Railroad Yardmasters of America v. Robert O. Harris, Chairman, National Mediation Board, Etal., Appellants, 721 F.2d 1332 (D.C. Cir. 1983)

This case presents the issue whether section 4 of the Railway Labor Act¹  permits a single member of the three-person National Mediation Board ("the Board") to act for the Board pursuant to a validly issued delegation order at a time when there are two vacancies on the Board.

The National Mediation Board is responsible for administering provisions of the Railway Labor Act.²  The Board seeks to maintain labor peace in the railroad and airline industries primarily by mediating contract disputes, resolving representation disputes and administering arrangements for the arbitration of disputes under collective bargaining agreements. On June 1, 1982, the Board had only two members in office. In anticipation of the resignation of one of the members, the Board issued a delegation order authorizing the other member to act for the Board. The first member then resigned. During the subsequent period, when only one member remained in office, a dispute arose between the Railroad Yardmasters of America ("RYA") and the Yardmasters Steering Committee ("YSC") concerning which organization would represent the yardmasters of the Union Pacific Railroad Company. The Board investigated the dispute, conducted an election, considered and denied several protests filed by RYA, and finally certified YSC as the organization designated and authorized to represent the yardmasters. RYA subsequently brought suit in the District Court seeking to have the Board's orders invalidated. The District Court held that the orders had been issued in violation of the Board's quorum requirement and enjoined the Board and the one member then in office from enforcing the orders.

We conclude that the District Court misconstrued applicable law by failing to give effect to the provisions of the Railway Labor Act that authorize an individual member to exercise the powers of the Board pursuant to a validly issued delegation order. Accordingly, we reverse.

The National Mediation Board was established as an independent agency in the executive branch of the Government on June 21, 1934, by an act of Congress amending the Railway Labor Act.³  Section 4 of the Railway Labor Act, 45 U.S.C. § 154 (1976), contains the Board's enabling provisions, several of which are at issue in this case. The first subdivision of section 4 deals with the composition of the Board, the effect of vacancies, and the number of members required for a quorum. Specifically, the first subdivision provides in pertinent part that:

There is established, as an independent agency in the executive branch of the Government, a board to be known as the "National Mediation Board", to be composed of three members appointed by the President, by and with the advice and consent of the Senate, not more than two of whom shall be of the same political party.... Vacancies in the Board shall not impair the powers nor affect the duties of the Board nor of the remaining members of the Board. Two of the members in office shall constitute a quorum for the transaction of the business of the Board.

45 U.S.C. § 154, First (1976). The fourth subdivision of section 4 authorizes the Board to delegate its powers and duties:

The Mediation Board is authorized by its order to assign, or refer, any portion of its work, business, or functions arising under this chapter or any other Act of Congress, or referred to it by Congress or either branch thereof, to an individual member of the Board or to an employee or employees of the Board to be designated by such order for action thereon, and by its order at any time to amend, modify, supplement, or rescind any such assignment or reference. All such orders shall take effect forthwith and remain in effect until otherwise ordered by the Board. In conformity with and subject to the order or orders of the Mediation Board in the premises, [and] such individual member of the Board or employee designated shall have power and authority to act as to any of said work, business, or functions so assigned or referred to him for action by the Board.

45 U.S.C. § 154, Fourth (1976) (brackets in original).

The Board has three major responsibilities. The first is to mediate disputes over rates of pay, rules, or working conditions that arise between rail and air carriers and organizations representing their employees.⁴  The second is to investigate representation disputes and certify employee organizations as representatives of crafts or classes of carrier employees. The third is to administer arrangements for the arbitration of disputes concerning the interpretation of collective bargaining agreements.

The present case arises out of a representation dispute. The key provisions dealing with such disputes are contained in the fourth and ninth subdivisions of section 2 of the Railway Labor Act. Section 2, Fourth of the Railway Labor Act provides in pertinent part that: "Employees shall have the right to organize and bargain collectively through representatives of their own choosing. 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 (1976). Section 2, Ninth of the Act sets forth the duties of the Board to investigate, upon request, any representation dispute among employees and to certify to contesting parties and the carrier the name or names of individuals or organizations who are the authorized and designated bargaining representatives. The Board is expressly authorized to use a secret ballot election procedure or any other appropriate means, such as a check of valid authorization cards, that will assure a free and uncoerced exercise of the employees' right to choose representatives. If the Board chooses to conduct a secret ballot election, the designation of eligible voters and establishment of rules to govern the election are the responsibilities of the Board. Once the determination of the employees' choice of representative, if any, has been made, the Board issues a written certification of the outcome of its investigation. If a bargaining representative is certified by the Board, the carrier is under a legally enforceable obligation to treat with that representative for the purposes of the Act.⁵ 

