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August 12, 1970

United Automobile, Aerospace And Agricultural Implement Workers Of America, UAW, Plaintiff
National Labor Relations Board et al., Defendants

Parker, District Judge.

The opinion of the court was delivered by: PARKER

PARKER, District Judge:

This case arising under Section 9(c) of the National Labor Relations Act, (the Act) (29 U.S.C. § 159) involves a labor dispute between the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and the Thomas Engine Corporation, an engine rebuilding plant in the City of Industry, California. The Union seeks certification by the National Labor Relations Board as the accredited representative of the production and maintenance employees of the Corporation. Following failure of the Board to certify the results of an election and its issuance of an order directing a new election, the Union sued the Board and its individual members for declaratory and injunctive relief. *fn1"

 The election was held on March 29, 1968, and on December 11, 1969, the Board issued its ruling. *fn2" During that interval and on September 25, 1968, the Upshur Engine Co., d.b.a. Tomadur, Inc., took over Thomas' business and became the successor employer. At the time of the March 29th election, Thomas employed about 167 eligible voters and 158 ballots were cast. Seven of the votes were challenged and one was voided. In August, 1968, the Union filed exceptions to the challenged ballots and also filed a complaint of unfair labor practices against Thomas. The hearing on the exceptions and the complaint was scheduled before the Board's Trial Examiner in September, 1968. However, various delays were encountered arising principally from nearly 140 days of continuances granted at the employer's request and time consumed by the Board's consideration of the issues involved. The Trial Examiner conducted a hearing in December 1968, and rendered a decision on April 25, 1969. This was followed by the Board's decision of December 11, 1969.

 On the issue of representation the Board found: *fn3"

" . . . An unresolved election was conducted for Thomas' production and maintenance employees on March 29, 1968, at which time there were about 167 eligible voters and 158 ballots cast, with 74 for the Union, 76 against the Union, 7 challenges, and 1 void ballot. Thereafter, the Board directed that the challenges be determined in the instant consolidated proceeding by the Trial Examiner who recommended that 4 challenges be sustained and that 3 ballots be opened in order to ascertain whether the Union had won the election and should be certified as the bargaining agent for Upshur, the successor of Thomas.
"In contrast to Thomas' work force of 167 production and maintenance employees at the time of the election, Upshur in December 1968, as already stated, had but 97 employees in the unit, of whom only 90 were former Thomas employees. Upshur contends, inter alia, that this was a 'substantial change' in the composition of the unit and that the Board should therefore direct a new election for a current unit of Upshur's production and maintenance employees.
"We find merit in Upshur's contention. Permitting the prior election in March 1968, involving 167 Thomas employees now to determine the choice of a bargaining representative for Upshur, which had only 90 former Thomas employees and 7 new employees as of December 1968, would give improper weight to the wishes of those employees who did not become part of the Upshur work force and would disenfranchise all of Upshur's newly hired employees. In view of this factor as well as the 20-month time lapse since the election, we believe that it would best effectuate the policies of the Act to set aside the earlier election and to direct a new election. . . ."

 The Board adopted "the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith." *fn4"

 The Examiner's findings regarding the challenged ballots were not disputed or questioned by the Board. No objections were filed by either party contesting the validity of the March 29, 1968, election. Nor was there any finding or even suggestion of any improper conduct by anyone influencing the employees' vote, the election procedures or the tallying of the vote.

 In January 1970, the Union moved timely for a reconsideration of the Board's decision and to reopen the record for the introduction of newly discovered evidence -- namely, that after the initial hiring of 90 Thomas employees by Upshur on September 25, 1968, approximately 25 more former Thomas employees were rehired so that the Upshur unit of approximately 130 members included a sizeable majority of former Thomas employees. On March 12, 1970, the Board denied these motions, and an election was ordered.

 The election was scheduled for May 8, 1970, and three days prior to that date, the Union filed this action seeking to restrain the Board from conducting the second election, a finding that the election of March 29, 1968 was valid, and an order requiring the Board to certify that election's results. Plaintiff's request for a temporary restraining order and a preliminary injunction were denied and the Board was authorized to conduct the May 8 election. However, the Court required that the cast ballots be impounded and sealed pending a disposition of the merits of the case. Thereafter on May 25, 1970, the Board filed a motion to dismiss for want of jurisdiction, and, in the alternative, for summary judgment. The Union filed a cross motion for summary judgment on June 8, 1970.

 For the reasons set forth the Board's motions are denied and the Union's motion for summary judgment is granted.

 In seeking to enjoin the second election and to enforce the certification of the 1968 election results, the Union claims that the Board's action was arbitrary and capricious, deprived the Union of its statutory right to represent employees, deprived the employees of their statutory right to the Union's representation and otherwise violated the plain and mandatory provision of § 9(c)(1) of the Act, 29 U.S.C. § 159. That Section provides in pertinent part that when a question of representation exists, the Board ". . . shall direct an election by secret ballot and shall certify the results thereof."

 The Board urges that this Court lacks jurisdiction and relies upon a number of cases for the proposition that, generally, representation proceedings under the Act are not adversary in nature, do not result in judicially reviewable final orders and are, therefore, not immediately appealable to the Federal District Court. Those cases are distinguishable in that each concerned tainted elections or ". . . challenges to Board action in the area of directing elections, and determinations of the 'appropriate unit '." Miami Newspaper Printing Pressmen's Union, Local 46 v. McCulloch, 116 U.S. ...

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