“[Cjonsiderations of efficiency and judicial economy seem to suggest that we review the election order as well.”
How later courts described this case
- “[Cjonsiderations of efficiency and judicial economy seem to suggest that we review the election order as well.”
- “[C]onsiderations of efficiency and judicial economy seem to suggest that we review the election order as well.”
- “An employer’s questioning becomes coercive and runs afoul of section 8(a)(1) when it ‘suggests to the employees that the employer may take action against them because of their pro-Union sympathies.’” (quoting Frito-Lay, 585 F.2d at 65)
- arguing for judicial review of second-election orders in the certification context
Written by the judges who cited it.
The opinion
GARTH, Circuit Judge,
dissenting:
The majority opinion correctly concludes that four of the six unfair labor practices found by the Board were unsupported by the record. It also correctly holds that there is no evidence that the two unfair labor practices that were supported by evidence in the record contaminated the rest of the bargaining unit. To this point I am in complete agreement with the majority’s analysis and conclusions.
I do not join the majority opinion, however, because the majority, while recognizing that the predicate for the Board’s order of a new election (the unfair labor practices which we now hold have no support in the record) has now disappeared, nevertheless *544 refuses to set aside the Board’s order setting aside the July 20, 1979 election and ordering a second election. It declines to do so on the ground that we have no jurisdiction over this part of the Board’s order, as it is not a “final order” and therefore may not be reviewed.
It is from this latter holding that I must respectfully dissent. In my opinion, neither the National Labor Relations Act, nor the authorities interpreting that Act, establish that a Court of Appeals has no jurisdiction in a situation such as this one. Indeed, logic, policy, prudential and jurisprudential considerations dictate otherwise. Therefore, while I subscribe to all of the majority’s opinion with respect to the unfair labor practices and its holding that the bargaining unit was not contaminated, I am obliged to dissent from so much of the majority opinion as refuses to review (and then reverse) the Board’s determination that a second and unnecessary election must be held.
I.
The election in this case which was held on July 20, 1979, resulted in a vote as follows:
93 votes against the union;
68 votes for the union;
7 challenged ballots.
App. 27, 220.
The union claimed that the company had engaged in various unfair labor practices, and that these violations invalidated the election. The Administrative Law Judge did not agree. He found that “the Respondent engaged in coercive interrogation, in three instances, involving two employees. I conclude that they were isolated and two' [sic] minimal to warrant invalidating the election...” App. 27.
The Board, on the other hand, concluded that three additional instances of coercive interrogation and one instance of interference with handbilling had occurred and, without any explanation and without substantial evidence, concluded that this increased number of violations had tainted the entire election. App. 9. The Board thus determined that the July 20,1979 election had to be set aside and a new election ordered.
This court has now unanimously concluded that none of the additional unfair labor practices which the Board found are supported by the record. Thus, the entire foundation for the Board’s determination that the July 20th election was tainted and must therefore be invalidated, has now been removed. As the record now stands, the underpinning for the Board’s order of a new election no longer exists. Yet it is argued that, despite this circumstance, we may not review the Board’s order which requires a new election—even though the original election held on July 20, 1979 is free from contamination, is therefore valid, and no reason exists not to give it effect.
I cannot agree.
II.
