U.S. Court of Appeals for the D.C. Circuit, 1953

Hourihan v. National Labor Relations Board

U.S. Court of Appeals for the D.C. Circuit · Decided April 6, 1953 · Prettyman, Bazelon, Washington

201 F.2d 187 (Federal Reporter, Second Series)

Counsel

Frank A. Hourihan, pro se, submitted on the brief for appellant., A. Norman Somers, Assistant General Counsel, National Labor Relations- Board, Washington, D. C., submitted on the brief for appellees.

Cases that cite this one

49 later published cases cite this decision. The 24 that cite it most often are listed here.

Graybar Electric Co. v. Automotive, Petroleum & Allied Industries Employees Union (Mo. 1956)
Timus v. District of Columbia Department of Human Rights (D.C. 1993)
Hanna Mining Co. v. District 2, Marine Engineers Beneficial Ass'n (Supreme Court of the United States 1965)
Local 100, United Ass'n of Journeymen & Apprentices v. Borden (Supreme Court of the United States 1963)
Retail Store Employees Union Local 954 v. Rothman (D.C. Cir. 1962)
Retail Store Employees Union Local 954, Retail Clerks International Ass'n v. Rothman (D.C. Cir. 1962)
Simpson v. District of Columbia Office of Human Rights (D.C. 1991)
Retail, Wholesale and Department Store Union, Afl-Cio, Local 310 v. National Labor Relations Board and Scioto Downs, Inc. (6th Cir. 1984)
Rockford Redi-Mix Co., Inc. v. Glen Zipp (7th Cir. 1980)
Rockford Redi-Mix Co. v. Zipp (7th Cir. 1980)
Associated Builders and Contractors, Inc., Baltimore Metropolitan Chapter v. John R. Irving, General Counsel National Labor Relations Board (4th Cir. 1979)
National Alliance of Postal and Federal Employees v. E. T. Klassen, Individually and as Postmaster General of the United States, Etal (D.C. Cir. 1975)
International Ladies' Garment Workers Union, Local 415-475, Afl-Cio v. National Labor Relations Board (D.C. Cir. 1974)
Josue N. Saez v. Eugene G. Goslee, as Acting General Counsel And/or Peter G. Nash, General Counsel of the National Labor Relations Board (1st Cir. 1972)
Henderson ex rel. National Labor Relations Board v. International Longshoremen's & Warehousemen's Union Local 50 (9th Cir. 1972)
Terminal Freight Cooperative Association and Terminal Freight Handling Company v. National Labor Relations Board (3d Cir. 1971)
Saez v. Goslee (District Court, D. Puerto Rico 1971)
Leslie Balanyi v. Local 1031, International Brotherhood of Electrical Workers Afl-Cio and National Labor Relations Board (7th Cir. 1967)
Murphy v. Colonial Federal Savings And Loan Association (2d Cir. 1967)
Pearman v. Industrial Rayon Corp. (Va. 1967)
Murphy v. Colonial Federal Savings & Loan Ass'n (2d Cir. 1967)
No. 20201 (9th Cir. 1965)
Fabri-Tek, Incorporated v. National Labor Relations Board (8th Cir. 1965)
United Electrical Contractors Association v. Ordman (District Court, S.D. New York 1965)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PRETTYMAN, Circuit Judge.

Appellant brought a. civil action in the District Court praying for a writ of mandamus against the National Labor Relations Board, its Chairman, “and/or” its General Counsel. The gist of his petition was that he had been discharged by his employer in violation of Section 8 of the Labor Management Relations Act, 1 that he had filed charges against his employer, that the Regional Director and thereafter the General Counsel had refused to issue' a complaint, and that the Board had refused ' to overrule the General Counsel or to issue any order in the matter. He prayed that the court direct the Board to issue a’final order, which would be appealable and would thus permit him to get a judicial review of the proceedings inaugurated by his charges. The District Court dismissed the petition on the grounds that it had no jurisdiction over the subject matter and that the petition failed to state a claim upon which relief could be granted.

Section 3(d) of the Labor Management Relations Act 2 provides that the General Counsel of the Board “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10”. The Board cannot issue an order until the General 'Counsel issues a complaint. A court has no power to order the General Counsel to issue a complaint 3 and no power to require the Board to issue an order in a matter which is not before the Board.

Appellant seeks to make out a case of abuse of discretion. In his recitation of the facts, presented in the affidavit attached to his petition, he said that the Regional Director acted upon perjured affidavits and that no investigation was made by the Regional Director or by agents of the Board. However, he said that he gave the Regional Director the names of three agents of the company responsible for firing him and that two of these agents (the other being in the hospital) went to the Board office and thereafter filed affidavits, which affidavits petitioner says were perjured. Upon the case thus made out in the petition, depending as it did upon an evaluation of evidence, the issuance of a complaint lay within the discretion conferred upon the General Counsel by the statute. 4

Affirmed.

. 61 Stat. 140 (1947), as amended, 29 U. S.C.A. § 158.

. 61 Stat. 139 (1947), 29 U.S.C.A. § 153 (d).

. General Drivers, Etc., Local 888, A. F. of L. v. National Labor Relations Board, 10 Cir., 1950, 179 F.2d 492; Lincourt v. National Labor Relations Board, 1 Cir., 1948, 170 F.2d 306.

. We need not here canvass whether, and if so under what circumstances, a court can correct an abuse of discretion by the General Counsel in failing to issue a complaint. Compare Jacobsen v. National Labor Relations Board, 3 Cir., 1941, 120 F.2d 96, 100; Att’y Gen. Man. Ad. Proc. Act 94-95 (1947); Davis, Administrative Law 160-167, 846-848 (1951).

Case-law data current through December 31, 2025. Source: CourtListener bulk data.