Swift & Company v. Solien

• Decision Date: 22 August 1967
• Docket Number: No. 67 C 24(3),67 C 139(3).,67 C 24(3)
• Citation: 274 F. Supp. 953
• Court: U.S. District Court — Eastern District of Missouri
• Parties: SWIFT & COMPANY, Plaintiff, v. Joseph H. SOLIEN, Regional Director for the 14th Region of the National Labor Relations Board, Defendant. NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. SWIFT & COMPANY, Defendant.

274 F. Supp. 953

SWIFT & COMPANY, Plaintiff, v. Joseph H. SOLIEN, Regional Director for the 14th Region of the National Labor Relations Board, Defendant.

NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. SWIFT & COMPANY, Defendant.

Nos. 67 C 24(3), 67 C 139(3).

United States District Court E. D. Missouri, E. D.

August 22, 1967.

COPYRIGHT MATERIAL OMITTED

Harold A. Thomas, Jr., Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., for Swift & Co.

Gerard Fleischut, Regional Atty., N.L.R.B., St. Louis, Mo., Marcel Mallet Prevost, Asst. Gen. Counsel, Washington, D. C., for Joseph H. Salien.

Gerard Fleischut, Regional Atty., N.L.R.B., St. Louis, Mo., for the N.L. R.B.

MEMORANDUM OPINION AND ORDER

REGAN, District Judge.

These consolidated cases involve the authority and duty of the National Labor Relations Board as well as the jurisdiction of this Court. The basic facts are not in dispute.

Teamsters Local No. 729 (Union) has for some time been the certified exclusive bargaining agent for a union of truck drivers and dockhands employed by Swift & Company (Swift) at its meat packing terminal at Sikeston, Missouri. On June 22, 1966, Robert Ogles (Ogles), one of the employees in the unit, filed a petition with the Regional Office of the National Labor Relations Board (Board) at St. Louis, seeking an election among the union employees to decertify the Union as their representative.

Thereafter, on July 12, 1966, the Regional Director approved a Stipulation for Certification upon Consent Election signed by Swift, the Union and Ogles, by the terms of which all parties waived a hearing, direction of election, and the making of findings of fact and conclusions of law by the Board prior to the election. The Stipulation provided that the election "shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedures and policies of the Board. Another provision was that any post-election procedures shall be "in conformity with the Board's Rules and Regulations."

One of the applicable procedures and policies of the Board is the rule announced on February 6, 1966, in its decision of Excelsior Underwear, Inc., 156 NLRB 1236 (Excelsior), which it then stated "will be applied in all election cases" directed or consented to more than 30 days from the date Excelsior was decided. That rule, adopted after consideration of briefs and arguments made on behalf of both employer and employee groups, provides that within 7 days after the Regional Director has approved a consent election agreement or after the close of the determinative payroll period for eligibility purposes, whichever is later, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, is required "to make this information available to all parties in the case." Of importance is the further provision of the rule that failure of the employer to timely file the eligibility list "shall be grounds for setting aside the election whenever proper objections are filed."

In Excelsior, the Board expressly noted that the requirement there imposed applied to cases such as the instant one, where an election is directed upon a petition of an employee seeking to decertify an existing bargaining representative. In such situations, the petitioning employee as well as the union is entitled to the names and addresses of the employees as an aid in their efforts to communicate their respective positions and in making challenges. "In short, the disclosure requirement here adopted in Excelsior applies whenever a Board election has been scheduled and insures all parties to the election, whatever their viewpoint, of an opportunity to communicate with the electorate."

Swift was specifically advised of the Excelsior rule prior to executing the Stipulation. However, it refused to furnish the required list, presumably as a matter of policy, although it did enter into the Stipulation. At the request of both the Union and Ogles, the election was ordered in spite of Swift's refusal, and the Union reserved its right to file objections on that ground.

