Brief for the Respondent in Opposition — Inland Empire District Council, Lumber and Sawmill Workers Union, Lewiston, Idaho v. Millis

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INDEX

Ni 6 Page

Opinions bélow a 1

Jurisdiction _- 3 nee ris

Questions presented __ Gr OS LRT PR 2.

. Statutes: involved. . ; ee ee teatg oes Se eee 2

RE at ab den ne AE gl DUA EMEP SRE le ee ORT Fate ion

Argument i Si oe as, ; Rhone SRN TE 6

Conclusion Saree pay Sa tile Wa iS doa ae 19

CITATIONS - = :

‘Cases: ae . ;

American Federation of Labor v. National Labtr Relations

Beard, 308 U. 8. 401__... : ies 12,13

American Surety Co. . Baldwin, 287 ULS. 156 ; , 10

Bretherhood. of Baila &. Steams hip C icks vy. L "nited Er ans-

port’ Service Employees, 320 U. S. 715 at : eae 16

Employers Group of Motor Freight Carriers v. National War :

Labor Board, 143 'F (2d) 145; certiorari denied, October . -

9, 1944. ee FR: 16

Gallup v. Schmidt, 183 U.S. 300. a e 9

General Comm ittee of Adin ent v. Misscuri-Kansas- Teras- :

Railroad Ce., 320 UV. 8..323.--.. + a eet) Ee

. - General Commitie of Aijustnake v. Southern’ Pacific Co.,

| °- 320 U. 8. 338 oe Nets 16

Moore; George, ice Cream Co. v. Kose, 289 U.S. 373 ae

‘National Federaticn cf .Railway Workers’ v. | National

Mediation Board, 141 F. (2d) 725 : _ 16

Nutional Labr Relations Board... International Brothe rhood Lee

of Ebvctrical Workers, 308 U. 8. 413 12

National Labor’ Re ‘lations Board v. Mackay Radio .& Tele-

graph Co., 304 U.S. 3337. Gee

Nickey v. Misé issippi, 292 U.S. 393 See 9

Opp Cotton Mills vy. Administrator, Wage and Hour Division,

“S813. U. 8. 126. ....: . ; 9

- Order-of Railway Conductors: v. National Mediation Board,

J41 F. (2d) 266, certiorari granted, No. 200. this Term,

October 9,°1944 a ; TH

Aaiichmen,s Union of North “America. National Medsetion .

Beard, $20 U. %4 297 ¥ ~ 15, 16,17

United States v. IUinois Central R. Co., 291 U.S. 457 *.9g

; United Transport Service Employees v. National Mediation

. * Board, 141 F. (2d) 724 ae = ne Ith

° Welle, Farge & Co. v. Neat, 248°U. 8. 165__- i)

Wilson v. Stande fer, op : . &, 399 ae eet . AY)

York v. Tera’; te 8.45... 10

(16TH 44 L - (1) Re te et

“a

Pi, 2a

Statutes: ieee a ee Page

National Labor Relations Act (Act of July 5, 1935, 49 Stat. :

449, 29 U._8..C. 151, e' seg.).. --.- pes ce Waa he

~ Railway ‘Labor Act (48 Stat. 1185; 45 U. Bt 51, - seq.) :

Sec. 2, Ninth “ Bie becw man a 5

See. 3, First (p) and.9 ¢ ae th sia 5

\ Sec. 9, Third (a)... : - 1

\Publie Re Ssution No. 44, June 19, 1934, ops Stat. iss... . 14

Misce(laneous: :

S.\Rep. No. 573, 74th Cong., Ist Sess., pp. 5-6, 14_. 12, 14, 18

A, 8 ‘No. 1147, 74th Cong., Ist Sess., pp 6-7, 23... 13, 15, 18

Nétidnal Labor Relations Board: } :

Sih. Annual’ Report, 1940, p. 1S. _-- a

6th Annual Report, 1941, p. 36.. ne 10

7th \Wnnual Report, -1942, pp. 32, 34- iy _19

Sih Aunua!l Report, 1943, p. 24... .._- ia Is

- ie al e

s

3 . -

° Sen a je

3th Supreme Court aft the Winited Piates

\O “TOBER TERM, 1944

ba

r No. 613

InLaND EmpirE District CounciL, LUMBER’ AND

Saw MILL Workers UNION, ET AL., PETITIONERS

Harry. A. Minnis, INDIVIDUALLY AND AS CHAIRMAN |

AND MEMBER OF THE NATIONAL LABOR RELATIONS.