As I read the provisions of the National Labor Relations Act (particularly those pertaining to review), they do not, by their terms, expressly grant or withhold Court of Appeals jurisdiction over a Board order for a second election. Indeed, they do not even address this subject, any more than they expressly address Court of Appeals jurisdiction to review an order which directs, or results from, an initial representation election. 1 However, it has been made clear that the Act’s review mechanism precludes review of an order directing an initial representation election until after the Board has ordered the employer to take particular actions predicated upon the results of that election and the employer has refused. 2 This procedure has been summarized by one commentator as:
*545 Section 10(f) [ 29 U.S.C. § 160 (f)] of the NLRA permits a “person aggrieved by a final order of the Board” to petition for review of the order in a court of appeals. Both the finding of an unfair labor practice and the dismissal of an unfair labor practice complaint qualify as final orders, but neither the certification of a union nor a refusal to certify constitutes a final order. Where the Board certifies a union and the employer objects to the certification (on the grounds of pre-election misconduct, or bargaining unit inappropriateness, for example), the employer may refuse to bargain with the union. A § 8(a)(5) [ 29 U.S.C. § 158 (a)(5)] complaint alleging an unlawful refusal to bargain will issue against the employer and the Board will issue a summary judgment and a bargaining order. If the employer refuses to comply with the order and forces the case to the court of appeals, the employer will defend by raising the representation issues, (footnotes omitted) 3
Yet, it is undeniable that the Act on its face does not expressly limit section 160(f) (“final order”) review of election orders to situations where an order based on section 158(a)(5) (refusal to bargain) has issued. The Act simply provides that review may be sought only where a “final order” of the Board has issued. 4 The jurisdictional gloss on the statute has been provided by those cases which have held that, where the union has prevailed in an election and has been certified, in order for the employer to obtain review of the election the employer must first refuse to bargain with the union. Its refusal to bargain constitutes an unfair labor practice under section 158(a)(5). The order then issued by the Board, directing the employer to cease and desist from its refusal to bargain, has been held to constitute a “final order” reviewable under section 160(f). In such cases, it is often asserted that when, and only when, such an order issues, may a representation order be reviewed by the court. See, e.g., Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139 , 91 S.Ct. 599, 600 , 27 L.Ed.2d 735 (1971).
However, it must be remembered that the cases which have established this “gateway to review” by the Courts of Appeal are different in a very significant respect from the case with which we have been presented here. First, all of the Supreme Court cases, and the leading Court of Appeals’ cases, in which this requirement of a Section 158(a)(5) “final order” has been stated, are cases encompassing just two categories.
One category consists of cases in which no election has ever been held. See American Federation of Labor v. NLRB, 308 U.S. 401 , 60 S.Ct. 300 , 84 L.Ed. 347 (1940); NLRB v. International Brotherhood of Electrical Workers, 308 U.S. 413 , 60 S.Ct. 306 , 84 L.Ed. 354 (1940); NLRB v. Falk Corp., 308 U.S. 453 , 60 S.Ct. 307 , 84 L.Ed. 396 (1940); Boire v. Greyhound Corp., 376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964). The other category consists of cases in which an election has been held, the Board has found the election to be tainted, and the ■ “taint” (unfair labor practices) found by the Board, has been upheld on court review. *546 See Hendrix Manufacturing Co. v. NLRB, 321 F.2d 100 (5th Cir.1963); Daniel Construction Co. v. NLRB, 341 F.2d 805 (4th Cir.1965).
I agree that orders directing elections in both of these categories can only be reviewed after the company has committed the unfair labor practice of refusing to bargain with a certified bargaining agent. The present case, however, does not fall within either category, and indeed, for purposes of review, is so dramatically different that I submit it cannot be, and is not, subject to the same judicial rule.
Here, an election was held in which the employees by a substantial margin chose not to be represented by a union. The four major unfair labor practices found by the Board have not been sustained on review by this court. Thus, the crucial difference between this situation, and the cases routinely cited as authority for the Section 158(a)(5) “final order” requirement, is that here the “taint” found by the Board has been held by a Court of Appeals not to exist. The only question then remaining is whether we may review that auxiliary portion of the Board’s final order directing that a new election be held—an order which was imposed only because of the Board’s finding of unfair labor practices.
III.
In this situation our analysis must begin with the premise that a free and fair election has already been held 5 and that therefore no reason whatsoever exists for not giving effect to that election. Yet, it is argued that in such a situation, because the “normal” review procedure first requires that the company refuse to bargain (an unfair labor practice) and because this procedure obviously cannot be followed here, no “final order” has issued. Thus, it is claimed, review by this court at this time is not possible under the Act.
