1. A certification by the National Labor Relations Board, under
§ 9(c) of the National Labor Relations Act, that a particular
organization of workers is the collective bargaining representative
of the employees in a designated unit is not an order reviewable by
the Court of Appeal for the District of Columbia or a Circuit Court
of Appeals under § 10(f) of the Act. P.
308 U. S.
403.
2. The Act does not provide for court review of such
certifications except as incidental to review of an order
restraining an unfair labor practice under § 10. Pp.
308 U. S. 404,
308 U. S.
407.
The question whether an independent suit may be maintained in
the District Court to set aside such a certification upon the
ground that it is contrary to the statute and inflicts irreparable
injury is not involved in this ease. P.
308 U. S.
412.
3. The due process clause is not infringed by withholding from
federal courts jurisdiction which they never possessed. P.
308 U. S.
411.
70 App.D.C. 62, 103 F.2d 933, affirmed.
Certiorari,
post, p. 531, to review a judgment
dismissing for want of jurisdiction a petition to review the
certification by the National Labor Relations Board of an
organization of longshoremen as representative of workers.
MR. JUSTICE STONE delivered the opinion of the Court.
The question decisive of this case is whether a certification by
the National Labor Relations Board under
Page 308 U. S. 402
§ 9(c) of the Wagner Act, 49 Stat. 449, 453, 29 U.S.C. Supp. IV,
§§ 151-166, that a particular labor organization of longshore
workers is the collective bargaining representative of the
employees in a designated unit, composed of numerous employers of
longshore workers at Pacific Coast ports, is reviewable by the
Court of Appeals for the District of Columbia by the procedure set
up in § 10(f) of the Act.
Petitioners, International Longshoremen's Association, and its
affiliate, Pacific Coast District International Longshoremen's
Association No. 38, are labor organizations, both affiliated with
the petitioner, American Federation of Labor (AFL). In January,
1938, the International Longshoremen's & Warehousemen's Union,
District No. 1, a labor organization affiliated with the Congress
of Industrial Organization (CIO) petitioned the Board for an
investigation concerning the representation of longshoremen on the
Pacific Coast, and that the Board certify the name of the
appropriate representative for collective bargaining as provided in
§ 9(c) of the Wagner Act.
The Board directed an investigation with appropriate hearings,
and a consolidation of the proceeding for purposes of hearing with
two other proceedings already initiated by locals of the
Longshoremen's Union. Petitioners were made parties to the
consolidated proceedings and participated in the hearings, at the
conclusion of which the Board made its findings of fact and of law
and certified that the workers who do longshore work in the Pacific
Coast ports for the employers which are members of five designated
employer associations of Pacific Coast shipowners or of waterfront
employers, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of § 9(b) of the Act. It
also certified that the CIO affiliate, Longshoremen's Union,
Page 308 U. S. 403
District No. 1, is the exclusive bargaining representative of
all the workers in such unit within the meaning of the Act. In the
Matter of Shipowners' Association of the Pacific Coast, 7 N.L.R.B.
1002.
The effect of the certification, as petitioner alleges, is the
inclusion in single unit for bargaining purposes, of all of the
longshore employees of the members of the employer associations
doing business at the west coast ports of the United States, and to
designate the CIO affiliate as their bargaining representative, so
that, in the case of some particular employers, their workers who
are not organized or represented by the CIO affiliate have been
deprived of opportunity to secure bargaining representatives of
their own choice. Although the petitioners who are affiliated with
the AFL assert that they have in fact been selected as bargaining
representatives by a majority of the employees of their respective
employers, petitioners allege that they have nevertheless been
prevented from acting in that capacity by the Board's designation
of the CIO affiliate as the exclusive representative of such
employees.
The present suit was begun by petition to the Court of Appeals
of the District of Columbia in which the petitioners set forth, in
addition to the facts already detailed, that they were aggrieved by
the "decision and order of certification of the Board" in that the
certificate is contrary to fact and to law; that the Wagner Act
does not contemplate or authorize
"the designation by the Board of an employee unit constituting
all the employees of different employers in different and distant
geographical districts of the United States."
