Opinion
Civil No. 03-1642 (ESH)
November 5, 2003
MEMORANDUM OPINION
Defendant National Mediation Board's ("Board") Motion to Dismiss is before the Court. In its complaint, Pinnacle Airlines, Inc. challenges defendant's certification of the Paper, Allied-Industrial, Chemical Energy Workers International Union ("PACE") as the collective bargaining representative of the craft or class of Pinnacle's fleet and passenger service employees under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. Upon consideration of the pleadings and the entire record, and for the reasons stated below, the Court will grant defendant's motion.
Defendant's motion is titled Motion to Dismiss or for Summary Judgment for Lack of Subject Matter Jurisdiction or for Failure to State a Cause Upon Which Relief Can Be Granted ("Def.'s Mot").
BACKGROUND
On April 23, 2002, PACE filed an application with the Board pursuant to section 2, Ninth of the RLA alleging that a dispute had arisen as to the representation of Pinnacle's fleet and passenger service employees. PACE claimed that approximately 605 Pinnacle employees in the craft or class were unrepresented and sought to be certified as their representative. The Board docketed the case and began an investigation on April 25, 2002. On May 22, 2002, the Board authorized a mail ballot election, denying PACE'S request for a ballot box election. Only those individuals employed in the craft or class as of April 20, 2002 were eligible to vote.
Ballots were mailed on June 11, 2002, and were counted on July 9, 2002. Of 704 eligible voters, 695 ballots were counted, and 277 contained votes for PACE. After finding that less than a majority of eligible employees had voted for representation, the Board dismissed PACE's application on July 10, 2002.
Six ballots were returned as undeliverable, three ballots were declared void, and two votes were cast for another organization or individual.
One week later, PACE filed Allegations of Election Interference with the Board, claiming that Pinnacle's conduct during the election had tainted the election's laboratory conditions. After the Board's investigations of these allegations, it issued a determination on February 14, 2003, that the laboratory conditions required for a fair election were tainted based on the totality of the circumstances. It found that Pinnacle's discharge of two vocal union supporters during the election period and a prolonged supervisory presence creating the appearance of surveillance of union meetings had created a chilling effect on the employees' free choice regarding representation.
Specifically, PACE alleged that Pinnacle interfered with the election by terminating employees for supporting the union, granting benefits timed to affect the outcome of the election, using benefit changes to campaign against the union in videotapes and other communications to employees, engaging in surveillance of employees attending union meetings, establishing an Employee Relations Committee when it had knowledge of PACE's organizing campaign, and failing to post the Board's notice of the representation dispute at two stations. PACE also claimed that a ballot from another election had been intermingled with the Pinnacle election. On August 6, 2002, after an initial investigation, the Board found that PACE's allegations stated a prima facie case that the laboratory conditions were tainted and held that the Board would conduct further investigation.
Based on its finding of interference, the Board ordered a rerun election using Telephone Electronic Voting (TEV). The Board decided that only those individuals employed in the craft or class as of April 20, 2002, the original eligibility cut-off date, would be eligible to vote, and neither PACE nor Pinnacle challenged this decision prior to the rerun election. Thus, 441 of the 704 employees were eligible to vote at the time the second election took place. TEV instructions were mailed to employees on April 28, 2003, and when the votes were counted on May 28, PACE received 229 votes. Since this number exceeded the required 222 majority of eligible voters, the Board issued a certification the next day that PACE had been duly designated to represent the craft or class.
The Board had initiated the rerun election on March 26, 2003, but cancelled that election because some employees were issued incorrect TEV personal identification numbers due to an unintentional clerical error. (Mansfield Dec. 18-20.)
On June 6, 2003, Pinnacle filed Allegations of Election Interference, alleging that the integrity of the telephonic voting process was compromised by PACE-assisted group voting, that
PACE'S funding of legal representation in two former Pinnacle employees' wrongful termination suits had tainted the election results, and that the Board's retention of the initial voter eligibility date rendered it impossible for a majority of the employees to express their will. After considering the parties' submissions and conducting an investigation, the Board dismissed Pinnacle's allegations on July 2, 2003, issuing a letter ruling holding that Pinnacle's allegations of election interference did not support a prima facie case that the laboratory conditions were tainted. The Board found that Pinnacle's group voting allegations were not supported by data contained in the voting records, that the provision of legal assistance to employees prior to union certification does not state a grounds for a claim of election interference as a matter of law, and that without a turnover of more than a majority of the eligible electorate, use of the original eligibility date is per se appropriate.
