LOCAL 130, INTERNATIONAL U. OF ELEC., R. & M. WKRS. v. McCulloch

• Decision Date: 25 March 1965
• Docket Number: No. 18650.,18650.
• Citation: 120 US App. DC 196,345 F.2d 90
• Parties: LOCAL 130, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant, v. Frank W. McCULLOCH, Howard Jenkins, Boyd Leedom, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 196, 345 F.2d 90 (1965)

LOCAL 130, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant, v. Frank W. McCULLOCH, Howard Jenkins, Boyd Leedom, et al., Appellees.

No. 18650.

United States Court of Appeals District of Columbia Circuit.

Argued January 6, 1965.

Decided March 25, 1965.

COPYRIGHT MATERIAL OMITTED

Mr. Winn I. Newman, Asst. Gen. Counsel, IUE, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, with whom Messrs. Benjamin C. Sigal and David S. Davidson, Washington, D. C., were on the brief, for appellant.

Mr. Stephen B. Goldberg, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., N. L. R. B., were on the brief, for appellees.

Before DANAHER, BURGER and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

This appeal from an order of the District Court dismissing a complaint for injunctive relief presents the issue of that court's jurisdiction to review a determination by the National Labor Relations Board to hold a representation election under Section 9(c) (1) (B) of the National Labor Relations Act, 49 Stat. 449 (1935), as amended, 29 U.S.C. §§ 151-168. The District Court, after making findings of fact, concluded that it was without jurisdiction to afford the relief sought. Viewing the issue before us in the context of the inter-union conflict which gave rise to it, and bearing in mind the predominant role which Congress has assigned to the Board in representational matters, we affirm the action of the District Court.

I

The facts as found by the District Court are not challenged in any essential particular,¹ and we look to those findings as framing the controversy before us. The employer involved in this case, Westinghouse Electric Corporation, conducts industrial operations at Baltimore's Friendship International Airport. This business is comprised of an Air Arm Division and an Electronics Division, housed in separate buildings. The 2,200 production and maintenance employees of the former have for many years been represented by the International Brotherhood of Electrical Workers (IBEW); and appellant, the International Union of Electrical, Radio and Machine Workers (IUE), has been the similarly certified representative of the 1,500 production and maintenance employees of the Electronics Division. Each division has had its own maintenance department in its own building, complete with separate tools and equipment, supervisory personnel, and welfare facilities; and the maintenance work in each division was assigned only to employees in its own maintenance department. In 1961 Westinghouse concluded that these arrangements for maintenance work were wastefully duplicative. It undertook the construction of a new Maintenance Shop to house the merged maintenance equipment and employee facilities, and it proposed to integrate the two groups of maintenance employees, with work assignments to be made to either division.

This change was made effective July 2, 1962, and was promptly greeted by a grievance claim by IBEW that all maintenance employees thereby came under the IBEW agreement. Upon Westinghouse's refusal to arbitrate this claim under that agreement, IBEW struck the entire Air Arm Division. In response to Westinghouse's complaint of unfair labor practices, the Board's General Counsel initiated a proceeding and, pending its resolution by the Board, sought an injunction against the strike in the United States District Court for the District of Maryland. In that court on October 4, an agreement was reached that IBEW would not pursue the strike, and that Westinghouse would abandon the unfair labor practice charges in favor of asking the Board to clarify the bargaining units. The court then undertook to hold the suit in abeyance until the Board could dispose of the dispute. Westinghouse implemented its promise five days later by filing a motion for clarification with the Board. It represented that the existing IUE and IBEW certifications were inappropriate if they were deemed to require the continued separation of the maintenance employees, and it asked the Board to place them all in one union or the other. IBEW's answer to this motion renewed its claim that all such employees had come under its agreement, and it requested a clarifying order approving its position. Westinghouse thereafter filed a petition for an election to determine which union should represent the maintenance employees.

