TRANS WORLD AIRLINES, INC., PETITIONER V. NATIONAL MEDIATION BOARD,
ET AL.

   DEBORAH K. BOLLER, ET AL., CROSS-PETITIONERS V. NATIONAL MEDIATION
BOARD, ET AL.

   No. 87-1918, 87-2101

   In the Supreme Court of the United States

   October Term, 1988

   On Petition and Cross-Petition for a Writ of Certioriari to the
United States Court of Appeals for the District of Columbia Circuit

   Brief for the Federal Respondent in Opposition

        TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-11a) /1/ is
reported at 839 F.2d 809.  The opinion of the district court (Pet.
App. 14a-29a) is reported at 654 F. Supp. 447.  The decisions of the
National Mediation Board (Pet. App. 30a-44a) are reported at 13 N.M.B.
Nos. 63, 64 and 72.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 19,
1988.  The petition for certiorari in No. 87-1918 was filed by
petitioner Trans World Airlines, Inc. (TWA), on May 19, 1988.  The
cross-petition for certiorari in No. 87-2101 was filed by
cross-petitioners Deborah Boller, et al., on June 13, 1988.  The
jurisdiction of this Court in invoked under 28 U.S.C. 1254(l).

                          QUESTION PRESENTED

   Whether the court of appeals properly held, in accordance with this
Court's decisions in Brotherhood of Ry. & S.S. Clerks v. Association
for the Benefit of Non-Contract Employees, 380 U.S. 650 (1965), and
Switchmen's Union v. National Mediation Bd., 320 U.S. 197 (1943), that
the National Mediation Board's decision that certain of petitioner's
employees were ineligible to vote in a representation election
conducted under the Railway Labor Act, 45 U.S.C. 151 et seq., is not
subject to judicial review.

                               STATEMENT

   1. The Railway Labor Act, 45 U.S.C. 151 et seq., creates a
statutory plan for the administrative resolution of labor-management
disputes in the rail and air transportation industries.  See 45 U.S.C.
151a.  To this end, the Act requires that carriers and their employees
"exert every reasonable effort to make and maintain agreements * * *
and to settle all disputes * * * in order to avoid any interruption to
commerce or to the operation of any carrier growing out of any dispute
between the carrier and the employees thereof" (45 U.S.C. 152 First).

   The Act specifically guarantees employees "the right to organize
and bargain collectively through representatives of their own
choosing" (45 U.S.C. 152 Fourth).  The Act further provides that the
"majority of any craft or class of employees shall have the right to
determine who shall be the representative of the craft or class for
the purposes of this chapter" (45 U.S.C. 152 Fourth).  The
representative so selected is the exclusive bargaining representative
of all the employees of that craft or class, and the carrier is
obligated to enter into negotiations with that representative for the
settlement of labor disputes.  See 45 U.S.C. 152 First and Ninth.  See
also Virginian Railway Co. v. System Fed'n No. 40, 300 U.S. 515, 548
(1937).

   Section 2, Ninth of the Railway Labor Act authorizes the National
Mediation Board to resolve labor representation disputes (45 U.S.C.
152 Ninth).  A party that wishes to be certified as a bargaining
representative of a craft of a carrier's employees may apply to the
Board for an investigation to determine the craft's representation
wishes.  Section 2 Ninth does not specify the method that the Board
must use in conducting an investigation;  instead, it authorizes the
Board either "to take a secret ballot of the employees involved" or
"to utilize any other appropriate method of ascertaining" the
representative (45 U.S.C. 152 Ninth).  It also provides that "(i)n the
conduct of any election for the purposes herein indicated the Board
shall designate who may participate in the election and establish the
rules to govern the election" (45 U.S.C. 152 Ninth).  Section 2 Ninth
further directs the Board to determine the wishes of the employees "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. 152 Ninth).

