Douglas County Electric Membership Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1964

148 N.L.R.B. 559 (N.L.R.B. 1964)

DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 559
APPENDIX ' .
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL, if and when we resume operating a plant for the plating or polish-
ing of metal , bargain on request with Metal Polishers , Butlers, Platers and
Helpers International Union , Local 44, AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate unit consisting of all production and
maintenance employees employed at our Newark , New Jersey , plant, exclud-
ing all office clerical employees , professional employees , guards, watchmen, and
supervisors , as defined in the National Labor Relations Act, as amended, and
embody any understanding reached into a signed agreement.
WE WILL create a preferential hiring list containing the names of all em-
ployees laid off by us between April 30 and July 1, 1963, and notify the above-
mentioned Union and all persons named on said list of the establishment thereof.
WE WILL, if and when we resume operations of a plant, a aforesaid, offer
all the individuals whose names appear on the aforesaid preferential hiring
,list, full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges previously
enjoyed.
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of their rights to self-organization , to form, join, or assist the above -named or
any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended.
All our employees are free to become, remain , or refrain from becoming
or remaining , members of the above -named Union or any other labor organiza-
tion , except that this right may be affected by an agreement in conformity
with Section 8(a)(3) of the National Labor Relations Act, as amended.
ROYAL PLATING AND POLISHING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Employees may communicate directly with the Board's Regional Office; 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions. -
Douglas County Electric Membership Corporation and Inter-
national Brotherhood of Electrical Workers, AFL-CIO. Case
No. 10-CA-5503. August 27,1964
DECISION AND ORDER
On May 6, 1964, Trial Examiner Alba B. Martin issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
148 NLRB No. 61.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 ('b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Douglas County Electric Membership Corporation, Douglasville,
Georgia, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
1 We find that the Respondent 's refusal to bargain with the Union on the ground that its
certification was invalid was violative of Section 8(a) (5) for an additional reason not
specifically referred to by the Trial Examiner. Although in its objections to the election,
the Respondent alleged that the five supervisors "conducted and at all times, up to and
including the date of the election , furthered" the campaign of organizing the employees,
it failed to submit any evidence indicating that the supervisors engaged in any such con-
duct between July 15 and the date of the election, and the Regional Director accordingly
overruled such objection. The Board , in order to prevent delay in election procedures, has
uniformly refused to direct a hearing on objections unless the party supplies specific evi-
dence of conduct which prima fame would warrant setting aside the election . O.E. Van
and -Storage, Inc, 127 NLRB 1537, enfd 297 F. 2d 74 ( C.A. 5) ; Orleans Manufacturing
Company, 120 NLRB 630; The Mountain States Telephone and Telegraph Company, 136
NLRB 1612, enfd . 310 F. 2d 478 (C.A. 10), cert. denied 371 U.S. 875. As the Respondent
had an opportumty*to present evidence to, and to litigate before, the Regional Director
the issue of the supervisors ' participation in the campaign , and, as it did not avail itself
of such opportunity , its attempt to relitigate this issue before the Trial Examiner comes
too late. -
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Alba B . Martin at Atlanta , Georgia, on
January 8, 1964, arises out of Respondent's admitted refusal to recognize and bargain
with the Union certified by the Board in Case No. 10 -RC-5581 , herein called the
representation case. The charge was filed October 17, 1963, the complaint was issued
November 6, 1963, and the answer was filed on November 15, 1963. After the
hearing 1 Respondent filed a brief, which has been duly considered. Upon such con-
' Upon an order to show cause , after the hearing, by stipulation , the parties agreed to
the receipt in evidence of certain additional exhibits. These documents are hereby re-
ceived in evidence , and are numbered as follows: The Order To Show Cause Is Trial
Examiner 's Exhibit No. 1. The Stipulation Is Joint Exhibit No. 30 Letter Horn to
Fields, dated August 21 , 1963, is Joint Exhibit No. 29. Affidavit of Ralph Lawler is
Joint Exhibit No. 13a. Affidavit of Roy Lawyer Is Joint Exhibit No. 13b. July IT, 1963,
memorandum from Harper "To the Employees . . ." is Joint Exhibit No. 13c. Two-page
notice "To All Employees . . ." signed by Harper and with sample ballot on second page,
is Joint Exhibit No. 13d . These documents have been placed in the original exhibit file.
