Liquor Salesmen's Union Local 2 of State of N.Y. v. N.L.R.B., AFL-CI
| Decision Date | 31 March 1981 |
| Docket Number | Nos. 80-1746,P,80-2152,80-2278 and 80-2085,LOCAL,AFL-CI,s. 80-1746 |
| Parties | 106 L.R.R.M. (BNA) 2953, 214 U.S.App.D.C. 188, 91 Lab.Cas. P 12,688 LIQUOR SALESMEN'S UNION LOCAL 2 OF the STATE OF NEW YORK, Distillery, Rectifying, Wine & Allied Workers' International Union,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Charmer Industries, Inc., et al., Intervenors. CHARMER INDUSTRIES, INC., Star Industries, Inc., Standard Wine & Liquor Co., Inc., Peerless Importers, Inc., and National Distillers Distributing Co., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. PARK & TILFORD & MOTEL & CLUB, DIVISIONS OF KNICKERBOCKER LIQUOR CORP., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. AMALGAMATED TRANSIT UNION,DIVISION 1309, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Bayshore Transit Management, Inc., d/b/a National City Transit, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On motions to transfer petitions for review.
Allen B. Roberts, New York City, for petitioners in No. 80-2152, and intervenors in No. 80-1746.
Joseph Semo, Washington, D. C., for petitioner in No. 80-1746.
Charles O. Strahley, New York City, for petitioners in No. 80-2278.
Richard D. Prochazka, San Diego, Cal., for petitioner in No. 80-2085.
Richard M. Freeman, San Diego, Cal., for intervenor in No. 80-2085.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for respondent in Nos. 80-1746, 80-2152, 80-2278, & 80-2085.
Before TAMM, ROBB and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
These cases are petitions for review of two separate orders of the National Labor Relations Board (Board). In No. 80-2085, the Board granted the General Counsel's motion for summary judgment in favor of the union, awarding the union all the relief it sought. The union filed a petition for review in this court alleging that it was aggrieved by the failure of the Board to rule specifically on the union's motion for summary judgment. In the consolidated cases Nos. 80-1746, 80-2152 and 80-2278, the Board gave another union all the relief sought from the Board save for an award of attorney's fees. The union filed a petition for review in this court, alleging that it was aggrieved by this refusal of the Board to grant special relief to the union.
In both cases, the employer moved to transfer the proceedings to another circuit pursuant to 28 U.S.C. § 2112(a) (1976). 1 Because neither union was "genuinely aggrieved" by the Board order of which it sought review, this court transferred No. 80-2085 to the Ninth Circuit and Nos. 80-1746, 80-2152 and 80-2278 to the Second Circuit "(f)or the convenience of the parties in the interest of justice."
On the basis of an unfair labor practice charge filed March 17, 1980 by the Amalgamated Transit Union, Local 1309 (Local 1309), the Board on April 15 issued a complaint and notice of hearing, alleging that Bayshore Transit Management (Bayshore), had refused to bargain with Local 1309 as the certified representative of its employees. On May 9, 1980, Local 1309 filed with the Board a motion for summary judgment, alleging in support that:
(1) Bayshore was seeking to litigate issues in the unfair labor practice proceeding which were or could have been litigated in prior representation proceedings;
(2) Bayshore did not assert the existence of any recently discovered facts or special circumstances justifying litigation; and
(3) Bayshore admitted in its answer that it had refused to bargain at all with Local 1309.
One week later, May 16, 1980, the General Counsel of the Board also filed a motion for summary judgment. Its allegations were identical to those contained in Local 1309's motion for summary judgment.
The Board granted the General Counsel's motion for summary judgment, August 27, 1980, for precisely the same reasons put forward by both Local 1309 and General Counsel. It ordered Bayshore to cease and desist from its unfair labor practice, to bargain collectively with Local 1309 upon request, and to post notice. Decision and Order, Bayshore Transit Mngmt., Inc., and Amalgamated Transit Union, 251 N.L.R.B. No. 136 (August 27, 1980).
Local 1309 filed in this court a petition to review the Board's order, September 9, 1980. Bayshore filed its petition to review the order September 22, 1980, in the Ninth Circuit (9th Cir. No. 80-7513). On November 3, 1980, the Board filed the certified record with this court as the court of first filing, pursuant to 28 U.S.C. § 2112(a) (1976).
