US Airways Inc v. Natl Mediation Bd ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 1999 Decided May 28, 1999
No. 98-5435
US Airways, Inc.,
Appellant
v.
National Mediation Board and
Communications Workers of America, AFL-CIO,
Appellees
Appeal from the United States District Court
for the District of Columbia
(97cv01508)
Robert A. Siegel argued the cause for appellant. With him
on the briefs was Tom A. Jerman.
Bruce G. Forrest, Attorney, United States Department of
Justice, argued the cause for appellee National Mediation
Board. With him on the brief were Frank W. Hunger,
Assistant Attorney General at the time the brief was filed,
William Kanter, Deputy Director, and Ronald M. Etters,
General Counsel, National Mediation Board. Theodore C.
Hirt, Attorney, United States Department of Justice, entered
an appearance.
James B. Coppess argued the cause for appellee Communi-
cations Workers of America, AFL-CIO. With him on the
brief were Daniel M. Katz, Larry Engelstein, and Marsha S.
Berzon.
Before: Silberman, Williams, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: The National Mediation Board
(NMB) found that US Airways had interfered with its em-
ployees' free choice in a union representation election, and
issued an order setting aside the results of that election
(which the union had lost) and prescribing a re-run election
(which the union won). US Airways challenged the Board's
order in the district court on First Amendment grounds,
requesting that the results of the re-run election be set aside,
but was rebuffed. We reverse.
I.
The Communications Workers of America (CWA) failed in
the first election to garner the votes necessary to represent
the passenger service employees of US Airways. The union
saw its defeat as the product of a coercive anti-union cam-
paign waged by the carrier's management leading up to, and
during, the representation election. Pursuant to s 2, Ninth
of the Railway Labor Act, the union requested that the Board
"investigate" the "representation dispute" and "utilize any
... appropriate method of ascertaining the names of [the
employees'] duly designated and authorized representatives
in such manner as shall insure the choice of representatives
by the employees without interference, influence, or coercion
exercised by the carrier." 45 U.S.C. s 152, Ninth.
No one disputes the underlying facts found by the Board in
its investigation. For some time prior to the representation
election, an institution known as the "employee roundtable"
was a key feature of management's relationship with the
several categories of non-represented passenger service em-
ployees. The roundtables, while focusing on operational and
other issues in their periodic meetings, also provided a forum
for occasional discussion and alteration of US Airways' em-
ployment policies. The impact has been real. Modifications
to the carrier's rules governing vacation scheduling, supervi-
sors' disciplinary authority, and overtime were only a few of
the changes made from 1991-95.
In early 1996, a new management team announced the
formation of a company-wide "System Roundtable," an um-
brella entity unifying the existing roundtables that would
continue, in the words of one executive officer, to provide a
forum for "issues affecting employees." The System Round-
table continued the tradition of its constituent bodies, imple-
menting changes to the carrier's policies governing tardiness
and trading of shifts among employees, and also delegated to
several "task forces" the responsibility to study other policies.
The most notable of these task forces was assigned the job of
proposing changes to the carrier's apparently widely despised
policy governing paid days off for vacation and sick days.
Between the Board's authorization of the election in No-
vember 1996 and the ballot count on January 30, 1997, US
Airways' management highlighted the above described em-
ployment policy changes and the potential for future progress
on the matters under study by the task forces. In informa-
tional newsletters, telephone hotlines, and meetings, manage-
ment communicated to the employees that the informal man-
agement-employee relationship embodied in the roundtables
was inconsistent with union representation: "Electing CWA
would force the company to eliminate face-to-face policy
making between management and employees at a time when
we are beginning to make real progress. Labor laws require
employees to deal exclusively with the union on issues of
employment policy."
After reviewing these facts, the Board's order set forth five
"initial standards" viewed as indicative of a carrier's interfer-
ence with employee freedom of choice in the context of a
workplace in which roundtables (also called employee commit-
tees) are present.
