Klein v. Herrick

• Citation: 41 F. Supp. 417
• Parties: KLEIN v. HERRICK, Regional Director of National Labor Relations Board.
• Decision Date: 17 September 1941
• Court: U.S. District Court — Southern District of New York

41 F. Supp. 417

KLEIN v. HERRICK, Regional Director of National Labor Relations Board.

District Court, S. D. New York.

September 17, 1941.

William Karlin, of New York City, for plaintiff.

A. Norman Somers, of Washington, D. C., for National Labor Relations Board.

RIFKIND, District Judge.

The defendant, Regional Director of the National Labor Relations Board, has been ordered to show cause why an injunction should not issue, pendente lite, restraining the defendant "from carrying into effect or taking any proceedings under the Decision and Direction of Election of the National Labor Relations Board, dated August 8, 1941 * * * and from in any manner conducting any investigation or inquiry or determination or election among the production employees of Presto Recording Corp. during the term of the collective labor agreement between plaintiff Union and said Presto Recording Corp."

Defendant responded by cross motion to dismiss the complaint on two grounds: (1) That the court is without jurisdiction of the subject matter; (2) that the complaint fails to state a cause of action entitling plaintiff to equitable relief.

An application for a stay pending the hearing and disposition of plaintiff's motion was denied. On its own initiative, however, defendant has refrained from taking any action to carry the board's direction into effect.

The complaint discloses that the controversy has its root origin in the rivalry of two unions for the patronage of the employees of Presto Recording Corp. Sometime "prior to March 9, 1939", Radio Union Local B-1010 of the International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor (hereinafter called plaintiff union), was selected as the exclusive bargaining agent of the employees of Presto Recording Corporation (hereinafter called the employer). The selection was effected by means of an election by secret ballot conducted by defendant under Section 9(c) of the National Labor Relations Act, 29 U.S. C.A. § 159(c).

On March 9, 1939, an agreement was made between the employer and plaintiff union "for and in behalf of the employees, now employed and hereafter employed by the employer". The agreement specified the working arrangements which were to prevail at the employer's plant, required the employment of members of plaintiff union exclusively and was to remain in effect for one year and be subject, at the employer's option, to renewal for an additional two year period. The option to renew was exercised and the contract extended to March 8, 1942.

In May, 1940, Local 430 of the United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations (hereinafter called rival union) petitioned the defendant, under Section 9(c) of the National Labor Relations Act, for an investigation and for certification of a collective bargaining agent for the employees of the employer. This application was dismissed on June 29, 1940.

On April 30, 1941, the rival union renewed its petition. After hearing, of which plaintiff union had notice and at which it appeared, the National Labor Relations Board, on August 8, 1941, granted the petition and made the direction of which plaintiff complains. This direction ordered an election by secret ballot among the employees who were on the payroll on June 30, 1941, the choice to be of plaintiff union, the rival union, or neither.

The complaint asserts that this direction is unlawful and void; that it deprives plaintiff of its property in violation of the National Labor Relations Act and the Constitution; that the injury to plaintiff is irreparable; and that plaintiff is without remedy at law. The specific property alleged to be jeopardized by the action of defendant is plaintiff's contract with the employer.

The character of the harm which may befall plaintiff union as a result of defendant's action is not identified in detail in the complaint. But these inferences may be drawn therefrom: that the election may result in a victory for the rival union; that, thereupon, defendant may certify the rival union as bargaining agent for the employees; that the employees may cease to pay dues to plaintiff union; that the employer may, in violation of its agreement, refuse to discharge such recalcitrant employees; that the rival union may seek to negotiate with the employer; that the employer may accede to the request for such negotiations; that such negotiations may result in a contract modifying the existing contract by eliminating the provision requiring employees to be members of plaintiff union; that the courts may hold that such modification is valid and binding. In order to sever this chain of possible consequences, plaintiff union asks the court to restrain the defendant from carrying out the direction of the National Labor Relations Board. The moving affidavit adds nothing of substance to the allegations of the complaint.

