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Some practical considerations for May 16th, to ensure that RO Walsh, US Attorney Torrance, Judge Berman & the UBC & their counsel or Record play by the Rules imposed by the Supreme Court & the NLRB. This case has not been over-turned.

Make sure you guys get the point here implemented into any rules the Court may issue under the Consent Decree, and also note: The Appellate Court here, Judge Berman as the presiding Justice for the 2nd Circuit, Appellate level; while overseeing the Federal Civil Consent Decree cannot issue rules contrary to the United States Supreme Court, OR Legislate from the Bench Rules differing from those established by Congress under the LMRDA.

If he does (in cahooots or agreement with the UBC's McCarron or Conboy) call them on it and file the appropriate Motion for Permanent Injunctive Relief. Do not trust these people for one minute with YOUR VOTING RIGHTS, for as soon as you do - You SHALL NO LONGER HAVE THEM!

SEE FIRST PARAGRAPH, LAST SENTENCE: Note EMPHASIS on "employees' vote"....not the UBC's Vote, Not the International's or Councils Vote, Not the Courts Vote....YOUR VOTE.



As we have noted before, Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees. Southern S.S. Co. v. National Labor Board, 316 U.S. 31, 37 , 62 S.Ct. 886, 890; National Labor Board v. Waterman S.S. Co ., 309 U.S. 206, 226 , 60 S.Ct. 493, 503; National Labor Board v. Falk Corporation, 308 U.S. 453, 458 , 60 S.Ct. 307, 310. Section 9(c) of the Act authorizes the Board to 'Take a secret ballot of [329 U.S. 324, 331]   employees, or utilize any other suitable method to ascertain such representatives.' In carrying out this task, of course, the Board must act so as to give effect to the principle of majority rule set forth in 9(a), a rule that 'is sanctioned by our governmental practices, by business procedure, and by the whole philosophy of democratic institutions.' S.Rep. No. 573, 74th Cong., 1st Sess., p. 13. It is within this democratic framework that the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.

The principle of majority rule, however, does not foreclose practical adjustments designed to protect the election machinery from t e ever- present dangers of abuse and fraud. Indeed, unless such adjustments are made, the democratic process may be perverted and the election may fail to reflect the will of the majority of the electorate. One of the commonest protective devices is to require that challenges to the eligibility of voters be made prior to the actual casting of ballots, so that all uncontested votes are given absolute finality. In political elections, this device often involves registration lists which are closed some time prior to election day; all challenges as to registrants must be made during the intervening period or at the polls. Thereafter it is too late. The fact that cutting off the right to challenge conceivably may result in the counting of some ineligible votes is thought to be far outweighed by the dangers attendant upon the allowance of indiscriminate challenges after the election. To permit such challenges, it is said, would invade the secrecy of the ballot, destroy the finality of the election result, invite unwarranted and dilatory claims by defeated candidates and 'keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with [329 U.S. 324, 332]   the close of the polls.' Cooley, Constitutional Limitations (8th Ed., 1927 ), p. 1416.

Long experience has demonstrated the fairness and efficaciousness of the general rule that once a ballot has been cast without challenge and its identity has been lost, its validity cannot later be challenged. This rule is universally recognized as consistent with the democratic process. And it is generally followed in corporate elections. The Board's adoption of the rule in elections under the National Labor Relations Act is therefore in accord with the principles which Congress indicated should be used in securing the fair and free choice of collective bargaining representatives.

Moreover, the rule in question is one that is peculiarly appropriate to the situations confronting the Board in these elections. In an atmosphere that may be charged with animosity, post-election challenges would tempt a losing union or an employer to make undue attacks on the elegibility of voters so as to delay the finality and statutory effect of the election results. Such challenges would also extend an opportunity for the inclusion of ineligible pro-union or anti-union men on the pay-roll list in the hope that they might escape challenge before voting, thereafter giving rise to a charge that the election was void because of their ineligibility and the possibility that they had voted with the majority and were a decisive factor. The privacy of the voting process, which is of great importance in the industrial world, would frequently be destroyed by post-election challenges. And voters would often incur union or employer disfavor through their reaction to the inquiries.

We are unable to say, therefore, that the Board's prohibition of post- election challenges is without justification in law or in reason. It gives a desirable and necessary finality to elections, yet affords all interested parties a reasonable period in which to challenge the eligibility of [329 U.S. 324, 333]   any voter. And an exception to the rule is recognized where the Board's agents or the parties benefiting from the Board's refusal to entertain the issue know of the voter's ineligibility and suppress the facts. 6 The Board thus appears to apply the prohibition fairly and equitably in light of the realities involved.

The reliance of the court below upon the asserted jurisdictional requirement was misplaced. It is true that it is an unfair labor practice for an employer to refuse to bargain with a union only if that union was chosen by a majority of the voting employees. But the determination of whether a majority in fact voted for the un on must be made in accordance with such formal rules of procedure as the Board may find necessary to adopt in the sound exercise of its discretion. The rule prohibiting post- election challenges is one of those rules. When it is applied properly, it cannot deprive the Board of jurisdiction to find an unlawful failure to bargain collectivly. That is true even where it subsequently is ascertainable that some of the votes cast were in fact ineligible and that the result of the election might have been different had the truth previously been known. The rule does not pretend to be an absolute guarantee that only those votes will be counted which are in fact eligible. It is simply a justifiable and reasonable adjustment of the democratic process.