Associated Builders and Contractors, Inc., Baltimore Metropolitan Chapter v. Irving
| Decision Date | 18 December 1979 |
| Docket Number | No. 78-1268,78-1268 |
| Citation | 610 F.2d 1221 |
| Parties | 103 L.R.R.M. (BNA) 2104, 87 Lab.Cas. P 11,730 ASSOCIATED BUILDERS AND CONTRACTORS, INC., BALTIMORE METROPOLITAN CHAPTER, Appellant, v. John R. IRVING, General Counsel National Labor Relations Board, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
N. Peter Lareau, Baltimore, Md. (Jeffrey P. Ayres, Baltimore, Md., on brief), for appellant.
Linda Dreeben, N. L. R. B., Washington, D. C. (John S. Irving, General Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Aileen A. Armstrong, Asst. Gen. Counsel for Sp. Litigation, Bernard P. Jeweler, N. L. R. B., Washington, D. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, WIDENER and HALL, Circuit Judges.
This is an appeal from an order of the District Court for the District of Maryland dismissing an action by Associated Builders and Contractors (ABC) for a declaratory judgment and a writ of mandamus against the General Counsel of the National Labor Relations Board to declare unlawful the refusal of the General Counsel to file a requested complaint with the National Labor Relations Board and to require him to file such a complaint. We affirm the dismissal by the district court.
The Mass Transit Administration, an instrumentality of the Department of Transportation of the State of Maryland, entered into a "Labor Stabilization Agreement" with the Baltimore Building and Construction Trade Council, AFL-CIO and 21 other labor organizations. Article III of that agreement, which establishes conditions of employment in connection with the construction of the Baltimore Region Rapid Transit System, provides:
Nothing in this agreement shall limit the selection or utilization of contractors or subcontractors to perform construction work on the Rapid Transit Project; provided, however, that all such contractors shall comply with the terms of this agreement.
Article IV(a) of the agreement provides in part:
. . . By accepting any award of construction work, either as contractor or subcontractor (of any level or tier), on any part of the jobsite of the MTA project each employer agrees (i) to be bound by each and every provision of this Agreement, (ii) to execute either personally or through a duly authorized agent (in the form set forth in either Exhibit A or Exhibit B hereto) its agreement to that effect, and (iii) to require that any Employer which is a subcontractor to it agree in writing (in form set forth in either Exhibit A or Exhibit B hereto) to be bound by the terms of the agreement.
The gist of the agreement, of course, is that all contractors and subcontractors on the project would have to sign the union contract.
ABC's complaint alleges that the contract is an unlawful hot-cargo agreement and thus an unfair labor practice under § 8(e) of the National Labor Relations Act (NLRA) (29 U.S.C. § 158(e)).
Section 8(e) of the NLRA provides in part:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from hauling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcable and void: . . .
Section 8(e) was added as an amendment to the NLRA in 1959 in an attempt to close a "loophole" in the then existing law against secondary boycotts. 1 Although secondary boycotts were banned by the statute in 1947, 2 unions in many instances could obtain the same result through hot cargo or hot goods clauses in collective bargaining agreements. These clauses were designed to prevent an employer from dealing in goods of an employer engaged in a labor dispute.
A review of the legislative history shows a grave concern in Congress over the widespread use of this tactic by the Teamsters union. 3 Apparently that union was well known for entering into such agreements with trucking companies, thus preventing another company which was having a labor dispute from shipping its own goods or receiving supplies, etc.
To close the loophole in § 8(b)(4), Congress enacted § 8(e), making such contracts between employers and unions illegal, unenforceable and a violation of the statute and an unfair labor practice.
ABC is an association of contractors, subcontractors and suppliers doing business in the Baltimore area. It filed a charge with the Fifth Regional Office of the NLRB, charging that the Transit Administration contracts violated the hot cargo provision of § 8(e) of the statute. The Regional Director refused to file a complaint with the Board upon the ground that the Transit Administration, being a state agency, was "not an employer within the meaning of section 2(2) of the National Labor Relations Act" and "(t)herefore the proscriptions of § 8(e) do not apply to such governmental employers." ABC appealed that decision to the office of the General Counsel, which sustained the Regional Director's ruling.
ABC then filed this action in the district court seeking a declaratory judgment that the General Counsel's finding was in error. It contends that state agencies are indeed employers within the meaning of the statute. It also sought a writ of mandamus to require the General Counsel to issue a complaint upon the charge filed. Jurisdiction is claimed under 28 U.S.C. §§ 1337 and 1346(a)(2). 4
The General Counsel moved to dismiss on the ground that the district court lacked subject matter jurisdiction. The district court granted the motion and dismissed the complaint ruling that the decision of the General Counsel not to file a complaint is not reviewable by a district court. The district court determined that the court was without jurisdiction to consider the matter.
Whether the decision of the General Counsel in this case is final and therefore not reviewable in any court depends upon the construction of § 3(d), 29 U.S.C. § 153(d), of the statute which provides, in part, as follows:
There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than trial examiners and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or may be provided by law. . . .
The NLRA contains no express provision authorizing judicial review of decisions by the General Counsel refusing to file a complaint with the Labor Board charging an unfair labor practice.
ABC contends that under the Administrative Procedure Act, enacted one year prior to the 1947 amendments to the NLRA, it has a right to obtain judicial review of the General Counsel's decision. 5 U.S.C. § 702 provides in part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
The passage just quoted from, 5 U.S.C. § 702, would appear to entitle ABC to judicial review 5 were it not for the provisions of 5 U.S.C. § 701(a) as follows:
This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
The issue, then, is whether, under 5 U.S.C. § 701(a) judicial review of the General Counsel's decision, which would otherwise be available under 5 U.S.C. § 702, is precluded by § 3(d) of the NLRA.
We think the legislative history shows that the General Counsel was intended to be a political position similar to that of an attorney general or other executive officer of the government. The office of General Counsel, although representing the Board in its actions, was created to be independent of the Board and responsible only to the President and the Congress rather than to the Board. 6 Appointment of the General Counsel was placed not in the hands of the Board but in the hands of the President. Our position is sustained by the House Conference Report and the position of Senator Taft which follows:
(3) Section 10(b) of the amended act under the House Bill contemplated that, in unfair practice cases, the administrator would investigate charges, issue complaints, and prosecute cases. The Senate amendment did not contain comparable provisions. As previously noted, the conference agreement contemplates that these functions will be performed under the exclusive and independent direction of the General Counsel of the Board, an official appointed by the President by and with the advice and consent of the Senate.
House Conference Report No. 510 on H.R. 3020, 1 Leg. Hist. of the L.M.R.A. 557 (1947), U.S.Code Cong.Serv. 1947, pp. 1135, 1159.
As noted by Senator Taft, co-sponsor of the bill:
What the conference amendment does is simply to transfer this "vast and unreviewable power" from this anonymous little...
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