Pinnacle has now filed a complaint seeking an order setting aside the Board's certification of PACE as the fleet and passenger service employees' representative, directing the Board to conduct further investigation of Pinnacle's election objections, and declaring that Pinnacle is under no obligation to bargain with PACE over the terms and conditions of the employees' employment. It claims that the Board's certification of PACE was a gross violation of the RLA and its Fifth Amendment due process rights. The Board now moves to dismiss Pinnacle's claims.
ANALYSIS
Under the RLA, employees have the right to organize and to bargain collectively through representatives of their choice. "The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this Act." 45 U.S.C. § 152, Fourth. If a dispute arises as to the representation of a craft or class, the Board is authorized, upon request of either party to the dispute, to investigate it. Id. § 152, Ninth. As part of this investigation, the Board is authorized to take a ballot of the employees involved to insure that the employees' choose their representative without interference, influence, or coercion by the employer. Id. It has the authority to designate who may participate in the vote and to establish the rules governing the election. Id.
The Board has broad discretion to carry out its investigative duties in a manner appropriate for the case at hand. See Bhd. of Ry. and S.S. Clerks v. Ass'n for the Benefit of Noncontract Employees, 380 U.S. 650, 662 (1965) ("Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case."). Thus, it is generally presumed that a district court lacks jurisdiction to review certification decisions. See U.S. Airways, Inc. v. Nat'l Mediation Bd., 177 F.3d 985, 989 n. 2 (D.C. Cir. 1999); Prof'l Cabin Crew Ass'n v. Nat'l Mediation Bd., 872 F.2d 456, 459 (D.C. Cir. 1989) ("Judicial review of NMB decisions is extraordinarily limited."); Int'l Ass'n of Machinists v. TWA, 839 F.2d 809, 811 (D.C. Cir. 1988) ("Judicial review of NMB decisions is one of the narrowest known to the law."). A court may only review the Board's decisions upon a showing "that the certification decision was a gross violation of the [RLA]" or that it "violated the constitutional rights of an employer, employee, or Union." TWA, 839 F.2d at 811; accord U.S. Airways, 177 F.3d at 989; Prof'l Cabin, 872 F.2d at 458.
By alleging RLA and constitutional violations, Pinnacle seeks review on both of these grounds. "Once an employer (or employee or union) pleads a violation of its constitutional rights or a gross violation of its statutory rights arising from an NMB order, jurisdiction depends on the merits of the argument." U.S. Airways, 177 F.3d at 989. While a court need only "peek at the merits" when a challenge is predicated on an alleged gross violation of the RLA, it must review the "full merits" when evaluating a constitutional challenge. Aerovias de Mexico v. Nat'l Mediation Bd., 211 F. Supp.2d 1, 4-5 (D.D.C. 2002) (citing U.S. Airways, 177 F.3d at 989-90); see also TWA, 839 F.2d at 812 (rejecting TWA's constitutional challenge to Board action because it offered no authority for its argument and thus "failed to demonstrate" a constitutional violation).
Likewise, in deciding whether to dismiss a claim for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), a court may "consider matters outside the pleadings without converting the motion into one for summary judgment." Fed'n for Am. Immigration Reform v. Reno, 897 F. Supp. 595, 600 n. 6 (D.D.C. 1995), aff'd, 93 F.3d 897 (D.C. Cir. 1996); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Because Pinnacle's claims of RLA and constitutional violations against the Board can be dismissed pursuant to Rule 12(b)(1), the Court need not consider defendant's motion under the standards set forth in Rules 12(b)(6) or 56. See, e.g., Aerovias, 211 F. Supp.2d at 1; LSG Lufthansa Servs. v. Nat'l Mediation Bd., 116 F. Supp.2d 181, 190 (D.D.C. 2000).
I. Alleged Gross Violations of the RLA.
A. Investigation of Allegations of Group Voting.
Pinnacle contends that the Board did not fulfill its statutory duty to investigate the dispute raised by Pinnacle's allegation that the "integrity of the telephone voting process was compromised through group voting assisted and encouraged by PACE." (Pl.'s Opp. at 12). Although certifications by the Board after an investigation are considered unreviewable, if a court finds that the Board has not fully discharged its duty to conduct an investigation, its certification is "an act contrary to the [RLA] and in excess of its authority thereunder." Int'l In-Flight Catering Co. v. Nat'l Mediation Bd., 555 F.2d 712, 717 (9th Cir. 1977); see also British Airways Bd. v. Nat'l Mediation Bd., 685 F.2d 52, 56 (2d Cir. 1982). The focus of the inquiry is whether the Board investigated the dispute, not how it conducted its investigation. Cont'l Airlines, Inc. v. Nat'l Mediation Bd., 793 F. Supp. 330, 332 (D.D.C. 1991), aff'd, 957 F.2d 911 (D.C. Cir. 1992).
