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SEMI-ALLOYS, INC. v. MORIO

June 2, 1980

SEMI-ALLOYS, INC., Plaintiff,
v.
WINIFRED D. MORIO, as Regional Directer, NATIONAL LABOR RELATIONS BOARD, Defendant.



The opinion of the court was delivered by: POLLACK

MEMORANDUM

Plaintiff Semi-Alloys, Inc., moves for a temporary restraining order and preliminary injunction to prevent defendant Morio, a Regional Director of the National Labor Relations Board, from proceeding with a hearing scheduled to take place on June 9, 1980. Defendant scheduled the hearing for the dual purpose of determining whether plaintiff committed certain unfair labor practices during the course of a representation drive by the International Brotherhood of Electrical Workers (the Union), and whether the results of the disputed representation election should be certified. Defendant had previously certified the results of this election, but, as detailed below, revoked this certification on the basis of subsequently discovered evidence presented to her by the Union.

 The gist of plaintiff's position is that defendant's revocation of the above-mentioned certification without first holding a hearing deprived plaintiff of its "property rights" in the certification without due process of law. Plaintiff is thus in the self-defeating posture of seeking to enjoin defendant from holding the hearing of which plaintiff claims to have been deprived.

 Defendant has moved to dismiss the complaint, or, in the alternative, for summary judgment, on the ground that this Court lacks jurisdiction.

 For the reasons given hereafter, plaintiff's motion for a temporary restraining order and preliminary injunction will be denied, and defendant's motion for summary judgment will be granted.

 The proceedings to date

 The representation election from which this action arises was held on January 10, 1979. A tally of the ballots revealed that a majority of the eligible employees voted not to be represented by the Union.

 The Union attacked the results of the election on two fronts, filing on January 15, 1979 eight objections to alleged abuses of the election process by Semi-Alloys, and subsequently filing on February 5, 1979 an unfair labor practice charge against the Company. The unfair labor practice charge duplicated two of the objections to the election result in alleging that the Company coercively interrogated employees about and discharged employees because of their union activities.

 After investigating the unfair labor practice charges, the Regional Director, in letters dated April 30, 1979 and August 16, 1979 declined to issue a complaint and dismissed the charges. The Union's appeal of this dismissal to the General Counsel was denied on September 11, 1979. Meanwhile, on June 13, 1979, the Regional Director overruled the Union's election objections and on July 31, 1979 certified the election results.

 On January 23, 1980 the Union filed a motion to reopen the unfair labor practice charge on the basis of newly discovered evidence supporting its allegations. After investigating this evidence (but before inviting any response from plaintiff), the Regional Director revoked the prior dismissals of the charges, and on February 28, 1980 issued a complaint alleging that Semi-Alloys had engaged in unlawful polygraph interrogation of employees, and had discharged ten employees because of their union activities.

 On March 14, 1980, the Regional Director issued a further Order revoking her prior certification of the representation election results, pending a hearing on the unfair labor practice charges. The Order stated that whereas the unfair labor practice charges substantially duplicated two of the Union's election objections, which had been overruled in part because the corresponding unfair labor practice charges had been dismissed, the matters should be consolidated for a hearing, and the certification should be revoked pending that hearing. The Order also noted that "any party may request from the Board special permission to appeal this direction of a hearing in the instant representation (m)atter."

 The Company did not seek special permission to appeal the Regional Director's Order, but instead filed the complaint in this action on March 24, 1980, alleging that defendant exceeded her legal authority and violated plaintiff's due process rights by revoking the certification of the election results without first holding a hearing.

 This Court lacks jurisdiction

┬áSection 10(f) of the Labor-Management Relations Act, 29 U.S.C. ┬ž ...


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