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 561
sideration and upon the entire record in this case and in the related representation
case, Case No. 10-RC-5581, of which I take official notice and most of which was
received into the record herein, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT .
Respondent, a Georgia corporation with its principal office and place of business
in Douglasville, Georgia, is engaged in thee distribution and sale of electric power.
During the calendar year prior to the issuance of the complaint, which period was
representative of all times material herein, Respondent purchased and received
products valued in excess of $50,000 directly from points located outside the State of
Georgia. During the same period, Respondent's gross volume of business was in
excess of $250,000. Respondent is, and has been at all times material herein, engaged
in commerce within the meaning of Section 2(6) and (7) of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Worker, AFL-CIO, the Charging Party
herein and the petitioner in the representation case-herein referred to as the
Union-is a labor organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The General Counsel's affirmative case
Upon a petition for certification in the representation case, the Board's Regional
Director, after hearing, on June 20, 1963, directed an election in a unit of employees
he found to be an appropriate unit, consisting of:
All servicemen, construction or pole line crews, right-of-way crews, including
the foremen, the stock clerk, and the janitor employed by the Employer, but
excluding all office clerical employees, the work-order clerk, professional
employees, guards, and supervisors as defined in the Act.
In his Decision and Direction of Election the Regional Director included the five
foremen in the appropriate unit and permitted them to vote in the election. The
face of his Decision shows that he exhaustively reviewed the evidence put before
him at the hearing and thereupon concluded that the five foremen were not super-
visors as defined in the Act. I shall refer to them as the five men.
On July 19, 1963, in an election by secret ballot conducted under the supervision
of the Regional Director, of approximately 21 eligible voters, 15 cast valid votes
for, and 1 cast a ballot against the Union, and the 5 men cast challenged ballots.
The challenges not' being sufficient in number to affect the results of the election,
on August 9, 1963, the Regional Director certified the Union as the exclusive rep-
resentative of all the employees in the appropriate unit for the purposes of collective
bargaining
On October 3, 1963, in a letter to Respondent the Union "officially" requested the
Company to set a date for the starting of collective-bargaining negotiations. This
letter referred to two earlier letters on the same subject, one of August 13 from the
Union to Respondent, and Respondent's reply of August 15. These earlier letters
are not in evidence. On the following day, October 4, the Union's attorney wrote
Respondent, modifying the October 3 letter by stating in substance that as the
status of the five men was in dispute, the Union was at this time demanding to
bargain only for the others in the certified unit, for those not in dispute. The
record contains no answer to either of these letters. I conclude upon the entire record
that Respondent did not reply to either of them.
On December 10 the Union sent a telegram to Respondent reading as follows-
This is a formal request in accordance with our recent letter for a meeting for
the purpose of negotiating labor agreements between your firm and the IBEW
in accordance with recent N.L.R.B. certification and decision. Please advise
by wire dates convenient to Co-op.
2 The Act herein refers to the National Labor Relations Act, as amended, 29 U.S.C. 151,
et seq.
760-577-65-vol 148-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated December 12, Respondent replied as follows:
This will acknowledge receipt of your telegram of December 10, 1963,
requesting that this Corporation meet with you for the purpose of negotiating
a contract concerning certain employees of the Corporation.
It is the contention of this Corporation that the organization of certain of
our employees by your Union was instigated, furthered and effectuated by the
Corporation's supervisory employees. Therefore, any certification by the Na-
tional Labor Relations Board of your Union as bargaining agent for these
employees is invalid since the election on which it is based could not and did
not represent the uncoerced desires of a majority of the employees involved
Moreover, the Corporation would be subjecting itself to an unfair labor practice
charge if it should recognize and bargain with a Labor Organization dominated
in its formation and administration by the supervisory employees of the
Corporation.
