633 F.2d 1079 105 L.R.R.M. (BNA) 2738, 89 Lab - Cas. P 12,312: United States Court of Appeals, Fourth Circuit

633 F.
2d 1079
105 L.R.R.M. (BNA) 2738, 89 Lab.Cas. P 12,312
NEWPORT NEWS SHIPBUILDING AND DRY DOCK

COMPANY, Appellee,
and
The Designers Committee to Decertify, Appellee,
v.
NATIONAL LABOR RELATIONS BOARD; John H.
Fanning; Howard
Jenkins, Jr.; John A. Penello; John C. Truesdale, in their
capacity as members of the National Labor Relations Board;
William C. Humphrey, as Regional Director, Region 5,
National Labor Relations Board, Appellants,
and
United Steelworkers of America, AFL-CIO, Intervening
Defendant.
NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COMPANY, Appellee,
and
The Designers Committee to Decertify, Appellee,
v.
The NATIONAL LABOR RELATIONS BOARD; John H.
Fanning; Howard
Jenkins, Jr.; John A. Penello; John C. Truesdale, in their
capacity as members of the National Labor Relations Board,
and William C. Humphrey as Regional Director, Region 5,
National Labor Relations Board, Defendants,
and
United Steelworkers of America, AFL-CIO, Appellants.
Nos. 80-1342, 80-1347.
United States Court of Appeals,

Fourth Circuit.
Argued Aug. 12, 1980.

Decided Oct. 9, 1980.
Peter Winkler, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen.

Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen,
Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen.
Counsel, Aileen A. Armstrong, Asst. Gen. Counsel, Washington, D. C.,
for Special Litigation on brief), for appellants.
Richard J. Brean, Pittsburgh, Pa. (Carl B. Frankel, Pittsburgh, Pa., C. T.
Neale, III, Hudgins & Neale, Newport News, Va., Bredhoff, Gottesman,
Cohen & Weinberg, Washington, D. C., Bernard Kleiman, Chicago, Ill.,
on brief), for United Steelworkers of America, AFL-CIO-CLC.
Andrew M. Kramer, Washington, D. C. (Seyfarth, Shaw, Fairweather &
Geraldson, Washington, D. C., on brief), for appellees.
Before FIELD, Senior Circuit Judge, and HALL and SPROUSE, Circuit
Judges.
SPROUSE, Circuit Judge:
The National Labor Relations Board (Board), and the United Steelworkers of
America (Union), appeal the district court's summary judgment in favor of
appellees Newport News Shipbuilding and Dry Dock Company (Company) and
The Designers Committee to Decertify (Committee). The court ordered the
Board to reinstate and further investigate the Committee's decertification
petition. Since we conclude that the district court lacked subject matter
jurisdiction, the district court's judgment is reversed.
The Union was certified in 1977 to represent a large number of the Company's
employees, including those in the design unit. The action below involved only
the employees in that unit. The Committee, representing the designers, had filed
three separate petitions asking that the Union be decertified as bargaining
representative for their unit. All three petitions were dismissed by the Regional
Director, but it is only the third petition that is the subject of this appeal. The
Regional Director dismissed it on November 7, 1979, indicating that bargaining
had commenced on September 10 and 11, 1979, and that although progress had
been made, the parties had not had reasonable time to engage in collective
bargaining. The Board affirmed the petition's dismissal. The Company applied
to the district court for an order compelling the Board to reinstate the petition
and to conduct an investigation to determine if there were sufficient grounds for

a representation hearing. The district court granted the requested relief by
summary judgment.
3
Although the Union was certified in May, 1977, the parties have yet to agree on
a representation contract. In 1977, the Union filed an unfair labor practice
charge alleging unlawful bargaining tactics by the Company. After the normal
course of litigation and appeal, the Board found a Company violation and its
order was enforced by this court. Newport News Shipbuilding and Dry Dock
Co. v. NLRB, 602 F.2d 73 (4th Cir. 1979).
The parties continued to bargain during the litigation, holding forty-two

bargaining sessions ending in July, 1978. After this court's enforcement order,
there were seven additional bargaining sessions, beginning on September 10,
1979. The crux of the Company's contentions is that the Board did not
investigate the forty-two pre-enforcement order bargaining sessions in
determining whether the parties had a reasonable time in which to bargain. The
Company also argues that the Board's investigation of the third petition did not
consider the section 7 majority rights of the design unit employees and that the
Board was required to conduct a hearing.
Section 9(c)(1) of the National Labor Relations Act states:
6Whenever a petition shall have been filed ...

