Frank W. McCulloch Etc. v. Libbey-Owens-Ford Glass Co., 403 F.2d 916 (D.C. Cir. 1969). · Go Syfert
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Frank W. McCulloch Etc. v. Libbey-Owens-Ford Glass Co., 403 F.2d 916 (D.C. Cir. 1969). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1979 · …the showing that the board has violated the act or deprived a plaintiff of constitutional rights must be strong and clear at p. 917 ✓
75 citation events (15 in the last 25 years) across 17 distinct courts.
Strongest positive: Chicago Truck Drivers, Helpers And Warehouse Workers Union (Independent) v. National Labor Relations Board (ca7, 1979-07-31)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Statutes interpreted (leading-cases list)
#2 29 C.F.R. § 102.60 cited 1× in this case · 27 total citations of statute
Top citers, strongest first. 37 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Chicago Truck Drivers, Helpers And Warehouse Workers Union (Independent) v. National Labor Relations Board
7th Cir. · 1979 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the showing that the board has violated the act or deprived a plaintiff of constitutional rights must be strong and clear
discussed Cited as authority (verbatim quote) Chicago Truck Drivers v. National Labor Relations Board
7th Cir. · 1979 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the showing that the board has violated the act or deprived a plaintiff of constitutional rights must be strong and clear
discussed Cited as authority (rule) Loma Linda-Inland Consortium for Healthcare Educ. v. NLRB (2×)
D.C. Cir. · 2023 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.
discussed Cited as authority (rule) Kelly v. Pearce
S.D.N.Y. · 2016 · confidence medium
This demonstration must be “strong and clear,” McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), and there must be a “plain violation of an unambiguous and mandatory provision of the statute, Am.
cited Cited as authority (rule) Fernbach ex rel. National Labor Relations Board v. Sprain Brook Manor Rehab, LLC
S.D.N.Y. · 2015 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968).
discussed Cited as authority (rule) Schwartz Partners Packaging, LLC v. National Labor Relations Board (2×)
D.D.C. · 2014 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), is also unavailing to help the plaintiff.
cited Cited as authority (rule) Law Offices La Ley Con John H. Ruiz, P.A. v. Rust Consulting, Inc.
S.D. Fla. · 2013 · confidence medium
Resp. ¶ 19 (quoting McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968))).
discussed Cited as authority (rule) Brendsel v. Office of Federal Housing Enterprise Oversight
D.D.C. · 2004 · confidence medium
Although an exception to the rule exists if the third party can make a " ‘strong and clear' showing that the issuance of the Temporary Order violated their constitutional rights,” 146 F.3d at 1041 (citing McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968)), the court noted that the Fifth Amendment's Due Process Clause applies only to direct government appropriation, and not to "indirect adverse effects of government action.” Id. (quoting O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789 , 100 S.Ct. 2467 , 65 L.Ed.2d 506 (1980)).
discussed Cited as authority (rule) Lipscomb v. Federal Labor Relations Authority
S.D. Miss. · 2001 · confidence medium
Squillacote v. Int’l Bhd. of Teamsters, Local 344, 561 F.2d 31 , 38 (7th Cir.1977); McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), *655 cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969); Greensboro Hosiery Mills, Inc. v. Johnston, 377 F.2d 28, 32 (4th Cir.1967).
discussed Cited as authority (rule) Willem Ridder v. Office of Thrift Supervision and Ellen S. Seidman, Director (2×) also: Cited "see"
D.C. Cir. · 1998 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968).
discussed Cited as authority (rule) Ridder, Willem v. OTS (2×) also: Cited "see"
D.C. Cir. · 1998 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.
discussed Cited as authority (rule) Agricultural Labor Relations Board v. Superior Court
Cal. Ct. App. · 1996 · confidence medium
Cir. 1968) 403 F.2d 916, 917 [ 131 App.D.C. 190 ]: “. . . ‘[T]o say that there are possible infirmities in an action taken by the [NLRB] ... is not to conclude that there is jurisdiction in the District Court to intervene by injunction.
discussed Cited as authority (rule) Perdue Farms, Inc. v. National Labor Relations Board
E.D.N.C. · 1996 · confidence medium
The Labor Dispute A. The Board is correct in asserting that a “party must make a ‘strong and clear’ showing that the Board disregarded a ‘clear, specific and mandatory provision of the [Labor] Act.’” (Memo.Supporting Dismissal, p. 8, quoting McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969)).
cited Cited as authority (rule) National Ass'n of Government Employees v. Federal Labor Relations Authority
E.D. Va. · 1993 · confidence medium
See also Council of Prison Locals, 735 F.2d at 1501 ; McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969).
discussed Cited as authority (rule) Jacqueline A. Tommas Griffith v. Federal Labor Relations Authority
D.C. Cir. · 1988 · confidence medium
See also Council of Prison Locals, 735 F.2d at 1501 ; McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969); Gorman, supra, at 64.
