Udaco Manufacturing Co.

700 DECISIONS OF NATIONAL Mitchiyoshi Uyeda, d/b/a Udaco Manufac- turing Company and United Steelworkers of America , AFL-CIO. Case 7-CA-4611 May 17,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND ZAGORIA On November 16, 1964, Trial Examiner William F. Scharnikow issued his Decision , attached hereto, in the above -entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief in which the Charging Party joined, and the Respondent filed a brief in reply to that submitted by the General Counsel. The National Labor Relations 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 briefs , and the entire record in the case, and finds merit in the exceptions of the General Counsel . Accordingly, the Board adopts the Trial Examiner's Decision only to the extent consistent herewith. On November 1, 1963, the Respondent and the Union entered into an agreement for a consent election to determine whether the Respondent's production and maintenance employees desired to be represented by the Union in collective bargaining.' The agreement, which was approved by the Acting Regional Director , specified that the appropriate bargaining unit was "[a]ll production and maintenance employees of the Udaco Manufacturing Company" and stipulated that the election was to be held in accordance with the Rules and Regulations , and applicable policies of the National Labor Relations Board . It further provided that: I Case 7-RC-5980, not published in NLRB volumes ' Respondent was not notified of the additional ground urged by the Union , and now contends that because of such failure it was deprived of an opportunity to present to the Regional Director relevant evidence and legal argument in support of the validity of the 2 ballots We find no merit in Respondent's contention There is no evidence before us that Respondent was denied an opportunity to present its evidence at the unfair labor practice hearing Moreover , we note that at the hearing Respondent admitted that the factual findings of the Acting Regional Director were both correct and complete, except for a minor detail which we find has no substantial bearing on the Acting Regional Director's factual determination 'On September 30, 1964, the district court issued its decision (Yoshio Uyeda v Jerome Brooks , 57 LRRM 2275 (D C Mich )) The district court was of the opinion that the Acting Regional Director lacked the power to exclude employees on the grounds of LABOR RELATIONS BOARD ... the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters The election was held on November 14, 1963; seven ballots were cast; three for the Union, two against the Union, and two challenged. The two challenged ballots were those of Toshio Uyeda and Yoshio Uyeda, brothers of the Respondent's owner. Their ballots were challenged by the Union, first, on the ground that they were supervisors, and later, because they were relatives of the Respondent- owner.2 After an investigation into the challenges, the Acting Regional Director found that the two brothers enjoyed a special status with their Employer and shared a community of interest with the Employer rather than with the rank-and-file work force as a whole, and were therefore not eligible to vote in the election. Accordingly, he sustained the challenges to their ballots and, having determined that a majority of the valid ballots had been cast for the Union, certified the Union as the exclusive bargaining representative. The Respondent thereupon commenced bargaining collectively with the Union, but ceased bargaining upon notice that on February 6, 1964, Yoshio Uyeda had brought an action in the United States district court to cancel the Union's certification, to count his ballot and redetermine the election results on that basis.3 On March 3, 1964, the Union filed the unfair labor practice charges herein. Following a hearing on April 13, 1964, in the unfair labor practice proceeding, the Trial Examiner issued his Decision finding that the Union's certification was invalid, that Respondent did not violate Section 8(a)(5) and (1) by refusing to bargain with the Union, and recommending dismissal of the complaint. The Trial Examiner expressed the opinion that a consent-election agreement is a substitute for an otherwise mandatory representation hearing, and that such agreement is therefore controlling upon the Regional Director and limits his power by permitting no deviation from the stipulated unit. The Trial Examiner found that inasmuch as the stipulated unit description in the consent-election agreement included "all production and "family relationship" with the Employer, and directed the Acting Regional Director to set aside the certification and open and count the ballot cast by Yoshio Uyeda On appeal by the Acting Regional Director, the Sixth Circuit Court of Appeals reversed the judgment of the District Court and directed dismissal of the complaint on the ground that the District Court lacked jurisdiction over the matter (Uyeda v Brooks, 365 F 2d 326 (C A 6)) Pursuant thereto, the Acting Regional Director, on October 31, 1966, issued an order reinstating the Certification of Representative of December 24,1963 We note that during the pendency of the appeal, the Board, by letter dated April 27, 1966, indicated to the court of appeals that it would, in the special circumstances of this case, permit intervention by Yoshio Uyeda in the unfair labor practice proceeding However, on April 28, counsel for Yoshio Uyeda declined to move for intervention herein 164 NLRB No. 84 UDACO MFG. CO. 701 maintenance employees," and since the two brothers were concededly employees within the meaning of the Act, the Acting Regional Director lacked the power to vary the terms of the agreement by excluding the brothers, notwithstanding that such determination was in the form of a ruling on challenged ballots which would otherwise