For the reasons stated above, we respectfully decline to meet with you as
requested in your telegram.
Earlier, prior to the election , Respondent had also refused to recognize and bargain
with the Union, but for allegedly different reasons. On May 13, 1963, the Union
wrote Respondent as follows:
This is to advise that a majority of your employees have authorized the Inter-
national Brotherhood of Electrical Workers to represent them in collective
bargaining in regards to wages, hours of work and other conditions of employ-
ment. I respectfully request the Co-op to recognize the International Brother-
hood of Electrical Workers as the exclusive bargaining agent for these employees
and will appreciate you advising me immediately.
I also respectfully request that all conditions, benefits, etc., which these em-
ployees now received from the Co-op be held in a status quo position and any
adverse action taken against any employee on account of this authorization will
be handled by the agency of the Federal Government authorized to handle such
matters.
I will appreciate hearing from you by return mail.
On May 14 Respondent replied as follows:
This will acknowledge your letter of May 13 where you claim to represent
a majority of our outside employees. We do not believe these employees want
you to represent them. We will not recognize you as a bargaining agent unless
and until you are certified by the National Labor Relations Board after a
secret election.
For your information this Coop originated in 1936, one of the first coops
in Georgia. Our directors and officers are leaders in the counties in which we
serve. We have been able to bring electric power to people who had never
been served by the private power companies, whom your union represents.
We want you to know that our Board of Directors has constantly worked
to give higher wages to our employees, along with the finest working conditions
in this part of the country. Our wages are now the highest in Douglas County.
We have a liberal vacation plan; hospitalization and major medical coveraee
largely paid for by the coop; life insurance; holidays; a fine pension program
which the coop largely finances; stand-by pay; cumulative sick leave; and last
but not least, rainy day pay. You will see that our Board of Directors has gone
the limit in being fair to the employees. You surely have nothing to offer the em-
ployees of this coop . Our employees do not need a union to get fair treatment.
As I have stated above, we will not recognize your union as you request.
From Respondent's May 14 response to the Union's initial request to bargain, it ap-
pears that Respondent then had great reluctance to bargain with the Union.
B. Respondent's defense
1. In substance Respondent sought to defend its admitted refusal to recognize
and bargain with the Union for the certified unit on the ground that the question
of the participation of the five men in the organizing of Respondent's employees
was not litigated in the representation case and therefore should be litigated in this
complaint case . At the hearing before me Respondent sought, unsuccessfully, to
introduce testimony designed to show that the five men in fact instigated and promoted
the organizing efforts.
The record in the representation case proves that in fact (contrary to Respondent's
contention ) this issue was sufficiently and properly litigated in the representation case
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 563
In fact this was the most litigated representation case that has come to my attention:
The Region conducted two hearings, issued three decisions, and some four times
Respondent filed and twice the Union filed, with the Board, requests for review
of regional action or motions for reconsideration; the Board on each occasion denying
the request for review on the ground that it raised no substantial issues warranting
review. The Board's Rules and Regulations, Section 102.67(f), provide in pertinent
part that,
Failure to request review shall preclude such parties from relitigating, in any
related subsequent unfair labor practice proceeding, any issue which was, or
could have been, raised in the representation proceeding. Denial of a requc>_
for a review shall constitute an affirmance of the regional director's action which
shall also preclude relitigating any such issues in any related subsequent unfair
labor practice proceeding.
The issue Respondent now seeks to rehtigate was first raised before the Regional
Director in Respondent's motion to dismiss petition dated June 4, 1963, wherein
Respondent contended that the organization of Respondent's employees was con-
ceived and executed by the five men who were supervisors within the meaning of the
Act, that they secured the "showing of interest" at a meeting of employees at which
the alleged supervisors were present and participating. The Regional Director deter-
mined the issue in his original Decision and Direction of Election with his finding
,that at the time of these alleged activities the five men were not in fact supervisors
within the meaning of Act. In its request for reviewfiled with the Board the
Respondent urged that the Board reverse the Regional Director's holding as to the
five men and remand the issue to the Regional Director for a redetermination of
Respondent's motion to dismiss previously filed with the Regional Director, which
motion, Respondent told the Board, urged dismissal of the petition on the grounds that
supervisors secured the showing of interest. The Board denied the request for review
on the ground that it raised no substantial issue warranting review.