The facts in this case are not in dispute. From June 1 until October 12, 1982, the National Mediation Board had only one member in office. This condition arose through the following sequence of events. As of August 31, 1981, the Board was fully manned with three members in office: George S. Ives, Robert O. Harris and Robert J. Brown.⁶  On September 1, 1981, Member Ives retired.⁷  On June 1, 1982, at 10:00 a.m., Members Harris and Brown executed the following Order:

Pursuant to Section 4, Fourth of the Railway Labor Act, 45 U.S.C. § 154, Fourth, the undersigned Members of the National Mediation Board hereby do authorize and empower Robert O. Harris, a Member of the National Mediation Board, to exercise without further authorization all official actions whatsoever on behalf of the National Mediation Board under the Railway Labor Act or any other authority. This Order will become effective on June 1st 10:05 A.M. and will expire upon the taking of office of a new Board Member, or upon revocation by Board Member Robert J. Brown.⁸ 

Later that day Member Brown resigned, leaving Member Harris as the only remaining member. That condition continued until October 12, 1982, when Member Ives' successor finally took office.⁹  Throughout the period from June 1 until October 12, 1982, Member Harris acted for the Board pursuant to the delegation order.¹⁰ 

During the period when Harris was the lone member, the National Mediation Board resolved a representation dispute that arose between the Railroad Yardmasters of America and the Yardmasters Steering Committee. From 1935 until 1982, RYA had represented persons employed as yardmasters at the Union Pacific Railroad Company. On June 10, 1982, YSC filed an application with the Board for a determination of whether the yardmaster employees of the Union Pacific Railroad Company wished to have YSC replace RYA as the employees' lawful bargaining agent.

Consistent with normal practice, an agent of the Board was assigned to investigate the RYA/YSC matter. This investigation disclosed a legitimate representation dispute involving the yardmasters. Accordingly, a secret ballot election was held to determine the employees' choice of a bargaining agent. Before the ballots were counted, RYA submitted four letters of protest to the Board. The protests alleged that YSC had failed to comply with the requirements of the Labor-Management Reporting and Disclosure Act of 1959; that YSC lacked the intent and ability to represent the yardmasters of the Union Pacific Railroad Company if certified; that YSC's campaign literature contained impermissible campaign propaganda; and that the Union Pacific Railroad Company unlawfully had supported YSC and interfered with the election campaign.¹¹  In a letter dated September 7, 1982, the Board denied the protests as baseless and indicated that the ballots would be counted as scheduled. The letter was signed by the Executive Secretary " [b]y direction of the NATIONAL MEDIATION BOARD."¹² 

The ballots were then counted, with a result of 138 votes for YSC and 42 votes for RYA. Accordingly, on September 14, 1982, the Board issued an order certifying that YSC was designated and authorized to represent the craft or class of yardmasters of the Union Pacific Railroad Company. The certification order was signed by the Executive Secretary " [b]y order of the NATIONAL MEDIATION BOARD."¹³ 

On September 24, 1982, RYA filed a complaint for declaratory judgment, injunction and other specific relief in the District Court, seeking invalidation of, and an injunction against, the representation orders issued on September 7th and 14th by the National Mediation Board¹⁴  on the ground that they had been issued at a time when the Board lacked a quorum for the transaction of its business. RYA also filed a motion for preliminary and permanent injunctive relief, requesting that the Board and Member Harris be enjoined from giving any force and effect to the representation orders. On October 4, 1982, the National Mediation Board and Member Harris filed a cross-motion for summary judgment. The District Court held a hearing on October 6th. On October 8th, the District Court filed a Memorandum Opinion and Order granting RYA's motion for permanent injunction and denying the Government's motion for summary judgment. In its Memorandum Opinion, the District Court held that the representation orders were invalid because the Board lacked a quorum when it issued them.¹⁵  The District Court also indicated that, for the vacancies provision to be consistent with the quorum provision, the vacancies provision must be interpreted to apply solely to the situation in which there is only one vacancy on the Board.¹⁶  Furthermore, the District Court held that the delegation provision was intended to enable the Board to operate more efficiently, not to enable it to function with only one Board member in contravention of the quorum provision.¹⁷  Finally, the District Court ruled that the Board was without power on June 1, 1982, to delegate its authority over the RYA/YSC matter because that case was not yet before the Board and did not come before the Board until after Member Brown's resignation.¹⁸ 

