UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


US AIRWAYS INC

v.

NATL MEDIATION BD


98-5435a

D.C. Cir. 1999


*	*	*


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


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




__________

n 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,


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


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


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-




__________

n 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


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




__________

n 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 




__________

n 4 The district court found further support in Trans World Air- lines,
Inc. v. Independent Fed'n of Flight Attendants, 489 U.S. 426 


has 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,




__________

n (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 




__________

n 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


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 


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-


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 




__________

n 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


* * * *


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.