Millis v. INLAND EMPIRE DISTRICT COUNCIL, ETC., 8746.

• Decision Date: 24 July 1944
• Docket Number: No. 8746.,8746.
• Citation: 144 F.2d 539
• Parties: MILLIS et al. v. INLAND EMPIRE DISTRICT COUNCIL, LUMBER AND SAWMILL WORKERS UNION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

144 F.2d 539 (1944)

MILLIS et al. v. INLAND EMPIRE DISTRICT COUNCIL, LUMBER AND SAWMILL WORKERS UNION, et al.

No. 8746.

United States Court of Appeals District of Columbia.

Argued June 13, 1944.

Decided July 24, 1944.

Writ of Certiorari Granted December 4, 1944.

Mr. Charles F. McErlean, National Labor Relations Board, of Washington, D. C., with whom Messrs. Alvin J. Rockwell, General Counsel, and Malcolm F. Halliday, Associate General Counsel, both of the National Labor Relations Board, both of Washington, D. C., were on the brief, for appellants.

Mr. George E. Flood, member of the Bar of the Supreme Court of the State of Washington, of Seattle, Wash., pro hac vice, by special leave of Court, with whom Messrs. Joseph A. Padway and James A. Glenn, both of Washington, D. C., were on the brief, for appellees.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

Writ of Certiorari Granted December 4, 1944. See 65 S.Ct. 269.

EDGERTON, Associate Justice.

Appellee unions ask a mandatory injunction requiring appellants, the members of the National Labor Relations Board, to set aside a certification, following an election, of the collective bargaining representatives of certain employees of Potlatch Forests, Inc., a large logging and lumbering concern in Idaho. The complaint also asks for a declaratory judgment that the certification is void. It attacks the sufficiency of the hearings which the Board held in connection with the election. It states that the employer has bargained with appellee unions in the past and will be deterred by the Board's certificate from doing so in the future, and asserts that this will cause irreparable injury to appellees. The District Court declined to dismiss the complaint on appellants' motion. We think this was error.

The National Labor Relations Act authorizes judicial review of the Board's certification if, but only if, the Board finds unfair labor practices and makes its certification the basis of an order with respect to such practices. §§ 9 (d), 10(c), 49 Stat. 453, 454, 29 U.S.C.A. §§ 159(d) 160(c). There is no such finding or order in this case. We think the statutory review is exclusive. In American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 412, 60 S.Ct. 300, 84 L.Ed. 347, the Supreme Court expressly reserved the question whether the Board's mere certification of collective bargaining representatives could be reviewed in a suit like the present one. But we think the question is now foreclosed by Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, which held that the District Court had no power to review a similar certification of the National Mediation Board. Reilly v. Millis, ___ U.S.App.D.C. ___, 144 F.2d 259; Cf. Employers Group of Motor Freight Carriers, Inc., v. National War Labor Board, ___ U.S.App.D.C. ___, 143 F.2d 145.

Reversed.

GRONER, C. J. (dissenting).

The controversy here primarily concerns the employees of Potlatch Forests, Inc. That corporation is engaged in lumbering and sawmill operations in Idaho. It owns five plants, located miles apart, one at Lewiston, one at Coeur d'Alene, one at Potlatch, one at Boville and the other at Headquarters. Five labor unions, locals of the American Federation of Labor, had for years represented, respectively, the employees of these five operations.

In March, 1943, locals of the C. I. O. filed with the Labor Board petitions to be certified as the bargaining representative in three of the company's five plants. There was a hearing and the Board in July, 1943, found the units included inappropriate for collective bargaining and dismissed the petitions. A few days after dismissal the C. I. O. unions filed a new petition, requesting certification of the employees of all five operations in a single unit, and a month later followed this with a motion requesting that their petition be treated as an amendment to the former petitions, and that an order directing the holding of an election be entered by the Board. The Board, thereupon, without providing a hearing, and over the objection of the A. F. of L. unions, issued an order directing the holding of a general election. Accordingly an election was held, in which all present employees of all five plants, except certain excepted employees, voted, or might have voted, with the result that the C. I. O. secured the majority of those voting, which, it is claimed, however, was less than fifty per cent of those eligible to vote.

The complaint here alleges that —

"In said decision and direction of election, the Board acted arbitrarily and capriciously in that (a) the Board treated the petition in case numbered 19-R-1164 as an amendment to the petitions in said dismissed Cases...