UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Civil Aeronautics Board.
Bazelon, Chief Judge, Tamm and Wilkey, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
In June 1974, a Committee of Former Northeast Stewardesses (Committee) petitioned the Civil Aeronautics Board (Board) to direct Delta Air Lines, Inc., to submit to arbitration the interrogation of stewardess seniority lists following the merger of Northeast Airlines, Inc., into Delta. This appeal arises from the order of the Board granting the Committee's petition. *fn1 The basic question before this court is whether the Board abused its discretion by referring to the arbitrator the procedural issue of timeliness of the request for arbitration, rather than deciding that issue on the record before it. For the reasons stated below, we affirm the Board's order. I
In the spring of 1972, the Board approved the merger of Delta and Northeast, subject to certain labor protective provisions (LPP's). *fn2 Section 3 of those provisions states:
Insofar as the merger affects the seniority rights of the carriers' employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13. *fn3
Section 13(a) provides that any party may refer a dispute arising under the LPP's to an arbitrator, and that "a decision shall be rendered within 90 days after the controversy arises, unless an extension of time is mutually agreeable to all parties." *fn4
Prior to the merger, which became effective on August 1, 1972, the Transport Workers Union of America, AFL-CIO had been the collective bargaining representative for the Northeast stewardesses. Between midsummer and early October of 1972, representatives of Delta and Delta stewardesses had a series of meetings with a group of former Northeast stewardesses to negotiate the integration of seniority lists, but no agreement was reached. During the month of October, Delta unilaterally integrated the seniority lists and informed all stewardesses of the results of that integration by letter dated October 31, 1972. *fn5
In the meantime, after the impasse had developed in negotiations, the negotiating group of former Northeast stewardesses asked TWU to pursue their arbitration remedy. On September 29, 1972, TWU informed Delta that it intended "to seek the appropriate relief," *fn6 and on October 4, 1972, requested the National Mediation Board to furnish a panel of arbitrators for the integration dispute. *fn7 Delta, however, refused to participate in the selection of an arbitrator, on the ground that TWU had not provided any evidence that it continued to represent any former Northeast stewardesses after the effective date of the merger. *fn8
On January 30, 1973, TWU, on behalf of the stewardesses formerly employed by Northeast, petitioned the Board to direct arbitration of seniority list integration. Delta opposed the petition, still basing its opposition to arbitration on TWU's failure to demonstrate its representational capacity. In an order dated September 11, 1973, the Board dismissed TWU's petition. The Board held that TWU was not the representative of the former Northeast employees under the LPP's merely because it was their collective bargaining representative prior to the merger. *fn9 Furthermore, since Delta conceded its duty to arbitrate the seniority dispute upon demand of dissatisfied stewardesses or their authorized representative, the Board found that its immediate intervention was unnecessary. *fn10 In a footnote, the Board specifically addressed Delta's contention that no timely complaint against the integrated seniority list had been filed under the LPP's, stating that such issues "are appropriate matters for resolution in the context of negotiation or an arbitration proceeding . . . ." *fn11
Because TWU did not appeal the Board's order or attempt to present evidence to Delta of its representational authority, the Committee, which has intervened on this appeal, was formed to pursue arbitration. To that end, the Committee hired an attorney and sought representational authorization from other dissatisfied stewardesses. *fn12 In a series of letters to Delta from March through May of 1974, the Committee requested that the seniority list integration dispute be submitted to arbitration, contending, in part, that the present request was "a continuum of those made of Delta as far back as October, 1972." *fn13 Delta renewed its assertion that the complaint was untimely, *fn14 and the Committee petitioned the Board to compel arbitration.
After an initial dismissal of the petition, *fn15 an appeal from that order, and a remand by this court for a decision on the merits, *fn16 the Board granted the Committee's petition and ordered arbitration. In its mandate to the arbitrator, the Board included the initial "jurisdictional" question of whether, under all of the circumstances, the claim to arbitration was asserted within a reasonable time." *fn17 In justifying the delegation of the timeliness issue to the arbitrator, the Board stated that, on the basis of the inadequate record before it, it was unable definitively to resolve certain issues which were possibly pertinent to the merits of Delta's timeliness argument, such as the representational aspects of the dispute, the possibility that Delta contributed to delay, and the effect of Delta's actual knowledge of employee dissatisfaction. *fn18 Such issues, the Board stated, are the type "in which an experienced labor arbitrator may well be able to shed more light, more quickly than the Board." *fn19 We are now called upon to review the Board's decision to refer the timeliness issue to arbitration. II
In our review, we must initially determine whether the Board has the discretion to delegate procedural issues arising under the LPP's, such as timeliness of arbitration complaints, to an arbitrator. If the Board does have such discretion and acted within its scope, we must then decide, on the basis of the administrative record, whether the Board abused its discretion. Citizens to Preserve Overton Park, Inc. ...