1) The establishment of a committee at any time after
the carrier becomes aware of a labor organization's orga-
nizing efforts;
2) A material change, or a carrier representation of such
a change during the critical period in the purpose or
activities of a pre-existing committee;
3) The use of a pre-existing committee to expand em-
ployee benefits during the critical period (the continua-
tion of existing benefits is a prerequisite of a fair elec-
tion);
4) Carrier campaigns which indicate a pre-existing com-
mittee is, or should be, a substitute for the collective
bargaining representative;
5) Carrier campaigns which indicate that the certification
of a labor organization as the representative of the
employees will lead to the termination of a pre-existing
committee.
US Airways, 24 N.M.B. 354, 385-86 (1997). The Board
determined that the carrier's activities ran afoul of each of
these five factors: the carrier had established a new roundta-
ble during the critical period; represented to the employees
that pre-existing committees had been materially changed so
as better to address employment practices; used the roundta-
bles to accomplish the recent changes in attendance and shift-
trading policies and the creation of the task forces; portrayed
the roundtables as an alternative to union representation;
and predicted that the election of the union would result in
the elimination of the roundtable process. See id. at 388.
The Board concluded that "[b]ased upon the totality of the
circumstances in this case, ... the laboratory conditions
required for a fair election were tainted." Id. at 393.
The Board ordered a re-run election, making clear that
"[t]he Carrier is not permitted to influence, interfere [with] or
coerce employees in any manner ... in the upcoming elec-
tion." Id. at 396.1 The carrier, after failing to persuade the
Board to stay its order pending a motion for reconsideration,
filed a complaint in district court, along with an application
for a temporary restraining order barring enforcement of the
Board's order. Relying in part on the Board's representation
at the TRO hearing that "[i]f the election goes forward, and
then a decision is issued by the court that the board's decision
is invalid, the election will be null and void," the district court
denied the application. See US Airways, Inc. v. NMB, Civ.
Act. No. 97-1508, Mem. Order at 3 (D.D.C. July 3, 1997) ("If
at some point, the provisions of that Order are held to violate
either the statute or the Constitution, the election will be set
aside.").
US Airways, its request for a TRO denied, complied with
the Board's order. The carrier understood the order's fourth
and fifth factors to bar it from advocating the roundtables as
an alternative to union representation and from predicting
that election of the union would result in the disbanding of
the roundtables. So US Airways' management remained
silent on these matters. The union won the re-run election
by a slim margin: the ballot count on September 29, 1997,
revealed that of the 8,772 eligible voters, 4,773--or roughly
54%--cast ballots in favor of CWA. The NMB soon thereaf-
ter certified CWA as the bargaining representative for the
carrier's passenger service employees. Still awaiting a deci-
sion by the district court on the merits of its complaint, US
Airways amended its complaint to take account of the now
completed re-run election: "Because US Airways' speech was
__________
1 The Board's order also required US Airways: 1) to post and
mail to all employees a notice indicating that the Board had found
that US Airways had interfered with and coerced the employees'
choice of a representative; and 2) to provide the union with a list of
employee home addresses. See US Airways, 24 N.M.B. at 393.
US Airways unsuccessfully challenged these aspects of the order in
the district court on the ground that they exceeded the Board's
statutory powers. See US Airways, Inc. v. NMB, Civ. Act. No.
97-1508, Mem. Op. at 10-14 (D.D.C. July 21, 1998). As US Airways
does not renew these contentions before us, we express no view on
them.
unconstitutionally restrained during the rerun election by
the Board's Order ..., US Airways seeks an order setting
aside the election and the certification of CWA." Supplemen-
tal Verified Complaint for Declaratory and Injunctive Relief
p 7 (filed Mar. 27, 1998) (emphasis added).
The district court ultimately rejected the carrier's constitu-
tional arguments, granting the Board's motion for summary
judgment. US Airways, Inc. v. NMB, Civ. Act. No. 97-1508,
Mem. Op. (D.D.C. July 21, 1998). The court rejected the
carrier's analogy to cases, including NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), recognizing an employer's First
Amendment right to express its views on unionization prior to
a representation election. Those cases, the district court
observed, arose in the context of the National Labor Rela-
tions Act, not the Railway Labor Act, and were inapplicable
because "[t]he role of employers in representation elections
governed by the RLA is more limited than the activities
permitted employers under the NLRA." Mem. Op. at 14.
