325 U.S.

697
65 S.Ct. 1316
89 L.Ed. 1877

INLAND EMPIRE DISTRICT COUNCIL, LUMBER AND

SAWMILL WORKERS UNION, LEWISTON, IDAHO, et al.
v.
MILLIS et al.
No. 613.
Argued Feb. 26, 27, 1945.
Decided June 11, 1945.
Rehearing Denied Oct. 8, 1945.

See 66 S.Ct. 11.

Mr. George E. Flood, of Seattle, Wash., for petitioners.
Mr. Alvin J. Rockwell, of Washington, D.C., for respondent.
Mr. Justice RUTLEDGE delivered the opinion of the Court.

This controversy grows out of a contest between rival labor unions over the
right to act as collective bargaining representative of employees of Potlatch
Forest, Inc., a company conducting logging, lumbering and milling operations
in northern Idaho. Petitioners seek relief from a certification order of the
National Labor Relations Board issued pursuant to 9(c) of the National Labor
Relations Act, 49 Stat. 453, 29 U.S.C. 159(c), 29 U.S.C.A. 159(c). They ar
affiliated with the American Federation of Labor, the certified union with the
Gongress of Industrial Organizations.

In American Federation of Labor v. National Labor Relations Board, 308 U.S.

401, 60 S.Ct. 300, 84 L.Ed. 347, this Court held that a certification under 9(c)
is not reviewable by the special statutory procedure except incidentally to
review of orders restraining unfair labor practices under 10, 29 U.S.C.A.
160. Decision was expressly reserved whether, apart from such proceedings,
review of certification may be had by an independent suit brought pursuant to
24 of the Judicial Code, 28 U.S.C.A. 41. 308 U.S. 412, 60 S.Ct. 305, 84 L.Ed.

347.
3

Petitioners now assert the right to such review. Prior to the certification, they
had represented the company's employees in collective bargaining. They do not
seek review upon the merits of the certification. Their claim is that they were
denied the 'appropriate hearing' which 9(c) requires and that the effect was
not only to deprive them of the statutory right to hearing but also to deny them
due process of law contrary to the Fifth Amendment's guaranty. Accordingly,
they seek, in substance, injunctive relief requiring respondents, members of the
Board, to vacate the order of certification or, in the alternative, a declaratory
judgment that the order is invalid.

The District Court declined to dismiss the suit, upon respondents' motion
alleging, among other grounds, that the court was without jurisdiction of the
subject matter. The Court of Appeals reversed the judgment, one judge
dissenting. App.D.C., 144 F.2d 539. That court held that the statutory review is
exclusive, with the consequence that this suit cannot be maintained. The
obvious importance of the decision caused us to grant the petition for
certiorari.1 323 U.S. 703, 65 S.Ct. 269.

In American Federation of Labor v. National Labor Relations Board, 312 U.S.

at page 412, 60 S.Ct. at page 306, 84 L.Ed. 347, the Court said, with reference
to the question whether the Wagner Act has excluded judicial review of
certification under 9(c) by an independent suit brought under 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.'
petitioners earnestly urge that this case presents the required showing of
unlawful action by the Board and resulting injury. Unless they are right in this
view, it would be inappropriate, as was said in the American Federation of
Labor case, to determine the question of reviewability. That question should not
be decided in the absence of some showing that the Board has acted unlawfully.
Upon the facts presented, we think no such showing has been made, whether by
way of departure from statutory requirements or from those of due process of
law.

On March 9, 1943, local unions affiliated with the C.I.O. filed petitions with
the Board for certification as bargaining representatives in three of the
company's five logging and milling plants or units. The plants were

geographically separate. Some were located as far from others as one hundred
miles. But there was common ownership, management and control, with
occasional shifting of crews or men from one plant to another.2 Although the
petitions sought separate local units rather than a single company-wide unit, the
Board consolidated them for hearing before a trial examiner.
8

The hearing was held in May, 1943. The company, the C.I.O., and the
petitioners, who may be referred to collectively as the A.F. of L.,3 appeared and
participated. No complaint is made concerning this hearing. It was apparently a
typical representation proceeding. The principal issue was the character of the
appropriate unit. The A.F. of L. urged that the unit should be company-wide.
The C.I.O. advocated separate plant units.

