Bishop v. N.L.R.B.

• Decision Date: 16 October 1974
• Docket Number: M,No. 73-3169,AFL-CI,73-3169
• Citation: 502 F.2d 1024
• Parties: 87 L.R.R.M. (BNA) 2524, 75 Lab.Cas. P 10,403 Michael BISHOP et al., etc., Plaintiffs-Appellees, v. The NATIONAL LABOR RELATIONS BOARD, Defendant, Allied Food Workers District Union 433, Amalgamated Meat Cutters & Butcher Workmen of North America,ovant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1024

502 F.2d 1024

87 L.R.R.M. (BNA) 2524, 75 Lab.Cas. P 10,403

Michael BISHOP et al., etc., Plaintiffs-Appellees, v. The NATIONAL LABOR RELATIONS BOARD, Defendant, Allied Food Workers District Union 433, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Movant-Appellant.

No. 73-3169.

United States Court of Appeals, Fifth Circuit.

Oct. 16, 1974.

Albert Gore, Judith A. Lonnquist, Linda R. Hirshman, Chicago, Ill., for movant-appellant.

Robert C. Gobelman, Stephen E. Day, Jacksonville, Fla., for plaintiffs-appellees.

Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Glen M. Bendixsen, Chief of Sp. Litigation, Washington, D.C. Jonathan Axelrod, Reg. Atty., Region 12, Joseph V. Moran, N.L.R.B., Tampa, Fla., for other interested parties.

Before GOLDBERG and MORGAN, Circuit Judges, and CASSIBRY, District judge.

GOLDBERG, Circuit Judge:

The parties in this case came to court prepared to argue the mysteries of permissive intervention and intervention of right as set in Rule 24 of the Federal Rules of Civil Procedure. During oral argument, however, it developed that the parties were not in a state of certitude as to whether the district court had jurisdiction of the case in which appellants were attempting to intervene. After reading the supplemental briefs submitted by the parties at our request and considering the matter further, we are convinced that the district court had no jurisdiction over the subject matter of the action in which the Rule 24 question arose.

On May 5, 1966, the National Labor Relations Board (NLRB or the Board) certified Allied Food Workers District Union 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (the Union) as the exclusive bargaining agent for a specified group of employees at the Jacksonville, Florida, warehouse of Winn-Dixie Stores, Inc. The Union was recertified as bargaining representative on July 31, 1969, after winning a decertification election.

On November 21, 1969, the Union filed charges with the Regional Office of the NLRB, alleging that Winn-Dixie had committed a number of unfair labor practices, including refusal to bargain with the Union in good faith. ¹ When the Regional Director dismissed some of the charges and retained the remaining charges pending further action, the Union filed an appeal that the Board's General Counsel sustained in part and denied in part on June 1, 1972. The Regional Director then proposed that Winn-Dixie and the Union agree to an informal settlement of the unfair labor practice charges but the parties could not reach an agreement in the matter. As the Board's investigation was progressing, Winn-Dixie allegedly committed other unfair labor practices and these new charges were investigated in their turn.

While the unfair labor practice proceedings were glaciating their course through the NLRB machinery, Robert E. Schell, a Winn-Dixie employee, filed a petition with the NLRB on April 7, 1972, to decertify the Union. The Regional Director deferred processing the petition until the General Counsel acted upon the Union's appeal on the unfair labor practices charges. He then dismissed Schell's petition on September 20, 1972, on the ground that the General Counsel had determined that the Union's charges had merit, and that this determination blocked any election until the resolution of the charges. The very next day, seven Winn-Dixie employees (plaintiffs) filed suit in federal district court to compel the NLRB to process the decertification petition; at about the same time, plaintiffs appealed the Regional Director's action to the Board.

On January 31, 1973, the Union moved to intervene in plaintiffs' action against the Board and in March, 1973, the Union itself sued the Board in federal district court to compel the NLRB to issue an unfair labor practices complaint against Winn-Dixie. On May 9, 1973, the district court denied the Union's motion to intervene in plaintiffs' action, from which order the Union now appeals.

When the General Counsel finally issued an unfair labor practice complaint against Winn-Dixie on October 30, 1973, charging it with a wide range of misconduct, including refusal to bargain, the Union's action against the NLRB was dismissed as moot. On January 18, 1974, the NLRB sustained the dismissal by the Regional Director of the decertification petition. In February, 1974, the Board moved to dismiss plaintiffs' action for lack of jurisdiction or, in the alternative, for summary judgment; the district court denied these motions.

