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June 25, 1984

United Food and Commercial Workers Union, Local 400, United Food and Commercial Workers International Union, AFL-CIO, CLC, Plaintiffs
Donald R. Dotson, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER



 This case involves the straightforward question of whether, under Miami Newspaper Printing Pressman's Union Local 46 v. McCulloch, 116 U.S. App. D.C. 243, 322 F.2d 993 (D.C. Cir. 1963), this Court has jurisdiction to mandate that the National Labor Relations Board (hereinafter the "Board") certify the results of a union representation election it conducted in 1982.

 The facts are summarized in the Court's memorandum of June 4, 1984, which is attached as Exhibit A. The order explained in that memorandum denied plaintiffs' motion to enjoin a then imminent election, but required the Board to impound the ballots pending decision on a motion to dismiss. The Board has now moved to dismiss for lack of jurisdiction. The accompanying Order grants that motion, while briefly continuing the impoundment until the plaintiffs can, if they wish, seek relief in the Court of Appeals.

 In Miami Newspaper, our Court of Appeals held that in certain circumstances district courts have jurisdiction to require the Board to comply with section 9(c)(1) of the National Labor Relations Act, 29 U.S.C. ยง 159(c)(1), by certifying the results of a union representation election. Citing Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958), the Court refused to permit the Board to refuse to certify an election merely because a single board member, rather than a panel, had passed on the employer's request for review of the direction of election. 322 F.2d at 998. Plaintiff here relies on Miami Newspaper to establish the jurisdiction of this Court to order the Board to certify an election in which, the Board maintains, four supervisors improperly participated. That reliance is misplaced, and defendants' motion to dismiss must be granted.

 Writing for the Court in Miami Newspaper, Judge McGowan expressly noted that section 9(c)(1) does not require the Board to certify the results of all elections, and that in many circumstances courts lack jurisdiction to review decisions of the Board not to certify an election:

Clearly, 9(c)(1) is not mandatory in all instances. This Court, other courts of appeals, and the Board have recognized the authority and duty of the Board to set aside an election which has been unfairly conducted either because of employer or union coercion, or for some reason having to do with the mechanics of the election process. n.9
n.9 N.L.R.B. v. National Truck Rental Co., 99 U.S.App.D.C. 259, 239 F.2d 422 (1956), cert. denied, 352 U.S. 1016, 77 S. Ct. 561, 1 L. Ed. 2d 547 (1957).

 Miami Newspaper, supra, 322 F.2d at 997-98 & n.9.

 The case cited by Judge McGowan in the footnote quoted above is directly on point to today's dispute, and establishes that defendants' motion to dismiss should be granted. In N.L.R.B. v. National Truck Rental Co., then Circuit Judge Warren Burger wrote for a panel considering whether the Board had discretion to set aside an election in which four foremen had improperly participated. He ruled for the Board in the following language:

The Board rested its action in calling a new election on "possible confusion" resulting from its own error in permitting the foremen to vote. Our problem is whether it was within the administrative competence of the Board to say the probability that the situation gave rise to confusion warranted the calling of a new election. It was admitted that respondent threatened dismissal of two of the foremen if the union won the election. In a small unit of 20 to 30 employees it is not unreasonable to assume that some of the men were aware of the threats. Conceivably some employees, friendly to the foremen, might have voted against the unions in order to save the foremen's jobs. n.8 On the other hand, since they were included in the unit, these supervisors may have taken part in the pre-election campaign and influenced employees in a way they could not have done if they had not been so included. Moreover, some of the employees might have favored a union but not one which included foremen.
These opportunities for "possible coercion" and "confusion" resulted from the Board's erroneous action, and we believe it was not irrational or unreasonable for the Board, dealing with these close questions, n.9 to conclude that the first election did not represent a free and fair expression of the employees' views. Certainly the Board is far better able than we to appraise the atmosphere surrounding an election and conclude that the situation justified setting aside the election.
n.8 It is immaterial whether or not the foremen's jobs were actually in danger as long as the employees thought they were.
n.9 On a question like this it is of some importance that the prejudice resulting from failure to set aside the election, if in fact votes were affected by the Board's mistake, is much greater than the prejudice resulting from a ...

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