UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) ASSOCIATION OF FLIGHT ) ATTENDANTS-CWA, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-2009 (RWR) ) DELTA AIR LINES, INC., ) ) Defendant. ) ______________________________) ) INTERNATIONAL ASSOCIATION OF ) MACHINISTS AND AEROSPACE ) WORKERS, AFL-CIO, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-2114 (RWR) ) DELTA AIR LINES, INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Various plaintiffs bring claims in these two actions under
the Railway Labor Act (“RLA”), 45 U.S.C. § 152, alleging that
efforts by defendant Delta Air Lines, Inc. (“Delta”) to initiate
a seniority integration process to combine various pre-merger
Northwest Airlines, Inc. (“Northwest”) and Delta employees
constituted unlawful interference with those employees’ rights to
choose their own representatives and to organize and bargain
collectively. Delta has moved to dismiss both actions under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject -2-
matter jurisdiction, arguing that the plaintiffs’ claims amount
to representation disputes within the exclusive jurisdiction of
the National Mediation Board (“NMB” or “the Board”). Because the
actions present no dispute over the representation of the
relevant employees, the defendant’s motions to dismiss will be
denied.1
BACKGROUND
Plaintiffs Association of Flight Attendants-CWA (“AFA”) and
the International Association of Machinists and Aerospace
Workers, AFL-CIO (“IAM”) are labor unions. When these actions
were filed, AFA and IAM served as the certified bargaining
representatives respectively for Northwest flight attendants and
various Northwest employee crafts and classes. (AFA Am. Compl.
¶¶ 4, 11; IAM Compl. ¶¶ 4; 11.) Plaintiff District Lodge 143 is
an organization affiliated with IAM that administered the
1 Plaintiffs also allege that Delta’s efforts were premature and violated Public Law 110-161, Division K, Title I § 117. (See Am. Compl. ¶¶ 32-37.) Delta argues that the statute creates no private cause of action. An alleged “violation of a federal statute alone is inadequate to support a private cause of action.” Tax Analysts v. I.R.S., 214 F.3d 179, 185 (D.C. Cir. 2000). While “courts may infer [a private cause of action] from the language or structure of a statute or the circumstances of its enactment[,]” id., the plaintiffs point to no authority reflecting that this statute creates a private right of action or any language or legislative history from which a private remedy may be inferred. However, because Delta brings its challenge under Rule 12(b)(1) (lack of subject matter jurisdiction) and not Rule 12(b)(6) (failure to state a claim), and Delta's jurisdictional challenge otherwise fails, its motion nevertheless will be denied. -3-
collective bargaining agreement between IAM and Northwest for the
various IAM-represented employees. (IAM Compl. ¶ 5.) Delta’s
relevant employees have not been represented by labor unions.
(AFA Am. Compl. ¶ 11; IAM Compl. ¶ 11.)
In 2008, Northwest and Delta reached an agreement to merge,
and Delta acquired all of the ownership interests in Northwest
shortly thereafter. (AFA Am. Compl. ¶¶ 12-13.) Following the
merger, Delta sent to AFA and District Lodge 143 separate letters
stating its intention to initiate a seniority integration process
that would merge various comparable groups of pre-merger Delta
and pre-merger Northwest employees. (See AFA Am. Compl., Ex. 1;
Mot. to Dismiss the AFA Am. Compl., Ex. 24.) Delta established
seniority integration committees whose members included
representatives elected by pre-merger Delta flight attendants,
and representatives of certain other pre-merger Delta employees.
Delta proposed that those representatives meet with
representatives of the pre-merger Northwest employees “for the
purpose of analyzing seniority data and seeking agreement on how
seniority lists should be combined.” (See AFA Am. Compl. ¶¶ 18,
19; IAM Compl. ¶¶ 19, 20.)
Plaintiffs allege that Delta’s efforts to initiate a
seniority integration process unlawfully interfered with the
employees’ rights under the RLA to choose their own
representatives and to organize and bargain collectively. (AFA -4-
Am. Compl. ¶¶ 25-26, 30-31; IAM Compl. ¶¶ 25-26, 30-31.) Delta
moves to dismiss the plaintiffs’ actions for lack of subject
matter jurisdiction, claiming that this matter is a
representation dispute over which the NMB has exclusive
jurisdiction.
