UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Brotherhood of Railway and Steamship Clerks, Freight
Fahy, Burger and Leventhal, Circuit Judges. Burger, Circuit Judge, concurring.
This case came on for hearing on appellants' motion for stay pending appeal, and said motion was argued by counsel.
Upon consideration whereof, and for the reasons set forth in the opinion filed this day, it is
ORDERED by the court that the aforesaid motion is denied.
This is a motion for a stay pending appeal from the dismissal for lack of jurisdiction of an action in the District Court commenced by the appellants Brotherhood of Railway and Steamship Clerks (hereafter the Clerks), et al. seeking to enjoin appellee National Mediation Board from proceeding with an election presently in progress.
The complaint makes the following allegations, which must be taken as true. Since 1946, appellant has been the certified representative of the craft or class of clerical, office and related employees of Pan American World Airways, Inc. In August of 1965 the International Brotherhood of Teamsters, also an appellee, and hereafter referred to as the Teamsters, filed an application with the Board claiming that the employees desired to be represented by the Teamsters. Acting pursuant to Section 2, Ninth of the Railway Labor Act
Appellant Clerks decided to keep its name off the election ballot. As explained by counsel it sought in this way to resist the "raid" of the Teamsters, in the thought that under the Board's rules, the Teamsters could not supplant the Clerks unless more than half of the eligible employees cast a ballot. The Board's ballot contained the name of the Teamsters and a blank place for a write-in vote. While the election was in progress, appellant discovered that all eligible employees had been sent two forged communications urging them to "write in" the Clerks' name on the ballot. One purported to be a letter on the office stationery of, and signed by, Mr. George Meany, president of the AFL-CIO. The other purported to be a circular from the Clerks.
On August 25, 1966, appellant filed a petition with the Board calling the Board's attention to the fraud and forgery described above, and requesting the Board to investigate promptly these acts, and, pending the results of the investigation, to impound the ballots. On September 2, 1966, appellant called to the Board's attention another fraudulent letter to the same effect circulated in San Francisco, purportedly written and signed by the president of the San Francisco local of the Clerks. The Teamsters opposed appellant's petitions.
Appellant's prayer for impounding the ballots and investigation of the election *fn1 was granted when the Board, by letters dated October 6, 1966, notified the parties that at an execuive session on October 4, it had decided to set aside the purported election and order a new election. The Board's letter stated:
Information had come to the Board's attention of sufficient gravity as to create a serious doubt whether the balloting in this case had been conducted in an atmosphere which would enable the employees of Pan American World Airways, Inc., to exercise a free choice concerning representation.
In a petition filed October 10, 1966, the Clerks requested, inter alia, that the Board hold in abeyance the second election until a free, fair and uncoerced election could be held. The petition embraces two thoughts; that the elapsed time was too short to eradicate the taint of the objectionable interferences with a free election, and that the only way the atmosphere could be cleared up was to wait until the Federal agencies investigating the situation determined who was responsible.
The petition was denied October 13. The Clerks presented a petition for reconsideration and oral argument (October 21) and a supporting memorandum (October 24). The Board then scheduled oral argument which was heard on October 31.
On November 2, 1966, the Board granted the petition for reconsideration, but adhered to its decision to proceed with the second election. However, it rescheduled that election so as to validate ballots mailed between November 14 and December 12, 1966. The Board also ordered that a communication, reprinted in the Appendix hereto, be sent to all Pan American employees eligible to vote.
On November 10, appellants brought this action in the District Court. For convenience we defer recital of the grounds for relief. The relief sought included (1) a permanent injunction until proper steps are taken to insure that the taint of fraud and other improprieties invalidating the first election are not carried over to the second; and (2) a permanent injunction to prevent the Board from certifying anyone as a result of the election now in progress. A temporary injunction pendente lite was also sought.
The District Court on December 1 granted the motions of defendant Board and intervenor Teamsters to dismiss the complaint for lack of jurisdiction over the subject matter, on the ground that the Board was exercising its discretion in performing its duty under the Railway Labor Act to investigate a representation dispute.
It is well settled that the jurisdiction of the courts in employee representation proceedings before the National Mediation Board is extremely limited. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct. 95 (1943); Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express and Station Employees v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 14 L. Ed. 2d 133, 85 S. Ct. 1192 (1965); Flight Engineers' International Association v. National Mediation Board et al., 119 U.S. App. D.C. 171, 338 F.2d 280 (1964). The principle of these decisions requires dismissal, without consideration of the merits, of the appellants' claim for relief on the ground that the Board scheduled a second election without permitting enough time to elapse to eradicate the taint or prejudice of the frauds which required setting aside the first election. The Board did delay the second election to some extent -- albeit at least in part for the purpose of assuring that the holding of the election would not be interfering with the appropriate Government agencies conducting an investigation of the matter. *fn2 The Board apparently concluded that the delay already ordered was sufficient to permit a second election that was fair and free. It also rejected appellants' claims either that assignment of responsibility for the forgery and unauthorized mailing was a necessary condition of a fair second election, or that the absence of ascertainment of responsibility required a longer intervening time period.
In his oral opinion the District Judge noted that he found a great deal of merit in the Clerks' contention that the delay was too short to forget the message of the forged letters, but that the court was without power to substitute its view for that of the Board. We share his concern and we share his conclusion. The questions involved here are of the kind committed by the Railway Labor Act to the Mediation Board and not the courts. The Board may rightly have assigned weight to the employees' interest in representation by a union of their own choice, and at the earliest feasible time. Although the record does suggest that the Board has not been sufficiently concerned with the importance of doing its utmost to scrape away all stain of the fraud, we hesitate to conclude that the Board's action was so gross as to invest the court with jurisdiction. We are a shade more hesitant to intrude since the matter is before us on injunctive relief rather than the merits, and granting of stay traditionally calls for a determination that there is a "probability" that applicants will be successful on the merits. Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958).
Appellants have another contention, however, which requires further reflection. They say that for reasons explored further below, the Board's letter of November 2, 1966, to Pan American employees eligible to vote was such as to mislead them affirmatively as to a material matter underlying the election. In a case of a demonstrably false and misleading statement in the Board's announcement of the new election the courts are not without jurisdiction. The right to a fair and free election is plain under the Act, and although this is generally committed to the Mediation Board for protection and vindication, a demonstration that the Board has launched an election with recourse to false statements is a basis for invoking the jurisdiction of the courts as a necessity for preserving the rights involved. It would take an explicit mandate to compel a contrary conclusion. We see no such mandate either in the ...