Caribe Constr. Co. v. Penn, 14,952

• Decision Date: 26 March 1965
• Docket Number: No. 14,970,No. 14,952,14,952,14,970
• Citation: 5 V.I. 180
• Parties: CARIBE CONSTRUCTION CO., INC., petitioner v. EDMUND L. PENN, Deputy Commissioner for labor, Respondent VIRGIN ISLANDS LABOR UNION, Intervenor
• Court: U.S. Court of Appeals — Third Circuit

5 V.I. 180

CARIBE CONSTRUCTION CO., INC., petitioner v. EDMUND L. PENN, Deputy Commissioner for labor, RespondentVIRGIN ISLANDS LABOR UNION, Intervenor

No. 14,952

No. 14,970

United States Court of Appeals Third Circuit

Argued January 26, 1962

Decided March 26, 1965

See, also, 342 F.2d 964

Appeal from judgment of the District Court of the Virgin Islands, Division of St. Thomas and St. John, Gordon, J., involving the validity of certification by Deputy Commissioner for Labor that union had been selected by majority of employees as their collective bargaining agent. The Court of Appeals, Maris, Circuit Judge, held that record failed to support finding that the Deputy Commissioner abused his discretion in choosing to ascertain the facts through personal interviews with the employees rather than by conducting an election.

Judgment reversed and cause remanded with directions.

[COPYRIGHT MATERIAL OMITTED]

JOHN L. MADURO (BIRCH, MADURO & DEJONGH), Charlotte Amalie, Virgin Islands, for Virgin Islands Labor Union, appellant in No. 14,952

ALEXANDER A. FARRELLY, Assistant United States Attorney, Charlotte Amalie, Virgin Islands, for Edmund L. Penn, Deputy Comm'r for Labor, appellant in No. 14,970

WILLIAM W. BAILEY (BAILEY & WOOD), Charlotte Amalie, Virgin Islands, for Caribe Const. Co., Inc., appellee

Before MARIS, MCLAUGHLIN and FREEDMAN, Circuit Judges

MARIS, Circuit Judge

This appeal from a judgment of the District Court of the Virgin Islands involves the validity of a certification by the defendant, Edmund L. Penn, Deputy Commissioner for Labor of the Department of Agriculture and Labor of the Government of the Virgin Islands, that the Virgin Islands Labor Union, S.I.U., AFL-CIO, had been selected by a majority of the employees of the plaintiff, Caribe Construction Company, Inc., as their collective bargaining representative.

It appears that the Union on November 14, 1961 filed with the Department of Agriculture and Labor a petition for certification as the bargaining representative of a unitof 27 employees of the Company. The petition was accompanied by written authorizations, signed by 23 of the employees, in the following form:

"I, the undersigned, hereby authorize the Virgin Islands Labor Union, S.I.U, AFL-CIO, to be my exclusive collective bargaining agency in all matters pertaining to pay rates, hours of work, conditions of employment and to negotiate and execute a contract in my behalf, and hereby file my application for membership in said union.

"This authorization suspends and revokes any other authorization previously given."

On November 22, 1961 the Deputy Commissioner requested Roger F. Moran, the president of the Company, to appear on November 27, 1961 for an informal conference in regard to the petition. The conference was held and was attended by Moran and by Roy Gottlieb, executive director of the Union. At the conference Moran presented written statements, signed by 29 of the Company's employees, including the 23 individuals referred to above, in the following form, with individual variations in 7 instances:

"To Whom It May Concern:

I am an employee of Caribe Construction Company, Inc. I have not asked that the Virgin Islands Labor Union be the bargaining representative between myself and my employer. I have no grievance with nor complaint against Caribe Construction Company. I am satisfied with my working conditions, my wages and the opportunity for advancing myself as an employee of Caribe.

I DID NOT READ THE UNION PETITION I SIGNED.

November 24, 1961."

At the hearing in the district court Moran testified that these statements had been prepared by him and read by him to each of the Company's employees and that all had signed them.

