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ASSOCIATION EX REL. NON-CONTRACT EMPLES. v. NATION

May 3, 1963

ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES, Plaintiff,
v.
NATIONAL MEDIATION BOARD, Leverett Edwards, Individually and as Chairman of the National Mediation Board, Francis A. O'Neill, Jr., Individually and as Member of the National Mediation Board, and Howard G. Gamser, Individually and as Member of the National Mediation Board, Defendants



The opinion of the court was delivered by: YOUNGDAHL

On April 18, 1963, Judge Hart of this court issued a temporary restraining order barring the National Mediation Board from proceeding with an election among certain categories of employees of United Air Lines for the selection of a collective bargaining representative, pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq, as made applicable to employees of air carriers, 45 U.S.C. §§ 181-188. Ballots had been scheduled to be sent out by mail to the employees on April 22, 1963. The temporary restraining order barred the mailing of these ballots pending the hearing, in this Court, on a motion for a preliminary injunction. This hearing was held on April 24, and this Court continued the temporary restraining order in effect so that the Court could consider fully the written memoranda and oral arguments of counsel and the complex legal issues raised in those arguments before finally issuing its order.

The Court now issues its order, on the basis of the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. This is an action brought by a group of employees of United Air Lines, Inc. (hereinafter called 'United'), organized and incorporated under the name 'Association for the Benefit of Non-contract Employees,' the plaintiff herein. Plaintiff does not seek recognition as a bargaining agent, nor does it want its name on the ballot.

 2. On August 24, 1962, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (hereinafter called the 'Brotherhood'), filed an application with the National Mediation Board pursuant to 45 U.S.C. § 152, Ninth, of the Railway Labor Act, for an investigation of a representation dispute among employees of United. The case was docketed as Case No. R-3590 by the Board. On November 19, 1962, the Mediator assigned by the Board began an investigation of this dispute and checked the authorization cards from thirty-five percent or more of the employees in the craft or class furnished by the Brotherhood in support of its application. As a result of the Mediator's investigation, it was determined that a representation dispute existed among these employees, between two unions, the Brotherhood and the International Association of Machinists (hereinafter called 'Machinists'). On December 19, 1962, in accordance with its rules, an election was authorized by the Board, and the Mediator asked United to furnish the names and addresses of eligible employees so the election could be held. Both the Brotherhood and the International sought to be certified as the collective bargaining representative, and both their names appear on the ballot which the Board has prepared.

 3. The 'craft or class' in which this representation dispute exists is defined by the Board as 'Clerical, Office, Stores, Fleet and Passenger Service employees' of United. This 'craft or class' was established by the Board in 1947. There are approximately 12,300 employees certified to vote in this election as members of this craft or class. The plaintiff purports to represent 6,400 of these employees. Cards signed by these employees authorizing the plaintiff to represent the employee before the Board are in the possession of the Board. The Board has made no attempt to verify the number of authorization cards, nor to check the signatures on the cards against the eligible list of voters.

 4. The official ballot provides a square in which the voter can mark an 'X' if he wishes to be represented by the Brotherhood, another square to be marked if he wishes to be represented by the International, and a blank line where the voter can write the name of an organization or an individual 'if you desire to be represented by ANY OTHER ORGANIZATION OR INDIVIDUAL.' There is no place on the ballot where a voter could state that he prefers no collective bargaining representation. If a voter should write 'no representation' or 'no union' on the ballot, the ballot would be counted by the Board as void. The ballots are secret, and returnable by mail.

 5. On February 14, 1963, the Board received from the plaintiff a petition asking leave to intervene in the representation dispute and asking that the class or craft grouping be changed either with or without a hearing, and that the form of the ballot be changed to permit the voters to express a preference for no collective bargaining representation. On February 25, 1963, the plaintiff forwarded to the Board a statement which included the following points:

 1. We are not seeking recognition as a bargaining agent; we do not want our name on the ballot.

 2. We have no intention of becoming a Company union.

 3. We are not sanctioned, recognized, or assisted in any way by United Airlines management.

 4. Our Association will be dissolved after such time as it has served its purpose.

 The Board determined that the plaintiff was not a properly constituted party at interest in the pending dispute, and on March 27, 1963, informed the plaintiff that its petition was dismissed. On April 5, 1963, the plaintiff requested the Board to reconsider its denial of the petition to intervene. On April 12, 1963, the Board denied plaintiff's request for reconsideration. The present suit was filed on April 13, seeking to enjoin the Board from mailing out the ballots on the scheduled date of April 22, 1963.

 CONCLUSIONS OF LAW

 Based on the findings of fact heretofore set forth, and for the reasons fully set forth in a memorandum attached hereto, which memorandum is specifically made a part of these findings of fact and conclusions of law, the Court has reached the following conclusions:

 1. The Court has jurisdiction over the subject matter of this action.

 2. The plaintiff would be irreparably injured by the holding of said election without having an opportunity to express on the ballot a preference for no collective bargaining representation.

 3. The balance of convenience is in favor of the plaintiff.

 4. The public interest requires a determination of the legality of the above election before the ballots are sent out.

 5. The Railway Labor Act, 45 U.S.C. 151 et seq., requires that there shall be on the above ballots a place where eligible voters may express a preference for no collective bargaining representation.

