Surprenant Mfg. Co. v. Bernard L. Alpert, As Regional Director, First Region, National Laborrelations Board, 318 F.2d 396, 1st Cir. (1963)

318 F.
2d 396
SURPRENANT MFG. CO., Plaintiff, Appellant,

v.
Bernard L. ALPERT, as Regional Director, First Region,
National LaborRelations Board, Defendant, Appellee.
No. 6092.
United States Court of Appeals First Circuit.

June 4, 1963.
Matthew E. Murray, Chicago, Ill., with whom Richard Comerford,

Leominster, Mass., John D. O'Brien, Chicago, Ill., Dyer & Comerford,
Leominster, Mass., and Seyfarth, Shaw, Fairweather & Geraldson,
Chicago, Ill., were on brief, for appellant.
James C. Paras, Atty., with whom Stuart Rothman, Gen. Counsel,
Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost,
Asst. Gen. Counsel, and Gladys Kessler, Atty., Washington, D.C., were on
brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH,
Circuit judges.
ALDRICH, Circuit Judge.
This is a petition for a mandatory injunction directed against a Regional

Director of the National Labor Relations Board. Although not essential to our
decision,1 some background material will place the particular Board conduct
attacked in this case in better perspective. Whenever, shortly prior to a
representation election, it is charged that the employer has engaged in an unfair
labor practice which might affect the outcome, the Board, upon investigation
and a determination that the charge has prima facie merit, customarily
postpones the election until it has been found that no unfair labor practice has
been committed, or until the union waives any claim to rely upon the
employer's conduct to invalidate the election. There is no provision in the
statute, or even any regulation, which expressly authorizes such action, but,
concededly, the Board has followed this 'blocking charge' procedure from the
beginning. United States Coal & Coke Co., 1937, 3 NLRB 398; Third Annual
Report of the NLRB (1939) 143. So far as we can discover it has never been
judicially overturned. See, e.g., N.L.R.B. v. Auto Ventshade, Inc., 5 Cir., 1960,
276 F.2d 303; Pacemaker Corp. v. NLRB, 7 Cir., 1958, 260 F.2d 880; N.L.R.B.
v. Trimfit of California, Inc., 9 Cir., 1954, 211 F.2d 206. While the Board's
view has been criticized, Pacemaker Corp. v. NLRB, supra, at 882, one of the
dangers inherent in the opposite rule may be deduced from N.L.R.B. v.
National Container Corp., 2 Cir., 1954, 211 F.2d 525.
2
In the present case the Steelworkers' union2 petitioned for an election. Two
other unions were allowed to intervene, and thereafter the employer, Surprenant
Manufacturing Co., plaintiff appellant herein, entered into a stipulation with all
three unions and defendant appellee Regional Director for a consent election
pursuant to the usual rules of the Board. The election was scheduled for
November 9, 1962. On November 7 the Steelworkers filed an unfair labor
practice charge, asserting, in the words of the present complaint, that appellant
had engaged in intimidating conduct, threats to close the plant if the union won
the election, and other activities constituting unfair labor practices. The
Director, had such a charge been filed sooner would, under customary practice,
have investigated and postponed the election if, but only if, he had found that
the charge had prima facie merit. Two days were insufficient to make the
investigation. The Director could have approximated the usual blocking charge
procedure in a number of ways. He could have postponed the election briefly,
with resultant expense and unfairness had subsequent investigation proved the
charge to be lacking in even prima facie merit, or he could have proceeded with
the voting and then refrained from tabulating the result until he had an
opportunity to investigate. He adopted the latter course, and as soon as the
votes had been cast impounded the ballots without making a tally.
Subsequently, when the investigation indicated that the charges had prima facie
merit, he entered an order withdrawing his consent to the election, declaring it
null and void, and providing for the destruction of the ballots, uncounted.
Appellant brought the present action in the district court under 28 U.S.C.A.
1337, praying that the Director's order be set aside, and seeking a mandatory
injunction requiring the counting of the ballots and the announcing of the
result. In addition, it requested an order that the unfair labor practice charges be
not heard until the election results had been disclosed. It asserted that the Board
had acted improperly because, in fact, no unfair labor practice had been
committed. It alleged, in addition, that the union did not even have reasonable
cause to believe otherwise. The district court, on motion, dismissed the
complaint on the pleadings. It stated that since the certification petition had
been brought under section 9(c)(1)(A) by the union, and not under section 9(c)
(1)(B) by the employer, the employer had no 'legal interest' to be affected, and
held that the court lacked jurisdiction. This appeal followed.
4
It is not altogether clear whether appellant wants the votes tallied and the result
announced so that it will be able to contend that the election is valid, subject to
objections, or whether it will be content to gain benefits from the announcing
of results, and the opportunity of using these results as evidence in future unfair
labor practice proceedings. Very possibly the complaint sought both objects.
But, in any case, it seems apparent that appellant has no claim unless it is
correct in its contention that it in fact committed no unfair labor practice in
connection with the election. Not only, so far as its first purpose is concerned,
might an unfair labor practice invalidate the election, N.L.R.B. v. Trancoa
Chemical Corp., 1 Cir., 1962,303 F.2d 456; N.L.R.B. v. Howell Chevrolet Co.,
9 Cir., 1953, 204 F.2d 79, aff'd 346 U.S. 482, 74 S.Ct. 214, 98 L.Ed. 215;
N.L.R.B. v. National Container Corp., supra, but with respect to its second
purpose, an unfair practice would deprive appellant of a right to the tally even
as evidence at the Board hearing. At best, if appellant had committed an
invalidating practice, a tally would be irrelevant.3 At worst, its announcement
would be prejudicial to the union in a future election. However, in our opinion,
the very fact that appellant predicates its claim for relief upon the allegation
that it committed no unfair practice puts it out of court.
Normally the question of whether a party committed an unfair labor practice is

