Bisogno v. Connecticut State Bd. of Labor Relations

• Decision Date: 16 March 1960
• Docket Number: No. 110222,110222
• Citation: 164 A.2d 166,22 Conn.Supp. 133
• Court: Connecticut Superior Court
• Parties: Carmine J. BISOGNO v. CONNECTICUT STATE BOARD OF LABOR RELATIONS.

Page 166

164 A.2d 166

22 Conn.Supp. 133

Carmine J. BISOGNO v. CONNECTICUT STATE BOARD OF LABOR RELATIONS.

No. 110222.

Superior Court of Connecticut, Fairfield County, at Bridgeport.

March 16, 1960.

Raymond C. Lyddy, Bridgeport, and Isadore Chaplowe, Stratford, for plaintiff.

Alphonse C. Jachimczyk, Stamford, for defendant.

KLAU, Judge.

This is an appeal by the plaintiff from the certification and order of the Connecticut state board of labor relations entered in case No. E-1015 and case No. U-1016, both of which cases were consolidated by the board on July 16, 1959. The board in the first case certified the Cleaners, Dyers and Laundry Workers Union, Local 364, A.C.W.A., as the exclusive representative for the purpose of collective bargaining by a majority of the pressers, cleaners and spotters, driver, tailor and drop-store employees, excluding executives, supervisors and the shoe repairman employed by the plaintiff.

The order in the second case, entered after hearing on a charge by the union that the plaintiff was engaged in unfair labor practices within the meaning of General Statutes § 31-105(4), (5), required the plaintiff to (1) cease and desist from (a) discouraging membership in Cleaners, Dyers and Laundry Workers Union, Local 364, A.C.W.A., A.F.L.-C.I.O., or any other labor organization of the employees' own choosing by discriminating against employees in regard to hire or tenure of employment or terms and conditions of employment; (b) requiring as a condition of employment that the plaintiff's employees or those seeking employment refrain from joining or assisting a labor organization of their own choosing; and (c) in any manner interfering with, restraining or coercing the plaintiff's employees in their rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection as guaranteed by § 31-104 of the Labor Relations Act; and (2) take affirmative action in offering Leonard W. Dyer, one of the plaintiff's employees, immediate employment, to make him whole for any loss of pay he may have suffered by reason of his discharge, and to perform certain other acts arising from the finding of the board that the plaintiff had been guilty of an unfair labor practice under the Labor Relations Act in discharging the said Dyer.

The plaintiff in his appeal to the court merely states that he is aggrieved by the certification and order of the board and prays that the certification and order of said board be modified or set aside. Nowhere does he specify in his petition the reasons why or how he claims to be aggrieved or in what particular the unfair labor practice order is challenged. Such a specification ought to be set forth in the appeal itself to permit the court to determine whether in fact he is aggrieved and to provide an assignment of errors to be reviewed. Tyler v. Board of Zoning Appeals, 145 Conn. 655, 145 A.2d 832. However, the plaintiff in his brief sets forth that the board erred in its certification and order in the following manner: (1) The board erred in its certification of employees eligible to vote in the ordered election; (2) The board erred in its decision on the results of the voting, its designation of the union as the employees' bargaining representative, and its designations of the unit to be covered; (3) The board erred in its decision that the employer committed an unfair labor practice in connection with the layoff of Leonard W. Dyer.

The case was heard by the court on the record certified by the board in accordance with the provisions of § 31-109(d) of the General Statutes. Included in the record is the statement of the case as contained in the board's decision. The plaintiff in his brief does not contest this statement, so it need not be repeated here.