DISCUSSION
In reviewing a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a court “accepts as true all of
the factual allegations contained in the complaint . . . and may
also consider ‘undisputed facts evidenced in the record.’”
Peter B. v. CIA, 620 F. Supp. 2d 58, 67 (D.D.C. 2009) (quoting
Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003)) (internal citation omitted). The party
claiming subject matter jurisdiction bears the burden of
demonstrating that such jurisdiction exists. Khadr v. United
States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). “[P]laintiff’s
factual allegations in the complaint . . . will bear closer
scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim.” Sheppard v. U.S.,
640 F. Supp. 2d 29, 33 (D.D.C. 2009) (internal quotation marks
and internal citation omitted). Further, a court may consider
materials outside of the pleadings in deciding whether it has
subject matter jurisdiction to hear a case. Hurt v. Lappin,
Civil Action No. 09-811 (RMC), 2010 WL 3022560, at *2 (D.D.C. -5-
Aug. 3, 2010) (citing Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1107 (D.C. Cir. 2005)).
The RLA establishes the right of airline carrier employees
to “bargain collectively [with the carrier] through
representatives of their own choosing.” 45 U.S.C. § 152, Fourth.
In relevant part, it states that “[t]he majority of any craft or
class of employees shall have the right to determine who shall be
the representative of the craft or class” and the representative
“shall be designated . . . without interference, influence, or
coercion by either party[.]” 45 U.S.C. § 152, Third, Fourth.
Further,
[i]f any dispute shall arise among a carrier’s employees as to who are the representatives of such employees . . . , it shall be the duty of the [NMB], upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, 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.
45 U.S.C. § 152, Ninth.
In Switchmen’s Union v. National Mediation Board, 320 U.S.
297, 303 (1943), the Supreme Court held that the NMB’s authority
to resolve representation disputes is exclusive. “[I]f Congress
had desired to implicate the federal judiciary and to place on
the federal courts the burden of having the final say on any
aspect of the problem, it would have made its desire plain.” Id.
Thus, “[t]he right of a majority of the employees to choose the -6-
bargaining representative is protected by the NMB’s certification
power under § 2, Ninth, to the exclusion of any concurrent
judicial protection.” Ass’n of Flight Attendants (AFA), AFL-CIO
v. Delta Air Lines, Inc., 879 F.2d 906, 911 (D.C. Cir. 1989)
(citing Switchmen’s Union, 320 U.S. at 301).
Whether a case involves a representation dispute “within the
exclusive jurisdiction of [the NMB] depends upon . . . the
substantive cause of action.” Id. at 915. A representation
dispute is resolved by “defining the bargaining unit and
determining the employee representative [if any] for collective
bargaining.” Western Airlines, Inc. v. Int’l Bhd. of Teamsters,
480 U.S. 1301, 1302 (1987). Employees initiate representation
proceedings by filing an application for investigation of a
representation dispute. Representation Manual2 (“Manual”)
§ 1.02. “If employees have not sought [such] ‘investigation’
2 The NMB Representation “Manual provides general procedural guidance to the [NMB’s] staff with respect to the processing of representation cases[.]” Manual Notice. The Manual outlines the procedures for filing an application for investigation of a representation dispute, conducting the NMB’s investigation, making its single-carrier determination, and sponsoring representation elections by phone, internet, or mail. See generally id. The Manual therefore outlines how the NMB should preside over representation proceedings involving “labor organization(s) or individual(s) seeking to represent a carrier’s employees and any incumbent representative[.]” Id. § 1.01-7. The Manual applies, and the NMB’s authority is triggered, only if a labor union or individual submits an application for investigation of a representation dispute. Railway Labor Exec. Ass’n (RLEA) v. NMB, 29 F.3d 655, 665 (D.C. Cir. 1994). -7-
. . . , none can be initiated[.]” Railway Labor Exec. Ass’n
(RLEA) v. NMB, 29 F.3d 655, 662 (D.C. Cir. 1994). “Congress left
no ambiguity in the language of Section 2, Ninth: the Board may
investigate a representation dispute only upon request of the
employees involved[.]” Id. at 664 (emphasis in original).
