opinion for the Court filed by Circuit Judge Edwards. Dissenting opinion filed by Circuit Judge Mikva.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS

This appeal challenges an unprecedented judgment of the District Court ordering the National Mediation Board ("NMB" or "Board") to terminate mediation and proffer arbitration in connection with a "major dispute" between Local 808, Building Maintenance, Service and Railroad Workers ("Union" or "Local 808") and Metro-North Commuter Railroad ("Metro-North" or "Railroad"). Appellants NMB and Metro-North claim that the trial court had no authority to review the Board's determination that its efforts to mediate the parties' dispute have not proved unsuccessful, and that, therefore, the Board is not required by section 5 First of the Railway Labor Act ("Act" or "RLA"), as amended, 45 U.S.C. § 155 First (1982), to terminate mediation and proffer arbitration. The appellants also point out that there never has been a final disposition of a case in which a court has required the NMB to discontinue mediation and proffer arbitration.

In a situation such as the one before us, a court has jurisdiction to provide a remedy only "if the Board continues mediation on a basis that is completely and patently arbitrary and for a period of time that is completely and patently unreasonable, notwithstanding the lack of any genuine hope or expectation that the parties will arrive at an agreement." International Ass'n of Machinists & Aerospace Workers v. NMB, 138 U.S. App. D.C. 96, 425 F.2d 527, 537 (D.C.Cir. 1970) (" Machinists ") (Leventhal, J.). This rule has come to mean that court relief from continuation of mediation "will be available, if at all, only in a most extraordinary situation bordering on patent official bad faith." See Delaware & Hudson Ry. v. United Transp. Union, 146 U.S. App. D.C. 142, 450 F.2d 603, 608 & n. 11 (D.C.Cir.) (Leventhal, J.), cert. denied, 403 U.S. 911, 29 L. Ed. 2d 689, 91 S. Ct. 2209 (1971). Because we find that the Board, in deciding to continue mediation, did not act in patent official bad faith, we hold that the District Court was without authority to review the Board's determination. Accordingly, we reverse and remand to the District Court for dismissal with prejudice. I. BACKGROUND

A. Factual History

In July 1985, Local 808, the collective bargaining representative for Metro-North's track workers, served a notice on Metro-North proposing changes in the pay, rules and working conditions of Metro-North's track workers. *fn1 Local 808's proposal sought parity with the Long Island Rail Road track workers and included, inter alia, a demand for a wage increase of twenty percent per year for three years, additional paid holidays and a pension plan equal to that offered by the LIRR. Metro-North, thereafter, served its own section 6 notice on Local 808 offering a two percent wage increase per year in exchange for substantial work rule relief and health and welfare cost containment. Local 808 then informed Metro-North that it would negotiate as a member of a coalition of sixteen bargaining representatives.

The Union and Metro-North met nine times for bargaining during the ensuing ten months. In June of 1986, Local 808, notwithstanding its representation that it would bargain with the coalition on common issues, requested NMB's mediation services. Between October 1986 and February 1988, Local 808 and Metro-North attended fourteen NMB mediated sessions. Representatives of the parties also met privately with the mediator or a member of the NMB many times. In February 1988, Local 808 asked the mediator for the Railroad's last best offer, which failed union membership ratification by a 411-12 vote. Shortly thereafter, Metro-North served the Union with a new contract proposal that offered terms less favorable to the Union than the proposal rejected by the employees.

On April 18, 1988, the Union formally requested the NMB to end mediation and to proffer arbitration. The Union declared: "the parties have reached the point where it is apparent that continued mediation will not result in a settlement. It is time to begin the procedures prescribed in § 9a of the Act; perhaps Emergency Board proceedings will lead to settlement." Complaint 24, reprinted in Joint Appendix 15. The NMB declined to proffer arbitration on the ground that continuing mediation would enhance the prospects for ultimate settlement. Two months later, on June 24, 1988, the Union filed its complaint in district court. As of the date the complaint was filed, the dispute had been on the Board's mediation docket for about two years.

B. Procedural History

The District Court granted Metro-North's motion to intervene, and, on May 19, 1989, the trial judge issued an order directing the NMB to cease mediation and to proffer arbitration within twenty days. See Local 808 v. NMB, Civ. Action No. 88-1730 (D.D.C. May 19, 1989), reprinted in J.A. 430-31. The District Court held that the Board violated its duty under section 5 First of the Railway Labor Act (codified as amended at 45 U.S.C. § 155 First (1982)) when it failed to proffer arbitration after mediation efforts proved unsuccessful. See Local 808 v. NMB, slip op. at 19-21, reprinted in J.A. 427-29.

