decided as amended august 22 1979.: July 19, 1979.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 79-0481)
Before Adams, Gibbons and Weis, Circuit Judges.
The National Labor Relations Board and Arthur Eisenberg, Regional Director (the Board) appeal from an order of the District Court for the District of New Jersey enjoining the Board from opening or counting ballots in a representation proceeding, and ordering discovery of facts bearing on the validity of that proceeding. We reverse the grant of injunctive relief.
I. FACTS AND PROCEEDINGS IN THE DISTRICT COURT
On February 13, 1979, the Board applied to the district court, pursuant to § 11(2) of the National Labor Relations Act (NLRA), 29 U.S.C. § 161(2), for an order requiring Interstate Dress Carriers, Inc. (IDC) to obey a subpoena duces tecum issued in connection with a representation proceeding involving IDC employees. The subpoena called for the production of an "Excelsior List" of the names and addresses of all employees in a specified bargaining unit.*fn1 The representation proceeding involved an effort by Local 20408 of the United Warehouse Industrial and Affiliate Trades Employees Union (Local 20408) to be certified as the bargaining representative for IDC employees in place of Cloak, Dress Drivers and Helpers Union, Local 102, International Ladies' Garment Workers' Union (Local 102), with which IDC had a collective bargaining agreement. The Board's application to the district court disclosed that an election was scheduled for February 21, 1979. On February 14, the district court issued an order directing IDC to show cause why the subpoena duces tecum should not be enforced. IDC appeared before the district court the following day, informed the court of its intention to file an answer and counterclaim, an opposing affidavit, a motion for a temporary injunction and a supporting memorandum of law. At that time IDC requested, and was granted, a one-day adjournment in which to prepare and file its papers.
On February 16, IDC filed an answer and counterclaim in which it admitted the pendency of the representation proceeding and the scheduled election. IDC alleged, however, that the hearings held by Region Twenty-Two of the Board, which culminated in the decision to call an election, were conducted with such procedural irregularities as to deprive IDC of an opportunity to be heard, offer evidence, and examine witnesses. It alleged that if its existing collective bargaining relationship with Local 102 were to be terminated as a result of the election, it would suffer irreparable injury for the redress of which there was no adequate remedy. IDC sought a declaratory judgment that the Board proceedings violated due process and the Administrative Procedure Act, an injunction to prohibit the Board from conducting any election and any proceeding ancillary thereto, and the dismissal of the Board's application to enforce the subpoena.
On February 20, 1979, the trial court entertained argument on IDC's motion for a preliminary injunction against the election scheduled the next day. On the same day, Local 102 and Local 20408 moved to intervene, and Local 102 joined in IDC's request for preliminary relief. Also on February 20, the Board moved to dismiss IDC's counterclaim for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.
The district court, by order dated February 20, 1979: (1) permitted both unions to intervene; (2) denied the motion for a preliminary injunction against holding the election scheduled on February 21, 1979; (3) denied the Board's motion to dismiss the IDC counterclaim for lack of subject matter jurisdiction "without prejudice to renewal after completion of discovery and pretrial conference"; (4) reserved decision on the Board's application to enforce its subpoena; (5) directed the Clerk of the district court to turn over the Excelsior List, which had been delivered to the Clerk, to the Board's attorney for the purpose of determining eligibility to vote at the February 21, 1979 election; (6) ordered the Board to seal all ballots cast at the election "without opening them or tallying the results" and to "keep them under seal pending the further order of this Court"; (7) ordered that discovery go forward and be completed by May 11, 1979, and that a pretrial conference take place on May 22, 1979. The net effect of this order was to permit the February 21, 1979 election to take place, using an Excelsior List obtained from IDC, but to prevent the Board from counting the ballots or certifying a bargaining agent for at least ninety days thereafter.
The Board filed a notice of appeal on February 26, 1979. It also moved for a stay of the court's injunction and discovery order pending appeal. Meanwhile, IDC and Local 102 had moved before the Board for review of the Regional Director's decision to hold an election and for an order impounding the ballots pending decision on their request for review. On March 6, 1979, the Board denied the IDC and Local 102 requests for review and for an impoundment order. On March 9, 1979, these developments were brought to the district court's attention at a hearing on the Board's motion for a stay. Motions for a stay of the order impounding the ballots and for a stay of discovery were denied on March 9, 1979.
II. PROCEEDINGS IN THIS COURT
On March 12, 1979, the Board filed in this Court a motion for a stay pending appeal. By agreement of the parties, depositions of Regional Director Eisenberg and hearing officer Anderson, previously noticed, were adjourned pending our ruling on that motion. IDC also noticed the deposition of Matthew Eason, president of Local 20408, and, when he did not appear, obtained an order from the district court directing that Eason appear, or certain disputed facts would be deemed established against that Local. Local 20408 also moved in this Court for a stay pending appeal. On March 21, we entered orders staying all discovery; but in order not to render moot the appellees' claim that the Board's subpoena should not have been enforced, on April 24, by order of Chief Judge Seitz, we continued in effect the order staying counting of the ballots.