to be determined initially and solely by the Board, subject to review. It is true
that there is no preemption of this issue where a party is seeking to enforce a
separate right,4 as, for example, where the question arises in connection with a
suit for breach of contract. Smith v. Evening News Association, 1962, 371 U.S.
195, 83 S.Ct. 267, 9 L.Ed.2d 246; cf. United Brick & Clay Workers v. Deena
Artware, Inc., 6 Cir., 1952, 198 F.2d 637, cert. den. 344 U.S. 897, 73 S.Ct. 277,
97 L.Ed. 694; see Sovern, supra fn. 4, at 559-561. But the 'right' which
appellant here seeks to vindicate is of legal significance only if it will help it
secure a determination that there was a valid election free of an unfair labor
practice, which is the very matter Congress has committed to the Board. The
incongruity of the district court's making a preliminary finding that no unfair
labor practice was committed in order to require evidence to be produced at a
Board hearing in which such issue is to be litigated, hardly needs to be
developed. A substantive determination that the election was valid, assuming,
contrary to the court below, that appellant has an interest in such a
determination would equally involve the district court's impinging in a factfinding manner upon the Board's jurisdiction.
Appellant's basic case is predicated on the fact that the Board is required to
conduct elections, section 9(c)(1), its position being that it is not doing so. But,
on analysis, its real contention is that it is not doing so in a proper manner. 'The
control of the election proceeding, and the determination of the steps necessary
to conduct that election fairly (are) matters which Congress entrusted to the
Board alone.' N.L.R.B. v. Waterman Steamship Corp., 1940, 309 U.S. 206,
226, 60 S.Ct. 493, 503, 84 L.Ed. 704. This delegation applies to selection of the
proper time, N.L.R.B. v. Fresh'nd-Aire Co., 7 Cir., 1955, 226 F.2d 737;
N.L.R.B. v. Shirlington Supermarket, Inc., 4 Cir., 1955, 224 F.2d 649, cert.
den. 350 U.S. 914, 76 S.Ct. 198, 100 L.Ed. 801, as well as to determining what
constitutes fair surrounding circumstances, N.R.L.B. v. Consolidated Machine
Tool Corp., 2 Cir., 1948,167 F.2d 470; see also, blacking charge cases, supra.
Even granting that appellant has an interest in having a determination made of
who represents a majority of its employees, the type of Board error committed
here, if any, was one of discretion, subject to ordinary process of review,5 rather
than action beyond a 'clear and mandatory' statutory limitation of the Board's
powers as in appellant's case of Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct.
180, 3 L.Ed.2d 210. What appellant is asking is that the district court, in effect,
supplant the Board's expertise. This cannot be done. International Ass'n of Tool
Craftsmen v. Leedom, 1960, 107 U.S.App.D.C. 268, 276 F.2d 514, cert. den.
364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46; Milk and Ice Cream Drivers Union,
Local 98 v. McCulloch, D.C.Cir., 1962, 306 F.2d 763. It would seem almost
elementary that appellant's claim of hardship must fall upon our deaf ear.
Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S.Ct. 459, 82
L.Ed. 638.
7
Judgment will be entered affirming the judgment of the District Court.
Appellant asserts that the legality of the 'blocking charge' procedure herein
described is not involved in this action, and we agree, although possibly not for
the same reason
United Steelworkers of America, AFL-CIO
Appellant does suggest that if the union overwhelmingly lost the election it
would indicate the immateriality of any unfair labor practice. While not
rejecting this argument completely, we have severely criticized it before.
N.L.R.B. v. Trancoa Chemical Corp., supra, at 458, fn. 1. Certainly it is not one
on which to base an action to order the production of evidence, assuming as we
do herein without deciding, that such action will ever lie
Strictly, the question in the case at bar is not pre-emption, but 'primary
jurisdiction.' See Sovern, Section 301 and the Primary Jurisdiction of the
NLRB, 76 Harv.L.Rev. 529 (1963)
5
Appellant does not contend that it has no rights of review whatever, as, indeed,
it could not. See, e.g., N.L.R.B. v. Shirlington Supermarket, Inc., supra. Its
position is that its opportunities for review are inadequate. This is in a sense a
circuitous argument, for it may be said that a party normally has such rights
under a statute as the statute recognizes

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318 F.

SURPRENANT MFG. CO., Plaintiff, Appellant,

United States Court of Appeals First Circuit.

Matthew E. Murray, Chicago, Ill., with whom Richard Comerford,

This is a petition for a mandatory injunction directed against a Regional

Normally the question of whether a party committed an unfair labor practice is

Judgment will be entered affirming the judgment of the District Court.

United Steelworkers of America, AFL-CIO

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