The petition prayed that the "order of certification" be set
aside insofar as it attempts to designate a single exclusive
bargaining representative for longshore employees of many employers
on the Pacific Coast and denies to a majority of the longshore
Page 308 U. S. 404
employees of a single employer the right to select one of the
petitioners as their exclusive bargaining representative.
The Court of Appeals dismissed the petition as not within the
jurisdiction to review orders of the Board conferred upon it by §
10 of the Wagner Act. 70 App.D.C. 62, 103 F.2d 933. We granted
certiorari October 9, 1939, 308 U.S. 531, because of the importance
of the question presented and to resolve an alleged conflict of the
decision below with that of the Court of Appeals for the Sixth
Circuit, in
International Brotherhood of Electrical Workers v.
Labor Board, 105 F.2d 598.
The Court of Appeals for the District of Columbia, like the
several circuit courts of appeals, is without the jurisdiction over
original suits conferred on district courts by § 24 of the Judicial
Code, as amended. 28 U.S.C. § 41. Such jurisdiction as it has to
review directly the action of administrative agencies is specially
conferred by legislation relating specifically to the
determinations of such agencies made subject to review, and
prescribing the manner and extent of the review. Here, the
provisions of the Wagner Act, § 10(f), which gives a right of
review to "any person aggrieved by a final order of the Board,"
determines the nature and scope of the review by the court of
appeals.
The single issue which we are now called on to decide is whether
the certification by the Board is an "order" which, by related
provisions of the statute, is made reviewable upon petition to the
Court of Appeals of the District or in an appropriate case to a
circuit court of appeals. The question is distinct from another
much argued at the Bar -- whether petitioners are precluded by the
provisions of the Wagner Act from maintaining an independent suit
in a district court to set aside the Board's action because
contrary to the statute and because
Page 308 U. S. 405
it inflicts on petitioners an actionable injury otherwise
irreparable.
By the provisions of the Wagner Act, the Board is given two
principal functions to perform. One, defined by § 9, which as
enacted is headed "Representatives And Elections," is the
certification, after appropriate investigation and hearing, of the
name or names of representatives, for collective bargaining, of an
appropriate unit of employees. The other, defined by § 10, which as
enacted is headed "Prevention of Unfair Labor Practices," is the
prevention by the Board's order after hearing and by a further
appropriate proceeding in court, of the unfair labor practices
enumerated in § 8. One of the outlawed practices is the refusal of
an employer to bargain with the representative of his employees. §
8(5).
Certification involves, under § 9(b), decision by the Board
whether "the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof," and the ascertainment by the Board under §
9(c) of the bargaining representative who, under § 9(a) must be
"designated or selected . . . by the majority of the employees in a
unit appropriate for such [bargaining] purposes." The Board is
authorized by § 9(c) "whenever a question affecting commerce arises
concerning the representation of employees" to investigate "such
controversy" and to certify the names of the appropriate bargaining
representatives. In conducting the investigation, it is required to
provide for appropriate hearing upon due notice "and may take a
secret ballot of employees, or utilize any other suitable method"
of ascertaining such representatives. By § 9(d), whenever an order
of the Board is made pursuant to § 10(c) directing any person to
cease an unfair labor practice and there is a petition for
enforcement or review of the order by a court, the
Page 308 U. S. 406
Board's "certification and the record of such investigation" is
to be included in the transcript of the entire record required to
be filed under § 10(e) or (f), and the decree of the court
enforcing, modifying or setting aside the order of the Board is to
be made and entered upon the pleadings, testimony, and proceedings
set forth in the transcript.
