Teamsters, Chauffeurs, Help. & Del. Dr., Local 690 v. NLRB, 20506.

• Decision Date: 03 March 1967
• Docket Number: No. 20506.,20506.
• Citation: 375 F.2d 966
• Parties: TEAMSTERS, CHAUFFEURS, HELPERS AND DELIVERY DRIVERS, LOCAL 690, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

375 F.2d 966 (1967)

TEAMSTERS, CHAUFFEURS, HELPERS AND DELIVERY DRIVERS, LOCAL 690, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 20506.

United States Court of Appeals Ninth Circuit.

March 3, 1967.

Hugh Hafer, Bassett, Donaldson & Hafer, Seattle, Wash., David Previant, Goldberg, Previant & Uelmen, Milwaukee, Wis., Albert Brundage, Los Angeles, Cal., for appellant.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Herman M. Levy, Attys., N.L.R.B., Washington, D. C., Patrick

H. Walker, Regional Atty., N.L.R.B., Seattle Wash., for appellee.

Before KOELSCH and ELY, Circuit Judges, and FOLEY, Jr., District Judge.

FOLEY, Jr., District Judge.

This is an appeal from an order of the District Court for the Eastern District of Washington dismissing Appellant's amended complaint for lack of subject matter jurisdiction. Appellant sought to have the District Court set aside a decision made by the National Labor Relations Board and to order the Board to conduct an election.

Appellant filed a petition with the Board pursuant to Section 9(c) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.), hereinafter called "the Act", seeking to be certified as bargaining representative for some thirty-five truck drivers employed by the Boise Cascade Corporation. The Appellant urged the Board to find that a craft unit limited to truck drivers or truck drivers and mechanics was appropriate and that those employees should be severed from the existing plant unit comprising all of the employer's production and maintenance employees currently represented by the Lumber and Sawmill Workers Union. The employer and incumbent union urged that the larger production and maintenance plant unit was appropriate and that the Board should refuse to sever the craft unit.

After a full hearing, the Board filed its written decision and order (148 NLRB No. 53 (1964)), holding that the truck drivers involved were functionally and administratively in the basic lumber industry and stated in part:

"* * * Nor do we find persuasive the Petitioner\'s Appellant\'s contention that the Board should abandon the Weyerhaeuser principle. We therefore find that the only appropriate unit * * * is a production and maintenance unit plant unit and that the unit sought by the Petitioner is not appropriate." (Italics added.)

In the District Court, the Appellant contended that the Board's adherence to the "Weyerhaeuser principle" constituted a clear violation of Section 9(b) (2) of the National Labor Relations Act, as amended in 1947, and violated the due process of law clause of the Fifth Amendment to the Constitution of the United States. Appellant sought in the District Court an order setting aside the Board's decision refusing to carve a craft unit out of the existing plant unit, and further sought an order from the Court directing the Board to conduct a representation election among the employees for whom the craft unit was sought. The District Court, without opinion, dismissed the amended complaint for lack of subject matter jurisdiction and this appeal followed. This Court has jurisdiction (28 U.S.C. § 1291).

The question for this Court is whether or not the District Court had jurisdiction to review the Board's decision refusing to sever a craft unit from the existing plant unit and to order an election for the employees within the proposed craft unit.

Appellant contends that Section 24 of the Judicial Code clothed the District Court with jurisdiction.¹ This would be true but for the provisions of the National Labor Relations Act limiting the District Court's general jurisdiction. Normally, under the Act, a Board order in the representation proceeding under Section 9(c) cannot be reviewed in the courts. When final orders of the Board, entered at the culmination of an unfair labor practice proceeding under Section 10 of the Act, are reviewed in the Court of Appeals, Section 9(d) provides for judicial review in that Court of the underlying determination in the representation proceeding. American Fed. of L. v. National L. Rel. Bd., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849.

