"[i]n a case of a demonstrably false and misleading statement in the Board's announcement [to carrier employees] of the new election[,] the courts are not without jurisdiction"
How later courts described this case
- "[i]n a case of a demonstrably false and misleading statement in the Board's announcement [to carrier employees] of the new election[,] the courts are not without jurisdiction"
- “A stay pending appeal is always an 17 extraordinary remedy, and it is no less so when extraordinary jurisdiction must be asserted as a prerequisite.”
Written by the judges who cited it.
The opinion
BURGER, Circuit Judge
(concurring):
I agree that our jurisdiction is narrow and limited but I cannot quite agree that the Board’s action falls short of calling for our intervention by means of a stay *276 of governmental action. The Board’s curative efforts here were extraordinarily feeble when considered alongside the blatant fraud and forgery by persons advocating the cause of the Teamsters Union. The Board’s complacency has a clear tendency to encourage the shocking conduct which it purports to chide. If such tactics succeed, the victory of the Teamsters will be the fruit of gross fraud, forgery and chicanery. Except for the adjective “gross”, which I think valid, it seems to me we all agree on the vice of conduct complained of.
I refrain from recording a dissent only because of the likelihood that Appellants may take steps to set aside the election, should it be adverse to them.
APPENDIX NATIONAL MEDIATION BOARD Washington, D. C. 20572 In the Matter of the Application of: INTERNATIONAL BROTHERHOOD OF TEAMSTERS (Airline Division) alleging representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act Involving Employees of: PAN AMERICAN WORLD AIRWAYS, INC. Case No. R-3781 November 2, 1966
DECISION AND ORDER
On October 11, 1966, the Brotherhood of Railway and Steamship Clerks and certain individual Pan American employees petitioned the National Mediation Board (1) to dismiss the petition of the International Brotherhood of Teamsters in the above entitled proceeding, or (2) in the alternative to hold in abeyance the second election authorized by this Board in its letter of October 6, 1966, until a free, fair and uncoerced election can be held.
On October 13, 1966, the Board denied the request of the Brotherhood of Railway and Steamship Clerks as outlined in its petition filed October 11, 1966.
On October 24, 1966, a petition to reconsider its action of October 13, 1966, was filed by the Brotherhood of Railway and Steamship Clerks and a memorandum in support thereof was filed on the same date.
On October 25,1966, the Board notified all parties that it would hear oral argument on the petition for reconsideration of the action taken on October 13, 1966.
On October 31, 1966, oral argument was heard by the full Board and a transcript thereof was taken.
On the basis of the entire record presently before it, the National Mediation Board hereby grants the motion for reconsideration and upon such reconsideration, adheres to its decision of October 13,1966, except that the balloting among the individual employees is hereby rescheduled to commence on November 14, 1966, with the return date for the receipt of said ballots to be no later than December 12, 1966.
*277 Sufficient reason appearing therefor, it is also hereby ordered that a communication to each eligible employee in the form attached hereto be dispatched by U. S. Mail,
By direction of the NATIONAL MEDIATION BOARD. Thomas A. Tracy Executive Secretary NATIONAL MEDIATION BOARD Washington, D. C. 20572 November 2,1966 TO: EACH PAN AMERICAN EMPLOYEE ELIGIBLE TO VOTE IN CASE NO. R-3781
During August 1966, after finding that a dispute existed involving representation of clerical and related employees, the National Mediation Board attempted to conduct an election and sent ballots to each eligible employee.
While the election was in progress and subsequent thereto, the Board was apprised that certain representations were made to the eligible voters by the International Brotherhood of Teamsters, the Brotherhood of Railway and Steamship Clerks, and the Carrier. Normally, such course of conduct and expression of views is to be expected during a representation proceeding and this Board did not take cognizance of such campaigning.
However, it was called to the Board’s attention that certain additional campaign tactics over-stepped the bounds of propriety and in fact some representations made to voters were fraudulent. The Board received evidence that letters were sent to voters allegedly over the signatures of the President of the AFL-CIO and the President of the Brotherhood of Railway and Steamship Clerks which were unauthorized. These letters were also written on what was represented to be official stationery or authorized letterheads of these respective organizations. Other communications issued and inducements offered to eligible voters were the basis of additional objections filed with this Board.
In these premises, the Board determined to set aside the election held in August 1966.
It is the statutory duty of this Board under Section 2, Ninth, of the Railway Labor Act to resolve questions of representation as expeditiously as possible. It is also the duty of this Board to conduct elections under circumstances in which eligible voters can exercise a free and informed choice.
All eligible voters are now on notice that certain letters and communications which you received during the course of the first balloting period were not authorized nor sent by George Meany, President of the AFL-CIO; and C. L. Dennis, President of the Brotherhood of Railway and Steamship Clerks, respectively, and the positions attributed to them in those communications does not reflect their views. This Board has been officially informed that the Brotherhood of Railway and Steamship Clerks — Airline Division wishes to remain off the ballot.
The National Mediation Board is of the opinion that sufficient time has passed since the original vote was conducted for the eligible voters to cast their ballots under appropriate conditions. All eligible voters are now officially informed, through this communication and in the election notice which you will receive, concerning the official position of the Board and the Rules and Regulations *278 under which this question of representation will be determined.
The National Mediation Board will, within the next few days, send you a new ballot with instructions. These documents constitute the only official statements with regard to our election and certification procedure which you will receive or which any one is authorized to publish during the course of this election.
By order of the NATIONAL MEDIATION BOARD.
Thomas A. Tracy Executive Secretary