The Board recognized and discharged its duty to investigate Pinnacle's group voting allegation. It acknowledged in its decision that it must "examine the record to determine whether the participant alleging election interference has presented a prima facie case," considering "whether the allegations and evidence, if true, might reasonably taint the laboratory conditions." In re Pinnacle Airlines, Inc., NMB Case No. R-6885 (July 2, 2003) "Pinnacle"). To conduct its investigation, the Board obtained voting data and analyzed it for unusual patterns, focusing on the times and days highlighted by affidavits submitted by Pinnacle. (Mansfield Dec. ¶¶ 29-31.) In its decision, the Board cited affidavits submitted by both PACE and Pinnacle, and held that "[t]he Investigator reviewed the election data, including the telephone numbers used by the voters and the dates and times of voting, and found that Pinnacle's allegations are not supported by the data contained in the voting records." ( Pinnacle at 4.) Since the Board investigated the allegations of inappropriate election influence and issued its findings, Pinnacle simply cannot argue that the Board failed to discharge its duty to investigate the dispute. What constitutes a prima facie case of interference is left to the Board's discretion, and its refusal to find one in this instance did not exceed its statutory authority.
Pinnacle's complaints go instead to the quality of the investigation. It claims that the Board "ignored Pinnacle's affidavits," "relied on PACE's self-serving declarations," and "made a cursory examination of the telephone log that both ignored the spike in voting on May 1 and completely missed the point that origin telephone numbers are meaningless given the ubiquity of cellular telephones." (Pl.'s Opp. at 10.) To the extent that it is appropriate for the Court to "peek at the merits" of these allegations, U.S. Airways, 177 F.3d at 989-90, it is clear that they are wholly without merit. The Board did not ignore Pinnacle's affidavits, but specifically considered them in its evaluation of the election data and expressly referred to them in its decision. (Def.'s Mot. at 9; Pinnacle at 3.) It did not rely exclusively upon PACE'S affidavits, but considered them along with its own factual investigation into the matter. ( Pinnacle at 3.) The investigation included an analysis by the contractor responsible for maintaining data on all TEV elections, who observed nothing suspicious, as well as the Board's investigator who concluded that no group voting had taken place. (Def.'s Mot. at 10; Pinnacle at 4.) The Board, therefore, fully discharged its duty to conduct an investigation into alleged party voting and did not commit a gross violation of the RLA.
In support of its claim of PACE-assisted group voting, Pinnacle submitted affidavits from three Pinnacle employees who were eligible to vote and a Pinnacle assistant manager. (Def.'s Mot. at 9.) The employee affidavits claim that other employees told them that "PACE helped them cast their vote[s]" and that they "had gone to one of these [PACE-sponsored] luncheons and at the lunch they cast their votes." ( Pinnacle at 3.) The assistant manager's affidavit stated that she saw "an unusually large group of Pinnacle employees — at least one of whom had a piece of paper in her hand — by the Skyport Inn [where the union held its employee meetings during the election period] in the proximity of individuals wearing PACE insignia." (Pl.'s Opp. at 11; Pinnacle at 3.) As the Board points out, these affidavits provide even less personal knowledge and identifying information than the affidavits rejected by the Board in Federal Express, 20 NMB 486 (1993). (Def.'s Mot. at 20.)
PACE's affidavits, submitted by a PACE organizer and a former Pinnacle employee working on the organizing campaign, stated that "employees were specifically told not to vote as a group," and that they "specifically noted that there were not to be voting parties, and that employees were not to vote as a group." ( Pinnacle at 3-4.)
The contractor reported that "of 232 ballots cast there was not an unusual number of votes from a single phone number. There were 4 phone numbers from which 2 votes were cast, 1 phone number from which 3 votes were cast, and a total of 6 votes were cast from phones where the caller ID was not captured." (Def.'s Mot. at 9-10.) The investigator noted that votes cast from the same number were cast days or weeks apart. ( Id. at 10.) Pinnacle attempts to create suspicion around the fact that 52 votes, the most cast in one day, were submitted in PACE's favor on Thursday, May 1 (PACE luncheon meetings were held on Tuesdays and Thursdays). (Pl.'s Opp. at 4.) May 1, however, was the first day of voting, and such a "flurry of activity on the first days of voting" is "fully consistent with the Board's experience" as "reflected in the statistical record maintained by the Board verifying this trend." (Def.'s Reply at 9.)