I suggest that this cannot be so for three reasons. First, that portion of the Board’s order directing a new election constitutes no more than an incidental and remedial aspect of the Board’s cease and desist order predicated on unfair labor practices, which we have not sustained. Such an “order” is therefore wholly dependent on the finding and sustaining of the unfair labor practices. Because of this dependence, when the unfair labor practices fall, so too must the dependent and collateral “order,” which directs a new election to be held. For certainly, where there is no liability, i.e., unfair labor practices contaminating the election, there can be no remedy and it is manifest that the Board’s direction of a new election is no more than a device to remedy the contamination of the original election—a contamination that is now unsupported in the record.
Second, neither the statute nor the cases glossing the statute, require that another and needless second election must now be held in order to vest this court with jurisdiction to set aside an “election order” which should never have been issued in the first place.
Third, not only do I regard the “new election” order as part and parcel of the Board’s “final” cease and desist order, so that both are reviewable by us as a “final order”, but I also regard reviewability at this time to be required by sheer logic, reason and common sense.
IY.
A.
Little more need be said about the first reason I have advanced for finding finality in the Board’s order for a new election. It cannot be disputed that, had the Board not found any unfair labor practice—or once having found unfair practices, having de *547 termined that they did not infect the election—no rerun election would have been ordered. It must be obvious that the order for the rerun election is therefore interrelated with and wholly dependent upon the unfair labor practices which have preceded it. The moment that the unfair labor practices, which provide the foundation for a new election, crumble because they are found not to be legitimate, the Board’s accessory order for the second election must necessarily fall as well. Thus, treating or regarding the Board’s order for a new election as a separate and discrete order which must carry the weight of finality of and by itself in this context, exalts form over substance. Without the four unfair labor practices upon which the Board predicated its election order there can be no new election. Under these circumstances, the Board’s order for a new election can no longer survive.
B.
Does the Act, or do the cases hold otherwise? As I have previously noted, the Act by its terms does not deal with this subject.
What do the cases teach? The cases that have actually addressed this problem 6 have depended wholly upon authorities which are valid only in the context I have addressed earlier, i.e., where no election has ever been held, or where an election, once held, was found by the Board and the reviewing court to be tainted.
Without analysis, these cases, have held that the Board’s new election order is not a “final order” and is hence not reviewable. 7 These cases have wrenched the principle, valid in the context in which it was announced, from its proper context and with neither logic nor reason have almost by rote recited the rubric of non-reviewability. In the following section of this opinion I point out how illogical and anomalous it would be to hold the Board’s new election order in the present context, unreviewable. Yet without looking beyond the statement of the rule as found in Falk, supra, and AF of L, supra, complete reliance is placed by these courts on a principle of reviewability having no application to the unique circumstance of a “second-election” case where the original election was not tainted.
I suggest that those cases holding that a Court of Appeals may not review the Board’s election order in such a situation have been incorrectly decided and have relied upon authorities that are inapposite.
C.
In light of reason, let us examine the unique situation which this case would present if we are not permitted to review and set aside the Board’s “remedy” of a new election.
*548 In this case, we have reviewed the unfair labor practices charged by the union because the Board’s order stemming from those charges constitutes a “final order.” We have thus affirmed that in the two instances where the record sustains an unfair labor practice we will enforce the cease and desist order (a “final order”) entered by the Board. However, the Board has also ordered that a new election be held. It is argued that that portion of the Board’s order is not a “final order” and that we therefore cannot review it. We are told that despite the fact that no unfair labor practices which contaminated the bargaining unit have occurred, a new election must nevertheless be held.
If a new election is indeed held and the union then prevails and is certified, the employer will then be free to refuse to bargain and by that refusal the employer will have committed an unfair labor practice (§ 8(a)(5)) which will enable a Court of Appeals to review the second election. The employer will then assert, on that review, the very same arguments which it has urged in this case, i.e., that the original (here the July 20,1979) election was a valid election, that it was not tainted by the two unfair labor practices (support for which is found in the record), and that the company having prevailed in the original election, no other election should or could have been held for at least another year. See 29 U.S.C. §§ 159 (c)(3) and 159(e)(2); Lamar Hotel, 137 NLRB No. 136 (1962). In the second election proceeding therefore, the employer uncontrovertibly must be successful in setting aside that election (the second one) and in effectively restoring the situation to the precise situation that obtains now.