This case requires us to construe the relevant provisions of section 4 of the Railway Labor Act, 45 U.S.C. § 154 (1976), and in particular to determine the scope of the delegation, vacancies, and quorum provisions. We must then apply those provisions to the circumstances of this case to determine what powers the Board and Member Harris possessed during the period when there were two vacancies on the Board and, ultimately, to determine whether the two challenged orders were validly issued. Before reaching the merits of this case, however, we must address an issue that the Government presents for the first time on appeal: whether RYA, having failed to raise the issue in administrative proceedings before the Board, should be precluded in court from raising a question concerning the Board's competency to act.

The Government, of course, should have raised the issue of waiver for failure to exhaust administrative remedies in the first instance in the District Court. See Bituminous Coal Operators' Association v. Secretary of Interior, 547 F.2d 240, 244 (4th Cir. 1977) (defense of failure to exhaust administrative remedies is not jurisdictional and should be raised in first instance in district court rather than on appeal); Parker v. United States, 448 F.2d 793, 798 (10th Cir. 1971) (same), cert. denied, 405 U.S. 989, 92 S. Ct. 1252, 31 L. Ed. 2d 455 (1972). Nevertheless, because the issue of waiver is one of law, requires no further factual development, has been fully briefed by both parties, and can be resolved beyond any doubt, we will exercise our discretion to address the issue. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976); American Federation of Government Employees v. Carmen, 669 F.2d 815, 820 n. 25 (D.C. Cir. 1981); Grace v. Burger, 665 F.2d 1193, 1197 n. 9 (D.C. Cir. 1981), aff'd in part and vacated in part on other grounds sub nom. United States v. Grace, --- U.S. ----, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983).

The Government relies for its waiver argument primarily on United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 73 S. Ct. 67, 97 L. Ed. 54 (1952). In Tucker Truck Lines, the appellee failed to raise before the Interstate Commerce Commission an objection to a hearing examiner's qualification under the Administrative Procedure Act, but later raised the objection in district court. The Supreme Court held that the district court should not have entertained the objection when first made at that stage of the proceedings:

[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.... Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.

334 U.S. at 37, 73 S. Ct. at 69. The Supreme Court limited its holding, however, by stating that "the defect in the examiner's appointment ... is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity." Id. at 38, 73 S. Ct. at 69; see also Manual Enterprises v. Day, 370 U.S. 478, 499 n. 5, 82 S. Ct. 1432, 1443 n. 5, 8 L. Ed. 2d 639 (1962) (Brennan, J., concurring).¹⁹  In Tucker Truck Lines, the appellee challenged only the examiner's, but not the Commission's, power to act. In the present case, in contrast, the appellee contends that the National Mediation Board had no power to act at all at a time when there were two vacancies on the Board. This challenge presents a question of power or jurisdiction and is open to the appellee even if not initially asserted before the Board.²⁰ 

Furthermore, consideration of the policies served by the rule that issues not raised before the agency are waived indicates that we should not apply the rule in this case. See McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 1662, 23 L. Ed. 2d 194 (1969) (applicability of the doctrine of exhaustion of administrative remedies depends on whether application would further the purposes of the doctrine in the specific case); 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE Sec. 26:7, at 444 (2d ed. 1983) (a court has discretion either to decide or not to decide an issue not raised before the agency, based on the circumstances and the requirements of justice). A principal policy rationale for the waiver rule is that judicial review might be hindered by the failure of the litigant to allow the agency to make a factual record, exercise its discretion, or apply its expertise. See McKart, 395 U.S. at 194, 89 S. Ct. at 1663. This rationale was found not to be pressing in McKart, see id. at 198-99, 89 S. Ct. at 1665; nor is it pressing in the present case. The substantive issue here, as in McKart, is solely one of statutory interpretation. Resolution of this issue does not require the development of a factual record, the application of agency expertise,²¹  or the exercise of administrative discretion. Thus, judicial review in the present case is not hindered by the failure of the appellee to raise its challenge before the Board. We therefore conclude that the District Court properly addressed the merits of RYA's complaint notwithstanding RYA's failure to raise its objection first before the Board.