X}OARD, ET AL.

; ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT Of (PPE ALS FOR? THE: DISTRICL Ol

Colt MBIA

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN

Lan OPPOSITION

OPINIONS BELOW

The opmion of the District Court of the United

States for the District ef Columbia (R. 1-17) is

unreported, The ‘opinion of the Fnited States .

Court-of Appeals for the District of Columbia (R.

27-28) is reported m 144 EF. 2 d539. The: supple-

mental decision and certification of repyresenta-

tives of the ea "tong ‘Labor Relations Board is

reperted in 55°N. LL. Ro ‘B. 255. Decisions of the

/ rn | | |

< ©

%

2

Board in earlier phases of this case are reported

in 51 N. L. R. 4. 288 and 52 N. L. R. B. 1377:

JU RISDICTION 2

The judgment. of the court below (R. 31): was

entered on July 24, 1944. The petition for ‘a. writ

- of certiorari was filed on October 19, 1944. The

jurisdiction of this Court is‘invoked under Sec-

tion 240 (a) of the Judicial Code, as amended by :

the an of February 13, 1925. .

/

° — QUESTIONS PRESENTED

1. Sci petitioners are entitled te invoke

the jurisdiction of the’ District Court of the

United States for the District of Columbia to set .

aside a ‘certification, of representatives. made by

the Board’ pursuant to Section 9% (e} of the Act

upon allegations that the hearings conducted by

the Board in its investigation did not constitute

the hearings contemplates by Section 9 (¢) of the

Act. * ae

A further question urged by petitione’s, but

which we believe is not here presented, is:

2. Whether petitioners may invoke the juris-

diction of the district court by. stating facts to

show that the heari ings held were inadequate under

_ the due process clause of the Constitution.

STATUTES INVOLVED

The pertinienk’ pr arbvisions of the National Dabo

Relations Act (49 Stat. 449, 29. U. S.C, 151 ef

ee

3

>, geq. ) are set forth in Appendix A of the petition

‘for a writ of certiorari, pp. 36-40.

- starement

Ge nee ‘h 9, 1943, certain locals of Seitecnabionad

-W oodw orkers of America, affiliated with the Con-

eress. of Industrial Organizations, hereinafter eS

called the C. I. O., filed petitions with the Na-

tional Labor Relations Board for investigation and

certification of collective bargaining representa- .°—

tives of the employees at each of three of the five

logging and milling operations of Potlatch Forests,’

_ Ine, hereinafter called Potlat¢ (R34). A.

; hearing. w was held on these petitions on May’ 14 .

and 15, 1943, in which both the C. I. O; and peti-

iioners fully participated (R. 4). Petitioners re-

sisted the establishment of three separate units

pon the ground. that all five of Potlatch’s log-

ving and milling operations - constituted a single

appropriate unit (51 N. L. R. B. 288, 290-291).

‘The Board accepted this contention, specifically

finding that bargaining by the employe ees m all five.

-. operations in a single unit would be appropriate |

_ GLN. L. R. B., at 292-293), and, on.July 13, 1943,

issued its decision Ol N. L. R. B. 288)- dismissing

~ the C. I. O. petitions (R. 4). :

'*. On July.'16, 1943, the C. I. O. filed with the

Board a petition for investigation and. certifica-

tion of a colleetive bargaining representative for

eniployees in a single*unit, composed of the em-

J

4

" plovees in all five of Potlatch’s operations. (R. 4).