Alternatively, the district court assumed that the NLRA
caselaw does apply to the RLA context, and held that US
Airways' activities are not protected under that framework.
II.
The carrier seeks the invalidation of the results of the re-
run election. Its arguments in support are two-fold: the
carrier first submits that the Board's order unconstitutionally
penalized it for the expressive activity in which it engaged
prior to the first election; alternatively, the carrier claims
that the order unconstitutionally restricted its expression
during the re-run election period. We begin, for reasons that
will become apparent, with the latter contention.
Normally, district courts lack jurisdiction to review certifi-
cation decisions rendered by the NMB within its scope of
authority under s 2, Ninth of the RLA. Railway Labor
Executives' Ass'n v. NMB, 29 F.3d 655, 662 (D.C. Cir.) (en
banc); id. at 673 (Randolph, J., concurring, joined by Mikva,
C.J., Wald, J., Edwards, J., and Sentelle, J., together com-
prising a majority of the court), amended 38 F.3d 1224 (D.C.
Cir. 1994) (en banc).2 But this presumption of non-
reviewability falls away if the complainant makes a " 'showing
on the face of the pleadings that the certification was a gross
violation of the [RLA] or that it violated the constitutional
rights of an employer, employee, or Union.' " Professional
Cabin Crew Ass'n v. NMB, 872 F.2d 456, 458 (D.C. Cir. 1989)
(quoting International Ass'n of Machinists v. Trans World
Airlines, Inc., 839 F.2d 809, 811 (D.C. Cir.), amended 848
F.2d 232 (D.C. Cir. 1988)) (alteration in original). Once an
employer (or employee or union) pleads a violation of its
constitutional rights or a gross violation of its statutory rights
arising from an NMB order, jurisdiction depends on the
merits of the argument.
As US Airways points out, however, our approach to the
two exceptions to the presumption of non-reviewability differs
somewhat. In examining a challenge predicated on the ex-
__________
2 The ordinary presumption of non-reviewability of NMB adjudi-
catory decisions rendered pursuant to 45 U.S.C. s 152, Ninth stems
from Switchmen's Union of North America v. NMB, 320 U.S. 297(1943), where the Supreme Court inferred from Congress' careful
measures to preserve the neutrality and prestige of the NMB in the
Board's treatment of the "explosive problem" of labor relations in
the railway industry that if Congress had desired to implicate the
federal judiciary, it would have said so. Id. at 303. Though
decided prior to the enactment of the APA, which provides in
relevant part that judicial review is precluded only to the extent
that a statute so provides or the agency action is committed to
agency discretion by law, 5 U.S.C. s 701(a), Switchmen's has since
been reaffirmed, see Brotherhood of Ry. Clerks v. Association for
the Benefit of Non-Contract Employees, 380 U.S. 650, 658-60
(1965). We have reconciled the Switchmen's presumption with the
APA by describing the presumption as a situation where judicial
review is precluded by statute, as judicially interpreted; however,
because the statute does not by its terms preclude judicial review of
NMB rulemaking and has never been judicially interpreted to do
so, the Switchmen's presumption does not apply outside the context
of NMB adjudications pursuant to 45 U.S.C. s 152, Ninth. See
Railway Labor Executives' Ass'n, 29 F.3d at 673 (Randolph, J.,
concurring, joined by Mikva, C.J., Wald, J., Edwards, J., and
Sentelle, J., together comprising a majority of the court).
ception for a gross violation of the RLA, we take only a "peek
at the merits"; that is, we limit the inquiry to "specific
statutory language, without extension to 'arguing in terms of
policy and broad generalities as to what the Railway Labor
Act should provide.' " International Brotherhood of Team-
sters v. Brotherhood of Ry. Clerks, 402 F.2d 196, 205 (D.C.
