dissenting:
I dissent.
The district court properly exercised its jurisdiction to review the Board’s order directing that a representation election be held among the non-German employees of Goethe House; the record supports Judge Owen’s grant of a preliminary injunction. There is no doubt that Goethe House, although a private nonprofit association, functions as a branch of the West German government promoting its national culture, a customary activity of foreign governments everywhere. It follows from this that Goethe House is not subject to the jurisdiction of United States courts or administrative agencies under the Foreign Sovereign Immunities Act (FSIA), 28 U.S. *81C. § 1602 et seq. Thus the district court had the authority to review the Board’s order mandating a representation election for Goethe House’s non-German employees, and, on the undisputed facts, to enjoin such action.
The majority distinguishes the instant case from McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), on the grounds that an American union’s representation of the non-German employees at Goethe House would neither encroach on the membership of a foreign union nor violate the foreign sovereign’s law, as was the case in McCulloch. However, McCul-loch is predicated on the broad premise that conflicts with foreign sovereigns are to be avoided, not on a technical distinction regarding the identities of the parties to the case. The McCulloch Court held that the district court had properly exercised its jurisdiction because the “international complexion” of the issues presented created “a uniquely compelling justification for prompt judicial resolution of the controversy over the Board’s power.” McCulloch, supra, at 17, 83 S.Ct. at 675. The “international complexion”, not the facts narrowly construed, set McCulloch and this case apart from wholly domestic labor disputes.
The same compelling justification that was present in McCulloch exists here. The question of whether the FSIA renders Goethe House immune to the jurisdiction of United States administrative agencies such as the Board is one that should be resolved speedily to avoid possible disturbances and embarrassment in our international relations. Today’s decision forces Goethe House to commit an unfair labor practice by refusing to bargain with the unit’s certified bargaining representative in order to obtain review of the Board’s exercise of jurisdiction. If there is a basis for the refusal, such proceedings should be avoided.
The Board has not brought to our attention any case in which any United States agency has successfully asserted its jurisdiction over Goethe House or any similar establishment of a foreign government that engages in what so patently are foreign relations activities. I find it inappropriate to force so indelicate a result in this case, with its extensive foreign relations ramifications.
Judge Owen’s determination that Goethe House is not engaged in commercial activity for the purposes of section 1605(a)(2) of the FSIA, 28 U.S.C. § 1605(a)(2), and is therefore rendered immune by that act, is unassailable. Unlike the employer in State Bank of India v. NLRB, 808 F.2d 526 (7th Cir.1986), cert. denied, 483 U.S. 1005, 107 S.Ct. 3229, 97 L.Ed.2d 735 (1987), Goethe House only sells items incidentally to its central mission, which is to promote German culture in all its manifestations in literature, music, art and other cultural activities. The Board’s proposition that the mere hiring of seven non-German employees (among up to 40 German employees) itself manifests commercial activity is not persuasive. It strains logic to suggest that any time a foreign sovereign employs a messenger, a bookkeeper or a custodian, it becomes thereby a commercial enterprise and is subject to the jurisdiction of American administrative agencies.
The district court properly exercised its jurisdiction in this case involving international relations and it certainly did not abuse its discretion when it preliminarily enjoined the representation election, American Cyanamid Co. v. Campagna per le Farmacie in Italia S.p.A., et al., 847 F.2d 53, 55 (2d Cir.1988) (per curiam), quoting Standard & Poor’s Corp., Inc. v. Commodity Exchange, Inc., 683 F.2d 704, 708 (2d Cir.1982). I would affirm the order of the district court.