Thereupon, on July 15, 4 days before election was to be held, Respondent moved
the Regional Director to reopen the record on the ground that a written statement
of the duties, responsibilities, and authority of the five men "presented" that day by
Respondent to the five men and to each employee who worked under said men, in
substance, proved - that the men were supervisors within the meaning of the Act.
Respondent's motion also urged that to permit the five men to vote in the election
would "create an atmosphere of fear and coercion which would render the election
null and void." Respondent ended the document by moving that the record be
reopened "in order that the appropriate unit in this case may be amended to conform
to the National Labor Relations Act." Respondent attached to its motion a copy
of the document it had given its foremen and employees.
In its objections to the election dated July 25, Respondent urged that the election
be set aside because the five men were permitted to vote; that because of Respondent's
written notification employees knew the men "held supervisory status"; because the
Regional Director conducted the election knowing that employees had been notified
of this supervisory status; because the union organizing campaign was conceived,
instigated, and conducted by the five men; because the Regional Director should have
known that "such an atmosphere of domination and coercion prevailed due to the par-
ticipation of the five supervisors in the voting procedure that a fair and impartial
election was an impossibility; and because the Union first appointed one of the five
foremen as its observer at the election, but upon protest of the Employer and advice of
the Board agent in charge of the election, withdrew him and appointed someone else.
The Union filed its opposition to Respondent's objections to the election, which
opposition and its attachments the Regional Director had before him when he
made his ruling. To its opposition the Union attached affidavits of two of the five
men, and a notice to all employees which showed that Respondent was opposed to the
Union. The two affidavits, dated July 29, 1963, stated in pertinent part:
I have no desire at present time to be classified as a supervisor, especially with-
out any raise in pay and other benefits, as I realize that under the circumstances
I might loose fsicl the protection of the National Labor Relations Act by being
forced to leave the status of "employee."
The attached notice "To All Employees of Douglas County Electric Membership
Corporation" stated as follows:
As you know, the International Brotherhood of Electrical Workers demanded
that this company recognize this union as the bargaining agent for all our
employees. We have refused to recognize this union until an election is con-
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted by the National Labor Relations Board at which time each of you will
be given an opportunity to vote as to whether or not you want to turn over
your job and your future to this union.
The National Labor Relations Board has, at our request set an election on
this matter , the details of which are as follows:
1. Date-July 19, 1963.
2. Time-4.00 P.M. to 4:30 P.M.
3. Place-Meeting room at our office
4. Those eligible to vote-Servicemen , construction or pole line crews,
right-of-way crews, including the foremen , stock clerk , and janitor on
the payroll as of June 14, 1963.
At the time of this election , you will have a very important decision to make
for yourself and your family . Here are some things I would like you to think
about before voting in this election:
A. Union dues , fines and special assessments-You have your job- now with-
out having to pay anybody any dues, fines or special assessments . Why pay
someone to continue on your job?
B. Don't be a guinea pig-There are forty-one electric membership co-ops
in the State of Georgia and none of them have a union of any type . Why should
we take this risk?
C. Strikes and violence-Unions bring strikes and violence. Why run this
risk? We all have obligations that we have to meet regularly such as house notes,
automobile notes, etc. Why run the risk of losing this with a strike? ,
I hope that you will discuss this matter with your family and your friends
and decide what you are going to do . I urge you to think about this very
seriously and vote "NO " and against the union at the time of the election.
Sincerely,
(S) Ralph L . Harper,
RALPH L. HARPER,
Manager.
-------------------------------------------------------------------
Do you wish to be represented by the International Brotherhood of Electrical
Workers?
