Templeton v. Dixie Color Printing Co.

• Decision Date: 28 July 1971
• Docket Number: No. 29921.,29921.
• Citation: 444 F.2d 1064
• Parties: Neil TEMPLETON et al., Plaintiffs-Appellees, v. DIXIE COLOR PRINTING CO., Inc., et al., Defendants, and National Labor Relations Board, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 1064 (1971)

Neil TEMPLETON et al., Plaintiffs-Appellees, v. DIXIE COLOR PRINTING CO., Inc., et al., Defendants, and National Labor Relations Board, Intervenor-Appellant.

No. 29921.

United States Court of Appeals, Fifth Circuit.

May 26, 1971.

Rehearing Denied and Rehearing Denied July 28, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Chief, Special Litigation, N. L. R. B., Washington, D. C., Constangy & Powell, J. R. Goldthwaite, Jr., Atlanta, Ga., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Ian D. Lanoff, Atty., N. L. R. B., for intervenor-appellant.

Robert McD. Smith, C. A. Powell, III, Birmingham, Ala., for plaintiffs-appellees; Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel.

Before CLARK, Associate Justice,^* and GEWIN and RONEY, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied July 28, 1971.

CLARK, Associate Justice:

The narrow question here is whether a United States District Court has jurisdiction to order the National Labor Relations Board to hold a representation election on a concededly valid employee decertification petition which it has held in abeyance for over three years on the ground that to grant the petition would collide with its general policy known as the "blocking charge practice." Under this prescription representations elections are not conducted by the Board during the existence of unremedied unfair labor practices. The trial court found that under the peculiar facts here jurisdiction did exist and that the situation could only be remedied by directing that the Board proceed with an election within 45 days. 313 F.Supp. 105 (N.D. Ala.1970).

We agree that jurisdiction is present under the decision in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), but we believe that the order is inappropriate in that it summarily directs that an election be held. Section 9(c) (1) of the Act commands the Board to first "investigate such petition and if it has reasonable cause to believe that a question of representation * * * exists shall provide for an appropriate hearing * * * If the Board finds * * * that such a question of representation exists, it shall direct an election. * * *" 29 U.S.C. § 159(c) (1). While heretofore the Board's interposition of the blocking charge has been the sole impediment to an election, the Board now has apprehensions as to an "improper atmosphere" for an election, the "proper reinstatement of strikers," and the composition of the appropriate bargaining unit, etc. While these apprehensions may be as fanciful as they are late, we have some reluctance to order an election in a case where the Board has neither investigated nor actually found reasonable cause to believe that a question of representation exists. We believe that more effective administration militates in favor of remand of the case with directions that an order be entered that the Board proceed forthwith to perform its duties under this section of the Act.

I

The facts are not in dispute. They have been fully set out in the District Court's scholarly opinion and need not be recited in detail here. It is sufficient to point out that in 1964 the International Typographical Union claimed to represent a majority of the employees (26 of a total of 38) of Dixie Color Printing Company. There had been no election and the Company refused to recognize the Union, whereupon a strike was called which was participated in by 23 of the employees. On the basis of unfair labor practice charges that were filed by the Union, a complaint was issued and on February 14, 1966 the Board found that the Company had coerced and restrained employees to undermine their support of the Union and had refused to bargain. The Board ordered the Company to cease the unfair labor practices, to recognize and bargain with the Union, and to reinstate the unfair labor practice strikers. Dixie Color Printing Corp., 156 NLRB 143. The Court of Appeals for the District of Columbia Circuit ordered the Board's decree enforced. Dixie Color Printing Co. v. N. L. R. B., 371 F.2d 347 (1967). The Company renewed the bargaining, reinstated the strikers, and claims that it ceased the unfair labor practices. No contract was reached and the bargaining ceased in October, 1967.

