# Graybar Electric Co. v. Automotive, Petroleum & Allied Industries Employees Union > Supreme Court of Missouri · February 13, 1956 · 365 Mo. 753 URL: https://www.frixlaw.com/law-library/cases/9863156 ## Case - **Full name:** Graybar Electric Company, Inc., Appellant, v. Automotive, Petroleum & Allied Industries Employees Union, Local 618, Et Al., Respondents - **Court:** Supreme Court of Missouri - **Decided:** February 13, 1956 - **Citations:** 365 Mo. 753; 287 S.W.2d 794; 37 L.R.R.M. (BNA) 2556; 1956 Mo. LEXIS 547 - **Precedential status:** Published - **Opinion:** Dissent by Eager - **Judges:** Leedy, Dalton, Westhues, Storckman, Eager, Hyde - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863156 ## Opinion text EAGER, J. (dissenting).- — The majority opinion holds, as is urged by defendants’ counsel, that the Labor Board accepted jurisdiction and adjudicated the charges of unfair labor practices on the merits, thus foreclosing all other proceedings. I cannot agree. The matter never reached the Labor Board, as I understand the applicable law. Prior to the amendment of the N.L.R.A. in 1947, the Labor Board was both prosecutor and judge. Because of many objections to that somewhat inconsistent combination of functions, the two were separated in the Act as amended (Title 29,' § 153, U.S.C.A.) ; the Board retained all judicial (or quasi-judicial) functions while the full and sole power of prosecution was given to the General Counsel. The latter is appointed by the President, with the consent of the-Senate, and his primary function is to investigate charges, and issue and prosecute complaints “before the Board”; he also has incidental supervisory powers over certain other attorneys, not including legal assistants to board members or trial examiners. The Board has no jurisdiction to proceed in an unfair labor practice matter until the General Counsel issues a complaint. In issuing or refusing to issue complaints, the action of the General Counsel is final, as is conceded in the majority opinion. As the prosecutor under the act (or “of the Board,” if that term is preferred) he is an administrative officer. In Lincourt v. N.L.R.B. (C.A. 1), 170 F. 2d 306 , the court said: “The issuance of a complaint under § 10 of the Act is a matter of.administrative discretion. * * *” See also: General Drivers Local 886, AFL, v. N.L.R.B. (C.A. 10), 179 F. 2d 492 , Certaiiily he has been *772 so regarded; and his decisions are in no wise judicial determinations. It is also pertinent to note that in issuing or refusing to issue complaints, he acts wholly independently of the Board, and that neither the Board nor the courts can control, direct, or restrain his actions, by mandamus or otherwise. Hourihan v. N.L.R.B. (C.A.D.C.), 201 F. 2d 187 , certiorari denied, 345 U.S. 930 ; rehearing denied, 345 U.S. 961 , 346 U.S. 843 , 880, 917; there the court said, l.c. 188; “* * * The Board cannot issue, an order [805] until the General Counsel issues a complaint. ¡ A, court has no power to order the General Counsel to issue a complaint and no power to require the Board to issue an order in a matter which is not before the Board.’’. (Italics inserted.) The relationship between the General Counsel and the Board becomes more readily understandable when we compare it to that existing between a prosecuting attorney and the court of general jurisdiction in which he serves. When a set of facts is submitted to the prosecutor for possible prosecution and he talks to the witnesses, he may well decide that the evidence is, in his opinion, insufficient for prosecution or conviction. In such case, he merely declines to file an information or charge. However, a grand jury may still indict, or a succeeding prosecutor may still file a charge on the same facts. No one, it seems, would have the temerity to suggest that the act of the prosecutor, constituted an adjudication oí. acquittal. That case has never, reached the court; and it certainly makes no difference what reason the prosecutor has given, i.e.,. whether “insufficient evidence” or something else. And in such a situation the court certainly has no power or. jurisdiction to call in the proposed defendant and demand that he plead or stand trial. To my mind the situation in the. present ease is substantially-.the same. The regional, directors are, in effect, assistant prosecutors; the prosecutor (General Counsel) has notified all interested parties to consult them first, and if not satisfied, to “appeal” to him; this may be done very informally, indeed by letter. When the General Counsel acts, no findings whatever are given to the parties, — mo results of an investigation. Indeed, with the immense volume of such appeals, it would seem impossible that he, personally, should-even see all of-them. There is simply a notice and ruling that no complaint will be filed, with or without a stated reason. There has been no pretense of a hearing on notice. In my opinion there has been here a mere declination to file an unfair labor practice complaint, and nothing* has been adjudicated. The views expressed herein appear to be in complete harmony with the opinion in £he -recent case of N.L.R.B. v. Swift & Company (E.D. Mo.), 130 F. Supp. 214 , including that court’s interpretation of the Garner ease, discussed hereinafter. The -majority opinion here seems to concede-that if there had been no adjudication, the state court would have jurisdiction ,to proceed. The only suggestion in the-majority opipion which lends any color -to the supposed authority of the General *773 Counsel to adjudicate, is that § 153, supra, gives him authority “on behalf of the Board” to investigate charges, issue complaints and prosecute complaints. When -read in their full context, these words do not alter the nature or substance of the powers and functions given to the General Counsel. They seem to mean merely that he is the prosecutor of the Board; and they are apparently only incidental, perhaps traditional, in nature. The General Counsel cannot act for ■himself personally, nor for the government generally. These words merely point out the department or body to which he and his-functions are attached. His functions and duties are such that he is really an independent chief administrator of labor relations, rather than the attorney for the Board. In any event the authorities hold, beyond question, that he is wholly independent of the Board in performing the functions with which we are concerned here, and that he cannot be coerced in any way by the Board; also, that he is most certainly an administrative officer. Likewise, it might be said that any prosecuting attorney acts ‘ ‘ on behalf of the court, ’ ’ for oiir courts 'are the body of the government finally entrusted with the' enforcement of law; yet no one contends that a declination to act by a prosecuting attorney adjudicates a lack of guilt. Moreover, if the General Counsel is actually and inherently an agency of, or an inherent part of, the Board, it should be able to control his actions. In the respects concerned* here, at least, it most certainly can not. It is held, as indeed it must be, that the action taken here by the General Counsel is final. (Title 29, § 153 (d) U.S.C.A.; Hourihan [806] v. N.L.R.B., 201 F. 2d 187 ; Lincourt v. N.L.R.B., 170 F. 2d 306 .) It is not even suggested, by court or counsel, that plaintiff here did not invoke all the applicable provisions of the Act in the charges of unfair labor practices which' it filed with the Regional Director of the Labor Board. (Contra to the situation in Weber, 348 U.S. 468 ). Thus, oh the admitted facts and law, plaintiff has gone as far as it may possibly go under federal procedure without yet having obtained any adjudication - by a judicial (or even quasi-judicial) body. It seems unnecessary to discuss the situation in those cases where federal jurisdiction has been declined because of the insufficiency of the dollar volume of interstate commerce involved; the situation there may-be similar, but it is certainly distinguishable, for those declinations are made pursuant" to-regulations determined by the Board itself, not the General Counsel. However, the majority here seems to feel that; even there, state jurisdiction may be operative. Indeed, counsel presently representing these defendants are now in this court seeking to invoke State jurisdiction in just such a situation. (Gene Quinn, et al., Appellants, v. O. J. Buchanan, Respondent, No. 45,014, argued at this Session.) In neither the Garner case nor the Weber case did the court have the present situation before it for adjudication.' In the Garner cáse, *774 no application whatever had been made for relief under the federal Act, and the decision is predicated upon that fact. The court said: “Nor is there any suggestion * * that the federal Board would de.cline to exercise its powers once its jurisdiction was invoked.” And in that opinion the court consistently referred to action of the Board, as a “tribunal” for adjudication. (See N.L.R.B. v. Swift & Company, 130 F. Supp. 214 .) The present question could not have been directly decided there. In the "Weber case only a partial application for relief had been made under the Act, giving rise to the now renowned statement of Mr. Justice Frankfurter that: “If a ruling on (D) necessarily encompassed a ruling on the other subsections, we would have a different case. ’ ’ Here, full application, for relief was made, although plaintiff could not and did not even reach the Board, as indeed the employer did to a limited extent in the Weber case. The Weber case .seems to have proceeded on a theory of exhaustion of remedies; the federal remedies have been exhausted here. Also, in the Weber case the court held that if the labor board itself had held that there was no unfair labor practice (on the merits), the state court might have jurisdiction. We need not go that far here to sustain our jurisdiction. Both in the Weber case and in the subsequent case of Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 , Mr. Justice Frankfurter (and the court) seems to invite the presentation, of cases exploring the “penumbral area” which can only be made clear “by the course of litigation.” In so far as I can see, this case is, at the least, one for such an