The opinion of the court was delivered by: HOLTZOFF
It is well established that there is no judicial review of a certification of the National Mediation Board certifying what organization, if any, is to represent certain groups of employees. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct. 95. That conclusion, however, is not unlimited. The Supreme Court in the Switchmen's case expressly left open the question what a Court of equity may consider when its affirmative help is asked for a decree to enforce the certificate of the Mediation Board and require the employer to bargain collectively with the Union so certified. In an action for equitable relief traditionally the Court may always consider matters that appeal to the conscience of a Court of equity and may always consider equitable considerations.
This Court will not go behind the certification of the National Mediation Board, but on its face the certificate discloses the following facts: The number of employees eligible to vote at the election was 400. 179 did not vote. 147 voted in favor of the International Brotherhood of Teamsters. 74 voted in favor of Air Line Dispatchers Association, AFL-CIO.
The type of ballot used by the National Mediation Board makes no provision for a person who desires to vote that there be no union. This is contrary to the practice of the National Labor Relations Board, which uses a type of ballot that contains an opportunity for a voter to vote against having any union whatever. The validity of the type of ballot used by the National Mediation Board was sustained by the Supreme Court in Brotherhood of Railway & Steamship Clerks, etc. v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 85 S. Ct. 1192, 14 L. Ed. 2d 133. The Supreme Court, however, in holding that the type of ballot used by the National Mediation Board is legal attached the qualification that under ballots of that type, eligible voters who do not vote must be deemed to have voted against having any union whatever.
Therefore, we have a situation where 179 voters must be deemed to have voted against any union whatever, 147 to have voted in favor of the International Brotherhood of Teamsters, and 74 to have voted in favor of Air Line Dispatchers Association, AFL-CIO. There is no majority, but the plurality, by far the greatest plurality, must be counted as not voting for any union whatever.
Under the circumstances, the Court reaches the conclusion that the strong arm of equity should not be exerted in order to compel the employer to bargain collectively with the union having a plurality of votes when by far the greater number of employees voted for no union at all. The Court may not set aside the certificate, but when its assistance is sought to be invoked by way of a decree in equity, the Court has a right to decline its assistance on the basis of equitable considerations.
In the light of this discussion the motion for summary judgment on the counterclaim is denied.
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