National Maritime Union of America, AFL-CIO v. NLRB
| Citation | 375 F. Supp. 421 |
| Decision Date | 06 May 1974 |
| Docket Number | Civ. A. No. 71-881. |
| Parties | NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD and Bernard Samoff, Regional Director of the Fourth Region of the National Labor Relations Board, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Martin Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa., Stanley B. Gruber, Law Office of Abraham E. Freedman, New York City, for plaintiff.
Glen M. Bendixsen, Chief of Special Litigation, Washington, D. C., Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Leonard Leventhal, Regional Atty., Region 4, N. L. R. B., Philadelphia, Pa., Douglas McDonald, Atty., N. L. R. B., Washington, D. C., for defendants.
This is an action brought by the National Maritime Union of America, AFL-CIO (hereinafter the Union) against the National Labor Relations Board (hereinafter the Board) and its Regional Director, to compel the Board to reinstate the petition, assert jurisdiction, and order a representation election in Contract Services, Inc. (Case No. 4-RC-8995).
The Board has filed a motion to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure, asserting First: that this Court has no jurisdiction over the subject matter of the action, and Second: that the complaint fails to state a claim upon which relief can be granted.
The case presents the following issue for determination: Does a United States District Court have jurisdiction to compel the Board to order a representation election pursuant to § 9(c) of the National Labor Relations Act, as amended (hereinafter the Act), 49 Stat. 453, 61 Stat. 143, 29 U.S.C. § 159(c), when the Board has determined after a hearing that statutory jurisdiction over the enterprise exists, but has declined to exercise this statutory jurisdiction on the ground that it would adversely affect the foreign relations of the United States?
The procedural history of the case may be summarized as follows:
On January 11, 1971, the Union filed an election petition with the Regional Director of the Fourth Region of the Board, seeking a representation election among a unit of bus drivers, mechanics, dispatchers, and related personnel employed by Contract Services, Inc., in the Panama Canal Zone. The Regional Director dismissed the petition without a hearing, relying on the Board's decision in United Fruit Company, 159 NLRB 135 (1966), direct review denied, National Maritime Union v. NLRB, 267 F.Supp. 117 (S.D.N.Y.1967). The Union appealed the dismissal of the petition by the Regional Director; however, the Board denied the appeal and held that there was no compelling reason to depart from its decision in United Fruit, in which it had declined to assert jurisdiction in a matter involving attempted unionization of clerical employees of the United Fruit Company in the Panama Canal Zone because of negotiations between the governments of Panama and of the United States relating to future Panamanian sovereignty over the zone.
The Union thereupon instituted this action in the District Court, seeking to compel the Board to order a representation election, or, in the alternative, to compel it to conduct a hearing on the Union's election petition. The Board filed a motion to dismiss the complaint.
On November 9, 1971, this Court, per an Order of my former colleague, Judge Masterson, denied the motion to dismiss without prejudice and directed that a hearing be held to determine: First: whether the effect on foreign relations is a valid factor for the Board to consider in declining to assert jurisdiction in the Canal Zone; Second: if so, whether the assertion of jurisdiction would adversely affect relations between the United States and Panama; Third: whether the Canal Zone is a state, foreign country or territory within the definition of commerce in § 2(6) of the Act; and Fourth: whether there were any other reasons why the Court should decline to order the Board to conduct a hearing or an election in the matter.
Because the Board reconsiderd its dismissal of the Union's petition, and remanded the case to the Regional Director for a hearing, the necessity for a hearing in the District Court was obviated. Pursuant to a stipulation entered into by the parties, the proceedings in this Court were stayed pending action by the Board.
On April 4, 1972, Hearing Officer Solomon S. Spector conducted a hearing and the record was thereafter transmitted to the Board for determination under § 9(c)(1) of the Act. On April 3, 1973, a three-member panel of the Board rendered a decision and once again dismissed the petition of the Union. Contract Services, Inc., 202 NLRB No. 156 (1973).
