Opinion
Civil Action No. 3:98-CV-2198-M.
June 7, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant National Mediation Board's Motion for Summary Judgment and Plaintiff International Brotherhood of Teamster's Motion for Summary Judgment, both filed February 29, 2000, all briefs in support of those motions, and all responses and replies thereto.
I. Background Claims
Express One International, Inc. ("Express One") is a commercial airline. The National Mediation Board ("NMB") is an administrative body created under the Railway Labor Act ("RLA") to investigate and mediate labor disputes affecting rail and air carriers. Metroflight, Inc. v. National Mediation Bd., 820 F. Supp. 288, 289 (N.D. Tex. 1992).
On May 21, 1998, 39 days before ballots would be counted to decide whether Express One's flight deck crew, then unrepresented, would be represented by a union, a posting under the screen name "ExpresOne" appeared on the aviation bulletin board of American Online ("AOL"). The posting read:
For you local union supporters, I'd be watching your backs. We know who most of you are posting your anti-company prop[a]ganda. We're not stupid.
On May 22, 1998, Express One contacted the NMB about the AOL posting. On a date not found in the record, but after the posting and before the ballots were counted, Express One issued a notice to its pilots, disclaiming responsibility for the posting and stating that the message did not reflect the airline's "philosophy or thoughts."
During the interval between the posting and the ballot count, there was substantial communication between Express One and the NMB about whether the NMB could/would issue a subpoena duces tecum to AOL to find out who posted the message. Three days before the election, on June 26, 1998, the NMB established a briefing schedule on the subpoena issue, asking Express One to provide the NMB with a detailed analysis of its position that the NMB had authority to subpoena a non-carrier.
The ballots were counted, and on June 29, 1998, the NMB announced that the International Brotherhood of Teamsters ("IBT") had won the election. On July 1, 1998, Express One formally objected to the election results and requested that the NMB refuse to certify the election results. Express One specifically claimed election interference related to the AOL posting. On July 2, the NMB established another briefing schedule by which Express One and the IBT could advance their respective positions on both the subpoena issue and the issue of whether the AOL posting had created election interference. Express One submitted its briefing on July 8, 1998, and the IBT responded on July 15, 1998. On August 6, 1998, the NMB certified the IBT as the bargaining representative for Express One's flight deck crew members and concluded that 1) the NMB's failure to issue a subpoena duces tecum could not constitute election interference because there was no authority for such a subpoena, and 2) the AOL posting could not have tainted the "laboratory conditions" necessary for a fair election because it was a single, isolated incident.
Express One contends that the NMB did not do enough, either pre-election or post-election, to ensure a fair election. Specifically, Express One alleges that the NMB failed to investigate Express One's claim of election interference. Express One asserts that the NMB's failure to investigate was in violation of the RLA, 45 U.S.C. § 152, Ninth, and now seeks a permanent injunction prohibiting the NMB and the IBT from enforcing the NMB's certification of the election. Express One further seeks a declaration that the election, and subsequent certification, are invalid, null and void.
The IBT asserts that Express One's lawsuit against the NMB was instigated solely for the purpose of delaying bargaining with the IBT. It further contends that, pursuant to the RLA, it requested that Express One engage in bargaining with it, but that Express One refused to participate in the requested bargaining in violation of the RLA, 45 U.S.C. § 152, First and Ninth. IBT contends that Express One's ground for refusing to engage in bargaining, namely, the dispute between Express One and the NMB described above, is without merit and frivolous. By its Complaint, filed on April 30, 1999, the IBT asks that the Court enter an order compelling Express One to engage in bargaining with the IBT and to comply with its obligations under the RLA.
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A material fact is one that "might affect the outcome of the suit under the governing law" and a "dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists, and if the movant fails to meet its burden, the motion must be denied, regardless of the nonmovant's response. Little, 37 F.3d at 1075. If, however, the movant does meet its burden, then the nonmovant must go beyond the pleadings and "designate specific facts showing that there is a genuine issue for trial." Id. The record before the court must be considered in the light most favorable to the nonmovant. Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
III. Analysis
The RLA "entrusts to the [NMB] the duty to investigate representational disputes upon request by either party, and to determine the will of the employees as to whom their representative will be." Metroflight, Inc. v. National Mediation Bd., 820 F. Supp. 288, 290 (N.D. Tex. 1992), citing 45 U.S.C. § 152, Ninth. The NMB's duty to investigate is "a duty to make such investigation as the nature of the case requires." Brotherhood of Railway Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 662 (1965). When, as in the instant case, election interference is alleged, the NMB must determine, through its investigation, whether a plaintiff can establish a prima facie case of election interference. Fox River Valley R.R., 20 NMB 251, 259 (1993). To do so, the NMB must evaluate whether Express One's allegations, if taken as true, might reasonably taint the laboratory conditions. Id.
This Court cannot intervene in the instant action unless there is an egregious violation of a specific provision of the RLA. Metroflight, 820 F. Supp. at 291, citing Russell, 714 F.2d at 1340. As conceded at argument on the summary judgment motions, held May 19, 2000, Express One's position is, in effect, that the NMB did not conduct an investigation, in violation of 45 U.S.C. § 152, Ninth. This Court's review "extends only to determine whether the [NMB] did in fact conduct the investigation." Russell, 714 F.2d at 1346, citing Brotherhood of Railway Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 661 (1965). Here, the NMB was to investigate Express One's allegations that the circumstances surrounding the AOL posting constituted election interference. Specifically, the NMB was to investigate whether the AOL posting might have reasonably tainted the conditions under which a fair election could be held. The mechanics and details of the investigation are left almost entirely to the NMB. Id., citing Brotherhood of Railway Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 662 (1965). An NMB investigation "is `essentially informal, not adversary'; it is `not required to take any particular form.'" Brotherhood of Railway Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 662 (1965), citing Inland Empire District Council v. Millis, 325 U.S. 697, 706 (1945). To determine whether, in fact, the NMB conducted an investigation, this Court is to do no more than "peek at the merits." Metroflight, 820 F. Supp. at 290. If this Court concludes that the NMB did indeed conduct an investigation, whether thorough or not, then the Court cannot step in and set aside the NMB's certification of the IBT. See Metroflight, 820 F. Supp. at 291-92.