In considering the merits of RYA's complaint, we begin with the delegation provision, which provides in part that " [t]he Mediation Board is authorized by its order to assign, or refer, any portion of its work, business, or functions ... to an individual member of the Board ...." 45 U.S.C. § 154, Fourth (1976). The words of the statute, alone, lead us to the conclusion that Congress did not intend to restrict the Board's authority to delegate. There is no language anywhere in the statute that actually imposes a limit on the Board's authority to delegate,²²  and the use of the adjective "any" to modify the word "portion" indicates that Congress intended to impose no limits at all.

The legislative history also gives some support to the foregoing literal interpretation of the statute. Congress in 1934 evidently used the Interstate Commerce Commission's delegation provision²³  as a model in drafting the statutory provision here in question. The language of the Board's delegation provision is thus similar to language in the ICC's delegation provision, and Congress alluded to the ICC's delegation provision in its explanation of the act establishing the Board.²⁴  However, the statute covering ICC delegations expressly provided that the authority to delegate did not extend to certain investigations and contested proceedings, and it also provided that affected parties had a right to petition for reconsideration or rehearing by the entire Commission.²⁵  These conditional terms make it plain that Congress knew how to restrict authority to delegate--and indeed had language to do so before it--when it drafted the Board's delegation provision. Yet Congress chose not to include any such restrictive language in the Board's delegation provision. Given these circumstances, it is surely reasonable to conclude that Congress did not intend to restrict the Board's authority to delegate. We therefore hold that a delegation by the Board of all of its functions to a single member, at least if it is for the purpose of preventing vacancies from disabling the Board, does not exceed the scope permitted by the delegation provision.²⁶ 

Although the delegation provision authorizes the Board to delegate its powers to an individual member, the question remains whether vacancies on the Board affect the Board's powers or the ability of an individual member to exercise those powers pursuant to a delegation order. In particular, section 4, First of the Railway Labor Act provides that the Board is "to be composed of three members;" one might question whether the Board automatically ceases to exist or becomes incapacitated if the membership of the Board falls below three. The vacancies provision directly addresses this potential problem by providing that " [v]acancies in the Board shall not impair the powers nor affect the duties of the Board nor of the remaining members of the Board." 45 U.S.C. § 154, First (1976).

RYA urges that the word "vacancies" should be construed to mean "one vacancy." Under RYA's interpretation, two vacancies on the Board would impair the powers of the Board and of the remaining member, even if a valid delegation order had been issued. RYA's interpretation, however, ignores the plain meaning of the plural form, "vacancies." Although the word "vacancies"includes the singular, see 1 U.S.C. § 1 (1982), its ordinary meaning is certainly not limited to the singular. The words of a statute should be interpreted in their ordinary, everyday senses unless relevant internal evidence of the statute itself or the legislative purpose require otherwise. See Malat v. Riddell, 383 U.S. 569, 571-72, 86 S. Ct. 1030, 1032, 16 L. Ed. 2d 102 (1966) (per curiam).

Furthermore, RYA's interpretation treats the words "vacancies" and "members" inconsistently: "vacancies" is interpreted to mean "one vacancy" while "members" is interpreted to mean "two members." We reject RYA's strained reading and hold that the words "vacancies" and "members" in the vacancies provision mean "one or two vacancies" and "one or two members." Thus, the vacancies provision is a succinct way of stating that one vacancy on the Board shall not impair the powers nor affect the duties of the Board nor of the two remaining members of the Board, and two vacancies on the Board shall not impair the powers nor affect the duties of the Board nor of the one remaining member of the Board.

RYA argues that an interpretation of "vacancies" to include two vacancies makes the vacancies provision inconsistent with the quorum provision, which provides that " [t]wo of the members in office shall constitute a quorum for the transaction of the business of the Board." 45 U.S.C. § 154, First (1976). RYA's argument seems to be that the vacancies provision as we interpret it permits the Board to act with only one member in office, while the quorum provision prohibits the Board from acting with fewer than two members in office. This argument fails to distinguish between the different functions served by the two provisions.

