Boire v. Greyhound Corp., 376 U.S. 473 (1964)

376 U.S.
473
84 S.Ct. 894
11 L.Ed.2d 849
Harold A. BOIRE, Regional Director, Twelfth Region, National

Labor Relations Board, Petitioner,
v.
The GREYHOUND CORPORATION.
No. 77.
Argued Feb. 17, 1964.
Decided March 23, 1964.
Norton J. Come, Washington, D.C., for petitioner.

Warren E. Hall, Jr., Bartow, Fla., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
The Amalgamated Association of Street, Electric Railway and Motor Coach

Employees of America, AFL-CIO (the Union) filed an amended petition with
the National Labor Relations Board pursuant to 9(c) of the National Labor
Relations Act,1 requesting a representation election among the porters, janitors
and maids working at four Florida bus terminals operated by the respondent
(Greyhound). The amended petition designated the 'employer' of the employees
sought to be represented as Greyhound and Floors, Inc. The latter, a corporation
engaged in the business of providing cleaning, maintenance and similar services
to various customers in Florida, had contracted with Greyhound to provide such
services at the four terminals in question.
At the Board hearing on the petition, the Union contended alternatively that the
unit requested was appropriate as a residual unit of all unrepresented
Greyhound employees a the four terminalson the ground that Greyhound was
at least a joint employer with Floors of the employeesor that the unit was
appropriate because the employees comprised a homogeneous, distinct group.
Greyhound and Floors claimed that the latter was the sole employer of the
employees, and that the appropriate bargaining unit should therefore encompass
all Floors' employees, either in all four cities in which the terminals are located,
or in separate groups.
3
The Board found that while Floors hired, paid, disciplined, transferred,
promoted and discharged the employees, Greyhound took part in setting up
work schedules, in determining the number of employees required to meet those
schedules, and in directing the work of the employees in question. The Board
also found that Floors' supervisors visited the terminals only irregularlyon
occasion not appearing for as much as two days at a timeand that in at least
one instance Greyhound had prompted the discharge of an employee whom it
regarded as unsatisfactory. On this basis, the Board, with one member
dissenting, concluded that Greyhound and Floors were joint employers,
because they exercised common control over the employees, and that the unit
consisting of all employees under the joint employer relationship was an
appropriate unit in which to hold an election. The Board thereupon directed an
election to determine whether the employees desired to be represented by the
Union.
Shortly before the election was schedule to take place, Greyhound filed this suit
in the United States District Court for the Southern District of Florida, seeking
to set aside the decision of the Board and to enjoin the pending election. After a
hearing, the court entered an order permanently restraining the election. 205
F.Supp. 686. Concluding that it had jurisdiction on the basis of this Court's
decision in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, the
court held on the merits that the Board's findings were insufficient as a matter
of law to establish a joint employer relationship, that those findings established,
as a matter of law, that Floors was the sole employer of the employees in
question, and that the Board had therefore violated the National Labor
Relations Act by attempting to conduct a representation election where no
employment relationship existed between the employees and the purported
employer. The Court of Appeals affirmed, 309 F.2d 397, and we granted
certiorari to consider a seemingly important question of federal labor law. 372
U.S. 964, 83 S.Ct. 1090, 10 L.Ed.2d 128. We reverse the judgment of the Court
of Appeals.
Both parties agree that in the normal course of events Board orders in
certification proceedings under 9(c) are not directly reviewable in the courts.
This Court held as long ago as American Federation of Labor v. National Labor
Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347, that the 'final
order(s)' made reviewable by 10(e) and (f)2 in the Courts of Appeals do not
include Board decisions in certification proceedings. Such decisions, rather, are
normally reviewable only where the dispute concerning the correctness of the
certification eventuates in a finding by the Board that an unfair labor practice
has been committed as, for example, where an employer refuses to bargain with
a certified representative on the ground that the election was held in an
inappropriate bargaining unit. In such a case, 9(d) of the Act makes full
provision for judicial review of the underlying certification order by providing
that 'such certification and the record of such investigation shall be included in
the transcript of the entire record required to be filed' in the Court of Appeals.3
6
That this indirect method of obtaining judicial review imposes significant

delays upon attempts to challenge the validity of Board orders in certification
proceedings in obvious. But it is equally obvious that Congress explicitly
intended to impose precisely such delays. At the time of the original passage of
the National Labor Relations Act in 1935, the House Report clearly delineated
the congressional policy judgment which underlay the restriction of judicial
review to that provided for in 9(d):
'When an employee organization has built up its membership to a point where it

is entitled to be recognized as the representative of the employees for collective
bargaining, and the employer refuses to accord such recognition, the union,
unless an election can promptly be held to determine the choice of
representation, runs the risk of impairment of strength by attrition and delay
while the case is dragging on through the courts, or else is forced to call a
strike to achieve recognition by its own economic power. Such strikes have
been called when election orders of the National Labor Relations Board have
been held up by court review.'4
And both the House 5 and the Senate Reports 6 spelled out the thesis, repeated on
the floor, that the purpose of s 9(d) was to provide 'for review in the courts only
after the election has been held and the Board has ordered the employer to do
something predicated upon the results of the election.'7 Congressional
determination to restrict judicial review in such situations was reaffirmed in
1947, at the time that the Taft-Hartley amendments were under consideration,
when a conference committee rejected a House amendment which would have
permitted any interested person to obtain review immediately after a
certification8 because, as Senator Taft noted, 'such provision would permit
dilatory tactics in representation proceedings.'9
In light of the clear import of this history, this Court has consistently refused to
allow direct review of such orders in the Courts of Appeals. American
Federation of Labor v. National Labor Relations Board, supra. In two cases,
however, each characterized by extraordinary circumstances, our decisions
have permitted district court review of orders entered in certification
proceedings. In Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210,
despite the injunction of 9(b)(1) of the Act that 'the Board shall not (1) decide
that any unit is appropriate * * * if such unit includes both professional
employees and employees who are not professional employees unless a
majority of such professional employees vote for inclusion in such unit,' the
Boardwithout polling the professional employees approved as appropriate a
unit containing both types of employees. The Board conceded in the Court of
Appeals that it 'had acted in excess of its powers and had thereby worked injury
to the statutory rights of the professional employees.' 358 U.S., at 187, 79 S.Ct.,
at 183, 3 L.Ed.2d 210. We pointed out there that the District Court suit was 'not
one to 'review,' in the sense of that term as used in the Act, a decision of the
Board made within its jurisdiction. Rather it is one to strike down an order of
the Board made in excess of its delegated powers and contrary to a specific
prohibition in the Act.' 358 U.S., at 188, 79 S.Ct., at 184, 3 L.Ed.2d 210. Upon
these grounds we affirmed the District Court's judgment setting aside the
Board's 'attempted exercise of (a) power that had been specifically withheld.'
358 U.S., at 189, 79 S.Ct., at 184, 3 L.Ed.2d 210. And in McCulloch v.
Sociedad Nacional de Marineras de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9
L.Ed.2d 547, in which District Court jurisdiction was upheld in a situation
involving the question of application of the laws of the United States to foreignflag ships and their crews, the Court was careful to note that 'the presence of
public questions particularly high in the scale of our national interest because of
their international complexion is a uniquely compelling justification for prompt
judicial resolution of the controversy over the Board's power. No question of
remotely comparable urgency was involved in Kyne, which was a purely
domestic adversary sit ation. The exception recognized today is therefore not to
be taken as an enlargement of the exception in Kyne.' 372 U.S., at 17, 83 S.Ct.
at 675, 9 L.Ed.2d 547.
10
The respondent makes no claim that this case is akin to Sociedad Nacional. The
argument is, rather, that the present case is one which falls within the narrow
limits of Kyne, as the District Court and the Court of Appeals held. The
respondent points out that Congress has specifically excluded an independent
contractor from the definition of 'employee' in 2(3) of the Act.10 It is said that
the Board's finding that Greyhound is an employer of employees who are hired,
paid, transferred and promoted by an independent contractor is, therefore,
plainly in excess of the statutory powers delegated to it by Congress. This
argument, we think, misconceives both the import of the substantive federal
law and the painstakingly delineated procedural boundaries of Kyne.
11
Whether Greyhound, as the Board held, possessed sufficient control over the
work of the employees to qualify as a joint employer with Floors is a question
which is unaffected by any possible determination as to Floors' status as an
independent contractor, since Greyhound has never suggested that the

employees themselves occupy an independent contractor status. And whether
Greyhound possessed sufficient indicia of control to be an 'employer' is
essentially a factual issue, unlike the question in Kyne, which depended solely
upon construction of the statute. The Kyne exception is a narrow one, not to be
extended to permit plenary district court review of Board orders in certification
proceedings whenever it can be said that an erroneous assessment of the
particular facts before the Board has led it to a conclusion which does not
comport with the law. Judicial review in such a situation has been limited by
Congress to the courts of appeals, and then only under the conditions explicitly
laid down in 9(d) of the Act.
12
Accordingly, the judgment of the Court of Appeals is reversed and the case is
remanded for further proceedings consistent with this opinion. It is so ordered.
13
Judgment reversed and case remanded.
14
Mr. Justice DOUGLAS dissents.
Section 9(c) of the National Labor Relations Act, as amended 29 U.S.C.