YES NO
Thus as he was weighing Respondent 's objections, the Regional Director also had
evidence before him from the Union that-at least two of the five men were interested
in a raise in pay for themselves and remaining under the Act as an "employee." He
also had evidence , the notice "To All Employees ," that Respondent was opposed to the
Union and had advised employees to vote against the Union in the election.
Regional Director 's Supplementary Decision and Certification of Representatives
shows on its face that the Regional Director considered Respondent 's objections and
overruled them.3
aI rejected Respondent 's offer of proof that the Regional Director never talked to the
five men and therefore never investigated Respondent 's objections to the election What
persons the Regional Director talked to was a matter within his sound administrative
discretion . his duty to investigate did not require ,useless activity where, as here, he
had sufficient information to reach the correct decision . At the hearing Respondent
accused the Regional Office of'collaborating with the Union in - trying,to organize Respond-
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 565
Respondent's request for review filed with the Board said, inter alia, the "Em-
ployer's contention is, basically, that the election was rendered invalid by the
atmosphere of supervisory coercion and intervention which prevailed during the
election." The Board denied the request for review.
Respondent then moved that the Board reconsider its denial, urging that the
participation of five supervisors in the election created a very substantial issue
warranting review in that there was undue supervisory influence, at the time the vote
was cast. The Board denied the motion for reconsideration.
Pursuant to the Respondent's motion, and over the Union's objection, on August 20
the Regional Director reopened the record to take evidence "with respect to the
authority conferred upon the foremen on July 15, 1963, or thereafter . . . . Such
action does not constitute a reconsideration of the Decision and Direction of Election
issued on June 20, 1963, but has the sole purpose of determining whether the foremen
are now supervisors within the statutory meaning and, if so, of appropriately amend-
ing the description of the bargaining unit heretofore found to be appropriate."
Respondent never objected to or took exception to or requested review of this scope
of this reopened hearing, and therefore under Section 102.67(f) of the Board Rules.
waived any claim of a right to relitigate the status of the five foremen-employees as
of the beginning of the organizing movement and up to July 15. The Union objected
to any reopening and requested the Board to review the order reopening. The Board
denied the request.
Following the reopened hearing and upon the basis of the record made therein,
in his Second Supplemental Decision and Order dated September 25, the Regional
Director found that on and after July 15, 1963, the five men were supervisors as
defined in the Act and amended his earlier unit finding by removing the five men
from the appropriate unit. The Regional Director pointed out that the Em-
ployer's manager testified that four items of authority and duties set forth in the
Employer's July 15 statement of responsibilities and duties of the five men were
new as of that date. The Board denied the Union's request for review of the
Regional Director's action and also of the Union's motion that the Board reconsider
its own denial.
2. Respondent contends in substance that it has been deprived of procedural due
process because it has never had a hearing on the part played by the five foremen
in the employees' union activities between July 15 and the election, which occurred
July 19, and since then. At the hearing before me Respondent offered, unsuccess-
fully, to prove that after July 15 the five foremen supervisors attended union meet-
ings during which the question of a strike was discussed and urged employees to
participate in the Union and vote for the Union. A third hearing in the representa-
tion case would have been to bring forth evidence upon which the Regional Direc-
tor, acting for the Board, could reach a just solution of the issues. The record
in the representation case shows that the Regional Director had enough evidence be-
fore him without a hearing, to perform his duty properly.
As I stated above this was a much-litigated representation case. During fiscal
year 1963, which ended just before the election in the representation case was con-
ducted July 19, the Board through its agents conducted 7,141 elections? During
the same period it held formal hearings in 2,418 representation cases.5 In the face
of this caseload the Regional Director exercised his discretion wisely in limiting
the representation case herein to two hearings.