have been within the Acting Regional Director's power under the consent agreement. Accordingly, the Trial Examiner concluded that, since the Acting Regional Director lacked the power to make the determinations upon which the Union 's certification was based, the certification was invalid. We cannot agree with the Trial Examiner that with regard to elections by consent agreement, the Act and the Board Rules and Regulations limit the power of the Board to make a final determination as to which employees shall be eligible to vote. In our view, Section 9(b) of the Act grants broad authority to the Board with respect to the determination of appropriate bargaining units, with certain specific limitations not here applicable.4 And Section 9(c)(4), which authorizes elections by consent agreement, cannot be construed as a limitation upon the Board's normal powers because it specifically provides that such elections be held "in conformity with regulations and rules of decision of the Board." Contrary to the Trial Examiner, we find that the unit stipulated by the parties herein did not preclude the Acting Regional Director from passing upon the eligibility of the two brothers to vote in the election. For, in our view, the Trial Examiner erroneously assumed that the stipulation undertook to define not only the composition of the unit, but also questions concerning eligibility. Therefore, the Trial Examiner reasoned that, the parties having stipulated to the eligibility of production and maintenance employees, and it being conceded that Yoshio and Toshio Uyeda were production employees, the only question left for the Acting Regional Director's determination was whether the brothers were employees. As the agreement of the parties merely defined the unit in general terms and specifically left questions of eligibility to the Acting Regional Director, we cannot agree that the Acting Regional Director was foreclosed from determining eligibility.5 The fact that the consent agreement provides, "[T]he eligible voters shall be those employees included in the unit described below," cannot be taken as evidence of a limitation on the Regional Director's power. As pointed out above, the stipulated unit was only stipulated in general terms. The parties did not specifically identify by name those employees whom they considered eligible to vote in the election. Indeed, the Board has indicated in a number of decisions a process whereby the parties can agree upon and resolve in advance questions of eligibility.6 However, even then, the Act imposes upon the Board the duty to exercise its discretion in such a way as to investigate and determine the voting eligibility of employees whom the parties have agreed to exclude.7 Nor can we agree with the Trial Examiner that the Board's decision in Adam D. Goettl, d/b/a International Metal Products Company,8 established the principle that unless assent has been given by the parties in a consent-election agreement, the possible exclusion from the appropriate bargaining unit of an employer's relatives , other than children and spouses , raises questions to be decided not by an administrative investigation but only after a representation hearing. We find nothing in the International Metal case that would foreclose a Regional Director in a consent-election agreement from deciding such issue upon the basis of an administrative investigation . As noted above, Section 9(c)(4) permits the waiving of hearings by stipulation for the purpose of consent elections, and by entering into the consent agreement, the parties agreed that the question of "whether a hearing shall be held ... shall be determined by the Regional Director, whose decision shall be final and binding."9 In these circumstances we cannot say that the Acting Director's failure to hold the hearing was an abuse of discretion , especially since the Respondent has conceded the validity of the Acting Director's findings of fact. In view of the foregoing, we find and conclude that the Acting Regional Director had the power under the consent-election agreement to pass upon the eligibility of Toshio and Yoshio Uyeda. Under consent-election agreements , it is clear that the Regional Director's determinations are final and binding. The Board's policy is not to undertake to review the merits of any such determination unless it is claimed that there has been fraud, misconduct, or such gross mistakes as imply bad faith on the part of the Regional Director, so as to conclude that his rulings were arbitrary or capricious.10 This has been the Board's policy even in situations where, had the Board originally considered the facts, it might have 4 Boyd S Leedom v William Kyne, 358 U S 184 5 See Volney Felt Mills, Inc, 101 NLRB 1516, 1535, fn 11, Hood Corporation, d/b/a Cesco, 147 NLRB 273, 274, enfd 346 F 2d 1020 (C A 9), David Dankner d/b/a Dankner Motor Sales, 107 NLRB 1277,1292 ' Norris-ThermadorCorporation, 119 NLRB 1301 ' Shoreline Enterprises of America, Inc v N L R B , 262 F 2d 933 (C A 5) 107 NLRB 65 "The Trial Examiner's emphasis of lack of notice to the Respondent of the grounds on which the brothers' ballots were challenged as a basis for rejecting the Acting Director's determination is not supported in Board decisions It is well established that the Regional Director in his investigation is not restricted to matters raised by the parties, and that information uncovered during the course of his investigation maybe used as a basis for his determination See Joe Gold & Newell Smith d/bla City Tire Company, 117 NLRB 753, 755 "Sumner Sand & Gravel Company, 128 NLRB 1368, 1371, enfd 293 F 2d 754 (C A 9) 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached a different result . On the evidence before us, we cannot conclude that the Acting Regional Director's determinations were arbitrary or capricious. On the basis of his investigation, the