by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer.'
'(c) Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 160 of this title or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.'
Subdivisions (a) and (c) as amended,
of section 7 of the Pennsylvania Labor Relations Act, 43 P.S. § 211.7(a) and (c), are respectively identical and similar to the corresponding subdivisions of section 9 of the National Act.
The plaintiff does not challenge the constitutionality of the section of the State Statute by virtue of which the State Board purported to assume jurisdiction. What it does challenge, however, is the right of the State Board to assume jurisdiction over this dispute. Before deciding this question, we must dispose of the State Board's contention that the administrative remedy provided by the State Act gives the plaintiff a complete and adequate remedy at law in the state courts. If the State Board is right in its contention, the plaintiff must be relegated to its administrative remedy.
Subsection (b) of section 9 of the State Act, as amended, 43 P.S. § 211.9(b) provides that 'Any person aggrieved by a final order of the board granting or denying, in whole or in part, the relief sought, or by an order certifying a collective bargaining agent of employees, may obtain a review of such order in the court of common pleas.' It further provides that 'The jurisdiction of the court of common pleas shall be exclusive, and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court (of Pennsylvania) on appeal' by the board or any party aggrieved. But subsection (c) of the same section provides that the commencement of proceedings under subsection (b) 'shall not, unless specifically ordered by the court, operate as a stay of the board's order.' (Emphasis supplied.) This subsection has not been condemned as being unconstitutional by the courts of Pennsylvania. Therefore this court cannot say that the plaintiff has, by virtue of the State Act, a complete and adequate remedy at law in the state courts. According to the express language of the statute, the Union could not obtain a review to determine whether the State Board had jurisdiction over the dispute until an order of certification had been made. If the State Board is without jurisdiction it would have no authority to conduct an investigation, hold an election or make an order certifying a collective bargaining agent. If the Union had waited until an order of certification was made by the State Board and had taken proceedings under section 9(b) of the State Act to have the question of the State Board's jurisdiction reviewed, such proceedings, according to section 9(c), would not have operated as a stay of the order. The fact that the state court might have specifically ordered the State Board's order to be stayed would not make the legal remedy adequate. Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U.S. 196, 44 S. Ct. 553, 68 L. Ed. 975; Mountain States Power Co. v. Public Service Commission of Montana et al., 299 U.S. 167, 170, 57 S. Ct. 168, 81 L. Ed. 99. Compare the Pennsylvania statute cited in the foot note to Driscoll et al. v. Edison Light & Power Co., 307 U.S. 104, page 109, 59 S. Ct. 715, 83 L. Ed. 1134. Nor could the Union obtain an injunction in the state courts to restrain the defendants from proceeding any further in the matter. It is apparent that it is a case 'involving or growing out of a labor dispute.' The Pennsylvania Labor Anti-Injunction Act
would prohibit the state courts from complying with a request for an injunction in such a case. Cf. Western Pennsylvania Hospital et al. v. Lichliter, et al., 340 Pa. 382, 17 A.2d 206, 132 A.L.R. 1146.
Since the Union does not have an adequate remedy at law in the state courts, we must determine whether the State Board had jurisdiction over the dispute. It appears to be well settled that 'whenever a question affecting (interstate
) commerce arises concerning the representation of employees' the National Board, when its jurisdiction is invoked, has the authority to investigate such controversy and to certify the bargaining agent. There need not be an actual dispute
; the possibility that a dispute will affect interstate commerce is sufficient to give the National Board jurisdiction. When the National Board has acted in the field permitted by the National Act, its authority is paramount to any other board. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352; Consolidated Edison Company v. N.L.R.B., 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126; N.L.R.B. v. Bradford Dyeing Association, 310 U.S. 318, 60 S. Ct. 918, 84 L. Ed. 1226. In the absence of the exercise of its authority by the National Board, even though there is a question affecting interstate commerce, a state board may assume jurisdiction to conduct hearings and investigations, and to certify a collective bargaining agent, provided the state act or the orders of the state board
do not impair the status of the employees or cause a deprivation of any collective bargaining rights protected or granted them by the National Act. The mere enactment of the National Act did not preclude state regulations in the same field
. Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S. Ct. 820, 86 L. Ed. 1154; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 465, 65 S. Ct. 1384, 89 L. Ed. 1725. Where a state board has acted in the field subject to the provisions of the National Act, and subsequently the National Board assumes jurisdiction over the same dispute, the State Board's jurisdiction is ousted. N.L.R.B. v. Algoma Net Co., 7 Cir., 124 F.2d 730, certiorari denied 316 U.S. 706, 62 S. Ct. 1311, 86 L. Ed. 1773; N.L.R.B. v. Eclipse Mounded Products Co., 7 Cir., 126 F.2d 576. The Pennsylvania Act does not give the State Board a mandate to act otherwise.
In the case before us the State Board purported to assume jurisdiction over a labor dispute after the National Board had certified the Union as the exclusive bargaining agent. If the Company was engaged in a business which is not or does not affect interstate commerce, there can be no doubt that the State Board had properly assumed jurisdiction over the dispute. However, if the Company is engaged in a business which was in or affected interstate commerce, it would seem that the only logical basis for the conclusion that the State Board had properly assumed jurisdiction is that the National Board is deemed to have relinquished or lost its exclusive jurisdiction over the dispute. For the purpose of the immediate discussion we shall assume that the dispute in question affected interstate commerce.
