Eastern Greyhound Lines v. Fusco, 15153.

• Decision Date: 04 December 1962
• Docket Number: No. 15153.,15153.
• Citation: 310 F.2d 632
• Parties: EASTERN GREYHOUND LINES (A Division of the Greyhound Corporation), Plaintiff-Appellant, v. Philip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFLCIO, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

310 F.2d 632 (1962)

EASTERN GREYHOUND LINES (A Division of the Greyhound Corporation), Plaintiff-Appellant, v. Philip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFLCIO, Intervenor-Appellee.

No. 15153.

United States Court of Appeals Sixth Circuit.

December 4, 1962.

Theodore Voorhees, Dechert, Price & Rhoads, Philadelphia, Pa., Foster Fludine, Hartshorn, Thomas, Edelman & Fludine, Cleveland, Ohio, for appellant.

Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, Washington, D. C., for appellee.

Earle W. Putnam, Washington, D. C., Calfee, Fogg, McChord & Halter, Cleveland, Ohio, for intervenor-appellee.

Before CECIL, Chief Judge, and WEICK and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This cause is before us on plaintiff-appellant's motion for an injunction pending appeal. Plaintiff-appellant, Eastern Greyhound Lines, is a common carrier operating out of Cleveland, Ohio. Defendant-appellee, Fusco, is the Regional Director for the Eighth Region of the National Labor Relations Board. On April 2, 1962, the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFLCIO, intervenor here, filed a representation petition with the Eighth Region of the Labor Board requesting that a representation election be conducted among the dispatchers employed by Eastern. Eastern contested the petition on the ground that the dispatchers involved were supervisors within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 152(11). In May, 1962, a six day hearing was held on the petition, after which the Board, on August 2, 1962, issued its decision that the dispatchers were employees and not supervisors within the meaning of the Act. The Board determined that they, with other employees, constituted an appropriate unit for collective bargaining and ordered an election to be conducted among the dispatchers.

On August 16, 1962, Eastern filed suit in the United States District Court for the Northern District of Ohio, Eastern Division, to restrain the Regional Director from conducting the representation election and to review and set aside the Board's determination on the grounds that such determination was not supported by the record and was contrary to Section 2(11) of the Act. More specifically, the allegations of the amended complaint charged that the Board's "findings are insufficient," that the Board's decision "conflicts with the overwhelming preponderance of the evidence," and that the decision "ignored * * * uncontradicted evidence." It is further alleged that such action of the Board was contrary to the provisions of the National Labor Relations Act, in excess of the Board's powers, and denied Eastern due process of law.

Eastern moved for preliminary injunction to restrain the Regional Director from holding the election. Fusco moved for dismissal of the complaint. After a hearing, a preliminary injunction was issued restraining the election, pending the court's consideration of the matter. On September 12, 1962, the District Judge announced his decision concluding that he was without power or jurisdiction to review the Board's determination. He said that such review entailed only a "reweighing of the evidence." He dismissed the complaint and dissolved the preliminary injunction. Eastern then filed its notice of appeal.

Thereafter, an agreement was reached between Eastern and the Regional Director whereby ballots for the election were to be mailed to the dispatchers and received back by the Regional Director. The Regional Director would then impound the returned ballots and not tabulate the results of the election pending the disposition of Eastern's present motion in this court. All of these steps have been taken and, at present, the ballots are impounded.

Eastern's motion here asks us to maintain the status quo by ordering that the ballots remain impounded and enjoin their tabulation until its appeal is heard on the merits. We have power to grant the relief requested to prevent irreparable harm to parties during the pendency of an appeal. Scripps-Howard Radio v. Federal Communications Comm., 316 U.S. 4, 9, 10, 62 S.Ct. 875, 880, 86 L.Ed. 1229, 1234. Such authority is a necessary incident to our power to issue writs under Section 1651, Title 28, U.S.C.A., in aid of, or to protect, our appellate jurisdiction.

The issuance of an injunction pending appeal is a matter within our discretion. Virginian R. Co. v. United States, 272 U.S. 658, 672, 673, 47 S.Ct. 222, 228, 71 L.Ed. 463, 471. We will ordinarily withhold such relief unless the litigant seeking it is presently threatened with irreparable injury. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 262, 38 S.Ct. 65, 76, 62 L.Ed. 260, 280, 281. It will not be granted "against something merely feared as liable to occur at some indefinite time in the future." Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 291, 75 L.Ed. 602, 609.

By its complaint in this case, Eastern seeks to have the District Court review and set aside the NLRB determination that its dispatchers are not withing the meaning of § 2 of the NLRA (§ 152(11), Title 29 U.S.C.A.). It contends that the Board erred in its weighing of the evidence relevant to the issue presented and arrived at erroneous factual conclusions. Under applicable decisions, it seems now to be clear that unless the Board's action is so patently without legality as was the case in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed. 2d 210, the route of review of a certification order of the Board is through Sections 9(d) and 10(e) of the Act (§§ 159 (d) and 160(e), Title 29 U.S.C.A.) whereby an employer or a union may, by resistance to an unfair labor charge, obtain a review of such certification. American Federation of Labor v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Thompson Products v. N. L. R. B., 6 Cir., 133 F.2d 637, 640; Atlas Life Insurance Company v. Leedom, 109 U.S. App.D.C. 97, 284 F.2d 231, 232 (1960); Volney Felt Mills, Inc. v. LeBus, 196 F.2d...