1. No showing having been made in this case that the National
Labor Relations Board, in certifying a bargaining representative of
employees pursuant to § 9(c) of the National Labor Relations Act,
acted unlawfully either by noncompliance with statutory
requirements or by denial of constitutional right, it is
inappropriate to determine whether the Act bars judicial review of
certification by an independent suit under § 24 of the Judicial
Code. Pp. 325 U. S.
2. The hearing afforded by the National Labor Relations Board in
this certification proceeding pursuant to § 9(c) was "appropriate"
within the meaning of that section, whether or not the proceedings
prior to the election ordered by the Board were adequate, since the
procedure upon rehearing after the election was adequate, and cured
any defects which may have existed at earlier stages of the
hearing. P. 325 U. S.
3.Rules of the National Labor Relations Board applicable to
proceedings under § 9(c) contemplate further hearings upon
reconsideration before the final act of certification. P.
325 U. S.
4. Due process does not require a hearing at the initial stage,
or at any particular point, or at more than one point, in an
administrative proceeding, but is satisfied if the requisite
hearing is held before the final order becomes effective. P.
325 U. S.
144 F.2d 539 affirmed.
Page 325 U. S. 698
Certiorari, 323 U.S. 703, to review the reversal of a judgment
refusing to dismiss for want of jurisdiction a suit against members
of the National Labor Relations Board to set aside a certification
of a collective bargaining representative.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
This controversy grows out of a contest between rival labor
unions over the right to act as collective bargaining
representative of employees of Potlatch Forest, Inc., a company
conducting logging, lumbering and milling operations in northern
Idaho. Petitioners seek relief from a certification order of the
National Labor Relations Board issued pursuant to § 9(c) of the
National Labor Relations Act, 49 Stat. 453, 29 U.S.C. § 159(c).
They are affiliated with the American Federation of Labor, the
certified union with the Congress of Industrial Organizations.
In American Federation of Labor v. Labor Board,
308 U. S. 401
this Court held that a certification under § 9(c) is not reviewable
by the special statutory procedure except incidentally to review of
orders restraining unfair labor practices under § 10. Decision was
expressly reserved whether, apart from such proceedings, review of
certification may be had by an independent suit brought pursuant to
§ 24 of the Judicial Code. 308 U.S. 308 U. S.
Petitioners now assert the right to such review. Prior to the
certification, they had represented the company's employees in
collective bargaining. They do not seek
Page 325 U. S. 699
review upon the merits of the certification. Their claim is that
they were denied the "appropriate hearing" which § 9(c) requires,
and that the effect was not only to deprive them of the statutory
right to hearing, but also to deny them due process of law contrary
to the Fifth Amendment's guaranty. Accordingly, they seek, in
substance, injunctive relief requiring respondents, members of the
Board, to vacate the order of certification, or, in the
alternative, a declaratory judgment that the order is invalid.
The District Court declined to dismiss the suit upon
respondents' motion alleging, among other grounds, that the court
was without jurisdiction of the subject matter. The Court of
Appeals reversed the judgment, one judge dissenting. 144 F.2d 539.
That court held that the statutory review is exclusive, with the
consequence that this suit cannot be maintained. The obvious
importance of the decision caused us to grant the petition for
certiorari. [Footnote 1
In American Federation of Labor v. Labor Board,
U.S. at 312 U. S. 412
the Court said, with reference to the question whether the Wagner
Act has excluded judicial review of
Page 325 U. S. 700
certification under § 9(c) by an independent suit brought under
§ 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."
Petitioners earnestly urge that this case presents the required
showing of unlawful action by the Board and resulting injury.
Unless they are right in this view, it would be inappropriate, as
was said in the American Federation of Labor
determine the question of reviewability. That question should not
be decided in the absence of some showing that the Board has acted
unlawfully. Upon the facts presented, we think no such showing has
been made, whether by way of departure from statutory requirements
or from those of due process of law.
On March 9, 1943, local unions affiliated with the CIO filed
petitions with the Board for certification as bargaining
representatives in three of the company's five logging and milling
plants or units. The plants were geographically separate. Some were
located as far from others as one hundred miles. But there was
common ownership, management, and control, with occasional shifting
of crews or men from one plant to another. [Footnote 2
] Although the petitions sought separate
local units, rather than a single company-wide unit, the Board
consolidated them for hearing before a trial examiner.
