Like the Act, the Rule provides that the hearing officer “shall make no recommendations” about the pre-election hearing. Compare 29 U.S.C. § 159(c)(1)(B), with Amended § 102.66(i), 79 Fed. Reg.

The NLRA authorizes the Board to petition a court for enforcement of a Board order, to seek review of a final Board order, to seek injunctions against persons believed to be engaged in unfair labor practices or illegal boycotts, and to enforce subpoenas. 29 U.S.C. §§ 159- 160. But because the Board is not doing any of those things here, this action does not arise under the NLRA and neither § 1331 nor § 1337 provide a basis for jurisdiction.

Under Section 9 of the NLRA, “[t]he decision whether, to what extent, and to whom to delegate [its] authority” to represent union members in their negotiations “lies solely with the union.” Collins, 850 F. Supp. at 1475; 29 U.S.C. § 159(a); see also Morio v. N. Am. Soccer League, 501 F. Supp. 633, 640 (S.D.N.Y.), aff'd, 632 F.2d 217 (2d. Cir.

Specifically, Section 9(d) provides that when a certification has become the basis for a subsequent unfair labor practice order and that order is before an appropriate Court of Appeals under section 10(e) or (f), the certification itself is also open to review. 29 U.S.C. § 159(d); see Canadian Am. Oil Co. v. NLRB, 82 F.3d 469, 471 n.1 (D.C. Cir. 1996) (“Although a Board’s decision in a certification proceeding is not directly reviewable in the courts, an employer may challenge a certification decision indirectly by refusing to bargain with the union and then raising its election objection in the ensuing unfair labor practice proceedings.”).

Local 32BJ is the “exclusive” bargaining representative of the approximately 145,00 persons it represents vis-à-vis employers with respect to their wages, hours and other conditions of employment. See ¶¶ 6-7 and N.L.R.A. Section 9(a), 29 U.S.C. § 159(a).5 It is the N.L.R.A.’s grant to Local 32BJ of the status of exclusive bargaining representative of employees in each bargaining unit represented by the Local that imposes upon the Local the duty to fairly represent the members of each such unit. See, e.g., Humphrey v. Moore, 375 U.S. 335, 5 Section 9(a) provides in pertinent part: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment… 5 Case 1:14-cv-08796-GHW Document 70 Filed 04/06/16 Page 12 of 30 342 (1964) (“duty of fair representation is … implicit in the National Labor Relations Act … because that statute, like the Railway Labor Act, affords unions exclusive

The issue of“decertifying” unionsis one of the specific areas in whichthe California Legislature chose in the original ALRA to deviate from the analogousprovisions of the NLRA by precluding any employer involvementin challenging the representative status of previously certified 50 labor organizations. Compare Labor Code § 1156.3 (permitting only workersto file decertification petitions) with 29 U.S.C. § 159(c)(1)(B) (employers may file petitions challenging representative status); see F & P Growers, 168 Cal. App. 3d at 672-78.'4 The differencein the statutory language is one of the reasons the courts and the ALRB had concludedthat employers cannotraise any defenses to the representative status of a certified ALRA union: [TJo permit an agricultural employer to be able to rely on its good faith belief in order to avoid bargaining with an employee chosen agricultural union indirectly would give the employerinfluence over those matters in which the Legislature clearly appears to have removed employer influence.

Likewise, under the NLRA, an employer mayfile a petition seeking an election when one or more unionspresent a claim to be recognized. (29 U.S.C. § 159(c)(1)(B).) No such procedureis available under the ALRA.

8 Case 1:15-cv-00571-ABJ Document 8 Filed 04/20/15 Page 8 of 19 order, and that order is before an appropriate Court of Appeals under section 10(e) or (f), the certification itself is also open to review. 29 U.S.C. § 159(d); see Canadian Am. Oil Co. v. NLRB, 82 F.3d 469, 471 n.1 (D.C. Cir. 1996) (“Although a Board’s decision in a certification proceeding is not directly reviewable in the courts, an employer may challenge a certification decision indirectly by refusing to bargain with the union and then raising its election objection in the ensuing unfair labor practice proceedings.”).

The stakes in this matter are very high. None of these organizations claims that “the majority of employees in [any appropriate bargaining] unit of employees has designated it to represent them with respect to rates of pay here in issue as provided for under the National Labor Relations Act, 29 U.S.C. §159, or that it is entitled under any other principle to represent American workers generally in this matter. That is so even if they were not already in an irreconcilable conflict of interests vis-à-vis the claims of their foreign guestworker members and their asserted American workers in all sorts of jobs.

The NLRA speaks only of the responsibilities of representatives “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.” 29 U.S.C. § 159(a). That language does not give a majority of the bargaining unit the “right” to choose a representative—and thus does not impose a correlative legal constraint on how the National Labor Relations Board (“NLRB”) may determine the majority’s representative.