During and after its investigation, the Board retains exclusive
authority to grant, withhold and terminate representation
certifications. Gen. Comm. v. Missouri-Kansas-Texas R.R. Co.,
320 U.S. 323, 336 (1943). The Board’s certificate designates a
representative for the purpose of collective bargaining, see
RLEA, 29 F.3d at 662 (quoting Switchmen’s, 320 U.S. at 304), and
the certification survives a merger. Manual § 19.7 (“Existing
certifications remain in effect until the NMB issues a new
certification or dismissal.”)
Two findings precede a certification decision by the Board.
First, the Board must make a single carrier determination.
Manual § 19.5. Section 19.4 of the NMB Representation Manual
provides that “‘[a]ny organization or individual may file an
application, supported by evidence of representation or a showing
of interest . . . seeking a NMB determination that a single
transportation system exists.’”3 In re: Air Line Pilots
3 Again, the NMB may make a single-carrier determination only after receiving an application for investigation of a representation dispute from a carrier’s employees. RLEA, 29 F.3d at 664; NMB Representation Manual § 19.5. Absent such an application, the NMB is without authority to investigate a -8-
Association (ALPA), 36 NMB 36, 50 (2009). If “a substantial
integration of operations, financial control, and labor and
personnel functions” exists, Burlington N. Santa Fe Ry. Co., 32
NMB 163, 171 (2005), the Board deems the two merged carriers a
single transportation system for representation purposes of the
petitioning craft. See, e.g., ALPA, 36 NMB at 53 (finding that
post-merger Delta and Northwest operate as a single carrier for
representation purposes as to the craft or class of petitioning
pilots); In re: AFA, 37 NMB 323, 336 (2010) (finding that post-
merger Delta and Northwest “operate as a single transportation
system for representation purposes for the craft or class of
[petitioning] flight attendants”)4; US Airways/America W.
Airlines, 35 NMB 65, 78 (2008) (finding “that [the two carriers]
operate as a single transportation system for representation
purposes for the craft or class of Pilots”); US Airways/America
W. Airlines, 33 NMB 339 (2006) (making the determination as to
stock clerks). The NMB then “proceed[s] to address the
representation of the . . . craft or class [at issue].”
Manual § 19.6.
Before issuing a certificate, the Board also analyzes the
results of any representation election among employees.
representation dispute, make a single-carrier determination, or sponsor a representation election. See RLEA, 29 F.3d at 665. 4 See discussion infra at 16 and n.6. -9-
See 45 U.S.C. § 152, Fourth. The election is held to determine
whether a majority of employees supports the union seeking
certification. Id. The RLA therefore authorizes the Board to
“take a secret ballot of the employees involved, or to utilize
any other appropriate method . . . [to] insure the [employees’]
choice of representatives . . . [is free from the carrier’s]
interference, influence, or coercion[.]” 45 U.S.C. § 152, Ninth.
Having confirmed the majority’s free choice, the NMB may certify
the appropriate representative. A district court may neither
review such certification nor make a certification itself. Delta
Airlines, Inc., 879 F.2d at 911. Indeed, “as soon as [an] action
reveals a representation dispute, the court is required to
dismiss the complaint." ALPA v. Texas Int’l Airlines, Inc., 656
F.2d 16, 22-24 (2nd Cir. 1981) (citing Ruby v. American Airlines,
Inc., 323 F.2d 248, 255 (2d Cir. 1963)).
Judicial intervention under the RLA can be warranted under
certain circumstances, though. Courts may be called upon to
enforce either the RLA’s provisions or the NMB’s representation
certification. For example, Tex. & N.O.R. Co. v. Bhd. of Ry.
