Decision Date28 June 1968
Docket Number21622,No. 21620,21623.,21620
Citation402 F.2d 196
CourtU.S. Court of Appeals — District of Columbia Circuit


Mr. Herbert S. Thatcher, Washington, D. C., with whom Mr. David Previant, Milwaukee, Wis., was on the brief, for appellant in No. 21,620. Mr. Donald M. Murtha, Washington, D. C., also entered an appearance for appellant in No. 21,620.

Mr. John C. Eldridge, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Edwin L. Weisl, Jr., was on the brief, for appellants in Nos. 21,622 and 21,623.

Mr. James L. Highsaw, Jr., Washington, D. C., with whom Mr. Edward J. Hickey, Jr., Washington, D. C., was on the brief, for appellees.

Before BURGER, TAMM and LEVENTHAL, Circuit Judges.

Certiorari Denied October 14, 1968. See 89 S.Ct. 135.

LEVENTHAL, Circuit Judge:

In these consolidated actions the National Mediation Board (Board) and the Teamsters1 appeal a District Court order granting a preliminary injunction restraining the Board from holding representation elections among clerical and office employees of Pan American and Braniff Airways. The Railway Clerks (Clerks),2 presently certified by the Board as bargaining representative of both groups of employees, sought the injunctions, alleging that the Board had violated its statutory duties in scheduling a third election rather than dismissing the Teamsters' petition on the basis of the second election. The Clerks also contend that the Board in any event had no statutory authority to compel the Clerks to appear on the election ballot or forswear further representation of the employees.3

The District Judge denying the Board's cross-motion to dismiss the complaint, found the threatened harm irreparable and the questions substantial, and he therefore held that there was jurisdiction to issue a preliminary injunction. We reverse. The complaint should have been dismissed.4 Given the broad power vested in the Board under the doctrine of Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the actions here do not justify judicial intervention.

We set forth the background of the controversy and begin with the observation that this is one of those cases requiring a lot of reference to the merits in order to make clear that there is no room for exercise of judicial power. This court was concerned with an earlier phase of the Pan American dispute in Brotherhood of Railway and Steamship Clerks etc. v. NMB, 126 U.S.App.D.C. 55, 374 F.2d 269 (1966). Briefly, in 1965, the Teamsters filed an application with the Board pursuant to section 2, Ninth of the Railway Labor Act,5 requesting Board investigation of a representation dispute among Pan American's clerical employees. The Teamsters Union claimed majority support, entitling it to certification as employee representative instead of the Clerks. The Board held a mail ballot election in August of 1966, but the ballots were impounded before they were counted. Letters had been sent to the employees over the forged signatures of George Meany and C. L. Dennis, President of the Clerks, stating that the Clerks' name had been erroneously omitted from the ballot, and that a write-in campaign was being conducted on their behalf. This was a lie. The Clerks were off the ballot intentionally because under Board practice a new union would be certified only if more than 50% of the employees in the unit actually voted in the election for some collective representation. Given that some employees would not bother to vote in any event, the incumbent union had a strategic advantage by telling its employees not to vote, because that way a challenger had to poll an absolute majority. In other words, if the incumbent's (non-voting) supporters, plus employees indifferent to or against collective representation, totalled more than 50% of the employees in the unit, then the challenging union's petition would be dismissed. According to the Clerks, that would leave the status quo ante in effect between the carrier and the still certified Clerks. That tactic would backfire, however, had write-in votes for the incumbent pushed the total employee participation in the election over the 50% mark.6

The Board in October 1966 set aside the election and directed that another mail ballot election be held in November 1966. The Clerks protested that this was too soon after the mailing of the forged letters to permit the fraud to be fully attenuated. After the Board rejected this contention, the Clerks sued to enjoin the election. The District Court held that there was no judicial power to interfere, but doubts were expressed on the wisdom of such a hasty second campaign. This court denied a stay of the election pending appeal, concluding that "although the record does suggest that the Board has not been sufficiently concerned 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."7

After this court's decision issued in late December 1966, the Board began counting the ballots, which had been mailed to the employees in November and had been returned in early December. The vote was close. There were at this time 6936 employees in the unit. The Teamsters received 3091 votes. There were 137 write-ins for the Clerks, and 284 write-ins for the Transport Workers Union. If all ballots were valid, they would account for a majority of the employees, and satisfy the condition necessary for a vote to be of sufficient size to permit replacement of the existing representative. Since the Teamsters had a majority of the votes, that union would have been entitled to certification under the Board's practice.

Both the Clerks and the Teamsters appealed to the Board certain rulings made by the Mediator in counting the ballots. Only the Clerks' objections are relevant here. The Clerks challenged 1178 ballots counted by the Mediator. The 137 write-in votes for the Clerks were claimed to be invalid as being the product of the forged letter, for which the Clerks felt the Teamsters were responsible.8 The 284 write-in votes for the Transport Workers were allegedly invalid because the Transport Workers, pursuant to an inter-union no-raiding agreement, could not represent these employees.9 Some 754 ballots for the Teamsters were contested because they were taken from unpostmarked envelopes, and allegedly the ballots had been removed from Post Office custody for two weeks contrary to election ground rules.10

The Board did not rule on any of these contentions. Rather on September 12, 1967, it issued an opinion stating in part:

"The Board has carefully reviewed each of these points raised by the respective organizations and finds that no useful purpose would be served by an item by item discussion of the merits of these objections. It is our view that several of these objections are peripheral and without merit, but in reaching our determination, it is incumbent upon us to inspect the whole congeries of facts alleged and incidents complained of concerning the course of the second election and make an assessment based thereon."

The opinion went on to note statements by this court and the District Court expressing doubts that the short time between elections was sufficient to remove all possibility that the forged letters might affect the second election. The Board then stated that it too was disturbed that the election results might not reflect "the free and clear choice of the employees affected."

The second election was therefore set aside and a third election ordered. This made it unnecessary to rule on any of the objections. Moreover, the Board also recited that much of the confusion that had delayed this case was attributable to the Clerks' absence from the ballot, as they in fact had hopes of continuing to represent these employees. In granting the Clerks permission to stay off, said the Board, it had failed to adhere to its long-standing and consistently applied policy. Therefore in the third election, the Clerks were either to go on the ballot or forswear future representation.

This same policy was applied to the Braniff dispute, also before us, a representation dispute that had recently been filed. There too the Board ordered the Clerks to appear on the ballot or relinquish representation rights. This Braniff election, and the third Pan American election, were preliminarily enjoined by the District Court in these proceedings.


On appeal, the Clerks argue that the rules of the Board and its prior practice require it to resolve their challenges to the ballots and to dismiss the Teamsters' petition should any of these challenges be accepted.11 We reject this contention without tarrying to consider the finer points of the scope of judicial review, or non-review, of Board determinations. The Railway Labor Act places on the Board the duty to "investigate" representation disputes and to ascertain, by ballot or by other appropriate means, the wishes of the employees as to who shall represent them. Where obvious reasons are present for doubting whether an election accurately reflects employee wishes, the Board's decision to hold another election is an eminently reasonable exercise of its powers. Moreover we note that the ballots in the second election had already been received by the Board prior to issuance of the judicial opinions, issued in the very action the Clerks brought, questioning the wisdom of the Board's decision to hold an immediate second election. The Board can hardly be faulted for deciding to try again, particularly when the...

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