Perdue Farms, Inc. v. NLRB, 2:96-CV-27-BO(1).

• Decision Date: 23 July 1996
• Docket Number: No. 2:96-CV-27-BO(1).,2:96-CV-27-BO(1).
• Citation: 935 F. Supp. 713
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: PERDUE FARMS, INC., Plaintiff, v. NATIONAL LABOR RELATIONS BOARD and Willie L. Clark, Jr., Regional Director of the Eleventh Region of the National Labor Relations Board, Defendants.

935 F. Supp. 713

PERDUE FARMS, INC., Plaintiff, v. NATIONAL LABOR RELATIONS BOARD and Willie L. Clark, Jr., Regional Director of the Eleventh Region of the National Labor Relations Board, Defendants.

No. 2:96-CV-27-BO(1).

United States District Court, E.D. North Carolina, Northern Division.

July 23, 1996.

COPYRIGHT MATERIAL OMITTED

Charles P. Roberts, III, Haynsworth, Baldwin, Johnson & Greaves, Greensboro, NC, for plaintiff.

Donald R. Gattalaro, NLRB — Region 11, Winston-Salem, NC, Margery E. Lieber, NLRB, Spec. Litigation Branch, Abby Propis Simms, D. Criss Parker, Washington, DC, for defendants.

ORDER

BOYLE, District Judge.

The facts and circumstances of this case are contained in this Court's opinion and order of May 29, 1996, issuing the temporary restraining order sought by plaintiff. Perdue Farms, Inc. v. N.L.R.B., 927 F.Supp. 897 (E.D.N.C.1996). That opinion is hereby adopted in full to the extent it is necessary for a complete understanding of this order.

By its terms, the temporary restraining order expired on June 8, 1996. The defendants have since scheduled to resume, on July 17, 1996, the conduct of hearings on the Union's objections relating to the second Lewiston election. The plaintiff has filed a motion for preliminary injunction, which was the subject of a hearing held on June 7, 1996. The defendants have subsequently moved to dismiss the case for lack of subject matter jurisdiction, failure to state a claim, and mootness.

* * *

As discussed previously, this Court has jurisdiction over the subject matter of the labor dispute pursuant to 28 U.S.C. § 1337(a). See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Jurisdiction over the dispute arising under the Freedom of Information Act ("FOIA") is conferred by 5 U.S.C. § 552(a)(4)(B).¹ The parties have offered arguments in support of their competing motions, which are addressed in turn. The facts as previously recited by the Court are uncontested.²

I. The Labor Dispute

A.

The Board is correct in asserting that a "party must make a `strong and clear' showing that the Board disregarded a `clear, specific and mandatory provision of the Labor Act.'" (Memo.Supporting Dismissal, p. 8, quoting McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969)). The clear, specific and mandatory provision of the Labor Act disregarded by the Board in this case is 29 U.S.C. § 159(c)(1), specifically, that provision of the statute which uses mandatory language in declaring that "the Board shall investigate" election petitions.

The Board claims it is under no mandate to conduct any investigation, erroneously relying upon cases which recognize the Board's discretion in establishing procedures for the determination of whether a question concerning representation exists. The Board's discretion to decide the existence of a question concerning representation means that "the accuracy of the Board's basis in ordering an election is of no concern to the employer." Intertype Co. v. N.L.R.B., 401 F.2d 41, 43 (4th Cir.1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969) (emphasis added). It does not mean that the Board may dispense with the mandatory investigation, or conduct the investigation contrary to established policy, such that it altogether lacks a basis for ordering the election. The Board thus misinterprets the statement of Newport News Shipbuilding & Dry Dock Co. v. N.L.R.B., 633 F.2d 1079, 1081 (4th Cir.1980), that "section 9(c) hearings and investigations are particularly within the Board's discretion." The language clearly speaks to the manner in which hearings and investigations are conducted, not the requirement to investigate petitions.

Were the Board correct, it could order or refuse to order an election without consulting the relevant petition, thereby displacing the employees in their exercise of section 7 rights. Congress could not have intended such a result. As another of the cases relied upon by the Board declares, "the statute requires an investigation." Modern Plastics Corp. v. McCulloch, 400 F.2d 14, 17-18 (6th Cir.1968); see also Newport News, 633 F.2d at 1082 ("the Board has met its statutory obligation by conducting an investigation"); accord Brotherhood of Railway & Steamship Clerks, et al. v. Ass'n for Benefit of Non-Contract Employees, 380 U.S. 650, 661, 85 S.Ct. 1192, 1198, 14 L.Ed.2d 133 (1965) (footnote omitted) ("The Board's action ... is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to `investigate' the dispute.") (Railway Labor Act); Miami Newspaper Printing Pressmen's Union Local 46 v. McCulloch, 322 F.2d 993 (D.C.Cir.1963) (Leedom applicable to "shall certify" clause of § 9(c));³ Templeton v. Dixie Color Printing Company, 444 F.2d 1064 (5th Cir.1971) (per Justice Clark) (Leedom applicable to "shall direct an election" clause of § 9(c)); Surratt v. N.L.R.B., 463 F.2d 378 (5th Cir.1972) (same).