Clerks, 281 U.S. 548, 555 (1930) involved a wage dispute between
a railroad carrier and an employee union that had been referred
to the NMB. The railroad carrier meanwhile had formed a company
union and sought to intimidate members of the employee union and
coerce them to withdraw from it. The carrier recognized the -10-
company union as the bargaining representative of the employees
and refused to recognize the employee union. Id. at 556-57. The
Supreme Court ruled that § 2, Third, which prohibits
interference, influence, or coercion by either party over the
designation of representatives by the other, was crucial to the
functioning of the RLA and was judicially enforceable. Id. at
560 (noting that the “railroad company and its officers were
actually engaged in promoting the organization of the association
in the interest of the company and in opposition to the [employee
union]”). In Virginian Ry. v. Sys. Fed’n No. 40, 300 U.S. 515,
549 (1937), the Court upheld an injunction restraining an
interstate rail carrier from interfering with the union
employees’ rights by fostering a company union and entering into
a contract concerning rules, rates of pay, and working conditions
with a representative other than the employees’ true
representative. Further, in Chicago & N.W. Ry. v. United Transp.
Union, 402 U.S. 570, 593 (1971), the Court held that the
requirement of § 2, First to exert every reasonable effort to
make and maintain agreements concerning rates of pay, rules, and
working conditions imposes a judicially enforceable obligation.
The common thread throughout these cases is that “but for the
general jurisdiction of the federal courts there would be no
remedy to enforce the statutory commands which Congress had -11-
written into the [RLA]. The result would have been that the
‘right’ of collective bargaining was unsupported by any legal
sanction.” Switchmen’s Union, 320 U.S. at 300. Courts, then,
have jurisdiction to entertain complaints that a carrier is
interfering with employees’ rights to organize and choose their
own representatives.
To support its argument against federal jurisdiction, Delta
conflates representation issues with representation disputes.
(See Mot. to Dismiss at 1; Def.’s Mem. in Supp. of Mot. to
Dismiss at 3, 17) (“Def.’s Mem.”)). The former is used in
Delta’s briefs as a catchall phrase for all “issues arguably
related to” or “inextricably intertwined”5 with representation.
5 Delta argues that “[c]ourts [lack] jurisdiction over claims . . . which ‘are inextricably intertwined with a representation dispute, which is within the exclusive jurisdiction of the [NMB].’” (Def.’s Mem. at 3 n.3) (quoting Indep. Fed’n of Flight Attendants (IFFA) v. Cooper, 141 F.3d 900, 903 (8th Cir. 1998)). IFFA involved a conflict arising from an NMB decision. The NMB “ha[d] already determined that [a union] did not [act] unlawful[ly] . . . [by utilizing a rival union’s president] during [the union’s] organizing campaign.” Id. The court therefore held that “[a]n injunction against [the union]’s future employment of [the rival union’s president] would be the functional equivalent of judicial review of [the NMB’s] conclusion, which is clearly prohibited.” Id. (citing Switchmen’s, 320 U.S. at 303).
No NMB decision is at issue here. To the contrary, AFA and IAM jointly requested “declaratory relief in order to prevent premature initiation of the seniority integration process before the NMB has resolved the matter of representation.” (Joint Opp’n to Mot. to Dismiss at 3) (emphasis added.) Because neither AFA nor IAM seek judicial review of any NMB decision, and because awarding declaratory relief would not be “functional[ly] equivalent” to judicial review of an NMB decision, Delta’s -12-
See Delta Air Lines, Inc., 879 F.2d at 916. (See also Def.’s
Mem. at 3 n.3.) The latter is a legal term of art. It
“involve[s] the composition of the collective bargaining unit and
the identity of that unit’s authorized representative for
collective bargaining purposes.” United Transp. Union v. Gateway
W. Ry. Co., 78 F.3d 1208, 1213 (7th Cir. 1996) (citing Western
Airlines, 480 U.S. at 1302. The distinction between the terms
surfaced in 1989 when Delta advanced the same jurisdictional
argument against the same party before the D.C. Circuit. (Def.’s
Mem. at 4.) (“Indeed, AFA has previously litigated this very
jurisdictional issue with Delta in the context of an earlier
merger.”) The court responded that “[t]o the extent Delta
suggests that every case that merely entails an issue of
representation must be brought before the NMB, . . . that
argument plainly proves too much.” Delta Airlines, Inc., 879
F.2d at 916.
