Perdue Farms, Inc. v. N.L.R.B., 96-2128

• Decision Date: 14 March 1997
• Docket Number: No. 96-2128,96-2128
• Citation: 108 F.3d 519
• Parties: 154 L.R.R.M. (BNA) 2746, 65 USLW 2664, 133 Lab.Cas. P 11,781 PERDUE FARMS, INCORPORATED, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD; Willie L. Clark, Jr., Regional Director of the Eleventh Region of the National Labor Relations Board, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 519

108 F.3d 519

154 L.R.R.M. (BNA) 2746, 65 USLW 2664,

133 Lab.Cas. P 11,781

PERDUE FARMS, INCORPORATED, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD; Willie L. Clark, Jr. Regional Director of the Eleventh Region of the National Labor Relations Board Defendants-Appellants.

No. 96-2128.

United States Court of Appeals Fourth Circuit.

Argued Jan. 27, 1997.

Decided March 14, 1997.

ARGUED: Abby Propis Simms, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Appellants. Charles Preyer Roberts, III, Haynsworth, Baldwin, Johnson & Greaves, P.A., Greensboro, NC, for Appellee. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Margery E. Lieber, Assistant General Counsel for Special Litigation, D. Criss Parker, National Labor Relations Board, Washington, DC, for Appellants.

Before WILKINSON, Chief Judge, and HAMILTON and WILLIAMS, Circuit Judges.

Chief Judge WILKINSON wrote the opinion, in which Judge HAMILTON and Judge WILLIAMS joined.

OPINION

WILKINSON, Chief Judge:

Appellee Perdue Farms, Inc. brought suit in federal district court contending that the National Labor Relations Board (NLRB) had violated section 9(c) of the National Labor Relations Act (NLRA), 29 U.S.C. § 159(c). Specifically, the company claimed that the NLRB had not adequately investigated allegations that the United Food and Commercial Workers Union (UFCW) forged signatures on authorization cards submitted in support of a unionization effort at a Perdue plant. The district court agreed with Perdue and enjoined any further NLRB action related to the union effort pending the Board's "full compliance with the mandates of 29 U.S.C. § 159(c)." The NLRB appeals, arguing that the district court lacked subject matter jurisdiction. Because we find that judicial review of Perdue's claim is premature, we vacate the injunction and remand the case for dismissal without prejudice to the company's ability to refile its claim at a more appropriate time.

I.

On June 2, 1995, the UFCW submitted a petition to the Region 11 office of the NLRB seeking to represent workers at Perdue's poultry processing plant in Lewiston, N.C. The union lost the ensuing representation election on June 28, 1995. The UFCW filed objections to the election, one of which was sustained by the Board, and a second election was scheduled for April 4, 1996.

On March 27, 1996, Perdue sent a letter to the Region 11 Director accompanied by affidavits from two former UFCW organizers alleging that the union had forged signatures on some 400 of the approximately 800 authorization cards submitted in support of the petition at the Lewiston plant. Perdue asked the Board to investigate. The Regional Director limited his inquiry to comparing the signatures on the authorization cards against employee signatures on documents provided by Perdue. The Director "was unable to conclude that the authorization cards ... had been forged." We further understand that Perdue's fraud allegations have become the subject of ongoing criminal investigation by the Federal Bureau of Investigation and the Racketeering Division of the Department of Labor.

In April 1996, the UFCW lost the second election. The union again filed objections, which were scheduled for a hearing on May 21. In addition, the Regional Director issued orders denying motions by Perdue to dismiss the representation petition and to postpone the hearing. On May 20, the Board rejected Perdue's request for review of the Director's orders, but specifically did so "without prejudice to the employer's right to raise these issues in any appropriately filed exceptions to the hearing officer's report that ultimately issues."

While Perdue's request for review was pending with the Board, Perdue filed a complaint in district court seeking to enjoin any further proceedings on the union's objections to the second election until the NLRB conducted a more extensive investigation of the fraud allegations. Perdue alleged that the Board had violated section 9(c) of the NLRA, which in relevant part provides that upon the filing of a petition for representation:

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice.

29 U.S.C. § 159(c)(1). Perdue argued that the Regional Director's inquiry into the fraud allegations was so inadequate that it did not amount to an "investigation" within the meaning of section 9(c).

The district court agreed with Perdue and issued a temporary restraining order on May 29, Perdue Farms, Inc. v. NLRB, 927 F.Supp. 897 (E.D.N.C.1996), and a preliminary injunction on July 23, Perdue Farms, Inc. v. NLRB, 935 F.Supp. 713 (E.D.N.C.1996), after the hearing on the second election had concluded but before the hearing officer had issued a report. While acknowledging that representation proceedings generally are not subject to district court review, the court held that Perdue's section 9(c) claim fell within the narrow exception to this rule recognized by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). The Board now appeals, claiming that the district court erred in asserting jurisdiction.

II.

A district court has jurisdiction under Leedom to review NLRB decisions relating to representation proceedings only "where the Board exceeds its...