Lamar Electric Membership Corp.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No Baltimore 1-7000, Extension 731, if they have any question concerning this notice or com- pliance with its provisions. Lamar Electric Membership Corporation and International Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-CA-5580. August 28, 1964 DECISION AND ORDER On May 12, 1964, Trial Examiner George Bokat issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief. 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 Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds 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 recommendations 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 Respondent, Lamar Electric Membership Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard at Barnesville , Georgia, on March 17, 1964, before Trial Examiner George Bokat, pursuant to a charge filed the preceding January 8 and a complaint issued on February 7, 1964. At issue is whether the Respondent violated Section 8(a)(5) and (1) of the Act following the certification of the Chaiging Union. Disagreeing with the validity of the certification and to test that issue, Respondent, as it concedes, has refused to bargain with the Union in respect to the employees in the unit embodied in the certification, though requested to do so Upon the entire record, and after due consideration of the brief filed by the Respondent, I make the following: 148 NLRB No. 73. LAMAR ELECTRIC MEMBERSHIP CORPORATION 593 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a Georgia corporation, with its principal place of business in Barnes- ville, Georgia, is engaged in the distribution and sale of electric power . During the past calendar year Respondent purchased and received products valued in excess of $50,000 directly from points outside of Georgia. During the same period Re- spondent's gross volume of business was in excess of $250,000. International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES This case is an outgrowth of a representation proceeding wherein the Board conducted an election in an appropriate unit and certified the Union as the exclusive bargaining representative. The Respondent refused to bargain with the Union and defends on the ground that the certification on which the refusal to bargain allegation was based is illegal and contrary to law. The Union's petition in Case No. 10-RC-5565 was filed on April 23, 1963, pursuant to which hearings were held on May 15 and June 11, 1963. On July 8, 1963, Walter C. Phillips, the Regional Director for Region 10 of the Board, issued his Decision and Direction of Election and specifically included in the unit over the Respondent's objection, an "engineering foreman," a position held by James Stallings. It was the Respondent's initial position advanced in the early stages of the representation issue that Stallings played a major role in conceiving and fostering the Union and contends that later in the proceedings and not until the very eve of the election did it learn for the first time that Frank Potts, its production superintendent, was also one of the instigators and leaders of the Union. In his July 8 decision, the Regional Director found contrary to the Respondent that Stallings, despite his title as "engineering foreman" was not a supervisor because he had never been given any supervisory authority. The Respondent's request to the Board to review this decision was denied on August 1, 1963. On July 23, 1963, the Respondent moved to reopen the representation record, alleging that on July 18 it had presented to James Stallings a written statement of his supervisory duties, responsibilities, and authority. This resulted in another hearing on August 21, 1963, and caused the Regional Director to amend his earlier unit finding so as to exclude the engineering foreman on the ground that since July 18, 1963, he was a supervisor as defined in the Act.' In the meantime, the election which had been scheduled for August 7, 1963, was held.2 The Respondent state's that on "August 6, 1963, the eve of the election [it] discovered for the first time that its production superintendent [Frank Potts] the head of Respondent's outside operations, was, along with Engineering Foreman James Stallings, the instigator and leader of the Union's organizing campaign. Upon dis- covering this fact, Respondent immediately sent a telegram to the Regional Director advising him of the situation and stating that-Respondent would not participate in any election held under such circumstances." The tally of ballots showed that of approximately 10 eligible voters, 7 cast valid votes for and 2 cast valid votes against the Union, and 1 cast a challenged ballot. On August 13, 1963, the Respondent filed timely objections to the election, alleging in part that Potts and Stallings had attended a meeting of the employees on August 6 and urged them to vote for the Union in the election to be held the next day, and that Potts and Stallings had-attended an-earlier meeting of the employees and urged them to vote for the Union. Other objections were urged based on the. alleged activities of Stallings and Potts. - After investigation of the objections, the Regional Director on September"26. 1963. in a nine-page detailed opinion, found all of the objections of the Respondent to be without merit and formally certified the Union as the exclusive representative for the bargaining unit herein described. The Respondent, asked the Board to review this decision and certification and it was denied by the Board on November 20, 1963 A motion to reconsider was likewise deniedby the Board on December 4, 1963. 1 The Respondent admits the appropriateness of this unit which excludes the engineering foreman although still maintaining its position that he was a supervisor prior to July 18. 2 Stallings, the engineering foreman was permitted to cast a challenged ballot because, In the view of the Regional Director, his status was then questionable because of the Re- spondent's pending motion to reopen the representation record. Permitting Stallings to vote forms the basis of one of Respondent' s numerous objections to the conduct of the election described later. 