No representation dispute lurks within the four corners of
AFA’s amended complaint or IAM’s complaint. Neither are issues
“inextricably intertwined” with representation disputes presented
here, because the question of which representative was certified
argument fails. The IFFA court could “conceive of no remedy for the[] claims [before it] that would not impermissibly involve the Mediation Board's certification decision.” IFFA, 141 F.3d at 903. The remedy requested here would merely have enabled organizing efforts preceding any certification decision to proceed unfettered. -13-
was distinct and settled. At the time Delta filed its motions to
dismiss, AFA was Northwest flight attendants’ certified
bargaining representative, while Delta’s flight attendants were
nonunionized. See In re: AFA, 37 NMB at 323; Manual § 19.7.
Similarly, IAM was the certified representative of various
Northwest employee crafts or classes, and Delta’s comparable
em.ployees were nonunionized. (IAM Compl. ¶¶ 4, 11.)
Moreover, the authority Delta cites to establish lack of
jurisdiction is plainly distinguishable. See, e.g., Air Line
Employees Ass’n (ALEA) v. Republic Airlines, 798 F.2d 967, 968
(7th Cir. 1986) (affirming dismissal of complaint for lack of
jurisdiction where “[c]ontinuation of [a collective bargaining
agreement] in force unavoidably constitute[d] a determination of
employee representation”); ALPA v. Tex. Int’l Airlines, 656 F.2d
at 22 (affirming dismissal of complaint for lack of jurisdiction
where judicial intervention “would necessarily involve this Court
in determining, as a substantive matter, whether ALPA is the
proper representative of the New York Air pilots”); IAM v.
Northeast Airlines, Inc., 536 F.2d 975, 977 (1st Cir. 1976)
(“Where there is no real question about whether a union is the
legitimate representative of an airline’s employees, the function
of deciding the extent of the duty to bargain rests properly with
the federal courts. . . . [Here,] the merger created real doubts
about whether plaintiffs represent the majority of any Delta -14-
craft or class of employees, and where there is such doubt,
federal courts leave resolution of the dispute to the [NMB].”);
IUFA v. Pan Am. World Airways, 836 F.2d 130, 131 (affirming
dismissal of complaint for lack of jurisdiction because “the
issue of whether the former Ransome employees may bargain as a
unit or are to be represented by the larger unit is a
paradigmatic representation issue subject to resolution by the
National Mediation Board”); AFA v. United Airlines, Inc., 71 F.3d
915, 918 (D.C. Cir. 1995) (“It is rather obvious that if two
airlines merge and their employees in the same jobs are
represented by different unions the federal courts lack
jurisdiction over collective bargaining claims because a
representation issue is necessarily implicated.”) (emphasis
added); Flight Eng’rs Int’l. Ass’n, PAA Chapter, AFL-CIO (FEIA)
v. Pan Am. World Airways, Inc., 896 F.2d 672, 673 (2d Cir. 1990)
(stating that dispute alleging violations of collective
bargaining agreement “implicated representation concerns within
the exclusive jurisdiction of the NMB, i.e., whether the union's
certification applied to the subsequently acquired Ransome
subsidiary”). Unlike in the cases above, there is no “real
doubt” here about who if anyone represented the post-merger
flight attendants when these actions were filed. See IAM v.
Northeast Airlines, Inc., 536 F.2d at 977. Neither is there any
request for enforcement of a collective bargaining agreement -15-
negotiated by a union that did not represent employees of the
acquiring carrier. See AFA v. United, 71 F.3d at 918.
Still, Delta argues that the plaintiffs’ claims amount to
representation disputes. Delta maintains that in order to grant
the plaintiffs the relief they seek,
the Court would first have to determine (a) whether the Delta-Northwest combination created a “single transportation system” for representation purposes under the RLA; and (b) what [the plaintiffs’] post- merger representation rights are and will be with respect to some or all of the combined group of Delta and Northwest flight attendants.
