The opinion of the court was delivered by: WALSH
This matter comes before the court on a motion for a preliminary injunction filed by the Flight Engineers International Association. The plaintiff seeks to enjoin a representation election, now being conducted by the National Mediation Board among the flight engineers of Eastern Air Lines, the ballots being returnable on May 26, 1964.
In a collateral, but related matter, the Union asks for an order in the nature of mandamus directing the National Mediation Board to appoint a neutral member to a four-member grievance panel, the System Board of Adjustment, to break a deadlock in a matter which has been pending since August 25, 1962.
The Flight Engineers (herein referred to as the Union) assert that they have requested the Board to determine whether certain unfair labor practice charges against Eastern Air Lines and the Air Line Pilots Association (ALPA) have in fact occurred, and, if so, whether these practices have interfered with the election now in process.
The Board has refused to conduct an evidentiary hearing solely on the charges of unfair labor practices. In a letter, dated January 31, 1964, to Mr. I. I. Gromfine, the Board states as follows:
'With respect to your second request (that the Board hold a hearing to determine the merits of five charges), it has been the Board's consistent position, since its creation under the 1934 amendments to the Railway Labor Act, that this Board has no legal authority to investigate and pass upon charges of carrier interference, assistance, influence, and coercion in connection with the representation of carrier employees * * *'.
The Union places great reliance on Flight Engineers International Association v. Civil Aeronautics Board, (D.C.Cir.) 332 F.2d 312, 1964, in which Judge Fahy, writing for the Court stated, 332 F.2d at page 316.
'* * * However, to the extent that the replacement issue relates to the issue of representation it can and properly should be determined by the National Mediation Board in deciding which employees are entitled to vote in a representation election. * * *'
The Board, in opposition to the petition for a preliminary injunction, submits that the court does not have jurisdiction to enjoin the election in that representation disputes arising under Section 2, Ninth of the Railway Labor Act, 45 U.S.C.A. § 152, Ninth, have been assigned by the Congress exclusively to the Board, and the decisions of the Board in such disputes are not reviewable. Citing Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61 (1943) and General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri K-T R. Co. v. Missouri K. T. Railroad, 320 U.S. 323, 64 S. Ct. 146, 88 L. Ed. 76 (1943).
Counsel for the Board further argues that the Board has acted within the scope of its authority by investigating the representation dispute as required by Section 2, Ninth. The Board asserts that their investigation included an extensive review of the various charges by the Union, including examination of the court proceedings in which those charges were reviewed, plus a special hearing on eligibility to vote. The final phase of the investigation, according to the Union, is the election now in process in which the employees will select the agent of their choice to bargain with the carrier.
The primary question before this Court concerns the hearing which has been requested on the charges of unfair labor practices, and whether the circumstances of this case require the National Mediation Board to hold an evidentiary hearing.
A brief history of the litigation in this dispute over 'crew complement' should be helpful in approaching the question of whether the Union has a forum to settle the issue of unfair labor practice; and, if so, where the forum lies.
The Flight Engineers called a strike against Eastern Air Lines on June 23, 1962 on issues, among which was the issue of crew complement on jets and four-engined aircraft. Shortly thereafter, the Union sought a preliminary injunction against the carrier in the Southern District of New York, Flight Engineers Intern. Assn., E A L chapter A.F.L.C.I.O. v. Eastern Air Lines, 208 F.Supp. 182. Judge Feinberg found that there had been no violations of the Railway Labor Act and denied the injunction. This was affirmed at 307 F.2d 510 (2d Cir., 1962) and certiorari was denied, 372 U.S. 945, 83 S. Ct. 934, 9 L. Ed. 2d 970.
The Union also filed a second suit in New York against the carrier and the Air Line Pilots Association, a rival employee group, and intervenors in this action, claiming, among other things, that Eastern was bargaining illegally with ALPA. Judge Levet denied the motion for a preliminary injunction, 45 C.C.H. Labor Cases 27467, and the Second Circuit affirmed, holding that this was a representation dispute, which was in the exclusive jurisdiction of the National Mediation Board, F.E.I.A. v. Eastern Air Lines and ALPA, 311 F.2d 745 (2d Cir. 1963). Certiorari was denied, 373 U.S. 924, 83 S. Ct. 1523, 10 L. Ed. 2d 423. This suit, however, is still pending in New York on the complaint, which charges unfair labor practices.
The Union then filed a complaint before the Civil Aeronautics Board, charging violation of Section 401(k)(4) and requested a formal investigation of the charges. The C.A.B. dismissed the complaint, and the Court of Appeals for the ...