LOUIS F. OBERDORFER, United States District Judge
These two consolidated cases concern union representation of the passenger service employees of Trans World Airlines, Inc. ("TWA"). In Civil Action No. 86-1912, the International Association of Machinists and Aerospace Workers ("IAM") seeks an order requiring TWA to commence bargaining over the wages, rules, and working conditions of the TWA passenger service employees and enjoining TWA from altering the wages, rules, and working conditions that obtained on May 23, 1986. On that date the National Mediation Board ("NMB") certified the IAM as the bargaining representative for TWA's passenger service employees. In Civil Action No. 86-2960, which was originally filed in the United States District Court for the Southern District of Texas, the plaintiffs, including TWA and several individual passenger service employees, seek to set aside the NMB certification that suit was transferred to this Court from the Texas Court on August 29, 1986.
The sole issue in Civil Action No. 86-2980 and a threshhold question in Civil Action No. 86-1912 is whether this Court should vacate the NMB certification of the IAM as the representative of the TWA passenger service employees. The focus of this issue is the NMB decision to exclude from the representation election TWA passenger service employees who were serving as flight attendants at the time of the election while the regular flight attendants participated in a strike called by the Independent Federation of Flight Attendants ("IFFA").
By a telegram dated February 12, 1986, the NMB authorized a mail ballot election of TWA's passenger service employees. Three unions participated in the election, the IAM, the IFFA and the International Brotherhood of Teamsters ("Teamsters"). The NMB mailed its ballots on March 28, 1986, and scheduled the vote count for April 28, 1986. Trans World Airlines, Inc., 13 NMB 210 (1986). On April 22, 1986, the Teamsters requested that the voting period be extended for two weeks unless the Board deleted from the eligibility lists former passenger service employees who were then employed during an IFFA strike as TWA flight attendants. Representatives of all three unions and TWA met with NMB mediator Joseph Anderson on April 25, 1986, to review the list of eligible voters. A further meeting was held on April 28, 1986. On that date, Mediator Anderson determined that employees working as strike replacements for TWA flight attendants were eligible voters in the passenger service employees' representation election. The Teamsters appealed this determination and the ballots were impounded pending the resolution of the appeal. The Board issued its written decision on May 13, 1986, holding that employees who were working as "contingent flight attendants" were ineligible to vote within the craft or class of passenger service employees. See Trans World Airlines, Inc., 13 NMB 210, 216 (1986). A May 14, 1986 motion for reconsideration of this decision filed by TWA was denied by the Board on May 15, 1986. The next day, the Board counted the mail ballots and on May 23, 1986, it announced that a majority of eligible voters had voted for a union and that the IAM had received a majority of the pro-union votes.
13 NMB 237 (1986). Accordingly, the Board certified the IAM as the authorized representative of the passenger service employees. Id. at 238.
It has been established for over 20 years that courts have no authority to review NMB certification decisions in the absence of a showing on the face of the pleadings that the certification decision was a gross violation of the Railway Labor Act or that it violated the constitutional rights of an employer, employee or union. Brotherhood of Ry. and S.S. Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 658-60, 661-2, 85 S. Ct. 1192, 14 L. Ed. 2d 133 (1965) (" Railway Clerks "); Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S. Ct. 95, 88 L. Ed. 2d 61 (1943) (" Switchmen's Union "); International Association of Machinists and Aerospace Workers v. National Mediation Board, 425 F.2d 527, 536 (D.C. Cir. 1970); International Brotherhood of Teamsters v. Brotherhood of Ry. Airline and S.S. Clerks, 402 F.2d 196, 205 (D.C. Cir.) cert. denied, 393 U.S. 848, 89 S. Ct. 135, 21 L. Ed. 2d 119 (1968) (" IBT v. BRAC ").
Despite the assiduous efforts of their counsel, plaintiffs have failed to demonstrate either a gross violation of the Act or any violation of the Constitution. Plaintiffs' attempts to characterize this case as one where the NMB has failed to perform its statutory duty to "investigate" a representation dispute are not persuasive. See Section 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth. For example, TWA purports to find a violation of this statutory obligation to "investigate" in its discovery that some documents which it believes should be in the NMB's file are not there. In addition, the plaintiffs allege that the NMB's determination regarding the contingent flight attendants was erroneous and that the NMB therefore could not have "investigated" the dispute.
There is authority for judicial intervention where the NMB certified a union solely on the basis of signature cards authorizing an election and then refused to investigate the ensuing dispute, International In-Flight Catering Co. v. National Mediation Board, 555 F.2d 712, 718 (9th Cir. 1977), and where the NMB refused to investigate an individual's application to represent some fellow employees, Russell v. National Mediation Board, 714 F.2d 1332 (5th Cir. 1983), cert. denied, 467 U.S. 1204, 104 S. Ct. 2385, 81 L. Ed. 2d 344 (1984). Here, it is undisputed that NMB investigated the representation dispute among TWA's passenger service employees and conducted a mail ballot election. Moreover, the Board also "investigated" the eligibility dispute and issued a written opinion which was based on NMB precedent. See Chicago and North Western Ry. Company, 4 NMB 240 (1965); Trans World Airways, Inc., 8 NMB 663 (1981). TWA can not therefore evade the strictures against judicial review of NMB certification decisions by characterizing its complaint about the substance of the Board's decision as a "failure to investigate" claim.
