Bokat v. Tidewater Equipment Company, 23446.

• Decision Date: 14 July 1966
• Docket Number: No. 23446.,23446.
• Citation: 363 F.2d 667
• Parties: George BOKAT, Chief Trial Examiner, National Labor Relations Board, et al., Appellants, v. TIDEWATER EQUIPMENT COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

363 F.2d 667 (1966)

George BOKAT, Chief Trial Examiner, National Labor Relations Board, et al., Appellants, v. TIDEWATER EQUIPMENT COMPANY, Appellee.

No. 23446.

United States Court of Appeals Fifth Circuit.

July 14, 1966.

George H. Cohen, Atty., NLRB, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Gary Green, Attorney, NLRB, for appellants.

John Bacheller, Jr., Atlanta, Ga., L. J. Bennet, Brunswick, Ga., Bennet, Gilbert, Gilbert & Whittle, Brunswick, Ga., and Fisher & Phillips, Atlanta, Ga., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

JOHN R. BROWN, Circuit Judge.

The broad question in this case is whether the District Courts throughout the Circuit are to be open to police the procedural purity of the NLRB's proceedings long before the administrative process is over, or for that matter, scarcely begun.¹ More particularly, the question is whether the District Court should grant an injunction which stays the hand of the Labor Board until the Employer's counsel has finished his interrogation of prospective witnesses in the preparation of the defense to the § 8(a) (5) and (1) charges and — chronologically more significant — until the Board and the review courts have finally disposed of the separate 8(a) (1) charges against the Employer's lawyer alleging coercive interrogation in the course of defending the now postponed § 8(a) (5) and (1) charges against the Employer. The answer to the broad, and to the narrower, question must be, and is, in the negative.

We may draw freely on the Board's brief to summarize how all of this came about.

On January 29, 1965, the Regional Director, following an investigation of unfair labor practice charges filed by the Union,² issued a complaint alleging that the Employer³ violated § 8(a) (5) and (1) of the Act by refusing to bargain with the Union on November 20, 1964, and thereafter, although the Union represented a majority of the Employer's employees in an appropriate unit for collective bargaining. The complaint further alleged that the Employer, through its supervisory personnel, violated Section 8(a) (1) by contemporaneously engaging in numerous acts of interrogation, threats, and promises of benefit which coerced and restrained its employees in the exercise of their rights to become or remain members of, or engage in activities on behalf of, the Union. The Employer filed an answer denying each of the above allegations.

Thereafter, on June 16, 1965, the Regional Director amended the complaint to allege that the Employer, by its agent and attorney, John Bacheller, Jr., violated Section 8(a) (1) in that, on or about April 15, 1965, he interrogated an employee about "his reasons for, and intent in, signing an authorization card designating the Union as his bargaining representative," and interrogated another employee "concerning the contents of an affidavit given by the employee to a Board Agent." These acts occurred in the course of Attorney Bacheller's preparation of the Employer's defenses to the original unfair labor practice complaint.

A hearing on the amended complaint was scheduled for June 30, 1965. However, before the hearing began, the Employer by motions to the Board's Chief Trial Examiner sought to sever that part of the complaint relating to Attorney Bacheller's interrogations and to postpone the hearing on the remaining allegations until after a final determination of whether the Attorney's conduct contravened the Act. The motion for severance pressed the following theory. The authorization cards upon which the Union relied in support of its claim of majority status were ambiguous as they did not clearly indicate whether the signer had designated the Union as a bargaining representative or merely authorized the Union to file a representation petition for a Board-conducted secret ballot election. Consequently, it was a proper function of the Employer's attorney in preparing for trial to inquire into the subjective intent of the employees when they signed the authorization cards.⁴

The Chief Trial Examiner denied this motion to sever, which became final on the Board's refusal to review the ruling under § 102.26 of the Board's rules.

After the Chief Trial Examiner's action, and before the Board denied the motion to review, the instant suit was filed. In its court complaint, the Employer set forth essentially the same arguments it pressed before the Board. Jurisdiction of the Federal District Court rested on the assertion that the Employer's refusal to grant the requested severance violated its constitutional right to due process of law as set forth in the Fifth Amendment and as incorporated in Section 10(b) of the Act.