On June 9, 1989, consistent with the District Court's order, the NMB proffered arbitration. Metro-North accepted arbitration. Local 808 rejected arbitration. Metro-North then requested the President to create an Emergency Board, pursuant to section 9A of the Act, 45 U.S.C. 159a(c)(1) (1982). On July 13, 1989, appellants NMB and Metro-North filed a renewed motion for a stay pending appeal of the District Court's May 19, 1989 order. This court granted the stay on July 25, 1989. See Building Maintenance, Serv. & R.R. Workers, Local 808 v. NMB, Civ. Action No. 88-01730 (D.C.Cir. July 25, 1989) (Order). II. ANALYSIS

A. Statutory Framework

The Railway Labor Act of 1926, Pub. L. No. 257, 44 Stat. 577 (1926) (codified as amended at 45 U.S.C. § 151 et seq. (1982)), which was drafted in an unusual collaborative effort by a committee representing railroads and railroad unions, *fn2 was devised to provide a workable solution for resolving disputes in their industry with minimal disruption to the public. See 45 U.S.C. § 151a (1982); H.R.Rep. No. 1944, 73d Cong., 2d Sess. 1-2 (1934); Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 589, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971) (Brennan, J. dissenting); Detroit & T. Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148-49, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969). "The major purpose of Congress in passing the Railway Labor Act was to 'provide the machinery to prevent strikes' and the resulting interruptions of interstate commerce." Machinists, 425 F.2d at 533. To achieve this goal, the Act establishes an elaborate mediation and conciliation process, throughout which both parties are required to maintain the status quo. See 45 U.S.C. §§ 152 Seventh, 155 First, 156, 159a(h), 160 (1982); Shore Line, 396 U.S. at 150-53.

A principal aim of the RLA is to establish a detailed framework to facilitate settlement of "major disputes" *fn3 between carriers and their employees. As a general matter the statute requires the parties "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes . . . in order to avoid any interruption to commerce." 45 U.S.C. § 152 First (1982); see also Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 109 S. Ct. 2477, 2484, 105 L. Ed. 2d 250 (1989) (indicating these as "core duties imposed upon employers and employees by the RLA"). More specifically, "[a] party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice." Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (1969); see 45 U.S.C. § 156 (1982). If a dispute arises, "the parties must confer,

Most importantly, while the dispute is working its way through these stages -- conference, mediation and the waiting period of thirty days after a party refuses the Board's proffer of arbitration -- neither party may unilaterally alter the status quo. See 45 U.S.C. §§ 152 Seventh, 155 First, 156 (1982); Trainmen, 394 U.S. at 378. Thus, it is only after the Board has proffered arbitration and a party has waited the requisite thirty day cooling-off period (or sixty days in the event an Emergency Board has been created by the President),5 that a party may engage in self-help. For this reason, the Board's power to hold a dispute in mediation is the key to the structure Congress established for bringing about settlements without industrial strife.

Congress, in a 1981 amendment to the RLA, provided additional procedures beyond mediation for disputes involving publicly funded and operated interstate commuter railroads. See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, tit. XI, § 1157, 95 Stat. 357, 681-82 (1981) (codified at 45 U.S.C. § 159a (1982)) ("section 9A"). Under section 9A of the Act as amended, either party may act to require the President to create, consecutively, two emergency boards to investigate and report on the dispute. Cooling-off periods, during which the parties must maintain the status quo, also attend the section 9A procedures, further delaying recourse to self-help by as much as eight months.6 Metro-North is engaged in the interstate transportation of commuters in Connecticut and New York and, thus, the additional procedures established by section 9A apply to the dispute in this case.

It is within the context of this elaborate statutory framework, which requires prolonged maintenance of the status quo, that Local 808 seeks to have the court dislodge the key to the conciliatory process by ordering the NMB to cease mediation. According to Local 808, the Board violated section 5 of the RLA7 by refusing to proffer arbitration after mediation proved unsuccessful. See Brief for Appellees at 21-22.

B. Judicial Review of NMB Decisions

In no case cited by the parties to this case, and in none that we can find, has a court ever ordered the National Mediation Board to terminate mediation and proffer arbitration. There are, however, several cases in which courts have refused to order the NMB to proffer arbitration. See, e.g., Machinists, 138 U.S. App. D.C. 96, 425 F.2d 527 (D.C.Cir. 1970) (dismissing the claim with prejudice); International Ass'n of Machinists & Aerospace Workers v. NMB, 725 F. Supp. 558 (D.D.C. 1989) (refusing to order the Board to proffer arbitration after a three year mutually agreeable hiatus in mediation, which followed three years of mediation that produced no settlement); Seaboard World Airways v. Local 851, Int'l Bhd. of Teamsters, 501 F. Supp. 47 (E.D.N.Y. 1980) (dismissing the claim with prejudice). The reason the Union is unable to cite any support for its position is that the courts have only an "extraordinarily limited" authority to review decisions of the Board. See, e.g., Professional Cabin Crew Ass'n v. NMB, 277 U.S. App. D.C. 21, 872 F.2d 456, 459 (D.C.Cir. 1989) (finding no jurisdiction to review NMB's dismissal of an application for certification as bargaining representative).8 This court has recently observed, also in the context of a representation suit, that "judicial review of NMB decisions is one of the narrowest known to the law." International Ass'n of Machinists & Aerospace Workers v. Trans World Airlines, 268 U.S. App. D.C. 130, 839 F.2d 809, 811 (D.C.Cir. 1988), amended, 270 U.S. App. D.C. 175, 848 F.2d 232 (D.C.Cir. 1988), cert. denied, 488 U.S. 820, 109 S. Ct. 62, 102 L. Ed. 2d 40 (1988). See also Machinists, 425 F.2d at 543 (the courts have no authority to require the NMB to terminate mediation except in an "extraordinary and exceptional situation"). As the Ninth Circuit has noted, "the question whether federal courts have jurisdiction to review Board decisions is not the same as the question whether federal courts have jurisdiction to enforce provisions of the Act." Air Line Pilots Ass'n, Int'l v. Transamerica Airlines, 817 F.2d 510, 513 (9th Cir.), cert. denied, 484 U.S. 963, 108 S. Ct. 451, 98 L. Ed. 2d 391 (1987).

