Fay v. Douds

Decision Date11 February 1949
Docket NumberDocket 21137.,No. 100,100
Citation172 F.2d 720
PartiesFAY v. DOUDS, Regional Director.
CourtU.S. Court of Appeals — Second Circuit


Frank Scheiner and Morton Stavis, both of New York City, for appellant.

Charles T. Douds, Regional Director, Mozart G. Ratner, Atty., David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, and Norton J. Come, Atty., National Labor Relations Board, all of Washington, D. C., for appellee.

Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.

L. HAND, Chief Judge.

The plaintiff, who is president of Local 475, of the United Electrical, Radio and Machine Workers of America, CIO, appeals from a judgment of the District Court, denying a temporary injunction, and dismissing the complaint in an action against a regional director of the Labor Board. The complaint prayed (1) that the defendant be ordered to grant a hearing at which the Local might appear and put in evidence; (2) that he be enjoined from holding any election based only upon the consent of a rival union and the employer; and (3) that he be also enjoined from holding any election without placing the Local's name on the ballot. The undisputed facts as they appear in the complaint and in accompanying affidavits were as follows: Local 475 and the employer executed a contract on May 1, 1947, by which the Local was made the exclusive bargaining agent for the employees and in which the employer agreed to a union shop and a "check-off." The agreement was to continue in effect for a year, "and from year to year thereafter until terminated by either party giving to the other written notice by registered mail of termination sixty days prior to the expiration date." Neither party gave such a notice before March 1, 1948; but on February 20 the Local wrote to the employer as follows: "Under the provisions of the Taft-Hartley Act of 1947 29 U.S.C.A. § 141 et seq. * * * Local 475 hereby notifies you of its desire to modify our existing collective bargaining agreement * * * Will you please advise us when you are prepared to meet with the union for the purpose of a collective bargaining conference?" On the 26th the employer answered: "In compliance with the provision of the Taft-Hartley Act, we hereby notify you that we desire to modify our existing agreement. * * * We propose to arrange for a meeting for the purpose of negotiating a new agreement." On March 4 the Local replied: "In order to expedite matters and give the Company an opportunity to acquaint itself with the requests being made by the union, we are attaching herewith a copy of our proposals. We should appreciate being advised when the Company would be prepared to meet with us to discuss them." The Local enclosed in this letter what it called "Proposals for a New Contract," nine in number, constituting variants from the corresponding terms of the existing contract.

On April 8, 1948, the United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, filed a petition with the Labor Board for certification as exclusive bargaining representative with the employer; and on April 12 the defendant, who was the regional director, notified the Local of this petition and stated that it had been named as an intervenor. On April 26 he set May 11 as the date for a hearing; but on May 4 he withdrew the notice of hearing, and on the next day he wrote advising the Local that it had not "complied with the provisions of Section 9 (f), (g) and (h) of the Act and therefore does not have status to object to the holding of a Consent Election, except if it is a party to a contract which, under Board policy, would be a bar to an election." He then mentioned the exchange of letters between the Local and the employer, and concluded: "Since the contract has been opened up for negotiation in this manner, under principles announced in prior Board cases, it is not a bar to the holding of an election. The parties have executed a Consent Election Agreement. For the reasons stated above your request that I withhold approval is denied." The Local protested against this action both to the defendant and to the Board, but its protests were overruled; and without preliminary hearings, upon the consent mentioned in the defendant's letter, of the Automobile Union and the employer, he arranged for an election which took place on July 14, 1948, and at which the ballot contained only the name of the Automobile Union. That union received a very large majority of the votes; the Board certified it as the exclusive bargaining representative, and the employer has refused to deal with the Local. The plaintiff brought this action on May 14, 1948, and on the 18th moved for a temporary injunction, which the defendant countered by a motion to dismiss the bill. On June 14 the judge denied both the plaintiff's motion for an injunction and defendant's motion to dismiss the complaint; but on July 2, upon reargument, he dismissed the complaint; and the plaintiff has appealed from both decisions.

The first question is as to the jurisdiction of the District Court which the defendant disputes, invoking our decision in Fitzgerald v. Douds.1 We there held that, since the only review of a "certification" proceeding under § 9 was as an incident to a petition to review an order of the Board under § 10, the remedy so created was exclusive; although we recognized that the result might be otherwise, if a constitutional question were raised. The plaintiff at bar does raise such a question; he asserts that the Local has a "property" right in the maintenance of its position as exclusive bargaining agent, and that this was substantially invaded by denying its privilege of a hearing upon the "investigation," preparatory to deciding whether an election should be called. If this assertion of constitutional right is not transparently frivolous, it gave the District Court jurisdiction; and, having once acquired jurisdiction, the court might, and should, dispose of all other questions which arose, even though they would not have been independently justiciable.2 Although, as will appear, we do not think that the Local was denied any constitutional right, we do think that its contention is not so plainly untenable that the District Court might not proceed to decide the other issues involved. The Local's interest in remaining the exclusive bargaining agent was of great importance to it, and to dispense with the "investigation" on the outcome of which depended the calling of an election, would imperil its position, even though it could not be "certified" upon an election. To do this without any hearing can plausibly be thought to be a denial of due process of law. We come therefore to the merits. Sections 9(g) and 9(h), although mentioned in the complaint, we shall ignore, confining our discussion to § 9(f) which, we think, of itself requires us to affirm the judgment. It declares that in the case of a "non-complying" union "no investigation shall be made by the Board of any question * * * concerning the representation of employees, raised by a labor organization under subsection (c) of this section." The plaintiff's position is two-fold. He first asserts that in denying the Local a hearing, the Board has misread the phrase, "question of representation," which should be limited to the election, and should not include any questions which may arise in the "investigation" that precedes it. This he fortifies by his constitutional argument arising from the denial of a hearing. He next asserts that, even though he is wrong as to the "investigation," in any event § 9(f) does not prevent a "non-complying" union from protecting its position as an existing agent by having its name on the ballot. We shall take up these positions in that order.

It can be most forcefully argued that the "question of representation" is not to be divided into two parts: the preliminary "investigation" to decide whether there shall be an election, and the election itself. If so, as soon as a union files a petition under § 9(c) (1) (A) (i), as the Automobile Union did, asking to be designated the exclusive bargaining agent, a single and continuing "question of representation" is "raised": i. e. whether it shall be "certified" as such representative, to the indivisible answer to which all that follows is a part. The Board must "investigate" to see whether the petition is well enough founded to proceed further; if it so concludes, it must cite into an "investigation" all interested parties; and their objections at the ensuing hearings are "questions of...

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