On September 14, 1943,-the’ Board issued and -

'. served upoi petitioners a notice to show cause - >:

why the Board should not ‘reinstate the ptior

C. I. O. petitions, treat the C. 1. 0. petition of

: July 16, 1943, as an ame ndmeiit ‘to the prior peti-

‘tions, and decide the case without holding & fur- *_

' ther hearing (R. 5). In response to said notice,

4

netitioners filed their protest and objections in

. which they stated the conclusion that the Board's

failure to hold a further. hearing would prejudie e

them, but*failed to Show any basis for that conelu- |

sion (R.. 5-6; 52 N.. L. R: B., at 1381). There-

after, on October 14, 1943, the Board: issued its

decision and direction of election (52.N. L. R.B.

1377) in which it, first, vacated. its prier decision --

dismissing the -C. ‘I. O. petitions and reinstated ?

those petitions, and, second, made the €. I. O.

‘petition of July 16, 1943 a part of the record in” ;

the earlier proc eedings and treated it as an amend-

ment .to the-earlier petitions (R.6). On No- |

vember 9, 10,11, and 12, 1943, the Board eon-~

«<lueted an election among the employees in the

single ‘unit consisting ef the five Potlatch opera-_

tions. ‘In this election, the C, I. O. received 1,118

votes and petitioner y[nlind Empire _ District:

Council, received 953 votes (R. 9).

On January 11, 1944, petitioners filed with ‘the

Board their motion to reconsider. and vacate the

decision and direction of election, stay the certifi-

cation, and grant an apprepriate’hearing (R. 9).

4

5

Pursuant thereto, the Board, on January 27, 1944,

‘

ordered that a hearing be held with respect to the

issues ‘raised by petitioners’ motion, and deferred.

ruling upon petitioners’ request that the Board’ S:

decision and direction of eleetion and the election

itself be vacated until after it: had reconsidered

the entire’ record, including the evidence to be

adduced at the further hearing (R..9). On Feb-

ruary 18 and, -19, 1944, the Board conducted

’ hearing on the“issues raised by petitioners’ motion

and petitioners fally participated. therein (R. 10).

‘Following this’ hearing, -the Board, on March 4,

1944, issued its supplemental decision and.certifi- ~

cation of representatives (55 N. L..R. B. 255) in

‘Which it certified the C. I, O. as the exclusive ‘rep-

resentative’ of the employees in a wnit consisting

of all'five of Potlateh’s logging and milling opera-

tions (R. 10). On, March 8, 1944, “the Board «le-.

nied petitioners’ snstiot for reconsideration of the

certification (R. 10). :

> On March: 21, 1944, petitioners filed theit com-

plaint, in the Distriet Court of the. United States

for the Distrief- of Columbia (R. 1-13), praying

for thé issuance of a thandatory injunction re-

quiring the Board to ea aside its certifieation. of”

represe ntatives dated March 4, 1944, ‘and, in the

alternative, for the entry of a declaratory jude-

ment decreeing said certification invalid anid, void.

The complaint alleged that the ‘certification unlaw-

fuliv deprived petitioners of valuable barga: ning

rights and . that the hearings, held in the “course

6 ire a

of the proceedings leading up to the saatiteabion ms

“neither satisfied the due proeess . clause of the:

Constitution nor the statutory requirement of a

hearing found in Section 9 (c) of the. National.

Labor Relations Act. On March 29, 1944, mem-

bers of the Board, individually :and in their official

capacities, filed their motion to dismiss the com- .. -

plaint, (R. 13-15), urging that the district court

“was without jurisdiction of the subject matter of

the complaint, and alternativély, that ithe. com- |

plaint-on ifs face failed to state a cause of action |

~ entitling: petitioners to the relief prayed for. The

district court, on April 5, 1944, overruled. the:

. Board’s motion to dismiss with leave to the Board —

to answer the complaint. (R. 17). Pir

The Board, pursuant to Section 17-101 of the

District—of Columbia Code, filed its petition in

-. the court below for the allowance of a Special ap- °

peal from the order of the distr ict court of -April .

