TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

214 Twenty-sixth Annual Report of the National Labor Relations Board -
tation orders whenever there is colorable allegation that the Board
has misread the declared will of Congress and the remedy afforded
by § 9(d) is likely to prove inadequate " ° Such an interpretation
of Leedom v Kyne, feared by Mr Justice Brennan in his dissent,
was found by the court not to have been borne out in view of the
unanimous rejection of attempts to review Board representation determinations
in suits since that decision, nor to be warranted m light of
the Supreme Court's intention to do no more than carve out a "narrow
exception to a rule [of limited judicial review] that is founded on
important considerations of history and policy"
b Amendment of Illegal Union-Security Clause
The Board's refusal to accord contract-bar protection to a collective-bargaining
agreement also served as the basis of an incumbent
union's suit to enjoin the holding of a representation election in
McLeod v Local 476, United Brotherh,00d of Industrial TV orkers17
There the Board, in applying its Keystone rule,18 held that a supplemental
agreement, by which the parties sought to amend and cure an
illegal union-security clause contained m a contract as ongmally executed,
could not make the initial contract a bar to a representation
election In its suit, plaintiff claimed that the Board's determination
transgressed constitutional requirements of due process
The district court, while declinmg to interfere with the holding
of the election, in which the employees chose to be represented by a
union other than plaintiff, subsequently ordered the election to be set
aside 19 The court of appeals, however, reversed the district court,
holding that it shoutd have dismissed the complaint for lack of jurisdiction
over the subject matter In the court's view, Congress granted
"the Board much freedom of action in its handling of representation
matters, including questions of contracts as bars to elections"
17 Mid
17 288 F 26 198 (C A 2)
= Keystone Coat, Apron d Towel Supply Go, 121, NLRB 880 (1958) In Keystone, the
Board, in an effort to simplify certain of its contract bar rules, decided that, for contractbar
purposes, the validity of union-security clauses would be determined solely upon the
face of the provision as originally executed The Board further determined that curative
amendments to illegal union-security clauses would be Insufficient to make contracts containing
such clauses effective bars to an election But see Paragon Products Oorp , 134
NLRB No 86, decided after the close of the fiscal year, which revised these rules
lo Local 416, United Brotherhood of Industrial Werke, s 1, McLeod, 46 LIIRM 2454
(DC ENT), see also, 46 LRItki 8189 (DC ENT)
075 at 201