United States v. Feaster

• Decision Date: 10 June 1969
• Docket Number: No. 26019.,26019.
• Citation: 410 F.2d 1354
• Parties: UNITED STATES of America and Warren S. Lane, as Mediator, National Mediation Board, Appellants, v. Houston H. FEASTER, individually and as Director, Alabama State Docks Department, and the State of Alabama, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 1354 (1969)

UNITED STATES of America and Warren S. Lane, as Mediator, National Mediation Board, Appellants, v. Houston H. FEASTER, individually and as Director, Alabama State Docks Department, and the State of Alabama, Appellees.

No. 26019.

United States Court of Appeals Fifth Circuit.

May 5, 1969.

Rehearing Denied June 10, 1969.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Vernol R. Jansen, U. S. Atty., Mobile, Ala., John C. Eldridge, Stephen R. Felson, Attys., Dept. of Justice, Washington, D. C., for appellants.

MacDonald Gallion, Atty. Gen., of Alabama, Montgomery, Ala., Willis C. Darby, Jr., Mobile, Ala., for appellees.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District Judge.

GOLDBERG, Circuit Judge:

We seek once again to resolve a ten year old controversy thrice here.¹ The controversy on the merits is whether the National Mediation Board has the statutory authority to resolve a representation dispute among certain employees of the Alabama State Docks Department at Mobile, Alabama. There is, however, a preliminary issue which we find to be dispositive of this appeal; whether the district court had jurisdiction to enjoin the National Mediation Board from holding an election to resolve this representation dispute. We hold that the district court was without jurisdiction to enter the injunction and we reverse.

I.

In July, 1959, the International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers filed an application with the National Mediation Board for an investigation of a representation dispute concerning certain Alabama State Docks Department employees.² The Docks Department, an agency of the State of Alabama,³ owns and operates port facilities at Mobile. Included in this operation are general cargo piers, warehouses, a grain elevator, a cold storage plant, a plant for the storage and loading of edible fats and oils, a special unloading facility for bulk ores, and a terminal railroad. The prospective constituents of the petitioning Brotherhood are all of the employees of the Docks Department except those working for the terminal railroad, which employees are already represented by unions certified under the Railway Labor Act, and the office and clerical workers.

As a jurisdictional prerequisite to its assumption of jurisdiction of this representation dispute, the National Mediation Board determined that the entire Docks Department was a "carrier" within the scope of 45 U.S.C.A. § 151, First (1954). That section provides as follows:

"First. The term `carrier\' includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, and any company, which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad, and any receiver, trustee, or other individual or body, judicial or otherwise, when in the possession of the business of any such `carrier\': Provided, however, That the term `carrier\' shall not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any part of the general steam-railroad system of transportation now or hereafter operated by any other motive power. The Interstate Commerce Commission is authorized and directed upon request of the Mediation Board or upon complaint of any party interested to determine after hearing whether any line operated by electric power falls within the terms of this proviso. The term `carrier\' shall not include any company by reason of its being engaged in the mining of coal, the supplying of coal to a carrier where delivery is not beyond the mine tipple, and the operation of equipment or facilities therefor, or in any of such activities." Emphasis added.

In making this determination, the Mediation Board noted that the terminal railroad was concededly a "carrier" and that both the terminal railroad and the public maritime facilities were subunits of the Docks Department. Since 45 U.S. C.A. § 151, First, by its terms covers companies "under common control with any carrier by railroad," the Board concluded that the Docks Department was a "carrier" under the Act.

The Docks Department has from the beginning of this epic controversy contended that the Mediation Board erred in finding that it had jurisdiction because the Department was a "carrier." When the Board first requested the Department's books and records in order to determine which employees were eligible to vote for union representation, the Department refused the request on the ground that the Board was acting without statutory authority. After considerable skirmishing in the district court and two appeals to this court, we held that the Board had made a sufficient showing that the Department was a "carrier" to warrant an order giving the Board access to the records.⁴ United States v. Feaster, 5 Cir. 1967, 376 F.2d 147, cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265.

After finally obtaining the books and records, the Board determined which employees should participate in the representation election and scheduled the election for March 8, 1968. The state and its Dock Department officials declined to post notices of the election and secured from the court below an injunction prohibiting the holding of the election on the ground that the Docks Department was not subject to the Railway Labor Act.⁵ Thus, after a decade

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we find the statutory command to attain a prompt and orderly settlement of labor disputes⁶ made a mockery in cynical disregard of the Supreme Court's hopeful but here frustrated words that there is "to be no dragging out of the controversy into other tribunals of law." Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 305, 64 S.Ct. 95, 99, 88 L.Ed. 61, 66. As we are witness these days to much vocalizing for participatory democracy, we can feel nothing but dismay at the length of the enforced employee-union disengagement here.

II.

The National Mediation Board argues that the court below did not have jurisdiction over this controversy and that we should reverse the judgment. The Mediation Board's argument has a dual predicate: (1) that proceedings of the National Mediation Board conducted pursuant to 45 U.S.C.A. § 152, Ninth, are never subject to judicial review; and (2) assuming that this controversy may be subject to judicial review, it is not ripe for review at this time because the administrative process has not culminated in a final order.

III.

In arguing that the representation proceedings at bar are not reviewable, the Mediation Board relies heavily on Switchmen's Union of North America v. N.L. R.B., 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. In Switchmen's Union the Supreme Court was asked to resolve a jurisdictional dispute between two unions seeking to represent certain railroad yardmen. The Court, however, refused to reach the merits of the case, holding that the matter was unreviewable. The Court explained its decision as follows:

"We do not reach the merits of the controversy. For we are of the opinion that the District Court did not have the power to review the action of the National Mediation Board in issuing the certificate.

"Sec. 24(8) of the Judicial Code, 28 U.S.C. § 41(8), 28 U.S.C.A. § 41(8) 8 FCA title 28, § 41(8), gives the federal district courts `original jurisdiction' of all `suits and proceedings arising under any law regulating commerce.' We may assume that if any judicial review of the certificate of the Board could be had, the District Court would have jurisdiction by reason of that provision of the Judicial Code. cases cited But we do not think that that broad grant of general jurisdiction may be invoked in face of the special circumstances which obtain here.

"If 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. That was the purport of the decisions of this Court in Texas & N. O. R. Co. v. Brotherhood of Ry. & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034, and Virginian Ry. Co. v. System Federation, R.E.D., 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. In those cases it was apparent that but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the Railway Labor Act. The result would have been that the `right' of collective bargaining was unsupported by any legal sanction. That would have robbed the Act of its vitality and thwarted its purpose. Such considerations are not applicable here. The Act in § 2, Fourth writes into law the `right' of the `majority of any craft or class of employees' to `determine who shall be the representative of the craft or class for the purposes of this Act.' That `right' is protected by § 2, Ninth which gives the Mediation Board the power to resolve controversies concerning it and as an incident thereto to determine what is the appropriate craft or class in which the election should be held. cases cited A review by the federal district courts of the Board's determination is not necessary to preserve or protect that `right.' Congress for reasons of its own decided upon the method for the protection of the `right' which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. * * *

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"Generalizations as to when judicial review of administrative action may or may...