It will have done so, however, only after considerable delay, expense and effort, all of which, in light of our holding today that four of the 1979 unfair labor practices (those in connection with the first election) are not supported by the record, will constitute a meaningless and futile exercise.
What if the company were to prevail at the hypothetical second election? Then, of course, if no unfair labor practices were charged by the union we can assume that effect would be given to that second election. This, too, however, would not have come about until after a considerable delay and substantial expenditures of time and effort. Such delay would also create the possibility of increased labor management strife during the intervening period, contrary to the basic goals of the NLRA. 8
If, however, the union had charged that unfair labor practices occurred during this second election, and the Board so finds, but those charges are again found to be unsupported in the record, then under the author *549 ities cited by the majority, the Board’s order of still another rerun election, once again could not be reviewed. 9
It thus appears that if in our present situation we were to deny reviewability on the grounds that no final order had been issued, we would end up with an illogical and indefensible result. We would compel one or more elections to be held after the original election—none of which could be given effect. Such a practice could only accentuate the potentiality for industrial strife which the Act itself was enacted to prevent, see n. 8, supra, and in any event, the result would not change. The original election would be upheld.
V.
My answer, therefore, to the majority and to those who would read the Board’s order narrowly and thereby profess that the Board’s new election remedy is not a part of the Board’s final order which we may review, is simple and straightforward. The Act, neither by its terms nor in its interpretation, proscribes review at this stage in the situation which this case presents. Logic and reason dictate that we review the remedy and reverse it when no right establishing that remedy has been shown. The cases cited by the Majority and the authorities upon which they rely, either do not address this particular situation, or if they do, they do so unanalytically and unpersuasively, and I suggest, incorrectly.
Thus, it seems indisputably evident that the new election provision of the Board’s order must stand or fall with its predicate. The predicate (the unfair labor practices) having fallen, so must the “order” for the election, both being inextricably bound together. The election provision is wholly dependent upon a finding of unfair labor practices that tainted the original election, and so both must be considered as the final order of the Board.
As the final order of the Board, it is reviewable, and it is reviewable now. I would therefore review the Board’s entire order and set it aside. To the extent that the majority does not do so, I respectfully dissent.
. See 29 U.S.C. §§ 159 (d) and 160(f).
. See, e.g., 79 Cong.Rec., 7658; Sen.Rep. No. 573, Committee on Education and Labor, 74th Cong., 1st Sess. 14; House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess. 23; American Federation of Labor v. NLRB, 308 U.S. 401 , 60 S.Ct. 300 , 84 L.Ed. 347 (1940); NLRB v. Falk Corp., 308 U.S. 453 , 60 S.Ct. 307 , 84 L.Ed. 396 (1940).
. D. Leslie, Cases and Materials on Labor Law (1979) at 103.
. 29 U.S.C. § 160 (f) provides, in relevant part:
(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.
Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e) of this section, and shall have the same jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board; the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive, (emphasis added).
. The circumstance here, where only two unfair labor practices affecting two employees have been found to be supported by the evidence and those are held not to have tainted or infected the bargaining unit, is no different from the situation where no unfair labor practices have ever been charged and the company has prevailed in the election. In both instances the election reflects the free and fair exercise of the employees’ franchise and no reason is presented to set such election aside.
