284 F.2d 619 (9th Cir. 1960), 16843, Department and Specialty Store Emp. Union, Local 1265, R.C.I.A. AFL-CIO v. Brown

Docket Nº:16843.
Citation:284 F.2d 619
Party Name:DEPARTMENT & SPECIALTY STORE EMPLOYEES' UNION, LOCAL 1265, R.C.I.A. AFL-CIO, Appellant, v. Gerald A. BROWN, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellee.
Case Date:November 15, 1960
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 619

284 F.2d 619 (9th Cir. 1960)



Gerald A. BROWN, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellee.

No. 16843.

United States Court of Appeals, Ninth Circuit.

November 15, 1960

As Amended Jan. 13, 1961.

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Carroll, Davis, Burdick & McDonough, Roland C. Davis, San Francisco, Cal., S. G. Lippman, D.C., for appellant.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Asst. Gen. Counsel, James C. Paras, Atty., N.L.R.B., Washington, D.C., for appellee.

Before MERRILL and KOELSCH, Circuit Judges, and KILKENNY, District judge.

KILKENNY, District Judge.

Appeal from an order of the United States District Court for the Northern District of California, Southern Division, dismissing appellant's complaint asking for an injunction against the representation election directed by appellee Regional Director of the National Labor Relations Board 1 pursuant to the provisions of § 8(b)(7)(C) of the National Labor

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Relations Act, 2 as amended, (73 Stat. 544, 29 U.S.C.A. § 158(b)(7)(C)). The following facts appear in the complaint:

On February 4, 1960, appellant union directed a letter to G. R. Kinney Co., Inc. 3 which operates a retail shoe store in Oakland, California, which letter 4 stated that appellant 'intends to engage in an advertising campaign to inform the public that your store does not operate under fair union conditions' and that appellant did 'not claim at this time to represent a majority of the employees of your store' and that it was not appellant's intention 'to secure a union contract * * * until and unless a majority of your employees at your store voluntarily without any coercion of any kind, designate the union as their collective bargaining representative.' The next day appellant caused a picket line to be formed in front of the Kinney store, the pickets carrying signs reading, 'This store does not operate under AFL-CIO union conditions. Please do not patronize, Department & Specialty Store Employees' Union, Local 1265.' Certain leaflets 5 were distributed by the pickets to passersby which stated, inter alia, 'the employees of this store do not enjoy union wages, hours and other working conditions' and that, 'your patronage breaks down * * * fair wages and working conditions which prevail in union stores and threatens the jobs of our members of those stores.'

A copy of each of these documents was attached to and made part of the appellant's complaint. On February 17, 1960 Kinney filed with appellee an unfair labor practice charge 6 alleging that the Union was picketing its store in violation of § 8(b)(7) of the Act, and a representation

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petition 7 asking that an election be conducted to determine whether the employees of Kinney wished to be represented by the Union. This charge asserted that the picketing and advertising had as an object forcing or requiring the employer to recognize or bargain with appellant and/or forcing or requiring the employees of the employer to accept or select appellant as their collective bargaining representative.

The Regional Director investigated the charges. Upon the basis of this investigation he concluded that the picketing was for objects condemned by § 8(b) (7) and within the meaning of subparagraph (C); that the representation petition had been filed within a reasonable period of time from the commencement of the picketing and that the picketing raised no questions which should be decided by the Board before the election. Thereupon, the Regional Director concluded that an expedited election was indicated under the first proviso to the said subparagraph (C). After arriving at this conclusion and on March 10, 1960, the Director issued a notice of election to be held on March 14th and at the same time advised the parties that no complaints would be issued on the charge 8 of unfair labor practice. Appellant then demanded that the Director hold a hearing before the election to afford it an opportunity to produce evidence that no question concerning representation existed and that the picketing was not within the ban of § 8(b)(7). This demand was denied. Appellant then applied to the Board, on the same grounds, to stay the election. This application was denied on March 11th. The complaint charges the appellee with failing to give appellant a reasonable notice of the said election, of failing to afford the appellant a full and fair hearing, of failing to give appellant an opportunity to present evidence and cross-examine witnesses, and with utilizing a procedure contrary to law and abusing his authority by acting in an arbitrary and capricious manner to deprive appellant of due process and in derogation of its Constitutional right to exercise free speech. Likewise, it is alleged that appellant never demanded recognition from Kinney or demanded that said company execute or enter into a collective bargaining agreement and at no time sought to represent or require the employees of the company to designate the appellant as their collective bargaining representative.