The Board cites in its earlier briefs two non-controlling cases for the proposition that § 9(c) is not mandatory. In its reply brief, however, the Board declares that it "has never denied the presence of mandatory `shall investigate' language in Section 9(c)(1) of the Act," and revives the argument that an investigation actually took place. (Reply Brief, p. 2). Whatever the Board's position now, the Court has considered the cases first cited by the Board and finds them unpersuasive.

In National Maritime Union of America v. N.L.R.B., 375 F.Supp. 421, 429 (E.D.Pa.), aff'd, 506 F.2d 1052 (3rd Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975), the district court held that words such as "shall" and "shall not" are only "apparently" mandatory, and that courts must discern the words' true legislative intent from, among other sources, the "prior practice in the Board." The strained logic of National Maritime Union was not necessary to address the question at hand, a union's attempt to have the Board recognize its petition to represent workers overseas (see McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963)), and is of questionable validity. "When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (citations omitted); United States v. State of North Carolina, 914 F.Supp. 1257, 1267 (E.D.N.C.1996). United States Metal Co. Employees' Assoc. v. N.L.R.B., 478 F.Supp. 861 (W.D.Pa.1979) is readily distinguishable, because unlike this case, see infra, a technical § 8(a)(5) procedure was an available remedy.

B.

"The deference owed the Board as the primary guardian of the bargaining process is well established. It will not extend, however, to the point where the boundaries of the Act are plainly breached." N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577, 1583 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2551, 135 L.Ed.2d 1071 (1996).⁴ The Board correctly argues that it "must necessarily develop election policies and requirements which are not addressed in the statute." (Memo.Supporting Dismissal, p. 9 n. 4). The Court finds that this is what the Board has done in adopting the Casehandling Manual guidelines discussed in the previous opinion, as well as 29 C.F.R. § 101.18, "Investigation of petition:"

(a) Upon receipt of the petition in the Regional Office, it is docketed and assigned to a member of the staff, usually a field examiner, for investigation. The field examiner conducts an investigation to ascertain ... (3) whether the election would ... reflect the free choice of employees in the appropriate unit, and (4) whether, if the petitioner is a labor organization seeking recognition, there is a sufficient probability, based on the evidence of representation of the petitioner, that the employees have selected it to represent them.

It is unnecessary to revisit the factual insufficiency of the Board's alleged "investigation,"⁵ except to note that at least one circuit has reached a conclusion identical to that previously announced — and still maintained — by this Court. In an unpublished opinion, a panel of the Sixth Circuit declared:

The statutory obligation to conduct an investigation of decertification petitions was not satisfied ... where the Regional Director merely recited that an investigation had been conducted. The record clearly evidences that the Regional Director did little more than review the petition itself; such a review falls short of the Act's requirement.

Ondusko v. Colfor, Inc., 734 F.2d 15 (6th Cir.1984) (unpublished).⁶ The question is now whether, having developed its "policies and requirements," the Board may now ignore them without explanation. Clearly the Board may not.

C.

This Court is not alone in its desire to see the NLRB display some cognizance of the guidelines set forth by the Board in its Casehandling Manual. The Court of Appeals for the District of Columbia Circuit has recently held that the Board abused its discretion when it reversed a regional director's decision made pursuant to a Manual guideline. Shepard Convention Services, Inc. v. N.L.R.B., 85 F.3d 671 (D.C.Cir.1996).

In Shepard Convention, a Regional Director denied a union's request to conduct a certification election by mail, relying on a Casehandling Manual provision suggesting that "the use of mail balloting ... should be limited to those circumstances that clearly indicate the infeasibility of a manual election." Casehandling Manual, § 11336. The NLRB allowed interlocutory review and reversed the Regional Director's decision. The employer subsequently refused to bargain with the "mail-elected" union and was found to have committed an unfair labor practice in violation of 29 U.S.C. §§ 158(a)(5), (1).

The Court of Appeals...