Sparks Nugget, Inc. v. Scott
| Decision Date | 08 May 1984 |
| Docket Number | No. CV-R-83-362-ECR.,CV-R-83-362-ECR. |
| Citation | 583 F. Supp. 78 |
| Parties | SPARKS NUGGET, INC., dba John Ascuaga's Nugget, Plaintiff, v. James S. SCOTT, Regional Director, Region 32, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
William W. Wertz, San Francisco, Cal. and Peter D. Laxalt, Reno, Nev., for plaintiff.
Paul E. Eggert, Regional Atty., N.L. R.B., Oakland, Cal., and Paul E. Bateman, Margery E. Lieber, Deputy Asst. Gen. Counsel for Sp. Litigation, N.L.R.B., Washington, D.C., for defendants.
On October 11, 1983, the petitioner filed a petition seeking a writ of mandamus and an injunction. The writ of mandamus sought would require respondent National Labor Relations Board (Board) to investigate and process election petitions filed by petitioner and one of its employees.1 The injunction sought would restrain further proceedings in respect to two pending Unfair Labor Practice (ULP) proceedings on the ground that there has been excessive delay in processing the ULPs and that the Board is therefore acting in excess of its authority in processing them further.2
The Board in turn has filed a motion to dismiss these proceedings, contending that this Court has no jurisdiction to review the actions of the Board because such jurisdiction lies with the courts of appeals rather than the district courts.
On June 21, 1982, petitioner filed a petition with the Board, seeking a representation election among bar and culinary workers. On June 29, 1982, an employee of petitioner filed a statement signed by 500 of petitioner's employees, also asking for an election.
Shortly before the first election petition was filed, however, a union representing petitioner's bar and culinary employees had filed an Unfair Labor Practice charge with the Board, claiming that petitioner had refused to bargain in good faith. This petition was filed on June 10, 1982. On June 29, 1982, the union filed a second ULP, claiming that petitioner had engaged in coercive conduct.3 On June 30, 1982, the Board's Regional Director advised petitioner that the election petition would not be processed pending the resolution of the ULPs.4 This action was taken pursuant to the Board's "Blocking Charge Practice" (or "Blocking Charge Rule"), whereby the Board ordinarily will not conduct an election during the pendency of unwaived unfair labor practice charges involving employees in the bargaining unit in which an election is sought.5
On March 31, 1983, the Regional Director issued a complaint on the ULPs. Pursuant to stipulation, a hearing on the ULPs was continued from June 13, 1983, to October 17, 1983. An Administrative law judge has conducted approximately eight days of hearings on the ULPs, and the matter is now under submission.
On October 11, 1983, the petition herein was filed with this Court. On October 14, 1983, this Court ordered the Board to show cause why a mandate should not be issued requiring the NLRB to exercise its discretion to decide the certification petitions and the pending ULPs, and why an injunction should not be issued requiring the NLRB to terminate the ULP proceedings.
Finally, on November 9, 1983, the Board denied petitioner's request that the Board order the processing of the election petitions.6 The denial occurred as a result of a 2-2 vote by the Board on the issue of whether the Blocking Charge Practice was being properly applied in this case. All four7 members of the Board concluded that there has been a delay that is longer than desirable in the processing of the ULPs. The dissenters stated that the delay was unconscionable while the other two members of the Board felt that while the delay is longer than desirable, it was not unconscionable. Since a majority of the Board did not find that an exception to the Blocking Charge Practice was warranted, the tie vote in effect affirmed the actions of the Regional Director and thereby maintained the status quo.
