Douglas County Electric Membership Corp.

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.