Algie v. Surratt v. National Labor Relations Board

INGRAHAM, Circuit Judge

(specially concurring):

The Board phrases the issue on appeal as “whether the district court had subject matter jurisdiction to review the *382 Board's dismissal of plaintiffs-appellees’ petition for decertification election and whether, in any event, the Board properly granted injunctive relief setting aside the Board’s dismissal of the petition.” In terms of subject matter jurisdiction the district court properly took submission of plaintiffs-appellees’ complaint. The plaintiffs allege that the NLRB had mechanistically applied its blocking charge principle to deny ten named plaintiffs an application for a decertification election pursuant to § 9(c) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The plaintiffs allege the Board’s action was arbitrary, capricious and mechanistic so as to deny them due process of law and the free exercise of their rights under the Act.

In the face of plaintiffs-appellees’ allegations of improper Board conduct and refusal to investigate their 9(c) allegations, the district court properly denied the Board’s F.R.C.P. Rule 12(b) 6 motion to dismiss for lack of subject matter jurisdiction. Leedom v. Kyne, 358 U.S. 184, 190 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958); Boire v. Greyhound Corp., 376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 16-17 , 83 S.Ct. 671 , 9 L.Ed.2d 547 (1963); Templeton v. Dixie Color Printing Co., 444 F.2d 1064, 1069 (5th Cir., 1971).

This does not suggest that the district court supplant the Board’s exercise of discretion, only that the Board exercise it. The Board’s dogmatic reliance on the blocking charge principle cannot escape judicial scrutiny invoked under 28 U.S.C. § 1337 and 5 U.S.C. §§ 704 and 706(1).

The vice in the Board’s processes in the instant case is in its reliance on the issuance by the regional director of an unfair labor practice charge. NLRB Field Manual j[11730. But as the district court noted, the Board’s application of the doctrine in the Manual does not squarely comport to its announcements in United States Coal and Coke Co., 3 NLRB 398 (1937); Mar-Jac Poultry Co., 136 NLRB 785 (1962); In re Terminals, Inc., 161 NLRB 1215 (1966). The court below, relying on the Board’s Terminal case, observed:

“The defendant Board argues that it has dismissed plaintiffs’ decertification petition in the face of a prima facie meritorious unfair labor practice charge, which if true would preclude presentation of a question of representation. It is a prima facie meritorious charge, says the Board, because it alleged an unlawful refusal to bargain on the part of the employer on and after June 22, 1970, well within a year of the Union’s decertification in October of 1969, and if it is true, the decertification year must be extended and the employer required to continue bargaining with the Union regardless of the Union’s majority status. This contention may have been implicitly rejected by the Templeton holding, since in that case the Board had argued that the certification year should be automatically extended, and it was so extended, from the time the unfair labor practice should be remedied, and since the Court there ordered the Board to investigate the decertification petition in spite of the fact that there were pending contempt proceedings instituted by the Board against the company for failure to obey its order and the order of the Court of Appeals for the District of Columbia to remedy its unfair labor practices. But even if the fact situation in the instant action can be distinguished from that in the Templeton case, the Court finds that the underlying principles of the Templeton holding apply with equal force to the questions presented here. The Board’s own explanation of the blocking charge practice is that it provides a ‘logical and effective means of reconciling the statutory policies requiring the employer to afford the employees’ chosen representative a minimum opportunity at effective collective bargaining, and the right of employees to a reasonable opportunity to challenge *383 the representative status of an incumbent union.’ The latter consideration is embodied in Section 7 of the Act, which explicitly gives employees the right to ‘bargain collectively through representatives of their own choosing, and ... to refrain from any or all of such activities.’ 29 U.S.C. § 157 . The Templeton Court found that protection of this statutory right of employees was the main consideration of the Congress when it drafted its directions to the Board for handling decertification petitions in mandatory language. The aforementioned statutory policies cannot possibly be reconciled if the Board utilizes its blocking charge practice to deny an election solely because of pending unfair labor practice proceedings with no investigation of the surrounding circumstances and no consideration of to what extent the alleged loss of a Union majority has been affected by the alleged unfair labor practices. The Board itself has often made this point:

While the Board does not normally conduct representation elections in the fact of unresolved (8) (a) (2) or (5) charges, it is discretionary with the Board to determine, on the facts in each case, whether an election at a given time and under prevailing circumstances will effectuate the policies of the Act. The Board has departed from its general practice and directed elections in the face of such unresolved 8(a) charges where the alleged unfair labor practice conduct is related, at least in part, to the unresolved question of representation.

In re Terminals, Inc., 161 NLRB 1215 , 1223-1224 (1966) (footnotes omitted).

Thus, in granting relief here, the Court is not encroaching upon the discretionary power of the Board, but merely directing it to exercise its discretion as the law explicitly requires it to. There obviously can be expected considerable overlap between the scope of the investigation and subsequent hearing under the decertification petition and the scope of the investigation and hearing on the unfair labor practice charges. Such an overlap is inevitable whenever interacting statutory policies must be reconciled. With affairs in their present posture, that is, with the Board acting only on the unfair labor practice charges while plaintiffs’ decertification petition has been dismissed, the Board does not have before it the allegations and facts needed for such a reconciliation.”

The Board, plaintiffs argue, is guilty of having one law for Athens and another for Rome. Citing Kroger Co., 173 NLRB 60 (1968), Plaintiffs suggest that the Board does not hesitate to exercise its discretion in 9(c) cases where such action, even in the face of a “blocking charge”, favors the unions.

Neither Templeton nor our decision in this case requires that the United States District Courts exercise or supplant the Board’s discretion. The Board alone is the administrative agency vested by the National Labor Relations Act. The court’s function in the Templeton case is merely to require the Board to exercise that discretion by looking to the circumstances of the case itself before refusing to override the blocking charge principle. The difference is one of kind — between a mechanistic rejection of a petition for decertification election, and the exercise of the Board’s considered discretion in rejection of the same petition.