Baker v. International Alliance of Theatrical Stage Employees and Moving Picture Operators of U.S. and Canada
| Decision Date | 09 November 1982 |
| Docket Number | No. CA,CA |
| Citation | 691 F.2d 1291 |
| Parties | 111 L.R.R.M. (BNA) 2897, 69 A.L.R.Fed. 860, 95 Lab.Cas. P 13,849 Patricia BAKER, Baird Bryant, Leslie Butler, Jean Clark, Kathy Dellar, Marcia Dripchak, Richard Eberhardt, Seven Gray, Charles Intrator, Renate Johnke, Willy Kurant, Jane Marcher, George Mooradian, David Parrish, Scott Peterson, Morteza Rezvani, Robin Rutledge, Louis Schwartzberg, Ben Sorbin, Terrence Thier, Robert Vose, Vera Zirn, Plaintiffs-Appellants, v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE OPERATORS OF the UNITED STATES AND CANADA, An Unincorporated Association; International Photographers of the Motion Picture Industries, Local 659, International Alliance of Theatrical Employees and Moving Picture Machine Operators of the United States and Canada, An Unincorporated Association; Association of Motion Picture and Television Producers, Inc., a California Corporation; Contract Services Administration Trust Fund; National Labor Relations Board and its members: John H. Fanning, Howard Jenkins, Jr., John A. Penello, John C. Truesdale, Donald R. Klenk (Acting); Norton J. Come, General Counsel of the National Labor Relations Board (Acting), Defendants-Appellees. 81-5217. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark L. Warren, Santa Monica, Cal., for plaintiffs-appellants.
James Y. Callear, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before WALLACE and CANBY, Circuit Judges, and EAST, District Judge. *
The sole issue on appeal is whether the district court had subject matter jurisdiction to review a decision of the General Counsel of the National Labor Relations Board (NLRB) not to file unfair labor practice complaints. We agree with the district court that there was no jurisdiction, and we accordingly affirm the dismissal of the action.
Appellants are craft workers in the motion picture industry who seek to challenge the validity of an industry experience roster and seniority system. AMPTP 1 an employers' association, and IATSE 2, a union, are signatories to a "Standard Basic Agreement" that binds all employers in a single multi-employer bargaining unit. Under the Standard Basic Agreement, each employer in the unit must give preference in employment to persons who have worked for members of the multi-employer bargaining unit On July 10, 1979, eleven craft workers filed unfair labor practice charges with the NLRB, alleging that AMPTP and IATSE maintained an industry experience roster that denied initial employment because of union considerations, and that they enforced the roster system in an arbitrary and discriminatory manner, in violation of sections 8(a)(1) and (3), and 8(b)(1)(A) of the National Labor Relations Act, as amended, 29 U.S.C. Secs. 158(a)(1) and (3), (b)(1)(A). Additional unfair labor practice charges were filed on August 21, alleging that the signatory unions and the Contract Services Administration Trust Fund 5 violated Sec. 8(b)(1)(A) and (2) of the Act. Finally, on November 11, a charge was filed against Local 659, alleging discrimination against a worker in violation of Sec. 8(a)(3).
but only if the work was performed or the worker was hired in Los Angeles County. To implement the Standard Basic Agreement, local craft unions have entered supplemental agreements and established experience rosters. Under the terms of the supplemental agreement with Local 659 3, employment preference must be given in accordance with roster placement. A person cannot be placed on the roster until he or she has worked 30 days for one unit employer or 90 of 365 days for several unit employers. In addition, for a limited open period during 1976, individuals who had worked for employers outside the bargaining unit were placed on the roster to cure past illegal discrimination that the NLRB had found to exist under a previous system. 4 All unit employees are required to become and remain members of the union on roster placement or within 30 days of first employment.
The Regional Director investigated the charges and refused to issue a complaint. He found insufficient evidence of a de facto closed shop. He also determined that the roster system itself did not violate Sec. 8. He found insufficient evidence of discrimination by Local 659. The Regional Director's decision not to issue a complaint was appealed to the General Counsel, who considered and denied the appeal principally on the basis of the rationale given by the Regional Director. Both decisions were in part based on an interpretation of the six month statute of limitations prescribed by Sec. 10(b) of the LMRA (codified at 29 U.S.C. Sec. 160(b)) to bar charges arising from roster placements made during the "post-MPO TV open roster period."
