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September 25, 1990

KEY AIRLINES, INC., Plaintiff,

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE



 Before the Court is the plaintiff's motion to amend its complaint or, in the alternative, for reconsideration of the Court's Order of July 31, 1990 dismissing the complaint. 743 F. Supp. 34 For the reasons stated below, the motion is denied.


 Key Airlines previously filed a complaint in this Court seeking a temporary restraining order to enjoin the National Mediation Board from requiring Key to send its employees a notice informing them that it had violated the Railway Labor Act. *fn1" Key argued that the notice violated the Railway Labor Act and the Due Process Clause. The National Mediation Board then amended the notice to reflect Key's disagreement with the Board's conclusions, *fn2" and the Court denied the motion. *fn3" The notice was then sent to Key employees along with ballots for voting on whether the International Brotherhood of Teamsters (Teamsters) would be their collective bargaining representative. The Teamsters won the election.

 On December 5, 1989, Key filed the instant action to overturn the election and union's certification arguing that the balloting procedure used by the National Mediation Board was inconsistent with the Railway Labor Act, 45 U.S.C. ยง 151 et seq. Key concedes that it made a tactical decision not to include a due process claim in that complaint based on its belief that such a claim was unlikely to succeed. *fn4" The parties filed cross motions for summary judgment, and on July 31, 1990, this Court entered summary judgment in favor of the National Labor Relations Board.

 On July 20, 1990 -- more than a week before this Court rendered its decision -- a district court in Arizona granted a preliminary injunction in a case involving a notice by the Mediation Board that Key asserts is similar to the one here. The court found that the notice violated the Railway Labor Act and the Due Process Clause by implying that the Board conducted an adversarial investigation and that the carrier had engaged in unlawful conduct. America West Airlines, Inc. v. National Mediation Board, 743 F. Supp. 693 (D. Arizona 1990) slip. op. at 14.

 Based exclusively on this decision, Key moved on August 15, 1990 to amend its complaint to assert this theory or, in alternative, for reconsideration of the Order of July 31, 1990 dismissing plaintiff's initial complaint. *fn5"


 In the first place, the motion to reconsider was not filed timely *fn6" and in any event, it is not proper since the initial complaint did not include the instant claims. *fn7" While leave to amend should be freely granted, Rule 15(a), Fed. R. Civ. P., it is well within this Court's discretion to deny leave when (1) Key concedes that it made a tactical decision not to present the new claim at an earlier, more appropriate stage of this litigation; *fn8" (2) the motion to amend postdates summary judgment in this case while the America West decision predates it, suggesting that the motion is an effort to evade summary judgment; *fn9" and (3) the claim is wholly without merit. *fn10"

 The futility of Key's claim is demonstrated by its exclusive reliance on America West, a decision that comments favorably on the notice given to Key Airlines in the instant action. *fn11" After expressly contrasting the notice provided in American West with that provided to Key, the America West court made clear that Key's notice cured the defects in the American West notice. Slip op. at 12-14. It is, therefore, frivolous to argue that America West establishes a basis for the instant claim.

 America West, moreover, turns on that court's belief that the Board's notice implied that the Board had conducted an adversarial investigation when, in fact, it had not. The court concluded that the notice was, therefore, misleading. In the instant case, no such conclusion is possible. The Key notice explains that "Key does not agree that it has been given any true opportunity to rebut the allegations against it." It also discusses Key's disagreement with the Board's conclusion that the airline interfered with its employees' right to organize. Furthermore, there is not the slightest indication that Key "was found guilty of" committing a crime. America West, 743 F. Supp. 693, 699.

 More importantly, an overwhelming body of controlling authority makes clear that Key has no right to participate in Board proceedings of this sort. See Brotherhood of Rwy and Steamship Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 666, 14 L. Ed. 2d 133, 85 S. Ct. 1192 (1965) ("Clearly then, the Board cannot not be required to hold a hearing"); Switchmen's Union v. National Mediation Board, 320 U.S. 297, 304, 88 L. Ed. 61, 64 S. Ct. 95 (1943)(1943) ("While the Mediation Board is given specified powers in the conduct of elections, there is no requirement of a hearing") ; Professional Cabin Crew Association v. National Mediation Board, 277 U.S. App. D.C. 21, 872 F.2d 456, 463 (D.C. Cir. 1989) (Board required to undertake only "such investigation as the nature of the case requires"; "the investigation is not required to take any particular form").

 In Virginian Rwy. Co. v. System Federation No. 40, 300 U.S. 515, 560-61, 81 L. Ed. 789, 57 S. Ct. 592 (1937), the Court upheld a remedial ballot procedure that the Board had chosen after finding carrier interference in a prior election without questioning the Board's authority to find the existence of interference of influence. The Fifth Circuit similarly has rejected as "transparently frivolous" the contention that the Board must hold a hearing before making determinations. United States v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969). Likewise, in World Airways v. National Mediation Board, 347 F.2d 350 (9th Cir. 1965), the Court of Appeals for the Ninth Circuit held that the decision to afford a carrier a hearing is within the Board's sole discretion and is unreviewable by the courts. Id. at 351.

 Even if Key were entitled to due process protection -- and America West stands alone for that conclusion -- the fact of the matter is that Key Airlines received an abundance of procedural protection. Key presented its objections to the Board in written statements and affidavits, and the notice sent to Key employees also set forth Key's disagreement with the Board's conclusions.

 The short of it is that Key's motion to amend or for reconsideration suffers procedural, legal and factual flaws. The airline is not entitled to further "drag [] out of th[is] controversy into other tribunals of law." Switchmen's Union, 320 U.S. at 305.

 Accordingly, it is this 25th day of September 1990

 ORDERED That the motion to amend or in the alternative to reconsider be and it is hereby denied.

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