Acting Director found that the brothers enjoy a special status and share a community of interest with the Employer rather than with the rank-and-file work force as a whole. The Acting Director predicated his determination upon his findings, which were not seriously challenged, that the brothers received a "flat salary basis of compensation, which remains constant notwithstand- ing the number of hours worked, the close family affinity, including, until recently, collective living arrangements, and the extensive paid leave of absence granted one of the challenges." His determination is in full conformity with Board policy and precedent," and furnishes no basis for setting it aside. Accordingly, we conclude that the Union's certification in Case 7-RC-5980 is valid. Accordingly, the Respondent having on February 17, 1964, declined the certified Union's request to bargain in the certified unit, we find that on that date and at all times thereafter the Respondent has refused to bargain collectively with the Union as the exclusive representative of his employees in an appropriate unit, in violation of Section 8(a)(5) of the Act, and has thereby interfered with, restrained, and coerced his employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) thereof. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent occurring in connection with his operations have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we shall order him to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act, and at all times material herein has been the exclusive bargaining representative of Respondent's employees in the appropriate unit. 3. All production and maintenance employees of the Udaco Manufacturing Company located at 8850 Mark Twain, Detroit, Michigan, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing, upon request, to bargain with the Union as the exclusive representative of Respondent's employees in the appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mitchiyoshi Uyeda, d/b/a Udaco Manufacturing Company, Detroit, Michigan, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the following appropriate bargaining unit: All production and maintenance employees of Udaco Manufacturing Company located at 8850 Mark Twain, Detroit, Michigan, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, described in paragraph 1(a), above, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at his facilities in Detroit, Michigan, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by the Respondent, shall be posted by the " Cherrtn Bros Co , 147 NLRB 527, enfd 349 F 2d 1001 United States Court of Appeals, there shall be substituted for the (C A 6), Hood Corporation, supra words "a Decision and Order" the words "a Decree of the United 12 In the event that this Order is enforced by a decree of a States Court of Appeals Enforcing an Order " UDACO MFG. CO. Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to his 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 for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, I hereby notify my employees that: I WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of my employees in the appropriate unit described below: All production and maintenance employees at my plant at 8850 Mark Twain, Detroit, Michigan, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. I WILL NOT in any like or related manner interfere with, restrain, and coerce my employees in the exercise of the rights guaranteed them by Section 7 of the Act. MITCHIYOSHI UYEDA D/B/A UDACO MANUFACTURING COMPANY (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 726-3200, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE Proceedings Before Hearing WILLIAM F. SCHARNIKOW, Trial Examiner: The 703 complaint in the present case was issued by the General Counsel and served on the Respondent on March 5, 1964, upon the basis of charges filed by the Union and served on the Respondent on March 3, 1964. The complaint alleges that, on and since February 17, 1964, the Respondent has committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq., hereinafter referred to as the Act), by refusing to bargain with the Union which had previously been certified by the Board's Acting Regional Director as the majority, and therefore the exclusive bargaining representative of an appropriate unit of the Respondent's employees, pursuant to an agreement for consent election and an election conducted by the Acting Regional Director in an earlier representation proceeding under Section 9(c) of the Act (Case 7-RC-5980). According to the complaint, the stipulated appropriate unit in which the Acting Regional Director had certified the Union to be exclusive bargaining representative consisted of: All production and maintenance employees of Respondent employed at his Detroit plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. On March 11, 1964, counsel for the Respondent filed with the Acting Regional Director and served on the Union, a motion to stay the proceedings under the complaint pending disposition of a civil action (No. 24935) brought on February 6, 1964, in the United States District Court for the Eastern District of Michigan, Southern Division, by Yoshio Uyeda (later identified in the proceedings before me as one of two brothers whom the Respondent employed) against the Acting Regional Director, the Respondent, and the Union, "for the purpose of challenging" the validity of the Acting Regional Director's certification of the Union as bargaining agent for the Respondent's employees. On March 12, 1964, the Acting Regional Director issued an order denying the Respondent's motion for such a stay of the present proceedings. On March 13, 1964, the Respondent filed his answer to the complaint, denying his commission of "any unfair labor practice as alleged in the complaint." As "affirmative defenses," the Respondent's answer