United Federation of College Teach., Loc. 1460 v. Miller

• Decision Date: 15 May 1973
• Docket Number: No. 709,Docket 73-1091.,709
• Citation: 479 F.2d 1074
• Parties: UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460, and American Federation of Teachers, AFL-CIO, Plaintiff-Appellant, v. Edward B. MILLER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 1074 (1973)

UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460, and American Federation of Teachers, AFL-CIO, Plaintiff-Appellant, v. Edward B. MILLER et al., Defendants-Appellees.

No. 709, Docket 73-1091.

United States Court of Appeals, Second Circuit.

Argued March 8, 1973.

Decided May 15, 1973.

Judith P. Vladeck, New York City (Vladeck, Elias, Vladeck & Lewis, Stephen C. Vladeck and Deborah Watarz, New York City, on the brief), for plaintiff-appellant.

R. Bruce McLean, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Chief of Special Litigation, and Abigail Cooley Baskir, Atty., N.L.R.B., on the brief), for defendants-appellees.

Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.^*

LUMBARD, Circuit Judge:

United Federation of College Teachers, Local 1460 ("Union") appeals from an order of the Eastern District dismissing for lack of jurisdiction its action against defendants Miller, Fanning, Pennello, and Kennedy, in their capacities as members of the National Labor Relations Board. The Union had sought an injunction preventing the N.L.R.B. from effectuating its order of July 27, 1972, which directed the N.L.R.B. Regional Director for the 29th Region to count certain disputed ballots that had been cast in a representation election among professional employees at the C. W. Post Center of Long Island University ("C. W. Post"). In dismissing the action, the district court, 359 F. Supp. 76, relied on the general rule that an action to review a representation proceeding is not ordinarily within the competence of a district court. Herald Co. v. Vincent, 392 F.2d 354, 357 (2d Cir. 1968). It has long been held that N.L.R.B. certification proceedings do not result in reviewable final orders. A.F.L. v. N.L.R.B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Review is ordinarily permitted only after the N.L. R.B. enters a final order in an unfair labor practice proceeding in reliance on its resolution of the certification proceeding; and then review lies in the court of appeals, not in the district court. 29 U.S.C.A. § 160(e).

There are several recognized exceptions to this general principle, two of which the Union believes support district court jurisdiction in this case: 1) a district court may intervene when the N.L.R.B. has acted contrary to a specific mandate of the National Labor Relations Act (Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958)); and 2) the district court has jurisdiction of a cause of action that asserts a violation of constitutional rights that is not transparently frivolous (Fay v. Douds, 172 F.2d 720 (2d Cir. 1949)). The district court considered both of these exceptions and found them inapplicable here. For the reasons stated in this opinion we agree with the district court and we affirm its order dismissing for lack of jurisdiction.

In June 1970, the Union sought to be certified by the N.L.R.B. as the collective bargaining agent for all the full- and part-time instructional staff at C. W. Post. Since the Board had only recently decided to assert jurisdiction over private non-profit colleges and universities, the Union's petition was the first in which the Board had to consider what constituted an appropriate bargaining unit for a professional instructional staff. One question that arose in this connection was the propriety of including in the same bargaining unit both full-time faculty members and part-time faculty members, who are known as "adjuncts." The Board concluded that both should be included in the same bargaining unit and directed that a representation election be held among the employees in this unit at C. W. Post. In its order, the Board stated that the bargaining unit included "all professional employees employed at the Employer's C. W. Post Center." In its accompanying Direction of Election, the Board stated:

Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date below (April 20, 1971), including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. (emphasis added)

In accordance with the Board's order, the Regional Director issued an official Notice of Election. The Notice described the voting unit as follows:

All professional employees employed at the Employers C. U. Post (sic) Center . . . including professors, associate professors, assistant professors, instructors, adjunct professors, adjunct associate professors, adjunct assistant professors . . ., who appear on the Employer\'s payroll as of March 31, 1971.

