Before: Wald, Sentelle, and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the Court filed by Circuit Judge Sentelle.
Concurring opinion filed by Circuit Judge Henderson.
Since at least 1947, the National Labor Relations Board ("NLRB" or "Board") has regulated the labor relations of United Parcel Service, Inc. ("UPS, Inc." or "petitioner") under the National Labor Relations Act ("NLRA"). See United Parcel Service of New York, Inc., 74 N.L.R.B. 888, 888-89 (1947). For the first time in its long history, UPS, Inc. has contended that it should be governed by the Railway Labor Act ("RLA") (and the National Mediation Board ("NMB"), which administers that Act) instead of the NLRA (and the NLRB). The NLRB, however, refused to certify this challenge to its jurisdiction to the NMB, as UPS, Inc. requested and, instead, concluded for itself that UPS, Inc. was still subject to the NLRA. UPS, Inc. now seeks review of these actions. Because we conclude that the NLRB neither was legally compelled to certify the question to the NMB nor acted arbitrarily in denying the certification, and because the relevant precedent demonstrates that UPS, Inc. is still an NLRA carrier, we must deny its petitions.
The NLRA authorizes the NLRB "to prevent any person from engaging in any unfair labor practice ... affecting commerce." 29 U.S.C. Section(s) 160; see also 29 U.S.C. Section(s) 152(6) (defining "commerce" in this Act to mean interstate commerce). This broad scope of authority has but a few, comparatively narrow exceptions. See 29 U.S.C. Section(s) 152(2) & (3). One of these limited exceptions excludes any "person subject to the Railway Labor Act" from the NLRA. 29 U.S.C. Section(s) 152(2); see also 29 U.S.C. 152(3) (excepting "any individual employed by an employer subject to the Railway Labor Act" from the NLRA). This RLA exception denies the protections of the NLRA to all carriers of freight by rail, see 45 U.S.C. Section(s) 151 First, or by air, see id. at Section(s) 181, both of which are instead governed by the RLA as administered by the NMB. However, the RLA exception to NLRA jurisdiction seldom extends to carriers of freight by truck, as the RLA explicitly exempts from its regulatory ambit even those "trucking services" performed by a company commonly owned and operated with an RLA carrier. 45 U.S.C. Section(s) 151 First (applying the RLA to "any company which is directly or indirectly owned or controlled by or under common control with any [RLA] carrier ... and which ... performs any service (other than trucking service) in connection with" the freight carried by that RLA carrier (emphasis added)). Because the RLA does not broadly extend to truckers, the NLRB has routinely accepted the responsibility of regulating these carriers' labor relations, as it has for most other industries. Only in the few cases in which a trucking company has essentially existed only to serve a rail or air carrier with which it was commonly owned and operated has the NLRB not exercised jurisdiction. See, e.g., Chicago Truck Drivers, Helpers and Warehouse Workers Union v. NLRB, 599 F.2d 816, 819-20 (7th Cir. 1979); Florida Express Carrier, Inc., 16 NMB 407, 410-11 (1989).
In these few cases, the NLRB and the NMB have, in the absence of any statute addressing the point, jointly developed their own method for determining their mutual jurisdictional question of whether the NLRA or the RLA governs a particular trucking service. In some cases, the NLRB has chosen to refer unresolved jurisdictional questions to the NMB, and has then chosen to abide by its decision. See, e.g., Pan-American World Airways, Inc., 115 N.L.R.B. 493, 495 (1956). However, if a petitioner, or some party similar to that petitioner, had already been determined to be governed by one of the two acts, the NLRB has typically not referred the matter to the NMB, absent some material change in the nature of the petitioner's business. See, e.g., Chicago Truck Drivers, 599 F.2d at 817; Dobbs Houses, Inc. v. NLRB, 443 F.2d 1066, 1072 (6th Cir. 1971). United Parcel Services of America ("UPSA") is a notable carrier of road and air freight. It has two primary corporate components. The larger of these two components, UPS, Inc., *fn1 employs about 300,000 employees and performs the traditional truck-delivery service of UPSA, which has resulted in UPS, Inc. being undisputably governed by the NLRA for 47 years. The smaller component, the United Parcel Services Company ("UPS, Co."), employs only about 3,000 persons to transport all the air freight shipped by UPSA. UPS, Co. began operations in 1988 and, in 1990, was expressly determined to be an RLA carrier. See United Parcel Service, Inc., 318 N.L.R.B. No. 97, 1 (Aug. 25, 1995). Its slow growth since that time has not yet caused it to rival its more established affiliate in the amount of freight carried: UPS, Inc. still carries more than 90 percent of all UPSA packages exclusively on the ground. Perhaps in light of this lack of dependence on UPS, Co., UPS, Inc. continued to maintain that it was an NLRA carrier for several years after UPS, Co. had been declared to be governed by the RLA. See id. at 2 n.5.
