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, and therefore that the election should be set aside. It is clear that the Board has "the authority and the duty. . . to set aside an election which has been unlawfully conducted." (Ibid.)
Correspondingly, the Board's rules are not mandatory in all instances, and the Board's setting aside of the election was not prohibited by the absence of objections under the Board's procedures. Although the Board's Rules and Regulations provide that the parties shall file their objections to the election within 5 days (Sec. 102.69(a)), and that if no objections are filed the Regional Director shall certify the results of the election (Sec. 102.69(c)), they do not require the Board to certify the results of an invalid election such as that conducted herein. The purpose of these rules is simply to provide a manner in which the Board may be apprised of alleged election irregularities and not to limit the Board's authority to overturn invalid elections where the Board receives notice of these irregularities by other means.
Furthermore, "[It] is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it . . . [and] [the] action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party." NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (C.A. 8, 1953), and cases cited therein. Accord: NLRB v. Albritton Engineering Corp., 340 F.2d 281, 285-286 (C.A. 5, 1965). See, NLRB v. Brown Lumber Co., 336 F.2d 641 (C.A. 6, 1954).
3. Plaintiff has also failed to demonstrate that the Board has violated its constitutional rights. In this respect, plaintiff contends that the Board's direction of second election constitutes deprivation of property without due process of law in that participation in a second election will be expensive, burdensome and disruptive of the efficient functioning of its business. However, plaintiff has no constitutional right to have the results of the first election certified. See, Fay v. Douds, supra, 172 F.2d at 725-726. National Maritime Union of America v. Herzog, 78 F. Supp. 146, 156 (D.C., 1948), affirmed 334 U.S. 854, 92 L. Ed. 1776, 68 S. Ct. 1529 (1948); Teamsters, Chauffeurs, Helpers and Delivery Drivers, Local 690 v. NLRB, 375 F.2d 966, 977 (C.A. 9, 1967). Thus, plaintiff's interest in the outcome of the first election falls far short of the "vested property interest" required by the rule of Fay v. Douds.
4. To the extent that plaintiff claims it has suffered irreparable injury warranting the exercise of this Court's jurisdiction because of the Board's direction of a second election, it is well settled that the expense of representation proceedings " does not constitute the sort of irreparable injury against which equity will protect in the face of an otherwise adequate remedy at law." Norris, Inc. v. NLRB, 85 U.S. App. D.C. 106, 107-108, 177 F.2d 26, 28 (1949). Accord: Myers v. Bethlehem, 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). In the instant case, plaintiff has such a remedy under Section 9(d) of the Act: it can simply refuse to bargain with whichever union wins the second election, and raise the validity of both elections in the subsequent unfair labor practice proceeding. Boire v. Greyhound, supra ; Leedom v. Kyne, supra. Under these circumstances, there is no basis for this Court to assert its jurisdiction in the instant proceeding.
Wherefore, the plaintiff's Motion for Preliminary Injunction is hereby denied, and the defendant's request that the complaint be dismissed is granted by reason of the lack of jurisdiction of this Court.