The National Act is silent as to how long a certification by the National Board shall be good. However, it has been held that a certification shall be good for a reasonable length of time. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 704, 64 S. Ct. 817, 88 L. Ed. 1020; N.L.R.B. v. Whittier Mills Co., et al., 5 Cir., 111 F.2d 474, 478; Great Southern Trucking Co. v. N.L.R.B., 4 Cir., 139 F.2d 984; N.L.R.B. v. Applachian Electric Power Co., 4 Cir., 140 F.2d 217, 221.
If any group of employees or union is of the belief that it, and not the present certified bargaining agent, represents the majority of the unit, its remedy is to petition the National Board. N.L.R.B. v. Remington Rand Inc., 2 Cir., 94 F.2d 862, 869; Hamilton-Brown Shoe Co. v. N.L.R.B., 8 Cir., 104 F.2d 49, 55; N.L.R.B. v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632, 640.
The defendants seem to infer that after a reasonable length of time has elapsed or when the time is ripe for challenging the present certified bargaining agent's majority representation, the challenging party may, at its election, invoke the jurisdiction of either the National or the State Board. With this proposition we are not in accord. The continuance of the exclusive jurisdiction of the National Board, after it has been invoked, is not dependent upon the length of time that a certification of a bargaining agent shall be good; it may last for a longer period of time. In our opinion, any other rule would not be conductive to the carrying out of the broad definite policies of the National Board.
In this case approximately twenty-two months had elapsed between the date that the Union had been certified by the National Board and the date the Committee filed its petition with the State Board. At the time the Committee filed its petition, a strike, which had been called against the Company by the Union, had been in progress for four months. It would seem to us that under these circumstances, the State Board, upon being informed that the National Board, had previously certified the Union, whose majority representation was being questioned, should have dismissed the Committee's petition. Of course we are not holding that once the National Board has made an order certifying a union, group or person as the exclusive bargaining agent of a particular unit of employees, a state board's jurisdiction may not thereafter be invoked over a dispute concerning the same unit of employees. All we are now holding is that under the circumstances of this case, the National Board's exclusive jurisdiction cannot be deemed to have been relinquished or lost.
Returning to the question whether the Company was engaged in a business which is not or does not affect interstate commerce. The pleadings are silent as to any allegation or denial that the Company is in a business which is in or affects interstate commerce
; nor do they allege any facts describing the manner in which the Company's business is carried on from which we may conclude that the Company was or was not so engaged or that its business did or did not affect interstate commerce. However, the complaint alleged that the National Board had on May 5, 1944, certified the Union as the exclusive bargaining agent for the production employees of the Philadelphia plant of the Company. Is this court bound by the National Board's conclusion or may it arrive at an independent conclusion as to whether the industry in question affects commerce?
A review of the orders and proceedings of the National Board may not be had in the district court. Such a review, according to section 10(f) of the Act, may be had in the appropriate United States Circuit Court of Appeals. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 58 S. Ct. 459, 82 L. Ed. 638; Newport News ShiBuilding & Dry Dock Co. v. Schauffler et al., 303 U.S. 54, 55, 58 S. Ct. 466, 82 L. Ed. 646. However, only those orders or proceedings of the National Board concerning unfair labor practices are directly reviewable. The Act does not provide for the direct review of an order of certification made by the National Board under section 9(c). Such an order is reviewable only as an incident in the review of an order or proceeding of the National Board concerning unfair labor practices under section 10. A.F.L. v. N.L.R.B., 308 U.S. 401, 406, 60 S. Ct. 300, 84 L. Ed. 347; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 151, 154, 61 S. Ct. 908, 85 L. Ed. 1251; Inland Empire Council v. Millis et al., 325 U.S. 697, 699, 65 S. Ct. 1316, 89 L. Ed. 1877; May Stores Co. v. N.L.R.B., 326 U.S. 376, 380, 66 S. Ct. 203, 90 L. Ed. 145. In the A.F. of L. case, the question was posed whether the district courts were completely precluded by the National Act from reviewing the proceedings of the National Board. The court, in expressly reserving its decision on this question, said at page 412 of 308 U.S., at page 305 of 60 S. Ct., 84 L. Ed. 347: 'Its answer involves a determination whether the Wagner Act, in so far as it has given legally enforceable rights, has deprived the district courts of some portion of their original jurisdiction conferred by section 24 of the Judicial Code, 28 U.S.C.A. § 41. It can be appropriately answered only upon a showing in such a suit that unlawful action of the Board has inflicted an injury on the petitioners for which the law, apart from the review provisions of the Wagner Act, affords a remedy.' In our opinion, the Supreme Court, in effect has left the door open for the district courts, when the proper situation arises, to review the order of the National Board. Although this is not a proceeding to review a certification order of the National Board, we believe that the proper situation has arisen in this case. However, despite this conclusion, it would seem not improper that some consideration be given to the National Board's order. The fact that the Board made a certification should be considered as a bundle of facts from which we may conclude that interstate commerce was or might be affected. Since there are no allegations of any facts describing the manner in which the Company's business was carried on from which we might conclude otherwise, we conclude that it was so affected and that the National Board has exclusive jurisdiction over the dispute at the time the Committee filed its petition with the State Board.
For the foregoing reasons the motion to dissolve the temporary injunction is denied.