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July 1, 1952


The opinion of the court was delivered by: BONDY

This is a motion by the National Labor Relations Board for summary judgment in an action for an injunction to restrain defendant State Labor Relations Board and its members from proceeding further with respect to unfair labor practices charges against two New York City taxicab companies, Chairman Service Corp. and Taxi Transit Co., the National Board claiming that it has exclusive jurisdiction over them.

Judge Holtzoff denied a motion herein for a preliminary injunction to restrain the State Board, 99 F.Supp. 526.

 One employee of Charman Service Corp. and five employees of Taxi Transit Co. filed with both boards charges of discriminatory discharge on account of union activities. The State Board conducted hearings in the Charman Service Corp. case and decided that it had jurisdiction and that an unfair labor practice had been committed in violation of N.Y. Labor Law Sec. 704(4), (5) and ordered reinstatement of the employee with back pay. The order was affirmed by the Supreme Court of the State of New York, County of New York, over the objections by the employer that the State Board was without jurisdiction. New York State Labor Relations Board v. Charman Service Corp., 201 Misc. 291, 107 N.Y.S.2d 41. The court held that the activities of Charman Service Corp. did not affect interstate commerce and that consequently the State Board, and not the National Board, had jurisdiction. An appeal to the Appellate Division of the Supreme Court of the State of New York is pending.

 In the Taxi Transit Co. case, the State Board issued a complaint and the company filed an answer contesting the Board's jurisdiction. The State Board has expressed its intention to hold hearings to determine whether it has jurisdiction and, if so, to determine the merits of the claim.

 The National Board has issued complaints in both cases, charging unfair labor practices in violation of 29 U.S.C.A. § 158(a) (1), (3). Since submission of this motion, hearings were held and intermediate reports, finding that the National Board has jurisdiction and that unfair labor practices had been committed, were issued by trial examiners, and in the Charman Service Corp. case, the National Board has affirmed the trial examiner's decision and issued its order against the Charman Service Corp.

 The issues involved on this motion are (1) whether this court has jurisdiction to consider the motion, and (2) if so, whether the motion should be granted.

 Defendants contend that the National Board has not the power to bring any action not expressly authorized by the National Act and accordingly has not the power to bring this action against the State Board. The National Act only expressly authorizes the National Board to apply for the enforcement of its orders to the United States courts of appeals, 29 U.S.C.A. § 160(e), and to apply to the district court for temporary injunctions restraining persons against whom a complaint has been issued charging unfair labor practices. 29 U.S.C.A. § 160(j)(1).

 The power of an administrative agency to bring actions may be implied. See Bowles v. Willingham, 321 U.S. 503, 510-511, 522-524, 64 S. Ct. 641, 88 L. Ed. 892; Walling v. Brooklyn Braid Co., Inc., 2 Cir., 152 F.2d 938, 940-941. In Bowles v. Willingham, the Price Administrator, who had express authority only to apply to the courts to enjoin violations of price or rent regulations, Emergency Price Control Act of 1942, Sec. 205(a), 56 Stat. 23, 33, 50 U.S.C.A.Appendix, § 925(a), and to appear in the Emergency Court of Appeals on review of his regulations or orders and to petition the United States Supreme Court for a writ of certiorari to review decision of the Emergency Court of Appeals, Sec. 204, 56 Stat. 31, 50 U.S.C.A.Appendix, § 224, was held to have the power to sue in the district court to enjoin a state court action on the ground that the exclusive remedial procedure provided by the federal act barred the state action.

 The court is of the opinion that the National Board has implied authority to bring this action to protect its exclusive jurisdiction. See N.L.R.B. v. Kiloren, 8 Cir., 122 F.2d 609, 137 A.L.R. 510, certiorari denied 314 U.S. 696, 62 S. Ct. 412, 86 L. Ed. 556; N.L.R.B. v. Sunshine Mining Co., 9 Cir., 125 F.2d 757.

 This action does not involve an appeal from an order of the National Board. It is within the jurisdiction of this court as an action arising under an Act of Congress regulating commerce and protecting trade and commerce against restraints. 28 U.S.C.A. § 1337. See Food, Tobacco, Agricultural & Allied Workers Union v. Smiley, 3 Cir., 164 F.2d 922, 923; United Office and Professional Workers v. Smiley, D.C., 77 F.Supp. 659, 664; A.F. of L. v. Watson, 327 U.S. 582, 591, 66 S. Ct. 761, 90 L. Ed. 873.

 Defendants contend that no injunction may issue with respect to the Charman Service Corp. because 'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' 28 U.S.C.A. § 2283. However, the purpose of this statute is to avoid friction between federal and state courts in litigation over which the two have concurrent jurisdiction. See Hale v. Bimco Trading Co., 306 U.S. 375, 378, 59 S.ct. 526, 83 L. Ed. 771; United States v. McIntosh, D.C., 57 F.2d 573, 576-577. It does not prevent the federal courts from restraining interference by the state courts with jurisdiction vested exclusively in the federal courts, Bowles v. Willingham, supra, 321 U.S. at pages 510-511, 64 S. Ct. at page 645; N.L.R.B. v. Sunshine Mining Co., supra, 125 F.2d at page 762; United States v. McIntosh, supra, or in a federal agency. Brown v. Wright, 4 Cir., 137 F.2d 484, 488.

 The jurisdiction of the National Board over the labor relations of enterprises whose activities affect interstate commerce is exclusive. La Crosse Tel. Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S. Ct. 379, 93 L. Ed. 463; Bethlehem Steel Co. v New York State Labor Relations Board, 330 U.S. 767, 67 S. Ct. 1026, 91 L. Ed. 1234; New York State Labor Relations Board v. Charman Service Corp., 201 Misc. 291, 107 N.Y.S.2d 41, 44; Ryan v. Simons, 302 N.Y. 742, 98 N.E.2d 707. In Davega-City Radio, Inc., v. Boland, D.C., 23 F.Supp. 969, relied on by defendant an injunction against the State Board was denied by reason of 28 U.S.C.A. § 2283. However, that was decided when the jurisdiction of the State Board over enterprises affecting commerce was considered concurrent with that of the National Board in the absence of prior action by the National Board in the particular case. Matter of Davega-City Radio, Inc., v. State Labor Relations Board, 281 N.Y. 13, 24, 22 N.E.2d 145.

 The State Board and the National Board (since the submission of this motion) have formally decided that they have jurisdiction over Charman Service Corp.

 Defendants contend that since neither the National Board nor the State Board has formally asserted jurisdiction over Taxi Transit Co., no justiciable controversy as to conflict of jurisdiction is presented as to it. The National Board contends that a conflict is presented by the State Board's intention to hold hearings as to whether is has jurisdiction and ...

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