The vacancies provision provides for the continued existence of power, while the quorum provision conditions the exercise of that power. A quorum is " [t]he minimum number of members who must be present at the meetings of a deliberative assembly for business to be legally transacted." H. ROBERT, ROBERT'S RULES OF ORDER 16 (rev. ed. 1981). In this case, then, the quorum provision provides that at least two members must be present at Board meetings for business to be transacted by the Board as a body at those meetings. Under the statute, however, the business of the Board need not be transacted solely in that fashion. Rather, the delegation provision provides that an individual member shall have power and authority to act as to any business that the Board has assigned or referred to him. 45 U.S.C. § 154, Fourth (1976). The business of the Board, therefore, may be transacted either by the Board as a body at a meeting attended by a quorum or by an individual member acting for the Board pursuant to a lawful delegation order.

Thus, when there are two vacancies, the Board and the remaining member continue to possess statutory powers; but, under the quorum provision, those powers no longer can be exercised by the Board as a body at Board meetings. The vacancies provision does not eliminate, reduce, or otherwise affect the quorum requirement: two members still are required for transaction of business at Board meetings.²⁷  If there has been a delegation of the Board's powers, however, then under the vacancies provision the Board and the remaining member retain their statutory powers, and under the delegation provision the remaining member is authorized to exercise those powers as an individual member. This result does not contradict the quorum provision: the quorum provision is simply inapplicable to the exercise of delegated powers, regardless of the number of vacancies on the Board. Nor does this result in any way nullify the quorum provision. Indeed, the quorum provision had to have been satisfied when the delegation was made in order for the delegation to be valid.

As may be seen from the foregoing analysis, under our construction of the statute, the delegation, vacancies, and quorum provisions mesh together to form a coherent framework for the exercise of Board powers and the execution of Board duties. We have given every word its ordinary meaning and every provision full effect. Furthermore, we believe that this interpretation is consistent with the legislative purpose underlying the applicable statutory provisions.

The objective of the Railway Labor Act is "to insure to the public continuity and efficiency of interstate transportation service, and to protect the public from the injuries and losses consequent upon any impairment or interruption of interstate commerce through failures of managers and employees to settle peaceably their controversies." H.R.REP. NO. 328, 69th Cong., 1st Sess. 1 (1926). The National Mediation Board, which administers the provisions of the Railway Labor Act, plays a central role in accomplishing this objective. Congress' concern that vacancies on the Board not interfere with the Board's ability to take prompt action to avert labor strife that could cripple the nation's transportation system is evinced by the vacancies provision itself. The existence of two vacancies on the Board is not beyond contemplation and the consequences could be catastrophic if such vacancies were completely to disable the Board for any period of time. Congress provided a statutory mechanism that permits the Board to continue to function during such an exigency. The use of that mechanism, at least if limited to the exigency that necessitates it, is in accord with the purposes of the Act.²⁸ 

It remains to apply the statutory provisions to the present case to determine the validity of the two disputed orders that were issued by the Board on September 7 and 14, 1982. We begin by noting that the delegation order of June 1, 1982, was properly issued. That order was executed by the Board acting through a quorum consisting of Members Harris and Brown. The delegation order was authorized by and was within the scope of the delegation provision. The delegation order was narrowly tailored to the exigency that necessitated it. RYA has not alleged that the order was issued for any purpose other than to enable the Board to continue to function until a second member took office. By its terms the order expired when that event occurred and a quorum was restored.

Next, we note that Member Brown's resignation did not terminate the delegation of authority. This result follows directly from the statute itself, which provides that " [a]ll such [delegation] orders shall take effect forthwith and remain in effect until otherwise ordered by the Board." 45 U.S.C. § 154, Fourth (1976). Even without this statutory provision, however, the delegation of authority would not have terminated upon Member Brown's resignation. The delegation in this case was institutional rather than personal. Member Brown did not delegate his personal authority to Member Harris. Rather, the Board as a body, acting through a quorum consisting of Members Brown and Harris, delegated institutional powers to Member Harris. Institutional delegations of power are not affected by changes in personnel, but rather continue in effect as long as the institution remains in existence and the delegation is not revoked or altered. See Donovan v. National Bank of Alaska, 696 F.2d 678, 682 (9th Cir. 1983); United States v. Messersmith, 692 F.2d 1315, 1317 (11th Cir. 1982); United States v. Wyder, 674 F.2d 224, 227 (4th Cir.), cert. denied, 457 U.S. 1125, 102 S. Ct. 2944, 73 L. Ed. 2d 1340 (1982); David B. Lilly Co. v. United States, 571 F.2d 546, 550, 215 Ct. Cl. 572 (1978).²⁹  Any other general rule would impose an undue burden on the administrative process. See Donovan, 696 F.2d at 682; Wyder, 674 F.2d at 227. In the present case, under the vacancies provision the Board continued in existence after Member Brown resigned, and therefore the delegation of authority to Member Harris would have continued in effect even if the statute had not expressly so provided.³⁰ 

