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July 31, 1990

KEY AIRLINES, INC., Plaintiff,

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE


 Before the Court are cross-motions for summary judgment in a challenge by Key Airlines, Inc., to balloting procedures employed by the National Mediation Board in a representation election. Employees were instructed not to return ballots if they favored union representation but to return them only if they were opposed. The Mediation Board chose this method of proceeding because of Key's record of harassing union supporters on its payroll and of attempting improperly to influence the outcome of prior representation elections. For the reasons stated below, the defendant's motion for summary judgment is granted. The intervenor's motion for summary judgment on its counterclaim is, likewise, granted. Plaintiff's motion for summary judgment is denied.


 In April 1986, the Board found that Key Airlines had violated the Railway Labor Act, 45 U.S.C. ยง 151 et seq. by, among other things, forcing employees involved in organizing to resign and by polling employees on their support for the union. Based on this finding, the Board issued an order on March 27, 1987 modifying its normal election procedures. A special ballot known as a "Laker Ballot" was used. The form of the ballot provided: "Do you desire to be represented by the Key Airlines Pilots Association" with boxes marked "yes" and "no". Of twenty-six pilots, two voted for representation by the Association while nineteen voted against. Of sixteen flight engineers, five voted for the union and six voted against it. Accordingly, the Board dismissed the representation application.

 In December 1988, the International Brotherhood of Teamsters applied to represent Key Airlines pilots, flight engineers, and flight attendants. On January 27, 1989, the union filed a complaint with the Mediation Board that Key Airlines had interfered with the rights of its employees to organize in violation of the Railway Labor Act. The union also requested that the Board proceed with a representation election, and the Board did so. Of thirty-nine pilots, nine voted for the union and one for the Airline Pilots Association, with the remainder against representation. Of twenty-two flight engineers, eight voted for representation.

 The Board, however, set aside the results of the election on the grounds that "Key has again engaged in a carefully designed and calculated campaign to interfere with, influence and coerce its employees in their choice of representatives." *fn1" The incidents, the Board found, were "disturbingly similar" to those in the 1986 elections.

 The Board then proposed a balloting procedure in which the non-return of the ballot was counted as a vote for union representation. The balloting instructions explained how to vote and the consequences of not returning a ballot. *fn2" Other communications during the election period also conveyed the significance of not returning a ballot. The Board provided a four-week voting period to give employees ample opportunity to return their ballot. Notice of the election was posted on employee bulletin boards, and the Board provided duplicate ballots to any eligible voter who did not receive a ballot and wished to vote.

 Of fifty-eight eligible flight attendants, forty voted for Teamster representation while eighteen voted against it. Of the thirty-eight eligible pilots, sixteen voted for representation and twenty voted against it. Of twenty-one flight engineers, ten voted for representation and eleven voted against it. Accordingly, the Board certified the flight attendants but dismissed the Teamster's application to represent the flight engineers and pilots. Key Airlines then refused to bargain with the Teamsters and initiated the instant action to have the election voided.


 Judicial review of NMB decisions has long been one of the narrowest known to law. IAM v. TWA, 839 F.2d 809, 811 (D.C. Cir. 1988). In Switchmen's Union v. National Mediation Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct. 95 (1943), the Supreme Court found that the responsibility for protecting collective bargaining rights was entrusted by Congress exclusively to the Board, not the Court. 320 U.S. at 305. Congress' intent

seems plain -- the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.

 Id. The holding in Switchmen's was confirmed in Brotherhood of Rwy. and Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 14 L. Ed. 2d 133, 85 S. Ct. 1192 (1965), which held that ballot procedures fall within the discretionary powers of the NMB. The Court noted that section 2, Ninth of the Railway Labor Act "instruct[s] the Board alone to establish the rules governing elections" and to "utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall ensure the choice ...

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