Before this Court can intervene in Board proceedings, it must have subject matter jurisdiction. Where the Board has issued an order or made a decision in either a representation proceeding or an unfair labor practice proceeding, the National Labor Relations Act provides for review in the United States Courts of Appeals, and not in the United States District Courts. See Teamsters, Chauffeurs, Helpers and Delivery Drivers, Local 690 v. N.L.R.B., 375 F.2d 966, 968-69 (9th Cir.1967).8 The rule stated in Teamsters, however, does not apply to the present case. The Board has not acted, and there is therefore nothing to "review" in the traditional sense. There is no evidence that the Board's failure to act is based on a discretionary judgment on its part that delay in hearing and concluding the ULP proceedings in this case would in some way further the purposes of the National Labor Relations Act. Since the National Labor Relations Act does not speak to the issue of jurisdiction in this type of case, these proceedings are governed by general jurisdictional statutes.
28 U.S.C. § 1337
28 U.S.C. § 1337 is such a statute. It provides in part:
The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce ....
A district court has jurisdiction under § 1337 to invalidate Board action in excess of its delegated powers. Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 184-85, 3 L.Ed.2d 210 (1958). We recognize that the Leedom v. Kyne doctrine has been restricted in order to prevent direct judicial review of agency orders in areas that are committed to the agency's discretion. See, e.g., Baker v. International Alliance of Theatrical Stage Employees, 691 F.2d 1291, 1294 (9th Cir.1982). In the present case, however, petitioner has claimed that the Board has failed to perform a mandatory obligation to process its representation petitions. If petitioner's claim is valid, the Board's failure to act would constitute conduct in excess of its delegated powers, and would bring the Board within the Court's jurisdiction under Leedom v. Kyne.9
28 U.S.C. § 1331
28 U.S.C. § 1331 is another general jurisdictional statute. It provides:
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
Under Fay v. Douds, 172 F.2d 720 (2d Cir.1949) and its progeny, a district court has jurisdiction to intervene in Board proceedings if there is a "clearly colorable" (or at least a "not transparently frivolous") claim of a violation of constitutional rights. Id. at 723; McCormick v. Hirsch, 460 F.Supp. 1337, 1347 (M.D.Pa.1978).10 Since petitioner contends that the Board's delay has violated its due process rights, this Court has jurisdiction under § 1331.
We recognize that the Fay v. Douds doctrine is not universally applicable. The cases where the doctrine was not applied, however, have recognized that there is no "property right," in the Constitutional sense, that would entitle a party to a favorable Board decision on an issue committed to the agency's discretion. See, e.g., Herald Co. v. Vincent, 392 F.2d 354, 359 (2d Cir.1968). If the rule were otherwise, almost any agency decision theoretically would become subject to direct review, and agency procedures would be compromised.
In the present case, however, this Court could only intervene to compel the Board to exercise its discretion and reach a decision that either of the parties could appeal, if they wished to do so, through the normal appellate process. Thus, there is no danger in this case that the assumption by this Court of jurisdiction will infringe on a matter committed to the discretion of the National Labor Relations Board. While the Board is entitled to control of the scheduling of matters to be heard before it, it has an overriding obligation to avoid unreasonable delays. Whether the Board has discharged this obligation in a manner consistent with the Due Process Clause of the United States Constitution is not an issue for the Board to decide. See Public Utilities Commission v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958).
Having established the existence of its jurisdiction,11 this Court must now decide whether the Board has exercised its discretion as required by law.
The duty to investigate election petitions is established by 29 U.S.C. § 159(c), which provides in part:
Whenever an election petition shall have been filed ... 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.... If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Emphasis added.
Petitioner claims that the Board has a mandatory duty under this statute to process the petitions to election. However, the statute provides only that the Board first investigate the petitions, and it need proceed further only if it "has reasonable cause to believe that a question of representation affecting interstate commerce exists." Therefore, this Court's inquiry will be limited to the issue of whether the required investigation was conducted.
While the statute requires that the Board conduct some type of investigation, the scope of the investigation required under § 159 is a matter that is committed to the discretion of the Board. Newport News Shipbuilding & Dry Dock Co. v. N.L.R.B., 633 F.2d 1079, 1082 (4th Cir. 1980). Furthermore, the investigation need not take any particular form. Modern Plastics Corp. v. McCulloch, 400 F.2d 14, 18 (6th Cir.1968).
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