Howard E. Shank and Ruth Warner, Plaintiffs-appellants, v. National Labor Relations Board, Etc., and General Electric Company, a Corporation, Defendants-appellees, 260 F.2d 444 (7th Cir. 1958)

In oral argument before this court, counsel for plaintiffs explained that the Constitutionality of Congressional delegation of discretion to the General Counsel of the N.L.R.B., to decide whether action would be taken on particular charges, was not questioned in general, but that plaintiffs sought to have the statute construed to determine whether the manner in which the General Counsel exercised his discretion, with respect to plaintiffs' particular charges, was permissible, and if so, whether it was not such as to allow abuse of rights guaranteed to plaintiffs

The theory apparently is that the N.L. R.B. is in constant receipt of charges so numerous as to render action impracticable on all of them, and that the General Counsel's method of selection results, in the case of plaintiffs, in estoppel of their right to raise constitutional issues.

This Court has held that although the National Labor Relations Act created rights against employers which did not exist before, such rights were not private rights vested in the employees, but were public rights, and that, accordingly, the function of the Board was to be performed in the public interest and not in vindication of private rights. Local Union No. 12, Progressive Mine Workers of America, Dist. No. 1 v. N. L. R. B., 7 Cir., 1951, 189 F.2d 1, at page 5, and cases there cited. Certiorari denied 342 U.S. 868, 72 S. Ct. 109, 96 L. Ed. 653.

Defendant N.L.R.B. contended that if plaintiffs had an action, it was solely against the General Counsel, not the Board itself, and that in such case plaintiffs had mistaken their venue.

As a collateral issue, plaintiffs also raised the question of whether or not failure to exhaust administrative remedies bars action in the federal district courts by way of declaratory judgment. Plaintiffs cited Parker v. Lester, 9 Cir., 1955, 227 F.2d 708, as authority for petitioning declaratory judgment at this time. In that case, the Court held that the administrative remedy provided by the statute was demonstrably incapable of affording due process. The case did not deal with the N.L.R.B. Act, which in this respect was upheld by Clark v. Lindemann & Hoverson Co., 7 Cir., 1937, 88 F.2d 59, certiorari denied 300 U.S. 681, 57 S. Ct. 752, 81 L. Ed. 885; Independent Workers of Clayton Mark & Co. v. Beman, 301 U.S. 707, 57 S. Ct. 941, 81 L. Ed. 1361; Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 48, 58 S. Ct. 459, 82 L. Ed. 638.

Declaratory judgments are limited to cases of actual controversy (as distinguished from differences or disputes of a hypothetical, abstract, academic, or moot quality) which are real and substantial, admitting of specific relief through a decree of conclusive character. Winsor v. Daumit, 7 Cir., 1950, 185 F.2d 41, 43-44. We find no basis for such conclusive decree here

Plaintiff Howard E. Shank complained that he was not a party to the original state court action in which injunction against mass picketing, etc. issued, and that he was improperly named as respondent in a pending, undetermined petition brought by defendant General Electric Company to show cause wherein Howard E. Shank was not in contempt of that injunction order, in his having held a breakfast meeting at his residence adjacent to the property of defendant General Electric Company, which was then being picketed

Plaintiff Ruth Warner alleged that the defendant General Electric Company had improperly discharged her and had refused to negotiate with Local 997, International Union of the United Automobile Workers, on the ground that while Ruth Warner was president of the Local, there had been a work stoppage which was "illegal" under the terms of their then contract