: 5, 1944, overruling the Board’s motion to dismiss

the complaint. On May 15, 1944, the court below

‘ entered an order allowing’ the special appeal (R.

25) and on July. 24, 1944, upon consideration of. |

the appeal, reversed -the order of. the. district.

- court and remanded the cause. to that court with . -

directions to dismiss the complaint (R. 31).

°

ARGUMENT 3-

_1. Petitioners contend that the two hearings

held by the Board in the course of the investiga-:

2 - 3 | ees

tion which resulted in,the certification ofthe

C. LO. failed: to: satisfy thé due process cjause

of the Constitution and hence urge that the case

involves" a constitutional question judicial review

of which is required in this proceeding... The.

facts alleged -in the. cofnplaint, however, clearly

establish that, the procedure followe by the Board:

satisfies due process 1 juirements.

As noted in the Statement, petitioners ‘were

heard with respe@ to their contention that all five

of: Potlatch’s lggging. and milling. operations”

_ should constitute a single appropriate bargaining

amit at the hearing on the C. I. O. petitions for

investigation and certification of representatives

- at eachof three of.Potlatch’s five logging and mill-_

ing operations (51 N. L. R.. B., at, 290-293).

Thereafter the Board. issued and served upon

petitioners a notice to show cause why ‘it should

not reinstate the original C. 1.-O. petitions, treat,

the new C. L. O. petition: as an amendment thereto,

and proceed: to a new decision upen the basis

. of its reconsideration of the petitions as thus:

amended without holding a further hearing (R. 5).

Petitioners, in response thereto, objected gever-

ally to the Board’s proposed procedure but failed -

to allege any facts establishing that they would be -

pre judiced by the Board’s proposal to conduct the

election aniong the employees in all five of Pot-

i es ;

BINEIS AL 2

“~

8 eg

latch’s' operations, the unit which petitioners had

_ previously contended was the appropriate -unit,

without ‘holding ‘a further hearing (id.). The —

* Board thereupon directed and held the election |

(R. 6,9). Subsequently, petitioners filed with the

Board a motion to vacate and to grant a hearing,

this time alleging facts tending to establish preju-

vilic ‘e to its rights resulting frem the Board’s fail-

ure to. hold a further hearing before, conducting,

‘the election (R. 7-9)... Pursuant to petitioners’

motion, the Board directed that a further hearing *

De held ‘to adduce evidence with respect to the

issues raised by “the Tast ‘said Anotion and objec-: .

tiéns to the election” and agreed to reconsider the’

entire case (R. 9). The second hearing was held

and petitioners fully participated therein (R. 10).

Thereafter, upok reconsidering the entire case, in-

cluding the evidence adduced at the second hear-

ing, the’ Board handed down its supplemental de-—

cision and certification of represent tives in which’

it affirmed its prior decision with respect to the

‘ scope of the unit appropriate for Perey col-

Jectrvely with Potlatch and certified the C. I. O. as

~ the exclusive representative of the employees in

said unit (id.); On these facts there can be no

question but that the Board’s procedure fully’ sat-

isfiéd constitutional requirements.

’ It is well settled that thé due process clause of

the® Fifth Amendment guarantees no particular.

form of ‘procedure, ‘but is coneerned solely with

.

9

graph Co., 304 U. S. 333, 351. In giving: peti-

tioners an opportunity to show cause- why the

Board’s proposed procedure - should, not be

Process of law. The Board was not required to

receive evidence in the absenc e of é offer - by

petitioners to show the respects in which they

would be prejudiced by the action which the Board

proposed to take.. But assuming, argue ndo, that

the Board erred 1 in failing to hold a further formal

shearing: prior to issuing its decision gnd direction

of election, its failure in this regarc

sent any constitutional question site the Board

did subsequently hold a ‘formal hearing prior to

the issuance of its supplemental decision and cer-

tification of representatives at which’ petitioners

were fully heard with respect to all issues which

fies the due process clause. The courts have ré-

peatedly held not only that a hearing need not be

held at any time before final judgment is entered

(Gallup vy. Schmidt, 183 U. 8. 300, 307; Wilson

v. Standcfer, 184 U. S. 399, 415; Wells, Fargo &

“Co, v. Nevada, 2 2 .SN65, 168; United States v.