Cir. 1968) (quoting Brotherhood of Ry. Clerks v. Association
for the Benefit of Non-Contract Employees, 380 U.S. 650, 671
(1965)). The district court thought it was similarly compelled
to take only a "peek at the merits" of US Airways' constitu-
tional challenge. That was erroneous. Although both consti-
tutional and statutory challenges to NMB decisions should be
processed by a reviewing court with dispatch given Congress'
purpose in the RLA "[t]o avoid any interruption to commerce
or to the operation of any carrier engaged therein," 45 U.S.C.
s 151a; see International Brotherhood of Teamsters, 402
F.2d at 205, the "peek" framework is simply not suited to the
evaluation of constitutional claims. For constitutional argu-
ments cannot sensibly be restricted to the plain text of the
clause at issue, which is what the "peek" framework would
require. To be sure, we have suggested otherwise in dicta.
See Professional Cabin Crew Ass'n, 872 F.2d at 459 ("Courts
take only a 'peek at the merits' to determine if the NMB has
committed an error of 'constitutional dimension or gross
violation of the statute.' ") (quoting International Brother-
hood of Teamsters, 402 F.2d at 205).3 But our only holding
confirms that a court must do more than just peek. We
did not reject the constitutional claim in International
__________
3 Two of our sister circuits have quoted this dicta approvingly,
but neither has used it to evaluate a constitutional challenge to an
NMB decision. See America West Airlines, Inc. v. NMB, 119 F.3d
772, 775 (9th Cir. 1997); Brotherhood of Maintenance of Way
Employees v. Grand Trunk W. R.R. Co., 961 F.2d 1245, 1249 (6th
Cir. 1992). The Fifth Circuit has stated that jurisdiction to review
a constitutional challenge to an NMB decision exists only "where a
complaining party makes a 'substantial showing' of a violation of
that party's constitutional rights as a result of the Board's action."
Russell v. NMB, 714 F.2d 1332, 1339 (5th Cir. 1983) (quoting
United States v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969)
(quoting Boire v. Miami Herald Publ'g Co., 343 F.2d 17, 21 (5th
Cir. 1965))). This formulation seems rather unhelpful.
Association of Machinists until we had "independently" satis-
fied ourselves, 839 F.2d at 812, that there was no authority
for the proposition of constitutional law asserted by the
appellants in that case. As we thus engaged in our own
research in support of a complainant's constitutional chal-
lenge to an NMB decision, but cf. Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983), a fortiori we evaluated the
complainant's claim on its "full merits."
We therefore turn to the carrier's claim that the Board's
order unconstitutionally restrained the carrier (prospectively)
from engaging in protected expression leading up to the re-
run election. US Airways submits that the order's fourth and
fifth factors evince the Board's intent to find carrier interfer-
ence based on speech alone, wholly apart from conduct. Such
an approach, we are told, is an affront to Gissel's teaching
that the First Amendment allows an employer to express
anti-union views (so long as threats of reprisal or promises of
benefits are not imparted) and to make objective, non-
misleading predictions of the likely effects of union represen-
tation. See Gissel, 395 U.S. at 618; see also, e.g., General
Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997); Crown
Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1134 (D.C. Cir.
1994).
The district court rejected US Airways' reliance on the
First Amendment principles announced in these cases: "Gis-
sel Packing, and the other cases cited by Plaintiff are inappo-
site for the simple reason that they were decided under the
NLRA, not the RLA, which is the statute governing this
case." Mem. Op. at 14. The district court observed that
"[t]he role of employers in representation elections governed
by the RLA is more limited than the activities permitted
employers under the NLRA," id., and reasoned that "[t]he
Constitution does not tolerate expression by an employer
found to be specifically prohibited by an Act of Congress," id.