B. Provision of Legal Services to Discharged Employees.
Pinnacle's second objection also involves the Board's alleged failure to investigate. In September 2002 two former Pinnacle employees filed a lawsuit alleging that the carrier terminated them in violation of the RLA. PACE agreed to pay the legal fees associated with the lawsuit. Pinnacle claims that PACE's provision of legal services, coupled with a "widespread dissemination of the value of the lawsuit" to Pinnacle employees, tainted the rerun election. (Pl.'s Opp. at 5.)
The Board does not claim to have conducted an investigation into the facts behind Pinnacle's allegation. Instead, it concluded that the "provision of legal assistance to employees prior to certification does not state grounds for a claim of election interference" as a matter of law. ( Pinnacle at 4 (citing LSG Lufthansa Serv., 27 NMB 214, 216 (2000)).) The Board's decision satisfies its investigatory duties under the RLA. As this Court held in LSG Lufthansa, "there is nothing in the statute that prohibits the Board from rejecting a claim of illegal influence as being legally insufficient without first investigating the factual underpinnings of the claim. . . ." 116 F. Supp.2d at 187.
Moreover, the Board's decision does not constitute a gross violation of the RLA. Pinnacle insists on citing decisions applying the National Labor Relations Act (NLRA) for the proposition that a union's provision of legal services prior to certification interferes with employees' choice of representative, because this Circuit has interpreted RLA and NLRA provisions barring undue employer influence of employees as meaning "pretty much the same thing." (Pl.'s Opp. at 13 (quoting Atlas Air, Inc. v. Air Line Pilots Ass'n, 232 F.3d 218, 225 (D.C. Cir. 2000)).) The Supreme Court has cautioned, however, that the NLRA "cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly with due regard for the many differences between the statutory schemes." TWA v. Indep. Fed'n of Flight Attendants, 489 U.S. 426, 439 (1989) (quoting Trainmen v. Jacksonville Terminal, 394 U.S. 369 (1969)). Here, such an analogy is inappropriate. The RLA charges the Board with the duty to "insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier." 45 U.S.C. § 152, Ninth (emphasis added). The case law cited by Pinnacle finding election interference by unions with respect to the provision of legal services, however, applies provisions of the NLRA which prescribe "unfair labor practices" by both employers and unions. See 29 U.S.C. § 158(a)-(b). There is no legal authority to support the claim that, under the RLA, a union's provision of legal services to former employees during the voting has tainted the election, and thus, the Board's decision was not a gross violation of the RLA. See LSG Lufthansa, 116 F. Supp.2d at 187 ("[D]efendant did not act contrary to specific statutory directions in arguably reaching a legal conclusion that union-provided legal assistance fails to state a claim under the RLA.") (internal quotation omitted). C. Application of the Original Eligibility Date.
The Circuit in Atlas addresses a different section of the RLA, which deals with alleged interference by the carrier, and thus is of no help to Pinnacle's argument. See Altas, 232 F.3d at 223-24.
Pinnacle's final allegation invokes the provision of the RLA requiring that "[t]he majority of any craft or class of employees shall have the right to determine who shall be the[ir] representative. . . ." 45 U.S.C. § 152, Fourth. It claims that the Board's February 14, 2003 decision to "retain the original [voter] eligibility date despite the departure of over 43% of the original voters — resulting in an electorate of less than 55% of the total craft and class — rendered it impossible for an uncoerced majority of the craft and class to express its will" and was thus a gross violation of the RLA. (Am. Compl. ¶ 15.)
The Board addressed Pinnacle's complaint, stating that "[i]t is the Board's practice to use the original cut-off date in re-run elections" unless there has been "a turnover of more than a majority of the eligible electorate." ( Pinnacle at 5 (citing Ark. Mo. R.R., 25 NMB 92 (1997); Ind. R.R. Co., 25 NMB 68 (1997); W. Cent. Ltd./Fox Valley W. Ltd., 24 NMB 64 (1996); Am. W. Airlines, Inc., 21 NMB 293 (1994)).) Application of the initial eligible voter count is especially appropriate where, as here, election interference by the employer created the need for the rerun election. ( Pinnacle at 5.) See also LSG Lufthansa, 116 F. Supp.2d at 190.
Apparently, Pinnacle is requesting that the Court force the Board to change its "inflexible rule that eligibility dates will only be changed where there has been a turnover of more than a majority of the eligible electorate" because the Board "offers no explanation or rationale as to why a 46% turnover is not equally as debilitating. . . ." (Pl.'s Opp. at 16.) Eligibility determinations and the establishment of procedures governing the election are, however, "entirely [the Board's] affair, as long as it makes certain that the carrier does not interfere." British Airways Bd. v. Nat'l Mediation Bd., 685 F.2d 52, 56 (2d Cir. 1982). The Board's voter eligibility determination, therefore, does not represent a gross violation of the RLA, and the Court has no jurisdiction to review this action. II. Constitutional Violation.
