Kearney & Trecker Corp. v. National Labor Rel. Bd., No. 10789.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtMAJOR, , and FINNEGAN and LINDLEY, Circuit
Citation209 F.2d 782
PartiesKEARNEY & TRECKER CORP. v. NATIONAL LABOR RELATIONS BOARD.
Decision Date16 November 1953
Docket NumberNo. 10789.

209 F.2d 782 (1953)

KEARNEY & TRECKER CORP.
v.
NATIONAL LABOR RELATIONS BOARD.

No. 10789.

United States Court of Appeals Seventh Circuit.

November 16, 1953.


209 F.2d 783

Robert N. Denham, Washington, D. C., Leon B. Lamfrom, Milwaukee, Wis., for petitioner.

David P. Findling, Associate General Counsel, Duane Beeson, Attorney, National Labor Relations Board, Washington, D. C., for respondent.

Sydney M. Eisenberg, Max Raskin, Milwaukee, Wis., for Independent Union.

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

This case is here on the petition of Kearney & Trecker Corporation (hereinafter referred to as petitioner or the company), to review and set aside an order of the National Labor Relations Board (hereinafter referred to as the Board), issued against it on December 31, 1952, following proceedings under Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. The Board's answer requests enforcement of its order. The unfair labor practice found arises from the company's refusal to recognize and bargain with Local 1083, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO (hereinafter referred to as the CIO union or Local 1083), following its certification by the Board as exclusive bargaining representative of the company's employees.

Petitioner, before the Board and here, defends its refusal to bargain with Local 1083 on the ground that the Board's certification of that Local was invalid. The position of the company was and is that the election in which its employees selected Local 1083, and upon the basis of which the Board issued the certification, should not have been held because of the existence of an unexpired contract between the company and the Employees Independent Union, affiliated with the Confederated Unions of America (hereinafter referred to as the EIU), that the election was contaminated with fraud and therefore void, and that there was a wilful neglect and refusal by the officials of the Board's Chicago office to

209 F.2d 784
conform both to statutory law and the Board's published Statements of Procedure in their entertainment and investigation of the petition in the representation proceeding, case No. 13-RC-1900

There has been filed in this court, purportedly in compliance with Section 10(f) of the Act, a "transcript of the entire record in the proceeding, certified by the Board, including the pleading and testimony upon which the order complained of was entered, and the findings and order of the Board." We say purportedly because, as subsequently shown, it is the contention of petitioner that the Board has failed and refused to certify the "entire record in the proceeding". This contention relates in particular to the alleged refusal and failure of the Board to certify the complete record in the representation proceeding conducted under the authority of Section 9 of the Act. It may be noted that the proceedings in a representation proceeding and the action of the Board relative thereto are not subject to review until and if there is a petition by the Board under Section 10(e) for an enforcement of its order or a petition by an aggrieved person under Section 10(f), seeking its modification or vacation.

We are faced in the beginning with the troublesome and important contention advanced by petitioner that the Board has failed and refused to comply with its statutory duty to certify the "entire record in the proceeding," with the request that the Board be required to expand the record as filed in this court or, in the alternative, that the cause be remanded to the Board with directions that it do so. The instant record, as certified by the Board, contains the petition filed with its Chicago office by Local 1083, in conformity with Section 9(c); a transcript of the hearing had thereon; the decision of the Board, predicated upon such hearing, that an election be held; the result of the election showing that Local 1083 in a contest with EIU received 752 votes while the latter received 588 votes, and the certification of Local 1083 as the bargaining representative for petitioner's employees.

Petitioner in its motion for expansion of the record and its argument in support thereof, in reality seeks to have included in the record all information, in whatever form, acquired by the Board or its agents in the representation proceeding which caused or induced it to provide for a hearing on the petition which had been filed by Local 1083. Specifically it is sought to have included in the record, in addition to what is presently contained, the initial investigation on the interest of the union petitioner (Local 1083), the employees covered by the union sought to be represented, the report and analysis of the hearing officer made to the Board as provided for in Sec. 101.20(c) of the Statements of Procedure, reports by agents and investigators concerning the appropriate unit, the existence of other labor organizations as bargaining representatives and the existence of a written contract between the employees and EIU which would preclude proceedings on the petition filed by Local 1083.

This court, on April 1, 1953, entered an order directing that the record be expanded, as requested by petitioner's motion. Upon further consideration, however, this order was, on May 5, 1953, vacated, without prejudice to petitioner's right to renew the motion at the hearing on the merits of the petition to review. At the latter hearing this court concluded that petitioner's motion should be disposed of in advance of a hearing upon the merits of the company's petition to set aside and vacate the Board's unfair labor practice decision. Both Local 1083 and EIU...