The hearing was held in May, 1943. The company, the CIO, and the
petitioners, who may be referred to collectively as the A.F. of L.,
] appeared and
Page 325 U. S. 701
No complaint is made concerning this hearing. It was apparently
a typical representation proceeding. The principal issue was the
character of the appropriate unit. The A.F. of L. urged that the
unit should be company-wide. The CIO advocated separate plant
The Board's decision was rendered July 13, 1943. 51 N.L.R.B.
288. It found that the A.F. of L. had organized the employees on a
company-wide basis, and on this basis had made a "master contract"
with the company, which, however, was supplemented by local
contracts relating to local matters in each of the five operations.
The Board concluded that the history of the bargaining relations
had demonstrated the appropriateness of a unit consisting of all
the logging and mill employees of the company. It therefore
dismissed the petitions of the CIO on the ground that the three
separate plant units sought were inappropriate.
Three days later, on July 16, the CIO filed a further petition,
this time asking to be certified as bargaining representative on a
company-wide basis, excluding clerical, supervisory, confidential,
and temporary employees, as well as employees of Potlatch Townsite
and Potlatch Mercantile Company. [Footnote 4
] The unit thus suggested conformed generally to
the one covered by the outstanding A.F. of L. contract.
On September 14, pursuant to CIO's motion, the Board served
notice upon the A.F. of L. to show cause why the decision of July
13 should not be vacated; the petitions in the earlier cases
reinstated and treated as amended by the new petition, and why the
Board should not reconsider and proceed to decision without further
hearing. The order also proposed to make part of the
Page 325 U. S. 702
record the statement of the Board's field examiner concerning
the CIO claims of authorization to represent employees. [Footnote 5
The A.F. of L. responded by filing a "Protest and Objection."
This alleged that the proposed order contemplated a decision
without the taking of evidence, to be based in part on an ex
survey of CIO claims of authorization by employees, that
employees of the two units not involved in the first proceeding
would have no opportunity to present evidence in their own behalf,
] and that the Board
had no authority to set aside the A.F. of L.'s existing contract by
The Board considered the objections, but found them
insufficient, rejected the protest, and, without further hearing
for the taking of evidence, considered the case upon the full
record, including that made in the original hearings. It again
approved a company-wide unit, following the historical lines of
organization, but excluded certain "fringe" classifications in
conformity with generally established policy. It further found that
a question concerning representation had arisen, and directed that
an election be held among the employees in the appropriate unit as
it had been determined. The Board's decision was rendered October
14, 1943. 52 N.L.R.B. 1377.
The election was held during the following November, and
resulted in a majority for the CIO. [Footnote 7
] The A.F. of L. filed "Objections and
Exceptions to Election," see
Page 325 U. S. 703
N.L.R.B. 255, 256, which renewed the claim of impropriety in
failing to hold another hearing and also challenged some exclusions
of employees from eligibility to take part in the election.
Accordingly, the A.F. of L. moved to vacate the decision and
direction of election, to vacate the election itself, to stay
certification, and to grant an appropriate hearing.
In January, 1944, the Board granted the A.F. of L.'s motion for
further hearing, but deferred ruling upon the request to vacate the
previous decision and the election. The hearing was held before a
trial examiner in February, 1944. Petitioners appeared and
participated fully, as did the company and the CIO. No complaint is
made concerning the scope of this hearing or the manner in which it
was conducted, except as to its timing in relation to the election.
Full opportunity was afforded petitioners to present objections and
evidence in support of them. From the absence of contrary
allegation, as well as the official report of the Board's decision,
it must be taken that all available objections to the Board's
procedure and action were made, considered, and determined
adversely to petitioners. [Footnote
The Board rendered its supplemental decision on March 4, 1944.
55 N.L.R.B. 255. This made supplemental findings of fact based upon
the entire record, including the record in the original
proceedings, the election report, petitioners' objections and
exceptions, the motion for reconsideration, and the evidence and
objections taken at the February hearing. After reviewing the
entire proceedings, the Board found that an "appropriate hearing"
had been given within the requirement of § 9(c), ruled upon each of
petitioners' objections, whether new or renewed, and concluded that
none of them furnished adequate reason for disturbing its previous
decision and direction for election. Accordingly, it denied the
motion to vacate that
Page 325 U. S. 704
decision and the election, and certified the CIO as exclusive
bargaining representative of the employees in the unit found
appropriate. A.F. of L.'s further motion for reconsideration was
denied, and thereafter the present suit was instituted. [Footnote 9
Upon this history, petitioners say they have been denied the
"appropriate hearing" § 9(c) requires. They insist that the
hearing, to be "appropriate," must precede the election.
