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05/06/65 Lawrence Typographical v. Frank W. Mcculloch

May 6, 1965

UNION AFL-CIO, APPELLANT

v.

FRANK W. MCCULLOCH, ET AL., APPELLEES 1965.CDC.62 DATE DECIDED: MAY 6, 1965



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Lawrence Typographical Union, International Typographical

APPELLATE PANEL:

Bazelon, Chief Judge, Edgerton, Senior Circuit Judge, and Wright, Circuit Judge. Bazelon, Ch. J., concurring. Wright, C. J., concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDGERTON

The appellant Union sued in the District Court for a declaratory judgment that the direction of a decertification election by a Regional Director of the National Labor Relations Board is void and for an injunction against the election. The Union appeals from a summary judgment for the Board.

Kansas Color Press, Inc., had recognized the Union as the representative of its mailing and composing room employees. On September 19, 1961, during attempts to negotiate a new collective bargaining agreement, the Union called a strike and established a picket line. In January, 1963, mailing and composing room employees petitioned the Board to decertify the Union pursuant to § 9(c)(1)(ii) of the National Labor Relations Act, 29 U.S.C. § 159(c)(1)(ii) (1958).

The Union afterwards filed unfair labor practice charges against the employer, alleging inter alia that the employer had initiated and fostered the decertification petitions in violation of §§ 8(a)(1) and 8(a)(2) of the Act, 29 U.S.C. §§ 158(a)(1)-(2) (1958). The Board's Regional Director and General Counsel refused to issue a complaint on these charges. At a subsequent hearing on the decertification petitions, the hearing officer refused to admit evidence offered by the Union to prove that the employer had instigated the petitions, and refused to incorporate in the record the Regional Director's reports of his investigation of the unfair labor practice charges. The Regional Director upheld the hearing officer's rulings, on the ground that "unfair labor practice allegations are not properly litigable in a representation proceeding," *fn1 found that a question of representation existed, and directed an election. The Union argues that the exclusion of evidence deprived it of due process of law and violated the requirement of § 9(c)(1) of the Act that the Board "shall provide for an appropriate hearing" and shall direct an election "if the Board finds upon the record of such hearing that . . . a question of representation exists . . . "

Judicial review of representation proceedings is very limited. They cannot be reviewed by courts of appeals under § 10(f) of the Act, because direction of an election or certification of a bargaining representative is not "a final order of the Board." National Labor Relations Board v. Internat'l Brotherhood of Electrical Workers, 308 U.S. 413, 60 S. Ct. 306, 84 L. Ed. 354 (1940); American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S. Ct. 300, 84 L. Ed. 347 (1940). Ordinarily representation proceedings can be reviewed only after the Board has based an order in an unfair labor practice proceeding on facts found in the representation proceeding. *fn2 Two exceptions have been established, which allow District Court review under the general terms of 28 U.S.C. § 1337 (1958). The Union relies on both.

(1) A District Court has jurisdiction to correct a violation by the Board of a clear, specific, and mandatory provision of the Act. *fn3 Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958). Section 9(c)(1) of the Act makes it mandatory that the Board hold an "appropriate hearing" before it certifies or decertifies a bargaining representative. Inland Empire Dist. Council, Lumber & Sawmill Workers v. Millis, 325 U.S. 697, 706, 89 L. Ed. 1877, 65 S. Ct. 1316, rehearing denied, 326 U.S. 803, 90 L. Ed. 489, 66 S. Ct. 11 (1945).

The Union says the Board's hearing was not appropriate because it excluded evidence of employer instigation. The Board concedes that such evidence is relevant to the existence of a question of representation. Only an employee may file a decertification petition under 9(c)(1)(ii), and no election may be held on a petition instigated by the employer. See Sperry Gyroscope Co., Div. of Sperry Rand Corp., 136 NLRB 294, 297 (1962); Birmingham Pub. Co., 118 NLRB 1380 (1957). The Board holds that since instigation is an unfair labor practice, it may be shown only in an unfair labor practice proceeding. See Union Mfg. Co., 123 NLRB 1633 (1959); Worden-Allen Co., 99 NLRB 410 (1952); cf. In the Matter of Times Square Stores Corp., 79 NLRB 361 (1948). Here, the Regional Director, by refusing to issue a complaint against the employer, prevented the Union from showing it in such a proceeding.

The Board's application of its Union Mfg. Co. doctrine violates no clear, specific, and mandatory provision of the Act and therefore does not give the District Court jurisdiction of this suit. The Act does not say the Board must hear evidence of employer instigation. Congress intended the Board to establish, in its discretion, criteria for determining whether a question of representation exists. *fn4 We could not review the Board's determination that employer instigation of a petition is relevant to the existence of a question of representation, and neither can we review the Board's determination that such instigation must be established in an unfair labor practice proceeding. "What factors the Board considered and what weight it accorded to them are questions which may only be raised in a judicial review proceeding under § 10." Internat'l Ass'n of Tool Craftsmen v. Leedom, 107 U.S. App. D.C. 268, 270, 276 F.2d 514, 516 (1960). *fn5

Congressional use of the term "appropriate hearing" shows that "great latitude concerning procedural details is contemplated." Inland Empire Dist. Council Lumber & Sawmill Workers Union v. Millis, 325 U.S. 697, 706, 89 L. Ed. 1877, 65 S. Ct. 1316, rehearing denied, 326 U.S. 803, 90 L. Ed. 489, 66 S. Ct. 11 (1945). If representation hearings could be reviewed in the District Court to determine whether they were "appropriate," most representation proceedings could be reviewed. This would violate the express intention of Congress to restrict review so as to prevent dilatory tactics and delay in certification. *fn6

Section 9(c)(1) of the Act requires findings "upon the record," and the Union says the Board's finding that the employer did not instigate the petition was based on facts the Regional Director had found in investigating the Union's unfair labor practice charges. But the Board merely excluded certain evidence and based its finding on the record so limited. It violated no clear and mandatory provision of the Act.

(2) The District Court has jurisdiction to review action of the Board which can be shown to have violated the Constitution. *fn7 The Union says the Board's refusal, in the decertification hearing, to admit evidence of employer instigation deprived the Union of due process. But concerning an alleged deprivation of property rights, "no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective." Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598, 94 L. Ed. 1088, 70 S. Ct. 870 (1950). A decertification order would not become "effective" until unfair labor practice proceedings in which decertification was relevant were brought. Decertification is only a declaration by the Board that the union no longer represents a majority of the employees. A decertified union is not subject to governmental sanctions until it is found to have committed an unfair labor practice. Since unfair labor practice charges under § 8(b)(7) *fn8 depend on the existence of "a valid election", and since a decertification election is not valid if the employer ...


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