1 - National Labor Relations Board

Enforcement Litigation 121
unfair labor practice proceeding. In the representation proceeding
in the instant case, the regional director rejected the employer's
contention that certain individuals were independent
contractors who should be excluded from the bargaining unit.
The employer's request for review of the regional director's
decision, which, as required by the Board's regulations, was in
a self-contained document enabling the Board to rule on the
basis of its contents without examining the entire record, was
denied by the Board under Board rules which called for Board
review only for "compelling reasons." In the unfair labor
practice proceeding following the employer's refusal to bargain
with the union which had won the election, the Board granted
summary judgment against the employer, since Board rules prohibited
relitigation, in unfair labor practice proceedings, of issues
with respect to which the Board had denied a request for review
of a regional director's decision.
The court held that the Board, by failing to review the record
independently of the regional director's decision or consider
whether that decision was wrong, once it was found not to be
an egregious error, had improperly abdicated its responsibility
to decide whether an unfair labor practice had been committed.
It noted that while section 3(b) of the Act permits the Board
to delegate determinations of appropriate bargaining units to a
regional director, it does not authorize a similar delegation of
authority to make unfair labor practice findings, which have
more serious consequences. Indeed, while Congress authorized
some administrative agencies to delegate authority to make final
decisions to officials generally on the level of the Board's regional
directors, it had declined to give the Board similar power to
delegate authority to trial examiners in unfair labor practice
cases. The reason, in the court's opinion, was that Congress
wanted final decisions in such cases to be made only by Board
members, whose expertise and experience was superior to that
of subordinates not subject to Senate confirmation. The Board's
superior knowledge and background was especially desirable in
cases like the present, which involved difficult factual and legal
issues.
The court recognized the Board's desire for speedy resolution
of issues in representation proceedings and, accordingly, disclaimed
any intent to require the Board to follow all of the
requirements of the Administrative Procedure Act—which specifically
exempts from its coverage cases involving the certification
of employee representatives—or to permit the employer to intro-