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15 practice notes
  • NLRB v. Air Control Products of St. Petersburg, Inc., No. 21017.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 July 1964
    ...Co., 5 Cir., 1953, 204 F.2d 950, 953; NLRB v. Swift & Co., 3 Cir., 1961, 294 F.2d 285, 288; Kearney & Trecker Corp. v. NLRB, 7 Cir., 1953, 209 F.2d 782, 787-788; NLRB v. J. I. Case Co., 9 Cir., 1953, 201 F.2d 597, 600; NLRB v. National Truck Rental Co., 1956, 99 U.S. App.D.C. 259, 239 F.2d ......
  • National Labor Relations Board v. Savair Manufacturing Company 8212 1231, No. 72
    • United States
    • United States Supreme Court
    • 17 December 1973
    ...J. I. Case Co., 201 F.2d 597 (CA9 1953); NLRB v. White Constr. & Eng. Co., 204 F.2d 950, 953 (CA5 1953); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 787—788 (CA7 1953); NLRB v. National Truck Rental Co., 99 U.S.App.D.C. 259, 261—262, 239 F.2d 422, 424—425 (1956) (Burger, J.), cert. denie......
  • Nishikawa Farms, Inc. v. Mahony, AFL-CIO
    • United States
    • California Court of Appeals
    • 3 February 1977
    ...335 F.2d 245; N.L.R.B. v. Swift and Co. (3d Cir. 1961) 294 F.2d 285; Kearney & Trecker Corp. v. National Labor Rel. Bd. (7th Cir. 1953) 209 F.2d 782; National Labor Relations Bd. v. White Const. & Eng. Co. (5th Cir. 1953) 204 F.2d 950; National Labor Relations Bd. v. J. I. Case Co. (9th Cir......
  • Wilmington Vitamin & Cosmetic Corp. v. Tigue
    • United States
    • Superior Court of Delaware
    • 18 July 1962
    ...81 So.2d 650, 652 (Sup.Ct.Fla.1955); Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545; Kearney v. Trecker, Corp. v. N.L.R.B. (C.A., 7th) 209 F.2d 782 and Welsh v. County Board of School Trustees, 22 Ill.App.2d 231, 160 N.E.2d Many of these cited cases dealt with evidence which should have been......
  • Request a trial to view additional results
15 cases
  • NLRB v. Air Control Products of St. Petersburg, Inc., No. 21017.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 July 1964
    ...Co., 5 Cir., 1953, 204 F.2d 950, 953; NLRB v. Swift & Co., 3 Cir., 1961, 294 F.2d 285, 288; Kearney & Trecker Corp. v. NLRB, 7 Cir., 1953, 209 F.2d 782, 787-788; NLRB v. J. I. Case Co., 9 Cir., 1953, 201 F.2d 597, 600; NLRB v. National Truck Rental Co., 1956, 99 U.S. App.D.C. 259, 239 F.2d ......
  • National Labor Relations Board v. Savair Manufacturing Company 8212 1231, No. 72
    • United States
    • United States Supreme Court
    • 17 December 1973
    ...J. I. Case Co., 201 F.2d 597 (CA9 1953); NLRB v. White Constr. & Eng. Co., 204 F.2d 950, 953 (CA5 1953); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 787—788 (CA7 1953); NLRB v. National Truck Rental Co., 99 U.S.App.D.C. 259, 261—262, 239 F.2d 422, 424—425 (1956) (Burger, J.), cert. denie......
  • Nishikawa Farms, Inc. v. Mahony, AFL-CIO
    • United States
    • California Court of Appeals
    • 3 February 1977
    ...335 F.2d 245; N.L.R.B. v. Swift and Co. (3d Cir. 1961) 294 F.2d 285; Kearney & Trecker Corp. v. National Labor Rel. Bd. (7th Cir. 1953) 209 F.2d 782; National Labor Relations Bd. v. White Const. & Eng. Co. (5th Cir. 1953) 204 F.2d 950; National Labor Relations Bd. v. J. I. Case Co. (9th Cir......
  • Wilmington Vitamin & Cosmetic Corp. v. Tigue
    • United States
    • Superior Court of Delaware
    • 18 July 1962
    ...81 So.2d 650, 652 (Sup.Ct.Fla.1955); Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545; Kearney v. Trecker, Corp. v. N.L.R.B. (C.A., 7th) 209 F.2d 782 and Welsh v. County Board of School Trustees, 22 Ill.App.2d 231, 160 N.E.2d Many of these cited cases dealt with evidence which should have been......
  • Request a trial to view additional results

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