courts of appeals. 29 U.S.C. § 160(f). Thus, this district court has no statutory jurisdiction in the first instance over any challenge to an order of the NLRB by an allegedly aggrieved party.
The Supreme Court has explicitly stated that "Board orders in certification proceedings under § 9(c) are [ordinarily] not directly reviewable in the courts." Boire v. Greyhound Corp., 376 U.S. 473, 476, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964). This is because these orders do not constitute "final orders" subject to review in the Courts of Appeals pursuant to 29 U.S.C. § 160(e) and (f). Id. Certification decisions 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." Id. at 477. The Supreme Court recognized and approved of the fact that this procedure "imposes significant delays upon attempts to challenge the validity of Board orders in certification proceedings." Id.
This district court must recognize this congressional limitation upon its jurisdiction to review agency action where the Congress has imposed a comprehensive scheme for review of some matters and not others, in some courts and not others. See Califano v. Sanders, 430 U.S. 99, 108, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977).
The Court in Boire identified two exceptions to this general rule against reviewability of certification decisions, neither of which are alleged by plaintiff to be present here. In Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958), the Board had approved as a bargaining unit a group which included both professional and non-professional employees in direct contravention of a statutory prohibition on such a combination. Thus, the court held that jurisdiction was proper in a federal district court over a dispute which 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." Id. at 188.
Plaintiff has not provided this court with any statutory authority which forbade the Board from certifying a bargaining unit which included "casual" employees who worked on average more than four hours per week for the employer in the previous quarter. In fact, the Board has consistently permitted certifications of bargaining units which contain such workers pursuant to a formula set forth in Davison-Paxon Co., 185 N.L.R.B. 21, 23-24 (1970). See, e.g., Northern California Visiting Nurses Association, 299 N.L.R.B. No. 148 (Sept. 27, 1990); Sisters of Mercy Health Corp., 298 N.L.R.B. No. 72 (May 11, 1990).
Nor is the second exception identified in Boire applicable here. The Boire court referred to an exception permitting district court jurisdiction where the compelling need exists to determine the applicability of the laws of the United States to foreign entities. Boire, 376 U.S. at 480 (citing McCulloch v. Sociedad Nacional, 372 U.S. 10, 9 L. Ed. 2d 547, 83 S. Ct. 671 (1963)). This exception does not apply to the instant dispute raised by a domestic individual against a domestic entity.
Plaintiff also alleges in his complaint that defendant's conduct has in some manner violated his constitutional right to due process of law. Amended Complaint at P 9. In support of this claim, plaintiff argues that "the union process was perverted, employees were misinformed as to what union would govern them." Id. Plaintiff further arrives that "the inconsistencies concerning the vote, and the union jurisdictions, are too numerous to detail." Id. at P 10.
Where the Congress has explicitly limited district court jurisdiction over certain matters, a litigant may not bootstrap into district court jurisdiction simply by characterizing a claim as raising constitutional questions. Califano v. Sanders, 430 U.S. at 109, citing Weinberger v. Salfi, 422 U.S. 749, 762, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975) (constitutional claims will not be heard in the federal district courts if there is "clear and convincing" evidence that Congress drafted statutory provisions with an intent to foreclose them); Johnson v. Robison, 415 U.S. 361, 366-67, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974). The court concludes that the detailed procedure established by the Congress for the review of National Labor Relations Board certification proceedings and recognized as valid by the Supreme Court in Boire notwithstanding its negative effect on the ability of litigants to challenge union certifications forecloses the review of plaintiff's alleged constitutional claims. This court simply has no jurisdiction to address plaintiff's claims.
For the foregoing reasons, the court concludes that plaintiff's complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(2), as the court has no jurisdiction over the subject matter.
An appropriate order will follow.
JEROME B. SIMANDLE
UNITED STATES DISTRICT JUDGE