It is to be noted that § 9, which is complete in itself, makes
no provision, in terms, for review of a certification by the Board,
and authorizes no use of the certification or of the record in a
certification proceeding except in the single case where there is a
petition for enforcement or review of an order restraining an
unfair labor practice as authorized by § 10(c). In that event, the
record in the certification proceeding is included in the record
brought up on review of the Board's order restraining an unfair
labor practice. It then becomes a part of the record upon which the
decree of the reviewing court is to be based.
All other provisions for review of any action of the Board are
found in § 10 ,which, as its heading indicates, relates to the
prevention of unfair labor practices. Nowhere in this section is
there mention of investigations or certifications authorized and
defined by § 9. Section 10(a) authorizes the Board "to prevent any
person from engaging in any unfair labor practice (listed in
section 8(158)) affecting commerce." Section 10(b) prescribes the
procedure of the Board when any person is charged with engaging in
any unfair labor practice, and requires that the person so charged
shall be served with a complaint and notice of hearing by the
Board, with opportunity to file an answer and be heard. Section
10(c) directs the Board, if it is of opinion, as the result of the
proceedings before it, that any person named in the complaint has
engaged in an unfair labor practice, "to issue" "an order"
directing that person to cease the practice, and commanding
Page 308 U. S. 407
appropriate affirmative action. If the Board is of opinion that
there has been no unfair labor practice, it is directed "to issue"
"an order" dismissing the complaint. Section 10(e) authorizes a
petition to the appropriate federal court of appeals by the Board
for the enforcement of its order prohibiting an unfair labor
practice.
This brings us to the provisions for review of action taken by
the Board in § 10(f) which is controlling in the present
proceeding. That subdivision [
Footnote 1] appears as an integral part of § 10. All the
other subdivisions relate exclusively to proceedings for the
prevention of unfair labor practices. Both they and subdivision (f)
are silent as to the proceedings or certifications authorized by §
9. Section 10(f), providing for review, speaks only of a "final
order of the Board." It gives a right to review to persons
aggrieved by a final order upon petition to a court of appeals in
the circuit
"wherein the unfair labor practice
Page 308 U. S. 408
in question was alleged to have been engaged in or wherein such
person resides or transacts business, or in the Court of Appeals of
the District of Columbia."
It directs that the order shall be reviewed on the entire record
before the Board, "including the pleading and testimony" upon which
the order complained of was entered, although no complaint or other
pleading is mentioned by § 9 relating to representation proceedings
and certificates. Subdivision (f) provides that, upon petition for
review by an aggrieved person, "the court shall proceed in the same
manner as in the case of an application by the Board under
subdivision (e)," and it is given the same jurisdiction
"to grant to the Board such temporary relief or restraining
order as it deems just and proper, and in like manner to make and
enter a decree enforcing, modifying, and enforcing as so modified,
or setting aside in whole or in part the order of the Board."
See Ford Motor Co. v. Labor Board, 305 U.
S. 364,
305 U. S.
369.
In analyzing the provisions of the statute in order to ascertain
its true meaning, we attribute little importance to the fact that
the certification does not itself command action. Administrative
determinations which are not commands may for all practical
purposes determine rights as effectively as the judgment of a
court, and may be reexamined by courts under particular statutes
providing for the review of "orders."
See Rochester Telephone
Corp. v. United States, 307 U. S. 125,
307 U. S. 130,
307 U. S. 135
et seq.; Federal Power Commission v. Pacific Power & Light
Co., 307 U. S. 156. We
must look, rather, to the language of the statute, read in the
light of its purpose and its legislative history, to ascertain
whether the "order" for which the review in court is provided is
contrasted with forms of administrative action differently
described as a purposeful means of excluding them from the review
provisions.