The Board also noted in its decision that Pinnacle's request for a change in the eligibility date, filed approximately four months after the Board ordered the rerun with the initial date, was untimely. ( Pinnacle at 5.) As in LSG Lufthansa, the Court need not address whether Pinnacle waived its opportunity to assert this objection, because the Board's selection of the eligibility date was well within its discretion.
Pinnacle's constitutional claim is based upon the "serious and enforceable legal obligations" imposed by the RLA in requiring it to negotiate in good faith with a certified union or be subject to civil and criminal sanctions. (Am. Compl. ¶ 24.) It contends that the Board's actions and certification of PACE violated its procedural due process rights because the Board has subjected it to these obligations without providing it sufficient process for resolving Pinnacle's challenges to the certifying election. (Am. Compl. ¶ 25; Pl.'s Opp. at 17.) It also contends that the Board's "refus[al] to permit Pinnacle any opportunity to verify the accuracy of the vote — or the independent and uncoerced nature of the vote" violated its constitutional rights. (Am. Compl. ¶ 26.)
The Court has jurisdiction over the Board's actions and decisions only if Pinnacle has made a "substantial showing of a violation of that party's constitutional rights as a result of the Board's action." U.S. Airways, 177 F.3d at 990 n. 3. Thus, Pinnacle is "not faced with a simple Rule 12(b)(6) challenge, in which it could reasonably rely on well-pled allegations in a complaint. . . ." Aeromexico, 211 F. Supp.2d at 8. Pinnacle has not made the substantial showing that its due process rights were violated so as to justify the Court's jurisdiction over the Board's actions.
The process to which Pinnacle is entitled derives from the Board's duties under the RLA. Courts "are unable to require more." Prof'l Cabin, 872 F.2d at 465 (the court's finding that the Board discharged its duty to investigate denied it jurisdiction over both RLA and constitutional claims); see also Virgin Ail. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1251 (2d Cir. 1992) (a finding that the Board adhered to the relevant election regulations disposed of the airline's due process claim). The RLA requires only that the Board allow the carrier to submit written evidence before a determination is made. See Bhd. of Railway and S.S. Clerks v. Nat'l Mediation Bd., 380 U.S. 650, 666 (1965); see also United State v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969) (because the function of the Board is investigatory, not adjudicatory, the "full panoply of judicial procedures" need not be used); Metroflight, Inc. v. Nat'l Mediation Bd., 820 F. Supp. 288, 293 (N.D. Tex. 1992) (the Board's consideration of the carrier's position statement provided the carrier with sufficient due process).
As discussed above, Pinnacle has not demonstrated that the Board's investigatory procedures were a gross violation of the RLA, nor has it shown that the Board failed to provide it with an opportunity to submit information for consideration. In fact, since the Board became involved in this matter, it has considered submissions from Pinnacle on numerous occasions. The conclusory allegations proffered by Pinnacle are not clarified by the cursory argument in its opposition, and after reviewing the arguments and supporting documentation, the Court is convinced that they are simply insufficient to support a constitutional claim. See Aeromexico, 211 F. Supp.2d at 9.
For example: Pinnacle's July 29, 2002 response to PACE's initial allegation of interference; Pinnacle's supplemental submissions filed on August 23, September 6, and December 12, 2002; Pinnacle's April 14 and 15, 2003 responses to PACE's motion to reconsider election type; Pinnacle's allegations of election interference filed on June 6, 2003 with affidavits. ( See Mansfield Dec. ¶¶ 12, 14, 22, and 26.)
Pinnacle's claim that it was deprived of any opportunity to verify the accuracy of the vote is similar to the airline's claim in Aeromexico. There, the airline claimed that the Board violated its due process right "to interview employee witnesses in an effort to defend itself against the [union's] charge that it had unlawfully interfered in an election." Id. at 4. Chief Judge Thomas Hogan of this Court held that the carrier had no such right. Id. Instead, he found that the carrier's submission of written statements and affidavits and the Board's consideration of the carrier's motion "constituted more than sufficient process to satisfy the Fifth Amendment in this case." Id. Likewise, Pinnacle has no right to independently review the election information and has been afforded sufficient process to protect its rights.
Pinnacle claims that the Board refused to allow it the opportunity to review election data "despite its FOIA request." (Pl.'s Opp. at 16.) As the Board indicates, the civil remedy provided for a denial of a FOIA request is not to litigate the issue in this action, but to bring a civil action under the Freedom of Information Act. (Def's Mot. at 30-31.)