Madden v. Brotherhood and Union of Tr. Employees

• Decision Date: 29 January 1945
• Docket Number: No. 5339.,5339.
• Citation: 147 F.2d 439
• Parties: MADDEN, Regional Director of National Labor Relations Board, v. BROTHERHOOD AND UNION OF TRANSIT EMPLOYEES OF BALTIMORE.
• Court: U.S. Court of Appeals — Fourth Circuit

147 F.2d 439 (1945)

MADDEN, Regional Director of National Labor Relations Board, v. BROTHERHOOD AND UNION OF TRANSIT EMPLOYEES OF BALTIMORE.

No. 5339.

Circuit Court of Appeals, Fourth Circuit.

January 29, 1945.

Charles F. McErlean, Attorney, National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, General Counsel, Malcolm F. Halliday, Associate General Counsel, and Thomas B. Sweeney, all of Washington, D. C., and Earle K. Shawe, Attorney, National Labor Relations Board, of Baltimore, Md., on the brief), for appellant.

Jacob Blum, of Baltimore, Md. (Benjamin Swogell and Joseph Buchoff, both of Baltimore, Md., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order enjoining the Regional Director of the National Labor Relations Board from conducting an election ordered by the Board to determine the bargaining representative, pursuant to Section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c), of the employees of the Baltimore Transit Company and the Baltimore Coach Company. The 9(c) proceeding was originated by the filing of petitions by the Brotherhood and Union of Transit Employees of Baltimore, and by an A. F. of L. union, the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America. The union charged that the brotherhood was a mere successor to or continuation of the Independent Union of the Transit Employees of Baltimore City, a company union theretofore ordered disestablished by the Board in an order enforced by this Court National Labor Relations Board v. Baltimore Transit Co. et al., 4 Cir., 140 F.2d 51; that it was a company dominated organization; and that for this reason it was not a fit representative of the employees for the purposes of collective bargaining. The Board investigated this question, over the objection of the brotherhood, in the course of the 9(c) proceedings and, upon finding that the brotherhood was a mere continuation of the old organization and was company dominated, ordered that it be not placed upon the ballot in the election which was ordered for the purpose of determining the bargaining representative. The holding of this election was enjoined by the court below on the ground that the Board was without power to investigate the question of company domination in a 9(c) proceeding, which is not subject to judicial review, and that because it considered such question the order directing that the election be held was illegal and void.

The position of the Board with respect to the question involved is set forth in its decision and order directing the election as follows:

"It would appear to be the position of the Brotherhood that the Board is powerless in a representation proceeding to deny any union a place on the ballot on the ground that it is a successor to an organization previously ordered disestablished unless a finding of such successorship is first made in a complaint proceeding. Solely from the standpoint of effectuating the purposes of the Act, we consider such a concept of the dual functions bestowed upon the Board to be clearly erroneous. If such an interpretation of the Act were valid, it is entirely conceivable that, in a given situation, a representation proceeding would be postponed indefinitely. Thus, for example, a complaint proceeding might result in the disestablishment of one union, only to have its successor spring up and intervene in the representation proceeding. To keep the successor off the ballot, another complaint proceeding would have to be instituted to disestablish it. Thereafter, a second successor might spring up and intervene in the representation proceeding, and so on ad infinitum. Meanwhile, the employees concerned would be denied the opportunity to choose a collective bargaining representative which the Act guarantees, with resultant friction between management and employees, and among groups of employees. The very purposes of the Act would be thwarted thereby. To avert such a vicious cycle, the Brotherhood suggests that the Board should institute contempt proceedings, and there try the issue of successorship. It is true that contempt proceedings may be lodged against an employer where the Board's order of disestablishment has been enforced by court decree, and a successor organization has come into existence. But there may be situations in which the employer has engaged in no overt acts of a contemptuous character and yet the successor organization may clearly appear to the employees to be tainted as was its predecessor. However, the existence of facts which may arguably be said to be such as to warrant contempt proceedings does not mean that all activity with respect to a representation proceeding must be stayed, pending the determination by the courts that an employer is or is not in contempt. Nowhere in the Act is there any indication that the Board is compelled to resort first to action under Section 10, or proceedings ancillary thereto, in order effectively to perform its functions under Section 9 of the Act. The argument that, because alternative courses of action are available, the Board is precluded from the procedure followed herein, is particularly not persuasive where a legitimate organization is claiming to represent a majority of the Company's employees in an appropriate unit, and when the prompt resolution of its claim may serve to resolve the entire controversy and preclude the necessity for further protracted proceedings."

On the argument in this court, the Brotherhood has taken the position that, while it is permissible for the Board to consider a disestablishment proceeding in connection with a proceeding under 9(c) to determine the bargaining representative, any consideration of company domination should be had in a disestablishment proceeding conducted under 10(c), 29 U.S.C.A. § 160(c), which is subject to review by the courts, and that it is not permissible for the Board to consider company domination of a union in 9(c) proceedings except in conjunction with such disestablishment proceedings instituted under 10(c). The Brotherhood concedes that the election ordered need not await the termination of the 10(c) proceedings. We are not impressed by this position. Congress has clearly provided that whether the Board shall combine a complaint proceeding under section 10 of the Act with a representation proceeding under 9(c) is left to the discretion of the Board. Section 9(c) provides: "Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." (Italics supplied.)

It is argued that the discretion thus vested in the Board extends merely to combining the hearing of proceedings and precludes the consideration on a 9(c) proceeding of any matter which could be made the subject of complaint under section 10; but we think there is no basis for such contention. It was clearly not the intention of Congress that the Board should place on the ballot in an election an employer dominated organization (N.L.R.B. v. Falk Corporation, 308 U.S. 453, 461, 462, 60 S.Ct. 307, 84 L.Ed. 396); and it is inconceivable that it should have been intended that the summary procedure provided by section 9(c) should be delayed while complaint proceedings under section 10 were being conducted.

If, however, it be thought that the Board was in error as to this matter, it does not follow that its order directing the election was void or illegal so that the director would be subject to injunction in his individual capacity in carrying it out. The statute expressly authorizes the Board to make use of an election for the purpose of determining the bargaining representative; and, when it exercises this power, it is performing an official duty under the statute. The case is not one where the action of the Board is without constitutional or statutory authority, as in Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927, upon which the Brotherhood relies. See our decision in Ferris v. Wilbur, 4 Cir., 27 F.2d 262, and cases there cited for the distinction. What we have here is merely the ordering of an election to determine the bargaining representative for the employees as provided by section 9(c) of the Act. The only ground urged for granting such injunction is that, without conducting a complaint proceeding under section 10, the Board has held the Brotherhood to be employer dominated and for that reason not entitled to a place on the ballot in the election to be held. To enjoin the action of the Board on such ground, however, is to review proceedings taken by it in the exercise of power conferred by Congress and to reverse the Board's decision for error of law; and it is perfectly clear, we think, that such power of review has not been conferred on the courts. Only when an order of the Board is made pursuant to section 10(c), and such order is based in whole or in part upon facts certified following an investigation pursuant to 9(c), is judicial review of 9(c) proceedings authorized; and in such case review is authorized by the Circuit Courts of Appeals, not by the District Courts. Sec. 9(d), 29 U.S.C.A. § 159(d); 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. International Brotherhood, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354; N. L. R. B. v. Falk Corporation, 308 U.S. 453, 60 S.Ct. 307, 310, 84 L.Ed. 396. As said by the Supreme Court in the case last cited:

"Nor can authority for such...