Finally, we note that Member Harris had power to act for the Board pursuant to the delegation order: the delegation provision provides that an individual member of the Board shall have power and authority to act as to any of the work, business, or functions assigned to him by the Board. See 45 U.S.C. § 154, Fourth (1976). Furthermore, under the vacancies provision, neither the Board's powers that were delegated nor Member Harris' powers to act pursuant to the delegation order were impaired by the vacancies on the Board.³¹ 

We therefore hold that the orders of September 7 and 14, 1982, were validly issued for the Board by Member Harris pursuant to the delegation order of June 1, 1982.³² 

We have concluded that a single member of the National Mediation Board may act for the Board pursuant to a validly issued delegation order that is narrowly tailored to prevent the temporary occurrence of two vacancies from completely disabling the Board. We believe that our conclusion is compelled by a close reading of the plain words of the statute and is fully consistent with the legislative history and the purposes of the Act. The dissenting opinion appears to reach a contrary conclusion not so much because it interprets the words of the statute differently but, rather, because it perceives that the majority opinion somehow opens the door to potential abuses of power. We believe that the concerns expressed in the dissenting opinion are greatly overstated, primarily because the dissent seriously misconstrues the limits of this decision.

First, we wish to emphasize the narrowness of our holding in this case. We have authorized delegation of Board powers to a single member only when required to prevent temporary vacancies from disabling the Board and, thus, necessary to effectuate Congress' overriding purpose of maintaining labor peace in the critical railroad and airline industries. Furthermore, we emphatically have not authorized any unaccountable exercise of Board powers by agency employees. See note 31, supra.

Second, we believe that the dissent misperceives "the nature of the animal" that Congress created. Unlike the National Labor Relations Board, the National Mediation Board is not principally engaged in substantive adjudications; in particular, the Board does not adjudicate unfair labor practices or seek to enforce individual rights under the Act. Rather, the Board's main functions involve invocations of procedures of the Railway Labor Act. Thus, as noted at the beginning of this opinion, the Board's primary responsibilities are to mediate contract disputes, investigate representation disputes and conduct representation elections, and administer arrangements for the arbitration of disputes under collective bargaining agreements. The nature of the Board's role is perhaps best illustrated by its critical duty--which it discharged several times in the present case during the period when only one member was in office--of notifying the President that a labor dispute threatens "substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service," 45 U.S.C. § 160 (1976). Upon such notification the Board's role ceases: the President, however, may create an emergency board to investigate the dispute, during which time neither party may resort to self-help including strikes or lockouts. We simply fail to see how the Board's powers to invoke such statutory procedures are susceptible to the kinds of abuse by a single member that the dissent apparently fears. What we do see is the havoc that could be wreaked upon the nation's economy--the very havoc that Congress enacted the Railway Labor Act to prevent--if such powers were suspended for any amount of time by the temporary occurrence of two vacancies on the Board.

CONCLUSION

For the foregoing reasons, the judgment of the District Court is

Reversed.

WALD, Circuit Judge, dissenting:

Recognizing that the panel arrives at an efficient result in approving the 10:00 a.m. delegation by two members of complete Board authority to one member for an indefinite period in anticipation of the 10:15 a.m. resignation of the only other member, I nonetheless conclude that what occurred in this case simply does not comport with what the statute says, and that the breadth of its sanctioning by the panel establishes a dangerous precedent.

There is no dispute that section 4 of the Railway Labor Act provides for the following in the first paragraph: a three-person National Mediation Board (not a single administrator); that vacancies shall not impair the powers nor affect the duties of the Board nor of the remaining members; and, immediately following the "vacancies" provision, that two members in office shall constitute a quorum for the transaction of the business of the Board. 45 U.S.C. § 154, First (1976).

So far, so good. It seems clear enough, and I believe the majority agrees, that two members must be present to transact the business of the three-person Board. Vacancies will not impair the Board's functions so long as there are two members to transact business. The section additionally provides that in the event a member's term runs out before a successor is qualified, he or she shall continue in office until a successor takes over. 45 U.S.C. § 154, First (1976). By this latter provision, Congress meant to ensure that the balanced structure of the Board could be maintained even if there were delays in the President's appointment and the Senate's approval of a new Board member.

