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BAKERY

July 13, 1992

BAKERY, CONFECTIONERY AND TOBACCO WORKERS' INTERNATIONAL UNION, LOCAL 6
v.
NATIONAL LABOR RELATIONS BOARD, JAMES M. STEPHENS, CHAIRMAN, MARY MILLER CRACRAFT, MEMBER, CLIFFORD R. OVIATT, MEMBER and NATIONIAL LABOR RELATIONS BOARD, REGION 4, PETER HIRSCH, REGIONAL DIRECTOR and STROEHMANN BAKERIES, INC.



The opinion of the court was delivered by: THOMAS N. O'NEILL, JR.

Memorandum

 O'Neill, J.

 I. Introduction

 II. Background

 Although the facts are set forth in detail in the Report, I will briefly summarize the factual background of the case. Plaintiff Union alleges that the list provided to it by the employer of employees eligible to vote in the January 1990 representation election contained the typed notation "Quit as of 12/23/89" next to the listing of "S. Gallagher." The Union alleges that, according to the list, Mr. Gallagher was ineligible to vote because he was not an employee at the time of the election. The Union therefore alleges that Mr. Gallagher should not have been permitted to vote. The Union alleges in the alternative that the employer provided it with faulty information because the employer listed Mr. Gallagher as "Quit as of 12/23/89" but "failed thereafter to advise the Union that the said employee may in fact be eligible to vote." Amended Complaint at P 11. The Union therefore alleges that even if Mr. Gallagher had been eligible to vote, he should not have been permitted to vote.

 Mr. Gallagher voted in the election and the Union challenged his ballot. The Regional Director of the Board found that Mr. Gallagher was an eligible employee and recommended that his vote be opened and counted. The Board affirmed. Mr. Gallagher voted against the Union. The addition of Mr. Gallagher's vote resulted in a tie vote between those voting for and against Union representation. Consequently, the Union lost the election.

 III. Discussion

 Plaintiff Union concedes that district courts normally lack subject matter jurisdiction over challenges to Board representation proceedings. Plaintiff's Objections to the Report and Recommendation filed by the Honorable M. Faith Angell, U.S. Magistrate, at 3. The Magistrate's Report determines that the District Court lacks subject matter jurisdiction in this case because none of the exceptions to the normal rule apply here. Plaintiff objects to the Report's conclusion and argues that this Court has jurisdiction under the exception created by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958), or under the exception created by the Court of Appeals for the Second Circuit in Fay v. Douds, 172 F.2d 720 (2d Cir. 1949). *fn2" In addition, plaintiff objects to the Report's determination that the District Court lacks subject matter jurisdiction over the contract claim against the employer.

 (A) Leedom v. Kyne

 Plaintiff Union objects to the Magistrate's finding that this Court lacks subject matter jurisdiction over Board representation proceedings. Plaintiff's Objections at 1. Plaintiff relies on Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180, in which the Supreme Court carved out an exception to the normal jurisdictional rule that district courts lack subject matter jurisdiction over Board representation proceedings. Id. at 187-88. In Leedom v. Kyne, the Court held that district courts could properly exercise jurisdiction over Board conduct that is "in excess of its delegated powers and contrary to a specific prohibition in the Act." Id. at 188. The Court subsequently has held that the Leedom v. Kyne exception:

 is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law.

 Boire v. Greyhound Corp., 376 U.S. 473, 481, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964).

 Plaintiff contends that the Report inappropriately characterized the Board's conduct as "an erroneous assessment of the particular facts." Plaintiff's Objections at 1 (quoting Boire, 376 U.S. at 481); Report at 10. Plaintiff argues that the Leedom v. Kyne exception applies here because the Board's conduct was "in excess of its delegated powers and contrary to a specific ...


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