The opinion of the court was delivered by: LASKER
LASKER, D.J.: In January 1976 Milton Moshlak commenced suit (76 Civ. 260) against American Broadcasting Company (ABC). The first and fourth claims of that complaint allege ABC has violated its collective bargaining agreement with Local 52 of the International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators, AFL-CIO (of which Moshlak is President) by assigning to employees represented by Local 16 of The National Association of Broadcast Employees & Technicians (NABET) sound and electrical work needed in conjunction with video tape cameras in newsgathering which it is claimed should have been assigned to Local 52 members.
In April 1976, after advising Local 16 of Local 52's claim and receiving a letter from Local 16 which stated that "any actions taken by the Company (ABC) adverse to or inconsistent with our work jurisdiction will result in strike action by our members, or such other economic sanctions and actions as the Union considers appropriate," ABC filed with the National Labor Relations Board (the Board) an unfair labor practice charge against NABET. ABC alleged a violation of Section 8(b)(4)(D) of the National Labor Relations Act in connection with a claimed jurisdictional dispute. The Board assumed jurisdiction and, in accordance with customary procedure, issued a "Notice of Section 10(k) hearing" under the Act to ABC, NABET and Local 52.
On May 3rd, Local 52, without moving to amend, served an amended complaint in 76 Civ. 260 which purported to add the Board and NABET as defendants. The fifth cause of action of the amended complaint alleged that ABC and NABET had conspired to give the Board jurisdiction by fabricating Local 16's strike threat which Local 52 claimed to be sham. The amended complaint sought a preliminary injunction staying the Board and NABET (though not parties to 76 Civ. 260) and ABC from proceeding to the scheduled § 10(k) hearing pending determination of the issues raised by the first and fourth causes of action in 76 Civ. 260.
On May 10, 1976 ABC moved for a preliminary injunction staying the proceedings in 76 Civ. 260 with respect to the first and fourth causes of action pending final determination by the Board of the pending unfair labor practice charge.
Since the filing of ABC's motions Local 52 has cross-moved for leave to amend the complaint in 76 Civ. 260 by adding the fifth cause of action contained in its unauthorized amended complaint and for a preliminary injunction staying the Board proceedings pending determination of the first, fourth and proposed fifth causes of action in 76 Civ. 260. Simultaneously Local 52 has commenced Action No. 76 Civ. 2158 against ABC, NABET and The Board, the allegations of which are substantially the same as the fifth cause of action of 76 Civ. 260.
ABC and the Board have moved to dismiss 76 Civ. 2158 under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
ABC and the Board argue that in the circumstances this court has no jurisdiction to stay the Board's legitimately invoked proceedings, and that a complaint seeking such a stay fails to state a claim on which relief can be granted. Local 52 contends that the jurisdiction of the Board has been asserted on the basis of a sham (Local 16's strike threat)., that in jurisdictional disputes the Board's policy so pronouncedly favors the employer's position (which Local 52 claims favors Local 16) that forcing Local 52 to litigate before the Board will unconstitutionally deprive it of due process in the determination of its rights under its collective bargaining agreement with ABC and its right under § 301 of the Act, 29 U.S.C. § 185, to sue in this court for violation of that agreement.
ABC and the Board counter that Local 52's constitutional claim is based on an unsound bootstrap argument; that in any event the Board has primary jurisdiction to determine the underlying dispute including the questions whether its jurisdiction has been improperly invoked and whether Local 52's constitutional rights have been impaired.
The preceding resume indicates that there are pending: 1) ABC's motion for a stay of the proceedings in 76 Civ. 260; 2) Local 52's motion for a stay of the proceedings before the Board; 3) Local 52's motion to amend its complaint in 76 Civ. 260, or in the alternative to consolidate 76 Civ. 260 and 76 Civ. 2158; 4) ABC and the Board's motions to dismiss 76 Civ. 2158. Although the factual background and motion posture of the case thus presented are complex, the law governing the issues is settled, and requires no extended discussion.