By January, 1968, the number of Dixie employees had increased to 73 and on the 9th of the month 51 of them filed a petition with the Board's Regional Office for the Tenth Region to decertify the Union. The Regional Director summarily dismissed the petition on the basis of the blocking charge practice of the Board. Plaintiffs-appellees filed with the Board a request for review of the Regional Director's dismissal of the decertification petition. The request for review was "held in abeyance" on the basis of the Board's blocking charge rule.

This suit was filed against Dixie and the Union as a class action by four employees of Dixie on February 28, 1968. They were opposed to the Union as their bargaining agent and acted for all other employees of like persuasion which, according to the decertification petition, accounted for 70% of the employees. The Board was permitted to intervene and on its motion the case was dismissed on the ground that it was an effort to enjoin collective bargaining, citing Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953). On an amended complaint seeking direct relief against the Board for holding plaintiffs' decertification petition in abeyance, the Board's motion to dismiss for lack of jurisdiction was denied and the election order entered.

Meanwhile, the Union had filed an application with the Board requesting that it file contempt charges against Dixie in the United States Court of Appeals for the District of Columbia. On August 26, 1968, over a year later, the Board filed a petition for contempt, the grounds being that Dixie had failed to give seniority to some 17 former strikers "to their former or substantially equivalent positions." The Board determined that as a result of the institution of these contempt proceedings, further processing of the decertification petition should be held in abeyance. The contempt citation is still pending.

It is well to state at the outset what is not involved here. First, the application before the Board is not an employer decertification petition, nor is there any claim of employer collaboration, influence or pressure with reference to the filing of it. Neither is the bona fides of the appellees questioned, nor the class that they represent, nor the number composing the same. The employer is not involved in this dispute; nor has it suffered any loss by reason of delay; indeed, delay has played into the hands of the employer and caused great detriment to the employees. The Union is not pursuing its bargaining rights, nor has it made claim to representation of a majority of the present employees. Indeed, the Union has announced through its counsel that if an election were ordered it would withdraw;¹ and, though it has not had the support of a majority of the employees for over three years, it has never been decertified and the employees have been prevented from choosing their own bargaining representative all of this time. It is not clear why the "blocking" unfair labor practice charges have yet to be disposed of by the Board.

II

The Court has jurisdiction. Subject matter jurisdiction is conferred by 28 U.S.C. § 1337, since this is a civil action arising under an act regulating commerce. The questions are whether jurisdiction may be assumed, consistent with the review provisions of the National Labor Relations Act, and whether equitable relief was properly granted. See Boire v. Miami Herald Publishing Co., 343 F.2d 17, 20 (C.A. 5, 1965), cert. denied, 382 U.S. 824, 86 S.Ct. 56, 15 L. Ed.2d 70.

It is true, as the Board contends, that generally a federal district court lacks jurisdiction to review determinations of the Board in a representation proceeding. The general power of a court of appeals to review the actions of the Board is defined by § 10(f), 29 U.S. C. § 160(f), which is limited to final orders granting or denying relief. There is here no such order for review.

But at least since 1940 the Supreme Court has recognized that there might be circumstances where jurisdiction was present. In A. F. of L. v. N. L. R. B., 308 U.S. 401, 412, 60 S.Ct. 300, 306, 84 L.Ed. 347 (1940), it indicated that where "unlawful action of the Board has inflicted an injury" to a right which Congress had created "for which the law, apart from the review provisions of the * * * Act, affords a remedy" then jurisdiction would be present to enforce that right. And, again, three years later the Court warned in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 300, 64 S.Ct. 95, 96, 88 L.Ed. 61 (1943), that where "the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control." And since that time the courts in several cases have found jurisdiction present and have exercised it, notably Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 185, 3 L.Ed. 2d 210 (1958), where the Court said that it "cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers." There, Section 9(b) (1) of the Act had given professional employees the right to vote separately on whether they would be included in a proposed bargaining unit that included both professional and non-professional employees, but the Board refused to take a vote and included the professional employees in the unit. The Court held that a federal District Court had jurisdiction to vacate such a determination by the Board "made in excess of its delegated powers and contrary...