The real question before the Regional Director in his consideration of the activities
of the five foremen after they became supervisors on July 15 was not what they
did but whether they used their authority from Respondent to coerce the employees
to join and assist the Union. The question was whether the five foremen were un-
ent, and in Its brief Respondent accused the Regional Director of arbitrary action in his
disposition of Respondent's objections to the election. To permit an attack upon the
motives of the Regional Director and other officers of the Regional Office is precluded by
the line of decisions prohibiting inquiry into the mental processes of administrative
officials in discharging their official functions. See, e.g., Morgan v. United States, 304
U.S. 1, 18; N.L.R.B. v. Donnelly Garment Company, 330 U.S. 219, 229-230; Chicago B & 0
By. v. Babcock, 240 U.S. 585, 593 ; Willapoint Oysters v. Ewing, 174 F. 2d 676, 696
(C.A. 9), cert. denied 338 U.S. 860 ; N.L.R.B. v. Air Associates, Inc., 121 F. 2d 586, 590-
591 (C.A. 2) ; Bethlehem Steel Company v. N.L.R.B., 120 F. 2d 641, 653 (C.A.D.C.), and
the cases there cited in footnotes 27 and 28.
4 See the Board's Twenty-eighth Annual Report, of which I take official notice, page 175,
appendix A, table 11.
5Idem, page 164, table 3.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dertaking to help Respondent get a union of its choice or were trying to help them-
selves and the employees to get a union of their choice. The record before the
Regional Director showed that when the "showing of interest" was acquired, and at
all times prior to July 15, the foremen were not supervisors within the meaning of
the Act but were employees free to engage in union activities as much as they
wished. The record before the Regional Director showed that the five foremen
became supervisors on July 15, as a result of a written statement of their authority
issued that day by Respondent. The Regional Director knew, therefore, that any
union activity of the foremen prior to July 15 was in an effort to improve their
own and other employees' wages, hours, and working conditions.
The Regional Director knew administratively from the notice "To All Employees"
quoted in full above, which on its face showed that it was a preelection effort by
Respondent to influence the employees against the Union, that the Company was
opposed to the Union. From this document the employees, as well as the Regional
Director, knew that the Company was not in favor of the Union, and that if in fact
the five foremen were "pushing for" the Union, they were doing so on their own and
not as company agents. The Regional Director would have known administratively
therefore, that there was no issue before him of company coercion of employees
through any activity of the foremen.
Had the Respondent's real concern been to be certain that Respondent's super-
visory authority not be used to coerce the employees, it could have informed the
employees in writing or verbally that the foremen were not speaking for the Com-
pany in any union activity in which they were engaging.e Also it could have dis-
ciplined the foremen in some way for acting contrary to its policies. In the absence
of any proof to the contrary, I conclude that Respondent never took either of these
steps and never informed the Regional Director that it had taken either step.
From their vast experience the Regional Director and his staff must have known
that in a situation where only one union is involved it would be highly unlikely for
the Employer to be in favor of the organization of its employees; he would have
known also that a company which protests so often to the Region and the Board,
when there is only one union involved, it is not trying to sponsor or assist the Union
or coerce the employees into joining it. Therefore the Regional Director would
have known administratively upon the facts before him in the representation case
that even after the foremen became supervisors on July 15 any union activities they
engaged in were on behalf of themselves and the employees and not on behalf of
the Employer. Hence no hearing was necessary or called for on the question of
whether they engaged in union activity after July 15, and if so what activity.
At the hearing before me Respondent's attorney stated that the five foremen re-
fused to give Respondent's attorney affidavits concerning the organizational events.
This was additional indication that the foremen considered their interests and the
Company's, on the subject of the Union, to be diverse. Additional indication of
this diversity is the alleged fact stated by Respondent's attorney at the hearing herein
that one of the five foremen had threatened to call a strike. In threatening a strike
a supervisor is not likely to be executing company policy.
Respondent had no absolute right to a hearing on the question of the foremen's
participation in the self-organizational activities of the employees where, as here,
such a hearing would have yielded no information necessary to the Regional Direc-
tor in his proper handling of the representation case but would have served only to
delay further the beginning of collective bargaining?