Bayshore intervened in this court and on October 23, 1980, filed its motion to dismiss or transfer this case to the Ninth Circuit. The gist of Bayshore's motion was that Local 1309 was not a "person aggrieved" within the meaning of § 10(f) of the National Labor Relations Act (Act), 29 U.S.C. § 160(f) (1976), and therefore lacked standing to petition this court for review. Alternatively, Bayshore sought to have this case transferred under authority of 28 U.S.C. § 2112(a) to the Ninth Circuit "for the convenience of the parties in the interest of justice." Bayshore pointed out that, as the truly aggrieved party, it had properly filed a petition to review the Board's order in the Ninth Circuit. Both the company and Local 1309 are located in San Diego, California, where the alleged unfair labor practice took place. The law firms engaged by the parties to represent them are also located in San Diego. There do not appear to be any countervailing considerations.
On September 21, 1979, an Administrative Law Judge (ALJ) found that the unilateral promulgation of new c. o. d. collection procedures by liquor wholesalers imposed substantial additional duties and burdens on the wholesalers' liquor salesmen. The ALJ found this unilateral change in working conditions to violate §§ 8(a)(1), (a)(5) of the Act, 29 U.S.C. §§ 158(a)(1), (a)(5) (1976). The Board on June 30, 1980, affirmed the findings of the ALJ and adopted her recommended order, which directed the companies to cancel the new working conditions, restore the status quo ante, make whole the employees for loss of time and expenses incurred as a result of the working conditions, rescind any disciplinary action, bargain with Liquor Salesmen's Union Local 2 (Local 2) upon request, and post the appropriate notice. Decision and Order, Charmer Industries, Inc., et al. and Liquor Salesmen's Union, Local 2, 250 N.L.R.B. No. 31 (June 30, 1980). The Board did not specifically address, and therefore left undisturbed, the finding of the ALJ that, because the facts did not support the allegation of frivolous litigation, Local 2 was not entitled to attorney's fees.
Local 2 filed in this court on July 3, 1980, a petition to review the order of the Board denying attorney's fees to the Union. (D.C.Cir. Docket No. 80-1746). On July 29, 1980, Charmer Industries, Inc., and four other liquor wholesalers (the Companies) filed a petition to review the Board's order in the Second Circuit. By stipulation of the parties this later-filed petition was transferred to this court, pursuant to 28 U.S.C. § 2112(a). (D.C.Cir. Docket No. 80-2152). A later petition in the Second Circuit filed by Park & Tilford & Motel & Club, Divisions of Knickerbocker Liquor Corp., was transferred to this court October 20, 1980 by the Second Circuit. (D.C.Cir. Docket No. 80-2278). This court consolidated all three cases.
The Companies intervened in No. 80-1746 and on October 21, 1980, moved to transfer the consolidated proceedings to the Second Circuit. The Companies argued that this court should not respect Local 2's first-filed petition because Local 2 was not "genuinely aggrieved." The Second Circuit, the Companies insisted, is a more convenient forum. The Companies and Local 2 are located in New York, counsel for both parties reside in New York, and the alleged unfair labor practices took place there as well.
These cases graphically illustrate a problem which has plagued the federal courts for years and which now approaches epidemic proportions: the forum shopping inherent in judicial review of administrative action. A party who has substantially if not completely prevailed before the agency files a petition for review-ofttimes within seconds of the agency order-solely to guarantee that review will occur in the forum of its choice. This initial filing automatically triggers 28 U.S.C. § 2112(a), the venue provision governing judicial review of administrative action, requiring the agency to file its record in the court of first filing, and directing all other courts of appeals to transfer to the court of first filing any later-filed petitions for review of the same order. Although the court of first filing is authorized to transfer the petitions to any court of appeals "for the convenience of the parties in the interest of justice," the transfer authority is not always exercised, even when appropriate.
It is a commonly held belief among members of the bar that the courts of appeals read into § 2112(a) a rebuttable presumption that the court of first filing will also decide the case. Whether or not this view is an accurate one, all too often the court of first filing unwittingly allows § 2112(a) to be used as a tool by private parties to forum-shop among the circuits. We take this opportunity once again 2 to express our disapproval of this "unseemly" practice, and make clear that this court intends to utilize the statutory and inherent authority at our disposal to curb this abuse.
Where a party aggrieved by an order of the Board seeks review of that order, the court will generally respect the petitioning party's choice of forum. But where there are two petitions for review of the same order filed in different circuits, the wishes of both ...
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