The opinion of the court was delivered by: BRYAN
Plaintiff, the U.S. Pillow Corporation (U.S. Pillow), sues to enjoin defendant Regional Director for the Second Region of the National Labor Relations Board (the Regional Director) from conducting a representation election of the employees of U.S. Pillow on the petition of the Bedding, Curtain and Drapery Workers Union, Local 140, United Furniture Workers of America, AFL-CIO (Local 140). After the action was instituted plaintiff consented for practical reasons to the election being held and the ballots being impounded. That procedure was followed and the ballots cast in the election have been impounded accordingly and have not been tallied.
There are three motions now before me.
1. A motion by Local 140 for permissive intervention pursuant to Rule 24(b), F.R.Civ.P. 28 U.S.C.;
2. A motion by U.S. Pillow for an injunction pendente lite continuing the impounding of the ballots cast in the election held on June 29, 1962 and suspending the tallying of the ballots; and
3. A cross-motion by the Regional Director for judgment dismissing the complaint pursuant to Rule 12(b)(1) and (6), or in the alternative for summary judgment pursuant to Rule 56.
The motion to intervene by Local 140 is unopposed and may be disposed of at the outset. Counsel for the Local appeared and participated in the argument of the other two motions with the permission of the court. Local 140 is the petitioning union in the proceedings before the NRLB out of which this controversy arose and plainly has a direct interest in the outcome of the case. Its petition is timely and intervention will not delay or prejudice the adjudication of the rights of the original parties. Its motion to intervene under Rule 24(b) will therefore be granted.
Turning next to the substantive motions, the relevant facts, briefly stated, are as follows:
On January 5, 1960, U.S. Pillow entered into a three year collective bargaining agreement with Local 77, New York District Council, Textile Workers Union (Local 77) which was then the sole collective bargaining agent for U.S. Pillow's non-supervisory and non-office personnel. Several months later, in October of 1960, U.S. Pillow joined The Textile Trades Association, Inc. (Association), a multi-employer collective bargaining unit composed of a number of firms in the textile industry, and agreed to be bound by the three year collective bargaining agreement which the Association had entered into, also with Local 77 on June 27, 1960. The agreement between U.S. Pillow and the Association was supplemented on November 17, 1960, when U.S. Pillow agreed to be bound by renewals, extensions and future agreements under the collective bargaining agreement of June 27 between the Association and Local 77, and further agreed that its liability thereunder would survive termination of its membership in the Association.
Thereafter, on August 21, 1961, Local 140, the intervenor in this litigation, filed with the NLRB a petition for certification as the bargaining agent for the single employer unit, composed of the employees of U.S. Pillow, pursuant to § 9(a) and (c) of the Labor Management Relations Act (29 U.S.C.A. § 159(a) and (c).) U.S. Pillow and Local 819, an affiliate of the International Brother-hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 819), successor by merger to Local 77, moved to dismiss that petition on two grounds. They contended: (a) that the collective bargaining agreement between Local 77 and the Association barred the holding of an election at that time; and (b) that the limitation of the proposed election to the single employer unit was inappropriate in view of the fact that U.S. Pillow was a member of the Association.
A hearing was held on these questions before a hearing officer of the NLRB. He found in favor of the petitioning Local and his rulings were found to be free from prejudicial error by the Regional Director and affirmed in a written opinion dated October 12, 1961. The Regional Director's opinion in disposing of U.S. Pillow's first contention held: (1) that Local 140's petition was timely with respect to the January 5, 1960 collective bargaining agreement between Local 77 and U.S. Pillow; (2) that U.S. Pillow's entry into the multi-employer contract of the Association was not a premature extension of its January 5, 1960 collective bargaining agreement with Local 77 because Article 17 of the January 5 agreement afforded preferential treatment to union member employees and therefore would not have constituted a bar to an election at the time that the later agreement was entered into; and (3) that the multi-employer collective bargaining agreement with Local 77 was not a bar to Local 140's petition for an election because that agreement also included provisions which discriminated on the basis of union membership.
The Regional Director also rejected the second contention in opposition and held that
'The contention that only a multiemployer unit is appropriate is without merit in light of the absence of a Board certification, the fact that the Employer engaged in single-employer bargaining before joining the association, and the brevity of the history of multiemployer bargaining which preceded the instant petition. 6 '6. Miron Building Products Co., et al., 116 NLRB 1406.'
A timely request for review of the decision on this phase of the case was filed with the NLRB, and pursuant to 102.67 of the Board's Rules and Regulations that request was granted on November 14, 1961. Briefs were subsequently submitted but a request for oral argument was denied on the ground that 'the record and briefs, in our opinion, adequately present issues and positions of the parties.' Case No. 2-RC-11543, p. 1.
The Board reviewed the facts of the case, the Regional Director's decision, and the prior cases in this area ...