79 F. Supp. 582 | S.D.N.Y. | 1948
The motion for reargument made by plaintiff calls to my attention the amendment of the complaint which raises the constitutional issue reserved in the opinion filed herein on June 14-, 1948.
The question squarely presented on this motion for reargument is as follows: In denying a hearing to the plaintiff before ordering the election for an exclusive bargaining representative, did the defendant act in violation of and beyond the powers granted in Section 9(c) of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 159(c), and, if his action was within the terms of that statute, did his action invade the constitutional rights of the plaintiff?
The plaintiff contends that the denial of a hearing constitutes a denial of due process, Const.Amend. 5, that the statute requires a hearing, and that the action of the defendant, therefore, violates both the statute and the Constitution.
First, we are confronted with the issue of jurisdiction. I am of the opinion that the Court is endowed with jurisdiction to answer both branches of the question. Certainly the question of violation of due process is one which this Court has power to decide, as is acknowledged in Fitzgerald v. Douds, 2 Cir., 1948,167 F.2d 714. The question of statutory construction I believe to be likewise within the competence of the District Court on an application for an injunction such as is pending in the instant case. Social Security Board v. Nierotko, 1946, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718, 162 A.L.R. 1445; Stark v. Wickard, 1944, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; Federal Communications Commission v. Pottsville Broadcasting Co., 1940, 309 U.S. 134, 145, 60 S.Ct. 437, 84 L.Ed. 656.
I think the defendant has correctly construed Section 9(c) to deny plaintiff a hearing in the instant case. Plaintiff admittedly has not complied with Section 9(f) of the Act. Section 9(f) forbids the National Labor Relations Board to conduct a 9(c) investigation with respect to any question raised by a labor organization which has not filed the reports prescribed by 9(f). Under 9(c) the investigation precedes the hearing. Its purpose, manifestly, is to screen out frivolous applications and those beyond the Board’s jurisdiction. The hearing is the device created for the ascertainment of the facts upon which administrative action is to be based. The investigation and the hearing are part of one fact finding enterprise. The Board, I believe, correctly read the statute to mean that no hearing need be had with respect to
It follows that plaintiff has, on the merits no lawful grievance, unless Section 9(f) is unconstitutional. That, however, has been determined against the plaintiff by the Supreme Court in National Maritime Union v. Herzog, 68 S.Ct. 1529. Indeed, that case goes a little further. While it does not involve, directly, the denial of a hearing under 9(c), its necessary implications are broad enough to encompass this as well. Had the Supreme Court construed 9(f) as insufficient to warrant denial of a place on the ballot to a non-complying union it would have reversed the decision below. And if 9(f) does justify exclusion from the ballot, I see no persuasive reason why it does not justify excluding it from the Board’s facilities at the very threshold of the proceedings.
The motion for reargument is granted and, upon such reargument, I adhere to the original decision denying plaintiff’s motion for a temporary injunction, and I modify that decision by granting defendant’s motion to dismiss the complaint.