At the threshold we are met by the challenge to the court's jurisdiction over the subject matter. The jurisdiction conferred upon the district court by Section 24 of the Judicial Code, 28 U.S.C.A. § 41, is manifestly broad enough to encompass the subject matter of this controversy unless the jurisdiction has been curtailed by Section 10 of the National Labor Relations Act, 29 U.S.C.A. § 160. In support of the contention that Section 10 is restrictive of the broad grant of jurisdiction contained in Section 24 of the Judicial Code, it is argued that the act is a complete and self-contained system providing its own means of judicial review of the Board's actions; that such review is limited to the Circuit Courts of Appeal and the Court of Appeals of the District of Columbia; and the following authorities are cited in aid of the argument: Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Newport News Shipbuilding & Drydock Co. v. Schauffler, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646; E. I. DuPont De Nemours & Co. v. Boland, 2 Cir., 85 F.2d 12; Heller Bros. Co. v. Lind, 66 App.D.C. 306, 86 F.2d 862, certiorari denied, 300 U. S. 672, 57 S.Ct. 611, 81 L.Ed. 878; Beman v. Independent Workers of Clayton Mark & Co., 7 Cir., 88 F.2d 59, certiorari denied, 301 U.S. 707, 57 S.Ct. 941, 81 L.Ed. 1361; Bradley Lumber Co. v. N.L.R.B., 5 Cir., 84 F.2d 97, certiorari denied, 299 U.S. 559, 57 S.Ct. 21, 81 L.Ed. 411.

Furthermore, it is contended by defendant that the direction of election is an intermediate step in a pending and undetermined investigation and is not subject to review, citing: N.L.R.B. v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354; N.L. R.B. v. Falk Corp. 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396.

Even were the matter before the court not a mere direction of election but an actual certification, the defendant contends, there would still be no power in the district court to review such certification. The defendant maintains that under the exclusive procedure of the National Labor Relations Act, a certification under Section 9(c) can only be reviewed through the procedure outlined in Section 9(d) of the Act. Under Section 9(d) a certification issued pursuant to Section 9(c) is not subject to review except when the facts so certified have become the basis, in whole or in part, of an order under Section 10(c), and in such instance the certification under Section 9(c) becomes subject to review only in a proceeding in the Circuit Court of Appeals or the Court of Appeals of the District of Columbia, paragraph (e) or (f) of Section 10. American Federation of Labor v. N.L.R.B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; N.L.R.B. v. Falk Corp., supra. Corroboration for this view is contributed by the legislative history of the National Labor Relations Act.¹

Direct authority on the question of the court's jurisdiction is meager. The United States Supreme Court has expressly withheld its opinion until such time as a controversy is there presented which compels its decision. A. F. of L. v. N.L.R.B., 308 U.S. 401, 404, 412, 60 S.Ct. 300, 84 L.Ed. 347. In that opinion the court said (308 U.S. at page 404, 60 S.Ct. at page 302): "The single issue which we are now called on to decide is whether the certification by the Board is an `order' which, by related provisions of the statute, is made reviewable upon petition to the Court of Appeals of the District, or in an appropriate case to a circuit court of appeals. The question is distinct from another much argued at the Bar, whether petitioners are precluded by the provisions of the Wagner Act from maintaining an independent suit in a district court to set aside the Board's action because contrary to the statute, and because it inflicts on petitioners an actionable injury otherwise irreparable." And at page 412 of 308 U.S., at page 305 of 60 S.Ct., the court continued: "The Board argues that the provisions of the Wagner Act, particularly § 9(d), have foreclosed review of its challenged action by independent suit in the district court, such as was allowed under other acts providing for a limited court review in Shields v. Utah Idaho C. R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111, and in Utah Fuel Co. v. National Bituminous Coal Commission, 306 U. S. 56, 59 S.Ct. 409, 83 L.Ed. 483; cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. But that question is not presented for decision by the record before us. Its answer involves a determination whether the Wagner Act, in so far as it has given legally enforceable rights, has deprived the district courts of some portion of their original jurisdiction conferred by § 24 of the Judicial Code, 28 U.S.C.A. § 41. It can be appropriately answered only upon a showing in such a suit that unlawful action of the Board has inflicted an injury on the petitioners for which the law, apart from the review provisions of the Wagner Act, affords a remedy. This question can be properly and...