Page 308 U. S. 409
Here, it is evident that the entire structure of the Act
emphasizes, for purposes of review, the distinction between an
"order" of the Board restraining an unfair labor practice and a
certification in representation proceedings. The one authorized by
§ 10 may be reviewed by the court on petition of the Board for
enforcement of the order, or of a person aggrieved, in conformity
to the procedure laid down in § 10, which says nothing of
certifications. The other, authorized by § 9, is nowhere spoken of
as an order, and no procedure is prescribed for its review apart
from an order prohibiting an unfair labor practice. The exclusion
of representation proceedings from the review secured by the
provisions of § 10(f) is emphasized by the clauses of § 9(d) which
provide for certification by the Board of a record of a
representation proceeding only in the case when there is a petition
for review of an order of the Board restraining an unfair labor
practice. The statute on its face thus indicates a purpose to limit
the review afforded by § 10 to orders of the Board prohibiting
unfair labor practices, a purpose and a construction which its
legislative history confirms.
Upon the introduction of the bill which was enacted as the
Wagner Act, Congress had pointedly brought to its attention the
experience under Public Resolution 44 of June 19, 1934, 48 Stat.
1183. That resolution authorized the National Labor Relations
Board, predecessor of respondent, "to order and conduct an
election" by employees of any employer to determine who were their
representatives for bargaining purposes. Section 2 provided that
any order of the Board should be reviewed in the same manner as
orders of the Federal Trade Commission under the Federal Trade
Commission Act. The reports of the Congressional committees upon
the bill which became the Wagner Act refer to the long delays in
the procedure prescribed by Resolution 44, resulting from
applications to the federal appellate courts for review of orders
for elections. [
Footnote 2]
Page 308 U. S. 410
And, in considering the provisions of § 9(d), the committee
reports were emphatic in their declaration that the provisions of
the bill for court review did not extend to proceedings under § 9
except as incidental to review of an order restraining an unfair
labor practice under § 10. [
Footnote 3]
Page 308 U. S. 411
The bill was similarly explained on the Senate floor by the
committee chairman who declared:
"It provides for review in the courts only after the election
has been held and the Board has ordered the employer to do
something predicated upon the results of an election."
79 Cong.Rec. 7658. The conclusion is unavoidable that Congress,
as the result of a deliberate choice of conflicting policies, has
excluded representation certifications of the Board from the review
by federal appellate courts authorized by the Wagner Act except in
the circumstances specified in § 9(d).
An argument, much pressed upon us, is, in effect, that Congress
was mistaken in its judgment that the hearing before the Board in
proceedings under § 9(c), with review only when an order is made
under § 10(c) directing the employer to do something "provides an
appropriate safeguard and opportunity to be heard," House Rep. p.
23, and that "this provides a complete guarantee against arbitrary
action by the Board," Sen.Rep. p. 14. It seems to be thought that
this failure to provide for a court review is productive of
peculiar hardships, which were perhaps not foreseen in cases where
the interests of rival unions are affected. [
Footnote 4] But these are arguments to be
addressed to
Page 308 U. S. 412
Congress and not the courts. The argument too that Congress has
infringed due process by withholding from federal appellate courts
a jurisdiction which they never possessed is similarly without
force.
Shannahan v. United States, 303 U.
S. 596;
see In re National Labor Relations
Board, 304 U. S. 486,
304 U. S.
495.
The Board argues that the provisions of the Wagner Act,
particularly § 9(d), have foreclosed review of its challenged
action by independent suit in the district court, such as was
allowed under other acts providing for a limited court review in
Shields v. Utah Idaho Central Railroad Co., 305 U.
S. 177, and in
Utah Fuel Co. v. National Bituminous
Coal Comm'n, 306 U. S. 56;
cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S.
41. But that question is not presented for decision by
the record before us. Its answer involves a determination whether
the Wagner Act, insofar as it has given legally enforceable rights,
has deprived the district courts of some portion of their original
jurisdiction conferred by § 24 of the Judicial Code. It can be
appropriately answered only upon a showing in such a suit that
unlawful action of the Board has inflicted an injury on the
petitioners for which the law, apart from the review provisions of
the Wagner Act, affords a remedy. This question can be properly and
adequately considered only when it is brought to us for review upon
a suitable record.
Affirmed.
