Bullard Company v. NLRB
Decision Date | 05 April 1966 |
Docket Number | Civ. A. No. 651-66. |
Citation | 253 F. Supp. 391 |
Parties | The BULLARD COMPANY, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, Frank W. McCulloch, John H. Fanning, Gerald A. Brown, Howard Jenkins, Sam Zagoria, Members of the Board, Ivan C. McLeod, Regional Director for the Second Region, Defendants. |
Court | U.S. District Court — District of Columbia |
Jerome Ackerman and John S. Koch, of Covington & Burling, Washington, D. C., for plaintiff.
Marcel Mallet-Prevost, Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Solomon I. Hirsh, and Warren M. Laddon, Washington, D. C., for defendants.
This cause came on for hearing on plaintiff's motion for preliminary injunction and defendants' motion to dismiss or in the alternative for summary judgment. It appears that the facts are essentially as follows:
The Bullard Company is a Connecticut corporation engaged in the manufacturing of machine parts. On October 29, 1965, pursuant to a petition filed by the International Molders & Allied Workers Union (hereinafter called the Union), the National Labor Relations Board conducted a representation election. Out of 248 eligible voters, 234 ballots were cast; 119 against the Union, 109 were for the Union, and 6 ballots were challenged. On November 3, 1965, the Union filed objections to this election with the Regional Director. The objections stated:
The Regional Director recommended that the Union's objections be overruled. He found that the carrying of ballots in the Board Agent's pocket was a reasonable security device. He found that the allegation of Walter G. Wright was unsupported and even if it were, it had no effect on the election as a whole. He found nothing improper concerning the Board Agent's having lunch in that portion of the cafeteria usually reserved for management. He found that the Board Agent in no way attempted to dissuade the Union's observers from exercising their right to challenge ballots. He found that the Board Agent was never out of sight of the polling booth. Finally, he found that the ballots appearing in the Board Agent's briefcase were merely duplicates and that the Board Agent kept them in his briefcase for safekeeping. The Regional Director concluded that there was no merit in the Union's contentions and that the election should not be set aside. Whereupon, the Union filed a timely appeal to the Board and on February 25, 1966, a three-member panel of the Board (one member dissenting), made the following finding:
Plaintiff seeks to enjoin the second election, and seeks to compel certification of the October 29 election. Plaintiff relies primarily on § 9 of the Act, 29 U.S.C. § 159, which provides in pertinent part:
Plaintiff argues that, since the election was admittedly valid, the Board was under a mandatory statutory duty to certify the results thereof.
In certification proceedings, the equity jurisdiction of district courts is limited. The general rule is that orders of the Board are judicially reviewable only under § 10 of the Act.1 This rule has three exceptions: (1) where the Board action results in a denial of a constitutional right;2 (2) where the suit concerns "public questions particularly high in the scale of our national interest because of their international complexion";3 and (3) where the Board has acted in excess of its delegated powers and contrary to a specific prohibition in the Act.4 The Court is of the opinion that the instant case revolves around a determination of whether jurisdiction lies through the Leedom v. Kyne exception.
In Leedom v. Kyne, the Supreme Court held that a district court could entertain a suit to vacate an N.L.R.B. certification which clearly exceeded the Board's statutory authority. The case involved the formation of an association to represent certain professional employees. When the association petitioned for N.L.R.B. certification, the Board allowed intervention by a competing labor organization which sought to include the professional employees within its ranks. The Board found that these additional employees should be included in the larger bargaining unit on the theory that both groups shared a unity of interest. The Board refused to hold an election to determine whether the professional employees desired inclusion in the mixed unit. The Board did, however, hold an election among all employees as to which union was to represent them. The professional association won the election, but then filed suit to vacate the certification order alleging that the Board had exceeded its statutory power by including the professional employees in the mixed group without their consent. The Supreme Court held that the district court had jurisdiction to entertain the suit, reasoning that "`if the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.'"5 In view of the allegations of the plaintiff in the instant case, the Court finds it necessary to consider whether an employer can avail itself of the Leedom v. Kyne exception.