Faced with these conflicting sets of statements the Deputy Commissioner decided to make a personal investiga-tion. He himself interviewed 19 (all he could locate) of the 23 employees who had signed the Union authorization papers. At the subsequent hearing in the district court he testified: "I asked them whether they had signed this application, did they know what it is, and they admitted their signatures. . . . They admitted to their signatures in every instance. . . . They said they had signed a statement that the employer had prepared and given them to sign. . . . Some of them showed indifference and some were undecided as to why they signed this other document that the employer presented. . . . They could not tell me why they had signed it. . . . My investigation disclosed that each of the employees had signed these documents—these applications for representation, and that they had not withdrawn these applications. ... In questioning the employees some of them did say that they had signed this other document—they were uncertain, but they had not withdrawn their application from [sic] membership for representation."

At the conference on November 27, 1961 Moran had requested the Deputy Commissioner to hold an election of the employees to determine their choice of collective bargaining representative. However, after making his investigation the Deputy Commissioner concluded that a majority of the employees had authorized the Union to represent them in collective bargaining with the Company and that the statements prepared by Moran and signed by the employees at his request could not be regarded as having been intended by the employees to withdraw that authority. On the contrary, the Deputy Commissioner testified that he believed those papers to be an interference by the employer within the selection of collective bargaining representative by its employees. Accordingly the Deputy Commissioner did not grant Moran's request for an election but on December 28, 1961 formally certified that the Union had been selected by a majority of the employees of the Company as their rep-resentative for the purpose of collective bargaining and that, pursuant to 24 V.I.C. chapter 3, the Union was the exclusive representative of all the employees in the collective bargaining unit.

[1, 2] On January 11, 1962 the Company, pursuant to 5 V.I.C. § 1421, filed a petition for a writ of review of the Deputy Commissioner's action. Twelve days thereafter the Company filed a petition and notice of appeal under 24 V.I.C. § 70. The latter section confers jurisdiction upon the district court to review only "a final order of the Commissioner granting or denying in whole or in part the relief sought." This language was taken directly, in haec verba, from section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), which has been held by the Supreme Court not to apply to the certification of a collective bargaining representative because such a certification is not an order within the meaning of that section. American Federation of Labor v. Labor Board, 1940, 308 U.S. 401. This language of 24 V.I.C. § 70, the precursor¹ of which was enacted after the decision of the American Federation of Labor case, must be given the same meaning on principles of statutory construction which are settled in the Virgin Islands. Municipality v. Stakemann, D.C.V.I. 1924, 1 VI. 60 ; James v. Henry, D.C.V.I. 1957, 3 V.I. 273, 157 F.Supp. 226; Williams v. Dowling, 3 Cir. 1963, 4 V.I. 465, 318 F.2d 642. It follows that the district court did not have jurisdiction of the petition and notice of appeal filed under 24 V.I.C. § 70.

[3] The petition for a writ of review which the plaintiff filed under 5 V.I.C. § 1421 et seq., stands on a sounder footing, however. Under § 1421 any party to a proceeding before or by an officer may have the decision or determination thereof reviewed by the district court for errorstherein. Under § 1422 the writ of review may be allowed where there is no appeal or other plain, speedy, and adequate remedy and where the officer appears to have exercised his functions erroneously, or to have exceeded his jurisdiction, to the injury of some substantial right of the plaintiff. Here the certification proceeding was a proceeding before an officer, the Deputy Commissioner, and the certification itself was a determination by him which affected a substantial right of the Company, the right to have to bargain collectively only with a representative who was actually authorized by its employees to represent them. As to this determination the Company had no appeal or other plain, speedy and adequate judicial remedy. The district court accordingly properly entertained the proceeding before it as a writ of review under 5 V.I.C. § 1421 et seq.

24 V.I.C. § 67(a), as it read prior to the amendment of April 6,1964, provided :

"(a) Whenever a question arises concerning the representation of employees, the Commissioner may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Commissioner shall provide for an appropriate hearing upon due notice, and may take a secret ballot of employees or utilize any other suitable method to ascertain such...