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June 28, 1965.

Cab Operating Corporation, et al., Plaintiffs
City of New York, et al., Defendants.

The opinion of the court was delivered by: BRYAN


The thirty-six plaintiffs here are fleet owners operating taxicabs in the City of New York.They have sued to enjoin the Mayor and the Acting Commissioner of Labor of the City of New York from holding an election among the employees in the New York City taxicab industry to resolve questions concerning union representation.

Plaintiffs contend that the election constitutes unwarranted and unlawful intervention by the defendant officers of the City in an area preempted by the National Labor Relations Act, 29 U.S.C. § 151, et seq. and over which the National Labor Relations Board has exclusive jurisdiction and control.

 Federal district court jurisdiction is not disputed and is clearly conferred by 28 U.S.C. § 1337 since the action arises under an Act of Congress regulating commerce. See Oil Workers v. Arkansas Louisiana Gas Co., 332 F.2d 64 (10 Cir. 1964); General Electric Co. v. Callahan, 294 F.2d 60, 63 ftn. 2 (1 Cir. 1961), cert. dismissed 369 U.S. 832, 82 S. Ct. 851, 7 L. Ed. 2d 840 (1962).

 Plaintiffs' present motion for a preliminary injunction was heard before me on June 15, 1965 upon an order to show cause issued by Judge Palmieri. On June 10, 1965, after hearing at length from the parties to the action, the National Labor Relations Board and two interested unions, Judge Palmieri refused the request of the plaintiffs temporarily to restrain the holding of the election then scheduled for June 14 and June 15. However, he issued an order to show cause which restrained the Mayor and the Labor Commissioner from counting the votes or publishing the results of the election, and directed that the ballots should be sealed and kept in safe custody until the hearing of the motion.

 The election was held as scheduled on June 14 and June 15 and the ballots were sealed as directed by Judge Palmieri. At the hearing of the motion I directed that the ballots be kept sealed, as the temporary restraining order provided, pending the determination of the motion. The preliminary injunctive relief now requested by the plaintiffs is thus directed solely against the counting of votes and publishing of the results of the election.The defendants have cross-moved to dismiss the complaint pursuant to Rule 12(b)(6), F.R.C.P., for failure to state a claim upon which relief can be granted.

 This case poses the recurring and troublesome problem of what constitutes state or local intervention in a labor controversy affecting commerce which is precluded by the exclusionary sweep and effect of the National Labor Relations Act.

 The basic facts, as developed on the motion before me, are as follows:

 For some months there has been ferment in the New York City taxicab industry on the question of union organization and representation. Subjects in dispute between the fleet owners and organizing unions included (1) what union should be recognized as bargaining agent; (2) how should that question be determined; (3) whether organization and representation should be on an industry-wide, on a fleet or on a garage basis; and (4) whether relatively casual as well as regular employees should be permitted to participate in any election, and where the lines between them should be drawn.

 The Taxi Drivers Organizing Committee, AFL-CIO (TDOC) has been recently engaged in organizing the employees in the industry. Local 826, International Brotherhood of Teamsters (Teamsters) has also been attempting such organization for a number of years.

 Between March 8, 1965, and April 1, 1965, the fleet owners, who are the plaintiffs in this action, *fn1" filed petitions with the NLRB pursuant to § 9(c)(1)(B) of the Act, seeking a determination as to the labor organization which should be recognized as the representative of their employees. The Board found that there was reasonable cause to believe that a question of representation affecting commerce existed and directed a hearing to determine which employees would be eligible to vote and to determine the appropriate unit.

 Pending as well were charges of refusal to bargain under § 8(a)(5) of the Act filed by the TDOC against the plaintiffs which were dismissed by the Regional Director subsequent to the hearing of this motion. Other charges under §§ 9, 8(a)(1) and 8(a)(3) of the Act are still pending.

 Also pending before the Board were two petitions by the Teamsters originally filed in August 1964 and re-filed in January 1965, asking certification as the representative of drivers employed by two garages. These petitions were consolidated with the proceedings brought by the fleet owners.

 Hearings in the consolidated proceedings have been closed and briefs were due by June 14, 1965, the date set by the City for its election. The issues in these proceedings are now sub judice before the Board. Upon determination by the Board of these issues presumably elections will be directed under the Board's auspices and within the framework the Board prescribes.

 On March 24, 1965 a strike of taxicab employees virtually shut down taxicab operations in the city. It was accompanied by some disorder and violence. In the afternoon of that day TDOC called a mass meeting in Madison Square Garden in connection with the strike. The Mayor spoke at that meeting and proposed the appointment of a panel to investigate and report on the controversy between the fleet owners and their employees.The drivers then returned to work.

 On March 26, 1965 the Mayor appointed the three-man panel which he had proposed.The panel held hearings and rendered a report on April 30.It reported that it had not been able to find a basis for an agreement between the parties on procedures for the resolution of the question of representation. It recommended that the parties agree to an election on a city-wide basis "conducted by the National Labor Relations Board or other qualified agency," and that drivers who worked only one or two days a week should be excluded from voting.

 One member, while agreeing that there should be an election, was of the view that it should be exclusively in the hands of the Board in view of TDOC activity among the employees to that end. He also was of the view that the election should not be city-wide but should be by separate garages.

 Subsequently there was further unrest in the industry when a wild-cat strike took place in Queens on May 18.

 The Mayor then sent telegrams to the TDOC and the taxicab fleet owners endorsing the report of his panel and stating

 "I am prepared to suggest to the National Labor Relations Board that it conduct the election providing both sides agree to the terms proposed by the panel. If they do not agree the City itself will conduct the election since it is essential for the ...

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