   If the Board conducts a representation election and the election
results in the choice of a representative, th Board certifies the
elected individual or organization as the designated representative of
the craft or class of the carrier's employees, and certifies "the same
to the carrier" (45 U.S.C. 152 Ninth).  A representative will be
certified by the Board only if a majority of the eligible voters cast
voters cast ballots favoring representation and one potential
representative receives a majority of the valid ballots cast.

   2. In January 1986, the International Association of Machinists and
Aerospace Workers (Machinists), the International Brotherhood of
Teamsters (Teamsters), and the Independent Federation of Flight
Attendants (IFFA) filed separate applications with the Board pursuant
to Section 2 Ninth of the Act, requesting the Board to investigate the
representation of the "passenger service employees" at TWA.  The Board
commenced an investigation, appointed a mediator, and authorized a
mail ballot election.  While these Board proceedings were pending,
another category of TWA employees, flight attendants, went on strike.
In response, TWA assigned numerous passenger service employees, who
volunteered, to work as flight attendants for the duration of the
strike.  This case involves the eligibility of 302 of these so-called
"contingent flight attendants" to participate in the Board's passenger
service employees representation election.  See Pet. App. 3a-4a,
16a-17a, 30a-31a.

   The mediator initially determined that these contingent flight
attendants were eligible to vote in the election for the passenger
service employees representative, and the Teamsters appealed this
eligibility determination to the National Mediation Board (Pet. App.
3a-4a, 16a-17a).  /2/ The Board held (Pet. App. 30a-38a) that the 302
employees were ineligible to vote within the craft or class of
passenger service employees, citing (id. at 35a) its prior decisions
in Chicago & N. W. Ry., 4 N.M.B. 240 (1965), and Trans World Airways,
Inc., 8 N.M.B. 663 (1981).  See Pet. App. 30a-38a.  Shortly
thereafter, the Board issued its decision concerning the
representation dispute (id. at 42a-44a).  The election yielded the
following results (id. at 43a):

          Number of eligible employees:  4330
          Ballots cast:
             Machinists:          1279
             Teamsters:            935
             IFFA:                  36
             Void ballots:          22

   A majority of the eligible employees voted in the election, and the
Machinists received a majority of the valid ballots that were cast.
The Board accordingly certified the Machinists as the representative
of TWA's passenger service employees (id. at 42a-44a).

   3. TWA brought suit in the United States District Court for the
Southern District of Texas to challenge the Board's certification
order and to set aside the representation election on the ground that
the Board improperly excluded from participation the 302 temporary
flight attendants.  Several TWA employees (the cross-petitioners)
joined TWA's efforts by filing a separate action in the district
court.  These suits were eventually transferred to and consolidated in
the United States District Court for the District of Columbia (Pet.
App. 15a-16a & n.1), which dismissed them for lack of subject matter
jurisdiction (id. at 14a-29a).  The court explained (id. at 17a):

         It has been established for over 20 years that courts have no
      authority to review NMB certification decisions in the absence
      of a showing on the face of the pleadings that the certification
      decision was a gross violation of the Railway Labor Act or that
      it violated the constitutional rights of an employer, employee
      or union.

   The court relied on Brotherhood of Ry. & S.S. Clerks v. Association
for the Benefit of Non-Contract Employees, 380 U.S. 650 (1965)
(Railway Clerks), and Switchmen's Union v. National Mediation Bd., 320
U.S. 297 (1943) (Switchmen's Union), as well as other decisions.  The
court concluded (Pet. App. 17a) that "plaintiffs have failed to
demonstrate either a gross violation of the Act or any violation of
the Constitution."

   The court of appeals affirmed the district court's decision (Pet.
App. 3a-6a), noting that "(j)udicial review of NMB decisions is one of
the narrowest known to the law" (id. at 4a-5a).  /3/

                               ARGUMENT

   The court of appeals' decision is correct and, indeed, is mandated
by this Court's decision in Railway Clerks and Switchmen's Union.  It
does not conflict with any decision of this Court or another court of
appeals.  Accordingly, there is no warrant for further review.

