Citation Numbers: 190 Misc. 1008
Judges: Levy
Filed Date: 12/18/1947
Status: Precedential
Modified Date: 1/12/2023
Petitioner brings up for review either under section 707 of the Labor Law (New York State Labor Eelations Act) or under article 78 of the Civil Practice Act, an order of the board dismissing the amended charge of unfair labor practice. It was conceded the inspectors involved are a homogenous group constituting an appropriate unit for bargaining purposes, but the majority of the board considered that by virtue of the constitution of the union it was disabled from acting as the bargaining agent for a unit of employees acting in a supervisory or investigatory capacity as an arm of management in relation to the rank and file of the union. This determination was grounded,
And again at page 412: “ Its answer involves a determination whether the Wagner Act, in so far as it has given legally enforceable rights, has deprived the district courts of some portion of their original jurisdiction conferred by § 24 of the Judicial Code. It can be appropriately answered only upon a showing in such a suit that unlawful action of the Board has
“ The right to review the determination of the controversy concerning representation will be available to appellant when and if any final order is made by the Board concerning alleged unfair labor practices under section 706. Upon such review the entire record in the proceedings, required to be filed under section 707, will include all such matters as have been presented to the Board in the preliminary and intermediate proceedings under section 705. ■
‘ ‘ An opportunity for full judicial review will be afforded on all questions involved, and the rights of the parties amply protected, if the judicial review be confined to the final order as indicated. ’ ’
It is argued the order denying representation was grounded in reasonableness. “ Freedom to choose, in this statutory setting, must mean complete freedom to choose any qualified representative unless limited by a valid contrary policy adopted by the Board ”. (National Labor Relations Board v. Jones & Laughlin Steel Corp 331 U. S. 416, 425.) Petitioner claims it had been the policy of the respondent heretofore to refuse to inquire into the internal affairs or organization of a union if it was otherwise an appropriate agent for representation. To hold otherwise would confer upon the board a latitude of discretion which would tend to open the door to ever increasing causes and criteria for the selection of representatives resulting in ultimate destruction of the freedom of choice. Quite apart therefrom, however, it was unreasonable to ground denial of representation solely upon certain provisions of the union constitution applied without any relation of the impact of those provisions upon a specific charge of unfair labor practice. For example, it may well be that in connection with the charge subsequently made the conduct resulting in discharge was directly related to the constitutional provisions relied on for disqualification and in such event it may well be that this interrelation would become a reasonable and proper subject of inquiry to determine whether a complaint should issue. Indeed, petitioner contests not only the context of the disputed provisions but the existence of any real influence or restraint arising therefrom in relation to the performance of the duties of the