Ilinois Central R. Co., 29 U. S. 457,463; Nickey

v. Mississippi, 292 U. S. 393; Opp Cotton Mills v.

Administrator, Wage xd Hour Divi ‘ison, 312 U-S.

the protection of - substantial rights. National

Labar Relations Board vy. Mackay: ‘Radio & Tele-

held at any particular’ time, but that’ it may. be.

adopted; the Board was affording petitioners due .

oes not pre- -

they desired to raise. This procedure: fully satis-

e 2

126, 152-1! 53): isdiadl: this Court has - ld that

due: process requirements ar &. met even if /no hear-

ing is held before judgment ‘is eritered, if an op-

_ portunity to be heard is afforded on appeal (York

_.v. Texas, 137 U:S. 15, 20-21: American: Surety

Co. v. Baldwin, 287. v. S. 156, 168; George Moore —

Ice Cream Co. v. Rose, 289 U. S. 373, 384). ° =

\ 2. Petitioners’ further contention that the hear-

ings held-by: the Board in the certification. pro-

'. egeding in question do not coniply with ‘the statu-

- tory requirement therefor and. that ‘lence the.

.° distriet court had jurisdiction to set aside the

certification is without merit. -It-should. first be

noted that the provision in Section 9-(¢) of the

' Act for aly appropriate hearing in. any investiga-

- tion of a question conce! ning: representation does’

- not.require that a hearing be held at any. partic-

ular stage of the pr oceedings. ce ‘onsequently, any

_ hearing which ‘satisfies the due’ process clause,yof _

the Constitution meets the statutory requirement. :

We have shown, under point one, that the two _

hearings. held by . the Board prior -to’ the is-.

‘ suance of the certification in controversy fully

satisfy constitutional requirements. ‘The face.

of the complaint likewise reveals that the petition-

-ers were afforded the hearing contemplated by the

Act in the representation proceeding-in question.

- In any. event, the district courts are powerless

to intervene to set aside certifications. of repre-

Pye

5

a

|

sentatives made pursuant to Section‘ ‘9 (c) of the es

Act. In Section 9 of the Aet, Congress vested in

the Board the function of dejg' lining the unit ap- -

propriate’ for collective ain and of inves-

tigating and certifying the collective bargaining —

representatives selected in. accordance with the

Act (Sections 9 (b) and (c)).. Congress, how- i

" ever, did not see fit to provide for judicial review

of the Boards certifications of bargaining repre-

sentatives except as prescribed in Section 9 (d) of

the Act. That subsection provides for review of

certification proceedings, by the apprapriate .cir-

cuit court of appeals, ‘of the “United - States only 3

- afte the Board enters a final order pursuant’ to.

‘Section 10 (c) of the At, based in whole or-in-

- part upon facts certified , following an investiga- °

tion.under Section 9c). When the Béard enters”

.. such‘an order, any person aggrieved thereby may

obtain a review under Section 10 (f) of the Act.

The statute on its face thus discloses an intention

_ onthe part of Congress to. prevent the review of

the Act except where such certifications form the —

certifications made pursuant to: Section 9 (c) of

‘ “basis for ‘a final order under. Section. ) (ce) of

‘the Act, directing an -employér to ceasé unfair

labor practices. This Court has held, after care- *

fully cqnsidering the legislative .histery of - the

— Act, that ‘it was the intention ‘of Congress to deny

to the circuit courts of appeals power to.intervene

‘in representation proceedings conducted by the

¢

‘ 12

Board under Section 9'(¢) of the Act, except, in is

the limited manner. provided. in Section. 9 (d).’

