452 F2d 1197 Cash-Way Lumber Company v. National Labor Relations Board

452 F.2d 1197

79 L.R.R.M. (BNA) 2144, 67 Lab.Cas. P 12,289

M. P. C. CASH-WAY LUMBER COMPANY, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1269.

United States Court of Appeals,
Sixth Circuit.

Dec. 7, 1971.

Terry S. Boyce, Detroit, Mich., for petitioner; Fred B. Schwarze, Detroit, Mich., on brief.

Stephen C. Yohay, Atty., N.L.R.B., Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, Atty., N.L.R.B. Washington, D. C., on brief.

Before PECK, McCREE and BROOKS, Circuit Judges.

ORDER

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1

This appeal presents a petition to review an order of the National Labor Relations Board (189 NLRB No. 102) and a cross-application of the Board for enforcement of that order. On its merits the appeal would present an issue as to whether petitioner had refused to bargain with a union certified by the Board as representative of its employees, but on consideration of the record on appeal, the briefs of the parties and the oral arguments of counsel, the Court concludes that petitioner's failure to seek a pre-election review of the Board's unit placement determination precludes judicial review of that determination. N.L.R.B. v. Rod-Ric Corp., 428 F.2d 948, 950 (5th Cir. 1970), cert. denied, 401 U.S. 937, 91 S.Ct. 922, 28 L.Ed.2d 216; see N.L.R.B. v. Richard W. Kaase Co., 346 F.2d 24, 28-29 (6th Cir. 1965). Accordingly,

2

It is ordered that the petition for review be and it hereby is denied, and enforcement of the Order of the National Labor Relations Board is hereby ordered.