Subsequently, on September 13, 1985, the Regional Director issued an amended unfair labor practice complaint based upon new evidence. The amended complaint re-alleged the unfair labor practices set forth above and added allegations that In-Flite management personnel had initiated and supported the circulation and execution of plaintiff's decertification petition. Exhibit F, attached to Complaint.
On September 19, 1985, the Regional Director notified the parties by letter of his decision to invoke the "blocking charge rule" -- that is, to hold the decertification petition in abeyance in view of the pending unfair labor practice complaint.
In addition, the Regional Director indicated that the Board was considering the possibility of initiating contempt proceedings against In-Flite since the unfair labor practices alleged constituted conduct prohibited by an outstanding court decree. See NLRB v. Marriott In-Flite Services, 729 F.2d 1441, 113 LRRM 3528 (2d Cir. 1983), cert. denied, 464 U.S. 829, 114 LRRM 2568, 78 L. Ed. 2d 108, 104 S. Ct. 105 (1983).
Plaintiff appealed the Regional Director's decision to the full Board on October 16, 1985, but on October 31, 1985, the Board affirmed. On November 27, 1985, the Board denied plaintiff's motion for reconsideration en banc. Plaintiff seeks a Court order instructing the Board to vacate its determination to hold the decertification petition in abeyance, to investigate the petition to determine whether a question of representation exists, and to conduct a decertification election if a question concerning representation is found to exist.
Conclusions of Law
The Court and both parties agree that, as a general rule, federal district courts are without jurisdiction to review Board orders emanating from representation proceedings. Hartz Mountain Corp. v. Dotson, 234 U.S. App. D.C. 209, 727 F.2d 1308, 1310 (D.C. Cir. 1984). This is because representation proceedings under the Act are not adversary in nature and are not considered to result in the issuance of a judicially reviewable final order. American Federation of Labor v. NLRB, 308 U.S. 401, 411, 60 S. Ct. 300, 84 L. Ed. 347 (1940). Such rulings are reviewable under sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e), (f), if and when they form the basis of a subsequent unfair labor practice proceeding. Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964).
A. Leedom v. Kyne Doctrine Does Not Apply
Plaintiff asserts that the doctrine announced by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958), establishes district court jurisdiction. In Leedom v. Kyne, the Court carved out a very narrow exception to the general rule that the district court is without jurisdiction to review Board orders issued in connection with representation proceedings. In the case where the Board acts in a manner that contravenes an express statutory prohibition and the aggrieved party has no alternative way of securing relief, a district court is vested with the authority to review the Board's determination. Id. at 188-90. As numerous judicial opinions have emphasized, the Leedom v. Kyne doctrine may be invoked only in extraordinary circumstances.
To say that there are possible infirmities in an action taken by the Board by reason of an erroneous or arbitrary exercise of its authority in respect of the facts before it is not to conclude that there is jurisdiction in the District Court to intervene by injunction. For such jurisdiction to exist, the Board must have stepped so plainly beyond the bounds of the Act, or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court even before the Board's own processes have run their course.