Accordingly, the February, 1944, hearing is said to be inadequate
to satisfy the statutory requirement, as well as due process,
although no complaint is made concerning its adequacy in any
respect other than that it followed, rather than preceded, the
Petitioners urge also that the procedure was unwarranted for the
Board to vacate the decision of July, 1943, reopen or "reinstate"
the original proceedings, treat the CIO's petition for company-wide
certification as an amendment to its original petitions, and
thereafter to regard the record in the earlier proceedings as part
of the record in the later ones, together with the field examiner's
report concerning CIO employee representation.
Petitioners' exact contention concerning the reopening of the
original proceedings is not altogether clear. [Footnote 10
Page 325 U. S. 705
in any event, it clearly maintains that the Board's action, in
effect treating the later proceedings as a continuance of the
earlier ones, injected new issues upon which petitioners were
entitled to present additional evidence. Accordingly, it is claimed
that the original record, together with the additional matter
presented by the new petition, the motions which followed and the
proceeding to show cause, was not adequate to sustain the Board's
action in vacating its first decision and entering the direction
for election. Although petitioners urge that the pre-election
proceedings were defective, they emphasize most strongly that the
February hearing could not cure the failure to grant the further
hearing they demanded prior to the election.
The Board's position is, in effect, two-fold, that there was no
departure from the statute's requirements or those of due process
in the proceedings prior to the election; [Footnote 11
Page 325 U. S. 706
and, if they were defective in any respect, the departure was
cured by the full hearing granted at petitioners' insistence after
We think petitioners have misconceived the effects of § 9(c). It
is as follows:
"Whenever a question affecting commerce arises concerning the
representation of employees, the Board may investigate such
controversy and certify to the parties, in writing, the name or
names of the representatives that have been designated or selected.
In any such investigation,
the Board shall provide for an
appropriate hearing upon due notice,
either in conjunction
with a proceeding under section 10 or otherwise, and may
take a secret ballot of employees, or utilize any other suitable
method to ascertain such representatives."
The section is short. Its terms are broad and general. Its only
requirements concerning the hearing are three. It must be "upon due
notice," it must be "appropriate," and it is mandatory "in any such
investigation," but may be held in conjunction with a § 10 (unfair
practice) proceeding or otherwise.
Obviously, great latitude concerning procedural details is
contemplated. Requirements of formality and rigidity are altogether
lacking. The notice must be "due," the hearing "appropriate." These
requirements are related to the character of the proceeding, of
which the hearing is only a part. That proceeding is not technical.
It is an "investigation," essentially informal, not adversary. The
investigation is not required to take any particular form or
confined to the hearing. The hearing is mandatory "the Board
provide for" it. But the requirement is only that it
shall be provided "in any such investigation." The statute does not
purport to specify when
Page 325 U. S. 707
or at what stage of the investigation the hearing shall be had.
It may be conducted "in conjunction with a proceeding under section
10 or otherwise."
Moreover, nothing in the section purports to require a hearing
before an election. Nothing, in fact, requires an election. The
hearing "in any such investigation" is mandatory. But the election
is discretionary. The Board "may
take a secret ballot . .
. or utilize any other suitable method to ascertain such
An election, when held, is only a preliminary determination of
fact. Sen.Rep. No. 573, 74th Cong., 1st Sess., 5-6; H.R.Rep. No.
1147, 74th Cong., 1st Sess., 6-7. A direction of election is but an
intermediate step in the investigation, with certification as the
final and effective action. Labor Board v. International
Brotherhood of Electrical Workers, 308 U.
, 308 U. S.
-415. Nothing in § 9(c) requires the Board to utilize
the results of an election, or forbids it to disregard them and
utilize other suitable methods.
It hardly can be taken, in view of all these considerations,
that Congress intended a hearing which it made mandatory "in any
such investigation" always to precede an election which it made
discretionary for all and which, in the committee reports, it
specifically denominated as only a method for making a preliminary
determination of fact. That characterization was not beyond
congressional authority to make, and is wholly consistent with the
discretionary status the section gives that mode of
In view of the preliminary and factual function of an election,
we cannot agree with petitioners' view that only a hearing prior to
an election can be "appropriate" within the section's meaning. The
conclusive act of decision in the investigation is the
certification. Until it is taken, what precedes is preliminary and
tentative. The Board is free to hold an election or utilize other
Page 325 U. S. 708
Such other methods are often employed, and frequently are of an
informal character. Petitioners' view logically would require the
hearing to be held in advance of the use of any such other method
as much as when the method of election is used.
