UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 20, 1983
ITT LIGHTING FIXTURES, DIVISION OF ITT CORPORATION, PETITIONER-CROSS-RESPONDENT,
NATIONAL LABOR RELATIONS BOARD, RESPONDENT-CROSS-PETITIONER, AND INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), INTERVENOR
On Petition for Rehearing
Newman and Pratt, Circuit Judges, and Metzner, District Judge.*fn*
Author: Per Curiam
By letter dated August 18, 1983, the Board contends that, although our jurisdiction to deny enforcement of the Board's bargaining order is clear, we lacked jurisdiction to vacate the election that served as the predicate for the Board's order. Treating the letter as a petition for rehearing, 712 F.2d 40,*fn1 we reject the Board's contention.
The Board calls to our attention cases supporting the traditional rule that orders in certification proceedings are not final orders within the meaning of sections 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. §§ 160(e), (f) (1976). Boire v. Greyhound Corp., 376 U.S. 473, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964); American Federation of Labor v. NLRB, 308 U.S. 401, 60 S. Ct. 300, 84 L. Ed. 347 (1940). Those cases, however, do not preclude review; they simply postpone review until "the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed." Boire, supra, 376 U.S. at 473.*fn2 Once our jurisdiction has been invoked to review an unfair labor practice determination based on a refusal to bargain with a certified bargaining representative, the underlying dispute concerning the certification is properly before us. Section 9(d) of the Act, 29 U.S.C. § 159(d) (1976), contemplates full review of the certification order that underlies an unfair practice determination arising out of an election and a subsequent refusal to bargain by providing for inclusion of the certification and the record of the investigation leading up to the certification in the record to be filed in review proceedings under sections 10(e) and (f). See Boire v. Greyhound Corp., supra, 376 U.S. at 477; NLRB v. Ortronix, Inc., 380 F.2d 737, 739 (5th Cir. 1967). Upon an appellate court's determination that enforcement of an order of the Board based on an improper certification should be denied, the election underlying the certification has frequently been set aside. E.g., NLRB v. Carroll Contracting and Ready-Mix, Inc., 636 F.2d 111, 113 (5th Cir. 1981); Exeter 1-A Limited Partnership v. NLRB, 596 F.2d 1280, 1284 (5th Cir. 1979); NLRB v. Mr. Porto, Inc., 590 F.2d 637, 640 (6th Cir. 1978); see also Summa Corp. v. NLRB, 625 F.2d 293, 296 (9th Cir. 1980).
The Board's petition for rehearing is denied.