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COUNCIL 19, AM. FED. OF S., & MUN. EMP. v. N.L.R.B.

September 4, 1968

COUNCIL 19, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, ETC., PLAINTIFF,
v.
NATIONAL LABOR RELATIONS BOARD ET AL., DEFENDANTS.



The opinion of the court was delivered by: Decker, District Judge.

MEMORANDUM OPINION

The plaintiff labor union is attempting to represent certain employees of Drexel Home, an Illinois nursing home; so also is the defendant labor union, Hospital Employees Labor Program. The complaint requests that the NLRB be compelled to assert jurisdiction over the two unions' dispute. In response, all defendants have moved to have the complaint dismissed for lack of subject matter jurisdiction, maintaining further that the complaint fails to state a cause of action. As explained below, I am denying these motions since the NLRB has apparently violated 29 U.S.C. § 152(2) (1965) by declining to exercise jurisdiction as required by Congress.

I. The Factual Background

On a motion to dismiss, the allegations of the complaint must be taken as true. The plaintiff, Council 19, maintains that it wrote the management of Drexel Home several times during the latter half of 1967, indicating that a majority of the nurses' aids, orderlies, dietary workers, and housekeeping workers wanted Council 19 to be its bargaining representative. As these communications were never answered, in December 1967 plaintiff filed with the Regional Director of the NLRB a petition for certification of Council 19 as the exclusive bargaining representative of the employees pursuant to Section 9(c) of the National Labor Relations Act (hereinafter "the Act"), 29 U.S.C. § 159(c) (1965).

Rather than holding a hearing, the Regional Director dismissed the petition, writing that it had been "carefully investigated and considered;" furthermore,

    "In University Nursing Home, Inc., 168 NLRB No. 53,
  the Board asserted jurisdiction over proprietary
  nursing homes and related facilities. Investigation
  discloses that Drexel Home, Inc., whether a nursing
  home or a related facility, is a non-proprietary
  institution, in that no part of the net earnings
  inures to the benefit of any private shareholder or
  individual. Therefore, I am dismissing the petition
  in this matter."

Pursuant to the Board's rules, the plaintiff then requested a review of the dismissal. Sustaining the Regional Director, the NLRB held:

    "The Board * * * has concluded that it will not
  effectuate the policies of the Act to assert
  jurisdiction over not-for-profit, or non-proprietary,
  institutions such as the Employer's and that such
  institutions, whether they be nursing homes or
  related facilities, do not fall within the purview of
  University Nursing Home, Inc., wherein the Board
  implicitly declined to assert jurisdiction over such
  non-proprietary institutions."

Plaintiff also filed an unfair labor practice charge with the Regional Director in January 1968, asserting that Drexel Home unlawfully encouraged and dealt with the defendant union after plaintiff had notified the Home that a majority of the employees wished to be represented by Council 19. Both the Regional Director and the General Counsel of the NLRB dismissed this charge with the same explanation that the Board declined to exercise jurisdiction over the dispute.

Requesting a multitude of remedies, the plaintiff charges primarily that the NLRB acted in an arbitrary, discriminatory fashion by refusing to assert jurisdiction over non-proprietary nursing homes and related facilities while simultaneously assuming jurisdiction over proprietary nursing homes.

II. District Court Jurisdiction

Ordinarily, judicial review of the Board's handling of representation petitions cannot be obtained in a district court. Review may only be had in the Courts of Appeals, and then only if an unfair labor practice charge is issued by the Board. 29 U.S.C. § 160(f) (1965). As stated by the Supreme Court:

    "It is to be noted that § 9 [§ 159], 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) [§ 160(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."

A.F. of L. v. Labor Board, 308 U.S. 401, 406, 60 S.Ct. 300, 302, 84 L.Ed. 347 (1940). Accord, Boire v. Greyhound Corp., 376 U.S. 473, 476-477, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). Since there is no Board order relating to an unfair labor practice charge in the present case, this general rule ...


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