Opinion
September 30, 1953.
November 9, 1953.
Labor law — Representation of employes by union — Investigation by Pennsylvania Labor Relations Board — Election — Injunction — Pleadings.
In a proceeding in equity by plaintiff-employer to enjoin the Pennsylvania Labor Relations Board from conducting an investigation relative to the representation of plaintiff's employes and from holding an election for this purpose, in which it appeared that plaintiff averred that the union did not claim to represent any of plaintiff's employes and that the Board was acting illegally and without authority; and in which it further appeared that the court below sustained preliminary objections on the grounds that (1) plaintiff's averments as to representation of the union were unjustifiable conclusions under the admitted facts and that a bona fide question of representation existed, (2) plaintiff had failed to exercise and exhaust its statutory right to seek judicial review of the action of the Board, (3) the jurisdiction of the Board had lawfully attached and it was performing no illegal act, and (4) the complaint did not set forth facts entitling plaintiff to equitable relief, it was Held that the decree of the court below should be affirmed.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 4, May T., 1954, from decree of Court of Common Pleas of Dauphin County, 1952, Commonwealth Docket, No. 158, Equity Docket, No. 2038, in case of Brass Rail Restaurant Company v. Pennsylvania Labor Relations Board, D. W. Smiley, Leo Abernathy and Malcom B. Petrikin. Decree affirmed.
Bill in equity.
The facts are stated in the opinion by RICHARDS, P.J., of the court below, as follows:
The plaintiff, by its bill of complaint, seeks to enjoin the defendants from conducting an investigation relative to the representation of its employes, and particularly from holding an election for said purpose. The only parties involved are: the plaintiff, Brass Rail Restaurant Company; the defendants, Pennsylvania Labor Relations Board and its members; and the Hotel and Restaurant Employees Union, Local No. 237. We shall hereafter refer to them as the employer, the Board and the union.
The case came before the court as a result of the following sequence of events: Complaint filed, rule granted thereon, preliminary objections to the bill, answer to the rule, petition of the union to intervene, refusal thereof, appearance of the union amicus curiae, and argument.
As to many of the factual matters involved in this case there is no dispute. On March 1, 1949, the employer and the union, averring that a question of representation of the employes existed, jointly petitioned the Board to investigate the controversy and certify the representative of the employes for collective bargaining purposes. The election was held on March 15, 1949. As a consequence thereof the Board, by nisi order dated March 25, 1949, certified the union as the representative of the employes. Exceptions having been filed thereto, the Board revoked its order of certification for improper conduct incident to the election. A new election was thereupon ordered. However, the union appealed to the Court of Common Pleas of Allegheny County, and later to the Supreme Court of Pennsylvania, which appeals prevented the various attempts to hold the second election. The litigation having been finally terminated, the Board again, on March 27, 1952, resumed its investigation. At this hearing the employer offered testimony that for two and one-half years the union had made no claim that it represented any of plaintiff's employes. Also the employer offered to prove by testimony of the business agent of the union, who was present, that the union did not claim to represent and in fact did not represent any of the plaintiff's employes. The agent refused to testify and the union offered no testimony. From this situation the employer concluded, as stated in the complaint, that the union admitted that it did not claim to represent any of the plaintiff's employes and that no question of representation presently exists. The bill further avers that for two and one-half years the union has not claimed to represent any of the employes, that it does not represent them; that no request for an investigation has been made since March 1, 1949; and that no question of representation presently exists; see paragraphs 6 to 11 inclusive, of the complaint. However, the Board ordered an election by secret ballot to be held on Aug. 26, 1952. The fourteenth paragraph of the complaint charges that the Board is acting illegally and without authority "in that no question concerning representation . . . presently exists and no valid subsisting request for investigation of such question is before the Board". Hence, it is averred that the Board has no jurisdiction in the premises, that it has no lawful authority to proceed with the investigation and election, and that any attempt to do so would cause irreparable harm and injury to the plaintiff. The complaint specifically alleges that the harm and injury would result from the invasion of the constitutional rights of the plaintiff and the violation of its right of privacy; from the impairment of existing harmonious employer-employe relationship; from illegal and unwarranted interference with the conduct of business by the plaintiff; from the unwarranted and illegal waste of public moneys; and from unascertained financial loss to the plaintiff. Wherefore it is prayed that the Board be restrained from pursuing the investigation and particularly from holding an election by secret ballot.
The answer to the rule sets forth in detail the numerous steps culminating in the present suit. Generally speaking, these steps are as narrated in the bill. While this is not an answer to the bill, it is an answer to the rule. The general tenor thereof is to deny that the Board is acting in an illegal or unwarranted manner, and to assert that it is merely carrying out the legislative mandate with reference to an existing and attached labor dispute dealing with employe representation. In Exhibit "E", attached to the answer, reference is made to the aforementioned hearing of May 27, 1952. It is there said that the examiner required counsel for the union to state whether a question of representation presently exists. The answer was: "Yes, there is, Mr. Examiner". Exhibit "G", also attached to the answer, inter alia, indicates that the employer had withdrawn its joinder in the petition of March 1, 1949, requesting an investigation as to representation of employes.
The preliminary objections are four in number. The first charges the plaintiff with failure to exercise and exhaust its right to judicial review as provided by the statute here involved. The second states that the Board, in conducting the investigation and holding the election in the present cases, is merely carrying out its duty in accordance with the legislative mandate, and is performing no unlawful act which the court of equity should enjoin. The third is a demurrer to the complaint which, it is asserted, contains no averment evidencing any right to equitable relief. The fourth raises the defense of lack of capacity to sue, and avers that the complaint fails to show that the plaintiff has any interest in the subject matter of the suit which would justify the intervention of a court of equity.
DiscussionThis case does not, in our opinion, involve the right of this court, in the exercise of its equitable powers, to restrain an administrative agency of the State from exercising or attempting to exercise powers not conferred upon it. That this court has such right has been repeatedly held by our Supreme Court. We shall be content to refer to two cases. In York Railways Co. v. Driscoll et al., 331 Pa. 193, at page 196, it is said: We have no doubt about the right, indeed the duty, of the Dauphin County Court, to entertain a bill to enjoin the Commission from acting in this case or in any other in which the powers and authority of the Commission to act are called in question. . ." This and other authorities are mentioned in Western Pennsylvania Hospital et al. v. Lichliter et al., 340 Pa. 382, where this court was sustained in a case involving the Pennsylvania Labor Relations Board. Indeed, the briefs of counsel in the present case do not question the right of this court to issue restraining orders on State administrative agencies in proper cases.
The real issue raised by the pleadings is: Does the bill set forth facts justifying this court in exercising its equitable powers?
That a real labor dispute existed at the inception of this case is undisputed. Both the employer and the union so represented to the Board in their joint petition. It is undisputed that the employer withdrew or attempted to withdraw its joinder in said petition; Ex. "G" of Answer. It is undisputed that the union did not withdraw therefrom. It is undisputed that at the hearing on May 27, 1952, the employer adduced testimony that the union had made no claim, for two and one-half years, that it represented any of the plaintiff's employes, and that a representative of the union refused to testify relative thereto. But at the same hearing counsel for the union said a question of representation presently existed; Exhibit "E" of Answer. Factually, therefore, the employer had withdrawn its request, but the union had not, but on the contrary persisted in its position that a question of representation existed. In view of this situation we cannot see how the averments in paragraphs 6 to 11 of the bill, to the effect that the union does not claim to represent any of the employes, and does not presently represent them, are averments of fact. They are rather deductions or conclusions, which we think are unjustifiable under the admitted facts. In addition, the litigation conducted by the union is a circumstance indicating that the union does claim to represent the employees and that a question of representation does exist.
Paragraph 6 of the bill of complaint avers that the refusal of the business agent of the union to take the witness stand constituted an admission by the union that it did not claim to represent any of the plaintiff's employes. Paragraph 7 states that the failure of the union to adduce testimony of its own contradicting that of the employer, constituted a like admission and also an admission that no question of representation presently exists. While it is not revealed, by the pleadings here involved, it is a well known fact that the Board does not require that evidence be made of record revealing the names of union members. This policy was adopted to protect employees against unfriendly employers. The Board does permit representatives of the union to exhibit to the examiner, for his personal inspection, membership cards showing union affiliation or applications for membership. However, these are not made a matter of record and at the conclusion of the hearings they are returned to the union. We mention this for the sole purpose of showing that the refusal of the business agent to testify, and the refusal of the union to adduce testimony, was consistent with the established practice and did not in fact constitute admissions.
It is our opinion, therefore, that the complaint and answer raise no dispute of fact; that a bona fide question of representation existed; that the jurisdiction of the defendant Board lawfully attached; and that the question still exists and is undisposed of. If this be so, the question we are obliged to resolve is one of law.
Section 7(c) of the Pennsylvania Labor Relations Act, 1937 P. L. 1168, as amended, 43 P.S. 211.7, provides: "Whenever a question arises concerning the representation of employes the board may, and, upon request of a labor organization (etc) . . . shall investigate such controversy . . . In any such investigation, the board . . . may utilize any suitable method to ascertain such representatives, except that if either party to the controversy so requests, a secret ballot of employes shall be taken within twenty days after such request is filed. . . ."
Our construction of this section is, that when the request for investigation is made by a labor organization or by a "fair" employer, the investigation is mandatory. When once undertaken, the board may in its discretion hold an election to determine representation, unless either party requests an election, in which event the election is mandatory. We believe that this construction is perfectly consistent with what was said by Mr. Justice ALLEN M. STEARNE, speaking for the Supreme Court, in Shafer Petition, 347 Pa. 130. This opinion does seem to suggest, however, that even in discretionary cases, an election is the most satisfactory and democratic method of ascertaining employe representation. Since there was no request for a secret ballot in the present case, or at least we cannot find such a request in the pleadings, the secret ballot was not mandatory. But, the Board was entirely within its rights, in the exercise of its discretion, in ordering an election to determine representation. That was merely utilizing a suitable method as provided by the section above quoted. Hence, in conducting the investigation and holding the election the Board was not acting illegally and no reason exists for this court to issue the restraining order prayed for.
It seems to be established by the federal decisions, that where an act affords full opportunity to appear and be heard, and a right of appeal exists, that administrative boards will not be restrained. Thus in United Employees Ass'n v. National Labor Relations Board, 96 F.2d 875, 876, it is stated: "Consequently until the Board makes a final order by which some person is aggrieved the proceedings of the Board may not be judicially reviewed or enjoined."
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, is one of the leading cases. There a union had charged the employer with unfair labor practices. The Board issued a complaint and fixed a hearing. The employer went into a Federal court with a bill in equity seeking to restrain the Board. The lower court granted an injunction but the case finally came before the Supreme Court on appeal. This court stated the contentions of the employer as follows: "The claim is that the provisions of the Act are not applicable to the Corporation's business . . . because the operations conducted . . . and the products manufactured are not sold, in interstate or foreign commerce; that, therefore, the Corporation's relations with its employees at the plant cannot burden or interfere with such commerce; that hearings would, at best, be futile; and that the holding of them would result in irreparable damage to the Corporation, not only by reason of their direct cost and the loss of time of its officials and employees, but also because the hearings would cause serious impairment of the good will and harmonious relations existing between the Corporation and its employees, and thus seriously impair the efficiency of its operations." (p. 47)
After pointing out that the Board had exclusive jurisdiction, that an adequate opportunity to appear and be heard was afforded, and that judicial review was available, the opinion states: ". . . no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. That rule has been repeatedly acted on in cases where, as here, the contention is made that the administrative body lacked power over the subject matter.".
"Obviously, the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage." (pp. 50, 51). (Italics ours)
Hence, the decrees for preliminary injunctions were reversed.
Section 9(c) of the Pennsylvania Labor Relations Act allows an appeal to the courts from an order certifying a collective bargaining agent of employes.
While the Rules of Civil Procedure have superseded the Rules of Equity Practice (12 P.S. 1536 pp), the rules permit preliminary objection raising questions of jurisdiction and permit a demurrer (12 P.S. 1017(b)). These are now available in equity (12 P.S. 1509(a)pp). As we have said above, the preliminary objections filed in this case charge the plaintiff with failure to exercise and exhaust its statutory right to seek judicial review; aver that the Board is performing no illegal act which should be restrained; and assert that the complaint does not set forth facts entitling the plaintiff to equitable relief. For the reasons heretofore given, we think these objections are well taken. We shall, therefore, sustain the preliminary objections in the respects noted.
Plaintiff appealed.
Gilbert J. Helwig, with him Nicholas Unkovic, Donald B. Heard, Carl F. Chronister and Reed, Smith, Shaw McClay, for appellant.
George L. Reed, Special Deputy Attorney General, with him M. Louise Rutherford, Deputy Attorney General and Robert E. Woodside, Attorney General, for appellees.
The decree entered in the Court of Common Pleas, Equity Docket, of Dauphin County is affirmed on the opinion of President Judge RICHARDS. Costs on the appellant.