discussed Cited as authority (rule) Griffith v. Federal Labor Relations Authority
D.D.C. · 1986 · confidence medium
But plaintiff has failed to make the “strong and clear” showing of a statutory or constitutional violation, McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969), that is required under this circuit’s indication that the Kyne exception is “extraordinarily narrow.” Hartz Mountain Corporation v. Dotson, 727 F.2d 1308, 1312 (D.C.Cir.1984); see also International Longshoremen’s Association v. National Mediation Board, 785 F.2d 1098, 1100 (D.C.Cir.1986); Physicians National House Staff Association v…
discussed Cited as authority (rule) Council of Prison Locals v. Howlett
D.D.C. · 1983 · confidence medium
District court jurisdiction to review NLRB rulings otherwise reviewable only in the courts of appeals if and when they form the basis of a subsequent unfair labor practice charge has also been recognized in those rare instances where the NLRB has deprived a party of its constitutional rights, McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir. 1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969), or has interfered with the government’s conduct of foreign relations, McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 , 83 S.Ct. 671 , 9 L…
discussed Cited as authority (rule) United Food and Commercial Workers, Local 400, Affiliated With United Food and Commercial Workers, Afl-Cio v. National Labor Relations Board
D.C. Cir. · 1982 · confidence medium
The only recognized exceptions to this rule are those rare instances in which (1) the’ Board has contravened a clear and specific statutory mandate, Leedom v. Kyne, 358 U.S. 184 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958); (2) the Board has deprived a party of its constitutional rights, McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969); or (3) the Board has interfered with the government’s conduct of foreign relations, McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 , 83 S.Ct. 671 , …
discussed Cited as authority (rule) Florida Board of Business Regulation Department of Business Regulation, Division of Pari-Mutuel Wagering v. National Labor Relations Board
11th Cir. · 1982 · confidence medium
Squillacote v. Int’l Bhd. of Teamsters, Local 344, 561 F.2d 31 , 38 (7th Cir. 1977); McCulloch v. LibbeyOwens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cer t. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969); Greensboro Hosiery Mills, Inc., v. Johnston, 377 F.2d 28, 32 (4th Cir. 1967).
discussed Cited as authority (rule) Florida Board Of Business Regulation v. National Labor Relations Board
11th Cir. · 1982 · confidence medium
Squillacote v. Int'l Bhd. of Teamsters, Local 344, 561 F.2d 31 , 38 (7th Cir. 1977); McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969); Greensboro Hosiery Mills, Inc., v. Johnston, 377 F.2d 28, 32 (4th Cir. 1967).
examined Cited as authority (rule) Physicians National House Staff Association v. John H. Fanning (4×) also: Cited "see", Cited "see, e.g."
D.C. Cir. · 1981 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.
cited Cited as authority (rule) Newport News Shipbuilding & Dry Dock Co. v. National Labor Relations Board
4th Cir. · 1980 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.
discussed Cited as authority (rule) Newport News Shipbuilding and Dry Dock Company, and the Designers Committee to Decertify v. National Labor Relations Board John H. Fanning Howard Jenkins, Jr. John A. Penello John C. Truesdale, in Their Capacity as Members of the National Labor Relations Board William C. Humphrey, as Regional Director, Region 5, National Labor Relations Board, and United Steelworkers of America, Afl-Cio, Intervening Newport News Shipbuilding and Dry Dock Company, and the Designers Committee to Decertify v. The National Labor Relations Board John H. Fanning Howard Jenkins, Jr. John A. Penello John C. Truesdale, in Their Capacity as Members of the National Labor Relations Board, and William C. Humphrey as Regional Director, Region 5, National Labor Relations Board, and United Steelworkers of America, Afl-Cio
4th Cir. · 1980 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969). 13 The appellees contend that the Board's actions in this case are arbitrary and reviewable under the Kyne exception.
discussed Cited as authority (rule) Cannery Warehousemen, Food Processors, Drivers and Helpers for Teamsters Local Union 748 v. Haig Berberian, Inc., a Delaware Corporation (2×)
9th Cir. · 1980 · confidence medium
Smith Corp., 420 F.2d 1, 6 (7th Cir. 1969); Groendyke Transport, Inc. v. Davis, 406 F.2d 1158 , 1163-64 (5th Cir.), cert. denied, 394 U.S. 1012 , 89 S.Ct. 1628 , 23 L.Ed.2d 39 (1969); McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir. 1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969). 1 Thus, unless the Board’s order in this case comes within the narrow exception to this rule of non-reviewability, we may not examine the propriety of the Board’s refusal to defer to the arbitrator’s award.
discussed Cited as authority (rule) Bell & Howell Company v. National Labor Relations Board, Local 399, International Union of Operating Engineers, Afl-Cio, Intervenor
D.C. Cir. · 1979 · confidence medium
Boire v. Greyhound Corp., 376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1953); McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 191, 403 F.2d 916, 917 (1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969).