159(c), provides in pertinent part:
'(1) Whenever a petition shall have been filed, in accordance with such
regulations as may be prescribed by the Board
'(A) by an employee or group of employees or any individual or labor
organization acting in their behalf alleging that a substantial number of
employees (i) wish to be represented for collective bargaining and that their
employer declines to recognize their representative as the representative defined
in subsection (a) of this section, or (ii) assert that the individual or labor
organization, which has been certified or is being currently recognized by their
employer as the bargaining representative, is no longer a representative as
defined in subsection (a) of this section; or
'(B) by an employer, alleging that one or more individuals or labor
organizations have presented to him a claim to be recognized as the
representative defined in subsection (a) of this section;
the Board shall investigate such petition and if it has reasonable cause to
believe that a question of representation affecting commerce exists shall
provide for an appropriate hearing upon due notice. Such hearing may be
conducted by an officer or employee of the regional office, who shall not make
any recommendations with respect thereto. If the Board finds upon the record
of such hearing that such a question of representation exists, it shall direct an
election by secret ballot and shall certify the results thereof.'
2
Section 10 of the National Labor Relations Act, as amended, 29 U.S.C. 160,

provides in pertinent part:
'(e) The Board shall have power to petition any court of appeals of the United
States, or if all the courts of appeals to which application may b made are in
vacation, any district court of the United States, within any circuit or district,
respectively, wherein the unfair labor practice in question occurred or wherein
such person resides or transacts business, for the enforcement of such order and
for appropriate temporary relief or restraining order, and shall file in the court
the record in the proceedings, as provided in section 2112 of Title 28. * * *
'(f) Any person aggrieved by a final order of the Board granting or denying in
whole or in part the relief sought may obtain a review of such order in any
United States court of appeals in the circuit wherein the unfair labor practice in
question was alleged to have been engaged in or wherein such person resides or
transacts business, or in the United States Court of Appeals for the District of
Columbia, by filing in such a court a written petition praying that the order of
the Board be modified or set aside.'
Section 9(d) of the National Labor Relations Act, 29 U.S.C. 159(d), provides
in pertinent part:
'Whenever an order of the Board made pursuant to section (c) * * * is based in
whole or in part upon facts certified following an investigation pursuant to
subsection (c) of this section and there is a petition for the enforcement or
review of such order, such certification and the record of such investigation
shall be included in the transcript of the entire record required to be filed under
subsection (e) or (f) * * *, and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of the Board shall be
made and entered upon the pleadings, testimony, and proceedings set forth in
such transcript.'
H.R.Rep. No. 972, 74th Cong., 1st Sess., 5.
'* * * Section 9(d) of the bill makes clear that there is to be no court review
prior to the holding of the election, and provides an exclusive, complete, and
adequate remedy whenever an order of the Board made pursuant to section
10(c) is based in whole or in part upon facts certified following an election or
other investigation pursuant to section 9(c). The hearing required to be held in
any such investigation provides an appropriate safeguard and opportunity to be

heard. Since the certification and the record of the investigation are required to
be included in the transcript of the entire record filed pursuant to section 10(e)
or (f), the Board's actions and determinations of fact and law in regard thereto
will be subject to the same court review as is provided for its other
determinations under sections 10(b) and 10(c).' H.R.Rep. No. 972, 74th Cong.,
1st Sess., 2021.
6
'Section 9(d) makes it absolutely clear that there shall be no right to court
review anterior to the holding of an election. An election is the mere
determination of a preliminary fact, and in itself has no substantial effect upon
the rights of either employers or employees. There is no more reason for court
review prior to an election than for court review prior to a hearing. But if
subsequently the Board makes an order predicated upon the election, such as an
order to bargain collectively with elected representatives, then the entire
election procedure becomes part of the record upon which the order of the
Board is based, and is fully reviewable by any aggrieved party in the Federal
courts in the manner provided in section 10. And this review would include
within its scope the action of the Board in determining the appropriate unit for
purposes of the election. This provides a complete guarantee against arbitrary
action by the Board.' S.Rep. No. 573, 74th Cong., 1st Sess., 14.
79 Cong.Rec. 7658.
See H.R.Rep. No. 245, 80th Cong., 1st Sess., 43; H.R.Rep. No. 510, 80th
Cong., 1st Sess., 5657; U.S.Code Congressional Service 1947, p. 1135.
93 Cong.Rec. 6444.
10
Section 2(3) of the National Labor Relations Act, as amended, 29 U.S.C.

152(3). The effect of this provision was to overrule National Labor Relations
Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. See
H.R.Rep. No. 245, 80th Cong., 1st Sess., 18.

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376 U.S.

Harold A. BOIRE, Regional Director, Twelfth Region, National

Norton J. Come, Washington, D.C., for petitioner.

The Amalgamated Association of Street, Electric Railway and Motor Coach

That this indirect method of obtaining judicial review imposes significant

'When an employee organization has built up its membership to a point where it

independent contractor, since Greyhound has never suggested that the

Judgment reversed and case remanded.

Mr. Justice DOUGLAS dissents.

Section 9(c) of the National Labor Relations Act, as amended 29 U.S.C.

Section 10 of the National Labor Relations Act, as amended, 29 U.S.C. 160,

H.R.Rep. No. 972, 74th Cong., 1st Sess., 5.

any such investigation provides an appropriate safeguard and opportunity to be

Section 2(3) of the National Labor Relations Act, as amended, 29 U.S.C.

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