Express One's assertion that the NMB failed to investigate the coercive effect of the AOL posting before the ballot count, in violation of 45 U.S.C. § 152, Ninth, goes to the undisputed fact that, before the voting concluded, the NMB had done nothing but establish a briefing schedule regarding the subpoena issue. However, the NMB's current Representation Manual, which is part of the summary judgment record, states that "[t]he Board will investigate allegations of election interference only after the Ballot count, except in extraordinary circumstances." Although the Representation Manual is not binding on the NMB and sets out neither the exclusive procedures for NMB investigations, nor the procedures which the law necessarily mandates, the Court believes that a deferral of the substantive evaluation of the facts until after the ballot count, but before the certification, is not an egregious violation of a specific duty under 45 U.S.C. § 152, Ninth. Metroflight, 820 F. Supp. at 291 (judicial intervention is warranted only when the NMB violates a specific duty under the RLA).
As to the NMB's investigation after the election, Express One complains about 1) the NMB's staff's failure to refer the "non-routine" subpoena issue to the members of the NMB Board; 2) the fact that NMB Senior Hearing Officer Joyce Klein unilaterally made decisions about Express One's complaints, rather than involving several individuals at different levels of the NMB; and 3) the NMB's failure to conduct field interviews with persons at AOL or the IBT, or any of Express One's flight deck crew, and instead basing its decision only on the paper submissions of Express One and the IBT, along with the results of some legal research. As to these allegations, this Court must "peek at the merits" in order to determine whether the NMB's actions constituted an "investigation."
In Russell, the Court found that the NMB's complete failure to investigate a representational dispute violated a clear statutory duty to do so under the RLA. Russell v. National Mediation Bd., 714 F.2d 1332, 1346-47 (5th Cir. 1983). Larry Russell, a "rank and file employee," who belonged to the Association of Santa Fe Railway Police Officers (the "Association") had filed an "Application for Investigation of Representational Dispute" with the NMB, asking it to investigate and certify the entity or entities authorized to represent the employees of the Association. Id. at 1334-35. The NMB issued an order dismissing Russell's application, stating, in pertinent part, that he lacked an intent to represent the employees "in the subject craft or class" if elected and certified. Id. at 1336. The court in Russell held, however, that employees have a clear right under the RLA "to opt for nonrepresentation," and that the NMB did not "conduct an investigation" when it dismissed Russell's application, having determined that "Russell intended to terminate collective representation in favor of `exempt' status." Id. at 1346-47. Here, in contrast to its wholesale refusal to act in Russell, the NMB considered briefing and evidence from Express One and the IBT before it certified the IBT. In Air Line Employees Ass'n. Int'l. v. National Mediation Bd., No. 80-1342, 1981 WL 2391, at *4 (D.D.C. 1981), the NMB did less, but the court nevertheless found that the NMB had not breached its duty to investigate under the RLA. In Air Line Employees, after the NMB certified the IBT as the winner of an election for union representation of a group of airline employees, the Air Line Employees Association International (the "Association") filed a series of protests with the NMB, including asserting that the "outcome of the election was prejudiced by the transmission of a `Vote Teamsters' message on the airline's teletype network on the day balloting began." Id. at * 1. However, within a matter of hours, and after a cursory review of its files, the NMB dismissed the protests. Id. at *1, 4. The court held that the NMB's cursory investigation, from which it found too speculative the Association's allegation that prejudice resulted from the unauthorized teletype message, did not "constitute the kind of gross violation of the statute that is susceptible to review by the Court." Id. at *4.
In the instant case, the NMB's investigation was neither thorough nor comprehensive. However, this Court is not to decide whether the NMB's treatment of Express One's complaints was "optimal," but rather, whether its actions constituted an investigation at all. Id. This Court concludes that the NMB did investigate Express One's complaints and thus satisfied its duties under the RLA. Optimally, it would have done substantially more. Since it did investigate, however, this Court cannot step in and set aside the NMB's certification of the IBT. The NMB's summary judgment motion is therefore GRANTED.
The law requires that Express One engage in bargaining with the IBT, the elected representative of Express One's flight deck crew members. United Air Lines, Inc. v. Airline Division, International Brotherhood of Teamsters, 874 F.2d 110, 114-15 (2nd Cir. 1989), citing 45 U.S.C. § 152, Ninth. The NMB certified the IBT as the elected representative of Express One's pilots, and Express One must engage in bargaining with the IBT. As such, the IBT's summary judgment motion is GRANTED.
IV. Conclusion
For the reasons stated above, the summary judgment motions for both the NMB and the IBT are GRANTED. The NMB's certification of the IBT as the representative of Express One's flight deck crew stands and Express One is thus ORDERED to engage in bargaining with the IBT and to comply fully with the RLA. Express One's claims are DISMISSED WITH PREJUDICE, with costs taxed in favor of the NMB
SO ORDERED.