The Board's decision was rendered July 13, 1943. 51 N.L.R.B. 288. It found
that the A.F. of L. had organized the employees on a company-wide basis and
on this basis had made a 'master contract' with the company, which however
was supplemented by local contracts relating to local matters in each of the five
operations, The Board concluded that the history of the bargaining relations had
demonstrated the appropriateness of a unit consisting of all the logging and mill
employees of the company. It therefore dismissed the petitions of the C.I.O. on
the ground that the three separate plant units sought were inappropriate.

10

Three days later, on July 16, the C.I.O. filed a further petition, this time asking
to be certified as bargaining representative on a company-wide basis, excluding
clerical, supervisory, confidential, and temporary employees, as well as
employees of Potlatch Townsite and Potlatch Mercantile Company. 4 The unit
thus suggested conformed generally to the one covered by the outstanding A.F.
of L. contract.

11

On September 14, pursuant to C.I.O.'s motion, the Board served notice upon
the A.F. of L. to show cause why the decision of July 13 should not be vacated;
the petitions in the earlier cases reinstated and treated as amended by the new
petition; and why the Board should not reconsider and proceed to decision
without further hearing. The order also proposed to make part of the record the
statement of the Board's field examiner concerning the C.I.O. claims of
authorization to represent employees.5

12

The A.F. of L. responded by filing a 'Protest and Objection.' This alleged that
the proposed order contemplated a decision without the taking of evidence, to
be based in part on an ex parte survey of C.I.O. claims of authorization by
employees; that employees of the two units not involved in the first proceeding

would have no opportunity to present evidence in th ir own behalf;6 and that the
Board had no authority to set aside the A.F. of L.'s existing contract by such
proceedings.
13

The Board considered the objections, but found them insufficient, rejected the
protest and, without further hearing for the taking of evidence, considered the
case upon the full record, including that made in the original hearings. It again
approved a company-wide unit, following the historical lines of organization,
but excluded certain 'fringe' classifications in conformity with generally
established policy. It further found that a question concerning representation
had arisen and directed that an election be held among the employees in the
appropriate unit as it had been determined. The Board's decision was rendered
October 14, 1943. 52 N.L.R.B. 1377.

14

The election was held during the following November and resulted in a
majority for the C.I.O.7 The A.F. of L. filed 'Objections and Exceptions to
Election,' see 55 N.L.R.B. 255, 256, which renewed the claim of impropriety in
failing to hold another hearing and also challenged some exclusions of
employees from eligibility to take part in the election. Accordingly the A.F. of
L. moved to vacate the decision and direction of election, to vacate the election
itself, to stay certification and to grant an appropriate hearing.

15

In January, 1944, the Board granted the A.F. of L.'s motion for further hearing,
but deferred ruling upon the request to vacate the previous decision and the
election. The hearing was held before a trial examiner in February, 1944.
Petitioners appeared and participated fully, as did the company and the C.I.O.
No complaint is made concerning the scope of this hearing or the manner in
which it was conducted, except as to its timing in relation to the election. Full
opportunity was afforded petitioners to present objections and evidence in
support of them. From the absence of contrary allegation, as well as the official
report of the Board's decision, it must be taken that all available objections to
the Board's procedure and action were made, considered, and determined
adversely to petitioners.8

16

The Board rendered its supplemental decision on March 4, 1944. 55 N.L.R.B.

255. This made supplemental findings of fact based upon the entire record,
including the record in the original proceedings, the election report, petitioners'
objections and exceptions, the motion for reconsideration, and the evidence and
objections taken at the February hearing. After reviewing the entire
proceedings, the Board found that an 'appropriate hearing' had been given,
within the requirement of 9(c); ruled upon each of petitioners' objections,
whether new or renewed; and concluded that none of them furnished adequate

reason for disturbing its previous decision and direction for election.
Accordingly it denied the motion to vacate that decision and the election, and
certified the C.I.O. as exclusive bargaining representative of the employees in
the unit found appropriate. A.F. of L.'s further motion for reconsideration was
denied and thereafter the present suit was instituted.9
17

Upon this history petitioners say they have been denied the 'appropriate
hearing' 9(c) req ires. They insist that the hearing, to be 'appropriate,' must
precede the election. Accordingly the February, 1944, hearing is said to be
inadequate to satisfy the statutory requirement, as well as due process, although
no complaint is made concerning its adequacy in any respect other than that it
followed, rather than preceded, the election.

18

Petitioners urge also that the procedure was unwarranted for the Board to
vacate the decision of July, 1943, reopen or 'reinstate' the original proceedings,
treat the C.I.O.'s petition for company-wide certification as an amendment to its
original petitions, and thereafter to regard the record in the earlier proceedings
as part of the record in the later ones, together with the field examiner's report
concerning C.I.O. employee representation.

19

Petitioners' exact contention concerning the reopening of the original

proceedings is not altogether clear.10 But, in any event, it clearly maintains that
the Board's action, in effect treating the later proceedings as a continuance of
the earlier ones, injected new issues upon which petitioners were entitled to
present additional evidence. Accordingly it is claimed that the original record,
together with the additional matter presented by the new petition, the motions
which followed and the proceeding to show cause, was not adequate to sustain
the Board's action in vacating its first decision and entering the direction for
election. Although petitioners urge that the preelection proceedings were
defective, they emphasize most strongly that the February hearing could not
cure the failure to grant the further hearing they demanded prior to the election.

20

The Board's position is, in effect, two-fold, that there was no departure from the
statute's requirements or those of due process in the proceedings prior to the
election;11 and, if they were defective in any respect, the departure was cured
by the full hearing granted at petitioners' insistence after the election.

21

We think petitioners have misconceived the effects of 9(c). It is as follows:

22

'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 10 or otherwise, and may take a secret ballot of employees, or
utilize any other suitable method to ascertain such representatives.' (Emphasis
added.)
23

The section is short. Its terms are broad and general. Its only requirements
concerning the hearing are three. It must be 'upon due notice,' it must be
'appropriate,' and it is mandatory 'in any such investigation,' but may be held in
conjunction with a 10 (unfair practice) proceeding or otherwise.

24

Obviously great latitude concerning procedural details is contemplated.

Requirements of formality and rigidity are altogether lacking. The notice must
be 'due,' the hearing 'appropriate.' These requirements are related to the
character of the proceeding of which the hearing is only a part. That proceeding
is not technical. It is an 'investigation,' essentially informal, not adversary. The
investigation is not required to take any particular form or confined to the
hearing. The hearing is mandatory'the Board shall provide for' it. But the
requirement is only that it shall be provided 'in any such investigation.' The
statute does not purport to specify when or at what stage of the investigation the
hearing shall be had. It may be conducted 'in conjunction with a proceeding
under section 10 or otherwise.'

25

Moreover, nothing in the section purports to require a hearing before an

election. Nothing in fact requires an election. The hearing 'in any such
investigation' is mandatory. But the election is discretionary. The Board 'may
take a secret ballot * * * or utilize any other suitable method to ascertain such
representatives.'

26

An election, when held, is only a preliminary determination of fact. Sen.Rep.

No. 573, 74th Cong., 1st Sess., 56; H.R.Rep. No. 1147, 74th Cong., 1st Sess.,
67. A direction of election is but an intermediate step in the investigation,
with certification as the final and effective action. National Labor Relations
Board v. International Brotherhood of Electrical Workers, 308 U.S. 413, 414,
415, 60 S.Ct. 306, 307, 84 L.Ed. 354. Nothing in 9(c) requires the Board to
utilize the results of an election or forbids it to disregard them and utilize other
suitable methods.

27

It hardly can be taken, in view of all these considerations, that Congress

intended a hearing which it made mandatory 'in any such investigation' always

to precede an election which it made discretionary for all and which, in the
committee reports, it specifically denominated as only a method for making a
preliminary determination of fact. That characterization was not beyond
congressional authority to make and is wholly consistent with the discretionary
status the section gives that mode of determination.
28

In view of the preliminary and factual function of an election, we cannot agree

with petitioners' view that only a hearing prior to an election can be
'appropriate' within the section's meaning. The conclusive act of decision, in the
investigation, is the certification. Until it is taken, what precedes is preliminary
and tentative. The Board is free to hold an election or utilize other suitable
methods. Such other methods are often employed and frequently are of an
informal character. Petitioners' view logically would require the hearing to be
held in advance of the use of any such other method as much as when the
method of election is used.

29

Congress was fully informed concerning the effects of mandatory hearings

preceding elections upon the process of certification. For under Public
Resolution 44, which preceded 9(c), the right of judicial hearing was
provided. The legislative reports cited above show that this resulted in
preventing a single certification after nearly a year of the resolution's operation
and that one purpose of adopting the different provisions of the Wagner Act
was to avoid these consequences.12 In doing so Congress accomplished its
purpose not only by denying the right of judicial review at that stage but also
by conferring broad discretion upon the Board as to the hearing which 9(c)
required before certification.

