Motion to Dismiss No. 82-1419 or, in the Alternative, Transfer Petition to the Ninth Circuit.
Motion to Dismiss No. 82-1420 or, in the Alternative, Transfer Petition to the Tenth Circuit.
Opinion filed PER CURIAM.
Concurring Statement filed by Circuit Judge WILKEY.
The issues presented here on motion constitute an attempt by two losers of a race to the courthouse to invalidate the results of the race on the grounds that they didn't know the race was on and that the winner wasn't entitled to enter the race. The respective employer intervenors in these two cases, Colgate-Palmolive Company ("Colgate")
We have previously determined that the Board's notification procedures provide all affected parties with an equal opportunity to gain adequate knowledge of a Board decision. International Union of Electrical, Radio and Machine Workers v. NLRB, 610 F.2d 956 (D.C.Cir.1979). We further conclude today that this court had no obligation to notify intervenors of the filing by the union of the petitions for review, and that the failure of the union to comply with the applicable service requirements is neither jurisdictional nor prejudicial in this case. Finally, it is clear that the union was truly aggrieved by the Board's actions and that the convenience of the parties in the interest of justice favors venue in this circuit.
The union's choice of this forum is therefore entitled to respect. The motions to transfer are denied. In addition, because aggrievement sufficient to withstand transfer presupposes aggrievement sufficient to confer standing, the motions to dismiss are also denied.
The petitioning union locals have been attempting since 1977 to obtain from Colgate and Borden Chemical certain information claimed relevant to employee health and safety. Although the requests for information varied between the two companies, both Colgate and Borden Chemical were asked to reveal the names of all chemicals and raw materials used and produced in their respective Kansas City, Kansas and Fremont, California plants.
By separate decisions in 1979 Borden Chemical and Colgate were both found by two regional NLRB administrative law judges (ALJ) to have engaged in unfair labor practices in violation of Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA or "Act"), 29 U.S.C. § 158(a)(5) and (1) (1976). Borden Chemical was ordered to furnish the complete requested list of raw materials and chemicals stored, handled and processed in its Fremont, California plant. Colgate was ordered to furnish most of the information requested of it, but the furnishing of the alleged proprietary or trade secret information
Because they presented substantially identical legal issues, the two proceedings were consolidated for oral argument before the Board.
By separate decisions and orders issued April 9, 1982, the Board sustained the unfair labor practice charges against Colgate and Borden Chemical. The Board determined that "because health and safety are terms and conditions of employment, data regarding such matters is relevant to the Union's representational functions."
The Board issued the decisions on Friday, April 9, 1982 by simultaneously mailing copies to all interested parties. On the following Monday, April 12, 1982, the union received its copies of the decisions, and filed corresponding petitions for review in this court. Borden Chemical also received its copy of the decision in its case on Monday, and Colgate received its copy on Tuesday, April 13, 1982. Some two weeks later, Colgate and Borden Chemical filed petitions for review in the Tenth and Ninth Circuits,
The union opposes both dismissal and transfer, and the NLRB opposes both motions to the extent that they are grounded on allegations that the petitions were premature or invalid due to any Board impropriety in its decision notification procedures. The NLRB concedes that the union has standing to appeal as a "person aggrieved" under 29 U.S.C. § 160(f).
Colgate and Borden Chemical have both styled their papers as motions to dismiss for lack of standing, or, in the alternative, for transfer to the Tenth and Ninth Circuits, respectively. In the instant case, once the procedural challenges to the union's filing are resolved, the standing and transfer inquiries are much the same, in that both involve determining the level of aggrievement or injury suffered by petitioners. We hold that petitioners here sustained sufficient injury to withstand both dismissal and transfer.