The claims of the individual plaintiffs are no more substantial than those of TWA. These plaintiffs were passenger service employees who responded to TWA's call for volunteers while the permanent flight attendants were on strike and who were still serving as flight attendants when this disputed election occurred. The NMB decision to treat the contingent flight attendants as flight attendants rather than as passenger service employees simply does not inflict injury of a gross or constitutional dimension. Nor is there any merit in these plaintiffs assumption that they would have been ineligible to vote as flight attendants where, as here, the NMB never precluded such participation, and there is no showing that the plaintiffs endeavored to participate in Independent Federation of Flight Attendant affairs. The foregoing disposes of any glimmering claim of plaintiffs that the NMB impaired their First Amendment associational rights. TWA invited the individual plaintiffs to serve as flight attendants and they voluntarily accepted. NMB had no role in the individual plaintiffs serving as flight attendants so that there is no basis for a contention that NMB has any responsibility for plaintiffs being flight attendants at the time of this election for passenger service employees. Nor did the NMB interfere with plaintiffs' associational rights when it determined that plaintiffs' voting rights followed their voluntary change in jobs.
Both TWA and the individual Plaintiffs allege that the NMB acted on the basis of an impermissible pro-union bias when it made its decision regarding the contingent flight attendants.
It is unclear whether a proven instance of "non-neutrality" would constitute a gross violation of a specific provision of the Railway Labor Act or would be sufficient to transform a disagreement about a Board decision into a constitutional claim. There is no occasion to decide that question, however, because the plaintiffs have failed to proffer any substantial evidence to support this claim. In the absence of such a proffer, they have not demonstrated an error that is "obvious on the face of the papers." See IBT v. BRAC, 402 F.2d at 205. Permitting extensive discovery, such as that requested by these plaintiffs,
whenever a party alleges a lack of "neutrality" would contradict the Supreme Court's admonition that "the dispute [is] to reach its last terminal point when an administrative finding is made." Switchmen's Union, 320 U.S. at 305. An accompanying order will therefore grant the NMB and IAM motions for summary judgment dismissing the plaintiffs' challenges to the May 23, 1986 Certification.
In Civil Action No. 86-1912, IAM seeks judicial enforcement of legal rights it claims to have been created in it by virtue of its May 23, 1986 certification. Specifically, IAM seeks an order compelling TWA to "treat" with it as bargaining representative of the TWA service employees as required by section 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth, and an injunction against any changes in TWA's working rules for these employees which have been effected by TWA since the May 23 certification.
The IAM claim that TWA should have been treating or negotiating with respect to the service employees is firmly grounded in the governing statute. Paragraph Ninth of 45 U.S.C. § 152 provides without equivocation that
Upon receipt of [a] certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter.
Despite the clear command of this statute and the clearly expressed congressional intention to limit the role of the judiciary in its administration, TWA has taken the adamant position that it will not negotiate with the IAM, unless and until ordered to do so by a court. An accompanying order will accommodate that demand. While TWA challenged the certification in Texas, it never asked the Texas Court, this Court or any court for leave to delay negotiations. It simply defied the statutory command and took the law into its own hands. In fact, in a remarkably audacious response to an IAM request to begin negotiations, TWA replied:
In view of the pending proceedings [in Texas] and in order to preserve our full rights to judicial review, it would be inappropriate and, indeed, that (sic) it may be unlawful, for TWA to commence bargaining or otherwise deal with the IAM as the representative of the passenger service employees at this time when its representation status is in question. Therefore we intend not to do so until this matter is finally resolved.
Exhibit C to the IAM's Statement of Material Facts as to Which There is no Genuine Dispute at 2 (emphasis added).
While TWA held IAM at bay with its refusal to deal thereby precluding the formation of a collective bargaining agreement with respect to the TWA passenger service employees,
it made important unilateral changes in the working conditions of the IAM represented service employees. Specifically, TWA gave flight attendants a role in passenger pre-boarding, a change that, however desirable as an economy or an efficiency, would have been clearly bargainable if a collective bargaining agreement had been in place. TWA's ability to proceed unilaterally was enhanced by the delay in the decision of the Texas Court to transfer the certification case to this Court, and by a frivolous appeal of that transfer order filed by the individual plaintiffs. Under these circumstances, this Court was reluctant to act on IAM's prayer for interlocutory relief while responsibility for the certification case was in limbo. In retrospect, IAM had established its entitlement to an order compelling negotiation as of July 8, 1986, when it applied for a temporary restraining order. Whether this situation can be rectified remains to be seen. It is clear that an order compelling TWA to negotiate with the union in good faith should be entered now. See Virginian R.R. Co. v. System Fed. No. 40, 300 U.S. 515, 544-45, 57 S. Ct. 592, 81, L. Ed. 2d 789 (1937); Railway Clerks, 380 U.S. at 658; Aeronautical Radio, Inc. v. National Mediation Board, 380 F.2d 624, 627 (D.C. Cir.), cert. denied, 389 U.S. 912, 88 S. Ct. 237, 19 L. Ed. 2d 259 (1967).
IAM's prayer for a further order re-establishing working conditions as they existed on May 23, 1986, when it was certified poses a more difficult question. Paragraph Seventh of 45 U.S.C. § 152 provides that:
No carrier . . . shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 156 . . . .