Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges.
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 Sec. 10(c) of the National Labor Relations Act, as amended (29 U.S.C.A. 1953 Supp., Sec. 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 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 Sec. 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 Sec. 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 Sec. 10(e) for an enforcement of its order or a petition by an aggrieved person under Sec. 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 Sec. 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 have been permitted to intervene and file briefs, the former naturally aligning itself with the Board in opposition to the motion and the latter with the company in support of the motion. Numerous and extensive briefs have also been filed by both the petitioner and the Board. In fact, without discouragement from the Court because we were anxious to get all possible light on the issue, we have well near been overwhelmed with briefs. Any attempt to follow the many theories advanced pro and con relative to the construction and effect to be given to the statute and the Board's Statements of Procedure, as well as the legislative history of the Act and the purposes sought to be achieved, would unduly prolong this opinion. After giving careful consideration to all the theories and arguments advanced, we have reached the conclusion, admittedly contrary to our first impression, that petitioner's motion must be denied.
The relevant provisions of the Act are subsections (c) and (d) of Sec. 9. The former, so far as presently pertinent, reads as follows:
"(c) (1) Whenever a petition shall have been filed in accordance with such regulations as may be prescribed by the Board -
(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (1) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section * * * the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof."
This is the only statutory provision with which the Board need be concerned at the inception and during the progress of a representation proceeding. Of the numerous commands contained in this subsection, there are two which we regard as highly relevant to the question before us. They are (1) that the hearing officer "shall not make any recommendations with respect thereto" (that is, the hearing which has been had), and (2) that the Board shall direct an election by a secret ballot and shall certify the results thereof if it "finds upon the record of such hearing that such a question of representation exists." Thus, it appears self-evident that the Board in making its decision in a representation proceeding would be without authority, even if it desired to do so, to rely upon information which it or its employees might have received or obtained prior to and which resulted in causing it to provide for a hearing. This is so for the reason, as stated, that the Board is commanded to make its decision from what it finds "upon the record of such hearing."
If the section lastly referred to stood alone in the Act, there certainly could be no basis for petitioner's instant contention. Petitioner's entire argument, however, is grounded upon Sec. 9(d), which reads as follows:
"(d) Whenever an order of the Board made pursuant to Section 10(c) is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under Section 10(e) or 10(f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in ...