While IBEW and Westinghouse were so engaged, IUE looked for protection to the internal machinery of the AFL-CIO for the resolution of jurisdictional disputes. On October 5, 1962, it filed charges under the AFL-CIO Internal Disputes Plan that IBEW had transgressed the "no-raid" provision of the AFL-CIO constitution. IBEW responded with counter-charges against IUE. On December 27, the Impartial Umpire, Mr. David L. Cole, decided in favor of IUE. IBEW thereupon withdrew its answer to Westinghouse's pending motion before the Board, and advised the Board that it disclaimed any interest in the maintenance employees represented by IUE. This did not, however, ease Westinghouse's difficulties in effecting the integration of the maintenance operations. When, in May of 1963, it assigned work in the Air Arm building to two Electronics Division employees, and work in the Electronics building to an Air Arm employee, both unions filed grievances, and IBEW filed unfair labor practice charges with the Board.

The Board, on May 7, 1963, held a hearing on Westinghouse's petition for an election. Both IUE and IBEW appeared in response to notice, but promptly withdrew from the hearing after disclaiming any interest in each other's employees or in any election that might be ordered. After their withdrawal, evidence was received from Westinghouse regarding the integrational changes in the maintenance operations.

The Board, on September 9, 1963, consolidated the motion to clarify and the petition for an election. It denied the union's motion to dismiss these proceedings, partially granted the motion to clarify by severing the new Maintenance Shop from the two prior units, and directed that an election be held to determine which union the employees in the new unit desired to represent them. It found that, although a single maintenance unit had been created in form, it was not functioning as such in fact because of the continuing difficulties with the unions over work assignments. Noting that neither union was then formally claiming to represent all the maintenance employees, the Board provided that either might withdraw from the election by so notifying the Board. If both withdrew, the petition for an election was to be dismissed.

Neither did. The election was scheduled for December 20, 1963. On December 18, IUE filed the present suit. A temporary restraining order was denied, and the election was held. It was won by IBEW, and IUE filed objections with the Board, founded upon the same grounds as those urged in this litigation. The Board's Regional Director reported upon these objections, recommending against their allowance. With the matter pending in this posture before the Board, the suit was pressed to a conclusion in the District Court.²

II

The two principal contentions pressed upon us, as upon the District Court, are that jurisdiction exists because the Board acted (1) in derogation of IUE's constitutional due process rights when it redefined the bargaining unit without according the union a hearing, and (2) in defiance of its explicit statutory authority when it ordered an election despite the absence of a pending union claim to represent all the employees in the unit. In so articulating its objections, IUE tacitly recognizes that the courts have repeatedly admonished that any jurisdiction they may have to review indirectly the Board's actions by injunctive interference, as distinct from the direct review provided by Congress in the Act, is highly exceptional in nature.³ This is especially true of representational matters arising under Section 9, and the requisite showing of statute violation or constitutional deprivation must be strong indeed to justify the intrusion of the courts into the Board's processes. The specialized and perennially complex problems of labor-management relations have long been an object of Congressional concern, resulting in a conscious choice to commit their resolution in the first instance to the care of an expert administrative tribunal, with only limited provision made for scrutiny by the more generalized agency of the courts. It is with this insistent knowledge of legislative policy, and of judicial deference thereto, that we consider IUE's arguments for a departure from the norm.

Its constitutional claim need not detain us long. The due process right to a fair hearing is not a precise formulation, susceptible of automatic application in each setting in which it is asserted. But it is certainly true that the right does not comprehend in every case actual participation in a hearing as distinct from the opportunity to participate. The District Court found that IUE had notice of the Board's hearing on May 7, 1963, that it appeared at such hearing, and that it voluntarily withdrew when its objections to the hearing's going forward were unavailing. The District Court concluded that the issue raised by the motion to clarify and by the petition for an election were essentially the same, and that the hearing convened by the Board gave all parties, including IUE, a full and fair opportunity to submit evidence and to assert positions founded upon it. We agree. When IUE chose to forego that opportunity, we think it acted at its peril, at least as regards any subsequent claim that there was a procedural due process lapse of such enormity as to create equitable jurisdiction to intervene. It seems to us clear...