The Board found that the employer is a Delaware corporation, engaged in the operation of a local bus system transporting U.S. military dependents to and from school within the Canal Zone, on a five-year fixed cost contract with the U. S. Navy, which contract had been in effect since August 1, 1971. The Board further found that the annual dollar volume of services exceeded $250,000.00, and that annual equipment purchases from the continental United States exceeded $50,000.00. Hence, the Board concluded that "the Employer's volume of business, purchases, and relationship to our national defense bring it within our standards for the assertion of jurisdiction." Contract Services, supra, at p. 3 (slip opinion). Moreover, the Board also concluded that business operations by U.S. employers in the Panama Canal Zone were included within the definition of "commerce" in § 2(6) of the Act, thus vesting the Board with the requisite statutory authority to assert jurisdiction over the matter. Notwithstanding these findings, however, the Board declined to assert jurisdiction because it concluded that such assertion under all of the circumstances of the case would adversely affect relations between the United States and Panama:
* * * we are of the opinion that we ought not at this time reach out to inject further U.S. governmental regulation of matters affecting Panamanian citizens employed in the Canal Zone, when the entire matter of the scope and effect of this country's presence in that zone is a matter undergoing international negotiations. To assert jurisdiction for the first time in this Board's history at this particular juncture would be to risk a negative impact on negotiations. Having refrained thus far from exercising the full extent of our statutory jurisdiction by asserting jurisdiction in this distant area, we see no compelling reason to do so now, and have no desire to take any action which might be a factor in jeopardizing the prospects for a negotiated settlement of the respective rights and duties of the United States and the Panamanian government with respect to Canal Zone matters. Contract Services, supra, at p. 10 (slip opinion)
On May 22, 1973, the Union filed a motion in this Court to compel the Board to assert jurisdiction in the Canal Zone, and to conduct a representation election pursuant to § 9(c) of the Act. The Board renewed its motion to dismiss the complaint. Extensive memoranda were filed by the parties and oral arguments in support of their respective positions were heard thereafter.
For the reasons cited in this opinion, we will grant the Board's motion to dismiss the complaint, on the ground that this Court lacks jurisdiction over the subject matter of the action.
Because of the complexity of the issues presented in this case, we will discuss seriatim the decisions of the Supreme Court and the lower federal courts pertaining to the jurisdiction of a District Court to review representation proceedings of the Board under § 9(c) of the Act.
The Wagner Act became law on July 5, 1935, after a brief and unhappy experience with a predecessor statute, Public Resolution 44, June 19, 1934, 48 Stat. 1183, c. 677, which had permitted immediate judicial review of Board orders in representation proceedings in the Courts of Appeals. The legislative history of the Wagner Act establishes that Congress considered these review provisions to be the chief weakness of Public Resolution 44, because dilatory tactics by employers could indefinitely postpone representation elections. For this reason, § 9 of the Wagner Act was purposefully drawn to exclude any review of representation orders in the Courts of Appeals, except in the single category of cases involving unfair labor practice proceedings pursuant to § 10 of the Act.
In American Federation of Labor v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), the Supreme Court extensively reviewed this legislative history, and concluded that "Congress, as the result of a deliberate choice of conflicting policies, has excluded representation certifications of the Board from the review by federal appellate courts authorized by the Wagner Act except in the circumstances specified in § 9(d)." AFL, supra, at 411, 60 S.Ct. at 305. The Court expressly rejected the contention that the narrowly circumscribed review provisions of the Act should be relaxed when a union, rather than an employer, was seeking judicial review:
An argument, much pressed upon us, is, in effect, that Congress was mistaken in its judgment that the hearing before the Board in proceedings under § 9(c), with review only when an order is made under § 10(c) directing the employer to do something "provides an appropriate safeguard and opportunity to be heard", House Rep. p. 23, and that "this provides a complete guarantee against arbitrary action by the Board", Sen.Rep. p. 14. It seems to be thought that this failure to provide for a court review is productive of peculiar hardships, which were perhaps not foreseen in cases where the interests of rival unions are affected. But these are arguments to be addressed to Congress and not the courts. * * * AFL, supra, at 411-412, 60 S.Ct. at 305 (footnote omitted)
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