White to maintain this action and if the finding is against plaintiff Belle White it, per se, negatives any basis for action on the part of the other plaintiffs.
Conclusions of Law
The Court is without jurisdiction of the subject matter, in the absence of a constitutional question.
The United States Court of Appeals for the District of Columbia in the case of Millis et al. v. Inland Empire District Council, Lumber and Sawmill Workers Union, et al., 79 U.S.App.D.C. 214, 144 F.2d 539 held: 'The National Labor Relations Act authorizes judicial review of the Board's certification if, but only if, the Board finds unfair labor practices and makes its certification the basis of an order with respect to such practices. Sections 9(d), 10(c), 49 Stat. 453, 454, 29 U.S.C.A. §§ 159(d) 160(c). * * * We think the statutory review is exclusive. In American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (402), 412, 60 S. Ct. 300, 84 L. Ed. 347, the Supreme Court expressly reserved the question whether the Board's mere certification of collective bargaining representatives could be reviewed in a suit like the present one. But we think the question is now foreclosed by Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61, which held that the District Court had no power to review a similar certification of the National Mediation Board. Reilly v. Millis, 79 U.S.App.D.C. 171, 144 F.2d 259; Cf. Employers Group of Motor Freight Carriers, Inc., v. National War Labor Board, 79 U.S.App.D.C. 105, 143 F.2d 145.'
In the current case, there being no finding by the Board of unfair labor practice, which is the basis for the certification by the Board, there is no judicial authority in the District Court to review the proceedings in the absence of some showing of a constitutional question. Other cases supporting this conclusion include: Fitzgerald v. Douds, 2 Cir., 167 F.2d. 714; Madden v. Brotherhood and Union of Transit Emp., 4 Cir., 147 F.2d 439, 158 A.L.R. 1330; Reilly v. Millis, 79 App.D.C. 171, 144 F.2d 295, certiorari denied, 325 U.S. 879, 65 S. Ct. 1566, L. Ed. 1995; National Maritime Union of America v. Herzog, 334 U.S. 854, 68 S. Ct. 1529; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L. Ed. 61.
The action of the Regional Director of the Board in not holding a hearing after investigation of plaintiff Belle White's petition to intervene in the collective bargaining election does not violate any constitutional right of the plaintiffs.
Section 9(c) of the Act, T. 29 U.S.C.A. § 159(c) provides: 'Hearings on questions affecting commerce; rules and regulations.
'(c)(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board --
'(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative defined in subsection (a) of this section, or (ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or
'(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section; 'the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. * * * '
The Act provides, as quoted, first that 'the Board shall investigate such petition' and second that only 'if it has reasonable cause to believe that a question of representation affecting commerce exists' shall hold a hearing upon due notice. Here the Board did investigate the petitions and determined that there was no reasonable cause recognizable under the terms of the Act (the consideration of which was not precluded by Section 9(f) of the Act) to believe that there was a question of representation affecting commerce. As previously set forth, there is no showing that the action of the Board in reaching this conclusion was arbitrary but, on the contrary, in the earlier action in the Southern District of New York, the Court found that the Board's action was 'neither arbitrary nor capricious, but had ample and substantial evidence to support it.'
The holding of a hearing is not, per se, a condition precedent to guaranteeing the constitutionality of administrative action. The Courts have recognized and sustained Congressional authority to empower and authorize administrative agencies to exercise proper discretion in functional and operational matters, without mandatory requirements for hearing in all cases. The Supreme Court in Gray v. Powell, 314 U.S. 402, 62 S. Ct. 326, 333, 86 L. Ed. 301, points out that 'Where as here a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched. Certainly a finding on Congressional reference that an admittedly constitutional act is applicable to a particular situation does not require such further scrutiny. * * * It is not the province of a court to absorb the administrative functions to such an extent that the executive or legislative agencies become mere fact finding bodies deprived of the advantages of prompt and definite action.'
The Board in the current situation exercised in a proper manner authority conferred on it by the Congress and took thereupon 'definite action which did not contravene any constitutional right' of the plaintiffs.
Other cases supporting the conclusion that the constitutional guarantees of due process were not denied plaintiffs include: Switchmen's Union of North America v. National Mediation Board, supra; Buttfield v. Stranahan, 192 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146; United States v. Babcock, 250 U.S. 328, 39 S. Ct. 464, 63 L. Ed. 1011; National Maritime Union of America v. Herzog, 334 U.S. 854, 68 S. Ct. 1529.
The provisions of the Administrative procedure Act, 5 U.S.C.A. § 1001 et seq., do not afford the plaintiffs the right of judicial review under the circumstances of this case.
Section 1009 of the Administrative procedure Act under the heading 'Judicial review of agency action' provides for the right of judicial review 'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.'
The conclusions of law set out heretofore and particularly the decision of the United States Court of Appeals for the District of Columbia in the Millis case, supra, providing that 'statutory review is exclusive' clearly bring the current case within the exception stated.
In the light of the foregoing conclusions, the injunctive relief is denied and the complaint dismissed.
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