Bradley Lumber Co. v. National Labor Relations Board
| Citation | 84 F.2d 97 |
| Decision Date | 05 June 1936 |
| Docket Number | No. 8054.,8054. |
| Parties | BRADLEY LUMBER CO. OF ARKANSAS et al. v. NATIONAL LABOR RELATIONS BOARD et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Roberts C. Milling, of New Orleans, La., and Robert H. Kelley, of Houston, Tex., for appellants.
Robert B. Watts, Asst. Gen. Counsel, National Labor Relations Board, of Washington, D. C., and David C. Shaw, Atty., National Labor Relations Board, of New Orleans, La., for appellees.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
Bradley Lumber Company (called herein the Lumber Company) and Bradley Lumber Sales Company (called the Sales Company), both corporations of Arkansas, filed in the District Court for the Eastern District of Louisiana a bill to enjoin the taking of testimony by C. H. Logan, the Regional Director for the National Labor Relations Board, touching a complaint put forward by Logan for the Board charging the Lumber Company and Sales Company with unfair labor practices in discharging certain employees and touching a petition made by a labor union against the Lumber Company for an investigation by the Board of a controversy about representation of the employees in bargaining. Joined as defendants with Logan were the Board and the three persons who compose it and its local attorney. Logan and the attorney were alleged to be inhabitants of New Orleans, in the district where the bill was filed, the others of the District of Columbia; but the Board was alleged to have a regional office in New Orleans in charge of Logan upon whom service of the Board might be made. A temporary restraining order was issued, and a hearing for interlocutory injunction appointed. The Board and its members appeared specially by attorney to move to quash the subpœna as to them on the grounds that the Board is not subject to be sued in a District Court, that they had not been validly served by service on Logan in the New Orleans office, and that none of them resided in Louisiana and were not subject to suit or service there. Logan moved to dismiss the bill as to him because no irreparable injury cognizable in equity was alleged, because there was a plain and adequate remedy at law under the National Labor Relations Act (29 U.S. C.A. § 151 et seq.), and because the act was constitutional and authorized what he was doing, and because at last he was not empowered or intending to issue any order or take any action against the Lumber Company or Sales Company. He also answered to the merits. Upon the hearing the court dismissed the Board and its members from the suit without prejudice. It also dismissed the bill as against Logan and the attorney for want of equity. The Lumber Company and Sales Company appeal from these judgments.
Appellants concede that they cannot sue or serve the members of the Board in Louisiana, and since they refused to appear, that they were rightly dismissed from the suit. But appellants contend the Board itself is subject to suit in Louisiana where it has established a regional office, and that it has been rightly served through its Regional Director there. The Board is created by section 3 of the National Labor Relations Act of July 5, 1935, 49 Stat. pp. 449, 451 (29 U.S.C.A. § 153). Its purpose and function is to administer that act, though it proceeds also in a quasi judicial way in hearing evidence and making findings, which however it cannot by itself enforce. It is not expressly made a corporation, but it is an entity, acting by a quorum, and having a seal which is to be judicially noticed. It can appoint various agents, including attorneys who at its direction "may * * * appear for and represent the Board in any case in court." Section 4 (29 U.S.C.A. § 154). "The principal office of the Board shall be in the District of Columbia, but it may meet and exercise any or all of its powers at any other place." Section 5 (29 U.S.C.A. § 155). By section 10 (e) of the act (29 U.S. C.A. § 160 (e), the Board may petition the Circuit Courts of Appeal, and the District Courts in some circumstances, to enforce its orders, and by section 10 (f), 29 U.S.C.A. § 160 (f) it may be proceeded against by persons aggrieved by a final order in the Circuit Courts of Appeals in the District where the unfair labor practice was alleged to be engaged in, or where the aggrieved person resides, or in the District of Columbia. To the extent the Board is thus made a legal entity distinct from its members as individuals, which may sue and be sued in respect of its appointed activities, it is located in the District of Columbia and cannot be called on as such to answer in the courts elsewhere except as specially provided by law. Section 10 (f) provides that a final order may be attacked by impleading the Board either in the District of Columbia, or in a Circuit Court of Appeals of the circuit where the aggrieved person resides or the subject-matter of the order arose. This provision does not apply here, since there is as yet no final order, and since the aggrieved persons do not reside in the Eastern District of Louisiana, nor are the labor practices concerned alleged to have arisen there, nor was a Circuit Court of Appeals entered. Supposing that a court of the District of Columbia can in a proper case restrain the Board from exceeding its jurisdiction before it makes a final order, the Board is not under the law made answerable elsewhere than at its official home until it has made a final order. Since the Board was not suable in the District Court of the Eastern District of Louisiana, we need not pass upon the sufficiency of the service on it there. The Board was properly dismissed from this suit.
If Logan, as the bill contends, is about to do an injurious thing, unjustified by a valid law or a valid authority from the Board and of a sort which equity is accustomed to restrain, the District Court of his domicile can enjoin him from so doing although the Board for whom and in whose name he is acting cannot be reached by its process. Ryan v. Amazon Petroleum Corporation (C.C.A.) 71 F.(2d) 1; Rood v....
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