1 - National Labor Relations Board

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XI Special and Miscellaneous Litigation Miscellaneous court litigation during fiscal 1969 included cases involving the Board's authority to decline to assert jurisdiction over a category of employers ; the scope of the obligation of the Board to investigate petitions for a representation election ; the rights of private parties to the issuance of subpenas during the investigative stage of a representation or unfair labor practice case; the power of a court to enforce a Board subpena at the request of a private party ; the issuance on the petition of the Board of injunctions against State court proceedings ; and the status of a collective-bargaining agreement and of a backpay order by the Board, in bankruptcy proceedings instituted against the employer involved. A. Judicial Review of Board Proceedings Petitions filed during the past year by parties to Board proceedings seeking to invoke the equity powers of a Federal district court to restrain or compel Board action at various stages of representation or unfair labor practice proceedings were opposed by the Board primarily on the ground that the court was without jurisdiction to grant the relief sought. The plaintiffs' efforts were usually directed to establishing that the Board action was within the doctrine of Leedom v. Kyne, 1 pursuant to which the court may intervene when the Board has violated an express mandate of the Act, or that of Fay v. Douds, 2 permitting intervention upon a showing that the Board action has deprived the plaintiff of a constitutional right. 1. Board Discretion in Exercise of Jurisdiction In one case, 3 the district court held that it had jurisdiction to hear and determine complaint allegations that the Board, by 1 358 U.S. 184 (1958). 2 172 F.2d 720 (C.A. 2, 1949). 3 Council 19, American Fed. of State, County, & Municipal Employees v. N L.R.B., 296 F.Supp. 1100 (D.C.III.) 171
172 Thirty-fourth Annual Report of the National Labor Relations Board declining to assert jurisdiction in a representation case and an unfair labor practice case involving a nonproprietary or nonprofit nursing home, had violated the constitutional rights of a union seeking to represent the employees of the nursing home. The court reasoned that the rationale of Fay v. Douds extends to all constitutional deprivations, whether or not they involve a deprivation of property rights. It concluded that the union's contention, that the distinction made by the Board between the impact upon commerce of proprietary nursing homes, over which it asserted jurisdiction,4 and that of nonprofit nursing homes, over which it declined to assert jurisdiction, was so arbitrary as to amount to a denial of due process, was not transparently frivolous. Since nonprofit nursing homes, unlike nonprofit hospitals, are not expressly excluded by section 2(2) of the Act, the court was of the view that the Board's refusal to assert jurisdiction over them as a category was contrary to a Supreme Court decision 5 holding that the Board may not renounce jurisdiction over an entire category of employers otherwise subject to the Act, if those employers exert a substantial impact on commerce. It therefore denied the Board's motion to dismiss the complaint.6 2. Investigation of Representation Petition Three cases during the year involved challenges to the Board's compliance with the provision of section 9 (c) (1) of the Act requiring it to conduct an investigation of a representation petition to determine if there is reasonable cause to believe that a question of representation affecting commerce exists. In all three cases, employers contended that the Board should have dismissed the petitions for want of a sufficient showing of interest on the part of the employees in an election. In each case, the court ruled in favor of the Board. In the Modern Plastics case,' the Sixth Circuit, reversing a district court and vacating and injunction issued by it prohibiting the Board from conducting a representation election, concluded that the Board's investigation satisfied the statutory requirement. The court pointed out that the investigation need only be sufficient to establish a reasonable cause to believe that a question of representation affecting commerce exists, and that the nature 4 University Nursing Home, 168 NLRB No. 53 (1967). 5 Office Employees v. N.L.R.B., 353 U.S. 313 (1957). 6 The Board subsequently set the case for hearing in order to develop a record to assist it in resolving the issues on remand. 7 Modern Plaattca Corp. v. McCulloch, 400 F.Zd 14.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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VI Unfair Labor Practices The Board
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100 Thirty-fourth Annual Report of
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VIII Enforcement Litigation Board o
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Participating unions AFL-CIO v. AFL
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Participating unions AFL-CIO v. AFL
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Table 20.—Injunction Litigation U
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1 - National Labor Relations Board

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