Cox v. McCulloch

Decision Date24 January 1963
Docket NumberNo. 16868.,16868.
Citation315 F.2d 48
PartiesJack T. COX, Individually and as an Officer, Member and Representative of Orange Belt District Council of Painters No. 48, an Unincorporated Association; Orange Belt District Council of Painters No. 48, an Unincorporated Association, Appellants, v. Frank W. McCULLOCH, Boyd Leedom, Philip Ray Rogers, John H. Fanning, Gerald A. Brown, as Members of the National Labor Relations Board, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Herbert M. Ansell, Los Angeles. Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. Herbert S. Thatcher, Washington, D. C., was on the brief, for appellants. Mr. James F. Carroll, Washington, D. C., also entered an appearance for appellants.

Mr. James C. Paras, Attorney, National Labor Relations Board, with whom Messrs. Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for appellees.

Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge.

Appellant seeks to enjoin certification1 of District 50, United Mine Workers, winner in a representation contest with appellant and a third union, as bargaining representative of the employees of Calhoun Drywall Company. In the election District 50 received five votes, the third union received three votes, and appellant received none. The basis for this challenge is that District 50 is not a "labor organization" as defined in Section 2(5)2 of the Act because its members do not participate in the election of its officers. The record before the Board indicates that the officers of District 50 are simply appointed by the national headquarters of the United Mine Workers, there having been no election in at least eight years.

Appellant claims that election of officers is the bare minimum "participation" required and that, therefore, certification of District 50 is in "plain contravention" of a statutory requirement, vesting jurisdiction in the District Court under 28 U.S.C. § 1337. See Leedom v. Kyne, 101 U.S.App.D.C. 398, 249 F.2d 490 (1957), affirmed, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).3 The Board asserts that admission of employees to membership satisfies the statutory requirement of "participation."

This case raises the important question of the responsibility of the Board with respect to the internal affairs of unions.4 Since an unsuccessful union in a certification proceeding before the Board has no adequate remedy by review,5 and it appearing that certification of an organization as bargaining agent which is not a "labor organization" would be in direct contravention of the Act, the jurisdiction of the District Court in a Leedom v. Kyne type of action should be determined. Unfortunately, this case does not provide the proper vehicle since the issue was presented to the Board only three days before the election in a motion for rehearing. The Board denied the motion without opinion. Consequently, we are unaware of the basis of the Board action. Since appellant here failed properly to raise this issue before the Board, his independent suit in the District Court lacks equity. We therefore decline to exercise jurisdiction for this reason.6

Affirmed.

WASHINGTON, Circuit Judge, concurs in the result.

1 49 Stat. 453 as amended, 29 U.S.C. § 159.

2 Section 2(5) reads: "The term `labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 49 Stat. 450 as amended, 29 U.S.C. § 152(5). (Emphasis added.)

To continue reading

Request your trial
7 cases
  • Physicians Nat. House Staff Ass'n v. Fanning
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 23, 1981
    ...Airline & Steamship Clerks, supra note 17, 402 F.2d at 205; and (2) available avenues to challenge the Board decision, Cox v. McCulloch, 315 F.2d 48, 50 (D.C. Cir. 1963). See Note, supra note 6, 8 Buff. L. Rev. at 383 ("inadequacy of review" plus "factor of illegality").20 L. Jaffe, Judicia......
  • Schwarz Partners Packaging, LLC v. Nat'l Labor Relations Bd.
    • United States
    • U.S. District Court — District of Columbia
    • January 28, 2014
    ...“an unsuccessful union in a certification proceeding before the [NLRB] has no adequate remedy by review.” Id. (quoting Cox v. McCulloch, 315 F.2d 48, 50 (D.C.Cir.1963). At the same time, due to the statutory constraints on judicial review, including a bar on judicial review of NLRB represen......
  • Schwarz Partners Packaging, LLC v. Nat'l Labor Relations Bd.
    • United States
    • U.S. District Court — District of Columbia
    • January 28, 2014
    ...“an unsuccessful union in a certification proceeding before the [NLRB] has no adequate remedy by review.” Id. (quoting Cox v. McCulloch, 315 F.2d 48, 50 (D.C.Cir.1963). At the same time, due to the statutory constraints on judicial review, including a bar on judicial review of NLRB represen......
  • Schwarz Partners Packaging, LLC v. Nat'l Labor Relations Bd.
    • United States
    • U.S. District Court — District of Columbia
    • January 28, 2014
    ..."an unsuccessful union in a certification proceeding before the [NLRB] has no adequate remedy by review." Id. (quoting Cox v. McCulloch, 315 F.2d 48, 50 (D.C. Cir. 1963). At the same time, due to the statutory constraints on judicial review, including a bar on judicial review of NLRB repres......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT