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Rockford Redi-Mix Co. v. Zipp

UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT


decided: September 12, 1980.

ROCKFORD REDI-MIX CO., INC., AND ALL SIMILARLY SITUATED EMPLOYERS, PLAINTIFF-APPELLANT,
v.
GLEN ZIPP, JOHN IRVING, ETC., AND GENERAL CHAUFFEURS, HELPERS AND SALES DRIVERS UNION LOCAL #325, DEFENDANTS-APPELLEES

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 79-C-20087 -- Stanley J. Roszkowski, Judge .

Before Sprecher, Bauer, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Per Curiam

The first issue in this case is whether the district court had jurisdiction under 28 U.S.C. § 1337 to review a decision of the National Labor Relations Board denying certification to an expedited election conducted pursuant to § 8(b)(7)(C) of the National Labor Relations Act, 29 U.S.C. § 158(b)(7)(C), during the period in which challenges to the validity of the election were being resolved. A second issue is whether the district court had jurisdiction to compel the Board's General Counsel to issue an unfair labor practice complaint against a union that picketed for recognition after the holding of but prior to the certification of an expedited election. We affirm the district court's dismissal of the action for want of jurisdiction.

A decision of the Board in a certification proceeding is reviewable under § 1337 only if it exceeds the Board's jurisdiction and is contrary to a specific and unambiguous provision of the Act. Leedom v. Kyne, 358 U.S. 184, 188, 79 S. Ct. 180, 183, 3 L. Ed. 2d 210 (1958); see Boire v. Greyhound Corp., 376 U.S. 473, 481-82, 84 S. Ct. 894, 898-899, 11 L. Ed. 2d 849 (1964); Chicago Truck Drivers v. NLRB, 599 F.2d 816, 819 (7th Cir. 1979).*fn1 In this case, plaintiff Rockford Redi-Mix Co. contends that the Board's longstanding rule that an election becomes "valid" under § 8(b)(7)(B) of the Act when all challenges and objections to it have been resolved is contrary to the Act when applied to expedited elections conducted under § 8(b)(7)(C).*fn2 Specifically, the company argues as follows: 1) Congress intended by § 8(b)(7) (C) to prohibit recognition picketing for extended periods by providing for an expedited election process; 2) this intent would be thwarted if recognition picketing is permitted to continue beyond the date of an expedited election while the validity of the election is being resolved; 3) Congress therefore provided in § 8(b)(7)(C) that expedited elections must be certified "forthwith" in order to render them immediately "valid" within the meaning of § 8(b)(7)(B); 4) the board is therefore required to certify all expedited elections immediately, but may decertify or recertify them if post-election challenges or objections prove meritorious; and 5) this immediate certification means that unions that have lost expedited elections but have filed challenges or objections that may result in a reversal of that result or a determination that the election was not valid must, under § 8(b)(7)(B), cease all recognition picketing after the election is held and await, without picketing, the result of the challenges or objections.

Whatever the merits of this argument,*fn3 the short answer is that § 8(b)(7) (B) and § 8(b)(7)(C) do not "specifically" and "unambiguously" say what the company says they say. The former subsection speaks of valid elections; it does not, as the company contends, speak of two types of validity, one for expedited and one for nonexpedited elections. The latter subsection requires the Board to hold an election "forthwith"; it does not unambiguously state that the election shall be certified forthwith. Thus, while we express no opinion on the ultimate merit of the company's interpretation of the statute, we hold that that interpretation is not specifically or unambiguously dictated by the terms of the statute and is not, therefore, sufficient to give rise to § 1337 jurisdiction.*fn4

The company also contends that the General Counsel violated the Act when he failed to issue an unfair labor practice complaint against a union that picketed for recognition after the date of an expedited election. It is at least subject to doubt whether the General Counsel's decision not to issue an unfair labor practice complaint is ever reviewable in federal court.*fn5 Assuming that limited review may be available under the principles of Leedom v. Kyne, supra,*fn6 the company's success here can be no greater than it was on the former issue. No specific and unambiguous provision of the Act requires action in conformity with the company's immediate certification theory, and § 1337 jurisdiction is, accordingly, not present to consider the General Counsel's failure to treat as valid an election that had not yet been determined to be valid.

The company is not entitled to attorney's fees. 28 U.S.C. § 2412; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 265-68, 95 S. Ct. 1612, 1626-1627, 44 L. Ed. 2d 141 (1975).

The judgment of the district court is affirmed.

AFFIRMED.


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