Congress was fully informed concerning the effects of mandatory
hearings preceding elections upon the process of certification.
For, under Public Resolution 44, which preceded § 9(c), the right
of judicial hearing was provided. The legislative reports cited
above show that this resulted in preventing a single certification
after nearly a year of the resolution's operation, and that one
purpose of adopting the different provisions of the Wagner Act was
to avoid these consequences. [Footnote 12
] In doing so, Congress accomplished its
purpose not only by denying the right of judicial review at that
stage, but also by conferring broad discretion upon the Board as to
the hearing which § 9(c) required before certification.
Petitioners' argument does not, in terms, undertake to rewrite
the statute. But the effect would be to make it read as if the
words "appropriate . . . in any such investigation" were replaced
with the words "hearing prior to any election." Neither the
language of the section nor the legislative history discloses an
intent to give the word "appropriate" such an effect. We think the
statutory purpose, rather, is to provide for a hearing in which
interested parties shall have full and adequate opportunity to
present their objections before the Board concludes its
investigation and makes its effective determination by the order of
In this case, that opportunity was afforded to petitioners. We
need not decide whether the hearing would have been adequate or
"appropriate," if the February, 1944, hearing had not been granted
and held. In the Board's view, petitioners, when afforded the
opportunity in the
Page 325 U. S. 709
proceedings to show cause held prior to the election, brought
forward nothing which required it to hold a further hearing for the
taking of evidence. With this, petitioners disagree. We need not
examine whether one or the other was correct in its view. For when
the objections were renewed after the election, and others also
were advanced, the Board gave full and adequate opportunity for
hearing, including the presentation of evidence, concerning them.
Petitioners do not contend that the hearing was a sham, or that the
Board did not consider their objections. They do not ask for review
upon the merits. Their only objection is that the hearing came too
late. That objection is not tenable in view of the statute's terms
It may be, as petitioners insist, that their interests were
harmfully affected by the outcome of the election, through loss of
prestige and in other ways. It does not follow that the injury is
attributable to any failure of the Board to afford a hearing which
was "appropriate" within the section's meaning. This being true,
and since petitioners do not now question the Board's rulings upon
the merits of the issues apart from those relating to the character
of the hearing, the injury must be regarded, for presently material
purposes, as an inevitable result of losing an election which was
Petitioners also assert that the Board departed from its own
rules in failing to accord them the hearing demanded prior to the
election. The regulations provide for direction of election to
follow the hearing before the trial examiner and, in the Board's
discretion, oral argument or further hearing as it may determine.
Rules and Regulations, Art. III, §§ 3, 8, 9. But the regulations
also contemplate further hearings for reconsideration before the
final act of certification, a procedure of which petitioners had
full advantage in this case. Whether or not the hearings provided
before the election were adequate to
Page 325 U. S. 710
comply with the regulations, the procedure upon rehearing
afterward was adequate to perform its intended function of
affording full opportunity for correcting any defect which may have
existed in the previous stages of hearing. [Footnote 13
We think no substantial question of due process is presented.
The requirements imposed by that guaranty are not technical, nor is
any particular form of procedure necessary. Morgan v. United
States, 298 U. S. 468
298 U. S.
"The demands of due process do not require a hearing at the
initial stage or at any particular point or at more than one point
in an administrative proceeding so long as the requisite hearing is
held before the final order becomes effective."
Opp. Cotton Mills v. Administrator, 312 U.
, 312 U. S.
-153; cf. Bowles v. Willingham, 321 U.
, 321 U. S.
] That requirement was fully met in this case.
The judgment is
MR. JUSTICE ROBERTS dissents.
The inferior courts have divided on the question. Compare
Association of Petroleum Workers v. Millis,
(N.D.Ohio); Sun Ship Employees Association, Inc. v. Labor
139 F.2d 744; International Brotherhood of
Electrical Workers v. Labor Board,
No. 21994 (N.D.Ohio);
American Broach Employees Association v. Labor Board,
4242 (E.D.Mich.); Spokane Aluminum Trades Council v. Labor
No. 349 (E.D.Wash.), unreported, with International
Brotherhood of Electrical Workers v. Labor Board,
41 F. Supp.
57; American Federation of Labor v. Madden, 33 F. Supp.
