The opinion of the court was delivered by: HART
On November 6, 1969, a hearing was held in this court on plaintiff's motion for a preliminary injunction, concerning the validity of the defendant Board's decision to overturn an invalid election and order a second election. At that time the defendant National Labor Relations Board requested that the plaintiff's motion be denied, and further, requested that the complaint be dismissed. At said hearing an opportunity was extended to all to outline their positions for the record. Upon full consideration, the Court makes the following:
1. The plaintiff, Midway Clover Farm Market, Inc., is a corporation, organized under the laws of the state of Ohio, and engaged in the operation of a retail grocery store in Wintersville, Ohio.
2. On September 13, 1967, a secret ballot election was conducted in a unit of plaintiff's employees appropriate for collective bargaining, under the direction and supervision of the defendant Board's Regional Director for the Eighth Region. Following the election, the Regional Director issued a tally of ballots showing that of approximately 50 eligible voters, 36 cast ballots, of which 16 were in favor of the Amalgamated Food Employees Union, Local 590, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereinafter "Amalgamated"), and 12 were in favor of the International Union of District 50, United Mine Workers of America (hereinafter "District 50"), with 18 challenged ballots. No objections were filed to the conduct of the election.
4. On October 19, 1967, the Regional Director issued a Supplemental Decision and Order Directing Hearing in the representation proceeding, wherein he recommended that the voting eligibility of several of the employees whose ballots had been challenged be resolved at a hearing to be held before a Trial Examiner. On November 7, 1967, the Regional Director further ordered that this hearing be consolidated with the hearing in the unfair labor practice proceeding.
5. On May 13, 1968, following the consolidated hearing, the Trial Examiner issued a decision, wherein he concluded that the plaintiff Company had unlawfully assisted District 50 in several respects. He also made recommendations concerning the resolution of the challenged ballots. Thereafter, on December 17, the Board severed the representation proceeding from the unfair labor practice proceeding, and ordered the Regional Director to issue a revised tally of ballots.
6. The Regional Director issued the revised tally on January 8, 1969, showing 20 votes for District 50 and 18 for Amalgamated. The challenges were sustained as to the remaining 8 ballots.
7. The Board on May 19, 1969 issued a Decision and Order in the unfair labor practice case, wherein it approved the Trial Examiner's finding that plaintiff herein had unlawfully assisted District 50 prior to the election. At the same time, it issued a Supplemental Decision, Order and Direction of Second Election in the representation proceeding, in which it held that plaintiff's unlawful conduct was sufficiently prejudicial to render the first election invalid, and therefore that that election should be set aside and a new election conducted when the effects of that conduct had been dissipated.
8. On October 16, 1969, the plaintiff Company filed both a motion for preliminary injunction and a complaint in this Court, requesting it to direct the National Labor Relations Board to certify the results of the first election and to enjoin the Board from conducting a second election.
1. Board representation proceedings are non-adversary proceedings which do not result in the issuance of judicially reviewable final orders. A.F.L. v. NLRB, 308 U.S. 401, 409, 84 L. Ed. 347, 60 S. Ct. 300 (1939). The general rule in this class of proceedings, therefore, is that federal district courts are without jurisdiction to review Board rulings in representation proceedings, and that such rulings are reviewable only in the courts of appeals under Section 10(e) and (f) of the National Labor Relations Act if and when they form the basis of a subsequent unfair labor practice proceeding. Boire v. Greyhound Corp., 376 U.S. 473, 476-477, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964); McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S. App. D.C. 190, 403 F.2d 916, 917 (1968); IUE, etc. (Liberty Coach Co.) v. NLRB, 135 U.S. App. D.C. 355, 418 F.2d 1191 (1969). The only exceptions which have been recognized to this rule are (1) where the Board has contravened a clear and specific statutory mandate ( Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1959)), (2) where the Board has violated a constitutional right of the plaintiff ( Fay v. Douds, 172 F.2d 720 (C.A. 2, 1949)), and (3) where the Board has interfered with the Government's conduct of foreign relations ( McCulloch v. Sociedad Nacional, 372 U.S. 10, 9 L. Ed. 2d 547, 83 S. Ct. 671 (1963)).
2. Plaintiff's contention that the Board has contravened a clear and specific statutory mandate so as to warrant the exercise of this Court's jurisdiction is without merit. Contrary to plaintiff's contention, Section 9(c)(1) of the Act, which states that the Board "shall certify the results" of an election which has been conducted, did not require the Board to certify the results of the election in this case, since it has been determined that Section 9(c)(1) "is not mandatory in all instances" ( Miami Newspaper Printing Pressmen's Union, Local 46 v. McCulloch, 116 U.S. App. D.C. 243, 247, 322 F.2d 993, 997 (1963)). Here, the Board determined that plaintiff had unlawfully assisted one of the unions which participated in the election, ...