Six months later, the District Court issued its findings of fact, conclusions of law, and order. The order permanently enjoins the Board from conducting its scheduled hearing "until a reasonable time after a final decision" on the unfair labor practice allegations relating to the conduct of Attorney Bacheller. The Court expressly ordered that the hearing on the allegations concerning Attorney Bacheller's conduct "shall not be consolidated with the hearing on other allegations in said case." In addition, the Court, although not requested by the Employer's motion to do so, ordered that counsel for the Employer be permitted to "question such additional employees and former employees of * * * Tidewater as may reasonably be necessary to the preparation of the Employer's defenses to the allegations in the" Labor Board Complaint.

In the course of its decision, the District Court did several specific things. First, it undertook to construe the formal charge of § 8(a) (1) violation in the Board's amended complaint as to the attorney's interrogation. Rejecting the Board's suggestion that pre-hearing interrogation as such is not illegal, but the manner of it may become coercive, the Court declared that the substance of the interrogation, not its manner, was the subject of the charge. Next, without so much as an affidavit from the lawyer, the Court held on summary judgment — a thing which contemplates "no genuine issue as to any material fact," F.R.Civ.P. 56(c) — that the Attorney could not investigate the complaint against the Employer so long as the charge against him was outstanding. Additionally, to the serious charges supported in part by recanting affidavits from two former employees, that the Board's investigating agent had openly solicited testimony known by him to falsely charge antiunion conduct by the Employer, the Court merely declared that, without deciding the issue, it was substantial enough that the Employer's Attorney was "entirely justified in seeking to further investigate the circumstances surrounding the taking of other statements by Board agents in order to be prepared to meet the probability of perjured testimony at the Board hearing."

The upshot of it was that the District Court concluded that due process would not be afforded unless the Board complaint against the Attorney was first determined. To the earnest suggestion that an ample review existed through this Court after the Board's decision, the Judge, perhaps echoing a complaint so long voiced from some quarters, concluded that the review of the ultimate order of the Board by the Court of Appeals was quite insufficient.⁵

Bearing in mind the 7th Circuit's recent observation that "the holding in Meyers that the Act provides an exclusive and adequate review procedure is an important facet of the broader doctrine requiring exhaustion of administrative remedies,"⁶ we are of the clear view that the District Court should have dismissed this case without looking further than Myers v. Bethlehem Shipbldg. Corp., 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. In that well understood decision, now a quarter of a century old, the Court pointed out that any effort by the Federal District Courts to review or supervise unfair labor practice proceedings prior to the issuance of the Board's final order "is at war with the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." 303 U.S. at 50-51, 58 S.Ct. at 463, 82 L.Ed. at 644. And on this record we may echo the 7th Circuit's words that the "principle which requires administrative finality as a prerequisite to judicial review has particular force where, as here, the interlocutory order sought to be reviewed relates to the agency's case-handling procedures."⁷ Of course this rests on the dual premise that Congress has prescribed the method and course of judicial review §§ 10(e), (f), 29 USCA §§ 160(e), (f), and that this method is sufficiently adequate to meet constitutional demands.

Implicit in any such standard is the possibility that where that review is not substantially adequate, different and more direct judicial intervention might be available. But in the very rich thirty-year history of the Labor Act and its thousands of litigated controversies, those instances have proved to be rare.⁸ These cases (note 8, supra), so successfully pressed on the District Court, afford no basis for the extraordinary action taken below. They are, first, representation cases, not unfair labor practice cases, as to which there is a deferred and more limited judicial review under § 9(d). And even within the confines of representation proceedings, judicial intervention is restricted, we have said, to three highly specialized situations. Boire v. Miami Herald Publishing Co., 5 Cir., 1965, 343 F.2d 17, 21. And the Supreme Court characterized the Leedom and McCulloch exceptions as involving "extraordinary circumstances." Boire v. Greyhound Corp., 1964, 376 U.S. 473, 479, 84 S.Ct. 894, 898, 11 L.Ed.2d 849, 854; 43 Texas L.Rev. 251. See Potter v. Castle Constr. Co., 5 Cir., 1966, 355...