30

Petitioners' argument does not in terms undertake to rewrite the statute. But the
effect would be to make it read as if the words 'appropriate * * * in any such
investigation' were replaced with the words 'hearing prior to any election.'
Neither the language of the section nor the legislative history discloses an intent
to give the word 'appropriate' such an effect. We think the statutory purpose
rather is to provide for a hearing in which interested parties shall have full and
adequate opportunity to present their objections before the Board concludes its
investigation and makes its effective determination by the order of certification.

31

In this case that opportunity was afforded to petitioners. We need not decide
whether the hearing would have been adequate or 'appropriate,' if the February,
1944, hearing had not been granted and held. In the Board's view, petitioners,
when afforded the opportunity in the proceedings to show cause held prior to
the election, brought forward nothing which required it to hold a further
hearing for the taking of evidence. With this petitioners disagree. We need not

examine whether one or the other was correct in its view. For when the
objections were renewed after the election, and others also were advanced, the
Board gave full and adequate opportunity for hearing, including the
presentation of evidence, concerning them. Petitioners do not contend that the
hearing was a sham or that the Board did not consider their objections. They do
not ask for review upon the merits. Their only objection is that the hearing
came too late. That objection is not tenable in view of the statute's terms and
intent.
32

It may be, as petitioners insist, that their interests were harmfully affected by
the outcome of the election, through loss of prestige and in other ways. It does
not follow that the injury is attributable to any failure of the Board to afford a
hearing which was 'appropriate' within the section's meaning. This being true,
and since petitioners do not now question the Board's rulings upon the merits of
the issues apart from those relating to the character of the hearing, the injury
must be regarded, for presently material purposes, as an inevitable result of
losing an election which was properly conducted.

33

Petitioners also assert that the Board departed from its own rules in failing to
accord them the hearing demanded prior to the election. The regulations
provide for direction of election to follow the hearing before the trial examiner
and, in the Board's discretion, oral argument or further hearing as it may
determine. Rules and Regulations, Art. III, 3, 8, 9. But the regulations also
contemplate further hearings for reconsideration before the final act of
certification, a procedure of which petitioners had full advantage in this case.
Whether or not the hearings provided before the election were adequate to
comply with the regulations, the procedure upon rehearing afterward was
adequate to perform its intended function of affording full opportunity for
correcting any defect which may have existed in the previous stages of
hearing.13

34

We think no substantial question of due process is presented. The requirements

imposed by that guaranty are not technical, nor is any particular form of
procedure necessary. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906,
912, 80 L.Ed. 1288. 'The demands of due process do not require a hearing, at
the initial stage or at any particular point or at more than one point in an
administrative proceeding so long as the requisite hearing is held before the
final order becomes effective.' Opp. Cotton Mills v. Administrator, 312 U.S.
126, 152, 153, 657, 61 S.Ct. 524, 536, 85 L.Ed. 624; cf. Bowles v. Willingham,
321 U.S. 503, 519, 521, 64 S.Ct. 641, 649, 650, 88 L.Ed. 892.14 That
requirement was fully met in this case.

35

The judgment is affirmed.

36

Affirmed.

37

Mr. Justice ROBERTS dissents.

The inferior courts have divided on the question. Compare Association of

Petroleum Workers v. Millis, No. 20854, D.C.N.D.Ohio, unreported;* Sun Ship
Employees Association, Inc., v. National Labor Relations Board, 3 Cir., 139
F.2d 744; International Brotherhood of Electrical Workers v. National Labor
Relations Board, No. 21994, N.D.Ohio, unreported;* American Broach
Employees Association v. National Labor Relations Board, No 4242,
E.D.Mich, unreported* ; Spokane Aluminum Trades Council v. National Labor
Relations Board, No. 349, E.D.Wash., unreported* ; with International
Brotherhood of Electrical Workers v. National Labor Relations Board,
D.C.E.D.Mich., 41 F.Supp. 57; American Federation of Labor v. Madden,
D.C.D.C., 33 F.Supp. 943; Klein v. Herrick, D.C.S.D.N.Y., 41 F.Supp. 417; R.
J. Reynolds Employees Association, Inc. v. National Labor Relations Board,
D.C.M.D.N.C., 61 F.Supp. 280; Reilly v. Millis, D.C.D.C., 52 F.Supp. 172,
affirmed App.D.C., 144 F.2d 259; Brotherhood and Union of Transit
Employees of Baltimore v. Madden, 4 Cir., 147 F.2d 439; reversed, D.C.Md.,
58 F.Supp. 366; Inland Empire District Council, Lumber and Sawmill Workers
Union v. Graham, D.C.W.D.Wash., 53 F.Supp. 369.

