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THE

VIII

Miscellaneous Litigation

HE Board was engaged during the 1950 fiscal year in the litigation of a number of miscellaneous types of lawsuits. Several of these proceedings were instituted by private parties. In most of them, the Board, for its part, was engaged either in endeavoring to preserve authority conferred upon it by the statute, or in aiding the enforcement of its orders. The legal actions included proceedings to obtain enforcement of Board subpoenas necessary to the investigation of unfair labor practices and the successful resistance of private suits to obtain review of Board orders in representation cases directly rather than through the long-established channel of court of appeals review of the Board's final order in a refusal to bargain case. Also, in one case, a court of appeals sustained the Board's ruling that the filing of charges of jurisdictional dispute does not require the Board to conduct a hearing on the dispute when the Board's preliminary investigation indicates that the charges lack substance. In another case, a court of appeals granted a temporary restraining order under section 10 (e) to prevent an employer from dissipating his assets while the Board was seeking enforcement of an unfair labor practice order against him.

1. Subpoena Enforcement Proceedings

In N. L. R. B. v. John S. Barnes Corp.,' the court upheld the Board's authority to delegate to subordinates its statutory power to issue subpoenas. In the court's opinion, the power to delegate, while not expressly given in section 11 (1), is implied in the various provisions of the act which must be considered as a whole in the light of its purpose and legislative history. Thus, the court held that (1) the issuance of subpoenas is a necessary incident to the prosecuting and investigating functions which the Board, under section 5 of the act, may delegate to its agents; (2) the issuance of subpoenas is "necessary to carry out the provisions of the Act" and therefore is subject to the Board's rule-making power under section 6; and (3) delegation of the power to issue subpoenas is indispensable if the Board is to

1178 F. 2d 156 (C. A. 7).

administer the broad purposes and policies of the act throughout the Nation promptly and effectively, and if, to that end, subpoenas are to be issued forthwith as required by section 11 (1). The court further observed that Congress was aware of the Board's previous practice of delegating the power to issue subpoenas when it amended section 11 (1) to make the issuance of subpoenas mandatory and to provide for the revocation of subpoenas issued. Failure of Congress to forbid such delegation in the amended section 11 (1), according to the court, "must be considered as legislative ratification of the Board's construction and procedure." The court also pointed out that the Board's delegation of its subpoena powers must likewise be sustained on the grounds which the Supreme Court assigned in upholding a similar delegation by the price administrator under the Emergency Price Control Act. In the court's opinion, the Board no less than the price administrator is entrusted with a large program which requires "administrative flexibility" in order to permit "prompt and expeditious action on a multitude of fronts." 3

In Bland Lumber Co. v. N. L. R. B., the court of appeals dismissed the company's appeal from the order by which the district court (1) enforced a subpoena issued by the Board, and (2) restrained the company from taking any action to prevent other respondents from obeying the Board's subpoena. The court of appeals sustained the lower court's conclusion that the company could not resist enforcement of the subpoena on the ground that the Board lacked jurisdiction to entertain the representation proceeding in connection with which it was issued because the petitioning union had not complied with the filing and affidavit requirements of section 9 (f), (g), and (h). Relying chiefly on the rules laid down by the Supreme Court in the EndicottJohnson case, the court pointed out that the question of the union's compliance with those requirements did not go to the Board's general jurisdiction over representation proceedings and was primarily a matter for the Board's administrative determination. The court further observed that Congress, in adopting the Administrative Procedure Act, specifically declined to make the jurisdiction of an administrative agency in a particular case litigable in a proceeding for the enforcement of a subpoena issued in the case, and that Congress thus enacted into law the principle established in the Endicott-Johnson case. The court also rejected the contention that the Board's subpoena was invalid in that it called for information from a common carrier regarding shipments to and from the respondent company in violation of the

2 See Fleming v. Mohawk Co., 331 U. S. 111.

The court held that the Supreme Court's ruling in Cudahy Packing Co. v. Holland, 315 U. S. 357, was not applicable.

4177 F. 2d 555 (C. A. 5).

See Fourteenth Annual Report, p. 148.

Endicott-Johnson Corporation v. Perkins, 317 U. S. 501.

Interstate Commerce Act. That act, the court noted, while prohibit ing carriers from giving certain information concerning interstate shipments, specifically excludes from its operation the furnishing of such information in response to any legal process. Moreover, the court held, the disclosures sought were lawful since the documents involved belonged to the railroad rather than the complainant and since they were not privileged on account of any confidential relation between the railroad and the company. In conclusion, the court affirmed the lower court's order restraining resort to State court action which would render its enforcement of the Board's subpoena ineffective and would subject parties complying with the subpoena to punishment for contempt.

In Louise Hamilton v. N. L. R. B., enforcement of the Board's subpoena was resisted on the ground that the Board was without jurisdiction to issue the complaint to which the subpoena related inasmuch as the complaint was barred by the 6-month limitation in section 10 (b), and the complaining union had not filed the documents and affidavits specified in section 9 (f), (g), and (h). As in the Bland Lumber case, the court held that the question raised by the respondent must be determined in the first instance by the Board in the unfair labor practice proceeding which was within its general jurisdiction under the act. The court concluded that respondent, whose rights had not been violated, could not disrupt the proceeding before the Board by seeking piecemeal judicial review of questions of law.