Several paragraphs later, the section provides for the delegation by Board order of "any portion" (not the whole) of Board business to a single member "or to an employee or employees" of the Board.¹  The Board "by its order" can "amend, modify, supplement, or rescind any such assignment or reference." All such delegation orders remain in effect until otherwise ordered by the Board. 45 U.S.C. § 154, Fourth (1976).

My colleagues read this delegation power to permit the conferring upon one member of all the Board's authority for an indefinite period until such time as a second member shall take office. They feel that this delegation power overrides the quorum provision, which they say is confined only to Board business transacted at Board meetings, not to Board business transacted by a member pursuant to a Board delegation.²  I, on the other hand, find the results of such an interpretation to be convoluted, potentially dangerous in terms of accountability, and contrary to the nature of the animal that Congress thought it was creating.³  Cognizant of the limbo into which Board business has been thrown--twice in its history--when a majority of its three members resigned or left office before their successors were qualified, I nevertheless believe we are standing the statutory scheme on its head by sanctioning such an open-ended delegation procedure. I believe that Congress, recognizing the recurrent nature of the problem and the inadequacy of its past efforts to deal with it, should now make specific provision for the circumstance where two out of three members resign from the Board before their successors are qualified.

These are my reasons: I will not belabor them with extensive citations because the propositions seem self-evident. When a quorum of the Board by order makes a delegation, that delegation ceases to exist when the quorum no longer exists. This is well-established in corporation law, see 2 Fletcher Cyclopedia Corporations Sec. 421, at 2709-71 (perm. ed. 1982), and there is no indication that such a fundamental agency principle was meant to be abrogated by Congress in this statute. Section 4 itself specifically says that the Board (i.e., a quorum) at any time can amend or rescind any such assignment and can rescind any order issued by its delegate. But, in my colleagues' view of the statute, those powers to rescind either the delegation or the delegate's order are wiped out. For after the second member leaves office, the Board has no ability to rescind or amend the reference, no matter how the single member performs or does not perform his duties. Nor can it modify or revoke any order, no matter how unwise that order might be. There is no self-correction mechanism at all under their scheme, for no matter what the single member does, at least until a new member takes office, his delegation continues. It is an understatement to say this does not comport with any rules by which corporations or agencies normally operate. Cf. Restatement (Second) of Agency Secs. 120, 122 (1957) (" [t]he death of the principal or loss of its capacity to act terminates the authority of the agent without notice to him"); 2 Fletcher, supra, Sec. 504, at 514 (" [d]elegated authority ceases upon the resignation of the officer who delegated such authority").

Perhaps, under the majority's expansive reading of the delegation powers, a single member entrusted with the entire powers of the Board, including the power to delegate or amend the delegation, can amend or rescind his own delegation. While this is no help should he misbehave, it does raise an interesting question about any future delegations he might make. The delegation provision specifically allows for delegation to Board employees. Under my colleagues' interpretation of vacancies and open-ended delegations, I see no impediment to the single member delegating all or some of the Board business to an employee, and himself retiring, leaving a headless ship altogether. I do not suggest this is likely, but the mere possibility illustrates that Congress surely did not mean to let one member by delegation function as the Board indefinitely.

The reality is there is no Board once two members resign. There is no quorum, no power to delegate or keep a delegation in effect, amend or rescind it.⁴  It is inconvenient and unfortunate that this is so, and provision should be made in the statute for interim appointments or the like. But we should not attempt to convolute the statutory scheme to assure that the show goes on. By so doing, we invite potential abuses both in delayed appointments, and in unaccountable concentrations of authority in the future. More importantly, we do not follow Congress' intent as to the process that supplicants to the Board are due.

As for any problems caused by the possible invalidity of actions taken by member Harris during the ten months that he was the sole member of the Board, I agree with the majority that we can bar attacks on such actions by applying our holding prospectively.⁵  See Maj.Op. at n. 32 and cases cited therein; see also Buckley v. Valeo, 424 U.S. 1, 142, 96 S. Ct. 612, 693, 46 L. Ed. 2d 659 (1976) (per curiam) (" [Federal Election] Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to date"). In this case, the overriding public interest in assuring certainty of Board decisions and in protecting third parties' reliance on them, justifies such a prospective application. The practicalities of the immediate situation thus do not preclude a holding by this court that indefinite delegations of all the Board's powers to a single member are not authorized by the present statute.