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: United States Court of Appeals, Fourth Circuit
2d 1079
105 L.R.R.M. (BNA) 2738, 89 Lab.Cas. P 12,312
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
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).
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:
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
18
19
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