Daniel Construction Company v. NLRB, No. 9347

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: FAHY, BRYAN and J. SPENCER BELL, Circuit
• Citation: 341 F.2d 805
• Parties: DANIEL CONSTRUCTION COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Intervenor. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Daniel Construction Company, Inc., Intervenor.
• Decision Date: 07 January 1965
• Docket Number: No. 9347,9414.

341 F.2d 805 (1965)

DANIEL CONSTRUCTION COMPANY, Inc., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Intervenor.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Daniel Construction Company, Inc., Intervenor.

Nos. 9347, 9414.

United States Court of Appeals Fourth Circuit.

Argued September 30, 1964.

Decided January 7, 1965.

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No. 9347

Robert T. Thompson and Knox L. Haynsworth, Jr., Greenville, S. C. (Thompson, Ogletree & Haynsworth, Greenville, S. C., on brief), for Daniel Const. Co.

Melvin Pollack, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Margaret M. Farmer, Atty., N. L. R. B., on brief), for National Labor Relations Board.

Patrick C. O'Donoghue, Washington, D. C., O'Donoghue & O'Donoghue and Martin F. O'Donoghue, Jr., Washington, D. C., on brief), for United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of United States and Canada, AFL-CIO.

No. 9414:

Patrick C. O'Donoghue, Martin F. O'Donoghue, Jr., and O'Donoghue & O'Donoghue, Washington, D. C., on brief for Petitioner.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack and Margaret M. Farmer, Attys., N. L. R. B., on brief for respondent.

Robert T. Thompson, Knox L. Haynsworth, Jr., and Thompson, Ogletree & Haynsworth, Greenville, S. C., on brief for intervenor.

Before FAHY,^* BRYAN and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

Petitioner, Daniel Construction Company (hereinafter Daniel), has lodged this appeal to have us review and set aside two orders of the National Labor Relations Board. The first is a cease-and-desist order which rests upon a NLRB determination that the company

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has interfered with, restrained, and coerced its employees in violation of section 8(a) (1) of the National Labor Relations Act, as amended (hereinafter the Act).¹ The primary contention of the company regarding this order is that there is no substantial evidence in the record considered as a whole to support a finding that it has committed unfair labor practices. The second order to which Daniel objects is one directing that a new representation election be conducted for Daniel employees

In order to fully understand the issues raised by this appeal, certain background facts should be stated. The record indicates that Daniel is a large South Carolina corporation engaged in the building and construction industry as a general contractor. In 1961 it was the second largest industrial contractor in the United States, with extensive domestic and foreign operations. At that time the company was divided into five divisions, the largest of which was the Greenville Division which employed some 6,000 workers on projects scattered throughout Florida, Georgia, Alabama, Tennessee, and the Carolinas.

On February 24, 1961, a petition was filed by the United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry in the United States and Canada, AFL-CIO (hereinafter the union) requesting certification as the bargaining agent for the Daniel mechanical employees² working for the Greenville Division. After the appropriate hearings, a representation election was ordered held on November 16, 1961; at this election the union was defeated by a vote of 684 to 247.³ On February 8, 1962, the union filed both unfair labor practice charges and objections to conduct by Daniel affecting the result of the representation election.⁴ After due consideration the Regional Director recommended that a hearing be held on certain of the objections to conduct; he also ordered that a complaint be issued on some of the unfair labor practice charges. Since substantially the same conduct was involved in both the election conduct objections and the unfair labor practice charges, the Board on March 5, 1963, over the protest of Daniel, ordered the consolidation of the representation case and the unfair labor practice case for a hearing before a trial examiner.

On January 31, 1964, after a hearing and the subsequent issuance of an Intermediate Report by the trial examiner in the consolidated case, the NLRB, agreeing mostly but not completely with the trial examiner, found that certain pre-election conduct of the company constituted violations of section 8(a) (1) of the Act and ordered Daniel to cease and desist therefrom. The Board found further that the Daniel conduct in issue had interfered with the employees' freedom of choice at the representation election, and it, therefore, ordered that the prior election be set aside and that a new election be held when the coercive employer interference ceased. On February 3, 1964, Daniel filed a petition of appeal seeking a review of both aspects of the Board decision in the consolidated case.

