“The Supreme Court in Boire clearly held that an election order is not a final order subject to direct appellate review.”
How later courts described this case
- “The Supreme Court in Boire clearly held that an election order is not a final order subject to direct appellate review.”
Written by the judges who cited it.
The opinion
PREGERSON, Circuit Judge,
concurring:
I join the majority and concur with Judge Reinhardt, but write separately to outline the main reason, other than stare decisis, that compels the result we reach today.
The long-established rule is that the courts of appeals lack jurisdiction to review election-related unfair labor practices until the Board has held an election, certified a collective bargaining representative based on that election, and ordered the employer to bargain with the new representative. If the employer fails to do so, he commits what counsel for the Board at oral argument described as a “technical 8(a)(5)” violation — that is, an unfair labor practice for violating the duty to bargain, under 29 U.S.C. § 8 (a)(5) (1976), with the duly certified collective bargaining agent. Only in *1207 reviewing the Board’s decision on a technical 8(a)(5) violation may we examine the unfair labor practices that took place during the election. See Boire v. Greyhound Corp., 376 U.S. 473, 476 , 84 S.Ct. 894, 896 , 11 L.Ed.2d 849 (1964); AFL v. NLRB, 308 U.S. 401, 411 , 60 S.Ct. 300, 304 , 84 L.Ed. 347 (1940).
The question in this case is whether the timing of our jurisdiction is any different when the union loses the election and the Board, finding unfair labor practices, orders a re-run election—but fails to conduct that re-run before the employer appeals the unfair labor practice charges stemming from the first election.
The answer is “no” because such an appeal should not come before us until the Board has held the re-run election. The proper time for us to hear objections to the Board’s finding of election-related unfair labor charges is after a technical 8(a)(5) violation, but never before.
Congress knew that this rule would cause some delay in our reviewing election-related unfair labor practice charges. But in enacting National Labor Relations Act § 9, 29 U.S.C. § 159 (1976) (governing certification elections), Congress also recognized that the rule would avoid another, more serious type of delay: the delay in postponing the re-run election. See, e.g., 93 Cong.Rec. 6444 (1947) (remarks of Senator Taft, during Taft-Hartley debates, discussing Wagner Act), quoted in Boire, 376 U.S. at 479 & n. 9, 84 S.Ct. at 898 & n. 9.
The Wagner Act is designed to certify new bargaining representatives as quickly as possible. Until the Board has finally certified the union, nothing obligates the employer to sit down at the bargaining table and negotiate with the would-be bargaining representative. The longer the Board postpones holding a final, conclusive certification election, the more likely the employer will defeat the union. As employees come and go through normal attrition in the bargaining unit, the consensus that once existed about whether to elect a particular bargaining representative may disappear through delay.
In short, an employer can forestall the election—and postpone having to face a legitimate bargaining representative—simply by taking an interlocutory appeal that could produce delay and quietly dismantle the union’s majority. Cf. Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv.L.Rev. 1769, 1795-1803 (1983) (concluding that delayed implementation of remedies for election-related unfair labor practices reduces union victory rate). Congress recognized this, see, e.g., 93 Cong.Rec. 6444 (1947) (remarks of Senator Taft), quoted in Boire, 376 U.S. at 479 & n. 9, 84 S.Ct. at 898 & n. 9, and passed § 9, which defers appellate jurisdiction over election-related unfair labor practice charges until the employer has committed a technical 8(aX5) violation.