On the day the Board denied appellant's application, appellant instituted this suit in the District Court to enjoin the Regional Director from proceeding with the scheduled election. The Regional Director moved to dismiss the claim on the grounds that, (1) the Court was without jurisdiction over the subject matter; (2) the holding of the election would not result in such injury as warrants the granting of injunctive relief; and (3) the complaint failed to state a cause of action. The District Court allowed appellee's motion and dismissed the complaint. At the same time it denied appellant's motion for a preliminary injunction.

Each of the parties has urged on the Court a number of acts which occurred subsequent to the filing of the complaint. We deem those acts of no significance in arriving at a proper decision in this case. For example, the fact that the election was conducted among Kinney's employees on April 18, 1960 in order to determine if they wanted to be represented by the appellant. The employees unanimously voted against such representation. On a motion to dismiss, the consideration of the Court is limited to matters appearing on the face of the proceedings. Sears, Roebuck & Co. v. Metropolitan Engravers, 9 Cir., 1956, 245 F.2d 67; Grand Opera Co. v. Twentieth Century-Fox Film Corporation, 7 Cir., 1956, 235 F.2d 303; Emmons v. Smitt, 6 Cir., 1945, 149 F.2d 869, certiorari denied 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446.

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Under ordinary circumstances, the decisions of the National Labor Relations Board in representation proceedings are reviewable only in the Courts of Appeal. The District Courts have no jurisdiction unless there is a showing of unlawful action by the Board and resulting injury, by departure from statutory requirements or those of due process. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; Leedom v. I.B.E.W., 1960, 107 U.S.App.D.C. 357, 278 F.2d 237; National Biscuit Division v. Leedom, 1959, 105 U.S.App.D.C. 117, 265 F.2d 101, certiorari denied 359 U.S. 1011, 79 S.Ct. 1151, 3 L.Ed.2d 1037; Leedom v. Norwich, Connecticut Printing Specialties Union, 1960, 107 U.S.App.D.C. 170, 275 F.2d 628; International Association of Tool Craftsmen v. Leedom, 1960, 107 U.S.App.D.C. 268, 276 F.2d 514. Equitable relief is clearly barred in the wide area of decision which depends on the Board's discretion and expertise. Leedom v. Kyne, 1957, 101 U.S.App.D.C. 398, 249 F.2d 490.

The finding by the agency of probable cause is merely a statutory prerequisite to proceeding with the representation election. No hearing at the preliminary stage is required by due process as long as the required hearing is held before the final administrative order becomes effective. Ewing v. Mytinger, 339 U.S. 594, 598, 70 S.Ct. 870, 94 L.Ed. 1088.

Appellant seeks to bring itself within the exceptions to the general rule and argues that the Board departed from statutory requirements and those of due process, including freedom of speech, when it made an ex parte decision on the object of the picketing and ordered a representative election without affording the appellant an opportunity for hearing. It urges that § 8(b)(7)(C), 9(c), 10(c) and 10(l) of the Labor-Management Relations Act of 1947, as amended, (29 U.S.C.A. § 158, 159, 160) should be construed together and that the Board should have followed the procedure outlined in § 10. That part of § 8 (b)(7)(C) with which we are concerned makes it an unfair labor practice for a labor organization or its agents:

'* * * to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

'(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act.

'(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or

'(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith,...

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