May Department Stores Co. v. Brown

• Decision Date: 05 June 1945
• Docket Number: Civ. A. No. 3232.
• Citation: 60 F. Supp. 735
• Parties: MAY DEPARTMENT STORES CO. v. BROWN et al.
• Court: U.S. District Court — Western District of Missouri

60 F. Supp. 735

MAY DEPARTMENT STORES CO. v. BROWN et al.

Civ. A. No. 3232.

District Court, W. D. Missouri, W. D.

June 5, 1945.

Lewis, Rice, Tucker, Allen & Chubb and Robert T. Burch, all of St. Louis, John G. Madden and Ralph M. Russell, both of Kansas City, Mo., for plaintiff.

Francis M. Shea, Asst. Atty. Gen., Maurice M. Milligan, U. S. Atty., and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo., Arnold Levy, Sp. Asst. to the Atty. Gen., and Harry I. Rand, Atty., Department of Justice, of Washington, D.C., for defendants.

RIDGE, District Judge.

Plaintiff, a New York corporation, operating a department store in St. Louis, Missouri, seeks to enjoin defendants, who are the Chairman, two Vice-Chairmen, and the Director of the Disputes Division of Regional War Labor Board VII, and the three members of a tripartite panel established and appointed by said Board, from taking any further action in a certain labor dispute matter now pending before said Regional Board.

On May 8, 1945 a temporary restraining order was issued ex parte upon the verified complaint of plaintiff, returnable on May 10, 1945 at 9:30 o'clock a. m. On the return date, defendants requested the hearing be continued until May 24, 1945. In the meantime, defendants filed a motion to dismiss the complaint or in the alternative for summary judgment, on seven separate grounds. Said motion is now before the Court for disposition. The first ground contained in the motion to dismiss challenges the jurisdiction of the Court over the subject matter of this action. If this contention be sound, it will not be necessary to consider the other grounds contained in said motion.

The complaint and affidavit, filed in support of the motion to dismiss, discloses the following state of facts: a labor dispute exists between plaintiff and Local No. 372, United Retail, Wholesale and Department Store Employees of America (CIO), hereinafter called the Union, concerning certain busheling-room employees of plaintiff. The dispute was first referred to the National War Labor Board on September 10, 1943, pursuant to Executive Order 9017,¹ and Section 7(a) (1) of the War Labor Disputes Act,² by the Acting Director of the United States Conciliation Service, and the Acting Secretary of Labor, for refusal of plaintiff to recognize or to bargain collectively with the Union, in respect to said busheling-room employees, and for the reason that said dispute (in the words of the certification), "might interrupt work which contributes to the effective prosecution of the war and may lead to substantial interference with the war effort and which cannot be settled by collective bargaining or conciliation." Thereafter the National War Labor Board referred said dispute to Regional War Labor Board VII, and the hearing thereof was set, by said Regional Board, before a tripartite panel. This hearing was later cancelled to await clarification of National War Labor Board policy affecting disposition of dispute cases involving issues of union representation and collective bargaining. In July 1944, the dispute remaining unsettled, the Conciliation Service re-entered the controversy and having failed to resolve said dispute the matter was again, on August 31, 1944, certified to the National War Labor Board. The issue then involved was stated to be "the terms and conditions of employment" affecting the busheling-room employees of plaintiff. This dispute was also referred to Regional War Labor Board VII, and a hearing thereon was held before a tripartite panel on October 16, 1944, at which plaintiff and the Union participated. On November 25, 1944, the panel filed its report with the Regional Board. Thereafter, on January 19, 1945, the Regional Board substantially, in accordance with the panel's recommendation, issued an interim directive order recommending that the parties endeavor, immediately, to settle by negotiation all outstanding issues regarding the "terms and conditions of employment," and providing that failing such an agreement by February 1, 1945, a public hearing be held in St. Louis, before a tripartite panel of the Regional Board. The plaintiff filed a petition for review of this Regional Board Interim Order.