American, Federation of Labor v. National Labor

RYations Board, 308 U. S- 401; National Labor

Relations Board v. I nternational Brotherhood of

Electrical Wor kers, 308 U. '$: 413. As petitioners :

have noted (Br. 15), however, this Court found

it unnecessary’ to reach. the question. with which

we are. here coneer ned: whether the “district courts

‘sitting in equity have the power to review such ne

certifications of rep) -esentatives.

The ‘legislative history of the Act, it is aif |

mittéd, compels the conclusion of the court ‘below

| that Cc ongress intended té leave the determination |

of the appropriate bargaining unit ‘and’ the in-

A vestigation and certification of tlie statutory. bar-

gaining representatixe of employees entirely to”

‘the Board and. to exe ‘hile such determinations

and . certifications | Lom judicial scrutiny, except

1 the’ manger” prov ided in the Act. Thus the

Sena. Ett Report on S. 1958, . the bill .

whieh: subsequently became the National Labor

Relations Act (S. Rep. No. 573,°74th Cong., Ist

Sess., po l4) states that:

Section 9 (d) makes it absolutely clear

that there shall be no right-to court review

anterior te the holding of an election. An

_.- election is the mere determination of a pre-

‘ liminary: fact, and in itself has no substan-

_ tial effeef uport the rights of eithey employ-

ers or employees. There is no more reason, |

“2

for court. review prior to an. elections than

_for court review prior to a hearing.. But

Sif subsequently the Board makes an order

a predicated upon the election, such as an

order to bargain’ collectively with elected: | -

‘representatives; then the entire election pro-

-which. the order of thé Board is based, and

is fully reviewable by any. aggrieved party |

in the Federal courts in the manner, pro-

vided in section 10. . And this review would

include within its scope the action of the

Board in determining the appropriate unit

for purposes of the election. This provides

a complete guarantee, against arbitrary ac-

_ tion by the Board.

As this’ Court noted in the American Federation

of Labor case, supra, (308 U. S., at 411), ‘the

" bill was similarly explained: on a Senate floor by

the committee chairmen who declared : ‘It provides.

for review in the courts only after the election —

has been hel@4nd the Board has ordered the em-

‘ployer -to. do semething’ predicated upon the re-

sults of an election’ (79 Cong. Ree., 7658). an

The House’ Cominittee (H. Rep. No. 1144, oe.

Cong., Ist Sess., p. 23) said: ,

Section 9° (a) of the bill makes’ clear that

there is to be no court review prior to the.

holding of. the. fection, and provides an ex-.—

—clusive, complete, and ‘tdequate:’ remedy

whenever an order of the Board: made pur-

-suant to section 10 (¢)4s based in whole or

ae

\

-eedure begomes part: of the record upon -

“

straining unfair labor practices under Section. 10

Reports which refer to the experience of the prede- -

S . 14

in part upon facts certified following an

_ eleetion or ether investigation pursuant to

: section 9 (c).

“The reasons for withholding . from: the courts

the power to review certifications of bargaining

representatives made pursuant to Section 9 (¢}

of the Act, except as incidental to review by

the cireuit eourts of appeals of an order re-

(c) of the Act, are clearhy stated in the Committee

cessor’ Natignal Labor Relations. Board ‘under

Public Resolution 44, (48 Stat.. 1183), wherein

Congress specifically provided for court review of

orders for elections..’ Thus the Senate Report (S.-

Rep. No. 573; 74th ¢ one Ist Sess., pp: 5-6) reads

as follows: — |

Under Public Reablution 44, any attempt

“by the Government to conduct an eleetion

.of representatives -may be contested ab

mitio inthe courts, although such election

is in reality merély a pfeliminary determi-

_ nation of faét>~ This means that the Gov-

ernment can. be delayed indefinitely before

it takes the- first step toward industrial |

peace. After almost’ a year not a ‘single

case, in which a company has chosen to.cdn-

. test an election order of the, Board, has °

reached decision in sd cireuit court of:

appeals.