III. PROCEEDINGS IN OTHER COURTS
IDC and others have been charged in an indictment pending in the Eastern District of New York with violations of 18 U.S.C. §§ 1505 and 371. The indictment alleges that IDC and others have attempted to interfere with the Board's representation case, in which the subpoena here in dispute was issued, by bribes and threats intended to induce Local 20408 to withdraw its representation petition. In that proceeding IDC, pursuant to Fed.R.Crim.P. 17, subpoenaed the authorization cards submitted to the Board by Local 20408 in support of its representation petition. The Rule 17 subpoena was resisted by the Board on the ground of privilege. The Board's motion to quash was denied, and the Court of Appeals for the Second Circuit withheld appellate and mandamus relief. United States v. Di Lapi, 595 F.2d 1209 (2d Cir. 1979). The General Counsel continued to resist and was held in contempt. On appeal from that decision, the Second Circuit held that the authorization cards and some other papers bearing upon Local 20408's representative status must be disclosed to the defendants in the criminal case, despite the existence of a recognized privilege against disclosing the identity of employees signing authorization cards. In re John S. Irving, General Counsel, 600 F.2d 1027 (2d Cir. 1979).
The indictment pending in the Eastern District of New York and the related contempt proceedings are claimed by IDC and Local 102 to be relevant to the disposition of this appeal because, these parties contend, they establish that the representation hearings before the Board, in which the subpoena in this case issued, are a sham, instigated at the behest or with the connivance of the prosecutor in the Eastern District of New York.
IDC contends that we should dismiss the Board's appeal for lack of an appealable order. The Board, on the other hand, contends that the February 20, 1979 order is appealable under 28 U.S.C. § 1292(a)(1) as the grant of an injunction, and that, in any event, the district court's assertion of continuing jurisdiction on the basis of a counterclaim over which it lacks subject matter jurisdiction is reviewable pursuant to 28 U.S.C. § 1651.
As we noted above, the form of the district court's order permitted the election to go forward, while preventing the counting of the ballots until after the court had considered the merits of IDC's defense to the subpoena and its counterclaim for injunctive relief against the election. IDC points out, quite correctly, that the district court has not so far expressed a viewpoint on the merits of the Board's application for enforcement of the subpoena or on the merits of the counterclaim. For that reason, it contends, the February 20 order is not yet ripe for appeal. But whether a court order actually addresses the merits of a particular dispute is hardly dispositive. Although, in granting pendente lite injunctive relief, a trial court is required as a matter of law to take into account the moving party's likelihood of success on the merits, courts frequently will refrain from actually ruling on the merits. The purpose of § 1291(a)(1) jurisdiction is review of pendente lite injunctive relief, not review of final judgments. Here, read practically, the trial court's order of February 20 plainly provided preliminary injunctive relief. By permitting the Board to use IDC's Excelsior List, but directing that the results of the balloting be impounded until its further order, the court accomplished the result of disrupting the Board's certification proceeding as completely as if it had fully granted all the preliminary injunctive relief for which IDC had moved. Whichever local won the February 21, 1979 election has been left in limbo in the meantime for over 90 days. In effect, the court granted a lesser form of relief than IDC had requested, but that relief could fairly be construed to be within the scope of IDC's original demand. A preliminary injunction which does not direct all that a plaintiff asks is, however, still a preliminary injunction. It is the court's coercive order, and that alone, which prevents the Board from completing the pending representation proceeding. That order, no matter how disingenuously IDC and Local 102 choose to describe it, did not merely continue the case without reaching the merits. It is a preliminary injunction within the meaning of § 1292(a)(1). Were we to hold otherwise, we would put in the hands of trial courts the power, by legerdermain in the framing of orders, to deprive litigants of their right to appellate review of effective preliminary injunctions, a right which Congress intended to give them.
It does not follow, however, that because the impoundment order is reviewable as a grant of a pendente lite injunction, the other features of the February 20 order, and particularly the provision permitting discovery, are also reviewable at this time. Discovery orders are not ordinarily appealable. E.g., Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969). We must, of course, in reviewing the propriety of the order impounding the ballots, consider whether the court had subject matter jurisdiction to entertain any cause of action which would sustain it. See, e.g., Orth v. Transit Inv. Corp., 132 F.2d 938, 944 (3d Cir. 1942); Eighth Regional War Labor Board v. Humble Oil & Refining Co., 145 F.2d 462, 464 (5th Cir. 1944), Cert. denied, 325 U.S. 883, 65 S. Ct. 1577, 89 L. Ed. 1998 (1945). We can, moreover, in reviewing the preliminary injunction, consider whether any pleading stated a claim upon which any relief could be granted, and thus whether any discovery at all was warranted. Naturally, if subject matter jurisdiction is entirely lacking or the pleadings disclose no claim upon which relief could be granted, the discovery order will fall along with the rest. But if, on any theory, the court has some jurisdiction for which discovery would be appropriate, and if some colorable pleading has been filed, the discovery order is interlocutory and unreviewable. Moreover, if there is jurisdiction and a pleading sufficient to justify discovery, we do not think that appellate intervention by way of mandamus under 28 U.S.C. § 1651 is appropriate. Ordinarily, mandamus is not to be used as a substitute for appeal, particularly where, as in the case of a lawful discovery order, appellate review is foreclosed. See, e.g., Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir. 1978); Nixon v. Sirica, 159 U.S.App.D.C. 58, 64, 487 F.2d 700, 706 (1973).
V. SHOULD THE COURT HAVE HALTED THE REPRESENTATION CASE?
The court's power to order impounding of the ballots can arise from two sources only: The IDC counterclaim with respect to the manner in which the representation case was conducted, or the IDC ...