On July 12, 1943 (prior to the first submission to the National War Labor Board), in a representative proceeding under Section 9(c) of the National Labor Relations Act,³ the National Labor Relations Board certified the Union in question as the exclusive bargaining representative of plaintiff's busheling-room employees. On December 17, 1943, the National Labor Relations Board issued a decision and order,⁴ finding that plaintiff had refused to bargain with said Union and, pursuant to the provisions of the National Labor Relations Act, petitioned the Eighth Circuit Court of Appeals to enforce its order. On January 11, 1945, the Eighth Circuit Court of Appeals entered its decree, enforcing the National Labor Relations Board's order with a slight modification.⁵ On January 23, 1945, compliance with said decree was stayed by the Eighth Circuit Court of Appeals until the final disposition of certiorari proceedings to be instituted in the Supreme Court of the United States. On April 9, 1945, the Supreme Court of the United States granted certiorari in said National Labor Relations Board case.⁶ Because of the stay order issued by the Eighth Circuit Court of Appeals, and the certiorari proceedings pending in the Supreme Court of the United States, plaintiff petitioned Regional War Labor Board VII, to take no further action in the Labor Dispute matter then pending before it, until the final adjudication of the issues of representation involved in the National Labor Relations Board proceedings by the Supreme Court. On March 31, 1945 the Regional Board vacated its Interim Directive Order of January 19, 1945. On April 17, 1945 the Regional Board denied the plaintiff's request that all action in said labor dispute case be stayed, pending decision by the Supreme Court and on April 25, 1945, the Regional Board advised the parties that "a further hearing involving terms and conditions of employment in the subject case" would be held in St. Louis, Missouri, on May 10, 1945. It was the holding of this hearing that was restrained by order of this Court on May 8, 1945.

The specific challenge made to the Court's jurisdiction over the subject-matter of this action is: that the complaint states no justiciable controversy; that the Court has no jurisdiction to inquire into or review War Labor Board action; that defendants have no power to act in impairment of any of plaintiff's legal interests, hence plaintiff has no controversy with defendants; that neither statutory enactment nor general equitable principles authorize judicial intervention in National War Labor Board's actions. I am of the opinion that this contention must be sustained and the complaint must be dismissed.

The Court of Appeals for the District of Columbia, in three recent cases⁷ has decided, that no statute authorizes review of National War Labor Board directive orders, and that the directives issued by said Board are "not reviewable" by the Courts under general equitable principles. The opinions in said cases make it clear that directive orders issued by the National War Labor Board are unenforceable; that "no money, property or opportunity" is taken or withheld by a directive of the National War Labor Board and that any action taken by said Board in a labor dispute matter is "at most advisory" and "informative." Hence, the correctness thereof cannot be controlled by the Courts. In Oil Workers, Intern. Union, etc., v. Texoma Natural Gas Co., 146 F.2d 62, 65, the Fifth Circuit Court of Appeals held that "the National War Labor Board is not, under the law, vested with judicial functions, nor does it have the power to enforce its determinations, called `directives,' upon the parties to a controversy before it. It is not a substitute for the courts, and the pendency of a controversy before it is not a bar to a suit in the courts."

The power usually delegated to administrative agencies is of three (3) general patterns: (1) quasi judicial power, to determine controversies; (2) legislative power, such as rate and rule making; or (3) the power to act merely in an advisory capacity to the Legislative or Executive branch of the Government. It is generally understood that as to agencies coming within the first two classifications, there is an underlying power in the Courts to scrutinize the acts of such agencies on questions of law and questions of jurisdiction, even though no right of review is given by statute. As to administrative tribunals falling within the third classification, it is settled law that the Courts have no inherent power to interfere with, or review, the acts of such an agency and unless the right of review is specially given by statute Courts are without jurisdiction to control the action taken by said agency.⁸ The National War Labor Board is an administrative tribunal within this last classification. The correctiveness of the advice that might be given by the National War Labor Board, through its derivatives, to the Congress or the Executive branch of the Government, cannot be controlled by the Courts.⁹ The final "directives" of the National War Labor Board, being immune to interference or control by the judiciary, then it logically follows that the Courts have no jurisdiction to enjoin the interim proceedings of said Board that will only lead up to "a directive." To hold otherwise would permit to be done by indirection that which cannot be done directly.

Plaintiff attempts to distinguish the jurisdiction of the Court, in the case at bar, from the jurisdictional question decided in the Oil Workers, Employer's Group, Montgomery-Ward and Gypsum cases, supra. In doing so, plaintiff contends that the Court, in those cases, had before it final directive orders of the National War Labor Board in which...