Respondent contends in substance that the certification was invalid and unlawful
and should be withdrawn because of the activities of the foremen. Even if, -contrary
to the proof before the Regional -Director, the foremen in their organizational
6 Cf Hadley Manufacturing Corp, 106 NLRB 620; Talladega Cotton Factory, Inc,
91 NLRB 470
4 The Board determines the validity of a Union's showing of interest by an administra-
tive investigation The Board refuses to permit in the representation proceeding the
litigation of allegations that authorization cards have been procured by fraud, misrepre-
sentation, or coercion or that they had been revoked or that they are stale Also, alleca-
tions of supervisory participation in, or influence upon, a union's solicitation of a showing
of interest, are not entertained by the Board in representation proceedings, but are in-
vestigated only administratively See Ceorgsa Kraft Compaivy, 120 NLRB 806 ; Spartan
Department Stores, 140 NLRB 608, footnote 2, The Deversey Corporation, 139 NLRB
572 Such practice covers the present situation The Board's complaint case procedures
provide a forum for the litigation of any issue of company domination or interference with
the formation or administration of the Union, and for appropriate remedy Up to the
time of the hearing herein no 8(a)(2) charge had been filed.
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORP. 567
activities after they became supervisors were working in the interest of the Employer,
the latter cannot be permitted to profit by its own wrongdoing. To withdraw the
certification and set aside the election at the behest of the Respondent because one or
more supervisors were active in employee-organizational activities would permit Re-
spondent to avoid forever a valid election by slipping a few supervisors into every
self-organizational effort of the employees. To permit Respondent to take advantage
of its own unfair labor practices would encourage it to indulge in other unfair labor
practices and thus would not effectuate the policies of the Act. To permit it to
convert employee leaders of an organizational campaign into supervisors shortly be-
fore the election and then get the election set aside on the ground that these ex-
employee leaders were coercing the employees, would deprive the employees who
voted overwhelmingly for the Union of the justice they are entitled to. Thus I do not
recommend that the certification be withdrawn or the election set aside.
C. Conclusions
Upon the above considerations and the entire record in the representation case
and the complaint case, I believe and find that in his handling of the representation
case the Regional Director has given Respondent due process of law; that the question
of the participation of the five foremen in the organizing of the employees was
sufficiently litigated in the representation case to permit the proper and expeditious
handling of that case; that to hold a third hearing would result in unnecessarily
delaying the resolution of the complaint case and would further result in an un-
warranted expenditure of Government funds.
The law is settled that the issues raised and determined in the prior representa-
tion case may not be relitigated in the complaint proceeding. Pittsburgh Plate Glass
Company v. N.L.R.B., 313 U.S. 146, 157-158; N.L.R.B. v. American Steel Buck
Corp., 227 F. 2d 927, 929 (C.A. 2); N.L.R.B. v. Botany Worsted Mills, 133 F. 2d
876, 882 (C.A. 3); N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200-
201 (C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Company, 138
NLRB 61. It is equally clear that as a Trial Examiner of the Board, I am bound
by the Board's earlier unit determinations and the certification. N.L R.B. v. West
Kentucky Coal Company, 152 F. 2d at 201; Air Control Products of St. Petersburg,
Inc., 139 NLRB 413; Esquire, Inc. (Coronet Instructional Films Division), 109 NLRB
530, 539, enfd. 222 F. 2d 253 (C.A. 7).
Accordingly, on the basis of the Board's prior determinations in the representation
case, I find and conclude that at all times material herein the Union has been and
now is the certified collective-bargaining representative of Respondent's employees
in the appropriate unit hereinbefore described. I further find and conclude that
Respondent has, at least since October 4, 1963, refused to bargain collectively with
the Union as the exclusive representative of its employees in the appropriate unit;
and that Respondent by such refusal has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE LABOR PRACTICE UPON COMMERCE
Respondent's refusal to bargain as set forth in section III, above, occurring in
connection with the operations of Respondent set forth in section I, above, has a
close, intimate, and substantial relation to trade, traffic and commerce among the
several States, and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Having found that Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease
and desist therefrom and (adopting the language prescribed by the Supreme Court
in NL.R.B. v. Express Publishing Co., 312 U.S. 426, 439) from "in any manner
interfering with the efforts of the [Union] to bargain collectively with [Respondent]."
