GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
This is a labor dispute concerning the propriety of an effort by an employer to poll its employees following a union merger approved by the National Mediation Board. The case is before the Court on the incumbent union's motion for preliminary injunction. Extensive briefs, supported by a verified complaint, exhibits, declarations and the testimony of a Senior Vice President of the employer create a full record. The Court has heard the parties three times, first when the matter was presented on the union's application for a temporary restraining order, which was granted, again on the union's application to extend the TRO, which was also granted, and the employer's motion to transfer the case to the Southern District of Texas, which was denied, and a third time on the preliminary injunction application.
The Court gave notice in open court on December 6, 1990, by Order dated December 7, 1990, and again at the preliminary injunction hearing, that it might consolidate trial on the merits with the preliminary injunction proceedings pursuant to Fed.R.Civ.P. 65(a)(2). No party objected. The record now before the Court is more than sufficient to resolve this matter on the merits. The Court has been greatly assisted by the thorough briefs and arguments of experienced counsel on both sides and by a brief from the National Mediation Board (NMB) supporting plaintiff's position.
The employer, Continental Airlines, Inc., is an air carrier subject to the unique and exclusive provisions of the Railway Labor Act, which governs its relations with its approximately 6,500 flight attendants. The importance of railroads and airlines to the flow of commerce and national defense led Congress to enact this special regulatory scheme which, unlike the National Labor Relations Act, removed employers from direct involvement in labor representation matters by establishing the NMB and granting it the exclusive authority, after investigation, to determine union representation issues. Under the Act, the NMB is not required to make a carrier such as Continental a party to representation proceedings before it, and a carrier lacks authority to initiate a representation dispute or to withdraw union recognition once awarded by the Board. See IAM v. Alitalia Airlines, 600 F. Supp. 268 (S.D.N.Y. 1984), aff'd, 753 F.2d 3 (2nd Cir. 1985); Brotherhood of Ry. & S.S. Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 14 L. Ed. 2d 133, 85 S. Ct. 1192 (1965). The NMB has exclusive jurisdiction to conduct employee elections and decide representation disputes. Association of Flight Attendants v. Delta Air Lines, Inc., 279 U.S. App. D.C. 60, 879 F.2d 906 (D.C. Cir. 1989), cert. denied, 494 U.S. 1065, 108 L. Ed. 2d 783, 110 S. Ct. 1781 (1990). The right of employees subject to the Act to select their own representatives free of employer intrusion is judicially enforceable. Chicago & North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971).
Before the Court turns to the sole issue remaining before it, that is, the legality of a so-called poll initiated by Continental, it is necessary briefly to outline procedural developments occurring during the litigation to date.
The NMB issued a decision on October 31, 1990, finding after a long investigation that the then-incumbent Union of Flight Attendants ("UFA") had merged with plaintiff International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM"), and transferring from UFA to IAM the certification as representative of Continental's flight attendants.
Continental had asked for a new representation election among the flight attendants, but the Board declined. Continental then filed suit against the Board in the United States District Court for the Southern District of Texas seeking a review of the Board's decision and undertook to poll its flight attendants regarding their desire to be represented by IAM.
The present action was then filed by IAM to prevent completion of the poll and to obtain an order directing the NMB to enforce its decision. On November 28, 1990, the Court entered a Temporary Restraining Order preventing Continental from proceeding with the poll. It ordered Continental to instruct its agent, the firm of Price Waterhouse, to seal the ballots and refrain from processing them or discussing them with anyone, including Continental.
Thereafter, Continental filed for bankruptcy under Chapter 11 in Delaware. Continental then challenged this Court's jurisdiction, claiming that because of the bankruptcy this action had to be stayed under 11 U.S.C. § 362. The Court on December 6, 1990, denied a stay to the extent that the TRO remained in effect but made clear that the stay issue remained open for further consideration. The Court now concludes that this matter is not stayed by the Continental bankruptcy.
Continental also sought, unsuccessfully, to transfer this case to the Southern District of Texas.
IAM's oblique effort to preempt the Texas lawsuit by purporting to seek an order from this Court directing the NMB to enforce its decision was also rejected. These preliminary matters having been resolved, the Court proceeds to the merits.
When Continental initiated the poll, it represented to those polled that it felt the NMB's action was unfair and that it was defending the flight attendants' "right to a fair election" by filing the suit in Texas. Its Chairman stated, however, that, "If the majority of you tell me that you want to be represented by the IAM instead of UFA then I will accept and abide by the decision."
The ballot was a one-sided device. Flight attendants were asked to check a box stating "Yes, I want to be represented by the IAM." The Chairman's letter and the ballot itself stated that if the recipient did not return the ballot, Continental would assume the flight attendant was opposed to IAM representation. Thus, because the flight attendants were under no legal requirement to respond and no election was pending, the polling result was practically certain to favor Continental's well-known desire to thwart IAM. There was no reason to vote for IAM because IAM was already the certified representative, and the poll was meaningless in this regard. But those who had every right to ignore the poll entirely because of the NMB's decision would be improperly counted as against IAM. Apparently to ensure this twisted result, the ballot was mailed out November 16, 1990, without prior consultation with the IAM leadership or the NMB and without any neutral supervision of its content or subsequent handling.
The poll and an accompanying letter from Continental's Chairman, addressed "to all Continental Flight Attendants," are attached to the Verified Complaint (Exhibit L), and these documents are also attached to this Memorandum and made a part hereof.
This fictitious election followed a long period of Continental's persistent and vigorous union resistance, fully documented in the record. First Declaration of Carla Winkler, November 26, 1990. For many years the company sought to undermine union representation of its flight attendants and failed to reach formal agreements by collective bargaining with major unions. Continental publicized its outright opposition to IAM's take-over of UFA, and its unyielding position was well known to its flight attendants, who were left confused and suspicious.
While the poll ballot responses, although numbered, were acceptable without signature or other identification and Continental directed management to avoid personal contact with the flight attendants on the matter, the poll interfered with IAM's certification as the exclusive bargaining representative of the flight attendants. Proof as to the effect of the poll is found entirely in a declaration of Carla Winkler, president of UFA:
In the course of my duties as President, I routinely receive reports from the approximately twenty UFA representatives in the field. I also routinely receive phone calls directly from the members we represent. Beginning on Saturday, November 17th, our members began to receive ballots and I began to receive reports from UFA representatives and phone calls from individual members. By the following Tuesday, I concluded that hundreds of inquiries had been made to the union by flight attendants throughout the country. I concluded from the reports and direct conversations that there was widespread confusion as to why an election was being conducted in the company without the union's knowledge or involvement, particularly after our members had been informed by us that the National Mediation Board's decision had settled the representation issue. A number of flight attendants asked how the company's actions would now affect the union's right to bargain on their behalf. It became clear to me that Continental's actions were perceived by many of our members as hostile to the union and made the union appear to be powerless and uninformed.