A. Motions to Dismiss
Section 10(f) of the NLRA provides in relevant part:
29 U.S.C. § 160(f) (1976). "[S]tanding to appeal an administrative order as a `person aggrieved,' 29 U.S.C. § 160(f), arises if there is an adverse effect in fact, and does not ... require an injury cognizable at law or equity." Retail Clerks Union 1059 v. NLRB, 348 F.2d 369, 370 (D.C.Cir.1965) (emphasis added). "As long as a charging party ...[
Both Colgate and Borden Chemical argue that the union is not a "person aggrieved" within the meaning of section 10(f), and that it therefore has no standing to seek review in any court of the Board's orders. Colgate argues that of the information requested of it, 99.5% was ordered released to the union by the Board, and the remaining .5% of proprietary information, although not ordered released, was ordered to be a mandatory subject of collective bargaining. These statistics, Colgate contends, indicate "beyond a shadow of a doubt" that the union substantially prevailed, if not completely prevailed, on all of the issues raised before the Board. Borden Chemical raises the additional point that the mandatory bargaining requirement imposed on the alleged proprietary information was the result of a specific finding by the Board that the information was relevant to the health and safety of employees, and thus was information to which the employee bargaining representatives were entitled, even though that entitlement was subject to being outweighed or conditioned by legitimate employer interests. Thus, Borden argues, the union "won" on that issue too, and cannot be said to be aggrieved by any part of the Board's orders.
The union contends that it is clearly aggrieved by the NLRB's decisions, in that it was not granted the relief requested, namely, an order compelling disclosure of all the disputed information. The union argued before the Board and continues to argue here that the requested proprietary information is needed to enable it to identify all potentially hazardous substances used in Colgate's and Borden Chemical's operations. The union claims that despite the Board's acknowledgement of this need and the companies' "manifest recalcitrance" in past negotiations, the Board has now sanctioned further delay when any one of the substances whose identity is being withheld could presently be threatening the health of company employees. Thus, the union argues that the Board's refusal to order disclosure of all the requested information constitutes aggrievement sufficient to foreclose dismissal or transfer.
We agree that the union has standing under section 10(f)'s broad standard of aggrievement. Even if the mandatory bargaining requirement is seen as a partial victory with regard to the disclosure of the alleged proprietary information, the fact of the matter is that the union was denied the relief it sought — a Board order to release the information directly. See Truck Drivers & Helpers Local No. 728 v. NLRB, 386 F.2d 643, 644 (D.C.Cir.1967) (per curiam) (denial of additional relief in the form of an injunction renders a person aggrieved within the meaning of section 10(f)).
Despite the Board's determination that the union was entitled to the alleged proprietary information, in that the information was relevant to the exercise of the union's representational responsibilities, the Board's decision denies the union access to the information pending either negotiated conditions or a future Board order should negotiation prove fruitless. At the least, the union has standing to challenge (1) the relegation of the contested information to mandatory bargaining which by itself does not insure its release;
The general duty to bargain collectively includes the duty to provide "relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative" in the negotiating process. Detroit Edison, 440 U.S. at 303, 99 S.Ct. at 1125; see also International Union of Electrical, Radio and Machine Workers v. NLRB, 648 F.2d 18, 25 (D.C.Cir.1980). Both the union and the Board itself contend that the Board has the power to perform the Detroit Edison balancing of competing union and employer interests prior to collective bargaining and order the release of relevant information either unconditionally or with certain prescribed conditions. See Detroit Edison, 440 U.S. at 315-319, 99 S.Ct. at 1131-1133; see also NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). The Board did not do so, and therein lies the rub. Whether the Board has the power and whether and how it should have exercised it, as opposed to "remanding" the information to the bargaining table, are questions on the merits, the answers to which do not negate standing to raise the questions.
Furthermore, Colgate and Borden Chemical have resisted disclosure of the requested information for close to five years now, and the Board's order with regard to the alleged proprietary information allows the employers to continue withholding the data through years more of bargaining and litigation. If the withheld information does indeed concern potential health and safety hazards to employees, the delay itself is additional aggrievement to the union.