(Def.’s Mem. at 3.) According to Delta, then, this case belongs
before the NMB for a single carrier determination and
certification.
Despite Delta’s contention, neither party argues or presents
facts challenging the employees’ choices about representatives.
Delta’s own letters to Northwest executives recognized fully
Delta’s and Northwest’s different representation status. (See
Am. Compl., Ex. A at 1 (“The purpose of this letter is to
initiate the seniority integration process . . . , in accordance
with . . . the recently enacted federal law which requires the
fair and equitable integration of seniority lists when two
airlines combine and the combining groups have different
representation status.”); see also Def.’s Mot., Exs. 23, 24.)
Since an existing certification persists until it is terminated,
or until the Board issues a new one, Manual § 19.7, no competing -16-
representation claims warranting Board resolution were presented
in plaintiffs’ complaints here. Indeed, “the Board [was] free to
make its own decision on that issue,” AFA v. United, 71 F.3d at
919, and has now done so. On July 1, 2010, AFA filed an
application for investigation of a representation dispute with
the NMB, specifically concerning the craft or class of flight
attendants. In re: AFA, 37 NMB at 336. On August 17, 2010, the
Board deemed post-merger Delta and Northwest a single carrier
“for representation purposes under the RLA.” Id. “The
investigation will proceed to address the representation of this
craft or class.” Id. “The participants are reminded,” the Board
cautioned, “that under Manual Section 19.7, existing
certifications remain in effect until the Board issues a new
certification or dismissal.” Id.6 Delta’s claim that resolving
6 The IAM likewise submitted an application for investigation of a representation dispute. In November of 2010, the NMB dismissed both unions’ applications. On November 3, 2010, the NMB announced that a slim majority of eligible voters opposed AFA’s bid to represent all of Delta’s post-merger flight attendants. Report of Election Results, available at http://www.nmb.gov/electionresults/election-results_r-7254.pdf. One day later, the NMB dismissed AFA’s case. Fiscal Year 2011 NMB Determinations, available at http://www.nmb.gov/representation/deter2011/fy11cite.html. Post-merger Delta’s fleet service employees, along with its stock and stores employees, likewise participated in representation elections. On November 18 and 22, 2010, respectively, these two crafts or classes of employees voted “for no representative.” Report of Election Results, available at http://www.nmb.gov/electionresults/election-results_r-7256.pdf; Report of Election Results, available at http://www.nmb.gov/electionresults/election-results_r-7258.pdf. The NMB dismissed IAM’s cases within twenty-four hours of each -17-
plaintiffs’ complaint requires a single carrier or representation
determination from this court is moot.
What the plaintiffs allege is that Delta engaged in conduct
that violates the RLA. For example, the plaintiffs allege that
“the committee established by Delta to represent its pre-merger
flight attendants in the seniority integration process
constitutes a company-dominated union” (AFA Am. Compl. ¶ 26), and
that Delta’s “demand that a seniority arbitration proceeding go
forward prior to a craft or class determination by the NMB . . .
is part of Delta’s ongoing campaign to . . . interfere with AFA
as the certified representative of Northwest flight
attendants[.]” (Id. ¶ 30.) These allegations raise the question
of whether Delta’s conduct violated the RLA’s prohibition on a
carrier interfering with employees’ rights to choose their
representatives and bargain collectively. Thus, the plaintiffs’
claims are not representation disputes subject to the exclusive
jurisdiction of the NMB, and Delta’s motions will be denied.
CONCLUSION AND ORDER
Because plaintiffs’ claims do not implicate a representation
dispute subject to the exclusive jurisdiction of the NMB, Delta’s
motions to dismiss for lack of subject matter jurisdiction will
be denied. Accordingly, it is hereby
election. -18-
ORDERED that defendant’s motions to dismiss the plaintiffs’
complaints be, and hereby are, DENIED.
SIGNED this 21st day of December, 2010.
/s/ RICHARD W. ROBERTS United States District Judge