I.

We deal first with the appeal from the Board's order in the representation case that a new election he held and the challenge

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by Daniel as a part of that appeal to the legality of the company unit determined by the Board as the appropriate one for collective bargaining purposes. We dismiss the petition of appeal insofar as it concerns a review of the representation case orders, since we think it clear that this court is without jurisdiction at this time to review the NLRB orders in that case. AFL v. NLRB, 308 U.S. 401, 406, 409, 60 S.Ct. 300, 84 L.Ed. 347 (1940); NLRB v. IBEW, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940).⁵ Only with respect to final orders of the Board in unfair labor practice cases has Congress, by section 10(f) of the Act, seen fit to expressly authorize judicial review, and we do not read section 9(d), the only subsection of that section of the Act dealing particularly with representation proceedings which even refers to judicial review, as expanding by implication the scope of appellate jurisdiction created by the express statutory provision. Section 9(d) merely provides that when review is sought in an unfair labor practice case which is based in whole or in part upon a Board certification in a representation case, the record in the representation case shall be included in and considered by the court as an integral part of the entire record in the unfair labor practice case. Neither the Taft-Hartley Act nor the Administrative Procedure Act has enlarged the Wagner Act provisions for appellate review of NLRB orders. Timkin-Detroit Axle Co. v. NLRB, 197 F.2d 512 (6 Cir. 1952); Amazon Cotton Mill Co. v. Textile Workers Union, 167 F.2d 183, 186 (4 Cir. 1948). To the contrary, in the course of enacting the Taft-Hartley Act, Congress expressly rejected a House proposal which would have permitted judicial review of Board orders in representation cases. See 93 CONG. REC. 6444 (1947) (remarks of Senator Taft)

The cases make it abundantly clear that there can be no review under section 9(d) of the Act of Board action in a representation case until the Board has issued an order which requires the employer to do something predicated upon the results of an election. NLRB v. Falk Corp., 308 U.S. 453, 459, 60 S.Ct. 307, 84 L.Ed. 396 (1940); E. I. Du Pont de Nemours & Co. v. NLRB, 116 F.2d 388, 401 (4 Cir. 1940), cert. denied, 313 U.S. 571, 61 S.Ct. 959, 85 L.Ed. 1529 (1941). The consolidation of the representation and unfair labor practice cases by the Board here cannot help the petitioner, since that administrative act cannot confer jurisdiction upon this court to review the orders in the representation proceeding now when no such jurisdiction exists under the governing statute. Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106 (5 Cir. 1963); NLRB v. La Salle Steel Co., 178 F.2d 829, 832 n. 1 (7 Cir. 1949), cert. denied, 339 U.S. 963, 70 S.Ct. 996, 94 L.Ed. 1372 (1950). Nothing in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the case relied upon by Daniel as supporting appellate review of the Board action in the representation case at this stage of the proceedings, alters the principles stated above. The Supreme Court was careful to distinguish, with the following language, its decision there from the accepted interpretation of the statutory limitations upon appellate review of NLRB orders in representation cases:

"This suit is not one to `review,\' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act." 358 U.S. at 188, 79 S.Ct. at 184.

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Our decision here does not deny Daniel its day in court on the objections which it has raised to the Board's determinations in the representation proceeding; it merely forecloses Daniel from raising those objections on this day in court. Daniel will be entitled to a review of the Board action in the representation case if the following succession of events occurs: the union wins the new election and is certified by the NLRB as the bargaining agent for the employees in question, the company thereafter refuses to bargain with the union because it feels the election was defective in some way, and the Board in a subsequent unfair labor proceeding adjudges the company to be in violation of section 8(a) (5) of the Act and orders it to bargain with the union as certified. Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); NLRB v. Falk Corp., supra; Volney Felt Mills v. LeBus, 196 F.2d 497 (5 Cir. 1952).

II.

We turn next to the assertion by Daniel that the record is barren...