 WHEREFORE, it is by the Court this 3d day of May, 1963,

 ORDERED That the plaintiff's motion for a preliminary injunction enjoining the defendant from conducting any election among the 'Clerical, Office, Stores, Fleet and Passenger Service employees' of United Air Lines, Inc., in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation shall be and the same is hereby granted, and it is

 FURTHER ORDERED That the defendant shall have one week from today's date to show cause why the preliminary injunction above granted shall not be made permanent, and it is

 MEMORANDUM

 This memorandum shall specifically be considered a part of the findings of fact and conclusions of law, supra.

 I

 Preliminary Injunction

 1. Jurisdiction.

 This action raises serious questions involving the proper interpretation of certain provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. For the reasons fully set forth in Part II, infra, this Court has jurisdiction to issue a permanent injunction. Wherever equity has jurisdiction to grant an injunction by final decree, it has jurisdiction to grant a preliminary injunction. American Code Co. v. Bensinger, 282 F. 829, 835 (2d Cir. 1922). *fn1"

 2. Appropriateness of Preliminary Injunction.

 'The award of a preliminary injunction is an extraordinary remedy which will not be granted unless upon a clear showing of probable success and possible irreparable injury to plaintiffs * * *.' Societe Comptoir de L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dep't Stores, Inc., 299 F.2d 33, 35 (2 Cir. 1962).

 'The award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff. * * * Even in suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction. * * * But where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.' Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 674, 88 L. Ed. 834 (1944). 'The peaceable settlement of labor controversies, especially where they may seriously impair the ability of an interstate * * * carrier to perform its service to the public, is a matter of public concern. * * * Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' Virginian Ry. Co. v. System Federation No. 40, Ry. Employees Dep't, 300 U.S. 515, 552, 57 S. Ct. 592, 601, 81 L. Ed. 789 (1937).

 Taking into account the above principles, this Court, to grant a preliminary injunction which would bar the National Mediation Board from proceeding with the disputed election, must conclude that the plaintiff may be irreparably injured by the holding of such election; that the balance of convenience favors the plaintiff in the sense that the inconvenience which would flow to it from holding the election is greater than the inconvenience which would flow to the National Mediation Board from postponing the election; that the public interest will be advanced, not injured, by postponing the election; and that the plaintiff has made a clear showing of probable success in the ultimate determination of the merits.

 Since the Court in Part II, infra, has decided to reach and determine the ultimate merits of the controversy, and since the Court therein has concluded that the scheduled election, if held, would be illegal under the Railway Labor Act, 45 U.S.C. § 151 et seq., the Court need consider here only the issues of irreparable injury, balance of convenience, and protection of the public interest.

 a. Irreparable Injury. It is almost certain that the plaintiff would be irreparably injured if the scheduled election were to be held. As an association which seeks to have no collective bargaining representation, this association represents employees of United Airlines who do not wish to be joined with other employees who wish collective bargaining representation. The only way that the plaintiff can achieve its aim of having no representation, under the current procedure of the National Mediation Board, is to have a majority of the eligible voters actually refrain from returning a ballot. In that event, the Board will refuse to certify any collective bargaining representative. The chance of such a result, however, is slim, because the Board has refused to state, in its instructions sent to each eligible voter, that such is the Board's policy. Furthermore, even if this Association were to undertake to instruct all of its members not to return any ballot, the Board has not made clear exactly what must be done. Should the voter wishing to vote to have no collective bargaining representation simply fail to return anything? Or should such voter return, empty, either one or both of the two envelopes distributed by the Board -- the 'mailing envelope' and the 'secret envelope marked 'A"? If one or both of the envelopes should be returned, should the voter place his name and address on the envelope, or should he leave that blank? *fn2" The procedure which this Association should instruct its members to follow is, therefore, highly ambiguous, and the Board has indicated that it will take no action to correct the ambiguity.

 What irreparable injury would result to the plaintiff from trying to follow such an ambiguous procedure? For one thing, for this Association even to engage in a campaign to urge employees not to vote opens the Association to charges by other employees that the Association employees are in some way opposed to democratic electoral procedures. To be sure, such 'Don't vote' campaigns are occasionally though necessary even in the most democratic of electoral procedures; but there is no doubt that even when necessary, such campaigns may leave the reputations of those conducting the campaign besmirched.

 In addition, if the Association should not succeed in persuading a majority of eligible voters to refrain from returning their ballots, and the Board were therefore to certify a collective bargaining representative on the basis of the vote, in conformity with its stated policy, *fn3" then there is serious question whether any court would have jurisdiction to examine the legality of the electoral procedure. The Supreme Court has held that in at least one situation, federal District Courts do not have 'the power to review the action of the National Mediation Board in issuing the certificate.' Switchmen's Union of North America v. National Mediation Bd., 320 U.S. 297, 300, 64 S. Ct. 95, 96, 88 L. Ed. 61 (1943). But see Air Line Dispatchers Ass'n v. National Mediation Bd., 89 U.S.App.D.C. 24, 27-28, 189 F.2d 685 (1951). And see infra, Part II, for further discussion. Such doubts about the availability of another remedy to correct the results of illegal governmental action can constitute part of the basis for a finding of irreparable injury, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S. Ct. 863, 866, 96 L. Ed. 1153 ...


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