Blanco v. NLRB

• Decision Date: 30 July 1986
• Docket Number: Civ. A. No. 85-4016.
• Citation: 641 F. Supp. 415
• Parties: Jose A. BLANCO, Plaintiff, v. The NATIONAL LABOR RELATIONS BOARD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

641 F. Supp. 415

Jose A. BLANCO, Plaintiff, v. The NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Civ. A. No. 85-4016.

United States District Court, District of Columbia.

July 30, 1986.

Michael Ernest Avakian, Edward F. Hughes, North Springfield, Va., for plaintiff.

Aileen Armstrong, N.L.R.B., Washington, D.C., for defendants.

OPINION

JUNE L. GREEN, District Judge.

Plaintiff brings this action for injunctive relief and mandamus pursuant to 28 U.S.C. §§ 1331, 1337, 1361. Plaintiff seeks an order by the Court directing the National Labor Relations Board ("NLRB" or "Board") to investigate his decertification petition which the Board held in abeyance pending the resolution of unfair labor practice charges. Defendants have moved to dismiss the complaint, and plaintiff has opposed defendants' motion by filing for summary judgment. For the reasons set forth below, the Court grants defendants' motion to dismiss.

Statement of Facts¹

Plaintiff, Jose A. Blanco, is an employee of Marriott In-Flite Services, Inc. ("In-Flite") and is represented for purposes of collective bargaining by the International Association of Machinists and Aerospace Workers, AFL-CIO, Local 1894 ("union"). Plaintiff is not a member of the union.

In-Flite is a division of Marriott Corporation and is engaged in airline catering at John F. Kennedy International Airport where plaintiff is employed. The union has acted as the exclusive bargaining representative of In-Flite employees since its certification by the NLRB in September 1978. Since April 1, 1984, the union and In-Flite have been parties to successive collective bargaining agreements, including agreements effective from April 1, 1984, to March 31, 1985, and from April 1, 1985, to March 31, 1988.

On December 31, 1985, the union filed unfair labor practice charges against In-Flite with the NLRB. Board Case No. 29-CA-11602. The charges alleged, in essence, that In-Flite violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), by interrogating employees concerning their relationships with the union; by soliciting and encouraging employees to withdraw their membership in and support of the union; by promising employees job promotions and other benefits in their working conditions to induce the employees to refrain from becoming or remaining members of the union; by directing employees to remove their union insignia; and by threatening employees with discharge and other reprisals if they became or remained members of the union or supported it in any fashion. Exhibit D, attached to Complaint. Following an investigation of these allegations, the Board's Regional Director for Region 29 issued a complaint on the union's charges on February 28, 1985.

In the meantime, on January 23, 1985, plaintiff submitted to Region 29 of the NLRB a petition seeking the decertification of the union. The petition was supported by more than 30 percent of the employees in plaintiff's bargaining unit as required by Board regulation. See 29 C.F.R. § 101.18.

On March 6, 1985, NLRB Regional Director Samuel Kaynard informed plaintiff that his decertification petition was being dismissed. Mr. Kaynard indicated that he based his decision upon the belief that plaintiff was a supervisor within the meaning of section 2(11) of the Act. Plaintiff filed a request for review of the dismissal of his petition. On May 14, 1985, the Board remanded the case to the Regional Director for a hearing on plaintiff's supervisory status and ordered the petition reinstated. Pursuant to the Board's order a hearing on the supervisory issue was conducted from June 12 to June 20, 1985.

Subsequently, on September 13, 1985, the Regional Director issued an amended unfair labor practice complaint based upon new evidence. The amended complaint realleged the unfair labor practices set forth above and added allegations that In-Flite management personnel had initiated and supported the circulation and execution of plaintiff's decertification petition. Exhibit F, attached to Complaint.

On September 19, 1985, the Regional Director notified the parties by letter of his decision to invoke the "blocking charge rule"—that is, to hold the decertification petition in abeyance in view of the pending unfair labor practice complaint.² In addition, the Regional Director indicated that the Board was considering the possibility of initiating contempt proceedings against In-Flite since the unfair labor practices alleged constituted conduct prohibited by an outstanding court decree. See NLRB v. Marriott In-Flite Services, 113 LRRM 3528 (2d Cir.1983), cert. denied, 114 LRRM 2568 (1983).

