Milk and Ice Cream Drivers Union, Local 98 v. McCulloch

• Decision Date: 31 May 1962
• Docket Number: No. 16695.,16695.
• Parties: MILK AND ICE CREAM DRIVERS AND DAIRY EMPLOYEES UNION, LOCAL 98, Affiliated With International Brotherhood of Teamsters, Appellant, v. Frank W. McCULLOCH, Chairman, National Labor Relations Board, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 156, 306 F.2d 763 (1962)

MILK AND ICE CREAM DRIVERS AND DAIRY EMPLOYEES UNION, LOCAL 98, Affiliated With International Brotherhood of Teamsters, Appellant, v. Frank W. McCULLOCH, Chairman, National Labor Relations Board, et al., Appellees.

No. 16695.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1962.

Decided May 31, 1962.

Mr. Herbert S. Thatcher, Washington, D. C., with whom Mr. James F. Carroll, Washington, D. C., was on the brief, for appellant.

Mr. Herman M. Levy, Atty., N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., were on the brief, for appellee McCulloch and others. Messrs. Morton Namrow and James C. Paras, Attys., N. L. R. B., also entered appearances for appellee McCulloch and others.

Mr. William B. Devaney, Washington, D. C., entered an appearance for appellee Milk and Ice Cream Drivers and Dairy Employees Union of Greater Cincinnati and Vicinity.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

Appellant union,¹ referred to as Local 98, filed suit in the District Court against the Chairman and members of the National Labor Relations Board, to enjoin the Board from holding a representation election among the employees of the dairy industry in the greater Cincinnati area. The District Court, Judge Holtzoff sitting, dismissed the complaint for lack of jurisdiction, followed by this appeal.

The complaint alleged that Local 98, as the representative of the employees referred to, on March 16, 1959, had entered into a collective bargaining agreement with the Greater Cincinnati Milk and Ice Cream Dealers Association, composed of some forty-one dairy employers. This agreement would not expire by its terms until March 19, 1962, prior to which, on the petition of the intervenor union,² which in the meantime claimed to have become the representative of the employees, the Board had directed the election. The complaint of Local 98 attacked this action of the Board as in excess of its authority and as a taking of its property without due process of law. It is claimed also that the Board's action was inconsistent with procedural due process in that, though permitted to intervene in the Board proceedings appellant was denied the right to present proof that there was an established practice in the industry to maintain three-year collective bargaining agreements, and, also, that it was precluded from introducing evidence in other respects to which we shall refer.

In directing the election notwithstanding the unexpired agreement the Board invoked what is known as its contract-bar rule, under which a uniform period of two years had been adopted by the Board "as the measure of the reasonable period during which a contract will bar a representation proceeding." Pacific Coast Ass'n of Pulp & Paper Mfrs., 121 N.L.R.B. 990, 992 (1958).

Local 98 can rely upon no provision of the National Labor Relations Act,³ as amended, to support jurisdiction in the District Court to review a Board representation proceeding. The Supreme Court has said:

"In American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347, this Court held that a Board order in certification proceedings under § 9 is not `a final order\' and therefore is not subject to judicial review except as it may be drawn in question by a petition for enforcement or review of an order, made under § 10(c) of the Act, restraining an unfair labor practice. But the Court was at pains to point out in that case that `the question there presented was distinct from * * * whether petitioners are precluded by the provisions of the Wagner Act from maintaining an independent suit in a district court to set aside the Board\'s action because contrary to the statute * * *.\'"

Leedom v. Kyne, 358 U.S. 184, 187-188, 79 S.Ct. 180, 183, 3 L.Ed.2d 210.

The question respecting an independent suit, reserved in American Federation of Labor, was decided in Leedom v. Kyne, supra. The Court held that such a suit was available "to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act." 358 U.S. at 188, 79 S.Ct. at 184. As elsewhere expressed in the opinion, "where * * * Congress has given a `right' * * * there to professional employees it must be held that it intended that right to be enforced * * *." This, the Court held, may be done under the general equity jurisdiction of a district court. 358 U.S. at 190-191, 79 S.Ct. at 184.

Our court has paraphrased the Supreme Court opinions bearing on District Court jurisdiction in a representation proceeding as requiring a showing of unlawful action by the Board, with resulting injury, by "departure from statutory requirements or from those of due process." Leedom v. International Broth. of Elec. Workers, 107 U.S.App.D.C. 357, 359; 278 F.2d 237, 239, quoting De Pratter v. Farmer, 98 U.S.App.D.C. 74, 76; 232 F. 2d 74, 76, in turn quoting Inland Empire Dist. Council v. Millis, 325 U.S. 697, 700, 65 S.Ct. 1316, 89 L.Ed. 1877. And see Boyles Galvanizing Co. v. Waers, 291 F.2d 791, 792 (10th Cir. 1961); McLeod v. Local 476, United Broth. of Indus. Workers, 288 F.2d 198, 201 (2d Cir. 1961); International Ass'n of Tool Craftsmen v. Leedom, 107 U.S.App.D.C. 268, 276 F.2d 514, cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46; Leedom v. Norwich, Connecticut Printing Specialties & Paper Prod. Union, 107 U.S.App.D.C. 170, 275 F.2d 628, cert. denied, 362 U.S. 969, 80 S.Ct. 955, 4 L.Ed.2d 900; National Biscuit Division v. Leedom, 105 U.S.App. D.C. 117, 265 F.2d 101, cert. denied, 359 U.S. 1011, 79 S.Ct. 1151, 3 L.Ed.2d 1037; Leedom v. Kyne, 101 U.S.App.D.C. 398, 249 F.2d 490, aff'd, 358 U.S. 184, 79 S. Ct. 180, 3 L.Ed.2d 210.

In seeking to bring its case within the above principles Local 98 relies upon no express statutory provision. The only statutory time limitation applicable to a section 9 proceeding is the prohibition in section 9(c) (3)⁴ against holding an election when a valid one has been held within the preceding twelve months. Except for this the Board has a latitude insofar as the terms of the Act itself are concerned. Our question is whether, nevertheless, the direction of an election under the two-year contract-bar rule in the face of an unexpired agreement presents a substantial question of due process. Several decisions have upheld the validity of such action of the Board against such a contention, including our own decision in Leedom v. International Broth. of Elec. Workers, supra. And see McLeod v. Local 476, United Broth. of Indus. Workers, supra, 288 F.2d at 201; Local 1545, United Broth. of Carpenters & Joiners v. Vincent, 286 F.2d 127 (2d Cir. 1960). Cf. Empresa Hondurena De Vapores, S.A. v. McLeod, 200 F.Supp. 484, 486-87 (S.D.N.Y.1961); and compare Fay v. Douds, 172 F.2d 720 (2d Cir. 1949), where, however, no Board hearing whatever was held.

While it was early held in Labor Board cases, see Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 235-239, 59 S.Ct. 206, 83 L.Ed. 126, that the Board must recognize the validity of contracts of an employer with an independent labor organization, the time within which an election might validly be held to determine whether the organization continued to represent the employees was not involved in those cases. Neither the Board nor the courts were there confronted with the responsibility of carrying out the policy of the Act to permit employees to make known by an election the choice of their representative.⁵ Freedom to choose is a basic part of the legislative plan. Collective bargaining agreements, conducive to industrial peace and stability, are of course encouraged; but the Act contemplates that they shall be between management on the one hand and the freely...