noting that “dissenting opinions are not always a reliable guide to the meaning of the majority”
How later courts described this case
- noting that “dissenting opinions are not always a reliable guide to the meaning of the majority”
Written by the judges who cited it.
The opinion
LEONARD P. MOORE, Circuit Judge
(dissenting).
Very few Labor Board cases lend (or should lend) themselves to broad generalities. For this reason, review should be restricted to the specific issues posed, and passed upon, by the Board and the District Court. Local 1545 has a contract effective until May 1, 1961. United Furniture Workers of America, desirous of securing Local 1545’s present representation, petitioned for an election. Local 1545 equally desirous of holding on to its representation resists. The Board found (three to two) that “Clearly, if the contract is valid for contract bar purposes, the petition is not timely filed and must be dismissed.” This language can be interpreted only as a statement that for some reason the three majority members believed that the contract was invalid; otherwise they too would have voted to dismiss the petition. The Board majority confined their finding of invalidity to a single point, namely, that an agreement which contains a “hot-cargo” clause now “proscribed by Section 8(e),” although valid when included in the Contract (May 1, 1957; May 1, 1959), is invalid. They then indulge in a completely illogical (in my opinion) “non sequitur” by saying that unless they hold a representation proceeding (merely an election between rival unions), they will “be giving force and effect to such [hot-cargo] clauses” despite the fact that the “hot-cargo” clause (1) is not involved here in any way; (2) was never used or taken advantage of so far as the record discloses; (3) was valid when made; and (4) was of no effect when made void and unenforceable by Section 8(e). To dispel any doubt as to the basis for its decision, the Board majority said:
*134 “Accordingly, we now hold that a contract containing a provision proscribed by Section 8(e) of the Act will not bar an election, unless such provision is enforcible under the proviso to that section.”
and
“In view of the foregoing, we find that the current contract between the Employer and the Intervenor is not a bar to the petition * * * ”
The belief that the Board majority would have upheld the contract bar but for their mistaken (in my opinion) view that Section 8(e) was, in effect, a Congressional mandate is further confirmed by the two minority opinions. I am in complete accord with the logical analysis of Congressional action and intent ably expressed by dissenting Board member Fanning as follows:
“The majority here is diverting the basic philosophy of the contract bar concept to a purpose other than that for which it'was designed. The majority is • abrogating a contract freely arrived at under the orderly arid peaceful procedures of collective bargaining -in order to remedy an unfair labor practice committed under Section 8(e). This is outside the purview of a representation proceeding. Congress has provided a remedy under the unfair' labor practice provisions of the Act, and the Board has repeatedly stated that it will not permit the litigation of an urifair labor practice in a representation proceeding.
“The majority, moreover, in its ‘remedy’ goes beyond the policy of Congress under Section 8(e) which it claims to be enforcing. The majority by refusing to find the contract a bar in this case is abrogating the contract in its entirety. Congress, however, in Section 8(e) provided that as to a ‘hot cargo’ clause ‘any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void.’ (Emphasis supplied.) It did not provide that the whole contract was to be a nullity, as the majority in effect is holding in this case.”
I am not unmindful of the wide discretion vested in the Board in. representation proceedings. 1 And I quite agree with the majority here that'no constitutional or Leedom v. Kyne 2 question faces us. I do not agree, however, that there should be an assumption that there are only two exceptions to appellate noninterference and then, by exclusion from these categories, the conclusion should be reached that no review is available. Nor is it any answer; in my opinion, to say that the Board has the power (except as restricted by Sec. 9(c) (3), 29 U.S.C.A. §. 159(c) (3), to order an election regardless of 'any outstanding contract, valid or invalid. The Board has shown here that it was' not exercising this power. I recognize that the exigencies of representation proceedings require that judicial review thereof should be kept to a minimum. I would hold, however, that the Leedom v. Kyne exception could safely be broadened to include situations where the Board has entirely misconstrued the import of a clear statutory provision in exercising its admittedly broad discretion. Because I do not believe Section 8(e) (as interpreted by the Board majority) applies to the resolution of the petition before the Board, I would continue the injunction but remand to the Board for a redetermination of the contract bar question unaffected by the prior assumption that the 1959 amendment (Sec. 8(e), in effect, vitiated the contract bar rule.
. See the many cages cited in the majority opinion.
. 1957, 101 U.S.App.D.C. 398 , 249 F.2d 490 , affirmed 1958, 358 U.S. 184 , 79 S.Ct. 180 , 3 L.Ed.2d 210 .