I will further recommend that Respondent take certain affirmative action in order to
effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in this
and the representation case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act
2. All servicemen, construction or pole line crews, right-of-way crews, the stock
clerk, and the janitor employed by Respondent, but excluding all foremen, all office
clerical employees, the work-order clerk, professional employees, guards. and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union , since the date of its certification , August 9, 1963 , has been and now
is the exclusive representative of all employees in the aforesaid appropriate unit for
purposes of collective bargaining within the meaning of Section 9 ( a) of the Act.
4. By refusing , on and since October 4 , 1963, to bargain collectively with the Union
as the representative of the above employees , Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion8 ( a)(5) and ( 1) and Section 2 ( 6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case , I recommend that Respondent , Douglas County
Electric Membership Corporation , its officers , agents, successors and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with International Brotherhood of Elec-
trical Workers , AFL-CIO, as the exclusive representative of the employees in the
following appropriate unit:
All servicemen , construction or pole line crews , right-of-way crews, the stock
clerk, and the janitor employed by the Respondent , but excluding all foremen,
all office clerical employees , the work-order clerk, professional employees,
guards, and supervisors as defined in the Act.
(b) In any manner interfering with the efforts of the above -named Union to bar-
gain collectively with the above-named Company on behalf of the employees in
the above -described unit 8
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request , bargain collectively with the above -named Union as the exclu-
sive representative of all employees in the appropriate unit, and embody in a signed
agreement or agreements any understandings reached.
(b) Post at its Douglasville office, copies of the attached notice marked "Ap-
pendix." 9 Copies of such notice, to be furnished by the Regional Director for
Region 10 , shall, after being signed by an authorized representative of the Respond-
ent, be posted immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered , defaced, or covered
by any other material.
(c) Notify the said Regional Director , in writing, within 20 days of the date
of the receipt of this Decision and Recommended Order, what steps the Respond-
ent has taken to comply herewith.io
Upon the entire record in the instant case and the representation case, and upon
the above considerations , it is further recommended that the General Counsel's
motion for judgment on the pleadings, upon which judgment was reserved at the
hearing, be granted.
8 As noted in the section of this Decision entitled "The Remedy ," the language of para-
graph 1 ( b) of the Recommended Order follows that prescribed by the Supreme Court in
the Express case, swpra, at 439
9 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
10 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read : "Notify the Regional Director for Region 10, in writing , within
10 days from the date of this Order , what steps the Respondent has taken to comply
herewith." '
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we notify our employees that:
WE WILL NOT refuse to bargain collectively with International Brotherhood
of Electrical Workers, AFL-CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
THE KROGER CO. 569
WE WILL NOT in any manner interfere with the efforts of International Broth-
erhood of Electrical Workers, AFL-CIO, to bargain collectively as the exclu-
sive, representative of the employees in the bargaining unit described below.
WE WILL, upon request, bargain with International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay, wages, hours of
employment, and others terms and conditions of employment, and, if an un-
derstanding is reached, embody such an understanding in a signed agreement.
The bargaining unit is:
All servicemen, construction or pole line crews, right-of-way crews,
the stock clerk, and the janitor employed by the Company, but excluding
all foremen, all office clerical employees, the work-order clerk, profes-
sional employees, guards, and supervisors as defined in the Act.
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-----------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. Trinity 6-3311, Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
The Kroger Co., Employer and Allen Alsip, Petitioner and Re-
tail Clerks Union, Locals 1550, 1540, 1504, 1460, 1453, and 98 of
the Retail Clerks International Association, AFL-CIO, Unions.
Case No. 13-RD-494. August 27, 1964
DECISION AND ORDER
Upon a petition and an amended petition duly filed under Sec-
tion 9(c) of the National Labor Relations Act, a hearing was held
before Hearing Officer Albert Kleen. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the reasons stated
below :
The Petitioner seeks to decertify the above-named Unions in a
single-employer unit consisting of certain employees employed in all
of the Employer's stores located in the Chicago metropolitan district.
148 NLRB No. 69.