at 15 (quoting International Ass'n of Machinists v. Continen-
tal Airlines, Inc., 754 F. Supp. 892, 896 (D.D.C. 1990)).4
Of course the First Amendment does not ebb and flow with
the legislative will. Yet the force of the First Amendment
__________
4 The district court found further support in Trans World Air-
lines, Inc. v. Independent Fed'n of Flight Attendants, 489 U.S. 426has been held to vary with context, if not with the desires of a
given Congress. For example, in Gissel, the Supreme Court
noted that the rights of employers to express their anti-union
views must be balanced with the rights of employees to
collectively bargain, and explained that "any balancing of
those rights must take into account the economic dependence
of the employees on their employers, and the necessary
tendency of the former, because of that relationship, to pick
up intended implications of the latter that might be more
readily dismissed by a more disinterested ear." Gissel, 395
U.S. at 617. Not only is a "balancing" required, the NLRB
calibrates the scales. See id. at 620 ("[A] reviewing court
must recognize the Board's competence in the first instance
to judge the impact of utterances made in the context of the
employer-employee relationship.") (citation omitted). In an
attempt to exploit this reasoning, the NMB points to two
facets of the RLA that differ from the NLRA, and argues
that these differences justify less employer protection in
RLA-governed representation elections than in NLRA-
governed representation elections. But the first asserted
difference is irrelevant: Section 8(c) of the NLRA, 29 U.S.C.
s 158(c) ("The expressing of any views ... shall not consti-
tute or be evidence of an unfair labor practice under any of
the provisions of this subchapter, if such expression contains
no threat of reprisal or force or promise of benefit."), while
absent from the RLA, "merely implements the First Amend-
ment," Gissel, 395 U.S. at 617. And the second does not even
exist: the RLA's language prohibiting employer "influence"
of employees, 45 U.S.C. s 152, Third, Fourth, Ninth, while
superficially broader than the NLRA's proscription of "inter-
__________
(1989), where the Supreme Court cautioned that "the NLRA 'cannot
be imported wholesale into the railway labor arena. Even rough
analogies must be drawn circumspectly with due regard for the
many differences between the statutory schemes.' " Id. at 439
(quoting Brotherhood of R.R. Trainmen v. Jacksonville Terminal
Co., 394 U.S. 369, 383 (1969)). This is sound advice, but clearly
does not govern the situation presented here where we are inter-
preting not the RLA, but the First Amendment, which applies to
both the RLA and the NLRA.
fer[ing] with, restrain[ing] or coerc[ing] employees," 29
U.S.C. s 158(a)(1), has been interpreted to mean pretty much
the same thing, see Texas & N.O. R.R. Co. v. Brotherhood of
Ry. Clerks, 281 U.S. 548, 568 (1930). In short, the Board
provides us with nothing to support its claim that the key
characteristic of representation elections identified by the
Gissel Court as mandating lesser-than-usual First Amend-
ment protection of employers' expression--the economic de-
pendence of employee on employer--should be thought of
differently when that employer is a carrier governed by the
RLA.
Thus, we must apply Gissel to determine whether the
Board's order unconstitutionally restrained US Airways'
speech leading up to the re-run election. As noted, the Board
set forth five factors to provide "general guidance concerning
carrier actions in connection with employee committees," US
Airways, 24 N.M.B. at 386, a clear indication of their prospec-
tive effect.
The Board has determined that the following carrier
conduct regarding employee committees [i.e., roundta-
bles] interferes with employee freedom of choice:
1) The establishment of a committee at any time after
the carrier becomes aware of a labor organization's orga-
nizing efforts;
2) A material change, or a carrier representation of such
a change during the critical period in the purpose or
activities of a pre-existing committee;
3) The use of a pre-existing committee to expand em-
ployee benefits during the critical period (the continua-
tion of existing benefits is a prerequisite of a fair elec-
tion);
4) Carrier campaigns which indicate a pre-existing com-
mittee is, or should be, a substitute for the collective
bargaining representative;
5) Carrier campaigns which indicate that the certification
of a labor organization as the representative of the
employees will lead to the termination of a pre-existing
committee.