Chapter 561 of the General Statutes, entitled 'Labor Relations Act,' was originally enacted in 1945, predicated upon and its phraseology patterned after the National Labor Relations Act of 1935. 49 Stat. 449, 29 U.S.C. §§ 151-166. 'For this reason, the judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own act.' Imperial Laundry, Inc. v. Connecticut Stat Board of Labor Relations, 142 Conn. 457, 460, 115 A.2d 439, 441. The errors raised by the plaintiff in his brief, items one and two referred to above, concerned the representation proceedings which culminated in the certification of representatives. The Connecticut Labor Relations Act is modeled closely after the original National Labor Relations Act. Section 31-109 of the General Statutes provides that in unfair labor practice proceedings, the board may petition the Superior Court for enforcement of its orders. It also provides, in paragraph (d), that a person aggrieved 'by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the superior court for the county where the unfair labor practice was alleged to have occurred * * *' (italics supplied). Under parallel provisions in the national act, (49 Stat. 455, 29 U.S.C. § 160[f]), the federal courts have consistently held that a certification of bargaining representatives is not an appealable order, so that the courts have no jurisdiction to entertain a purported appeal therefrom. American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 407, 60 S.Ct. 300, 84 L.Ed. 347; De Pratter v. Farmer, 98 U.S.App.D.C. 74, 232 F.2d 74. This is true, also, where the representation proceeding has been consolidated (as here) with an unfair labor practice proceeding. While the order in the latter aspect of the case is appealable, the certification is not. National Labor Relations Board v. Falk Corporation, 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396. It would, therefore, appear that this court has no jurisdiction to entertain the plaintiff's purported appeal from the board's certification in the present case. It, therefore, follows that none of the points raised by the plaintiff, except his appeal from the order of the board finding that he had been guilty of an unfair labor practice with respect to Leonard W. Dyer and ordering affirmative action with respect thereto, can properly be considered.

Let us, however, assume that the court has jurisdiction to consider the errors raised by the plaintiff under items one and two in his brief by reason of the appeal from the order entered regarding unfair labor practices of the plaintiff, although the board made no order of an unfair labor practice with respect to the failure of the plaintiff to bargain collectively with the representatives of employees (§ 31-105), and the order entered does not involve the representation proceedings except with respect to Leonard Dyer's eligibility to participate in the election. National Labor Relations Board v. Worcester Woolen Mills Corporation, 1 Cir., 170 F.2d 13, certiorari denied, 336 U.S. 903, 69 S.Ct. 489, 93 L.Ed. 1069; Fitzgerald v. Douds, 2 Cir., 167 F.2d 714 716; Connecticut Light & Power Co. v. Leedom, D.C., 174 F.Supp. 171, 174.

The pertinent provision concerning certification of representatives for the purposes of collective bargaining are to be found in § 31-106 of the General Statutes. This corresponds in a large part with § 159 of the National Labor Relations Act. 49 Stat. 453, as amended, 29 U.S.C. § 159. Under our act, as with the federal act, where a controversy concerning the representation of employees has arisen, the board is required to determine the appropriate bargaining unit. 'In order to secure to employees the full benefit of this chapter, the board shall decide in each case whether the appropriate unit shall be an employer unit, craft unit, plant unit or any other unit, except that when the majority of the employees of a craft so decide, the board shall designate such craft as the appropriate unit.' General Statutes, § 31-106(a). Following extensive hearings held on June 18 and 23, the board, in its decision and direction of election, forming a part of the record, dated June 29, 1959, directed that an election be held to ascertain the exclusive representative for collective bargaining with the plaintiff and designated eleven individual employees of the plaintiff to participate in said election to determine whether they desired to be represented by the union and, further, indicated that due to the necessity of holding the election as expeditiously as possible because of a strike being in progress with picket lines, a decision concerning findings of fact and conclusions of law would issue later. The designation of the eleven individuals certified to vote at the election clearly indicated which employees were included in the bargaining unit established by the board. In its decision of October 5, the board found both as a fact and as a conclusion of law: '(3) All pressers, cleaners and spotters, driver, tailor and drop-store employees, excluding executives, supervisors and the shoe repairman, employed by the Respondent, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages and hours of employment or other conditions of employment.'

Under the similar section of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 159(b), federal courts have repeatedly held that the board has a wide discretion in the selection of the appropriate bargaining unit and its decision is conclusive unless it is arbitrary or capricious. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 149, 61 S.Ct. 908, 85 L.Ed. 1251, rehearing denied, Crystal City Glass Workers Union v. N. L. R. B., 313 U.S. 599, 61 S.Ct. 1093, 85 L.Ed. 1551; National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876, ...