Finally, the Board itself concedes that the union has standing as a "person aggrieved" under 29 U.S.C. § 160(f), precisely because it did not grant the relief sought.
In sum, the union has standing to challenge the Board's action.
B. Motions to Transfer
Section 2112(a) of title 28 provides in relevant part:
28 U.S.C. § 2112(a) (1976). Colgate and Borden Chemical argue that the union's petitions should be transferred to the Tenth and Ninth Circuits under section 2112(a). Colgate admits that the union's petition here was filed two weeks before the company's petition in the Tenth Circuit for review of the same order, and Borden similarly admits that it filed in the Ninth Circuit some two weeks after the union's corresponding petition here. Both companies argue, however, that the union's prior filings in this court are premature and ineffective due to improper NLRB notice procedures and the union's failure to comply with applicable service requirements, thus rendering their petitions in the Ninth and Tenth Circuits the petitions of de jure first filing. In the alternative, the companies invoke a recognized exception to venue in the court of first filing where the first-filing petitioner is not "truly aggrieved." Finally, Colgate and Borden Chemical contend that even if this court is the valid court of first
1. NLRB Notice Procedures
Colgate contends that because it did not receive notice of the Board's Friday, April 9, 1982 decision until Tuesday, April 13, 1982, the day after the union's petition was filed in this court, it lost the race to the courthouse before it even knew the race was on. Colgate argues that it was thus unfairly prejudiced
The NLRB has filed a detailed affidavit describing the Board's notification practice and procedure, which requires simultaneous first class mailing to all interested parties and their counsel on the day the decision is issued. An additional copy is sent to counsel by certified mail. The affidavit states that a copy of the April 9, 1982 Board decisions was sent by both certified and first class mail to counsel of record for each party to the agency proceedings. Counsel of record for Colgate, located in Kansas City, signed the certified mail receipt on Tuesday, April 13, 1982. It is unknown when or if the first class mail copy reached him. Counsel of record for the union is located in Washington, D.C. and received his copy on Monday, April 12, 1982. The April 9 decision was rendered two years and three months after oral argument, and there is no indication in the parties' papers that any party had advance notice of the date of decision.
In International Union of Electrical, Radio and Machine Workers v. NLRB, 610 F.2d 956 (D.C.Cir.1979), we expressly validated the NLRB's simultaneous mailing notification procedure and squarely rejected the proposition that one's address or the vagaries of postal service can render petitions for review premature for purposes of section 2112(a)'s first filing rule. We held that justice requires only "that the notification procedure utilized be fairly designed to afford affected parties an equal opportunity to gain adequate knowledge of the agency action." Id. at 963 (original emphasis). With specific regard to the NLRB mailing procedure the court found that
Id. at 963-964. Service by mail was "not calculated to give any party a litigating advantage; the union simply benefited by its Washington mailing address." Id. at 961. International Union of Electrical, Radio and Machine Workers is thus dispositive of Colgate's claims.
2. Improper Service
Federal Rule of Appellate Procedure 15(c) provides that:
Both Colgate and Borden Chemical contend that the union's failure to serve a copy of its petitions for review "at or before the
As an initial matter, the charge of noncompliance by the clerk of this court with rule 15(c) has absolutely no merit. The companies contend that even though they were mistakenly named as respondents in the union's original petitions the clerk was still required to serve them with a copy of the petition. The union had originally named both the NLRB and the employers as respondents in its April 12, 1982 petitions. The day after the petitions were filed, April 13, 1982, the clerk of this court properly served copies on the NLRB, as required not only by rule 15(c), but by the NLRA. 29 U.S.C. § 160(f) (1976) ("[a] copy of such petition shall be forthwith transmitted by the clerk of the court to the Board"). At the same time, the clerk notified the union that the employers were not proper respondents, and by letters dated April 16, 1982, the union requested that Colgate and Borden Chemical be administratively deleted from the caption.