Id. at 385-86. These factors were not linked by the word
"and"; nor did the Board ever suggest that more than one
must be present to support a finding of carrier interference.
And the Board made clear in the notice it required US
Airways to post that "[t]he carrier is not permitted to influ-
ence, interfere [with] or coerce employees in any manner in
an effort to induce them to participate or refrain from partici-
pating in the upcoming election." Id. at 396 (emphasis add-
ed). US Airways reasonably interpreted all this to mean that
any of "the following conduct" would suffice, and therefore
that each of the five proscribed activities had to be avoided
leading up to the re-run election.
That the fourth and fifth factors--which by their terms
regulate pure speech--stand apart from the other three (and
indeed from each other) simplifies the analysis by obviating
the need for us to confront the situation where an employer's
otherwise protected speech becomes unprotected because the
employer also engages in conduct tending to coerce. See
NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 478
(1941) ("The mere fact that language merges into a course of
conduct does not put the whole course without the range of
otherwise applicable administrative power. In determining
whether the Company actually interfered with, restrained,
and coerced its employees the Board has a right to look at
what the Company has said as well as what it has done."); see
also Schweitzer v. NLRB, 144 F.2d 520, 523 (D.C. Cir. 1944).
This is why we have chosen to focus on US Airways' conten-
tion that its expression leading up to the re-run election was
unconstitutionally restrained rather than its alternative claim
that it was unconstitutionally penalized for the expression in
which it engaged prior to the initial election. The carrier's
campaign prior to the initial election was a potpourri of
speech and conduct, and the Board's order would have to be
evaluated under the theory of Virginia Electric.5 We need
__________
5 If we applied Virginia Electric and determined that US Airways
could not constitutionally be penalized for the particular mix of
speech and conduct in which it engaged prior to the initial election
(perhaps because the campaign involved mostly speech and not so
much conduct), we would be obliged to direct a remand to the
Board for a determination whether it would reach the same result
based on the conduct alone. That would afford US Airways less
than the full relief that it seeks.
not do so, however, because US Airways does not ask that the
results of the first election (which the union lost) be reinstat-
ed, only that the results of the re-run election (which the
union won) be set aside. See Supplemental Verified Com-
plaint for Declaratory and Injunctive Relief p 7 (filed Mar. 27,
1998). That requested relief would follow from a showing
that US Airways' speech was unconstitutionally restrained
leading up to the re-run election.
The fourth and fifth factors proscribe exactly what Gissel
protects. Whereas the fourth factor would restrict "[c]arrier
campaigns which indicate a pre-existing committee is, or
should be, a substitute for a collective bargaining representa-
tive," US Airways, 24 N.M.B. at 386, Gissel teaches that "an
employer is free to communicate to his employees any of his
general views about unionism or any of his specific views
about a particular union, so long as the communications do
not contain a 'threat of reprisal or force or promise of
benefit,' " Gissel, 395 U.S. at 618 (quoting 29 U.S.C. s 158(c)).
The fifth factor would forbid US Airways from "indicat[ing]
that the certification of a labor organization as the represen-
tative of the employees will lead to the termination of a pre-
existing committee." US Airways, 24 N.M.B. at 386. But
Gissel shields just this sort of prediction:
[An employer] may even make a prediction as to the
precise effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probable
consequences beyond his control.... If there is any
implication that an employer may or may not take action
solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the state-
ment is no longer a reasonable prediction based on
available facts but a threat of retaliation based on mis-
representation and coercion, and as such without the
protection of the First Amendment.
Gissel, 395 U.S. at 618. Thus, an employer is free to make
objective predictions, such as that its employees will lose
vacation time under the terms of the union's national agree-
ment, General Elec., 117 F.3d at 632, or that unionization will
create a perception that the company is strike-prone and
unreliable, leading to the loss of customers, id. at 633-34;
Crown Cork, 36 F.3d at 1134-35, or that unionization will lead
to prolonged bargaining between the union and the employer,
Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1174
(D.C. Cir. 1998), but not subjective predictions (i.e., those
lacking a connection to objective circumstances), such as a
bare assertion that temporary layoffs could occur if the union
is elected, General Elec., 117 F.3d at 635; Allegheny Ludlum
Corp. v. NLRB, 104 F.3d 1354, 1367 (D.C. Cir. 1997).
