applying the “strong and clear” requirement to both constitutional and statutory claims without citation or explanation as to why the test applies to constitutional claims
How later courts described this case
- applying the “strong and clear” requirement to both constitutional and statutory claims without citation or explanation as to why the test applies to constitutional claims
- "the showing that the Board has violated the Act or deprived a plaintiff of constitutional rights must be strong and clear"
Written by the judges who cited it.
The opinion
TAMM, Circuit Judge
(dissenting):
I would affirm the action of the District Court in this case. Under the authority of Leedom v. Kyne, 358 U.S. 184 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958), the District Court had jurisdiction to enjoin the Board from acting in excess of its power and contrary to the provisions of the act. “This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Leedom v. Kyne, supra, at 190 , 79 S.Ct. at 185 . I believe the Board acted in excess of its authority and in clear contravention of § 9(c) (1) 1 in conducting an election where, as the Board expressly found in this case, there was no question of representation involved. It is my belief that as an express statutory prerequisite to the holding of any election there must exist a question concerning representation.
It is my view of this case that the Board has arbitrarily exercised a power that has neither been conferred upon it by Congress nor is implied by any phraseology contained in the act. The case illustrates the consistent tendency of administrative agencies to assume and exercise by accretion powers not granted to them specifically or by necessary implication. Undoubtedly in most instances this grasping for non-authorized powers is motivated by a sincere desire to perform more effective and efficient functions. I believe that the courts must insist, however, that the administrative agencies confine their operations specifically to those fields of activity which are bounded by the statutes which create their authority and authorize their operations. If additional power or functions are essential to a proper discharge of an agency’s responsibilities, those powers or functions should not be self created but should be sought from the Congress.
. 29 U.S.C. § 159 (c) (1) (1964). The statute provides:
Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board * * * the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. (Emphasis supplied.)