exploration. Certainly the Supreme Court of the United States has not adjudicated the present question. So far as concerns the reference to the so-called “protected area” in the Weber case, it may be said that it is at least doubtful if those statements were necessary to the decision there, or that they are applicable here. If such an “area” exists it would certainly exist as .a matter of substantive law, which any court must enforce, and thus would not be a mere matter of jurisdiction or procedure. If there is a .restriction of rights guaranteed by the federal statute, then the plain- ' tiff should be denied relief on the merits — not on the ground that the state court lacks jurisdiction. And if it be suggested that the General Counsel here may have ruled as a finality that the picketing here was within the “protected area,” (which, by his own words, he did not) ■ then we would be conceding to him legislative as well as judicial powers, when in fact he has neither; [807] for if he is permitted to write words into the act which are not there, he is legislating. ' The courts are expressly given a power of review over actions of the. Board. (Title 29, § 160 (f) U.S.C.A.). No right'of review is available here under the provisions of the Act, for the simple reason that plaintiff could never reach the Board with its charges. All power of review in this situation has been denied (Lincourt v. N.L.R.B. (C.A. 1), 170 F. 2d 306 ). The provisions of the Administrative *775 Procedure Act expressly except from judicial review those matters “committed to agency discretion.” (Title 5, .§ 1009, U.S.C.Á.) Indeed, no one in the present case even suggests that plaintiff might have procured any review of the action of the General Counsel, anywhere. In other words, there is here a final order of an administrative officer, directly affecting substantial property rights, with no right-of review whatever. If this is the meaning and intent of the appropriate part of the Act, I,' for one, have a serious doubt of its constitutionality as so construed, for it would certainly seem to impinge upon the Due Process clause of the Fifth Amendment. In N.L.R.B. v. Swift & Company (E.D. Mo.), 130 F. Supp. 214 , speaking on substantially identical facts, the court said, l.c. 219: “Therefore, in:the present ease the respondent Swift is faced with a situation where it alleges a grievance which, ruider the Garner case, is broadly subject to the jurisdiction of the Federal Board, whose General Counsel refuses to issue a Complaint on which an adjudication could be made, and then turns around and contends that the-State procedure is precluded. In effect, the General Counsel of the Board is contending not that there is a conflict of remedies, but that there should be no- remedy whatsoever. Having in mind the language of thé Ghrner casé‘ that the manner in which the matter is decided does not destroy the potentialities of conflict where a conflict exists, it. is clear in this case that no conflict can arise when the road to an adjudication by the Labor Board is thus blocked To hold otherwise would deny the respondent due process of law.” I see no reason why the right of free speech, guaranteed by the First Amendment (and which, along withiifhe Fourteenth, defendants have specifically urged) should emasculate the Fifth Amendment. Looking at this matter realistically,"there is no doubt that uninhibited “peaceful” picketing, particularly ’at'fh¿ vehicular entrance of a plant, as here, may utterly destroy a business which has no existing labor ‘dispute whatever. It has never been my conception of due process that such acts may be fully and finally sanctioned without any right of appeal by the owner of the' business to a court or judicial body; such, to me, seems to be contrary to-thb principles of a government of law. If this be true, Congress coiild only correct the situation by. providing a recourse to some judicial body, and not merely by defining the “penumbral area.” While these cases usually speak of “jurisdiction” or a “lack of jurisdiction,” I doubt that this is truly a question of jurisdiction. The question is rather whether the state court has been prohibited from proceeding in a field where the federal’ jurisdiction may be paramount. The state court certainly had jurisdiction of the parties and a general jurisdiction' to determine what might cohstituté a violation of state law. Under these circumstances, when 'the páftie¡3 stipulated to the filing of the charges of tinfair labor practicés and to the result of that action, I think that the trial court was at 'liberty to *776 proceed on the merits to adjudicate whether there had been any violation of Missouri law. It merely dismissed the petition, on oral motion, giving no reáso'ns. ' Under these circumstances, I think that the judgment should be reversed and the caiise renianded for proceedings in’ accordance with tlie' 'views herein expressed, and specifically to determine, on the merits, whether the acts complained of constitute a violation of Missouri law. 'Hyde, J.,' concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863156. Public record. Not legal advice.