Hartz Mountain Corp. v. Dotson

• Decision Date: 24 February 1984
• Docket Number: No. 83-1307,83-1307
• Parties: 115 L.R.R.M. (BNA) 3137, 234 U.S.App.D.C. 209, 100 Lab.Cas. P 10,841 HARTZ MOUNTAIN CORPORATION, Appellant v. Donald L. DOTSON, Chairman, National Labor Relations Board, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1308

727 F.2d 1308

115 L.R.R.M. (BNA) 3137, 234 U.S.App.D.C. 209,

100 Lab.Cas. P 10,841

HARTZ MOUNTAIN CORPORATION, Appellant v. Donald L. DOTSON, Chairman, National Labor Relations Board, et al.

No. 83-1307.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 22, 1983.

Decided Feb. 24, 1984.

William C. Zifchak, New York City, for appellant. Thomas J. Madden, New York City, and Nicholas Allard, Suffern, N.Y., also entered appearances for appellant.

Susan T. Papadopoulos, Atty., N.L.R.B., Washington, D.C., for appellees. Margery E. Lieber, Deputy Asst. Gen. Counsel, and James Y. Callear, Atty., N.L.R.B., Washington, D.C., were on the brief, for appellees.

Before MIKVA and EDWARDS, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This appeal arises out of a suit filed in District Court by Hartz Mountain Corporation ("Hartz") seeking declaratory and injunctive relief against two orders issued by the National Labor Relations Board ("NLRB" or "Board") in connection with union representation election proceedings involving employees at Hartz. In particular, Hartz seeks to nullify a November 22, 1982 order of the Board certifying District 65, United Automobile, Aerospace and Agricultural Workers of America ("District 65"), the winner of a 1982 Board-conducted representation election, as the bargaining agent of Hartz's employees. Hartz also seeks to set aside an earlier Board order which nullified the results of a 1979 election won by Local 806 of the International Brotherhood of Teamsters ("Local 806"), after Local 806 expressly disclaimed any interest in representing Hartz's employees.

The District Court ruled that Hartz's complaint should be dismissed and summary judgment entered for the Board. In reaching this result, Judge Parker ruled that the District Court was without jurisdiction to hear appellant's case because Hartz "ha[d] failed to demonstrate that the Board violated a clear and specific statutory mandate [of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1976) (the "Act") ] when it ordered a second election." Hartz Mountain Corp. v. Van de Water, No. 82-3412, slip op. at 11 (D.D.C. Jan. 31, 1983), reprinted in 97 Lab.Cas. (CCH) p 10,038, at 17,161 (D.D.C.1983). Judge Parker also noted that Hartz "is not disadvantaged nor is it without a remedy. It can obtain review of the Board's representation decisions under Section 10(e) and (f) of the Act which precludes this Court from assuming jurisdiction over this matter." Id.

Because we find the decision of the District Court to be unassailable, we affirm it in all respects.

I. BACKGROUND

On April 20, 1979, Local 806 won a representation election covering a unit of production, warehouse, clerical and maintenance employees at Hartz's Jersey City, New Jersey distribution warehouse. Shortly thereafter, District 65, which had competed against Local 806 in the 1979 election, filed objections to the election. District 65 had also filed an unfair labor practice charge against Hartz prior to the election, alleging that Hartz had unlawfully assisted Local 806 and discriminated against District 65 during the election campaign. The Board scheduled a consolidated hearing on the objections to the election and the unfair labor practice charge against Hartz to be held on January 14, 1980.

On September 21, 1979, District 65 filed another unfair labor practice charge against Hartz, alleging that the company had unlawfully refused to recognize and bargain with District 65 as the employees' bargaining agent. The Regional Director of the Board refused to amend District 65's complaint against Hartz to include this refusal to bargain charge. District 65 appealed this ruling to the General Counsel of the Board. On March 25, 1981, more than a year later, the General Counsel reversed the decision of the Regional Director and issued an amended complaint against Hartz. A consolidated hearing on District 65's objections to the election and unfair labor practice charges against Hartz was then scheduled to commence in June of 1981.

