Eastern Greyhound Lines v. Fusco, 15153.

• Decision Date: 18 October 1963
• Docket Number: No. 15153.,15153.
• Citation: 323 F.2d 477
• Parties: EASTERN GREYHOUND LINES, Plaintiff-Appellant, v. Philip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

323 F.2d 477 (1963)

EASTERN GREYHOUND LINES, Plaintiff-Appellant, v. Philip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, Intervenor-Appellee.

No. 15153.

United States Court of Appeals Sixth Circuit.

October 18, 1963.

Theodore Voorhees, Philadelphia, Pa. (Foster J. Fludine, Cleveland, Ohio, on the brief), for appellant.

Herman M. Levy, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Solomon I. Hirsh, Attys., N. L. R. B., Washington, D. C., on the brief), for defendant-appellee.

Earle W. Putnam, Washington, D. C., for intervenor-appellee.

Before CECIL, Chief Judge, O'SULLIVAN, Circuit Judge, and PECK, District Judge.

O'SULLIVAN, Circuit Judge.

By the action here involved, Plaintiff-Appellant, Eastern Greyhound Lines, sought to have the United States District Court at Cleveland enjoin Defendant-Appellee, Philip Fusco, Regional Director of the National Labor Relations Board, from conducting a representation election among the dispatchers and assistant dispatchers employed by Eastern Greyhound Lines. Upon motion of Defendant-Appellee, the complaint was dismissed on a holding that the District Court was without jurisdiction of the cause. The matter was previously before this Court upon Eastern's motion for an injunction pending this appeal from such order of dismissal. We denied the motion and our decision is reported as Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (C.A. 6, 1962). That opinion sets forth the posture of the litigation at the time the aforesaid motion was presented to us. Following dismissal of the complaint, the Regional Director had conducted an election by mail ballot, but had impounded the ballots awaiting our disposition of the motion for injunction pending appeal. After our denial of such motion, the ballots were counted. Thereafter, upon the full hearing of the appeal before us, it was reported that, by a vote of 74 to 49, the Union seeking bargaining rights, to wit: the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, had won the election and had been duly certified as bargaining representative of plaintiff's dispatchers. It was also reported that upon Eastern's refusal to bargain with Amalgamated as representative of the dispatchers, Amalgamated had filed an unfair labor practice charge with the Board alleging that Eastern had violated Sections 8(a) (5) and (1) of the Act by its refusal to honor the Board's certification of the mentioned Union. We have not been advised of the present status of such proceeding.

This controversy began when Amalgamated had petitioned for a representation election to determine a bargaining representative for the group of Eastern's employees known as dispatchers and assistant dispatchers. The thrust of plaintiff's complaint was that such dispatchers were not employees within the meaning of Section 2(3) of the National Labor Relations Act, 29 U.S.C.A. § 152(3), and were supervisors as defined in Section 2(11) of said Act, 29 U.S.C.A. § 152(11); and that by virtue of Section 14(a) of the National Labor Relations Act, 29 U.S. C.A. § 164(a), it could not be required to bargain collectively with such supervisors.

Attached to plaintiff's complaint as an exhibit was the Decision and Direction of Election made by the Board, in which it adopted and affirmed rulings made by its hearing officer. Such Decision discloses that an extensive hearing was had for the purpose of resolving the issue as to whether or not Eastern's dispatchers were, within the meaning of the statute, supervisors. Upon evidence taken, the issue was decided against Eastern. The Board found that the mentioned dispatchers were not supervisors, and an election was ordered. Plaintiff's complaint alleged, in part, that the Board had come to an erroneous conclusion on the issue before it; that its decision was in conflict with the overwhelming preponderance of the evidence; that the Board had ignored the "uncontradicted evidence that dispatchers have always been considered supervisors"; that the Board's decision was arbitrary and capricious and "in excess of the Board's delegated powers and not supported by the evidence"; that it constituted an abuse of discretion; that the action of the Board was an invasion of plaintiff's property rights and denied plaintiff due process of law in violation of the Fifth Amendment to the Constitution of the United States. It further charged that if its dispatchers were found to be other than supervisors, plaintiff would suffer irreparable loss. The District Judge stated:

"The Court is of the opinion that when the Board\'s decision purports to follow the statutory requirements, and violates no constitutional rights, the Court does not have jurisdiction to review that decision by reweighing the evidence, even when the allegations of the complaint allege that by an arbitrary and capricious abuse of judgment the Board has flaunted a statuory mandate."

We agree with the District Judge.

The Board contends that Eastern's only remedy to review the certification order of the Board is through Sections 9(d) and 10(e) of the Act (§§ 159(d), 160(e) Title 29, U.S.C.A.) whereby an employer may, by resistance to an unfair labor charge, obtain review of such certification. Where a representative election has been held by the Board and an order entered directing an employer to bargain with a certified bargaining representative, such order is not self-enforcing. Unless it is obeyed, the Board is required by Section 10(e) to apply to the United States Court of Appeals for an order enforcing its order, and under Section 10(f) an employer may likewise petition the Court of Appeals for review of the Board's order. By Section 9(d) it is provided that upon such a hearing there shall be included in the record the transcript of all proceedings had in connection with a representative election and certification, and the Court of Appeals may, upon its consideration of the matter, review the legality of the election and certification order.

But for one case hereinafter noted, it appears to have become settled law that, unless an employer can bring itself within the limited exceptions of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed. 2d 210, its challenge to a Board's election or certification orders can be made only when enforcement or review of said orders is sought in the Court of Appeals under § 10(e) or (f) of the Act, 29 U.S. C.A. § 160(e) and (f). Atlas Life Ins. Co. v. Leedom, 109 U.S.App.D.C. 97, 284 F.2d 231, 232 (C.A.D.C.1960); Leedom v. International Brhd. of Elec. Workers, 107...