The opinion of the court was delivered by: WALSH
This matter comes before the court on a complaint by the plaintiff, Lawrence Typographical Union, to enjoin the defendants, National Labor Relations Board, from conducting a representation election among the composing room and mailroom employees of the Kansas Color Press, Inc.
The plaintiff Union has for several years been the collective bargaining representative of the employees. The last agreement between the employer and the employees expired on May 31, 1961. Subsequent negotiations for a new contract were unsuccessful; and, on September 19, 1961, the members of the Union went on strike. The employer continued to operate by hiring new employees and the strike has continued through the present time.
On January 15, 1963, two individuals, apparently employees of the Kansas Color Press, filed petitions under § 9(c)(1)(A)(ii) of the Labor Management Relations Act of 1947, 61 Stat. 136 et seq., 29 U.S.C. § 141 et seq., to decertify the Union as the bargaining representative of the mailroom employees. A similar petition was filed on January 21, 1963 on behalf of the composing room employees.
Subsequently, on February 12, 1963, the Union charged that the employer had initiated and fostered the above mentioned decertification petitions, in violation of section 8(a)(1) and (2) of the Act (29 U.S.C. § 158(a)(1) and (2)). On March 26, 1963, the Regional Director of the Board refused to issue a complaint on the charge by the Union. This refusal was thereafter sustained by the General Counsel of the Board.
On May 7, 1963, a hearing officer conducted a hearing on the decertification petitions in order to determine whether a question of representation existed. At this hearing, the Union offered evidence to support the contention that the petitions had been initiated or fostered by the employer. The hearing officer did not allow the Union to introduce this evidence. This ruling was subsequently sustained by the Regional Director on the authority of prior Board decisions that 'unfair labor practice allegations are not properly litigable in a representation proceeding.' An election was ordered on the basis of the petitions and the hearing.
The Union appealed the ruling of the Regional Director and, on June 23, 1963, the Board denied the appeal on the ground that 'it raises no substantial issues warranting review'. This refusal is currently under review by the General Counsel of the Board.
The plaintiff now asks this court to declare the decision to conduct an election to be contrary to law and null and void and to enjoin the defendants from conducting an election.
The Board has moved to dismiss the complaint, or, in the alternative, for summary judgment.
At the outset, the question of the jurisdiction of this court was raised. It is, however, well settled that the District Court has jurisdiction of an original suit to vacate a determination of the Board made in excess of its powers. As stated by the Supreme Court in Leedom v. Kyne, 1958, 358 U.S. 184, 188, 79 S. Ct. 180, 183, 3 L. Ed. 2d 210,
'This case * * * involves 'unlawful action of the Board (which) has inflicted an injury on the (respondent).' Does the law, 'apart from the review provisions of the * * * Act,' afford a remedy? We think the answer surely must be yes.'
Further, the Court of Appeals for the District of Columbia Circuit recently stated that orders of the Board are judicially reviewable 'if the Board 'acts in excess of its delegated powers and contrary to a specific prohibition in the Act * * *". Miami Newspaper Printing Pressmen's Union Local 46 v. McCulloch, 116 U.S.App.D.C., , 322 F.2d 993, on page 996. No. 17,459, July 18, 1963.
The gravamen of the complaint here asserts that the Board has disobeyed the mandate of sec. 9(c)(1) of the Act. Thus, if the defendant has exceeded its statutory authority, and if the plaintiff has been injured as a result thereof, this court has jurisdiction to remedy the effect of the unlawful action.
Section 9(c)(1) of the Act, 29 U.S.C. § 159(c)(1) provides:
'* * * the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide ...