AMERICAN FEDERATION OF L. v. National Labor R. Board

• Decision Date: 27 February 1939
• Docket Number: No. 7257.,7257.
• Citation: 103 F.2d 933
• Parties: AMERICAN FEDERATION OF LABOR et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

103 F.2d 933 (1939)

AMERICAN FEDERATION OF LABOR et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 7257.

United States Court of Appeals for the District of Columbia.

Argued December 5, 1938.

Decided February 27, 1939.

Herbert S. Thatcher and Joseph A. Padway, both of Washington, D. C., for petitioners.

Robert B. Watts and Laurence A. Knapp, both of Washington, D. C., for respondent.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

GRONER, C. J.

International Longshoremen's Association is a labor organization whose members are engaged in longshore work on the Pacific Coast. International Longshoremen's Association Local 38 is a similar organization affiliated with International, and International in turn is affiliated with the American Federation of Labor. In the latter part of September, 1938, petitioner filed its petition in this court to review and set aside an order of the National Labor Relations Board made June 21, 1938. The controversy concerns the rival claims of the American Federation of Labor and the Committee for Industrial Organization (C. I. O.) and their respective affiliates to represent maritime workers in interstate and foreign commerce in some or all of the ports on the Pacific Coast. The dispute arose as the result of the filing by the C. I. O. of a petition asking the Board to hold that the employer unit should embrace the entire West Coast and to certify its affiliate as exclusive bargaining agent. The A. F. of L. answered the petition, denying the Board's power to prescribe a unit larger than a single employer. There were lengthy hearings before the Board at which both parties were represented, and many witnesses examined. Subsequently, on the 21st of June, the Board made elaborate findings of fact and conclusions of law, and issued its certificate. The decision united in one unit some 200 or more employers operating in different ports from Canada to Mexico and found that C. I. O. organizations represented the majority of the employees of the whole. The employers accepted the certification without question and made a collective bargaining contract in which the C. I. O. was recognized as the exclusive representative of all West Coast longshore employees. A. F. of L. (and its affiliates) petitioned the Board for a rehearing. The Board adhered to its former decision, and denied the petition. This appeal followed. The Board appeared and filed what it calls a "special appearance", objecting to the jurisdiction of this court to hear the appeal, and moved to dismiss.

The question in the case is whether the decision appealed from is a "final order" within the terms of the Act.¹ As a preliminary question, the Board argues that petitioner is without any standing to appeal regardless of whether the order is final or not, but we think the language of Section 10(f) of the Act sufficiently answers this contention. It authorizes a review at the instance of "any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought". The right under this section has already been invoked without question by labor unions in a number of cases,² and if the Act should be held to confine the right of review to an employer and to deny it to a representative of the employees, it would create an anomalous situation. We think the fair intendment of the language as well as the purpose of Congress was to provide a judicial review to any aggrieved party where the order is final, without narrowing it in the manner now contended for by the Board. In this view we have a case in which the right, called by the Supreme Court in Texas & New Orleans Railroad Co. v. Brotherhood of Ry. & S. S. Clerks, 281 U.S. 548, 571, 50 S.Ct. 427, 74 L.Ed. 1034, a property right, is charged to have been wholly destroyed by the action of the Board.

The principal loading and discharging ports on the Pacific Coast are Tacoma, Olympia, Port Angeles, San Francisco, Los Angeles, Seattle, and Portland. There are about 25 smaller ports, and the total number of employees is stated to be in the neighborhood of 13,000. The number of employers varies with the size of the ports, but altogether they total several hundred, and they in turn are represented by some four or five associations of employers, and there are separate employer associations in most of the ports. When the Board's hearings were begun, petitioner represented a majority of the employees in one or more of the ports and likewise a majority of the employees of a number of separate employers. Petitioner's grievance grows out of the fact that in ascertaining the appropriate representative of the men the Board ignored the identity of separate employers or of separate ports and extended the employer unit to include the entire Pacific Coast, with the result that the rival union was designated and certified as the sole representative — in consequence of which its own union was "put out of business" and its members obliged to become members of its rival and deal with the employer either exclusively through it or not at all.³ In short, that by reason of the Board's decision to enlarge the "unit" to embrace about 25 separate ports and the acceptance of its decision by the employers, a situation has arisen as the result of which a so-called closed shop contract may be entered into which will require petitioner's members, even where they predominate in a particular locality or business, to join the other union or possibly be displaced from their employment by members of that union.

Enough has been said to show that we have here a controversy between two national labor organizations, both of which have appealed to the Board to resolve their conflicting rights and the rights of their members, and one of which claims that the unlawful action of the Board in the designation of an employer unit beyond the terms of the Act has destroyed its property right and the property rights of its members and that, unless it can obtain a review by appeal to this court or some other Circuit Court of Appeals, it will be wholly without redress of any kind.

The Board denies jurisdiction on the ground that the action taken by it was the result of proceedings investigatory in character; that the Act in the circumstances did not contemplate the issuance of any order, final or otherwise; that its finding and decision do not require petitioner to do anything or to refrain from doing anything; and that petitioner is, therefore, not a person...