The federal courts have consistently refused to allow direct judicial review of Board orders made in representation proceedings. In certain extraordinary circumstances, a District Court's review of Board orders in representation proceedings has been allowed:

(1) where the Board has acted in excess of its powers, has violated a clear mandatory requirement of statute;

(2) where there is involved a public question of considerable national interest with international overtones; and

(3) where there is a substantial showing that the constitutional rights of the complaining party were violated.

The first two exceptional circumstances are described by the Supreme Court in Boire v. Greyhound Corp., supra. At page 898 of 84 S.Ct., at page 854 of 11 L.Ed.2d, we find:

"* * * In Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, despite the injunction of § 9(b) (1) of the Act that `the Board shall not (1) decide that any unit is appropriate * * * if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit,\' the Board — without polling the professional employees — approved as appropriate a unit containing both types of employees. The Board conceded in the Court of Appeals that it `had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees.\' 358 U.S. at 187, 79 S. Ct., at 183, 3 L.Ed.2d 210 at 213. We pointed out there that the District Court suit was `not one to "review," in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made 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 210 at 214. Upon these grounds we affirmed the District Court\'s judgment setting aside the Board\'s `attempted exercise of a power that had been specifically withheld.\' 358 U.S. at 189, 79 S.Ct. at 184, 3 L.Ed.2d 210 at 214. And in McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547, in which District Court jurisdiction was upheld in a situation involving the question of application of the laws of the United States to foreign-flag ships and their crews, the Court was careful to note that `the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board\'s power.\'"

In making further reference to Kyne, the Court stated at page 899 of 84 S.Ct., at page 855 of 11 L.Ed.2d:

"* * * The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law. Judicial review in such a situation has been limited by Congress to the courts of appeals, and then only under the conditions explicitly laid down in § 9(d) of the Act."

The third exceptional circumstance is set forth by the Second Circuit in Fay v. Douds, 1949, 172 F.2d 720, at 723:

"* * * The plaintiff * * * asserts that the Local has a `property\' right in the maintenance of its position as exclusive bargaining agent, and that this was substantially invaded by denying its privilege of a hearing upon the `investigation,\' preparatory to deciding whether an election should be called. If this assertion of constitutional right is not transparently frivolous, it gave the District Court jurisdiction; * * *" (Italics added.)

The Courts of Appeal have considered the three exceptional circumstances in many cases, among which, pertinent here, are:

Boire v. Miami Herald Publishing Company, 5 Cir., 1965, 343 F.2d 17, at page 20, cert. denied 382 U.S. 824, 86 S.Ct. 56, 15 L.Ed.2d 70:

"In a similar vein, the federal courts have restricted the use of their equity powers to restrain representation proceedings to three very narrow situations. One exceptional set of circumstances is presented where the suit tenders `public questions particularly high in the scale of our national interest because of their international complexion.\' * * * Another exception, which has been fashioned primarily by the Second Circuit, comes into play where there is a substantial showing that Board action has violated the constitutional rights of the complaining party. * * * The third exception, on which the appellee relies strongly, is predicated on the Supreme Court\'s decision in Leedom v. Kyne * * *. There the court upheld a district court injunction setting aside a Board election and certification where the Board had clearly acted `in excess of its delegated powers and contrary to a specific prohibition in the Act.\' * * * The courts have generally interpreted Kyne as sanctioning the use of injunctive powers only in a very narrow situation in which there is a `plain\' violation of an unambiguous and mandatory provision of the statute. * * * This exception has been applied to an affirmative requirement of the Act as well as a statutory prohibition * * *."

Leedom v. Norwich, Conn. Print. Special. & P. P. Union, 1960, 107 U.S.App. D.C. 170, 275 F.2d 628, at page 630, cert. denied 362 U.S. 969, 80 S.Ct. 955, 4 L.Ed.2d 900:

"Our question is not whether on the one hand the unit sought by Local 494 and the International, or, on the other hand, the unit fixed by the

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