LOCAL 6 v. NLRB

• Decision Date: 13 July 1992
• Docket Number: Civ. A. No. 91-2813.
• Citation: 799 F. Supp. 507
• Parties: BAKERY, CONFECTIONERY AND TOBACCO WORKERS' INTERNATIONAL UNION, LOCAL 6 v. NATIONAL LABOR RELATIONS BOARD, James M. Stephens, Chairman, Mary Miller Cracraft, Member, Clifford R. Oviatt, Member and National Labor Relations Board, Region 4, Peter Hirsch, Regional Director and Stroehmann Bakeries, Inc.
• Court: U.S. District Court — Eastern District of Pennsylvania

799 F. Supp. 507

BAKERY, CONFECTIONERY AND TOBACCO WORKERS' INTERNATIONAL UNION, LOCAL 6 v. NATIONAL LABOR RELATIONS BOARD, James M. Stephens, Chairman, Mary Miller Cracraft, Member, Clifford R. Oviatt, Member and National Labor Relations Board, Region 4, Peter Hirsch, Regional Director and Stroehmann Bakeries, Inc.

Civ. A. No. 91-2813.

United States District Court, E.D. Pennsylvania.

July 13, 1992.

Lynne P. Fox, Meranze and Katz, Philadelphia, Pa., for plaintiff.

Eric G. Moskowitz, N.L.R.B., Deputy Asst. Gen. Counsel for Spec. Litigation, Washington, D.C., Steven R. Wall, Morgan, Lewis & Bockius, Stacy K. Weinberg, Philadelphia, Pa., for defendants.

MEMORANDUM

O'NEILL, District Judge.

I. INTRODUCTION

This is an action arising under the National Labor Relations Act ("Act"), 29 U.S.C.A. § 151 et seq. (1973). Defendant National Labor Relations Board ("Board") conducted a representation election on January 28, 1990 in which plaintiff Bakery, Confectionery and Tobacco Workers' International Union, Local 6 ("Union") lost by one vote.¹ The Union brought this action to compel the Board both to reverse its decision not to sustain the Union's challenge of a disputed ballot and to order the employer to recognize the Union as the bargaining representative. In addition, the Union alleges that the employer, Stroehmann Bakeries, Inc., breached the Stipulated Election Agreement entered into prior to the representation election. Both the Board and the employer moved to dismiss for lack of subject matter jurisdiction. I referred both motions to Magistrate Judge M. Faith Angell for Report and Recommendation which she has submitted. The Union has filed objections to the Report which both defendants have answered. I have reviewed the Magistrate's Report and Recommendation and the parties' submissions. For the reasons set forth below, I will approve the Report as supplemented by this Memorandum and adopt the Recommendations.

II. BACKGROUND

Although the facts are set forth in detail in the Report, I will briefly summarize the factual background of the case. Plaintiff Union alleges that the list provided to it by the employer of employees eligible to vote in the January 1990 representation election contained the typed notation "Quit as of 12/23/89" next to the listing of "S. Gallagher." The Union alleges that, according to the list, Mr. Gallagher was ineligible to vote because he was not an employee at the time of the election. The Union therefore alleges that Mr. Gallagher should not have been permitted to vote. The Union alleges in the alternative that the employer provided it with faulty information because the employer listed Mr. Gallagher as "Quit as of 12/23/89" but "failed thereafter to advise the Union that the said employee may in fact be eligible to vote." Amended Complaint at ¶ 11. The Union therefore alleges that even if Mr. Gallagher had been eligible to vote, he should not have been permitted to vote.

Mr. Gallagher voted in the election and the Union challenged his ballot. The Regional Director of the Board found that Mr. Gallagher was an eligible employee and recommended that his vote be opened and counted. The Board affirmed. Mr. Gallagher voted against the Union. The addition of Mr. Gallagher's vote resulted in a tie vote between those voting for and against Union representation. Consequently, the Union lost the election.

III. DISCUSSION

Plaintiff Union concedes that district courts normally lack subject matter jurisdiction over challenges to Board representation proceedings. Plaintiff's Objections to the Report and Recommendation filed by the Honorable M. Faith Angell, U.S. Magistrate, at 3. The Magistrate's Report determines that the District Court lacks subject matter jurisdiction in this case because none of the exceptions to the normal rule apply here. Plaintiff objects to the Report's conclusion and argues that this Court has jurisdiction under the exception created by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), or under the exception created by the Court of Appeals for the Second Circuit in Fay v. Douds, 172 F.2d 720 (2d Cir.1949).² In addition, plaintiff objects to the Report's determination that the District Court lacks subject matter jurisdiction over the contract claim against the employer.

