did, in fact, grant the injunction until the Second Circuit ruled.
The present situation is distinguishable in that an election pending Ruby was stayed to prevent irreparable injury in the event the lower court was not affirmed. Also, the opinion was imminent, but in the present suit there is no indication as to when the case will be tried in New York.
In WES Chapter, F.E.I.A., A.F.L.C.I.O. v. N.M.B., 114 U.S.App.D.C. 229, 314 F.2d 234 (1962) the Union sought, inter alia, to enjoin the certification of a representation election. The claim was made that the Board did not fully investigate the charges of employer domination of the rival union. The Board had conducted a hearing, but declined to subpoena witnesses. The Court, 314 F.2d at page 237, held that
'* * * in discharging its duty to investigate in the manner it did in this case we find no official conduct in excess of authority and no refusal to bring the processes of the Board to bear in a reasonable manner on the dispute. * * *'
This Court is of the same opinion in this case, fully aware that a hearing has not been held. There is no duty on the Board to conduct a hearing. Their duty derives from the public interest in this vital transportation industry, to investigate and certify -- within thirty days, whenever possible. The time limit alone would preclude a hearing in all but the most extraordinary situations.
This Court is also of the opinion that the Board has complied with the dictum in F.E.I.A. v. C.A.B., supra. In fact, a hearing on voter eligibility was held in February, 1964, while the case was under consideration by the Court of Appeals. The Board issued its findings on April 14, 1964, which contained a ruling on the replacement issue as it pertained to voter eligibility.
However, the Board did not admit evidence on the alleged unfair labor practices nor on the specific charge that the replacements should not be allowed to vote because their employment is the result of the carrier's improper discharge of the strikers. The Board maintains that it is not required to hold a hearing on this question. There is nothing in the opinion of April 23, 1964, in F.E.I.A. v. C.A.B. which would require it to do otherwise.
The final matter before this Court is the petition by plaintiff for an order directing the Board to appoint a referee to settle the grievance dispute between the Union and the carrier. The union members of the System Board of Adjustment requested the National Mediation Board to appoint a fifth and neutral member. The carrier opposed the appointment and, according to the affidavit of Mr. Thompson, the Board has made no definite disposition of the request. Mr. Thompson, however, goes on to state, at page 9 of his affidavit, that any action would require an interpretation by the Board of an agreement between the parties, and the Board has no authority under the Railway Labor Act to interpret agreements between carriers and their employees.
Section XVIII(1) of the agreement provides for the procedure in appointing the fifth member. The agreement further provides that 'In the event the Board of Adjustment is unable to agree within ten (10) days after receipt of such notice, it shall request the National Mediation Board to name a referee,'.
In this case, only the employee members of the System Board of Adjustment have requested the National Mediation Board to appoint the fifth member. Therefore, the Board appears to be justified in refusing to act. Further, the Court agrees that it would be improper for the Board to enter into contract interpretation, unless requested to do so by both parties.
In accordance with the above, it is this 20th day of May, 1964,
Ordered, that Plaintiff's motion for a preliminary injunction to enjoin the defendant, National Mediation Board, from conducting any election, counting ballots, or certifying a representative among the flight engineers of Eastern Air Lines, be and the same hereby is, denied;
It is further ordered; that Plaintiff's motion to impound the ballots, if the representation election has begun, be, and the same hereby is, denied;
It is further ordered, that Plaintiff's motion to set aside and vacate the orders of the National Mediation Board directing a representation election on Eastern and to declare that the Railway Labor Act does not confer jurisdiction or authority upon the Board to certify ALPA as the representative of the flight engineers, be, and the same hereby is, denied; and
It is further ordered, that Plaintiff's motion to direct the National Mediation Board to appoint a referee to settle the grievance dispute between Plaintiff and Eastern Air Lines, be, and the same hereby is, denied.
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