   1. Congress has vested the National Mediation Board with plenary
authority to resolve representation disputes under the Railway Labor
Act and to protect the employees' statutory right under Section 2
Ninth to elect a bargaining representative.  See 45 U.S.C. 152 Ninth.
This Court has twice recognized in no uncertain terms that Congress
intended the Board -- and not the judiciary -- to have the final word
in resolving representation questions.  As the Court explained, "'the
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.'" Railway Clerks,
380 U.S. at 659 (quoting Switchmen's Union, 320 U.S. at 305).  The
court of appeals was unquestionably correct in holding that "under the
principles set forth in Switchmen's Union * * * the certification of
the (Machinists) as bargaining representative is not reviewable" (Pet.
App. 6a).  The courts of appeals have uniformly adhered to the
principle that Board certification decisions are not subject to
judicial review.  /4/

   This Court did recognize in Railway Clerks that while Congress
precluded judicial review of Board representation decisions, the
courts may afford a remedy for "'an order of the Board made in excess
of its delegeated powers and contrary to a specific prohibition in the
Act.'" 380 U.S. at 659-660 (emphasis in original)(quoting Leedom v.
Kyne, 358 U.S. 184, 188 (1958)).  But TWA and the cross-petitioners
have failed to state a claim within the "'narrow limits'" (380 U.S. at
660 (citation omitted)) of that rule.  Section 2 Ninth authorizes the
Board to "designate who may participate in the election and establish
the rules to govern the election" (45 U.S.C. 152 Ninth), thus leaving
to the Board "the task of selecting the methods and procedures whih it
should employ" (380 U.S. at 662).  The Board acted wholly within that
broadly conferred discretion by concluding that, under the facts of
this case, passenger service employees acting as "contingent flight
attendants" had a "'present interest in (the) craft or class'" of
flight attendants and were therefore outside the passenger service
class or craft (Pet. App. 35a (citation omitted).  The Board's
conclusion did not violate any "specific prohibition" of the Act.
Here, as in Railway Clerks, the Board's "decision on the matter is not
subject to judicial review where there is no showing that it has acted
in excess of its statutory authority" (380 U.S. at 669).

   TWA and cross-petitioners also contend (Pet. 25;  Cross-Pet. 16)
that the Board demonstrated a pro-union bias.  But as the court of
appeals explained, those allegations also fail to state a claim
actionable under Railway Clerks because "there is not express
statutory duty of neutrality, even if plaintiffs' complaints were
taken to adequately allege a violation of such duty" (Pet. App. 5a
(footnote omitted)).  The district court reached the same conclusion.
See id. at 19a ("It is unclear whether a proven instance of
'non-neutrality' would constitute a gross violation of a specific
provision of the Railway Labor Act * * *.  There is no occasion to
decide that question, however, because (TWA and cross-petitioners)
have failed to proffer any substantial evidence to support (that)
claim.").  TWA's other allegations have likewise been rejected by the
lower courts.  The court of appeals and ditrict court both agreed (id.
at 5a, 17a-20a) that the pleadings failed to disclose any other Board
action that would amount to the sort of "gross violation" of the Act
contemplated in Railway Clerks.  Certainly, this Court does not sit to
review whether the two courts correctly decided that factbound issue.
/5/

   2. TWA strives mightily -- primarily by snatching passages out of
context and arguing broad generalities concerning labor polciy (Pet.
21-29) -- to suggest that the court of appeals' decision is in
conflict with Railway Clerks or Switchmen's Union.  No such conflict
exists.  Indeed, TWA's protracted and convoluted arguments simply
prove the wisdom of Congress's decision to curtail judicial review of
representation decisions, "for it was to avoid the haggling and delays
of litigation that such questions were left to the Board" (Railway
Clerks, 380 U.S. at 671).  Similarly without merit is TWA's argument
that the decision below conflicts with the Fifth Circuit's decision in
Russell v. National Mediation Bd., 714 F.2d 1332 (5th Cir. 1983),
cert. denied, 467 U.S. 1204 (1984).  In Russell, the Board refused to
investigate an individual's application to become the representative
of a craft or class of workers of a carrier because it considered his
application a subterfuge.  The Fifth Circuit held "that the Board
breached its clear statutory mandate by not 'processing' Russell's
application for investigation into the representational dispute" (714
F.2d at 1341).  As we explain above, TWA failed to show that the Board
breached any statutory duty here.  Certainly, it is indisputable that
the unions' applications for investigations of the representation
dispute were processed in this case.