That stance changed abruptly in 1993. UPS, Inc. was in the process of defending itself against a claim that it had violated a section of the NLRA, the merits of which are not at issue in this appeal. See id. at 1. An administrative law judge had already ruled on the entire matter, and the case was pending before the NLRB on exceptions to that decision. At this late stage in the proceeding, UPS, Inc., though it had already admitted NLRB's authority to review the matter in its answer, see id. at 2, suddenly challenged NLRB's continued jurisdiction over the carrier. In particular, UPS, Inc. requested the NLRB to ask the NMB whether the RLA should now cover UPS, Inc., in light of the corporation's corporate affiliation with the RLA carrier UPS, Co. In response, the NLRB remanded the question to an administrative law judge, who concluded that the question of the NLRB's continuing jurisdiction over UPS, Inc. should be certified to the NMB. See id. at 2-3.
The NLRB reversed. It declined to refer the issue of jurisdiction to the NMB and instead decided that UPS, Inc. remained an NLRA carrier. See id. at 4. The NLRB based its decision not to forward this case to the NMB on the lack of material change in the corporation's operations since the corporation had last acknowledged that it was covered by the NLRA. See id. It also explained that it was particularly reluctant to permit UPS, Inc. "to transfer to a different system of rights and procedures under the RLA" because, unlike "the more than 100 cases referred by the Board to the NMB in the past," UPS, Inc. had already established many contractual relations through "decades of collective bargaining ... [under] the NLRA." Id. Because the NLRB was legally obligated to protect against "interruptions to commerce" that may be caused by such a transfer, the NLRB decided that it was unwilling to risk any adjustment in the status of UPS, Inc. without more compelling justification or more notice to the interested parties. Id. The NLRB then re-affirmed that UPS, Inc. is an employer within the meaning of the NLRA, because UPS, Inc. did not principally serve its RLA affiliate, as was required, according to its reading of NMB precedent, to subject a trucking service to the RLA.
UPS, Inc. now argues that the NLRB's decision not to refer this matter to the NMB was illegally arbitrary or otherwise contrary to the law. It relies heavily on the NLRB's recent decision to certify to the NMB the question of whether the truck-delivery services owned by and operated for Federal Express ("FedEx"), a secondary competitor of UPS, should be governed by the RLA as proof that it was illegally mistreated. See Federal Express Corp., 317 N.L.R.B. 1155, 1155-56 (1995). The NLRB and the intervenor, International Brotherhood of Teamsters, which is the labor organization that generally represents the employees of UPS, Inc., disagree, contending that past precedent, including Federal Express Corp., and practice confirm that the NLRB did not have to refer this matter to the NMB, and that its decision not to do so in this case, which adhered to a well-established exception to its general rule of referral, was sufficiently reasoned to compel us to deny this petition. UPS, Inc. also disputes whether the NLRB correctly determined that UPS, Inc. should still be classified as an NLRA carrier, assuming that the NLRB could decide that question. UPS, Inc. relies on the result reached by the NMB in Federal Express Corp. which it claims holds that a trucking service affiliated with an RLA carrier should be thought an RLA carrier in its own right if its services are an integral part of the offerings of the RLA carrier. See Federal Express Corp., 23 NMB 32, 71-74 (1995). The NLRB counters ...