Although the NLRA does not itself expressly preclude the naming of respondents other than the NLRB, it has been stated that parties to the agency proceedings
American Newspaper Publishers Association v. NLRB, 190 F.2d 45, 49 (7th Cir.1951). Rather, parties before the Board have a right to intervene in review or enforcement proceedings. Scofield, supra, 382 U.S. at 208, 86 S.Ct. at 376.
Colgate was not a proper respondent to the union's petitions, and was therefore not entitled to service of a copy of the petition by the clerk of this court in the four days between filing and the voluntary striking by the union of Colgate as a named respondent. Even if it were so entitled, Fed.R.App.P. 3(d), which prescribes the manner of rule 15(c) service, flatly states that "[f]ailure of the clerk to serve notice shall not affect the validity of the appeal." Fed.R.App.P. 3(d). In any event, Colgate does not contend that it should have been a named respondent, and it would make no sense to require the clerk of this court to serve copies of petitions on persons erroneously named as respondents; those parties have no legitimate expectation of service by this court.
Colgate and Borden Chemical did, however, have a legitimate expectation of service by the petitioner. Rule 15(c) requires that "at or before the time of filing a petition for review," petitioners shall serve a copy on "all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk." The rule further requires that the petitioner "file with the clerk a list of those so served." The union in this instance neither served Colgate or Borden Chemical nor provided this court with a service list. The union seeks to explain this lapse by its expectation that the clerk would serve the companies due to the naming of them as respondents. The union says that it did not learn that service had not been made on the employers until sometime in May, after which it did mail copies of the petitions on May 18, 1982.
Colgate and Borden Chemical argue that the union's failure to comply with rule 15(c) is a ground for dismissal of the petition or, alternatively, a ground for invalidating the union's first-filing status as premature under section 2112(a). This argument has no merit. We have said that failure to comply with the contemporaneous service requirement contained in rule 15(c) is a defect that
The purpose of the rule 15(c) service requirement is to assure all parties to the administrative proceedings "an opportunity to file a petition within the time allowed by statute." 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice ¶ 215.06, at 15-14 n. 4 (2d ed. 1982). The requirement was apparently patterned on the similar requirement imposed on district court clerks when processing civil appeals. Id. A district court clerk must serve notice of the filing of a notice of appeal on all parties which triggers the fourteen-day period allowed other parties to file a cross-appeal, even if the statutory time to appeal has expired. Fed.R.App.P. 3(d), 4(a)(3). The purpose of the rule, as least with regard to civil appeals, is to prevent foreclosing appeal by a party who "is satisfied with a judgment if, but only if, it is to be the final result; that is, if no other party intended to appeal from it." 9 Moore's Federal Practice, supra, ¶ 204.11, at 4-40.
Not only is there no analogous fourteen-day extension of the time to petition in this court for review of an agency order, but there is no time limit within which petitions for review of NLRB decisions must be brought. See Buchanan v. NLRB, 597 F.2d 388, 392 (4th Cir.1979). Rather, petitions must be brought within a "reasonable" time, a period dependent on the factual circumstances. Id. at 393. The union served copies of the petitions on Colgate and Borden Chemical on May 18, 1982, some five weeks after the Board's decision. Whether this service was within a "reasonable" time to appeal is irrelevant here, as both companies filed their petitions for review in the Tenth and Ninth Circuits some three weeks before receiving service of the union's petitions for review. In addition, both Colgate and Borden Chemical filed motions to intervene in the proceedings here on May 7, 1982 and May 12, 1982, respectively, motions that were granted on May 17, 1982. In short, the failure of the union to serve Colgate and Borden Chemical with copies of the petitions "at or before the time of filing" those petitions or to provide the clerk with a list of those served, in no way prejudiced the companies' right to appeal within the time allowed by law or to protect their interests by way of intervention in this court. The union won the venue race to the courthouse, and failure to comply with rule 15(c) neither deprives it of its victory nor deprives this court of jurisdiction to hear the case.