Furthermore, the Supreme Court has made it clear that the courts have no business interfering in major disputes under the RLA.

The RLA provides an exhaustively detailed procedural framework "to facilitate the voluntary settlement of major disputes." The effectiveness of these private dispute resolution procedures depends on the initial assurance that the employees' putative representative is not subject to control by the employer and on the subsequent assurance that neither party will be able to enlist the courts to further its own partisan ends.

Trans World Airlines v. Independent Federation of Flight Attendants, 489 U.S. 426, 109 S. Ct. 1225, 1234, 103 L. Ed. 2d 456 (1989) (citations omitted) (emphasis added). The Supreme Court similarly concluded in Burlington Northern Railroad Co. v. Brotherhood of Maintenance of Way Employees that "even when a violation of a specific mandate of the RLA is shown, 'courts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff's right.'" 481 U.S. 429, 446, 107 S. Ct. 1841, 95 L. Ed. 2d 381 (1987) (quoting International Ass'n of Machinists v. Street, 367 U.S. 740, 773, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961)).

In a situation of the sort that we face in this case, where the union seeks an injunction compelling the NMB to proffer arbitration and cease mediation, this court in Machinists held that the NMB is entitled to as strong a presumption as the legislature that "if any state of facts might be supposed that would support its action, these facts must be presumed to exist." 425 F.2d at 540. In short, a court has no jurisdiction to review the NMB's decision if

there is a reasonable possibility of conditions and circumstances (including attitudes and developments), available to the Board, consistent with the objective facts, sufficient to justify the Board's judgment that the possibility of settlement is strong enough to warrant continuation of the mediation process. However skeptical of success the court may be it cannot obliterate even the slim chance of success that may ensue from exhaustion of the process entrusted by Congress to the Mediation Board.

Id., at 541.

Clearly Congress contemplated a narrow role for the courts. The legislative history shows that "our thought has been in this law not to write a lot of statute law for the courts to enforce. . . . In the main the purpose of this bill is not to write some new law for the courts to enforce . . . We expect that most of the provisions of this bill are to be enforced by the power of persuasion, either exercised by the parties themselves or by the Government board of mediation representing the public interest." Railroad Labor Disputes: Hearings on H.R. 7180 Before the House Comm. on Interstate and Foreign Commerce, 69th Cong., 1st Sess. 65-66 (1926) (testimony of Donald R. Richberg, major spokesperson for the unions); see also Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 590-91, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971) (Brennan, J. dissenting) (quoting same testimony).

Absent a showing of patent official bad faith, a court has no authority to review the Board's decision to keep a dispute in mediation. In Machinists, 138 U.S. App. D.C. 96, 425 F.2d 527 (D.C.Cir. 1970) (Leventhal, J.), the lead case addressing the judiciary's power to order the NMB to proffer arbitration, this court determined that courts have no authority to move a dispute out of mediation except in an "extraordinary and exceptional situation" in which "the Board continues mediation on a basis that is completely and patently arbitrary and for a period that is completely and patently unreasonable, notwithstanding the lack of any genuine hope or expectation that the parties will arrive at an agreement." Id. at 537, 543 (emphasis added). The Machinists court, looking to the Supreme Court's findings in Switchmen's Union and considering the kind of agency action involved in a decision to continue mediation, cautioned that the "kind of judicial scrutiny that may be provided by the courts" must be defined and confined so as "to avoid imperiling the heart of the legislative program" and so that the court "does not abort or trammel the administrative process." Id. at 536, 538.

Following Machinists, this court determined that the role of the Board is "so sensitive and critical that ordinary doctrines permitting judicial action on a complaint of arbitrary delay and protraction are so drastically restricted that court relief from continuation of the process will be available, if at all, only in a most extraordinary situation bordering on patent official bad faith." Delaware & Hudson Ry. v. United Transp. Union, 146 U.S. App. D.C. 142, 450 F.2d 603, 608 (D.C.Cir. 1971) (Leventhal, J.) (emphasis added).9 The unique role of mediators requires such a deferential judicial posture, as the Supreme Court has recognized. See, e.g., General Comm. of Adjustment v. Missouri-Kan.-Tex. R.R., 320 U.S. at 337 ("The concept of mediation is the antithesis of justiciability"); Switchmen's Union v. NMB, 320 U.S. at 303 ("Where Congress took such great pains to protect the Mediation Board in its handling of an explosive problem, ...


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