cited Cited as authority (rule) Cihacek v. National Labor Relations Board
D. Neb. · 1979 · confidence medium
McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 191, 403 F.2d 916, 917 (1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969).
discussed Cited as authority (rule) United Farm Workers of America v. Superior Court (2×)
Cal. Ct. App. · 1977 · confidence medium
Cir.1968) 403 F.2d 916, 917 [ 131 App.D.C. 190 ].) We cannot say that a statutory violation can be seriously argued in the present case.
discussed Cited as authority (rule) Radovich v. Agricultural Labor Relations Board (2×)
Cal. Ct. App. · 1977 · confidence medium
Cir.1968) 403 F.2d 916, 917 [ 131 App.D.C. 190 ].) The Kyne exception provides for an action under the National Labor Relations Act itself.
discussed Cited as authority (rule) Nishikawa Farms, Inc. v. Mahony
Cal. Ct. App. · 1977 · confidence medium
In McCulloch v. Libbey-Owens-Ford Glass Co. (D.C.Cir. 1968) 403 F.2d 916, 917 [ 131 App.D.C. 190 ], cert. den. 393 U.S. 1016 [ 21 L.Ed.2d 560 , 89 S.Ct. 618 ], the court stated: “As we said in Local 130, Internat’l Union of Elec., Radio & Machine Workers v. McCulloch, 120 U.S.App.D.C. 196, 201 , 345 F.2d 90, 95 (1965): ... to say that there are possible infirmities in an action taken by the Board by reason of an erroneous or arbitrary exertion of its authority in respect of the facts before it is not to conclude that there is jurisdiction in the District Court to intervene by injunction.
cited Cited as authority (rule) Catalytic Industrial Maintenance Co. v. Compton
D.P.R. · 1971 · confidence medium
McCulloch v. Libbey-Owens-Ford-Glass Co., 131 U.S.App.D.C. 190 , 403 F.2d 916, 917 (1968).
discussed Cited as authority (rule) Midway Clover Farm Market, Inc. v. National Labor Relations Board
D.D.C. · 1969 · confidence medium
Boire v. Greyhound Corp., 376 U.S. 473, 476-477 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964); McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 191, 403 F.2d 916, 917 (1968); IUE, etc. (Liberty Coach Co.) v. N. L.
cited Cited "see" Blanco v. National Labor Relations Board
D.D.C. · 1986 · signal: see · confidence high
See McColloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.), ce rt. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1963).
cited Cited "see" Physicians National House Staff Ass'n v. Murphy
D.D.C. · 1978 · signal: accord · confidence high
Accord, McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 191, 403 F.2d 916, 917 (1968).
discussed Cited "see, e.g." Sparks Nugget, Inc. v. Scott
D. Nev. · 1984 · signal: see also · confidence medium
See also McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir.1968) cert. denied 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969) ("[T]he showing that the Board has ... deprived a plaintiff of constitutional rights must be strong and clear.”).
discussed Cited "see, e.g." Semi-Alloys, Inc. v. Morio
S.D.N.Y. · 1980 · signal: see also · confidence medium
See also, McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917 (D.C.Cir. 1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969) (“[T]he showing that the Board has violated the Act or deprived a plaintiff of constitutional rights must be strong and clear.”).
discussed Cited "see, e.g." George Squillacote v. International Brotherhood Of Teamsters, Local 344
7th Cir. · 1977 · signal: see also · confidence low
See also McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 403 F.2d 916 (1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969). 18 A. Alleged Violations of a Statutory Mandate by the Board 19 The Union's first contention is that the Board violated a statutory mandate and therefore the Leedom v. Kyne exception applies.
cited Cited "see, e.g." Squillacote v. International Brotherhood of Teamsters, Local 344
7th Cir. · 1977 · signal: see also · confidence low
See also McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190 , 403 F.2d 916 (1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969).
Retrieving the full opinion text from the archive…
Frank W. McCULLOCH Et Al., Etc., Appellants,
v.
LIBBEY-OWENS-FORD GLASS CO., Appellee
21744_1.
Court of Appeals for the D.C. Circuit.
Jan 13, 1969.
403 F.2d 916
Mr. Laurence H. Silberman, Atty., National Labor Relations Board, of the bar of the Supreme Court of Hawaii, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Solomon I. Hirsh, Atty., National Labor Relations Board, were on the brief, for appellants., Mr. Guy Farmer and Mr. Arnold Bunge, Toledo, Ohio, of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, with whom Mr. John A. McGuinn, Washington, D. C., was on the brief, for appellee., Mr. Denison Kitchel, Phoenix, Ariz., filed a brief as amicus curiae., Mr. Donald J. Sherbondy, Pittsburgh, Pa., filed a brief on behalf of PPG Industries, Inc., as amicus curiae.
Bazelon, Edger-Ton, Tamm.
Cited by 56 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Mr. Laurence H. Silberman, Atty., National Labor Relations Board, of the bar of the Supreme Court of Hawaii, pro hac vice, by special leave of court, with Whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Solomon I. Hirsh, Atty., National Labor Relations Board, were on the brief, for appellants.