7....
8 Board shall investigate such petition and if it has reasonable cause to believe that
the
a question of representation affecting commerce exists shall provide for an
appropriate hearing upon due notice.
9
29 U.S.C. 159(c)(1). The general rule, of course, is that courts do not directly
review Board representation proceedings. AFL v. NLRB, 308 U.S. 401, 60
S.Ct. 300, 84 L.Ed. 347 (1940). Section 9(c) hearings and investigations are
particularly within the Board's discretion; the nature and scope of those
proceedings were intentionally not specified in the Act but were to be
developed in light of the Board's experience and expertise. See, e. g., Lawrence
Typographical Union v. McCulloch, 349 F.2d 704 (D.C.Cir.1965) (section 9(c)
(1) hearing); Schimmel v. Sperry, 48 Lab.Cas. P 18,494 (W.D.Mo.1963)
(section 9(c)(1) investigation); Marcie v. Madden, 37 Lab.Cas. P 65,557
(N.D.Ill.1959) (investigation). As has been said by the D.C. Circuit:
10representation hearings could be reviewed in the District Court to determine

If
whether they were "appropriate," most representation proceedings could be
reviewed. This would violate the express intention of Congress to restrict review so
as to prevent dilatory tactics and delay in certification.
11
Lawrence, supra, at 707.
12
The Supreme Court, in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d
210 (1958), indicated there are few exceptions to the initial exclusiveness of the
Board's determination in representation proceedings. Kyne involved an
arbitrary action by the Board in certifying professional and nonprofessional
employees as one bargaining unit without an election among the professional
employees. The Supreme Court, although permitting judicial review of Board
proceedings in that case, severely limited the application of its holding. The
party claiming jurisdiction must show that there has been "an order of the
Board made in excess of its delegated powers and contrary to a specific
prohibition in the Act." Id. at 188, 79 S.Ct. at 184. Kyne is to be narrowly
construed and should not be used to review alleged Board errors of fact. Boire
v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964).
Jurisdiction is appropriate only when there is a "strong and clear"
demonstration that a "clear, specific and mandatory provision of the Act" has
been violated. 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).
13
The appellees contend that the Board's actions in this case are arbitrary and
reviewable under the Kyne exception. They cite Templeton v. Dixie Color
Printing Co., 444 F.2d 1064 (5th Cir. 1971), and Surratt v. NLRB, 463 F.2d
378, 381 n. 1 (5th Cir. 1972), to support their position. Templeton and Surratt
both involved the automatic dismissal of decertification petitions because the
union had filed "blocking charges."1 In Surratt the charges were found to be
without merit, while in Templeton the charges had been pending for almost
four years at the time the decertification petition was dismissed by the Regional
Director. The Fifth Circuit Court characterized the petition dismissals and
refusal to review in those cases as arbitrary. It held that the effect of the Board's
actions frustrated the purposes of the Act and was counter to the congressional
mandate that the Board conduct an investigation upon the filing of a
decertification petition. In Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974),
however, the Fifth Circuit considered a similar case and pointed out the narrow
confines of its Templeton and Surratt decisions. It noted those cases "had
carved out a precarious exception to the general rule of review," and both had
carefully and explicitly restricted the holdings to their peculiar facts. Id. at
1031.
14
The appellees contend that the limited scope of the NLRB investigation in the
instant case brings it within the "precarious exception" to the general rule
declining judicial intervention in representation proceedings. The district court,
in issuing the order, said:
15 hold that the conduct of the Regional Director and the Board simply did not
We
constitute a meaningful investigation as mandated by 9(c) of the Act and,
therefore, that the Board arbitrarily failed to exercise its statutory responsibility.
16
The trial court supported its finding primarily on the Board's failure to analyze
the forty-two pre-enforcement order bargaining sessions. The Regional
Director's November 7, 1979, letter dismissing the petition, however, indicates
he had conducted an investigation. He had explored the two prior
decertification petitions, the earlier proceedings before the Board and in the
courts, and recent progress in negotiations between the parties. The appellees
and the district court, in attacking the scope of the investigation, implicitly
admit its existence. The Regional Director apparently decided that this court's
1979 decision enforcing the Board's earlier order placed the bargaining sessions
under a new light. He consequently decided to consider the time and progress of
the 1979 bargaining sessions but not to consider the sessions occurring prior to
the enforcement order.
17
We do not judge the accuracy of the Board's selective investigative technique.