The Court can find no authority for the proposition that the Leedom v. Kyne exception is denied an employer simply because it is an employer. In Miami Newspaper Printing Pressmen's Union, Local 46 v. McCulloch, 116 U.S.App.D.C. 243, 322 F.2d 993 (1963), in dictum, the Court of Appeals stated:
"Indeed, this Court has recognized that the Leedom v. Kyne remedy was not devised for the benefit of an employer."6
The case relied upon for this statement was Atlas Life Insurance Company v. Leedom, 109 U.S.App.D.C. 97, 284 F.2d 231 (1960). In Atlas, the employer sought an injunction to invalidate certification of a union on the ground that no hearing had been held as to the compliance by the union with the affidavit requirements of the Act. The Court of Appeals held that there was an adequate legal remedy which militated against the assumption of equitable jurisdiction by the district court. It is clear that the facts in Atlas are quite different from the instant case, for, here, the Court is confronted with a situation where there was an admittedly valid election and all the plaintiff seeks is an injunction compelling the Board to perform its statutory duty to certify the results of that election. Furthermore, in Miami Pressmen, the Court found that the failure of the Board to follow the provisions of the Act "amounted to arbitrary and capricious conduct by the Board, depriving the Union of a right given by the Act."7
The Board relies upon a number of other cases which held that an employer has no standing to pursue a Leedom v. Kyne remedy. Each of these cases can be distinguished from the present one. In Kingsport Press v. McCulloch, 118 U.S.App.D.C. 365, 336 F.2d 753 (1964), cert. denied 379 U.S. 931, 85 S.Ct. 330, 13 L.Ed.2d 343 (1964), the employer did not charge failure to comply with a mandatory provision of the Act. In General Cable Corporation v. Leedom, 107 U.S. App.D.C. 357, 278 F.2d 237 (1960), a valid election had not been held and the employer's suit was predicated upon a change in administrative policy; there was not an effort to compel compliance with a specific provision of the Act. In Norris v. National Labor Relations Board, 85 U.S.App.D.C. 106, 177 F.2d 26 (1949), the employer based its suit on grounds similar to that in Atlas Life Insurance Company v. Leedom, supra, namely, failure of the Board to hold a hearing prior to the ordering of an election. It is noted that the Supreme Court has interpreted the provision calling for a hearing as a...
To continue reading
Request your trial-
Physicians Nat. House Staff Ass'n v. Fanning
...instigated a ULP order by refusing to bargain on behalf of the nonprofessional employees in the bargaining unit. See Bullard Co. v. NLRB, 253 F.Supp. 391, 395 (D. D.C. 1966); Note, Supreme Court, 1958 Term, 73 Harv. L. Rev. 126, 219 (1959). This court's opinion in Kyne convincingly disputes......
-
Schwarz Partners Packaging, LLC v. Nat'l Labor Relations Bd.
...it of standing.8 The plaintiff challenges this assertion by citing to a forty-eight year old district court case, Bullard Co. v. NLRB, 253 F.Supp. 391, 393 (D.D.C.1966), where the district court found Leedom jurisdiction available when an employer sought to force the NLRB to certify a valid......
-
New York University v. NLRB
...116 U.S.App.D.C. 243, 322 F.2d 993 (1963); United Automobile Workers v. N. L. R. B., 317 F.Supp. 1162 (D.D.C.1970); Bullard Co. v. N. L. R. B., 253 F.Supp. 391 (D.D.C.1966). Plaintiff's argument as to the Law School faculty fails for a similar reason. N.Y.U. argues that the Board's order, i......
-
National Maritime Union of America, AFL-CIO v. NLRB
...Union Local 46 v. McCulloch, 116 U.S.App.D.C. 243, 322 F.2d 993 (1963), and the holding was followed in Bullard Company v. N. L. R. B., 253 F. Supp. 391 (D.D.C.1966), I. U. E. v. N. L. R. B., 67 L.R.R.M. 2361 (D.D.C.1968), and United Automobile, A. & A. I. Workers of America v. N. L. R. B.,......