ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
Before Gibbons, Sloviter and Becker, Circuit Judges.
This appeal arises out of a labor dispute involving a wholly owned subsidiary of a company which is itself owned primarily by a group of railroad companies. Based upon this corporate relationship and the services performed by the appellant, the district court found it to be a "carrier" as defined in the Railway Labor Act, 45 U.S.C. § 151 et seq., and thus subject to the jurisdiction of the National Mediation Board. We affirm.
On August 20, 1980, the Brotherhood Railway Carmen of the United States and Canada (BRC) requested that the National Mediation Board (NMB) investigate a dispute concerning the representation of employees at Delpro Company (Delpro). Before determining the representation issue, the NMB issued a Determination of Jurisdiction on October 1, 1980, in which it found Delpro to be a carrier within the meaning of the Railway Labor Act and thus subject to its jurisdiction. 8 NMB No. 2 (1980). Two weeks later the NMB denied a Delpro petition for reconsideration, 8 NMB No. 16 (1980), and later proceeded to conduct an election among certain of Delpro's employees that resulted in NMB certification of the BRC as their representative.
Following the denial of the petition for reconsideration, Delpro brought suit in the United States District Court for the District of Delaware seeking declaratory and injunctive relief against the NMB. After first denying the NMB's contention that it lacked subject matter jurisdiction to review the NMB's determination of jurisdiction, the court dismissed the action for failure to join the BRC as defendants. Delpro Co. v. National Mediation Bd., 509 F. Supp. 468 (D.Del.1981). Delpro sued again, on March 11, 1981, joining the BRC and seeking to set aside the NMB's certification of BRC. The following day the BRC filed a separate action to enjoin Delpro from refusing to bargain in good faith. Following consolidation of these actions, the district court, on August 7, 1981, granted summary judgment in favor of the BRC declaring Delpro to be a carrier. Delpro v. Brotherhood Ry. Carmen, 519 F. Supp. 842 (D.Del.1981). On August 28, 1981, it enjoined Delpro to bargain with the BRC. This appeal by Delpro followed.*fn1
Both the NMB and the BRC argued in district court, and urge here, that the NMB's determination of its own jurisdiction in this case is not reviewable. The district court rejected that argument, 509 F. Supp. at 472-75, and we do also. Whatever the limitations may be upon judicial review of NMB decisions concerning the division of employees into appropriate classes or crafts or concerning the selection of a ballot for use in a representation election,*fn2 judicial review of NMB decisions concerning its own jurisdictional authority is not barred. International Longshoremen's Ass'n. v. North Carolina Ports Authority, 463 F.2d 1, 3 (4th Cir.), cert. denied, 409 U.S. 982, 93 S. Ct. 318, 34 L. Ed. 2d 245 (1972); United States v. Feaster, 410 F.2d 1354, 1361-62 (5th Cir.), cert. denied, 396 U.S. 962, 90 S. Ct. 427, 24 L. Ed. 2d 426 (1969). Although statutory policy may preclude review of determinations necessarily incident to the NMB's undisputed duty to resolve representation disputes, a decision concerning the Board's own statutory power to act at all should be subject to review absent some clear statutory prohibition.*fn3 We also agree with the district court, 519 F. Supp. at 845-46, that if the NMB looked to the relevant factors in the administrative record, the court should not disregard the Board's conclusions.*fn4 And although the court has the power to apply its own interpretation of the statute, the construction of the statute by the administering body charged with administering it is generally entitled to deference.*fn5 We add only that such deference is not necessarily due when the administrative agency has taken inconsistent positions in the past or when an agency is determining the scope of its own jurisdiction.*fn6
The first two general purposes enumerated in the Railway Labor Act are:
(1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization; ...
45 U.S.C. § 151a (1976). Disputes arising among a carrier's employees as to who represents such employees in labor negotiations are to be investigated and resolved by the NMB. 45 U.S.C. § 152, Ninth. Since the Act applies only to carriers, any company subject to NMB's jurisdiction must fall within the definition of "carrier." That definition reads, in relevant part:
The term "carrier" includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad, and any ...