American Metal Products Company v. Reynolds

• Decision Date: 01 June 1964
• Docket Number: No. 15326.,15326.
• Citation: 332 F.2d 434
• Parties: AMERICAN METAL PRODUCTS COMPANY, Plaintiff-Appellant, v. John J. A. REYNOLDS, Jr., Regional Director, 26th Region, National Labor Relations Board, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

332 F.2d 434 (1964)

AMERICAN METAL PRODUCTS COMPANY, Plaintiff-Appellant, v. John J. A. REYNOLDS, Jr., Regional Director, 26th Region, National Labor Relations Board, Defendant-Appellee.

No. 15326.

United States Court of Appeals Sixth Circuit.

June 1, 1964.

Cross, Wrock, Miller, Vieson & Kelley, Douglas D. Roberts and Thomas Glenn

Sawyer, Detroit, Mich., on the brief, for appellant.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Ira M. Lechner, Attys., N. L. R. B., Washington, D. C., for appellee.

Before MILLER and CECIL, Circuit Judges, and KENT, District Judge.

PER CURIAM.

Following the expiration of the collective bargaining agreement between the plaintiff-employer, American Metal Products Company, and the Union, the Union called a strike on November 14, 1961. The plaintiff hired permanent replacements for approximately 333 of the 388 strikers. The strike was accompanied by mass picketing and violence until an injunction was obtained in the local courts on January 20, 1962. On January 26, 1962, the Union served upon plaintiff a formal notice of its termination of the strike, in which all of the former strikers unconditionally offered to return to work. The plaintiff recalled 14 of the strikers. Collective bargaining negotiations continued, but were unsuccessful. On February 28, 1962, the plaintiff petitioned the National Labor Relations Board that a representation election be conducted among its employees. On March 1, 1962, the Union resumed its picketing and the 14 employees who had been recalled rejoined the strike on March 2, 1962.

The Board conducted the election on November 9, 1962. It ruled that the strike which began on November 14, 1961, was not terminated or abandoned on January 26, 1962, but was still in effect and that the replaced strikers fulfilled the voting eligibility requirements imposed by Section 9(c) (3) of the Act. The plaintiff challenged these ballots, which were sealed and not counted pending a determination of the validity of the challenges. On November 16, 1962, the plaintiff filed the present action in the United States District Court to enjoin the defendant-appellee, District Director of the National Labor Relations Board, from opening or counting the challenged ballots. The complaint charges that the Board acted illegally and in excess of the power granted to it under the Act in ruling that all former strikers were eligible to vote in the election, notwithstanding the fact that they had abandoned and terminated their strike on January 26, 1962, and were, accordingly, clearly not eligible to vote under Section 9(c) (3) of the Act.

The District Judge dismissed the complaint for lack of jurisdiction, relying principally upon Dunn v. Retail Clerks International Ass'n AFL-CIO, 307 F.2d 285, 288, C.A.6th. The ruling is supported by our later decision in Eastern Greyhound Lines v. Fusco, 310 F.2d 632, 635, C.A.6th. See also: Evarts v. Western Metal Finishing Co., 253 F.2d 637, 639, C.A.9th, cert. denied, 358 U.S. 815, 79 S.Ct. 23, 3 L.Ed.2d 58, rehearing denied, 358 U.S. 939, 79 S.Ct. 310, 3 L.Ed.2d 310.

Appellant contends that the judgment should be reversed on the authority of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3...