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BLANCO v. NLRB

July 29, 1986

JOSE A. BLANCO, Plaintiff
v.
THE NATIONAL LABOR RELATIONS BOARD, et al., Defendants



The opinion of the court was delivered by: GREEN

 Plaintiff brings this action for injunctive relief and mandamus pursuant to 28 U.S.C. §§ 1331, 1337, 1361. Plaintiff seeks an order by the Court directing the National Labor Relations Board ("NLRB" or "Board") to investigate his decertification petition which the Board held in abeyance pending the resolution of unfair labor practice charges. Defendants have moved to dismiss the complaint, and plaintiff has opposed defendants' motion by filing for summary judgment. For the reasons set forth below, the Court grants defendants' motion to dismiss.

 Statement of Facts1

 Plaintiff, Jose A. Blanco, is an employee of Marriott In-Flite Services, Inc. ("In-Flite") and is represented for purposes of collective bargaining by the International Association of Machinists and Aerospace Workers, AFL-CIO, Local 1894 ("union"). Plaintiff is not a member of the union.

 In-Flite is a division of Marriott Corporation and is engaged in airline catering at John F. Kennedy International Airport where plaintiff is employed. The union has acted as the exclusive bargaining representative of In-Flite employees since its certification by the NLRB in September 1978. Since April 1, 1984, the union and In-Flite have been parties to successive collective bargaining agreements, including agreements effective from April 1, 1984, to March 31, 1985, and from April 1, 1985, to March 31, 1988.

 On December 31, 1985, the union filed unfair labor practice charges against In-Flite with the NLRB. Board Case No. 29-CA-11602. The charges alleged, in essence, that In-Flite violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), by interrogating employees concerning their relationships with the union; by soliciting and encouraging employees to withdraw their membership in and support of the union; by promising employees job promotions and other benefits in their working conditions to induce the employees to refrain from becoming or remaining members of the union; by directing employees to remove their union insignia; and by threatening employees with discharge and other reprisals if they became or remained members of the union or supported it in any fashion. Exhibit D, attached to Complaint. Following an investigation of these allegations, the Board's Regional Director for Region 29 issued a complaint on the union's charges on February 28, 1985.

 In the meantime, on January 23, 1985, plaintiff submitted to Region 29 of the NLRB a petition seeking the decertification of the union. The petition was supported by more than 30 percent of the employees in plaintiff's bargaining unit as required by Board regulation. See 29 C.F.R. § 101.18.

 On March 6, 1985, NLRB Regional Director Samuel Kaynard informed plaintiff that his decertification petition was being dismissed. Mr. Kaynard indicated that he based his decision upon the belief that plaintiff was a supervisor within the meaning of section 2(11) of the Act. Plaintiff filed a request for review of the dismissal of his petition. On May 14, 1985, the Board remanded the case to the Regional Director for a hearing on plaintiff's supervisory status and ordered the petition reinstated. Pursuant to the Board's order a hearing on the supervisory issue was conducted from June 12 to June 20, 1985.

 On September 19, 1985, the Regional Director notified the parties by letter of his decision to invoke the "blocking charge rule" -- that is, to hold the decertification petition in abeyance in view of the pending unfair labor practice complaint. *fn2" In addition, the Regional Director indicated that the Board was considering the possibility of initiating contempt proceedings against In-Flite since the unfair labor practices alleged constituted conduct prohibited by an outstanding court decree. See NLRB v. Marriott In-Flite Services, 729 F.2d 1441, 113 LRRM 3528 (2d Cir. 1983), cert. denied, 464 U.S. 829, 114 LRRM 2568, 78 L. Ed. 2d 108, 104 S. Ct. 105 (1983).

 Plaintiff appealed the Regional Director's decision to the full Board on October 16, 1985, but on October 31, 1985, the Board affirmed. On November 27, 1985, the Board denied plaintiff's motion for reconsideration en banc. Plaintiff seeks a Court order instructing the Board to vacate its determination to hold the decertification petition in abeyance, to investigate the petition to determine whether a question of representation exists, and to conduct a decertification election if a question concerning representation is found to exist.

 Conclusions of Law

 The Court and both parties agree that, as a general rule, federal district courts are without jurisdiction to review Board orders emanating from representation proceedings. Hartz Mountain Corp. v. Dotson, 234 U.S. App. D.C. 209, 727 F.2d 1308, 1310 (D.C. Cir. 1984). This is because representation proceedings under the Act are not adversary in nature and are not considered to result in the issuance of a judicially reviewable final order. American Federation of Labor v. NLRB, 308 U.S. 401, 411, 60 S. Ct. 300, 84 L. Ed. 347 (1940). Such rulings are reviewable under sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e), (f), if and ...


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