Lawrence Typographical Union v. McCulloch

BAZELON, Chief Judge

(concurring) :

I agree with Judge Edgerton that the Board’s rule that employer instigation of a decertification petition may be litigated only in an unfair labor practice proceeding does not deprive appellant of an “appropriate hearing” on whether a “question of representation exists * * 29 U.S.C. § 159 (c) (1) (1958). The Labor Act provides that the regional “officer or employee” who holds initial hearings in representation proceedings “shall not make any recommendation” on whether a question of representation exists. Ibid. In unfair labor practice proceedings, however, the hearing examiner does make findings and recommendations before the proceedings reach the Board. Because voluminous testimony is often involved in the employer instigation issue, and assessment of witness credibility may be crucial, the Board may properly find that it needs the hearing examiner’s findings and recommendations, and that this issue is thus best litigated in unfair labor practice proceedings.

The Board here has called into question the union’s representative status by directing an election. It has imposed this “sanction” without affording an evi-dentiary hearing on the employer instigation issue. But the union, if it loses the election, is able to secure such hearing in an unfair labor practice proceeding 1 by picketing within the year after its loss, National Labor Relations Board v. Local 182, International Brotherhood of Teamsters, 314 F.2d 53, 59-61 (2d Cir. 1963). Since the union may thus protect its interest and since the Board’s procedures *709 here have a reasonable administrative justification, I think that judicial intervention under the narrow doctrine of Leedom v. Kyne, 358 U.S. 184 , 79 S.Ct. 180 (1958), is not appropriate. The policy must prevail that representation questions should be speedily resolved through the procedures chosen by the Board.

. 29 U.S.C. § 158 (b) (7) (B) (Supp. V, 1964).