The opinion of the court was delivered by: FRANKEL
This case arises out of a dispute among various labor organizations as to which should be designated under the procedures of the Railway Labor Act, 45 U.S.C. §§ 151-188, to represent police officers employed by the National Railroad Passenger Corporation ("Amtrak"). Plaintiff, Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("IBT"), seeks a preliminary injunction restraining the defendant National Mediation Board ("NMB") from proceeding with an election ordered pursuant to Section 2, Ninth, Railway Labor Act, 45 U.S.C. § 152, Ninth, to resolve the representation dispute. A temporary restraining order issued September 20, 1977, the day before the ballots were scheduled to be mailed to the affected employees, was vacated on September 21, 1977. At that time, the court granted the motions of the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, Allied Services Division, AFL-CIO ("BRAC"), to intervene as a party plaintiff and to join in IBT's motion for a preliminary injunction. Another labor organization, the Police Benevolent Association, Long Island Railroad Police, Inc. ("PBA"), has since been granted leave to intervene as a party defendant. The court now finds that the preliminary injunction must be denied.
The facts, not substantially disputed, are as follows:
Effective January 2, 1974, Congress enacted the Regional Rail Reorganization Act of 1973 ("3R") (P.L. 93-236), 45 U.S.C. §§ 701-94, to provide for the continuation and improvement of rail service in the midwest and northeast United States. The statute provided for the establishment of a commercial entity known as Consolidated Rail Corporation ("ConRail") and for the employment of personnel of railroads whose properties were transferred to ConRail. Following a representation election, the NMB certified IBT as the representative of the class or craft of police officers below the rank of captain on the ConRail system.
By the terms of the Railroad Revitalization and Regulatory Reform Act of 1976 ("4R") (P.L. 94-210), 45 U.S.C. §§ 801-54, which amended the 1973 legislation, Amtrak acquired certain railway properties known as the Northeast Corridor, previously operated by ConRail, and initiated arrangements for the transfer of ConRail police officers to Amtrak in order to staff the new properties. Under Section 504(f) of 3R, as amended, 45 U.S.C. § 774(f), agreements governing the transfer of ConRail personnel to Amtrak were to be negotiated among ConRail, Amtrak, and the representatives of the various crafts or classes of employees associated with the transferred properties. Prior to the implementation of such agreements, however, Amtrak was obliged to enter into collective bargaining negotiations with the representatives of the crafts or classes of ConRail employees designated to be transferred. Pursuant to this requirement, Amtrak participated in negotiations with plaintiff IBT, and on August 12, 1976, executed an "interim agreement" with IBT governing the rates of pay, rules, and working conditions of police officers transferred to and/or employed by Amtrak in the Northeast Corridor.
When the Amtrak-IBT interim agreement was concluded, Amtrak police officers were represented by plaintiff-intervenor BRAC in accordance with a collective bargaining agreement effective February 1, 1976. In January, 1977, Amtrak's Director of Labor Relations informed the NMB that the carrier's collective bargaining agreements with both BRAC and IBT were still in effect, the three parties having agreed that BRAC would continue to represent the police officers outside the Northeast Corridor, and IBT the police officers within the Corridor. Representatives of IBT and BRAC confirmed the existence of such a BRAC-IBT-Amtrak agreement. Thus, as the Board found in May, 1977, "at the present time Amtrak police officers are uncontestably in the posture of being represented by two labor organizations administering separate collective bargaining agreements on the Amtrak system."
On December 31, 1976, the Amtrak Police Association ("APA"), a third labor organization, filed an application under Section 2, Ninth, of the Railway Labor Act alleging the existence of a representation dispute involving Amtrak police officers below the rank of captain. In a hearing before the Board on March 4, 1977, in which all interested parties appeared, the APA took the position that police officers employed within Amtrak's Northeast Corridor properties constituted a separate craft or class. APA went on to urge, however, that if the Board should determine that the craft or class extended beyond the Northeast Corridor segment, the employees in question should be covered by NMB Rules § 1206.2(b), which requires a showing of interest by at least 35% of the affected employees before the Board will "authorize an election or otherwise determine the representation desires of the employees under the provisions of Section 2, Ninth, of the Railway Labor Act." 29 C.F.R. § 1206.2(b) (1976). Representatives of IBT, BRAC, and Amtrak maintained that all police officers employed on the Amtrak system constitute a single class or craft.
In addition, BRAC and Amtrak argued that an election, if permitted, would be warranted only upon a showing of interest from a majority of the members of the class or craft under NMB Rules § 1206.2(a), which applies "[where] the employees involved in a representation dispute are represented by an individual or labor organization * * * and are covered by a valid existing contract between such representative and the carrier * * *." 29 C.F.R. § 1206.2(a) (1976).
