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June 10, 1991

Continental Airlines, Inc., and Continental/Air Micronesia Plaintiffs,
National Mediation Board, Defendant.


The opinion of the court was delivered by: CHARLES R. RICHEY

Before the Court are cross-motions for summary judgment. *fn1" The plaintiffs, two air carriers, challenge the validity of a decision by the National Mediation Board ("NMB" or "Board") to transfer the certifications from an employee union to its successor after the merger of the two unions. The NMB argues that the Court lacks jurisdiction to grant the plaintiffs relief. After careful consideration of the parties' memoranda, the arguments of counsel, the underlying law, and the entire record herein, the Court shall grant summary judgment for the NMB and dismiss this case.

 I. Background

 There is no genuine dispute as to the material facts. On September 13, 1989, the Union of Flight Attendants ("UFA") and the International Association of Machinists & Aerospace Workers ("IAM&AW") requested that the NMB transfer certifications issued to UFA in NMB Case Nos. R-5352 and R-5337 to the IAM&AW after the merger of the two organizations. The NMB then investigated the circumstances of the IAM/UFA merger for one year. *fn2" The Board considered hundreds of pages of evidence and also reviewed submissions by the plaintiffs attacking the validity of the union merger.

 The Board concluded from its investigation that UFA had merged into the IAM in 1984; the UFA flight attendants had supported the merger in an internal ratification election by a vote of 1,077 to 161; the ratification vote was free of procedural irregularities; despite the five-year delay, the unions had timely filed a transfer request; and a transfer of certifications from UFA to IAM was appropriate. See In Re: Rep. of Empl. of Continental Airlines and Air Micronesia--Flight Attendants, 18 N.M.B. 40 (1990).

 The plaintiffs filed the instant suit challenging the Board's decision on the ground that the Board failed to investigate properly the unions' request for a transfer of certifications. The plaintiffs argue that NMB violated the Railway Labor Act and the Constitution by basing its transfer decision on a union merger ratification vote which occurred in 1984 and which was based on a plurality vote.

 II. Analysis

 Rule 56(c) of the Federal Rules of Civil Procedure requires that the Court grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." It is well established that the Court must believe the nonmovants' evidence and draw all justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). However, "the mere existence of a scintilla of evidence in support of the [nonmovants'] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovants]." Id. at 252.

 B. The Scope of Judicial Review

 Under the Railway Labor Act ("RLA"), judicial review of a Board decision is "one of the narrowest known to the law." Internat'l Ass'n of Machinists v. TWA, 839 F.2d 809, 811 (D.C. Cir. 1988), amended 848 F.2d 232, cert. denied, 488 U.S. 20 (1988). A reviewing court only takes a "peek at the merits" to determine whether it is "obvious on the face of the papers" that the Board totally failed to undertake an investigation of a representation dispute. Teamsters v. Bhd. of Ry. Clerks, 402 F.2d 196, 205 (D.C. Cir.), cert. denied, 393 U.S. 848 (1968); see Brotherhood of Ry. & S.S. Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 650, 661, 14 L. Ed. 2d 133 , 85 S. Ct. 1192 (1965). The Court "is empowered to proceed no further" unless the "peek" reveals such an obvious error. Prof. Cabin Crew Ass'n v. NMB, 872 F.2d 456, 463 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 497 (1989).

 The Court may review Board decisions which violate its "clear and mandatory" statutory duties, Leedom v. Kyne, 358 U.S. 184, 188, 3 L. Ed. 2d 210 , 79 S. Ct. 180 (1958), but only if the violation is obvious without the need for "arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide." Brotherhood of Ry. & S.S. Clerks, 380 U.S. at 671; see Prof. Cabin Crew, 872 F.2d at 459; Teamsters v. NMB, 136 L.R.R.M. 2193, 2194 (D.D.C. 1990).

 The central issue in this case is whether the NMB failed to carry out its statutory duty to investigate the representation dispute. See Brotherhood of Ry. & S.S. Clerks, 380 U.S. at 661 ("the Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to 'investigate' the dispute"). The focus of the inquiry is whether the Board investigated the dispute, not how it conducted its investigation:

 Reviewing a certification after an investigation by the NMB and reviewing whether the NMB made its statutory investigation at all are two completely different matters. While we cannot, and do not review the former, we can and do review the latter.

 In- Flight Catering v. NMB, 555 F.2d 712, 717 (9th Cir. 1977). Here, the plaintiffs fail to meet their heavy burden of proving that the Board committed an error of "constitutional dimension or gross violation of the [RLA]." Internat'l Brotherhood of Teamsters v. Brotherhood of Ry., Airline & S.S. Clerks, 402 F.2d 196, 205 (D.C. Cir.), cert. ...

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