Mr. Guy Farmer and Mr. Arnold Bunge, Toledo, Ohio, of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, with whom Mr. John A. McGuinn, Washington, D.C., was on the brief, for appellee.

Mr. Denison Kitchel, Phoenix, Ariz., filed a brief as amicus curiae.

Mr. Donald J. Sherbondy, Pittsburgh, Pa., filed a brief on behalf of PPG Industries, Inc., as amicus curiae.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and TAMM, Circuit Judge.

EDGERTON, Senior Circuit Judge:

Lead Opinion

[*917] EDGERTON, Senior Circuit Judge:

The members of the National Labor Relations Board (the Board) appeal from a District Court order enjoining them from holding elections at two plants of the Libbey-Owens-Ford Glass Co. (the Company). We granted a partial stay which permitted the elections but restrained the Board from issuing any order based on them.

Ten of the Company’s plants are involved in this litigation. Eight of them are members of a single collective bargaining unit and each of the other two is a separate bargaining unit. All three units are represented by United Glass and Ceramic Workers (the Union). The Union petitioned the Board for a unit clarification order combining the three units. After a hearing, the Board found that either the three existing separate bargaining units or a combined ten-plant unit would be appropriate and ordered elections at the two separate units to ascertain the views of the employees. After our grant of a partial stay the elections were held and the employees in each of the two voted to join the multiplant unit.

The Company contends that in the absence of a representation question the Board lacks statutory authority to hold elections and to join bargaining units through its unit clarification procedure. 29 C.F.R. § 102.60(b). The Board admits that there is no representation issue and that its action is novel but claimis the requisite authority under § 9(b) of the National Labor Relations Act.[1] We intimate no opinion on this claim for we find that the District Court lacked jurisdiction to entertain it.

Judicial review of representation proceedings is very limited. Ordinarily it must await an appeal from an unfair labor practice order. 29 U.S.C. § 159(d) (1958). A District Court may enjoin Board action, especially representation proceedings, only under highly exceptional circumstances.[2] It may correct a Board violation of a “clear, specific and mandatory provision of the Act.” Lawrence Typographical Union v. McCulloch, 121 U.S.App.D.C. 269, 271, 349 F.2d 704, 706 (1965). It may enjoin threatened Board action which violates the Constitution. Id. at 273, 349 F.2d at 708. Since Congress expressly restricted judicial review in order to prevent delay in certification and to expedite the settlement of labor disputes,[3] the showing that the Board has violated the Act or deprived a plaintiff of constitutional rights must be strong and clear.

No such violation or deprivation appears in this record. As we said in Local 130, Internat’l Union of Elec., Radio & Machine Workers v. McCulloch, 120 U.S.App.D.C. 196. 201, 345 F.2d 90, 95 (1965):

* * * to say that there are possible infirmities in an action taken by the Board by reason of an erroneous or arbitrary exertion of its authority in respect of the facts before it is not to conclude that there is jurisdiction in the District Court to intervene by injunction. For such jurisdiction to exist, the Board must have stepped so plainly beyond the bounds of the Act, or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court * * *.

The Board’s action in this case, if at all inconsistent with the Act, was certainly not so “plainly beyond” its bounds or so “clearly in defiance” of it. We therefore remand the case to the District[*918] Court with directions to dismiss the complaint.

Reversed and remanded.

2

The major case is Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), in which the Court first recognized the possibility that in some exceptional circumstances the district court could exercise its general equity jurisdiction. In later cases, the Court has indicated that the exception is very narrow. McCulloch v. Sociedad National de Marineros, 372 U.S. 10, 16, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964).

3

For a review of the legislative history see Leedom v. Kyne, 358 U.S. 184, 191 et seq., 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (Brennan, J., dissenting).

Dissent

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.

1

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.)