Here, the objective circumstance stems from law rather
than economics, but it is objective nonetheless. Where the
NMB has certified a representative for a carrier's employees,
the RLA imposes on the carrier the duty to "treat with" that
certified representative and none other in negotiating work-
ing conditions and wages. 45 U.S.C. s 152, First, Ninth; see
Virginia Ry. Co. v. System Fed'n No. 40, 300 U.S. 515, 548-
49 (1937). The Board and appellee CWA do not dispute this
basic proposition, but argue that US Airways' statement that
unionization "would force the company to eliminate face-to-
face policymaking between management and employees" was
only a half-truth given the way US Airways structured its
roundtables. The Board found that the roundtables primarily
discussed operational issues having no relation to employment
policies and only occasionally turned their attention to the
latter. Appellees accordingly urge that continuation of the
roundtables in their capacity as a forum for discourse on
operational issues would be entirely consistent with the stric-
tures of 45 U.S.C. s 152, Ninth, and hence it was misleading
for the carrier to represent to its employees that the roundta-
bles would have to be shut down in all respects.
To be sure, US Airways might have explained more pre-
cisely just what it was about the roundtables that was incon-
sistent with union representation. "But if unions are free to
use the rhetoric of Mark Antony while employers are limited
to that of a Federal Reserve Board chairman, ... the em-
ployer's speech is not free in any practical sense." Crown
Cork, 36 F.3d at 1140 (holding protected an employer's pre-
diction that unionization would increase costs, risking the loss
of cost-sensitive projects and consequent layoffs, notwith-
standing employer's failure to emphasize that the loss of such
projects was only a risk and not an absolute certainty). It
was enough for US Airways to connect its prediction that the
roundtables would be disbanded to the "labor laws," US
Airways, 24 N.M.B. at 370, 371, 375, especially given the
history of the fleet service employees' roundtable, which had
been disbanded after those employees had unionized, id. at
359; see Crown Cork, 36 F.3d at 1141 (employer's prediction
that unionization would cause loss of employee benefits under
the union's ambiguous master agreement supported by past
authoritative interpretations of the master agreement in simi-
lar circumstances).
In concluding that the Board's order unconstitutionally
restrained US Airways' speech leading up to the re-run
election, we are mindful of the Supreme Court's admonition in
Gissel that "an employer, who has control over [the employer-
employee] relationship and therefore knows it best, cannot be
heard to complain that he is without an adequate guide for his
behavior." Gissel, 395 U.S. at 620. Here, there was not a
lack of guidance in any sense. Rather, the order exactly (and
unconstitutionally) informed US Airways of what sort of
expression was proscribed.
III.