: "This break-dowti af the law is breeding :

the very evii which th@ law was designed to. .

prevent.

a

ae i ae :. o- 15 \

"The House Conimittee, after referring to the’ on0-

eedure “for review under Public Resolution 44,

‘similarly declared (H. Rep. No. 1147, 74th Cong.,

Ist Sess., p. 7):.

When an-employee. stints has built

_up its membership to a point. where itis —

entitled to be recognized as the representa-

tive of the employees for collective bargain-

ing, and the employer refuses to accord such

recognition, the union, unless aif election

can promptly be neiu to determine~ the

choice of representation, runs the risk: of .

‘Hmpairment. of strength by attrition and

delay while the case is dragging on through

the courts, or else is forced to call a strike:

to achieve recognition by its own economic |

. power. Such strikes have been called when |

election orders of the Nationa! Labor Rela-

tions Board nave been held up by court ;

review. F

a The conclusion that Congress intended in the

4 Act ‘to limit judicial review of actions of ‘the

_. Board in representation proceedings to that pro-—

vided in Section 9 ( d) of the Aet is strongly rein-

forced by the’ decision - of this Court in. Switch-

— men’s Union of North Amertca v. National Media-

‘tion Board, 320 .U. S. 297,.under the Railway

Labor Act. There is ne p1 ‘ovision in the Railway

Labor Act fer. judicial review of certifications of

-representatives made pursuant to Section 2, Ninth,

but that Aet does provide .for judicial review of

two other-types of administrative actions (See-

: e. J ; ‘ . era? ,

of ad

16

tioris a, First (p) and_ 9, Phird (a)). This Court.

(320 TU. S., at 301, 305), by reference to “the type

of problem involved and the history of the statute

in -question"’, and the “‘highly selective manner in

whic}r Congress has provided for judicial review,

Beier ordérs: or determinations under |

the Act”, concluded that Congress did not intend -

to allow judicial review of. determinations of the —

National Mediation Board under Section y Fi Ninth, :

of hat Act> The Court: accordingly reversed the

decision of the Court of Appeals for the District

of Columbia, expressly holding (320 U. S., at 300)

that ‘the District Court did not have the power to

Yeview the actton of the National Mediation Board,

‘ in Wsuing the wae? ‘See also General Com-

mittee of Adjustment v. Missouri-Kansas-Tecxas

‘Railroad Co., 320°U. 8. 323; Geheral Commitice .

of Adjustment v. Southern Pacific Co., 320 U.S.

338; Brotherhood of Railway & Steamship Clerks

~ vy, United Transport. Service Employees, 320 U.S

715; Order of Railway Conductors NV. National

* Mediation: Bourd, 141 F. (2d) 366, 367 (App.

October 9, 1944; United Tran port Service Em-

D. C.), certiorari granted, N« 1 200, this Term,

ployees Vv. Nationat Mediation Board, 141 F. (2d)

.724,.725 (App. D. C.): National Federation of

Railway Workers “. National Mediation Board, |

‘141 F. (2d) 725, 726 (App. Ty. C.); cf. Employers

Grou» of Motor Freight € larviers te National War

ie le yA aN ;

Seber ‘dink 143 F. (2d) 145 (App. D. C. Dy cer-

tiorari denied, October 9, 1944.

We subniit that the factors which isapetied this: ;

3 © ourt to hotd ’ in the Switchmen’s case that Con-

~ gress in the Railway Labor Act. intended to vent

tthe National Mediation Board “the final : final say”?