[
Footnote 1]
"(f) Any person aggrieved by a final order of the Board granting
or denying in whole or in part the relief sought may obtain a
review of such order in any circuit court of appeals of the United
States in the circuit wherein the unfair labor practice in question
was alleged to have been engaged in or wherein such person resides
or transacts business, or in the Court of Appeals of the District
of Columbia, by filing in such court a written petition praying
that the order of the Board be modified or set aside. A copy of
such petition shall be forthwith served upon the Board, and
thereupon the aggrieved party shall file in the court a transcript
of the entire record in the proceeding, certified by the Board,
including the pleading and testimony upon which the order
complained of was entered and the findings and order of the Board.
Upon such filing, the court shall proceed in the same manner as in
the case of an application by the Board under subsection (e), and
shall have the same exclusive jurisdiction to grant to the Board
such temporary relief or restraining order as it deems just and
proper, and in like manner to make and enter a decree enforcing,
modifying, and enforcing as so modified, or setting aside in whole
or in part the order of the Board, and the findings of the Board as
to the facts, if supported by evidence, shall, in like manner be
conclusive."
[
Footnote 2]
"WEAKNESSES IN EXISTING LAW."
"
* * * *"
"(6)
Obstacles to elections. -- Under Public Resolution
44, any attempt by the Government to conduct an election of
representatives may be contested
ab initio in the courts,
although such election is in reality merely a preliminary
determination of fact. This means that the Government can be
delayed indefinitely before it takes the first step toward
industrial peace. After almost a year, not a single case in which a
company has chosen to contest an election order of the Board has
reached decision in any circuit court of appeals."
Sen.Rep. No. 573, Committee on Education and Labor, 74th Cong.,
1st Sess., pp. 5, 6.
After referring to the procedure for review under Public
Resolution 44, the House Committee declared:
"The weakness of this procedure is that, under the provision for
review of election orders, employers have a means of holding up the
election for months by an application to the circuit court of
appeals. . . . At the present time, 10 cases for review of the
Board's election orders are pending in circuit courts of appeals.
Only three have been argued, and none has been decided."
House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess.,
p. 6.
[
Footnote 3]
"There is no more reason for court review prior to an election
than for court review prior to a hearing. But, if subsequently the
Board makes an order predicated upon the election, such as an order
to bargain collectively with elected representatives, then the
entire election procedure becomes part of the record upon which the
order of the Board is based, and is fully reviewable by an
aggrieved party in the Federal courts in the manner provided in
section 10. And this review would include within its scope the
action of the Board in determining the appropriate unit for
purposes of the election. This provides a complete guarantee
against arbitrary action by the Board."
Sen.Rep. 573, Committee on Education and Labor, 74th Cong., 1st
Sess., p. 14.
"As previously stated in this report, the efficacy of Public
Resolution 44 has been substantially impaired by the provision for
court review of election orders prior to the holding of the
election. Section 9(d) of the bill makes clear that there is to be
no court review prior to the holding of the election, and provides
an exclusive, complete, and adequate remedy whenever an order of
the Board made pursuant to section 10(c) is based in whole or in
part upon facts certified following an election or other
investigation pursuant to section 9(c). The hearing required to be
held in any such investigation provides an appropriate safeguard
and opportunity to be heard. Since the certification and the record
of the investigation are required to be included in the transcript
of the entire record filed pursuant to section 10(e) or (f), the
Board's actions and determinations of fact and law in regard
thereto will be subject to the same court review as is provided for
its other determinations under sections 10(b) and 10(c)."
House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess.,
p. 23.
[
Footnote 4]
Congress apparently recognized that representation proceedings
under § 9(c) might involve rival unions. The House Committee
said:
"Section 9(c) makes provisions for elections to be conducted by
the Board or its agents or agencies to ascertain the
representatives of employees. The question will ordinarily arise as
between two or more
bona fide organizations competing to
represent the employees, but the authority granted here is broad
enough to take in the not infrequent case where only one such
organized group is pressing for recognition, and its claim of
representation is challenged."
H.Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess., p.
22.