; Klein v. Herrick, 41 F.
; R. J. Reynolds Employees Association, Inc. v.
61 F. Supp. 280; Reilly v. Millis,
Supp. 172, aff'd,
144 F.2d 259; Brotherhood and Union
of Transit Employees of Baltimore v. Madden,
58 F. Supp. 366,
15 L.R.R. 519, rev'd,
147 F.2d 439; Inland Empire
District Council, Lumber and Sawmill Workers Union v. Graham,
53 F. Supp. 369.
Some special operations, e.g.,
Washington-Idaho-Montana Railroad, were conducted through wholly
The collective designation is appropriate both for convenience
and by reason of the facts, noted in the text, relating to A.F. of
L.'s dealings with the company through both a "master contract" and
local supplemental agreements.
The Board's report shows that employees of these operations had
been excluded from the units in the local contracts which the A.F.
of L. had with the separate operations of the company. 52 N.L.R.B.
1377, 1382, 1383.
The field examiner's report is introduced not as proof of the
extent of representation by the petitioning union, but to satisfy
the Board that there is a substantial membership among the
employees in the unit claimed to be appropriate sufficient to
justify the Board's investigation.
These were the plants located at Potlatch and Coeur d'Alene,
which were not included in the units sought by the CIO in its
The majority was of the ballots cast, but not of the total
number of employees eligible to vote.
55 N.L.R.B. 255.
The suit is the last in a series intended to prevent the holding
of the election or to avoid certification founded upon it. See
Inland Empire District Council v. Graham,
53 F. Supp. 369;
Local 2766, Lumber and Sawmill Workers Union v. Hanson,
Civil Action, No. 1553 (D.Idaho), unreported; Inland Empire
District Council v. Graham,
Civil Action No. 834 (W.D.Wash.),
unreported; Inland Empire District Council v. Labor Board,
Civil Action No. 22353 (D.D.C.), 62 F. Supp. 207.
The argument appears to regard them as irrevocably closed by the
decision of July 13, 1943, and that decision as endowed with
finality precluding the Board from later reopening the proceedings
and considering further the record made in them. It seems also to
suggest that the original petitions could not be amended at any
rate by treating the later petition as an amendment, after the
decision, notwithstanding an order vacating it.
The Board says that the two proceedings involved the same
substantial controversy -- namely, representation of the Potlatch
Company's employees -- and therefore the material issues were the
same except that, in the later proceedings, the CIO acceded to the
decision that a company-wide unit was appropriate, and sought
representation on that basis. Only a waste of time and money for
all concerned would have resulted, in the Board's view, from
retracing the ground covered in the earlier hearings. Accordingly,
it was entirely proper to treat the later ones as in substance a
continuation of them, and to proceed with the determination of the
other questions relating to representation which the narrow ground
of the first decision had made unnecessary to decide.
The Board also maintains that a further hearing was not required
in the absence of a showing by petitioners that new issues were
presented which required the taking of additional evidence. In its
view, the procedure to show cause afforded adequate opportunity for
petitioners to do this, and none of the issues they presented
furnished adequate basis either to require holding a further
hearing or for refusing to proceed with the election upon the basis
The Board and the petitioners are at odds, therefore, concerning
the materiality of the issues presented on the show cause procedure
and their sufficiency to require further hearing for the
presentation of evidence. But, in any event, the Board says that,
if it was wrong as to this in any respect, the error was cured by
the full hearing allowed in February, 1944.
Cf. note 9
We need not determine whether, in a situation where no hearing
whatever is afforded prior to an election, the failure would be
cured by allowing one afterward, whether as a matter of compliance
with the statute or with the regulations. That situation is not
presented. The proceedings in this case prior to the election
afforded opportunity for hearing. At most, the hearing was
defective, and the opportunity given by the post-election hearing
was effective to cure whatever defects may have existed, if
Cf. also Buttfield v. Stranahan, 192 U.
, 192 U. S.
-497; Labor Board v. Mackay Radio & Tel.
Co., 304 U. S. 333
304 U. S.
-351; Anniston Mfg. Co. v. Davis,
301 U. S. 337
301 U. S.
-343; United States v. Ju Toy, 198 U.
, 198 U. S. 263
Chicago B. & Q. R. Co. v. Chicago, 166 U.
, 166 U. S. 235
Phillips v. Commissioner, 283 U.
, 283 U. S.