                              CONCLUSION

   The petition and cross-petition for a writ of certiorari should be
denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   JOHN F. CORDES

   MARK W. PENNAK

      Attorneys

   JULY 1988

   /1/ Pet. App. refers to the petitioner's appendix in No. 87-1918.

   /2/ Both TWA and the other unions -- the IFFA and the Machinists --
opposed the Teamsters' appeal and agreed with the mediator that
passenger service employees working temporarily as flight attendants
should be allowed to vote.

   /3/ The court of appeals consolidated TWA's and the
cross-petitioner's appeals with a third appeal, from a separate case,
in which the Machinists argued that the Railway Labor Act requires TWA
to maintain existing working conditions while bargaining with the
union.  See Pet. App. 1a-3a, 14a-16a & n.1.  The Machinists have filed
a petition for a writ of certiorari seeking review of the court of
appeals' ruling in that appeal.  See International Ass'n of Machinists
& Aerospace Workers v. Trans World Airlines, Inc., No. 87-2069.  The
National Mediation Board was not a party in the Machinists' action
against TWA and is therefore not a respondent to the Machinists'
petition.

   /4/ See, e.g., Zantop Int'l Airlines, Inc. v. National Mediation
Bd., 732 F.2d 517 (6th Cir. 1984);  British Airways Bd. v. National
Mediation Bd., 685 F.2d 52 (2d Cir. 1982);  Sedalia-Marshall-Boonville
Stage Line, Inc. v. National Mediation Bd., 574 F.2d 394, 397-399 (8th
Cir.), cert. denied, 439 U.S. 881 (1978);  International Ass'n of
Machinists & Aerospace Workers v. National Mediation Bd., 425 F.2d
527, 535-536 (D.C. Cir. 1970);  International Bhd. of Teamsters v.
Brotherhood of Ry. Clerks, 402 F.2d 196, 205 (D.C. Cir.), cert.
denied, 393 U.S. 848 (1968);  Ruby v. American Airlines, Inc., 323
F.2d 248, 253-256 (2d Cir. 1963), cert. denied, 376 U.S. 913 (1964);
WES Chapter, Flight Engineers' Int'l Ass'n v. National Mediation Bd.,
314 F.2d 234, 236-237 (D.C. Cir. 1962);  Decker v. Venezolana, 258
F.2d 153, 154 (D.C. Cir. 1958);  Rutas Aereas Nacionales, S.A. v.
Edwards, 244 F.2d 784, 785 (D.C. Cir. 1957);  American Air Export &
Import Co. v. O'Neill, 221 F.2d 829, 830 & n.4 (D.C. Cir. 1954);
Brotherhood of Ry. & S.S. Clerks v. Atlantic Coast Line R.R., 201 F.2d
36, 38-39 (4th Cir.), cert. denied, 345 U.S. 992-993 (1953).

   /5/ There is also no merit to TWA's contention (Pet. 29-30) that it
was entitled to conduct discovery concerning its various allegations.
Judicially supervised discovery would impose burdensome and
time-consuming demands upon the Board and the parties and thus
substantially delay a process that Congress intended to take place
swiftly and without delay.  See Switchmen's Union, 320 U.S. at 305.
Thus, the courts have denied discovery requests.  See
Sedalia-Marshall-Boonville Stage Line, Inc. v. National Mediation Bd.,
574 F.2d 394, 399 (8th Cir.), cert. denied, 439 U.S. 881 (1978)
(holding that since "sufficient facts" appeared of record to sustain
the district court finding that the Board did not "abrogate a
statutory duty," the court would "not consider the allegation that the
district court erred in not enforcing discovery against the Board").