Where, as here, a jurisdictional dispute has been brought before the district court in a breach of contract action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the Board has instituted a § 10(k) proceeding to resolve the same dispute, the decision of the Board will take precedence over a contrary determination by the court. New Orleans Typographical Union No. 17 v. NLRB, 368 F.2d 755, 767 (5th Cir. 1966); Dock Loaders Local 854 v. W. L. Richeson & Sons, 280 F. Supp. 402 (E.D.La. 1968). See Carey v. Westinghouse Electric Corp., 375 U.S. 261, 11 L. Ed. 2d 320, 84 S. Ct. 401 (1964). This remains true regardless of which action was initiated first. New Orleans Typographical Union No. 17 v. NLRB, supra. See NLRB v. Teamsters Local 631, 403 F.2d 667, 671-73 (9th Cir. 1968). It would therefore be both duplicative and futile not to stay the court proceedings in 76 Civ. 260 pending resolution of the controversy before the Board.
This would be the end of the matter were it not for Local 52's contention that ABC and NABET conspired to remove the suit from this court to the Board by means of a contrived strike threat so that the matter would be resolved in a forum where, it is alleged, the outcome is "pre-ordained" in favor of the employer. (Complaint [*] 16, 76 Civ. 2158; Proposed Amended Complaint $ 38, 76 Civ. 260) By the addition of this claim, which forms the basis of the complaint in 76 Civ. 2158 and of the fifth cause of action in the purported amended complaint in 76 Civ. 260, Local 52 is in effect seeking to obtain district court review of the Board's determination to convene a § 10(k) hearing. As stated above, ABC and the Board move to dismiss the complaint in 76 Civ. 2158 and ABC opposes the motion to amend in 76 Civ. 260, arguing that the claim is insufficient to vest jurisdiction in a district court to enjoin the § 10(k) proceedings.
It is, of course, elemental that court review of Board actions is generally limited to appeals to the circuit courts from "final orders." § 10(f), 29 U.S.C. § 160(f); See Laundry Workers Local 221 v. NLRB, 197 F.2d 701, 703 (5th Cir. 1952). Even the determination of a jurisdictional dispute upon the completion of a § 10(k) hearing is not such a final order subject to court review. Shell Chemical Co. v. NLRB, 495 F.2d 1116, 1122 (5th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1951 . In this respect, proceedings under § 10(k) to resolve jurisdictional disputes are similar to the representational certification procedure of § 9. Shell Chemical Co. v. NLRB, supra. In order to obtain court review of the matter, the losing party must refuse to abide by the Board's determination, and thereby prompt prosecution of an unfair labor practice charge which will ultimately lead to a judicial forum. See NLRB v. Plasterers' Union No. 79, 404 U.S. 116, 122, 30 L. Ed. 2d 312, 92 S. Ct. 360 (1971); Shell Chemical Co. v. NLRB, supra. It is thus apparent that absent some exceptional circumstance which could remove this case from application of the normal rule, ABC and the Board are correct that this court lacks jurisdiction to review the mere determination of the Board to commence a § 10(k) hearing. See International Assn. of Machinists v. Anaconda Co., 91 LRRM 2557 (W.D. Ky. 1975). Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 82 L. Ed. 638, 58 S. Ct. 459 (1938).
The exceptions to the prohibition against district court intervention in Board activities are narrow and few and are inapplicable to this case. One exception, for cases involving international ramifications of a Board ruling, is entirely inapposite. McCulloch v. Sociedad Nacional de Marineros, 372 U.S. 10, 9 L. Ed. 2d 547, 83 S. Ct. 671 (1963).
Under a second exception, a district court has jurisdiction to set aside a Board order when the Board has acted "in excess of its delegated powers and contrary to specific prohibitions of the Act." Leedom v. Kyne, 358 U.S. 184, 188, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958). Leedom has been expressly held not to extend the power of a district court to review factual assessments by the Board where these are alleged to be erroneous. Boire v. Greyhound Corp. 376 U.S. 473, 481, 84 S. Ct. 894, 11 L. Ed. 2d 849 (1964). Thus, if Local 52 wishes to contend that the Board incorrectly found reasonable cause to believe that an 8(b)(4)(D) violation had been committed by NABET and it was therefore improper to proceed under § 10(k) in the first instance, the Board ...