“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
REINHARDT, Circuit Judge,
concurring:
I agree completely with Judge Hug’s opinion. I would add only that there is good reason that Congress did not afford the courts jurisdiction over NLRB election orders. Congress intended that NLRB elections be conducted expeditiously and that they not be delayed by judicial proceedings. Employees come and go, and all too often those who seek union representation are no longer employed by election day. Congress feared that, given the opportunity, unsympathetic employers might seek to delay elections until the atmosphere and the electorate had been changed drastically. See A.F. of L. v. Labor Board, 308 U.S. 401 , 410 n. 2, 60 S.Ct. 300 , 304 n. 2, 84 L.Ed. 347 (1940) (quoting H.R.Rep. No. 1147, 74th Cong., 1st Sess. 6 (1935)). Thus, in sections 9 and 10 of the Taft-Hartley Act (originally the Wagner Act), Congress provided for elections first and litigation afterwards.
In light of the above, it is somewhat puzzling that although the employer has neither sought nor received any restraining order or other injunctive relief (and in fact could not have obtained any), the election has still not been conducted by the NLRB. In Anja, the election also was long delayed and had not been completed at the time of the proceedings before us. At oral argu *1208 ment the NLRB and the union, which are on the same side in this proceeding, offered conflicting explanations for the delay in holding the elections. It is not necessary to attempt to determine the true reason. All that need be said is that the failure to conduct elections prior to the conclusion of the unfair labor practice litigation seems to be contrary to the congressional scheme and to defeat the congressional purpose. I would add only that delay is appropriate in the limited circumstance in which the alleged unfair labor practices may have adversely affected the union’s majority, the effects of that conduct have not been dissipated, and the labor organization involved requests that the election be delayed.