(320°U. S., at 303) with respect ef ee con- *

eevning the representation of. empléyees, without

affording recoursé to the. courts, plainly require a

similar conclusion under the\National Labor Rela-

tions Act.." The problem involved, that of deter-

mining the collective, bargaining representative, is

the samie under both Acts, and it is as important

under the National Labor Relations Act as it is

-. under the Railway Labor Acf that there ‘‘be no

dragging out of the controversy into other tribu-:

nals of law’’ (320 U. S., at 305). The legislative

history of the National Labor Relations Act,-as:

we have shown, establishes even more clearly than

dloes the legislative. history of the Railway Labor

Sot ‘t, the intention of Congress to limit judicial re-

view. of. representation proceedings under Section

9 (e) of the Act to that afforded’ im the circuit

courts of appeals in connection with the review of

orders in unfair labor practice proceedings based

Tn whole or in part. on certifications issued by the: -

Board in prior. representation. proceedings. Thé

‘court below, therefore, properly | regarded ° the

Switchmen’s case as foreclosing the contention,

here urged by petitioners, that the district courts

r >

18

had jurlediction to set aside certifications: of repre-

sentatives under Section 9 (c) of the Act... Its

- conclusion is no less zorrect when the , petitioners’

__elaim-is that the hearings afforded, did’ not meet °

| the statutory. standards, than it is, ‘constitutional

‘questions aside, when any other type of challenge « —

to the certification order is made.

; The wisddm of the congressional policy fo deny

. ‘the courts jurisdiction over certification proceed-

ings except as provided in Section 9 (d) of ‘the

-Act is more evident now than ever before, for,

in thisSway, the industrial strife which ‘Congress _

has “found ‘results’ from attempts to: delay by

court action the determination of bargaining rep-

“resentatives by the Board (S. Rep. son Wath ;

Cong., ist Sess., pp. 5-6; H. Rep: No. 1147 74th

Cong., Ist Sess., pp. 6-7) is avoided as, far a

is possible. During. the fiscal year ending June —

30, 1944, the Board held over 4 ,700 elections and

pay roll cheeks in ‘which almost 1,100,000 valid — .

votes were cast.’ In the previous fiscal year, the -

Board conducted about 4,150 elections and pay roll

’ cheeks in which an even greater number of valid ‘i

7 votes were ‘cast.’ In the fiscal years ending z in

1 Of this total.number, 501 were pay roll checks. These

figures are taken from. tables. prepared for inclusion in the

Board’s Ninth Anfiuat Report which is not yet published.

~~ 2 National Labor Relations Board, Fighth Annual Report, —

/ 1943, pp. 23, 24..95.'. The Board's records show that 511 of

this total were pay rpll checks. -

‘19

1942, 1941, and 1940, the Beard held 4,212, 2,5

- and 1,192 elections and pay roll checks.’ -It can

thus be. readily ‘seen that if the determination. of

by resort to the courts in only a sniall pereent-

age of the election cases handled by the Board,

: would result. F

In view of the limitations. upon. court. review

_ of certification proceedings appearing on ‘the face

of the Act, the manifest intention of Congress

- that there be no other type of court review of such

_* respectfully. submitted. that the court below prop-

erly concluded that the statutory review of cer- ed

"tification. proceedings is exélusive and that’ the 3

district ‘courts, accordingly, are ee jurisdic-

ee

’ CONCLUSION

mo constitutional qu lestion and no other. question

is presented which, warrants review. The petition

if National Labor Relittions Board, Seventh Annual Report,

1942, pp. 32, 34; Sizth Annual Report, size p. 365 Fifth

» Annual Report, 1940, P- 18. ;

. -.

bargaining representatives by the Board i is delayed

industrial strife which Congress ‘sought to avoid :

proceedings, and the clear. authority of Congress |

to limit review to that provided in the Act, it’ is.

tion over such proceedings. Lee Lote

no

The decision of the. court below is correct and /

there is no conflict of decisions. The ease inv olves

BF Me Ke 20 |

for a writ of certiorari should therefore be denied.

Respeetfully + submitted. / ;

ee CHARLES Fany,

2 eee ont ‘Solicitor General.

me Atvin J. RocKwELL, | ee

General Counsel,

* RutrH WEYAND,

/ OwsLEy Vos,

' CHARLES F. McERLEAN,

; Oe an ;

National Labor Relations Board.

“NoveMBer 1944.

U.S. GOVERNMENT PRINTING OFFICE: 18446

Z al : q d