In summary, this labor dispute is almost five years old. As things now stand, the plaintiffs are in district court trying to compel the NLRB to process their decertification petition. The Union is attempting to intervene in plaintiffs' lawsuit and is very interested in the fate of its unfair labor practices charges against Winn-Dixie. The Board's General Counsel is proceeding through Board channels on his unfair labor practices complaint, while the NLRB is defending its dismissal of the decertification petition in district court. If the apothegm that justice delayed is justice denied is applicable to labor disputes, then this bout of administrative and judicial sparring cannot have a very salutary conclusion-- the referee and judges coming to no decision after many rounds.

I.

Plaintiffs allege that federal jurisdiction over the subject matter of this complaint is furnished by 28 U.S.C. 1337, as applied to labor disputes by the United States Supreme Court in Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, and by this Court in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, and Surratt v. N.L.R.B., 5 Cir. 1972, 463 F.2d 378. ² We believe that the carefully circumscribed jurisdiction asserted in those cases is very far from reaching this case and that the district court should have dismissed plaintiffs' action for lack of jurisdiction over the subject matter.

Generally, NLRB decisions in representation cases are not directly reviewable by the federal courts. Congress has provided in section 10(f) ³ of the National Labor Relations Act (the Act) ⁴ that only a 'final order' of the Board is subject to review by a court of appeals, and the United States Supreme Court has determined that a Board order in a certification proceeding is not such an order. American Federation of Labor v. N.L.R.B., 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. Consequently, orders concerning representation matters are reviewable only as they are drawn into question by a petition for enforcement or review of a Board order made under section 10(c) of the Act to restrain an unfair labor practice. 29 U.S.C. 159(e) and (f); Magnesium Casting Co. v. N.L.R.B., 1971, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735; Boire v. Greyhound Corp., 1964, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849. ⁵

Nowhere in the statutory scheme does Congress mention district court review of NLRB orders in representation cases, and there is a reason for that profound silence. The underlying purpose of the Act is to maintain industrial peace, Brooks v. N.L.R.B., 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125, and to allow employers and unions to rush into federal district court at will to prevent or nullify certification elections would encourage dilatory tactics by dissatisfied parties and lead to industrial unrest. See H.R.Rep.No.245, 80th Cong., 1st Sess. 43; H.R.Rep.No.510, 80th Cong., 1st Sess. 56-57. Such a rule would not only cause the federal courts to set the dockets of the NLRB, but time-consuming review in such cases would strike a blow at the foundations of our finely-tuned system of collective bargaining. For these reasons, Congress has determined that the NLRB, and not the courts, is to be the umpire in representation disputes. National Ass'n of Women's & Children's Apparel Salesmen, Inc. v. F.T.C., 5 Cir. 1973, 479 F.2d 139. See H.R.Rep.No.972, 74th Cong., 1st Sess. 5-6; S.Rep.No.573, 74th Cong., 1st Sess. 5-6; Leedom v. Kyne, supra, 358 U.S. at 191-194, 79 S.Ct. at 79-80, 3 L.Ed.2d at 216-218 (Brennan, J., dissenting).

It is not surprising, therefore, that federal courts have assumed jurisdiction in representation matters in only three highly-circumscribed situations. One exceptional set of circumstances is presented where the lawsuit presents 'public questions particularly high in the scale of our national interest because of their international complexion.' McCulloch v. Sociedad Nacional de Marineros de Honduras, 1963, 372 U.S. 10, 17, 83 S.Ct. 671, 675, 9 L.Ed.2d 547, 552. Some courts have found another exception to the rule in rate cases where the NLRB has violated the constitutional rights of the complaining party. Milk & Ice Cream Drivers' Union, Local 98 v. McCulloch, 1962, 113 U.S.App.D.C. 156, 306 F.2d 763; Fay v. Douds, 2 Cir. 1949, 172 F.2d 720. The third exception is that of Leedom v. Kyne, 1958,358 U.S 184, 79 S.Ct. 180, 3 L.Ed.2d 210, where the United States Supreme Court set aside a Board election and certification where the NLRB had clearly acted 'in excess of its delegated powers and contrary to a specific prohibition in the Act.' 358 U.S. at 188, 79 S.Ct. at 184, 3 L.Ed.2d at 214. This last exception has generally been limited to the very narrow situation where there is a 'plain' violation of an unambiguous and mandatory provision of the statute, Boire v. Miami Herald Publishing Co., 5 Cir. 1965,343 F.2d 17. See generally Groendyke Transport, Inc. v. Davis, 5 Cir. 1969,406 F.2d 1158. It is this last exception that plaintiffs have relied upon in the instant case.

II.

Plaintiffs claim that the Board's administrative dismissal of their decertification petition pursuant to its 'blocking charge' rule violated section 9(c)(1) of the Act, which provides in pertinent part that:

Whenever a petition shall have been filed . . . by an employee or group of employees . . . alleging that a substantial number of employees . . . assert that...