mediation an unusually long time for section 9A disputes -- 22 months; (2) the burden of the long delay fell entirely upon the union; (3) one of the Board members had stated that he disliked the section 9A procedure (which requires a "cooling off" period before the parties may resort to self-help); and (4) absolutely nothing appeared to be occurring while the dispute was in mediation. See Slip op. at 11-15. Judge Greene's ruling in Local 808 is presently on appeal. On July 25, 1989, the Court of Appeals granted NMB's motion for a stay pending resolution of the appeal. See Order, Building Maintenance, Service and Railroad Workers v. National Mediation Board, 888 F.2d 1428 (D.C.Cir. 1989).
The Board claims that, despite the length of the mediation in this case, settlement remains possible. Under the Machinists ' standard, the Board is entitled to the presumption "that if any state of facts might be supposed that would support its action, those facts must be presumed to exist." Machinists, 425 F.2d at 540. Moreover, parties challenging the Board's decision may only rely on "objective facts." Id. at 541. In support of its motion, IAM asserts the basic facts regarding the length and apparent futility of the mediation: the dispute has gone through eleven mediation sessions over almost six years with five different mediators and no agreement is in sight. Beyond asserting that "employee protection" is an important unresolved issue, however, IAM has not specified the details of the negotiations. IAM has presented few objective facts about the issues that have been discussed, the issues that remain unresolved, and the parties' negotiation posture as to the unresolved issues. The Union offers simply the "opinion" of its chief negotiator that further mediation will be fruitless. See Kostakis Decl. at para. 23.
Defendants, on the other hand, offer several "objective facts" that they claim justify continued mediation. First, defendants claim that, although the mediation in this case has been undeniably lengthy, the length has not been extraordinary. See Declaration of Charles R. Barnes ("Barnes Decl".) at paras. 5-6. Moreover, for three years from 1985 to 1988 nothing happened because neither party requested further mediation. See Barnes Decl. at para. 7(e); Lamb Decl. at para. 10. Second, defendants claim that the Southern Pacific's financial and corporate status has been uncertain during much of the mediation. The Southern Pacific's holding company was recently sold, however, so the Railroad's future is more certain and its finances are healthier, making successful mediation more likely. See Barnes Decl. at para. 7(a), (b). Third, the Railroad made a detailed settlement proposal in 1985 and stands ready to discuss that proposal (or a counter proposal) issue-by-issue. See Lamb Decl. at paras. 24-27. Fourth, the Board has appointed a new mediator, Thomas Green, who it claims has "extensive railroad industry collective bargaining experience[,] has been known to these parties and their principle negotiators for decades," will add a fresh perspective to the now stale dispute. See Barnes Decl. at para. 7(c). Finally, the railroad reports that in mediation sessions conducted after IAM filed its complaint, the parties have successfully narrowed the dispute to three issues. See Lamb Supp.Decl. at para. 11.
Defendants' simplest and most forceful argument, however, is that the Board's decision in April 1989 not to terminate mediation was reasonable given that only one mediation session had occurred after a three-year hiatus. As far as the Board was concerned, the dispute had been dormant from October 1985 until October 1988 when IAM requested termination. After the Board conducted a mediation session in January 1989, the Union again requested termination. Defendants assert that, under those circumstances, the Board's decision to schedule another mediation session for June 1989 was reasonable.
The Board's justifications are not entirely convincing. Any dispute that lasts as long as the present one has may seem incapable of voluntary resolution. Nevertheless, given the objective facts
and the heavy presumption to which the Board is entitled, the Board's decision not to terminate mediation must be considered, if not reasonable, at least not "completely and patently arbitrary." Machinists, 425 F.2d at 537. Judge Greene's reasoning in Local 808, while persuasive, is not applicable to these facts, e.g., the mutually agreeable three-year hiatus. Although the mediation in this case has been lengthy and the extended delay burdens the Union, it cannot be said that "absolutely nothing" is happening. See Local 808, Slip op. at 14. Consequently, IAM's complaint must be dismissed with prejudice. See Machinists, 425 F.2d at 543.
In its representations and arguments to the Court, the Board has adopted the position that the Railway Labor Act must be construed so as to avoid strikes at all costs. A strike, the Board asserts, represents a failure of the Act's purposes. This position oversimplifies the policy of the Act and is contrary to the law of this circuit. In Machinists, Judge Leventhal stated:
The rights of self-help owned by both union and management have been deliberately preserved by Congress, albeit held in temporary abeyance. They survive, available for use when the statutory procedures to promote agreement are exhausted.