. See NLRB v. Intertherm, Inc., 596 F.2d 267, 278 (8th Cir.1979); NLRB v. Monroe Tube Co., 545 F.2d 1320, 1329 (2d Cir.1976); Marine Welding & Repair Works, Inc. v. NLRB, 439 F.2d 395 , 399 (8th Cir.1971); American Bread Co. v. NLRB, 411 F.2d 147 , 156 (6th Cir.1969); Holly Hill Lumber Co. v. NLRB, 380 F.2d 838, 840 (4th Cir.1967); NLRB v. Lifetime Door Co., 390 F.2d 272 , 274 n. 3 (4th Cir.1968); Daniel Construction Company v. NLRB, 341 F.2d 805 , 808-10 (4th Cir.), cert. denied, 382 U.S. 831 , 86 S.Ct. 70 , 15 L.Ed.2d 75 (1965); Hendrix Manufacturing Company v. NLRB, 321 F.2d 100, 106 (5th Cir.1963); Bonwit Teller, Inc. v. NLRB, 197 F.2d 640 , 642 n. 1 (2d Cir.1952), cert. denied, 345 U.S. 905 , 73 S.Ct. 644 , 97 L.Ed. 1342 (1953); NLRB v. LaSalle Steel Co., 178 F.2d 829 , 832 n. 1 (7th Cir.1949), cert. denied, 339 U.S. 963 , 70 S.Ct. 996 , 94 L.Ed. 1372 (1950).
Unfortunately the only case cited by the company for the proposition that this court may reverse the Board’s order of a second election in the present posture does not even discuss the jurisdictional issue addressed by all the above cases. NLRB v. General Telephone Directory Company, 602 F.2d 912, 920 (9th Cir.1979). The only authority cited for this proposition in General Telephone is Hecla Mining Co. v. NLRB, 564 F.2d 309, 316 (9th Cir.1977), a case in which representation orders were properly before the court pursuant to an unfair labor practice order after the company refused to bargain with a bargaining representative certified after a fourth election. 564 F.2d at 312 . Indeed, in Hecla Mining, the Ninth Circuit reiterated its acceptance of the general rule that “review typically occurs when an employer appeals the Board’s decision that its refusal to bargain with a union constitutes an unfair labor practice.” 564 F.2d at 313 .
. As noted, one Ninth Circuit case has held otherwise. See n. 6 supra.
. Perhaps the most basic policy underlying section 9 of the Act is the principle of majority rule as a means of avoiding industrial strife through collective bargaining. See 29 U.S.C. § 151 (Findings and Declaration of Policy); 29 U.S.C. § 159 (a); House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess. p. 8, 20-23; Sen.Rep. No. 573, Committee on Education and Labor, 74th Cong., 1st Sess. p. 1—4, 13-14. The Senate committee stated:
The committee adheres, with the present National Labor Relations Board, to the common belief that the device of an election in a democratic society has, among other virtues, that of allaying strife, not provoking it. Obviously the Board should not be required to wait until there is a strike or immediate threat of strike. Where there are contending factions of doubtful or unknown strength, or the representation claims of the only organized group in the bargaining unit are challenged, there exists that potentiality of strife which the bili is designed to eliminate by the establishment of this machinery for prompt govemmentally supervised elections.
Sen.Rep. No. 573, p. 22-23, (emphasis added). Thus, the basic policy of the Act is to avoid strife by furthering majority rule, by the holding of prompt, govemmentally supervised elections to determine the representative if any desired by the employees. That the determination of the representation claims of unions by election should be prompt and definite is demonstrated not only by the fact that such is necessary to avoid potential strife, but also by various provisions of section 159 which prohibit the directing of elections within one year after the holding of a valid election. 29 U.S.C. §§ 159 (c)(3) and 159(e)(2). Thus, overall it is no exaggeration to say that the basic policy of section 9 of the Act is to achieve prompt and definite resolution of representation controversies by means of majority rule in supervised elections.
. Even if the union had charged that unfair labor practices were committed by the company and infected the second election, and those charges are found to be supported by the record, it could still make no difference to the outcome. For, the fact remains that because the first election, the July 20, 1979 election, has now been held to be valid, all of the proceedings with respect to a second election would be a nullity, since the first election must in such a situation, nevertheless be given effect. See Hecla Mining Co. v. NLRB, 564 F.2d 309 (9th Cir.1977) (fourth election, won by union, not given effect in light of fact that third election, rejecting union, was held to be valid.)