Just prior to the commencement of the consolidated hearing, Local 806 requested interim certification pending the conclusion of the hearing, and the Board denied this request. The General Counsel of the Board then presented the Board's case against Hartz on various days in June, September, and October of 1981. Counsel for Local 806 did not participate in this proceeding before the Board, except to attend a meeting held to discuss the possibility of settling the controversy. During the course of the proceeding, after the General Counsel had presented the Board's case, but before Hartz had had an opportunity to respond to the Board's allegations, Local 806 filed with the Regional Director of the Board a written disclaimer of interest in representing Hartz's employees in Jersey City. Thereupon, District 65 moved to dismiss its objections to the 1979 election and its unfair labor practice complaints against Hartz, on the conditions that the election be declared a nullity and that a second election, with District 65 as the only union on the ballot, be held.

The Administrative Law Judge ("ALJ") who was presiding at the consolidated hearing invited the parties to submit written memoranda in support of, or in opposition to, District 65's motion. Hartz opposed approval of the disclaimer of interest filed by Local 806, claiming that Local 806 had acted because the union's financial resources had been depleted by the years of litigation over its right to represent Hartz's employees in Jersey City. In light of these circumstances Hartz argued, approval of the disclaimer would encourage delays in certification proceedings and thereby defeat the purpose of the Act to resolve expeditiously questions of employee representation. The ALJ concluded that while there are exceptions to the general rule that a labor organization may choose to disclaim interest in representing a group of employees--for example, where "surrounding circumstances justify an inference" that the disclaimer is equivocal, where the disclaimer "would be prejudicial to the other parties in an election," or where the disclaimer was not voluntarily made--he found none of these exceptions to be applicable in this case. Hartz Mountain Corp., 260 N.L.R.B. 323, 325-326 (1982). The ALJ thus recommended the approval of Local 806's disclaimer of interest; the ALJ also found that no purpose would be served by certifying the results, or adjudicating the validity, of the 1979 election. He therefore proposed that District 65's motion to dismiss be granted and that a second election be held with District 65 as the only union on the ballot. Id. at 327. The ALJ's proposed decision was approved by a three-member panel of the Board on February 19, 1982. Id. at 323.

A second election was held on March 19, 1982. District 65 won that election, receiving 134 votes to 101 for Hartz. The company filed objections to the election, but an ALJ recommended that the objections be overruled. On November 22, 1982, a three-member panel of the Board adopted the ALJ's recommendation and certified District 65 as the exclusive bargaining representative. On August 4, 1983, the Board issued an order directing Hartz to bargain with District 65. Hartz Mountain Corp., 266 N.L.R.B. No. 211 (1983).

On November 30, 1982, Hartz filed its complaint in the District Court seeking declaratory and injunctive relief against the two Board orders, wherein the Board approved Local 806's disclaimer of interest, declined to certify the results of the first election, directed that a second election be held, and certified District 65 as the bargaining representative of Hartz employees. As noted above, the District Court dismissed Hartz's complaint and granted summary judgment in favor of the Board.

II. DISCUSSION

Despite the unconscionable delays that have attended the processing of various aspects of this case, ¹ the applicable legal principles are straightforward and clear. On the record before us, there can be no doubt over the conclusion that the District Court was fully justified in granting summary judgment for the Board. Accordingly, because we find that the District Court correctly ruled that it lacked jurisdiction to review the orders of the Board, we affirm.

A. Judicial Review of Representation Proceedings Before the National Labor Relations Board

The cases are legion holding that, as a general rule, Board orders emanating from representation proceedings are not directly reviewable in court. This point was first enunciated by the Supreme Court in American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), where it was held that a Board certification was not a "final order" within the meaning of section 10(f) of the Act. Id. at 411, 60 S.Ct. at 305. The Court noted that "[t]he conclusion is unavoidable that Congress, as the result of a deliberate choice of conflicting policies, has excluded representation certifications of the Board from the review by federal appellate courts authorized by the Wagner Act except in the circumstances specified in Sec. 9(d)." Id.

Numerous judicial opinions since American Federation of Labor have noted that, in establishing an indirect method of review, Congress intended that employee bargaining rights be effectuated and employer bargaining obligations clarified without the time-consuming delays that would be entailed with direct judicial review of Board representation orders. See, e.g., Boire v. Greyhound Corp., 376 U.S. 473, 477-78, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964). In particular, Congress was concerned that the time required to process a direct appeal might cause the erosion of a union's support among bargaining unit employees, or furnish a recalcitrant employer with an opportunity for dilatory litigation to avoid bargaining...