Plaintiff appealed the Regional Director's decision to the full Board on October 16, 1985, but on October 31, 1985, the Board affirmed. On November 27, 1985, the Board denied plaintiff's motion for reconsideration en banc. Plaintiff seeks a Court order instructing the Board to vacate its determination to hold the decertification petition in abeyance, to investigate the petition to determine whether a question of representation exists, and to conduct a decertification election if a question concerning representation is found to exist.

Conclusions of Law

The Court and both parties agree that, as a general rule, federal district courts are without jurisdiction to review Board orders emanating from representation proceedings. Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1310 (D.C.Cir. 1984). This is because representation proceedings under the Act are not adversary in nature and are not considered to result in the issuance of a judicially reviewable final order. American Federation of Labor v. NLRB, 308 U.S. 401, 411, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). Such rulings are reviewable under sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e), (f), if and when they form the basis of a subsequent unfair labor practice proceeding. Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964).

A. Leedom v. Kyne Doctrine Does Not Apply

Plaintiff asserts that the doctrine announced by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), establishes district court jurisdiction. In Leedom v. Kyne, the Court carved out a very narrow exception to the general rule that the district court is without jurisdiction to review Board orders issued in connection with representation proceedings. In the case where the Board acts in a manner that contravenes an express statutory prohibition and the aggrieved party has no alternative way of securing relief, a district court is vested with the authority to review the Board's determination. Id. at 188-90, 79 S.Ct. at 183-84. As numerous judicial opinions have emphasized, the Leedom v. Kyne doctrine may be invoked only in extraordinary circumstances.

To say that there are possible infirmities in an action taken by the Board by reason of an erroneous or arbitrary exercise of its authority in respect of the facts before it is not to conclude that there is jurisdiction in the District Court to intervene by injunction. For such jurisdiction to exist, the Board must have stepped so plainly beyond the bounds of the Act, or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court even before the Board's own processes have run their course.

Local 130, International Union of Electrical, Radio & Machine Workers v. McCulloch, 345 F.2d 90, 95 (D.C.Cir.1965); accord Boire v. Greyhound Corp., 376 U.S. at 481, 84 S.Ct. at 898. Hartz Mountain Corp. v. Dotson, 727 F.2d 1311-12.

Plaintiff argues that the Board's decision to hold plaintiff's decertification petition in abeyance violated the "clear and mandatory" language of section 9(c)(1) of the Act, 29 U.S.C. § 159(c)(1). That section provides, in pertinent part:

Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

* * * * * *

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice.

To emphasize the significance of section 9(c)(1), plaintiff reminds the Court of the right of employees "to bargain collectively through representatives of their own choosing" and the corresponding right "to refrain from any or all such activities." 29 U.S.C. § 157.

Ever conscious of the important employee rights at stake here, the Court declines to read section 9(c)(1) in such a mandatory tone. "Section 9(c) hearings and investigations are particularly within the Board's discretion; the nature and scope of those proceedings were intentionally not specified in the Act but were to be developed in light of the Board's experience and expertise." Newport News Shipbuilding & Dry Dock v. NLRB, 633 F.2d 1079, 1081 (4th Cir.1980); see also Lawrence Typographical Union v. McCulloch, 349 F.2d 704, 707 (D.C.Cir.1965) (District court review of representation proceedings would violate express intention of Congress.)

Plaintiff relies primarily on two Fifth Circuit cases to support his position that the Board's use of the blocking charge rule was arbitrary and in violation of section 9(c)(1). Suratt v. NLRB, 463 F.2d 378 (5th Cir.1972); Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir.1971). Suratt and Templeton both involved the automatic dismissal of decertification petitions because the union had filed "blocking charges."³ In Suratt the charges were found to be without merit, while in Templeton the charges had been pending for almost four years at the time the decertification petition was dismissed by the Regional Director. These two cases held that the Board's mechanistic application of the blocking charge rule amounted to arbitrary action. That is, the effect of the Board's actions was to frustrate the petitioners' section 7 rights, 29 U.S.C. § 157, and was counter to the language...