with the Board is over the application of the joint-employer doctrine to the facts of the instant case. Plaintiff's dispute with the Board's decision only involves the question of what inferences should be drawn from certain undisputed basic facts. It cannot be said that the Board's inferences are without any legal basis that would render the Board's action so patently without legality that it would constitute a deprivation of plaintiff's property rights without due process of law. Further, there is admittedly an avenue of review open to the plaintiff following a certification order by the Board, under the provisions of either § 10(e) of the Act, Title 29 U.S.C. § 160(e), where it may resist an unfair labor charge for failure to recognize the Union, or § 10(f) of the Act, Title 29 U.S.C. § 160(f), where it may attack such an unfair labor charge.
The plaintiff claims that the Union may resort to recognitional picketing instead of bringing an unfair labor charge before the Board. Even if this factor could confer jurisdiction upon a District Court, there is no claim made that there has been any threat of such action. Though this factor may have relevance to such equitable considerations as determining irreparable harm or in balancing equities, it does not answer the question whether Congress intended that a District Court review an election order of the Board prior to the holding of the election in a case where the Board has not violated any express statutory command of Congress or where there are no special public policy considerations involved. See Eastern Greyhound Lines v. Fusco (C.A.6, 1962), 310 F.2d 632.
The legislative history of the National Labor Relations Act reveals that Congress has consistently set itself firmly against a provision for early judicial review of an election order of the Board because 'such provision would permit dilatory tactics in representative proceedings.' See H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., pp. 56-57, U.S.Code Cong. & Adm.News, 1947, p. 1135, and Hearings before Senate Committee on Education and Labor on S. 1000, et al., 76th Cong., 1st Sess. pp. 584-587.
In other words, from the inception of the Act in 1935, Congress has weighed the policy of avoiding possible inconvenience and hardship to employers with that of preventing delay in holding representation proceedings and has definitely decided in favor of the latter. See National Labor Relations Board v. Falk Corp., 308 U.S. 453, 459, 60 S. Ct. 307, 84 L. Ed. 396 (1940); dissent by Brennan, J., in Leedom v. Kyne, supra, 358 U.S. pp. 191-197, 79 S. Ct. pp. 185-188; Eastern Greyhound Lines v. Fusco, supra, (C.A.6, 1962), 310 F.2d 632.
Under these circumstances, the authorities, with the exception of one decision, hold that no jurisdiction lies in a District Court to enjoin the enforcement of the Board's election order and that the plaintiff must proceed under either § 10(e) or § 10(f) of the Act, Consolidated Edison Co. v. McLeod (C.A.2, 1962), 302 F.2d 354; Atlas Life Insurance Co. v. Leedom (C.A., Dist.Col., 1960), 109 U.S.App.D.C. 97, 284 F.2d 231; Leedom v. International Brotherhood of Elec. Workers (C.A., Dist.Col., 1960), 107 U.S.App.D.C. 357, 278 F.2d 237; Volney Felt Mills, Inc. v. LeBus (C.A.5, 1952), 196 F.2d 497; Norris v. N.L.R.B. (C.A., Dist.Col., 1949), 85 U.S.App.D.C. 106, 177 F.2d 26; Reeves v. Phillips (N.D., Georgia, 1962), 206 F.Supp. 847. See also Eastern Greyhound Lines v. Fusco, supra (C.A.6), 310 F.2d 632; Suprenant Mfg. Co. v. Alpert (D.Mass., January 31, 1963), 219 F.Supp. 867, 52 LRRM 2697.
In Eastern Greyhound Lines v. Fusco, supra, 310 F.2d pp. 634-635, where the Sixth Circuit denied a motion for an injunction pending appeal from a decision of the District Court, which held that it had no jurisdiction to enjoin an election order of the National Labor Relations Board, the Court stated:
'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 within 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.'
The only reported decision which is contrary to the overwhelming weight of authority is the case of Greyhound Corporation v. Boire (S.D., Florida, 1962), 205 F.Supp. 686, affirmed per curiam, Boire v. Greyhound Corp. (C.A.5, 1962), 309 F.2d 397, cert. granted, 372 U.S. 964, 83 S. Ct. 1090, 10 L. Ed. 2d 128.
Since the Fifth Circuit's decision in Boire is presently pending before the United States Supreme Court, this Court feels it should make three brief observations concerning such decision. First, neither the District Court nor the Fifth Circuit discusses the applicability of the previous decision of that Circuit in Volney Felt Mills v. LeBus, supra, which reached a result opposite to Boire, and where the Court said (196 F.2d p. 498):
'Appellant is not, as it claims, standing remediless, its constitutional rights invaded and taken away without affording it a judicial hearing. Its day in court will come, and soon, if it presses its available remedies. For that day it must, as all others similarly situated must, wait with such fortitude and patience as it can muster.'
Secondly, the District Court states that that case is controlled by Leedom v. Kyne, supra, without analyzing the significance of that decision along with the pertinent legislative history of the National Labor Relations Act. Thirdly, Boire was decided both by the District Court and the Fifth Circuit prior to the Supreme Court's decision in McCulloch v. Sociedad Nacional, supra, which explained 'the limited exception fashioned in Leedom v. Kyne * * *.'
With all due respect to the Fifth Circuit, and in view of the unavoidable delay in the Supreme Court's reviewing Boire, this Court feels that it should follow the holdings of the majority of the Courts and the strong language of the Sixth Circuit in Eastern Greyhound Lines v. Fusco, supra, and dismiss the plaintiff's complaint for lack of jurisdiction. Since this Court has favorably disposed of the motion of the defendant on the jurisdictional ground, it will not be necessary to discuss the remaining two grounds urged in support of such motion.
An appropriate order may be submitted.
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