In findings issued May 20, 1977, the Board determined that the carrier's police officers below the rank of captain constituted a single system-wide class or craft, and that the Board would be justified in proceeding with its investigation upon a showing of interest by a majority of the affected employees. The federal mediator assigned to the case had previously set February 17, 1977, as the cut-off date for the submission of authorization cards in support of the APA's application to the Board. Considering all the facts and circumstances, however, the Board determined that insufficient information had been available to the APA to ascertain the showing of interest requirement applicable to its petition, and therefore afforded the applicant ten additional calendar days from the issuance of the findings to submit the necessary authorizations. After timely delivery of additional authorization cards by the APA, the Board formally determined the existence of a representation dispute on May 31, 1977, and authorized a mail ballot election. It also ruled that defendant-intervenor PBA, also an intervenor in the proceedings before the Board, had documented a sufficient showing of interest to appear on the ballot along with APA, IBT, and BRAC.
In the four months and more since an election was ordered, IBT and BRAC have raised numerous substantive and procedural objections to the Board's investigation of this dispute and to its rulings concerning the form and content of the ballot. The election was initially scheduled to occur in early June, but was postponed after plaintiffs gave notice of their intent to submit written protests. Their grievances were set forth in a series of letters to the mediator during the month of June. In a ruling dated July 22, 1977, the mediator rejected all of plaintiffs' contentions, and rescheduled the election for July 27. Plaintiffs then filed separate appeals, and the election was again postponed pending NMB review of the mediator's findings. The Board denied the appeal on August 12, 1977, in a decision which constitutes the subject matter of the instant action. Approximately one month later, it notified the parties that the ballots would be mailed on Wednesday, September 21.
Five days before the scheduled mailing, plaintiff IBT sent a telex to the Board demanding another postponement of the election for reasons not raised at any earlier stage of the proceedings and unrelated to the claims presented here.
When this was denied, IBT brought its grievances to this court, obtaining a temporary restraining order less than 24 hours before the election was to begin. As noted above, the order was vacated on motion of the NMB, and the ballots have been mailed. The procedure designed for resolving this representation dispute -- a secret ballot vote by the affected employees -- has thus commenced, after long delay; the question is whether it is to be completed.
Of the various grievances asserted in the course of the extended proceedings before the NMB, plaintiffs have urged three here. First, they protest that the ten-day extension granted the APA to obtain authorization cards in support of its application violated the NMB's rules and past practice. Second, based upon certain documentary evidence discussed below, they claim that the additional authorization cards submitted by the APA were fraudulently procured through a conspiracy between that organization and defendant-intervenor PBA. Finally, plaintiffs maintain that the PBA is ineligible on two or three grounds to appear on the ballot in this election: (a) IBT asserts that the PBA is not qualified to represent Amtrak employees by reason of certain provisions in its certificate of incorporation and bylaws allegedly limiting the PBA to representation of police officers employed by the Long Island Railroad. (b) The BRAC has questioned whether Amtrak police officers are eligible to join the PBA at all; its primary contention, however, is that PBA must be excluded from participation in the election because even if it admits Amtrak officers to membership, its constitution and bylaws must be read to restrict the rights of these officers to participate in the internal affairs of PBA in violation of Title I of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 401-531.
For reasons that will appear, none of plaintiffs' objections is substantial; i.e., there is not a bright prospect that they could succeed on the merits. But prior to this weighty ground opposing a preliminary injunction, there is grave doubt that this court has jurisdiction to entertain plaintiffs' claims at all. Under controlling precedents, the federal courts are almost totally without power to interfere with NMB decisions in representation disputes; Congress has in the Railway Labor Act committed such controversies to the Board for final determination. Switchmen's Union v. NMB, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61 (1943); Brotherhood of Ry. & S.S. Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 14 L. Ed. 2d 133, 85 S. Ct. 1192 (1965) (" ABNE "). The substantially total prohibition against judicial involvement serves the public interest in expeditious resolution of representation questions affecting common carrier employees, a result essential to industrial peace and hence to the maintenance of uninterrupted service by these instrumentalities of interstate commerce. Ruby v. American Airlines, Inc., 323 F.2d 248 (2d Cir. 1963), cert. denied, 376 U.S. 913, 11 L. Ed. 2d 611, 84 S. Ct. 658 (1964); WES Chapter, Flight Engs. Int'l Assn. v. NMB, ...