United Food and Commercial Workers, Local 400, AFL-CIO v. N.L.R.B.
| Decision Date | 30 November 1982 |
| Docket Number | AFL-CI,A,No. 82-1147,82-1147 |
| Citation | 694 F.2d 276 |
| Parties | 111 L.R.R.M. (BNA) 3012, 224 U.S.App.D.C. 156, 95 Lab.Cas. P 13,874 UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 400, Affiliated with United Food and Commercial Workers,ppellant v. NATIONAL LABOR RELATIONS BOARD, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William W. Thompson, II, Washington, D.C., with whom Robert E. Paul, Arlington, Va., was on brief, for appellant.
James Y. Callear, Atty. N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, Margery E. Lieber, Deputy Asst. Gen. Counsel, and Lawrence J. Song, Atty., N.L.R.B., Washington, D.C., were on brief, for appellees.
Before WRIGHT, WILKEY and WALD, Circuit Judges.
Opinion PER CURIAM.
Appellant union, United Food and Commercial Workers, Local 400, AFL-CIO, seeks relief from an order of the district court dismissing a complaint against the National Labor Relations Board and Regional Director Louis J. D'Amico for lack of subject matter jurisdiction. The union sought to challenge a Board ruling in which it refused to set aside a representation election on the ground that a Board agent had violated the rule it announced in Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966), which requires that employers submit lists of employees eligible to vote in forthcoming union representation elections to the Board for use by unions prior to election proceedings. 1 The Board's decisions regarding representation are not, however, reviewable under the National Labor Relations Act except in very limited situations. Because the facts of this case do not bring it within one of these recognized exceptions, we affirm the decision of the district court.
On February 27, 1981, the union filed a petition with the National Labor Relations Board seeking certification as the collective bargaining representative of a unit of employees of Murry's Steaks, Inc., a Delaware corporation (the company). The Board's Regional Director directed that an election be held on May 8, 1981. The company submitted a list of the employees eligible to vote in the forthcoming election to the Board. The Board forwarded this list to the union on April 14, 1981. The company later discovered that one employee had been left off the list and sent that name to the Board on April 15. The Regional Office, however, "neglected" to forward that name to the union.
Because the union thought this last employee was ineligible to vote, it did not seek to contact him or to persuade him to vote for the union in the upcoming election. The union learned of the employee's eligibility just prior to the election on May 8.
The election was held as scheduled. There were eighteen votes for and eighteen votes against the union, with one vote--the "neglected" employee's--uncounted because of a union challenge. On May 13 the union withdrew its challenge without waiving any of its rights. On May 15, however, the union filed objections to the election because of the omission of the name from the Excelsior list. On July 2 the Regional Director ordered that the vote be counted. The union then requested that the Board review the Director's decision; the request was denied on August 17. The vote was counted and resulted in a 19-18 loss for the union.
On September 25 the union filed suit in district court seeking an order that the election be set aside and a new election directed. On January 20, 1982, the court dismissed the union's complaint for lack of subject matter jurisdiction. This appeal followed.
As a rule, Board representation proceedings are nonadversarial actions and do not result in the issuance of judicially reviewable final orders. American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 409, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). In general, therefore, the federal district courts are without jurisdiction to review Board rulings in this class of proceedings. See Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-897, 11 L.Ed.2d 849 (1964). Such rulings are reviewable in the courts of appeals if and when they form the basis of a subsequent unfair labor practice charge. Id. at 477, 84 S.Ct. at 896. The only recognized exceptions to this rule are those rare instances in which (1) the Board has contravened a clear and specific statutory mandate, Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); (2) the Board has deprived a party of its constitutional rights, 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); or (3) the Board has interfered with the government's conduct of foreign relations, McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963).
The union attempts to bring its present grievance within the first two exceptions to the nonreviewability rule. It contends that the Board's failure to live up to its own Excelsior doctrine constitutes the "clear statutory violation" contemplated by Leedom v. Kyne and that the Board's arbitrary and capricious violation of its own rules and the biased review of the Regional Director's decision not to set aside the election were "strong and clear" denials of the union's constitutional right to due process.
The union attempts to combine the Excelsior rule with sections 1 and 7 of the Act 2 to demonstrate a clear violation of a statutory scheme. The courts have required, however, that the Board must have disregarded a specific and unambiguous statutory directive before its actions will fall within the Leedom v. Kyne exception. See Boire v. Greyhound Corp., 376 U.S. at 480-81, 84 S.Ct. at 898-99; McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d at 917.
The union has failed to demonstrate any such statutory violation here. The Excelsior equirement does not specifically appear in the National Labor Relations Act. The rule was announced by the Board nearly two decades after enactment of the Act. Essential a tool as the rule may be to fair elections, it cannot reasonably be viewed as a statutory mandate violated by the Board's actions in this case. See Physicians National House Staff Association v. Fanning, 642 F.2d 492 (D.C.Cir.1980) (en banc), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981).
In addition, the union contends that the actions of the Regional Director and the Board in failing to send to it a complete list of eligible employees or subsequently to set aside the election violated its constitutional rights. We cannot agree. The courts have also construed this exception to the general rule of nonreviewability of representation proceedings very narrowly, requiring a "strong and clear" showing that the Board has acted in a manner infringing on the union's constitutional rights. McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d at 917.
The union's allegation that the...
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