Dissatisfied with the General Counsel's decision the workers filed this action on June 10, 1980 against the General Counsel and the members of the NLRB 6. The workers sought an order from the district court requiring the General Counsel to issue complaints in the cases described and in certain others arising from the same facts. The court dismissed the action for lack of subject matter jurisdiction.
The General Counsel's decision not to issue an unfair labor practice complaint is generally not reviewable. See e.g., Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131, 59 L.Ed.2d 333 (1979); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S.Ct. 1504, 1510, 44 L.Ed.2d 29 (1975); International Ass'n of Machinists & Aerospace Workers v. Lubbers, 681 F.2d 598 at 602-03 (9th Cir. 1982); Pacific Southwest Airlines v. NLRB, 611 F.2d 1309, 1311-12 (9th Cir. 1980). Appellants acknowledge this broad proposition, as they must in the light of the overwhelming precedent. They assert, however, that Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and some of its progeny establish an exception permitting review in this case. We disagree.
Leedom v. Kyne dealt with the certification by the NLRB of a union to represent both professional and non-professional employees, without first taking a vote of the professionals. Because Sec. 9 of the National Labor Relations Act expressly prohibited certification under those circumstances, the Supreme Court made an exception to the usual rule that certification proceedings were not directly subject to judicial review. See American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). It held that the district court had jurisdiction "to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition of the Act." 358 U.S. at 188. 7
Appellants would have us apply the Leedom v. Kyne exception to permit review by the district court to determine whether the General Counsel abused his discretion in refusing to file unfair labor practice complaints in this case. We decline the invitation. We note first that the Leedom v. Kyne, exception has been narrowly construed even in the certification context in which it arose. This court and others have refused to permit direct judicial review of certification orders to determine whether the Board abused its discretion; direct review is permitted only where the clear mandate of the National Labor Relations Act prohibits the action of the Board. Bays v. Miller, 524 F.2d 631, 633 (9th Cir. 1979); Physicians National House Staff Ass'n v. Fanning, 642 F.2d 492, 496 (D.C.Cir.1980) (en banc), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981); Chicago Truck Drivers v. NLRB, 599 F.2d 816, 819 (7th Cir. 1979).
We think that there are sound reasons why the Leedom v. Kyne exception ought to be construed at least as narrowly in its possible application to a refusal by the General Counsel to issue a complaint as it is in the certification area. These reasons arise from the structure of the Act and its consistent interpretation by courts to preclude judicial review of the General Counsel's determinations. Prior to 1949, the Board itself determined whether to issue complaints pursuant to Sec. 10(b) of the Act 8, which empowered the Board to issue complaints but did not compel it to do so. 9 See NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 400, 87 L.Ed. 579 (1943). In exercising its discretion, the Board was acting within its authority to determine administrative labor policy, and its decision was not considered to be subject to judicial review. Jacobsen v. NLRB, 120 F.2d 96, 100 (3d Cir. 1941) (en banc). By the enactment of Section 3(d) of the Act 10 as part of the Taft-Hartley Amendments of 1947, Congress delegated to the General Counsel the Board's authority to issue complaints. It did not, however, modify the terms of the underlying grant of authority. The General Counsel was accordingly empowered to issue complaints, but not compelled to issue them. Haleston Drug Stores v. NLRB, 187 F.2d 418, 421 (9th Cir. 1951). Moreover, Sec. 3(d) conferred upon the General Counsel "final authority on behalf of the Board," to investigate charges of unfair labor practices and to issue complaints. At the time of these amendments, the power to decide whether to issue complaints was characterized in the congressional debates as unreviewable. 11 An object of its transfer was to centralize this power in the hands of an officer responsible to the President and the Congress. H.R.Rep.No.510, 80th Cong., 1st Sess. 1, 37, 51 reprinted in 1947 U.S.Code Cong.Serv. 1135, 1142, 1159 and in 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, at 505, 541, 557 (1948). While this legislative history may not be conclusive 12 we view it as sufficient to support the consistent judicial interpretation of the Act as intending the General ...
To continue reading
Request your trial