Leedom v. Norwich, Conn. Print. Special. & PP Union

• Citation: 275 F.2d 628,107 US App. DC 170
• Decision Date: 18 February 1960
• Docket Number: No. 15381.,15381.
• Parties: Boyd S. LEEDOM, et al., Individually and as Chairman and Members of and constituting the National Labor Relations Board, Appellants v. NORWICH, CONNECTICUT PRINTING SPECIALTIES AND PAPER PRODUCTS UNION, LOCAL NO. 494, and International Printing Pressmen and Assistants' Union of North America, AFLCIO, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

107 US App. DC 170, 275 F.2d 628 (1960)

Boyd S. LEEDOM, et al., Individually and as Chairman and Members of and constituting the National Labor Relations Board, Appellants v. NORWICH, CONNECTICUT PRINTING SPECIALTIES AND PAPER PRODUCTS UNION, LOCAL NO. 494, and International Printing Pressmen and Assistants' Union of North America, AFLCIO, Appellees.

No. 15381.

United States Court of Appeals District of Columbia Circuit.

Argued January 4, 1960.

Decided February 18, 1960.

Mr. Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B., with whom Messrs. Thomas J. McDermott, Associate Gen. Counsel, N. L. R. B., and Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., were on the brief, for appellants.

Mr. Warren Woods, Washington, D. C., for appellees.

Mr. Edward G. Villalon, Washington, D. C., also entered an appearance for appellees.

Before FAHY, BASTIAN and BURGER, Circuit Judges.

FAHY, Circuit Judge.

The members of the National Labor Relations Board, to whom we shall refer as the Board, appeal from an order of the District Court granting a preliminary injunction against the Board in an action by two labor organizations, one the Norwich, Connecticut Printing Specialties and Paper Products Union, Local No. 494, referred to as Local 494, and the other the International Printing Pressmen and Assistants' Union of North America, AFL-CIO, referred to as the International. The appeal is also from denial by the court of the Board's motion to dismiss the complaint.

The court enjoined an election directed by the Board to be held in a bargaining unit composed, with certain immaterial exceptions, of the production and maintenance employees of a paper box plant of the Employer, Robertson Paper Box Company, at Montville, Connecticut.¹ The basis for the injunction was the claim of Local 494 and of the International that the Employer's craft employees, to wit, its printing pressmen, cutting and creasing pressmen, apprentices, helpers and related employees consisting of die makers, ink makers and plateroom employees, were an appropriate unit entitled to an election in a unit limited to such craft grouping, to the end of being able to vote for or against separate representation on a craft basis, said to be required by Section 9(b) (2) of the Labor-Management Relations Act, 61 Stat. 136 (1947), 29 U.S.C. §§ 141-168 (1958), 29 U.S.C.A. §§ 141-168.

Our question is not whether on the one hand the unit sought by Local 494 and the International, or, on the other hand, the unit fixed by the Board, is the appropriate bargaining unit, but whether the Board in reaching its decision as to the unit disregarded any statutory limitation upon the discretion vested in the Board by section 9(b) of the Act; that is, whether the craft employees were denied a statutory right.² If the latter, the District Court, under the authority of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, affirming 101 U.S.App.D.C. 398, 249 F. 2d 490, should be upheld in granting the preliminary injunction and in not dismissing the complaint. If the Board merely exercised the discretion available to it, however,³ the District Court was without jurisdiction and erred in enjoining the election. Review of the appropriateness of the unit in that event could be had only in a proceeding in a United States Court of Appeals under section 10(e) or 10(f) of the Act.⁴ National Biscuit Div. v. Leedom, 105 U.S.App.D.C. 117, 119, 265 F.2d 101, 103, certiorari denied 359 U.S. 1011, 79 S.Ct. 1151, 3 L. Ed.2d 1037.

Appellees claim the Board violated the proviso in section 9(b) (2), supra note 3, which prohibits the Board from deciding that a craft unit is inappropriate "on the ground that a different unit has been established by a prior Board determination * * *." We are not able to sustain this contention.

In its original Decision and Direction of Election, supporting a statement in the text of the Decision that the production and maintenance employees at the plant, with certain exclusions, were an appropriate unit, the Board in a footnote stated, as set forth more fully in the margin,⁵ that the Pressmen (the International) had represented this overall unit since 1945 and had also negotiated for a new contract on that basis until the instant petition was filed, though the Pressmen now contended for both a craft unit and also a separate other unit composed of the production and maintenance employees other than the craftsmen. Even could this reference to prior history properly be construed as basing the decision on the ground that a different unit had been established by a prior Board decision, violating the restraint imposed on the Board by section 9(b) (2), we think the Supplemental Decision and Second Direction of Election, the one enjoined, cured any such possible violation of that section. The Supplemental Decision and Second Direction of Election called for an election on a plantwide basis, that is, in the same unit as previously. But it relied for the unit determination on evidence, introduced by the Employer at a reopened hearing, to the effect that Local 494, as distinguished from the usual "Printing Pressmen" locals of the International, was not a craft union and had not traditionally organized or represented employees on a craft basis. The Board detailed to a considerable extent the evidence to this effect, including a reference in the International's constitution to "printing specialty and paper products workers covered on an industrial...