It has the authority to determine the scope of an investigation necessary to act
on a decertification petition. If the NLRB completely abrogates its
responsibility, as in Kyne, Surratt, and Templeton, we will compel it to act.
Neither the district court nor this court, however, has the subject matter
jurisdiction to quantitatively gauge the Board's representation investigation.
18
Similarly, the guidance furnished by section 9(c)(1) prohibits us from ordering

the Board to conduct a hearing in this case. A hearing must be provided only
after the Board has reasonable cause to believe that a question of representation
exists. Since the Board has met its statutory obligation by conducting an
investigation, a judicial body cannot interfere with its evaluation of the
investigation short of the Board's arbitrary action. The decision to dismiss the
petition was based on the factors listed in its letter of November 7, 1979. The
decision, whether right or wrong, was not arbitrary.
19
The appellees argue, finally, that dismissal of the Committee's third
decertification petition violates the employees' section 7 statutory right to freely

choose their own bargaining representatives. By refusing to allow a
decertification election, it is alleged, the Board will "force an unwanted action
on an unwilling majority." The section 7 rights granted by Congress are
certainly vital. It is, however, a specific congressional mandate which the
Board is required to observe in conducting a 9(c)(1) representation
investigation and hearing. To hold otherwise would be to require judicial
oversight of every certification and decertification petition alleging majority
status. The Act's general goals of free choice and majority rule do not contain a
grant of federal jurisdiction; nor does the arguable contravention of those goals
permit jurisdiction under Kyne. See Physicians National House Staff
Association v. Murphy, 443 F.Supp. 806, 810 (D.D.C.1978), aff'd, --- F.2d ---(D.C.Cir.1980).
20
As we indicated in our post-argument order the district court did not have
subject matter jurisdiction to define the required scope of the Board's
investigation nor to require the Committee's petition to be reinstated.
Accordingly, the case is remanded to the district court with directions to
dismiss.
21
REVERSED AND REMANDED.
A "blocking charge" is the filing of an unfair labor practice charge by a Union

while a decertification petition is pending. The bona fide filing of an unfair
labor practice charge normally is the basis for dismissal of a decertification
petition pending the resolution of the unfair labor practice charge

633 F.2d 1079 105 L.R.R.M. (BNA) 2738, 89 Lab - Cas. P 12,312: United States Court of Appeals, Fourth Circuit

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633 F.2d 1079 105 L.R.R.M. (BNA) 2738, 89 Lab - Cas. P 12,312: United States Court of Appeals, Fourth Circuit

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633 F.

NEWPORT NEWS SHIPBUILDING AND DRY DOCK

United States Court of Appeals,

Argued Aug. 12, 1980.

Peter Winkler, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen.

and to conduct an investigation to determine if there were sufficient grounds for

The parties continued to bargain during the litigation, holding forty-two

Section 9(c)(1) of the National Labor Relations Act states:

6Whenever a petition shall have been filed ...

10representation hearings could be reviewed in the District Court to determine

Lawrence, supra, at 707.

We do not judge the accuracy of the Board's selective investigative technique.

Similarly, the guidance furnished by section 9(c)(1) prohibits us from ordering

The appellees argue, finally, that dismissal of the Committee's third

decertification petition violates the employees' section 7 statutory right to freely

REVERSED AND REMANDED.

A "blocking charge" is the filing of an unfair labor practice charge by a Union

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