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April 12, 1985

PETER W. HIRSCH, Regional Director Region Four, National Labor Relations Board and NATIONAL LABOR RELATIONS BOARD

The opinion of the court was delivered by: SHAPIRO


 Petitioners, Centra, Inc., Central Cartage Company, Central Transport, Inc., and CC Eastern, Inc. ("Centra"), sought injunctive relief to compel respondents Peter Hirsch and the National Labor Relations Board ("NLRB") to postpone the date of an unfair labor practice hearing before an Administrative Law Judge in Case No. 4-CA-14701, now pending before the NLRB, Region Four, from April 15, 1985 to any date after June 1, 1985 and to desist from filing, threatening to file or prosecuting a preliminary injunction under Section 10(j) of the National Labor Relations Act ("NLRA"). Jurisdiction was invoked under 28 U.S.C. § 1331, 29 U.S.C. § 141 et seq., the NLRA and under 28 U.S.C. § 1361, the Mandamus Act.

 Following a hearing on April 1, 1985, for reasons stated from the bench, the court denied petitioners preliminary injunctive relief and dismissed their complaint in mandamus for lack of jurisdiction. This Memorandum is a further articulation of the reasons stated from the bench as the court's findings of fact and conclusions of law.

 On February 22, 1985, counsel for the NLRB issued a complaint charging unfair labor practices against petitioners Central Cartage Company, Central Transport, Inc. and CC Eastern, Inc. The complaint alleged that all four petitioners constituted a "single employer" and that CC Eastern, Inc. was an "alter ego" of petitioner Central Cartage Company. A hearing was scheduled for March 18, 1985. On February 25, 1985, petitioners claimed that they were unable to prepare adequately for that hearing. Because of (a) the inability of counsel to investigate and prepare a defense with respect to allegations concerning the "single employer" and "alter ego" issues in time to try the case on March 18, 1985; (b) the inability of counsel to prepare adequately a defense with respect to a nationwide program of converting employees to independent owners; and (c) the unavailability of counsel during the first three weeks of March, petitioners requested that the hearing not be held before June 1, 1985.

 On February 28, 1985, counsel claimed as an additional ground for postponing the hearing date that the unavailability of critical witnesses and officers of the petitioners (who were participating in collective bargaining negotiations with the International Brotherhood of Teamsters concerning the National Master Freight Agreement) impeded their preparation of an answer. On March 5, 1985 the NLRB rescheduled the hearing from March 18, 1985 to April 15, 1985. Petitioners then filed with the Executive Secretary of the NLRB a request for permission to appeal the Regional Director's ruling; the request was denied on March 27, 1985. On March 24, 1985, the Board filed a petition under Section 10(j) of the NLRA in the district in which the alleged unfair labor practices occurred, the United States District Court for the District of New Jersey, to obtain a temporary order directing the abolition of a discriminatorily-motivated independent contractor system and the reinstatement of drivers as employees pending the outcome of the unfair labor practice hearing. Centra filed the instant action on March 27, 1985. On April 1, 1985, respondents filed a motion to dismiss the complaint for lack of jurisdiction.

 Centra's complaint in mandamus claims that the NLRB's failure to grant petitioners postponement of the hearing date until June 1, 1985 or thereafter denies them their constitutional right to due process of law. They also claim that the NLRB retaliated against them in seeking injunctive relief pending the hearing. They request that this court direct the NLRB to order the hearing postponed until after June 1, 1985 and that it direct the NLRB to cease and desist from filing a preliminary injunction under Section 10(j) of the NLRA.


 Before reviewing the merits of petitioners' motion for a temporary restraining order, this court must first determine whether it has jurisdiction. When the jurisdiction of a federal court is questioned, the court has power to determine the jurisdictional issue. United States v. United Mine Workers, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947). Petitioners allege several bases for jurisdiction. They claim that because their due process rights have been violated under the Constitution of the United States, this court has jurisdiction under 28 U.S.C. § 1331. However, by statutory design, Congress has vested exclusive review of final NLRB orders with the courts of appeals. Furthermore, 28 U.S.C. § 1331(a) does not authorize a district court to intervene in administrative proceedings whenever an issue is raised which bears on the Constitution. Instead, a party to an administrative proceeding is precluded from seeking judicial review until the party has exhausted administrative remedies. See McKart v. United States, 395 U.S. 185, 193-94, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969). Where Congress has determined that an agency possesses certain exclusive powers, a court is obliged to respect the autonomy of the agency and its discretion within the bounds established by Congress. The courts must refrain from premature interference in the administrative process. Petitioners in this case seek to have the court interfere with the administrative process prior to the unfair labor practice hearing and statutorily provided appeal procedures. This court cannot exercise jurisdiction under 28 U.S.C. § 1331(a) in these circumstances.

 Centra further contends that jurisdiction lies under 29 U.S.C. § 141 et seq., the National Labor Relations Act. However, Section 10(f) of the NLRA specifically provides that a person aggrieved by a final order of the Board may obtain a review of such an order in a court of appeals. As stated by the Supreme Court in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 82 L. Ed. 638, 58 S. Ct. 459 (1938), direct review in the court of appeals is the exclusive means of judicial review and such review is available in the court of appeals only after the Board has issued a final order. The Court held that the federal district courts are without jurisdiction to enjoin or restrain the NLRB or its agents during the course of an unfair labor practice proceeding. 303 U.S. at 48. Even an "allegation of unconstitutional harm is insufficient to warrant equitable intervention [by a district court] where pursuit of administrative remedies might ultimately render judicial disposition of such issues unnecessary." Chicago Automobile Trade Association v. Madden, 328 F.2d 766, 769 (7th Cir. 1964). Thus, this court does not have jurisdiction to enjoin the Board under the NLRA.

 Finally, Centra asserts the Mandamus Act, 28 U.S.C. § 1361 as the basis for jurisdiction. Title 28 U.S.C. § 1361 provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

 In order for jurisdiction to lie in mandamus, a plaintiff must allege that the defendant owes a clear, ministerial and non-discretionary duty. "An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt." Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), rev'd on other grounds, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). See also Mattern v. Weinberger, 519 F.2d 150, 156 (3d Cir. 1975). "Constitutional obligations as well as statutory duties are included within the perimeters of 28 U.S.C. § 1361." Holmes v. United States Board of Parole, 541 F.2d 1243, 1249 (7th Cir. 1976). Centra contends that the NLRB owes a duty to provide due process and that this duty was violated by the NLRB's failure to postpone the date of the unfair labor practice hearing until after June 1, 1985. In order for Centra to prevail, ...

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