760-577-65-vol. 148-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing before me on the refusal-to-bargain complaint, the Respondent prof- fered the testimony of seven witnesses in support of its contention that the "inter- ference and active participation in the Union' s organizational efforts" by Supervisors Potts and Stallings rendered the certification of the Union invalid. This was, in effect an attempt to support the very objections to the conduct of the election previously filed by the Respondent in the representation case and determined by the Regional Director, after his investigation, to be without merit. Under these circumstances, I excluded the evidence under the well-settled doctrine that the issues litigated in the representation proceeding are not subject to relitigation in the complaint pro- ceeding predicated upon it .3 I permitted the Respondent instead to make an offer of proof as to what each witness would testify. Respondent stresses that it was not given a formal hearing in respect to the matters embodied in the Regional Director's Second Supplemental Decision and Certification of Representative of September 26, 1963. But implicit in the Respondent's request for review to the Board was the fact that it had not received such a hearing, and the Board's denial thereof with the statement that the Respondent's appeal raised no substantial issue warranting review effectively precluded my granting one in the complaint hearing. Furthermore, a party is not entitled as a matter of right to a hearing on objections to an election. O.K. Van and Storage, Inc., 127 NLRB 1537, 1539, enfd. 297 F. 2d 74 (C.A. 5). In sum, no showing has been made which lessens the conclusiveness upon me in this complaint proceeding of the certification issued in the representation proceeding. It is accordingly found and set forth as a formal conclusion of law, that the Union was duly designated as the collective-bargaining representative by a majority of the employees in the appropriate unit described in the certification, and, in accordance with the certification, is the exclusive bargaining representative of all the employees in the unit in question, within the meaning of Section 9(a) of the Act. Hence, by its admitted refusal to bargain with the Union so certified. Respondent has engaged in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8(a) (5) and, derivatively, also Section 8 (a) (1) of the Act. RECOMMENDED ORDER On the basis of the foregoing, and the record in this and the representation pro- ceeding. and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Lamar Electric Membership Corporation, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Brotherhood of Electrical Workers, AFL-CIO, as the duly certified exclusive bargaining representative of its employees in the following unit: All employees at, and working out of, the Employer's establishment at Barnes- ville, Georgia, including linemen , groundmen, truckdrivers, meter reader, utility man, janitor, and the work-order clerk, but excluding the engineering foreman, office clerical employees , guards, the power use advisor, the manager, and all other supervisors as defined in the Act. (b) Interfering with the efforts of International Brotherhood of Electrical Work- ers, AFL-CIO, to negotiate for or represent the employees in the aforesaid appro- priate unit as the exclusive bargaining agent. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with the said certified Union as the ex- clusive representative of all the employees in the unit described above, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of work, and, if an agreement is reached , embody it in a signed contract. (b) Post at its principal office in Barnesville, Georgia, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Re- 8 Pittsburgh Plate Class Company v. NLRB , 813 U.S 146, 157-158 ; N L.R B v. West Kentucky Coal Company, 152 F 2d 198. 200-201 (CA 6), cert. denied 328 US 866, 4 tkinson Dredging Company. 141 NLRB 1316, and cases cited at footnote,3. 4 Should this Recommended Order he adopted by the Board, the words "a Decision and Order" shall replace "the Recommended Order of a Trial Examiner" in the notice. Should the Board's Order, in turn, 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 replace "a Decision and Order." BIG TOWN SUPER MART, INC. 595 gional Director for Region 10, shall , after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for 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 said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days of receipt of this Recommended Order, what steps it has taken to comply therewith.5 5 Should this Recommended Order be adopted by the Board, this provision shall read instead: "Notify said Regional Director, 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 the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bar gain collectively upon reanest, with International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning grievances, labor disputes , wages, rates of pay, hours of employment , and other conditions of work, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All employees at, and working out of, the Employer's establishment at Barnesville, Georgia, including linemen , groundmen, truckdrivers, meter reader, utility man, janitor, and the work-order clerk, but excluding the engineering foreman , office clerical employees, guards, the power use advisor, the manager, and all other supervisors as defined in the Act. WE WILL NOT interfere with the efforts of International Brotherhood of Elec- trical Workers, AFL-CIO, to negotiate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. LAMAR 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. Big Town Super Mart, Inc. and Retail Store Employees Union Local 880, Retail Clerks International Association, AFL-CIO. Case No. 8-CA-3310. August 28, 1964 DECISION AND ORDER On May 26, 1964, Trial Examiner Leo F. Lightner issued his De- cision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain 148 NLRB No. 71.