In addition, the Notice stated the following eligibility rules:

Employees eligible to vote are those described under VOTING UNIT in this Notice of Election, including employees who did not work during the designated payroll period because they were ill or on vacation, or temporarily laid off.

In the election, which was conducted May 10 and 11, 1971, 214 ballots were cast for the Union, 208 against the Union, 47 were challenged, and one was voided. Nineteen¹ of the challenged ballots were cast by adjunct faculty members who had taught in prior semesters but were not teaching during the semester in which the election was held. Because the number of disputed ballots was sufficient to determine the outcome of the election, hearings were held after the election to determine the eligibility of the challenged voters. For purposes of this appeal, the focus will be on the challenged ballots cast by adjunct faculty members not teaching during the semester in which the election was held. The Hearing Officer recommended that these challenges be sustained. On July 27, 1972, the Board rejected the Hearing Officer's recommendation and ordered the Regional Director to count these ballots. After unsuccessfully attempting to persuade the Board to reconsider its decision or, in the alternative, to order a new election, the Union brought this action in the district court.

The Union attempts to characterize the Board's decision holding the challenged voters eligible as a retroactive change in the eligibility rules after the election. The Union contends that, in so acting, the Board ignored its statutory responsibility under § 9(a), (b), and (c) of the N.L.R.A., 29 U.S.C.A. § 159(a)(b), and (c), to select an appropriate bargaining unit, direct an election in that unit, and determine that representatives are chosen by a majority of employees in that unit, thus giving rise to jurisdiction in the district court under the rule of Leedom v. Kyne, supra. In addition, the Union argues that the Board's action threatens to deprive the Union of its right to be designated as the exclusive bargaining agent for the professional employees at C. W. Post without due process of law, and will deny equal protection of law to those adjuncts who did not vote in reliance on the Board's stated eligibility rules, in violation of the fifth amendment, thus giving the district court jurisdiction of this action under the rule of Fay v. Douds, supra.² Since we cannot agree with the Union's characterization of the Board's action, we do not find the statutory and constitutional violations that the Union asserts.

The Union focuses on certain language used by the Board in its order fixing the appropriate bargaining unit and in its Direction of Election. First, the Union notes that the Board limited the bargaining unit to "all professional employees employed at the . . . C. W. Post Center." emphasis added In the Notice of Election subsequently issued by the Regional Director, this description of the voting unit was refined somewhat to include "all professional employees employed at the . . . C. W. Post Center . . . who appear on the Employer's payroll as of March 31, 1971." emphasis added From this language, the Union concludes that the Board's eligibility rule before the election was quite simple: only those who were currently employed as members of the instructional staff at C. W. Post and were on the payroll as of March 31, 1971 could vote. Since the adjuncts who cast the disputed ballots did not fit within this category, the Union concludes that the Board's later decision permitting these votes to be counted constituted a retroactive change in the eligibility requirements.

Insofar as the Union's conclusion is drawn from its analysis of the Board's pronouncements before the election, it is accurate only as far as it goes. In its Direction of Election, the Board specified that eligible voters were those in the bargaining unit who were employed during the payroll period immediately preceding April 20, 1971 (apparently corresponding to March 31, 1971), "including employees who did not work during that period because they were ill, on vacation, or temporarily laid off." In the Notice of Election, which described the voting unit in terms of those employed and on the payroll as of March 31, 1971, the eligibility rules stated that "employees eligible to vote are those described under VOTING UNIT in this Notice of Election, including employees who did not work during the designated payroll period because they were ill or on vacation or temporarily laid off." Thus, it appears that the eligibility rules established by the Board before the election were not so simple as the Union contends. Indeed, when the pre-election pronouncements of the Board with regard to the appropriate bargaining unit and the eligibility requirements for the election are read together, as one would expect a prospective voter to do, they would appear to bring within the class of eligible voters in the bargaining unit some individuals who were not actually working at C. W. Post on March 31, 1971 if they fit within certain established categories.

It is evident from a reading of the Board's decision that, in considering the challenges at issue, the Board was concerned with whether "the...