The election was conducted on July 18, 1966. Eighteen ballots were cast. Seven employees cast valid ballots for the Union and eight employees cast valid ballots against the Union. Three ballots were challenged. The Union also filed timely objections to "conduct affecting the election", in particular the failure of Swift to furnish the Regional Director (or the Union) a list of the eligible voters including their names and addresses as required by Excelsior. The Union's challenges to two of the ballots were overruled, and those ballots were counted. As the result there were ten valid ballots, a majority of those counted, cast against the Union. However, the Union's objections to "conduct affecting the election", based on the refusal of Swift to furnish the Excelsior list, was sustained by the Board, the election was set aside, and a second election was ordered to be held.

On December 5, 1966, the Regional Director notified Swift that the second election would be conducted on December 19, 1966, and requested that, as required by the Board's orders and the Excelsior rule, Swift file with him three copies of an eligibility list containing the names and addresses of all eligible voters within seven days thereafter, or not later than December 12, 1966. On December 8, 1966, Swift notified the Regional Director it would not provide the eligibility list, and as a result the Regional Director then notified the parties that the second election would be postponed.

On December 23, 1966, the Regional Director caused a subpoena duces tecum to be issued on his own motion, directing Swift to produce and make available to the Board's Regional Office Swift's personnel and payroll records, or an eligibility list in lieu thereof, containing the names and addresses of all employees eligible to vote in the election. The subpoena was served by mail on December 27, 1966. Swift then filed a timely petition to revoke the subpoena, and this petition was denied by the Board by formal telegraphic order issued on January 5, 1967.

This was the status of the case on January 19, 1967, when Swift filed its action against the Regional Director seeking an injunction to require the Regional Director to certify the results of the July 18, 1966 election, to restrain him from holding a second election within twelve months from the July 18, 1966 election and from employing any Board process to force Swift to disclose the home addresses of its employees.

Thereafter, on May 1, 1967, the Board filed its action, in two counts, seeking an order directing Swift to produce and make available to the Board's authorized agents the relevant data set forth on the subpoena, or in lieu thereof to file with the Regional Director an election eligibility list showing the names and addresses of all employees eligible to vote in the election directed by the Board. On joint motion of the parties, the two cases were consolidated for all purposes.

In the Swift action, the Regional Director has moved to dismiss the complaint on the grounds the Court lacks jurisdiction over the subject matter and the complaint fails to state a claim upon which relief can be granted. In the Board action, Swift has filed motions for summary judgment and to quash the subpoena duces tecum or in the alternative to dismiss Count I of the complaint, and to dismiss Count II.

We first address ourselves to the Swift case. In brief, Swift contends that under Section 9(c) (1) of the National Labor Relations Act, it was the mandatory duty of the Board to certify the results of the July 18, 1966 election, and that the Board is without authority to order another election within 12 months after the first allegedly valid election has been held. Insofar as Swift seeks to enjoin an election within 12 months of the July 18, 1966 election, its action is now moot. The question of our jurisdiction to entertain the suit as to the certification issue is still alive, however.

Admittedly, this Court does not ordinarily have jurisdiction to judicially review, in a direct action for that purpose, a Section 9 representation determination of the Board. However, in two cases, "each characterized by extraordinary circumstances," the Supreme Court has "permitted district court review of orders, entered in certification proceedings." The first such case is Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, which held that when the Board has acted in excess of its delegated powers and contrary to a specific prohibition in the Act an independent suit in a district court to set aside the Board's order may be maintained by a party on whom the unlawful action of the Board has inflicted an injury.

The other case, McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547, involved the application of American law to foreign-flag ships and their crews. The Court held that "the presence of public questions particularly high in the scale of our national interest because of their international complexion was a uniquely compelling justification for prompt judicial resolution of the controversy over the Board's power." 372 U.S., l. c. 17, 83 S.Ct., l. c. 675. The Court was careful to note that the exception recognized in Sociedad Nacional is not applicable to "a purely domestic adversary situation," and so "not to be taken as an enlargement of the exception in Kyne."

"The Kyne exception is a narrow one." Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849. Swift contends that the present case falls within the "narrow limits" of the exception judicially carved out in Kyne. We do not agree. The "extraordinary circumstances" which characterized Kyne were summarized in Boire (376 U.S., l. c. 480, 84 S.Ct., l. c. 898) in these words:

"In Leedom v. Kyne,

...