No opinion for publication.

Some special operations, e.g., the Washington-Idaho-Montana Railroad, were

conducted through wholly owned subsidiaries.

The collective designation is appropriate both for convenience and by reason of

the facts, noted in the text, relating to A.F. of L.'s dealings with the company
through both a 'master contract' and local supplemental agreements.

The Board's report shows that employees of these operations had been excluded
from the units in the local contracts which the A.F. of L. had with the separate
operations of the company. 52 N.L.R.B. 1377, 1382, 1383.

The field examiner's report is introduced, not as proof of the extent of

representation by the petitioning union, but to satisfy the Board that there is a
substantial membership among the employees in the unit claimed to be
appropriate sufficient to justify the Board's investigation.

These were the plants located at Potlatch and Coeur d'Alene, which were not
included in the units sought by the C.I.O. in its original petitions.

The majority was of the ballots cast, but not of the total number of employees
eligible to vote.

Cf. 55 N.L.R.B. 255.

The suit is the last in a series intended to prevent the holding of the election or
to avoid certification founded upon it. See Inland Empire District Council v.
Graham, D.C.W.D.Wash., 53 F.Supp. 369; Local 2766, Lumber and Sawmill
Workers Union v. Hanson, Civil Action, No. 1553, D.Idaho, unreported* ;
Inland Empire District Council v. Graham, Civil Action No. 834, W.D.Wash.,
unreported* ; Inland Empire District Council v. National Labor Relations Board,
D.C.D.C., 62 F.Supp. 207.

10

The argument appears to regard them as irrevocably closed by the decision of

July 13, 1943, and that decision as endowed with finality precluding the Board
from later reopening the proceedings and considering further the record made
in them. It seems also to suggest that the original petitions could not be
amended, at any rate by treating the later petition as an amendment, after the
decision, notwithstanding an order vacating it.

No opinion for publication.

11

The Board says that the two proceedings involved the same substantial
controversy, namely, representation of the Potlatch Company's employees; and
therefore the material issues were the same except that in the later proceedings
the C.I.O. acceded to the decision that a company-wide unit was appropriate
and sought representation on that basis. Only a waste of time and money for all
concerned would have resulted, in the Board's view, from retracing the ground
covered in the earlier hearings. Accordingly, it was entirely proper to treat the
later ones as in substance a continuation of them and to proceed with the
determination of the other questions relating to representation which the narrow
ground of the first decision had made unnecessary to decide.
The Board also maintains that a further hearing was not required in the absence
of a showing by petitioners that new issues were presented which required the
taking of additional evidence. In its view the procedure to show cause afforded
adequate opportunity for petitioners to do this and none of the issues they
presented furnished adequate basis either to require holding a further hearing or
for refusing to proceed with the election upon the basis proposed.
The Board and the petitioners are at odds therefore concerning the materiality

of the issues presented on the show cause procedure and their sufficiency to
require further hearing for the presentation of evidence. But, in any event, the
Board says that if it was wrong as to this in any respect the error was cured by
the full hearing allowed in February, 944.
12

Cf. note 9.

13

We need not determine whether in a situation where no hearing whatever is

afforded prior to an election, the failure would be cured by allowing one
afterward, whether as a matter of compliance with the statute or with the
regulations. That situation is not presented. The proceedings in this case prior to
the election afforded opportunity for hearing. At most the hearing was
defective, and the opportunity given by the postelection hearing was effective
to cure whatever defects may have existed, if any.

14

Cf. also Buttfield v. Stranahan, 192 U.S. 470, 496, 497, 24 S.Ct. 349, 355, 356,
48 L.Ed. 525; National Labor Relations Board v. Mackay Radio & Tel. Co.,
304 U.S. 333, 350, 351, 58 S.Ct. 904, 912, 913, 82 L.Ed. 1381; Anniston Mfg.
Co. v. Davis, 301 U.S. 337, 342, 343, 57 S.Ct. 816, 818, 819, 81 L.Ed. 1143;
United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040;
Chicago B. & Q. Railroad v. Chicago, 166 U.S. 226, 235, 17 S.Ct. 581, 584, 41
L.Ed. 979; Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596,
597, 51 S.Ct. 608, 611, 612, 75 L.Ed. 1289.