The opinion of the court was delivered by: RYAN
Consolidated Edison Company of New York, Inc., invoking federal jurisdiction under Section 1337 of Title 28, United States Code, has filed this suit to permanently enjoin the Regional Director for the Second Region of the National Labor Relations Board from conducting a representative election among certain of plaintiff's employees and from carrying out an Order of Election of the Board made August 30, 1961 and a Supplemental Order of December 8, 1961.
Consolidated Edison now has moved for an order temporarily enjoining, pending the final determination of this suit, the carrying out of these orders and the holding of an election.
Contending that the Court is without jurisdiction over the subject matter, that the suit is premature and that the complaint fails to state a claim upon which relief may be granted, the Regional Director has cross-moved for dismissal of the complaint.
Consolidated Edison is a New York public utility corporation supplying electrict power, gas and steam to consumers in the City of New York and in parts of Westchester County.
Defendant, as Director for the Second Region of the Board, is charged with carrying out in that region the orders of the Board (Labor Management Relations Act, Chapter 7 of Title 29, U.S.C.A.).
Utilities Worker's Union of America, AFL-CIO (hereinafter 'U.W.U.A.') is a labor organization, which, by virtue of a collective bargaining contract and a system-wide certification by the Board, in Case No. 2-R-5938, is the exclusive representative for the physical and clerical employees on the weekly payroll of Consolidated Edison with the exception of those workers employed at its Staten Island facilities who, since 1950, have been exclusively represented by the International Brotherhood of Electrical Workers.
Transport Workers Union, AFL-CIO (hereinafter 'T.W.U.'), is a labor organization recognized by the New York City Transit Authority (hereinafter 'Transit Authority') as bargaining representative for the operating and maintenance workers in its employ.
It is local history that on April 30, 1959, Consolidated Edison purchased three power plants owned by the City of New York and operated by the Transit Authority. The agreement of acquisition provided that Consolidated Edison would take possession of the plants on August 1, 1959, and that, on that date, the employees of the Transit Authority in the acquired plants who had not signified a contrary wish would be placed on the Consolidated Edison's payroll. Consolidated Edison did then take possession and control of the three plants and did employ, pursuant to the contract of sale, a total of 1226 former Transit Authority employees. Prior to their employment by Consolidated Edison, the operating and maintenance employees in the three former Transit Authority plants have been represented by T.W.U.
Between the acquisition date of August 1, 1959 and August 30, 1961 (the last date on which figures have been made available by Consolidated Edison), 249 of these former Transit Authority employees have been transferred from the three plants to other operations of Consolidated Edison and 360 have voluntarily left Consolidated Edison's employ to resume Civil Service status. Consolidated Edison's records as of August 30, 1961 indicate that a total of 618 of the original 1226 former Transit Authority employees placed on the Consolidated Edison's payroll on August 1, 1959, are still employed at the three purchased plants.
It also appears that on June 16, 1959, Consolidated Edison filed an application with the Board for a Clarification of Certification of Representatives in Case No. 2-R-5938, seeking the inclusion under that certification of the former Transit Authority employees of the three purchased power plants whom Consolidated Edison had since employed. Following this and on July 14, 1959, T.W.U. filed for Clarification of Representatives in Case No. 2-RC-10121, seeking a bargaining unit covering all production and maintenance employees in the former Transit Authority plants, excluding guards, supervisory, administrative and clerical personnel. U.W.U.A. was permitted to intervene. The two representative cases (No. 2-R-5938 and 2-RC-10121) were simultaneously heard and determined. At the hearing, Consolidated Edison contended that the former Transit Authority employees constituted an accretion to the existing system-wide bargaining unit as a matter of law and that therefore U.W.U.A. was the proper bargaining representative for these employees.
While these representative proceedings were pending, T.W.U. on September 18, 1959 and on November 6, 1959 filed charges against Consolidated Edison; on November 12, 1959 the Board issued a formal complaint (Case No 2-CA-6894) charging that Consolidated Edison had committed an unfair labor practice by permitting agents of U.W.U.A. access to the former Transit Authority plants while denying such access to T.W.U.
On August 30, 1961 the Board filed its Decision and issued an Order in the unfair labor practice case (132 NLRB 127). Rejecting Consolidated Edison's defense of accretion, the Board found that Consolidated Edison had violated Section 8(a)(2) and (1) of the National Labor Relations Act and ordered Consolidated Edison to cease and desist from unlawfully assisting and contributing support to U.W.U.A. or recognizing the latter as representative of the former Transit Authority employees until U.W.U.A. had won a Board-conducted election. Consolidated Edison has filed a petition in the Court of Appeals for the Second Circuit to review and set aside this Order.
On the same day it determined the unfair labor practice proceedings, the Board rendered its decision in the consolidated representative cases. The Board found that Consolidated Edison's acquisition of the Transit Authority plants did not constitute an accretion to the unit represented by U.W.U.A. and dismissed Consolidated Edison's application for Clarification of the Certification in Case No. 2-R-5938. The Board also found that the production and maintenance employees regularly assigned in the three former Transit Authority power plants constituted a readily identifiable and separable unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act and ordered a secret representative election be held (with U.W.U.A. and T.W.U. on the ballot) among all the operation and maintenance employees regularly assigned to work in the three power plants, excluding office clerical and administrative employees, guards and supervisors as defined in the Act. The date of this election was left to the discretion of the Board and as of the time of this application for a preliminary injunction, notice of the time and place of the election has not been given.
On September 25, 1961, Consolidated Edison filed with the Board a motion which sought reconsideration of the Board's Decision and Order of Election, reopening of the hearing for taking evidence of new facts alleged to be substantial and material, and deferral of the election. On December 8, 1961, the Board rendered a Supplemental Decision (134 NLRB 106), denying the relief sought on the ground that the proffered new facts did not destroy the identifiability of a unit of the three ...