Boyles Galvanizing Company of Colorado v. Waers, 6673.

• Decision Date: 06 June 1961
• Docket Number: No. 6673.,6673.
• Citation: 291 F.2d 791
• Parties: BOYLES GALVANIZING COMPANY OF COLORADO, Appellant, v. Clyde F. WAERS, Regional Director, Seventeenth Region, The National Labor Relations Board, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

291 F.2d 791 (1961)

BOYLES GALVANIZING COMPANY OF COLORADO, Appellant, v. Clyde F. WAERS, Regional Director, Seventeenth Region, The National Labor Relations Board, Appellees.

No. 6673.

United States Court of Appeals Tenth Circuit.

June 6, 1961.

William E. Shade and Ira C. Rothgerber, Jr., of Rothgerber, Appel & Powers, Denver, Colo., for appellant.

Richard J. Scupi, Attorney N.L.R.B., Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Provost, Asst. Gen. Counsel, and James C. Paras, Attorney, National Labor Relations Board, Washington, D. C., and Francis Sperandeo, Denver, Colo., on the brief), for appellees.

Before MURRAH, Chief Judge, PICKETT, Circuit Judge, and SAVAGE, District Judge.

PICKETT, Circuit Judge.

In this case the plaintiff, a Colorado manufacturer, seeks to enjoin the Regional Director of the National Labor Relations Board from conducting a representation election among its employees. The election was ordered by the Board pursuant to Section 9 of the National Labor Relations Act. 29 U.S.C.A. § 159. In substance, the complaint alleges that the Board assumed jurisdiction over plaintiff's business operations contrary to its own established jurisdictional standards. The Order of Election contains the following statement:

"The Employer is a corporation located at Denver, Colorado, where it is engaged in galvanizing metals for customer trade. At the hearing, it declined to stipulate that it was engaged in commerce within the meaning of the Act. The record shows that, during the first 10 months of its current fiscal year, the Employer\'s sales to customers located in Colorado exceeded $100,000. Direct out-of-State purchases amounted to $25,000, while direct out-of-State sales totalled $5,400. No evidence was produced at the hearing to indicate to what extent the Employer\'s customers in Colorado made sales to points located outside the State. However, the record also shows that the Employer was involved in a previous proceeding before the Board (See Boyles Galvanizing Company of Colorado, 121 NLRB 1373, issued on October 15, 1958) in which the Board asserted jurisdiction over the Employer on the ground that it made sales in excess of $100,000 to customers in Colorado which in turn made out-of-State sales in excess of $50,000. As the record fails to disclose that the business operations of the Employer or its Colorado customers have changed since our previous decision, we find that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction over it."

It is urged that the Board's assertion of jurisdiction over the plaintiff's business, wholly upon the assumption that its volume of business was the same as in a previous proceeding before the Board, was an unconstitutional and discriminatory application of the statute which could be enjoined. The trial court dismissed the action upon the ground that it lacked jurisdiction over the subject matter since the plaintiff had an adequate statutory method of obtaining a judicial review of the Board's action.

Representation proceedings under Section 9, as a general rule, are not reviewable except as an incident of enforcement proceedings in the Court of Appeals. Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; N. L. R. B. v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396; A. F. L. v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Leedom v. International Brotherhood of Electrical Workers, 107 U.S.App.D.C. 357, 278 F. 2d 237; Leedom v. Norwich, Conn. Printing Union, 107 U.S.App.D.C. 170, 275 F.2d 628, certiorari denied 362 U.S. 969, 80 S.Ct. 955, 4 L.Ed.2d 900. See generally, Annotation, 1945, 158 A.L.R. 1339. It is also well established that unless the Board engages in some unlawful action by departure from statutory requirements, or those of due process, a federal district court does not have jurisdiction in an action brought to contest National Labor Relations Board decisions in Section 9 representation proceedings. Department and Specialty Store Employees' Union v. Brown, 9 Cir., 284 F.2d 619, 624; Leedom v. International Brotherhood of Electrical Workers, supra; Leedom v. Norwich, Conn. Printing Union, supra; National Biscuit Division (Biscuit, Bakery and Confectionery Workers' International Union of America) v. Leedom, 105 U.S.App.D.C. 117, 265 F.2d 101, certiorari denied 359 U.S. 1011, 79 S.Ct. 1151, 3 L.Ed.2d 1037; De Pratter v. Farmer, 98 U.S.App.D.C. 74, 232 F.2d 74; Volney Felt Mills, Inc. v. Le Bus, 5 Cir., 196 F.2d 497. Cf. Inland Empire District Council, Lumber and Sawmill Workers Union v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877. The foregoing rules are in accord with the legislative history of the Act. Congress, on two separate occasions,...