Commarato v. McLeod, 71 Civ. 3594.

• Decision Date: 01 November 1971
• Docket Number: No. 71 Civ. 3594.,71 Civ. 3594.
• Citation: 335 F. Supp. 118
• Parties: Louis COMMARATO, as President of Local 400, Sheet Metal Workers International Association, AFL-CIO, Plaintiff, v. Ivan C. McLEOD, Regional Director, Second Region of the National Labor Relations Board, Defendant.
• Court: U.S. District Court — Southern District of New York

335 F. Supp. 118

Louis COMMARATO, as President of Local 400, Sheet Metal Workers International Association, AFL-CIO, Plaintiff, v. Ivan C. McLEOD, Regional Director, Second Region of the National Labor Relations Board, Defendant.

No. 71 Civ. 3594.

United States District Court, S. D. New York.

November 1, 1971.

Katz & Wolchok, New York City, for plaintiff.

Glen M. Bendixsen, Chief, Sp. Litigation, N. L. R. B., Washington, D. C., Sidney Danielson, Reg. Atty., Reg. 2, N. L. R. B., New York City, for defendant.

OPINION

MOTLEY, District Judge.

Plaintiff, the President of Local 400, Sheet Metal International Association, AFL-CIO (Local 400) moves this court for a preliminary injunction enjoining defendant, Ivan McLeod, Regional Director of the Second Region of the National Labor Relations Board (Regional Director), from conducting a representation election under Section 9 of the National Labor Relations Act (29 U.S.C. § 159), pending the final disposition of unfair labor practice charges pending before the National Labor Relations Board (the Board). The Regional Director opposes the issuance of the preliminary injunction and moves to dismiss the complaint on the ground that the court lacks jurisdiction to review a NLRB order to proceed with a representation election.

The court, after reviewing the affidavits and after hearing extensive oral argument on August 19, 1971, issued an order on August 20, 1971, granting the Board's motion to dismiss the complaint. This opinion sets forth the reasons for the granting of that motion.

Findings of Fact

1. On November 19, 1970, the Regional Director, pursuant to Sections 3(b) and 9(c) of the National Labor Relations Act (29 U.S.C. §§ 153(b) and 159(c)), directed that a secret ballot election be conducted on December 29, 1970 among the employees of the Art Steel Company, Inc. (the Company). The election was to determine whether Local 400, the incumbent bargaining representative, or two rival labor organizations, Truck Drivers Union, Local 807 (Local 807) and District 65, Wholesale, Retail, Office and Processing Union (District 65) would represent the employees of the Company. These latter two unions would represent the employees jointly if they won.

2. This election, scheduled for December 29, 1970, however, was postponed. A strike called by Local 807 and District 65 resulted in the filing of unfair labor practice charges by Local 400 and the Company. These charges against Local 807 and District 65 were settled. The unions agreed not to engage in the acts found to be unfair and to post appropriate notices for 30 days. Thereafter, the Regional Director notified all parties that he wished to proceed with the election.

3. In April of 1971, prior to the scheduling of the election, all three unions filed charges against the Company alleging it had violated Section 8(a) (1) of the Act by promising benefits to its employees if they resigned union membership. In particular, the unions charged the Company with 1) distributing leaflets on October 29, 1970 and December 1, 1970 in which it promised employees improved medical, hospitalization and pension benefits if they abandoned membership in the unions; and 2) distributing a leaflet in which the company allowed employees who rejected union membership to participate in a raffle for a one-week vacation. The Regional Director found merit in the charges, issued a consolidated complaint, and noticed a hearing before a Board Trial Examiner. Having found that there was merit in the charges warranting a complaint, the Regional Director, acting pursuant to the "blocking charge rule", suspended any further action in the election proceeding. The "blocking charge rule", adopted by the Board, forbids the Board from holding an election where there is an unfair labor practice charge outstanding. However, the Board has varied from its "rule" where specific occasions demand. N. L. R. B. v. Midtown Service Co., 425 F.2d 665 (2d Cir. 1970).

4. In addition the Regional Director moved in the District Court under § 10(j) of the Act (29 U.S.C. § 160(j)) for an injunction restraining the employer from unfair labor practices during the pendency of the charges before the Board. The court, on July 7, 1971, refused to issue the injunction stating

"The alleged violations are old, the latest having occurred over three months ago. There is no showing that they are about to occur again."

Thus, the court found that the Company would probably not repeat its practices, and that little continuing damage had been done by the prior practices.

5. On July 15, 1971, Local 807 and District 65 filed a joint motion with the Board to proceed with the election previously directed by the Regional Director, notwithstanding the pending complaint against the Company. That complaint as of the date of the election was still pending.

6. On July 23, 1971, Local 400 filed a response in opposition to the joint motion to proceed with the election. On July 30, 1971, the Board granted the joint motion to proceed on the ground that "the policies of the Act would best be effectuated by proceeding with the election at this time."

Conclusions of Law

1. The court and both parties agree that, as a general rule, federal district courts are without jurisdiction to review Board orders directing an election or designating a proper unit. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); Fay v. Douds, 172 F.2d 720 (2d Cir. 1949). This is because representation proceedings under the Act are not adversary in nature and are not considered to result in the issuance of judicially reviewable final orders. A. F. L. v. N. L. R. B., 308 U.S. 401, 409, 60 S.Ct. 300, 84 L.Ed. 347 (1939). Such rulings are reviewable exclusively in the Courts of Appeals under Sections 10(e) and (f) of the Act, if and when they form the basis of a subsequent unfair labor practice proceeding. Boire v. Greyhound Corp., 376 U.S. 473, 476-477, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964).

2. However, this general rule of non-reviewability is subject to one exception that is relevant in this case. The Supreme Court has permitted district courts, pursuant to their jurisdiction under 28 U.S.C. § 1337, to review representation cases when the Board has acted in direct contravention of a specific mandate of the Act. Leedom v. Kyne, supra. This exception has been narrowly construed. Boire v. Greyhound, supra.

3. Local 400's claim is that the Board's order to proceed with the election is in direct violation of Sections 1 and 7 of the Act and that, therefore, this court has jurisdiction to review the order. The court disagrees.

Sections 1 and 7 of the Act are general policy sections. Section 1 states that,

"It is declared to be the policy of the United States to . . .

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