The opinion
KENNEDY, Circuit Judge,
concurring:
I concur in the result but with reservations, for the rule we set forth here may be at odds with an analogous line of authority. In a somewhat different context the Board and some courts have held a union’s disclaimer of representation of a unit during the life of a bargaining agreement is not valid and will not be given effect. See, e. g., East Manufacturing, 242 N.L.R.B. No. 5 (1979); American Sunroof Customcraft, Inc., 243 N.L.R.B. No. 172 (1979); American Sunroof/Customcraft, Inc. v. Teamsters Local No. 665, No. C-78-2371 SC (N.D.Cal. May 25, 1979). Those cases arose when an employer resisted a new election on the ground that the extant collective bargaining agreement barred the unilateral disclaimer. It is not clear to me that the rule should be different where the employee is the petitioner and asserts that the union has a continuing obligation to afford representation during the life of the contract, at least absent circumstances not present in this case. The result of the instant holding, taken with the above cases, might be that an employer may prevent another union from assuming representation over a unit during the life of the current collective bargaining agreement, yet the individual employee member cannot require the disclaiming union to represent him. That does not seem consistent.
The requirement that a union disclaimer of representation be nondiscriminatory and in good faith may provide sufficient protection to the employee. That ground and the usual deference that we afford to the Board’s effort to apply federal labor law to a' novel factual setting lead me to concur in the result reached by the court.