At the same time, we scheduled a hearing on the propriety of a preliminary injunction for October 29, 1979.
Subject Matter Jurisdiction
Before a United States District Court may consider the merits of a claim, it must determine that it has subject matter jurisdiction over the case. The plaintiffs, alleging a denial of procedural due process, rest jurisdiction solely upon the Fourteenth Amendment. By its terms, the Fourteenth Amendment protects citizens from the actions of state governments rather than the federal government. In light of the liberal amendment provisions included in the Federal Rules of Civil Procedure, however, this Court does not rest its decision on this pleading error. Instead, this Court will proceed to examine the much more fundamental jurisdictional questions presented in the instant action.
The NLRB and the Steelworkers have argued strenuously that this Court lacks subject matter jurisdiction to issue any orders concerning a representation election or pre-election procedures. Congress did severely limit judicial jurisdiction in this area because it determined that "immediate review of Board representation decisions, especially prior to the conduct of an election, . . . would provide an opportunity for dilatory litigation and the frustration of the collective bargaining preferences of employees in the unit." R. Gorman, Labor Law: Unionization and Collective Bargaining § 10, at 60 (1976). The Supreme Court, interpreting the National Labor Relations Act, has stated that district courts may issue orders involving representation elections only in a very narrow range of circumstances. See Boire v. Greyhound Corp., 376 U.S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849 (1964).
One set of circumstances justifying district court jurisdiction-intervention arose in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S. Ct. 671, 9 L. Ed. 2d 547 (1963). McCulloch resulted from an attempt by the NLRB to assert jurisdiction over the crew of a foreign flagship that was owned by a foreign subsidiary of an American corporation. The crew was composed primarily of foreign nationals. Both the employer and the foreign labor organization that already represented the crew sought to enjoin the NLRB from conducting a representation election. A district court, finding that it had jurisdiction, issued an injunction. The Supreme Court affirmed, stating: "(T) he presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board's power." Id. at 17, 83 S. Ct. at 675. The McCulloch exception does not apply to the present case, which has no international overtones.
Only one other time has the Supreme Court upheld district court jurisdiction over a case involving a representation election. In Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958), the Court held that a district court may assert jurisdiction when the NLRB has acted in express contravention of the National Labor Relations Act, and thus has roamed beyond the scope of the authority delegated to the NLRB by Congress. The only provision in the present case that the NLRB arguably violated is the clause in section 9(c)(1) of the Act that requires the NLRB to conduct "an appropriate hearing upon due notice." In National Maritime Union of America, AFL-CIO v. National Labor Relations Board, 375 F. Supp. 421 (E.D.Pa.), aff'd mem., 506 F.2d 1052 (3d Cir. 1974), Cert. denied, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449 (1975), the district court held "that the provisions of § 9(c)(1) are Not sufficiently "clear and mandatory' to fall within the exception engrafted by Leedom v. Kyne because of the discretion and leeway vested in the Board in representation proceedings, and judicial and Congressional approval of the exercise of that discretion." 375 F. Supp. at 432 (emphasis in original). This Court agrees.
The Second Circuit, without any endorsement from the Supreme Court, has recognized a third exception to the general rule that district courts do not have jurisdiction over cases arising from NLRB-conducted representation elections. In Fay v. Douds, 172 F.2d 720, 723 (2d Cir. 1949), the Second Circuit held that the district court did have jurisdiction to entertain an action involving a non-frivolous claim that the NLRB had violated a constitutional right. Fay v. Douds involved a dispute between two unions over the representation of employees in a bargaining unit. The Regional Director ruled that Local 475 had not complied with certain provisions of the Act, and therefore lacked the status necessary to object to a consent election. Both the Regional Director and the NRLB rejected the Local's protest of this ruling without a hearing. The election was subsequently held, using a ballot that contained only the name of the Automobile Workers' Union. That union received a majority of the votes cast, and thereupon was certified as the exclusive bargaining representative. Local 475 brought suit in federal district court, which dismissed the complaint. The Second Circuit affirmed on the merits, but held that the district court did have subject matter jurisdiction to hear the suit.
The present case has much in common with Fay v. Douds, and the Second Circuit might well find that a district court could assume jurisdiction over the instant action. The Third Circuit, however, has not accepted the Fay v. Douds exception to the general rule. Without expressly discussing Fay v. Douds, the Third Circuit in The Firestone Tire & Rubber Co. v. Samoff, 365 F.2d 625 (3d Cir. 1966), stated: "The question whether the Constitution required it is not of itself grounds for jurisdiction in the district court." Id. at 628. Other circuits have explicitly questioned the validity of Fay v. Douds. See J. P. Stevens Employees Educational Committee v. National Labor Relations Board, 582 F.2d 326, 329 (4th Cir. 1978); Squillacote v. International Brotherhood of Teamsters, 561 F.2d 31, 37 (7th Cir. 1977). In J. P. Stevens Employees, the Fourth Circuit stated:
Here, although the Committee's allegations of denial of due process and rights of association and petition may not be transparently frivolous, this ". . . does not warrant stopping the Board in its tracks." Bokat v. Tidewater Equipment Company, 363 F.2d 667, 672 (5th Cir. 1966). Any constitutional claims urged by the Committee can be properly reviewed by this court after termination of the lawful Board proceedings.