                                          Filed:    February 15, 1996



                             PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT



                            No. 95-1364



NATIONAL LABOR RELATIONS BOARD,

                                                          Petitioner,


UNITED FOOD & COMMERCIAL WORKERS, Local 204,
AFL-CIO;   INTERNATIONAL UNION OF OPERATING
ENGINEERS, Local 465, AFL-CIO,

                                                         Intervenors,

          versus

LUNDY PACKING COMPANY,

                                                          Respondent.



                            No. 96-1177



In Re:   LUNDY PACKING COMPANY, INCORPORATED,

                                                          Petitioner.
                                O R D E R



      In N.L.R.B. v. Lundy Packing Co., 68 F.3d 1577 (4th Cir.

1995),   this      court   addressed       the   Board's    bargaining     unit

determination for a production and maintenance unit at Lundy

Packing Company's Clinton, North Carolina facility. In that case,
we denied the Board's request to enforce its bargaining order

against Lundy, thereby terminating all administrative proceedings

relating to the case.      At no time did the Board ever suggest that
a   remand   for    counting   the   challenged       ballots   would     be   an

appropriate     alternative    disposition       of   the   case   (the   Board

unequivocally requested "that judgment should enter enforcing the

Board's order in full"), nor, given our view of the proceedings

below, did this court remand any portion of the case to the Board

for further consideration.

      "Absent a remand, the Board may neither reopen nor make
additional rulings on a case once exclusive jurisdiction vests in

the reviewing court." George Banta Co., Inc. v. N.L.R.B., 686 F.2d
10, 16 (D.C. Cir. 1982), cert. denied, 460 U.S. 1082 (1983). This

is because "[i]n section 10(e) of the National Labor Relations Act,

29 U.S.C. § 160(e), Congress provided that '[u]pon the filing of

the record with [the Court of Appeals] the jurisdiction of the

court shall be exclusive and its judgment and decree shall be


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final.'"     Service   Emp.     Intern.    Union   Local    250,   AFL-CIO    v.
N.L.R.B., 640 F.2d 1042, 1044 (9th Cir. 1981) (Kennedy, J.).                  As

the Supreme Court has noted, when a "proceeding has ended and has

been merged in a decree of a court pursuant to the directions of

the National Labor Relations Act . . . . [i]t is to have all the

qualities of any other decree entered in a litigated cause upon

full hearing, and is subject to review by this court on certiorari

as in other cases." Int'l Union of Mine, Mill & Smelter Workers v.

Eagle-Picher Mining & Smelting Co. , 325 U.S. 335, 339 (1945).

     In Lundy, this court addressed both the refusal of Lundy
Packing to bargain and the underlying representation proceedings.

Indeed, the refusal to bargain case was merely the vehicle by which

the Board's representation proceedings reached this court for
review.    See Boire v. Greyhound Corp., 376 U.S. 473, 477 (1964)

("Such decisions, rather, are normally reviewable only where the

dispute concerning the correctness of the certification eventuates
in a finding by the Board that an unfair labor practice has been

committed as, for example, where an employer refuses to bargain

with a certified representative on the ground that the election was

held in an inappropriate bargaining unit"); The Developing Labor
Law at 1878 (Hardin, ed. 1992) ("review of issues in representation

proceedings may only be obtained incidental to review of an order

entered in an unfair labor practice proceeding").                    The Board

acknowledged   as   much   in    its   Lundy   brief,      listing   only    two

"determinative underlying issues": "(1) whether the Board abused

its broad discretion in finding appropriate a production and

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maintenance unit . . . and (2) whether the Board abused its

discretion in overruling the Company's election objections."

     Thus, the attempt by the Board to revive the representation

petition and the election that followed exceeds the Board's

jurisdiction. Following our decision in Lundy, "[t]he Board had no
jurisdiction to modify the remedy."         W.L. Miller Co. v. N.L.R.B.,
988 F.2d 834, 837 (8th Cir. 1993).              Indeed, any other approach

would   result    in   endless   rounds    of    piecemeal    litigation     and

frustrate   the   ability   of   the   Supreme     Court     to   review   final
decisions of this court.

     Our respect for the Board is such that we see no need to

mandamus or otherwise enjoin it. Therefore, Lundy's motion to stay
the Board's order is moot, its motion for a writ of mandamus is

denied, its motion to show cause why the Board should not be held

in contempt is denied, and the unions' motion to intervene is

granted.    We reiterate our earlier order that enforcement of the

Board's bargaining order is denied and that this case is closed in

all respects.

     Entered at the direction of Chief Judge Wilkinson with the

concurrence of Judge Niemeyer and Judge Hamilton.




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