Appellee CWA (intervenor below) raises additional argu-
ments not presented by the Board. The union suggests that
US Airways was not really restrained by the Board's order;
it remained silent before the re-run election for tactical
reasons. If the union lost, US Airways would get its desired
result with no fear that the Board might again order a new
election; if the union won, US Airways would invoke its
unconstitutional restraint argument to get a second bite at
the apple. The union points out that US Airways never once
presented its "chill" argument to the Board, and argues that
this failure to exhaust administrative remedies is fatal. The
union believes US Airways should have sought a clarifying
opinion from the NMB as to the order's prospective effect.6
However, the carrier made its request for a TRO, predicat-
ed in part on its chill theory, after the Board had issued its
order and before the re-run election was held, so it was hardly
sitting on its claim. At that juncture, the carrier surely
wished to engage in expression proscribed by the fourth and
fifth factors of the Board's order, and was concerned that
doing so might result in an even more severe sanction--as a
repeat offender--than a re-run election on the Board's stan-
dard ballot. For as the Board has explained, the more
egregious an employer's behavior, the more severe the penal-
ty. See US Airways, 24 N.M.B. at 381-83 (citing Laker
Airways, Ltd., 8 N.M.B. 236 (1981) (re-run election on "yes"
or "no" ballot where the majority of votes cast would deter-
mine the outcome); Key Airlines, 16 N.M.B. 296 (1989) (re-
run election on ballot where certification would result unless a
majority of eligible voters voted against the union); Sky
Valet, 23 N.M.B. 276 (1996) (certification based on a check of
authorization cards)); see also 45 U.S.C. s 152, Tenth (pro-
viding for NMB referral of a carrier's willful violation of 45
__________
6 The union makes the quite valid observation that First Amend-
ment chilling effect claims are apparently always advanced when
the claimant has an interest in engaging in speech in the future, see,
e.g., Reno v. ACLU, 521 U.S. 844, 871-72 (1997); Chamber of
Commerce v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995), whereas
here US Airways contends only that its speech was chilled in the
past, identifying its present injury in the results of the re-run
election. We admit this is a unique situation, but we see no reason
why an injury flowing from the suppression of one's speech in the
past (if only by chilling) should not be remediable. In any event,
US Airways undoubtedly has an interest in engaging in expression
in future elections (including the second re-run election that will be
held if the results of the first re-run election are set aside).
U.S.C. s 152, Fourth to the United States attorney for prose-
cution as a misdemeanor). Such possibilities, in conjunction
with the order's fourth and fifth factors, created a more than
credible threat that the carrier's speech would be suppressed
by subsequent application of the order, thereby conferring
standing on the carrier to make the chill argument. See
Skaggs v. Carle, 110 F.3d 831, 836-37 (D.C. Cir. 1997) (citing
Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93
(1988)).
If US Airways had been unable to invoke its chill argument
later to reverse a union victory (perhaps on the very ground
that the union advances that one who lacks an ongoing
interest in speaking cannot be chilled), it would have been
irreparably harmed. Responding to this concern at the TRO
hearing, the Board's counsel represented to the district court
that "[i]f the election goes forward, and then a decision is
issued by the court that the board's decision is invalid, the
election will be null and void. The situation will be rectified
down the road. They will not be stuck with a union represen-
tative if the board's order is struck down." And the district
court, discussing the irreparable harm issue in the course of
denying the requested TRO, specifically noted that "[i]f at
some point, the provisions of that Order are held to violate
either the statute or the Constitution, the election will be set
aside." Mem. Order at 3.
We assume this is why only the union, and not the Board, is
advancing the exhaustion argument. The Board's failure to
join undermines the union's claim, since the only litigant with
an institutional interest in such an exhaustion requirement
has not argued for it, see Cutler v. Hayes, 818 F.2d 879, 891
n.95 (D.C. Cir. 1987) (rejecting an intervenor's claim that
appellants had failed to exhaust administrative remedies in
part because the agency did not press the issue); but cf.
Coalition for the Preservation of Hispanic Broadcasting v.
FCC, 931 F.2d 73, 76 (D.C. Cir. 1991) (noting that the
exhaustion doctrine concerns economy not only of agency but
also of judicial resources and that a court may in its discre-
tion raise the issue sua sponte), and there is no suggestion
that any failure to meet such a requirement (if one exists)
strips us of jurisdiction, see Darby v. Cisneros, 509 U.S. 137,
147 (1993). In any event, it would have been futile for US
Airways to seek a clarifying opinion. While we treat such a
credible First Amendment chilling effect claim as satisfying
Article III's case or controversy requirement, see Skaggs, 110
F.3d at 836-37, the Board has rejected just such a claim as an
impermissible request for an "advisory opinion," America
West Airlines, 17 N.M.B. 226, 233 (1990).
* * * *
We accordingly reverse the district court's grant of sum-
mary judgment in favor of the NMB and remand the case to
the district court with instructions to remand in turn to the
NMB to set aside the results of the re-run election and for
further proceedings not inconsistent with this opinion.
So ordered.