Frank W. McCulloch Etc. v. Libbey-Owens-Ford Glass Co.
403 F.2d 916
D.C. Cir.
1969
Check Treatment

*1 al., etc., Frank McCULLOCH W. Appellants, CO.,

LIBBEY-OWENS-FORDGLASS

United States Court of Circuit. District of Columbia April 19,

Argued 1968.

Decided June Rehearing Petition for Denied July

Certiorari Denied Jan.

See Silberman, Atty.,

Mr. Laurence H. Na Board, tional Labor Relations the bar Supreme Hawaii, pro Court of hac vice, by court, special leave with whom Ordman, Messrs. Arnold General Coun sel, Manoli, Dominick Associate Gen Counsel, Mallet-Prevost, eral Marcel Counsel, Assistant General and Solomon Hirsh, Atty., I. National Labor Relations Board, brief, appellants. were for Guy Mr. Farmer and Mr. Arnold Toledo, Ohio, Bunge, the bar of vice, Supreme Ohio, pro hac special court, Mr. leave with whom McGuinn, Washington, C., John A. D. brief, appellee. was on the Ariz., Kitchel, Phoenix, Mr. Denison filed a brief as curiae. amicus Sherbondy, Pittsburgh, Mr. Donald J. Pa., In- filed a brief on behalf of PPG dustries, Inc., as amicus curiae. Edger- Judge, Bazelon, Before Chief Judge, TON, Senior Circuit Tamm, Judge. *2 917 Judge: narily appeal EDGERTON, it await an from Senior practice unfair labor order. 29 U.S.C. Labor National of the The members 159(d) may (1958). A District § Court (the appeal Board) from Board Relations enjoin action, especially Board enjoining them order Court a District proceedings, only highly under plants of at elections two from exceptional It cor circumstances.2 (the Libbey-Owens-Ford Glass Co. the “clear, speci rect a Board violation a stay partial a Company). We mandatory provision fic and of the Act.” re- permitted but elections which the Typographical Lawrence Union Mc issuing strained Culloch, 269, 271, U.S.App.D.C. 121 349 on them. order based 704, (1965). may enjoin F.2d It 706 plants are Company’s Ten threatened Board action which violates Eight litigation. of them in this volved 273, the Id. Constitution. 349 F.2d at single bar- a collective are members Congress expressly 708. Since restricted is two gaining the other each of and unit prevent delay review in order to bargaining three unit. All separate a in expedite certification and to the settle Glass represented United are units showing disputes,3 ment of labor the that Union). The (the Ceramic Workers and the Board has violated the Act or de a unit petitioned the Board Union prived plaintiff of constitutional combining three the order clarification strong must be and clear. hearing, Board the After a units. existing separate the three either that deprivation No such or violation ten-plant bargaining a combined units or appears in in this record. As we said appropriate ordered and unit would 130, Elec., Local Internat’l Union separate units the two elections McCulloch, Radio & Machine Workers v. employees. the views ascertain the 90, U.S.App.D.C. 120 345 F.2d 201, stay grant the partial of a After our (1965): 95 employees in the held and elections were * * * say possible are there join multi- the voted each of the two in an action taken infirmities plant unit. reason of an erroneous ab- in Company contends The authority arbitrary exertion its question the representation of a sence respect of the facts is before authority statutory to hold Board lacks jurisdiction to conclude that is bargaining units and elections in the District Court to intervene procedure. through unit clarification injunction. For such 102.60(b). ad- The 29 C.F.R. § exist, stepped Board must so have issue representation is no that there mits plainly beyond Act, the bounds of the claimis action is novel that its clearly it, or acted so defiance 9(b) requisite under § as to warrant the immediate interven- in-We Relations Act.1 * * National Labor equity tion of *. court for we opinion this claim timate no The Board’s action if at juris- lacked Court District find all Act, inconsistent with the cer- was it. to entertain diction tainly “plainly beyond” its bounds so representa “clearly or so review defiance” of it. We Judicial very limited. Ordi- therefore remand District proceedings is the case to the tion 159(b). row. McCulloch v. Sociedad National de 29 U.S.C. Marineros, 10, 16, 671, 372 U.S. 83 S.Ct. major 358 case is (1963); Grey 9 L.Ed.2d 547 Boire 180, 184, 210 L.Ed.2d 3 S.Ct. 79 Corp., 473, 481, hound 376 U.S. recog- first which 11 L.Ed.2d 849 excep- possibility in some nized the legislative history court For a the district review of the circumstances tional juris- equity general see Leedom v. 358 U.S. could exercise seq., cases, the Court 3 L.Ed.2d 210 In later diction. very (Brennan, J., dissenting). exception nar- is indicated operations spe- to dismiss with directions confine their complaint. cifically activity to those fields which are bounded the statutes which create remanded. Reversed and opera- their their authorize If additional or functions Judge (dissenting): TAMM, Circuit are proper discharge essential to a *3 Dis I the action would affirm agency’s an responsibilities, powers those this case. Under trict Court or functions should not be self created of Leedom sought Congress. should be from the 180, L.Ed.2d 210 en had District Court acting in excess pro contrary power to the cannot visions the act. “This lightly Congress in infer does that protection it con

tend against agency ex

fers action taken delegated powers.”

cess I supra, Harvey BARNETT,Appellant, in excess of believe the Board acted of § and in clear contravention 9(c) (1)1 conducting election an America, UNITED STATES where, expressly as the Board question this was no my It is belief involved. United States express statutory prerequisite an as District of Columbia Circuit. any must election there 12,1968. Argued Sept. question concerning representa exist a tion. Decided Oct. 1968. my

It is of this case view arbitrarily

Board has exercised a upon been neither conferred Congress by implied by any phra- nor is

seology in the The case contained act. tendency of ad-

illustrates the consistent

ministrative ex- assume powers ercise accretion necessary specifically im- them

plication. Undoubtedly in instances most grasping powers for non-authorized per-

is motivated a sincere desire to

form func- more effective and efficient I the courts believe however,

insist, administrative 159(c) hearing may 1. 29 U.S.C. Such be conducted provides: employee regional statute officer or of- petition fice, Whenever shall have been who shall not make recom- filed, regula- respect with accordance such mendations with thereto. If of of upon prescribed by the record tions as finds * ** hearing question such that such a Board shall representation exists, vestigate petition such and if it has it shall direct an reasonable that a cause believe election secret ballot and shall cer- question representation affecting tify (Emphasis the results thereof. provide supplied.) exists shall commerce appropriate hearing upon due notice.