“It has long been held that N.L.R.B. certification proceedings do not result in reviewable final orders.”
How later courts described this case
- “It has long been held that N.L.R.B. certification proceedings do not result in reviewable final orders.”
Written by the judges who cited it.
The opinion
WYZANSKI, Senior District Judge
(dissenting):
As I read the record, the NLRB’s April 23, 1971 Decision and Direction, as well as the NLRB’s subsequent notice of election, stated that persons not employed and on the payroll on March 31, 1971 could not vote. That statement excluded 206 adjunct professors, most of whom presumably, would have been eligible to vote had the Decision and Direction, as well as the notice of election, embraced, as the NLRB’s July 27, 1972 order did embrace, adjunct professors who on March 31, 1971 were not on the payroll of that date, but who, nonetheless, had a regular pattern of continuing employment on that date. Despite that statement, 19 of the apparently excluded 206 received ballots, and the NLRB, in its July 27, 1972 order, now under review, has directed that 16 of those ballots be counted and that on the basis of such count the NLRB issue its certification.
My view is that that July 27, 1972 order was in error because it permitted the counting of the 16 votes, or, alternatively, because it sanctioned the exclusion from notice and an opportunity to vote of the 187 adjunct professors who did not vote.
The exclusion of the 187 was, first, a violation of the statutory command, implied in Section 9(a), (b) and (e), which implicitly prescribed that the NLRB must not certify the results of an election based upon an eligibility roll larger than the standard of eligibles the Board announced before and at the election. It was, second, a violation of the due process clause of the Fifth Amendment to the United States Constitution because it denied to 187 persons notice and an opportunity to vote. The first violation gave jurisdiction to the District Court under the doctrine of Leedom v. Kyne, 358 U.S. 184, 188, 189 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958). The second violation gave jurisdiction to the District Court under the doctrine of Fay v. Douds, 172 F.2d 720 (2nd Cir. 1949).