(A) Leedom v. Kyne

Plaintiff Union objects to the Magistrate's finding that this Court lacks subject matter jurisdiction over Board representation proceedings. Plaintiff's Objections at 1. Plaintiff relies on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, in which the Supreme Court carved out an exception to the normal jurisdictional rule that district courts lack subject matter jurisdiction over Board representation proceedings. Id. at 187-88, 79 S.Ct. at 183-84. In Leedom v. Kyne, the Court held that district courts could properly exercise jurisdiction over Board conduct that is "in excess of its delegated powers and contrary to a specific prohibition in the Act." Id. at 188, 79 S.Ct. at 183-84. The Court subsequently has held that the Leedom v. Kyne exception:

is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law.

Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898-99, 11 L.Ed.2d 849 (1964).

Plaintiff contends that the Report inappropriately characterized the Board's conduct as "an erroneous assessment of the particular facts." Plaintiff's Objections at 1 (quoting Boire, 376 U.S. at 481, 84 S.Ct. at 898-99); Report at 10. Plaintiff argues that the Leedom v. Kyne exception applies here because the Board's conduct was "in excess of its delegated powers and contrary to a specific prohibition in the Act." Plaintiff's Objections at 3 (quoting Leedom v. Kyne, 358 U.S. at 188, 79 S.Ct. at 184).

First, plaintiff claims that the Board failed to address the Union's objection to the employer's allegedly faulty compliance with its obligation under the Board's decision in Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966), to provide the Union with a list of employees eligible to vote in the representation election ("Excelsior list"). On the contrary, a review of the written Board decisions reveals that the Board considered the employer's compliance with the Excelsior requirement both in the Board Decision dated July 5, 1990 and in its Order Denying the Union's motion for reconsideration of that decision. See Motion of the National Labor Relations Board Defendants to Dismiss Amended Complaint for Lack of Subject Matter Jurisdiction or Alternatively Motion for Summary Judgment, Exhibits 3 & 4.

Plaintiff also contends that the Board failed to determine whether the alleged mistake in the Excelsior list of eligible employees reflected bad faith conduct by the employer. As the Board determined that the employer had substantially complied with the Excelsior requirement and therefore had not violated Excelsior, id. at Exhibit 3, the Board did not need to reach the question of whether the employer's actions were taken in good faith.

Third, plaintiff argues that the Board acted "in excess of its delegated powers and contrary to a specific prohibition in the Act," Plaintiff's Objections at 3 (quoting Leedom v. Kyne, 358 U.S. at 188, 79 S.Ct. at 184), by failing to ensure employer compliance with the Excelsior list, by failing to ensure that the employer continually supplemented the list and by failing to ensure that the employer prepared the list of eligible employees in good faith. Plaintiff's Objections at 2. Plaintiff does not cite any authority for its view that the Leedom v. Kyne exception to the normal jurisdictional rule should apply to alleged violations of obligations imposed by the Board's Excelsior precedent in addition to statutory obligations imposed by specific language in the National Labor Relations Act.

In my view, the narrow Leedom v. Kyne exception to the general rule that district courts lack jurisdiction over challenges to representation proceedings cannot properly be invoked in this case. The Leedom v. Kyne exception applies only to "specific prohibitions" of the Act. 358 U.S. at 188, 79 S.Ct. at 183-84. In decisions construing the scope of the Leedom v. Kyne exception, courts have examined whether the Board's actions contradicted specific language in the Act. The Court of Appeals for the Third Circuit has ruled that district court jurisdiction under Leedom v. Kyne exists where the Board "attempted to exercise a power that had been specifically withheld" from it in the statutory grant of power. Firestone Tire & Rubber Co. v. Samoff, 365 F.2d 625, 627 (3d Cir.1966) (quoting Leedom v. Kyne, 358 U.S. at 189, 79 S.Ct. at 184); see NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99, 106 (3d Cir.1979) (holding that under Leedom v. Kyne jurisdiction exists over challenges "addressed to the very existence of Board power, as opposed to its exercise of that power").³

The district courts within the Third Circuit have interpreted Leedom v. Kyne to mean that, in order for a district court to have jurisdiction, the Board must violate a statutory provision that is "clear and mandatory." National Maritime Union v. NLRB, 375 F.Supp. 421, 432 (E.D.Pa.1974), aff'd, 506 F.2d 1052 (3d Cir.1974), cert. denied 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). In National Maritime, the Court held that:

Leedom v. Kyne and Boire v. Greyhound 376 U.S. 473, 84 S.Ct. 894 teach us that disagreement with the Board on a matter of policy or statutory interpretation is not a sufficient basis for assertion of jurisdiction ... Our jurisdiction is properly limited to intervention in those cases ... in which the Board has violated a `clear and mandatory' command of the Act.

National Maritime, 375 F.Supp. at 434 (citation omitted); see U.S. Metal Co....