2. Suits for Review in Representation Cases

Three suits were instituted in United States district courts to obtain review of action taken or about to be taken by the Board in representation cases. All were dismissed.

In Atlanta Metallic Casket Co. v. United Paperworkers of America,10 the complaining employer sought a declaratory judgment nullifying the Board's certification of the union because of its alleged failure to comply with the filing and affidavit requirements of section 9 (f), (g), and (h). The court declined relief on the basis of the Board's argument that the court was without jurisdiction over the subject matter and that power to review Board certifications is vested exclusively in the courts of appeals in connection with proceedings for the enforcement of unfair labor practice orders based on a certification. The court pointed out that regardless of whether or not the union's compliance status was considered a jurisdictional fact, the

49 U. S. C. 15 (11).

177 F. 2d 676 (C. A. 9).

See supra, pp.

10 87 F. Supp. 718 (D. C., No. Ga.).

employer was not entitled to declaratory relief and could obtain judicial review of the Board's certification only if its refusal to recognize the union should result in the issuance of an unfair labor practice order by the Board.

In General Drivers, Local No. 886, AFL v. Elliott 11 and United Transport Workers of America v. Douds,12 the respective courts similarly declined to interfere with the Board's representation procedures on the ground of their alleged invalidity. In the General Drivers case, a union which was excluded from participation sought to enjoin the holding of an election, while in the Transport Workers case, the union which was unsuccessful in the election attempted to enjoin the Board and the employer from giving effect to the certification of another union.18

3. Suits to Compel or Enjoin Board Action

Three suits to compel Board action and one to restrain it also were instituted in United States district courts during the past fiscal year. All four were dismissed.

In Camp v. Herzog," the court dismissed a complaint requesting that the Board be restrained from proceeding with a determination whether the complaining attorney, who was alleged to have assaulted a Board representative in the course of a hearing, should be barred from further practice before the Board. The court held that the Board as an administrative agency had inherent power to control practice before it, a power which was unaffected by the provisions of the Administrative Procedure Act. The court further held that, in the absence of a final determination within the meaning of the Administrative Procedure Act, it was without jurisdiction to interfere with the administrative processes of the Board.

In two of the three cases in which specified action on the part of the Board was sought to be compelled, the court dismissed the proceeding for lack of jurisdiction. Textile Workers Alliance v. Herzog; 15 General Drivers, Local 886, A. F. L. v. N. L. R. B.16 In the third case, the court sustained the Board's appeal from the lower court's order granting the relief requested by the petitioning union. Herzog v. Parsons.17

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11 August 1, 1949 (D. C., W. Okla., Civil Action No. 4433).

12 June 8, 1950 (D. C., So. N. Y., Civil No. 57-209).

19 In Florida Mattress Factory, Inc. v. London, February 21, 1950 (D. C., So. Fla., No. 1850 Civil T.), the United States district court, upon removal, dismissed the action instituted in a State court in which the Board, at the instance of the employer, had been temporarily restrained from conducting a hearing in an unfair labor practice proceeding. 14 June 13, 1950 (D. C., D. C.).

February 4, 1950 (D. C., D. C., Civil Action No. 5336-49).

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In the Textile Workers case, the complaint requested that the Board be directed to entertain the union's petition for certification contrary to the Board's established policy to suspend the determination of representatives pending the disposition of unfair labor practice charges against the employer involved. The court held that the Board's action was but a preliminary step in an administrative proceeding with which the court may not prematurely interfere.

In the General Drivers case, the court declined to reverse the refusal of the Board's General Counsel to issue a complaint based on the failure of an employer to recognize the complaining union which claimed majority status contrary to the Board's determination in a representation proceeding. Citing Lincourt v. N. L. R. B., 18 the court pointed out that the power of the General Counsel to issue complaints under section 10 (b) of the amended act is discretionary and is no more reviewable than the identical power which the original act vested in the Board. The court also dismissed the union's complaint insofar as it sought review of the Board's determination in the representation proceeding. That determination, the court observed, was not reviewable under section 10 (f) of the act since it was not "a final order," i. e., an order dismissing a complaint in whole or in part or remedying unfair labor practices found by the Board. The court also referred to the specific provisions of section 9 (d) which permit judicial review of representation proceedings only in connection with an unfair labor practice order which is based on the certification of a bargaining representative.

In Herzog v. Parsons, the court of appeals, reversing the lower court,19 sustained the Board's conclusion that the filing of section 10 (k) charges, alleging violations of the jurisdictional strike and boycott prohibitions of section 8 (b) (4) (D), does not require the Board to hear and determine the underlying jurisdictional dispute before it is determined in a preliminary investigation that there is reasonable cause to believe the charges are true. Contrary to the complaining union's contention, the court held that the Board's statutory power to make such a preliminary investigation was clearly indicated. Thus, the court pointed out that not only did section 3 (d) expressly vest the General Counsel with power to investigate all charges under section 10, but section 11 also conferred on the Board the investigatory powers necessary for the exercise of all of the Board's functions under both sections 9 and 10. The court concluded that, in the absence of any exclusionary language in section 10 (k) and other sections in connection with which 10 (k) must necessarily be

18 170 F. 2d 306 (C. A. 1), Fourteenth Annual Report, p. 152.

1 Parsons v. Herzog, 85 F. Supp. 19 (D. C., D. C.), Fourteenth Annual Report, pp. 152

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