3. Is the Union "Substantially Aggrieved?"
Colgate and Borden Chemical both contend that even if the union's petitions in this court are not rendered ineffective by NLRB notification procedures and the failure of the union to comply with rule 15(c), transfer is mandated under the recognized exception to section 2112(a) venue in the forum of first filing for cases "where the first petition to review is filed by a party who is not substantially aggrieved." Public Service Commission v. FPC, 472 F.2d 1270, 1272 (D.C.Cir.1972) (per curiam); see also Liquor Salesmen's Union Local 2 v. NLRB, 664 F.2d 1200, 1205 (D.C.Cir.1981). Lack of substantial aggrievement "undercut[s] the assumption of a good faith petition to review." Public Service Commission, 472 F.2d at 1272. "Substantial aggrievement" is lacking if a party "has received substantially all the relief contemplated, and any shortfall is inconsequential even though it does not eliminate the technical status of `aggrievement.'" Liquor Salesmen's Union, 664 F.2d at 1205 (quoting United Auto Workers v. NLRB, 373 F.2d 671, 673 (D.C.Cir.1967) (emphasis added)).
In Liquor Salesmen's Union, the denial of attorneys' fees to an otherwise prevailing union, which filed first, was held to be insubstantial aggrievement, because fees
Colgate and Borden Chemical attempt to construe Liquor Salesmen's Union as imposing some sort of statistical quantitative test. They argue that because the union received 99.5% of the information requested, and because the remainder was ordered a mandatory subject of bargaining, it "substantially prevailed" and thus was not truly aggrieved by the Board's decision. But Liquor Salesmen's Union also requires that the "shortfall" itself be inconsequential or insignificant. Regardless of whether it concerned .5% or .05% of the information sought, the denial of a disclosure order as to the proprietary information cannot be deemed insignificant or inconsequential. In Liquor Salesmen's Union, we made clear that "it is inappropriate to compare the relative aggrievement of the union and the company, where both are substantial." 664 F.2d at 1206. Statistical tests create a very real danger of impermissible comparisons. Rather, we look to the substance of the shortfall or aggrievement alleged.
In International Union of Electrical, Radio and Machine Workers, supra, the union had sought certain information from the employer concerning employment of minorities and women. Although there was no imposition of a mandatory bargaining requirement, the fact that "the Board did not order disclosure of all of the information the union had requested," was held to be sufficient aggrievement to withstand transfer. 610 F.2d at 962.
The issue here is whether the imposition of mandatory bargaining in this case with regard to the withheld information renders the aggrievement insubstantial enough to warrant according no respect to a petitioner's choice of forum. We hold that it does not, see discussion supra pp. 20-21, and that the union's choice of this forum should be respected.
Finally, the "convenience of the parties in the interest of justice" is equally served by retention of these petitions in this court.
664 F.2d at 1205. Both the NLRB and the union counsel are in the District of Columbia, and Colgate's firm has a Washington office. The particular plants and locals which spawned this litigation are admittedly not in the District, but the parties operate on a national scale, and the impact of the litigation goes far beyond the interests of one region. This is best evidenced by the fact that the Board itself consolidated these cases for decision, even though the plants involved were Kansas City, Missouri and
Furthermore, there is currently pending in this court another petition for review of the NLRB's decision in the other case that was consolidated before the Board with the Colgate and Borden Chemical cases.
In sum, there is no basis on which to negate the union's choice of forum in these cases. The union petitions were clearly filed first in this court, the petitions were neither premature nor invalid, and the union is a truly aggrieved party. The motions to transfer or dismiss are denied.
WILKEY, Circuit Judge, concurring:
The current law is well stated in the court's opinion. If the result is inequitable, this is a matter certainly within the power of Congress to change. Various venue proposals are now before the Congress.