Lawrence Typographical Union v. McCulloch

WRIGHT, Circuit Judge

(concurring):

I agree with the court that this case does not involve such a clear statutory violation as to come within the limited exception to the general rule of non-reviewability of representation proceedings. See Leedom v. Kyne, 358 U.S. 184 , 79 S. Ct. 180 (1958); Boire v. Greyhound Corp., 376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964); Local 130, International Union of Electrical, Radio & Machine Workers v. McCulloch, 120 U.S. App.D.C.-, 345 F.2d 90 (1965); Boire v. Miami Herald Publishing Co., 5 Cir., 343 F.2d 17 (1965).

Neither has any violation of constitutional rights been shown. 1 The union contends that the Board violated the Due Process Clause by refusing to permit the union to show, during a hearing to determine whether a representation election should be held, that the employee petitions for decertification were instigated by the employer. It is true that employer instigation is relevant to whether a question of representation exists and, hence, under 61 Stat. 144 , 29 U.S.C. § 159 (c) (1), to whether an election should be held. Sperry Gyroscope Co., Div. of Sperry Rand Corp., 136 NLRB 294 (1962). 2 But due process does not require that, before an election can be called to test the support a collective bargaining agent has among the members of the bargaining unit, the bargaining agent must have the opportunity to be heard on every issue relevant to whether a question of representation exists.

Although no case so holding has been found, 3 it may be assumed for the present discussion that' the union’s interest in remaining the collective bargaining agent of a bargaining unit in which it has majority support is an interest within the protection of the. Due Process Clause. On this assumption, obviously, the procedures employed by the Board in depriving the union of its status must accord with due process. It is implicit in the concept of due process that where government action, which directly affects protected private interests, depends on findings of fact, the person whose interests are affected must be given an opportunity to disprove the evidence relied on by the government. 4 Thus, if the hearing would result in the Board’s directly depriving the union of its bargaining status, I would think that prohibiting the union to argue an admittedly relevant issue would violate due process. 5

But the Board’s action following the hearing in this case did not directly result in depriving the union of its status (nor could it under the statute), but *710 ■only in submitting that status to a vote of the employees in the bargaining unit. Thus, the finding that a question of representation existed was only a preliminary finding 6 and was not of decisional significance to the primary issue — whether the union was in fact supported by a majority of the bargaining unit. This issue was left to be determined by a vote ■of the employees.

Constitutional limitations might prevent the Board from ordering an election arbitrarily, 7 but the refusal to hear the evidence proffered by the union in the circumstances of this case hardly .amounts to arbitrary action.

. The Fifth Circuit has recently expressed doubt as to whether a constitutional violation should be a separate ground for jurisdiction. Boire v. Miami Herald Publishing Co., supra, 343 F.2d p. 21, n. 7.

. In refusing to admit the evidence, the Board relied on its practice of refusing in representation proceedings to evaluate allegations of conduct constituting an unfair labor practice. See Union Manufacturing Company, 123 NLRB 1633 (1959). In this case the union’s unfair labor practice charge, based on the alleged conduct of the employer, was dismissed by the Board’s General Counsel.

. But see Inland Empire Dist. Council Lumber and Sawmill Workers Union, Lewiston, Idaho v. Millis, 325 U.S. 697 , 65 S.Ct. 1316 (1945); Fay v. Douds, 2 Cir., 172 F.2d 720, 723 (1949).

. Greene v. McElroy, 360 U.S. 474, 496 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 (1959).

. If this were the case, the Board’s de-certification order would effectively determine the union’s status. Therefore, the doctrine of Inland Empire Dist. Council Lumber and Sawmill Workers Union, Lewiston, Idaho v. Millis, supra Note 3, to the effect that a hearing at any time prior to final agency action is sufficient to satisfy due process, would not, in my opinion, remedy the procedural error.

. The decision of the Board to hold an election might be analogized to an administrative decision to commence proceedings. The preliminary decision is not the one by which a person is “deprived of life, liberty, or property” within the meaning of the Fifth Amendment Due Process Clause, and, therefore, the Due Process Clause does not require a hearing prior to the preliminary decisions. Ewing v. Mytinger & Casselberry, 339 U.S. 594 , 70 S.Ct. 870 , 94 L.Ed. 1088 (1950).

. See Ewing v. Mytinger & Casselberry, supra, Note 6, 339 U.S. at 604-605 , 70 S.Ct. 870 (dissenting opinion of Mr. Justice Jackson); Leedom v. International Brotherhood of Electrical Workers, 107 U.S.App.D.C. 357, 363 , 278 F.2d 237 , 243 (1960).