in substance also (1) referred to the pending action in the United States district court as a direct attack upon the Union's certification by the Acting Regional Director, upon the grounds that the Acting Regional Director "exceeded his jurisdiction" and had "denied equal protection of the laws" to the plaintiff in the district court action by his refusal "to count said plaintiff's ballot in the representation election"; (2) asserted that the Union had challenged what turned out to be the critical ballots of both Yoshio Uyeda and Toshio Uyeda (another brother also employed by Respondent) because they were allegedly supervisors and not in the bargaining unit, but that the Acting Regional Director "in his report on challenged ballots, [had] expressly refrained from making a determination" of this question; (3) further asserted that "the Acting Regional Director's Report on Challenged Ballots and Certification" in the representation case was "ambiguous" with respect to the scope of the appropriate unit; and (4) contended that, under these circumstances and because "the district court action may dispose of the entire matter," the Respondent "ought not be required to 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain [with the Union] until the issues raised by said [district court] action are decided." On March 27, 1964, the General Counsel filed and served on the Respondent a "Motion for Judgment on the Pleadings." In substance the General Counsel contended that the pleadings presented no triable issue and, without the necessity for any hearing, required a finding and conclusions by a Trial Examiner in accordance with the allegations of the complaint, that the Respondent on and since February 17, 1964, had committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. According to the General Counsel's argument in his motion, in view of Section 102.20 of the Board Rules and Regulations, Series 8, as amended, the factual allegations of the complaint must be deemed to be admitted, since the Respondent's answer has denied merely his commission of any unfair labor practice as alleged in the complaint and thus has "failed to make a specific denial of any of the [ essential] factual allegations in the complaint," i.e., that on and since about February 17, 1964, the Respondent has refused to bargain with the Union although the Acting Regional Director, under a consent-election agreement, had previously conducted a representation election among the Respondent's employees and, in accordance with their majority designation, had on December 24, 1963, certified the Union as exclusive bargaining representative of the employees in the stipulated appropriate unit. In addition, the General Counsel argued in his motion that the Respondent's "affirmative defenses ... are legally insufficient" and thus, in effect moved to strike them. In support of this branch of his motion, the General Counsel (a) referred to the Respondent's admitted refusal to bargain with the Union upon receiving process in the United States District Court action; (b) asserted that "the pendency of said civil action by a brother of the Respondent, who was found not to be in the bargaining unit, collaterally attacking the certification of the Union as the collective-bargaining representative of Respondent's employees cannot postpone Respondent's duty to bargain with the Union. Eastern Greyhound Lines, 143 NLRB 658"; and finally (c) defended the validity and clarity of the determinations made by the Acting Regional Director in his report on challenged ballots and certification in the representation case, not only on the ground that the agreement for consent election forecloses the Respondent's present "attack on the Acting Regional Director's final determinations" under that agreement, but also upon the General Counsel's following explanation and justification of the Acting Regional Director's action: ... [The Acting Regional Director's Report on Challenged Ballots and Certification of Representa- tives] clearly shows that out of the seven persons employed by Respondent, two persons-Toshio Uyeda and Yoshio Uyeda-cast challenged ballots and were found for the reasons set forth therein not to be in the bargaining unit and therefore ineligible to vote in the election. Under such circumstances, the Acting Regional Director was not obligated to engage in a futile act and to decide the supervisory status of Toshio and Yoshio Uyeda [which the Union had made the basis for its challenge of their ballots], since resolution of their supervisory status was not necessary for resolution of the issues of unit placement and their eligibility to vote. The Acting Regional Director ruled, in essence, that Toshio Uyeda and Yoshio Uyeda, by reason of such factors as their close family relationship, basis of compensation, and extensive paid leave of absence, enjoy a special status and share a community of interest with Respondent rather than with the rank-and-file employees and, therefore, are not included in the bargaining unit. The Acting Regional Director thereby fully disposed of the question of their unit placement and eligibility and was not obligated to consider an additional ground in his determination .... On March 30, 1964, the Chief Trial Examiner designated me to act as Trial Examiner in this case and to perform all the duties and exercise all the powers granted to Trial Examiners under the Board Rules and Regulations. On April 6, 1964, having considered the substance of the pleadings and motions already summarized, I issued and caused to be served on the General Counsel, the Respondent, and the Union the following telegraphic notice: QUESTIONS ARE RAISED BY THE GENERAL COUNSEL'S MOTION FOR JUDGMENT ON THE PLEADINGS WHICH CAN BEST BE CONSIDERED BY THE TRIAL EXAMINER ON ORAL ARGUMENT BY COUNSEL. HEARING THEREOF, AS WELL AS THE TRIAL OF ANY ISSUES WHICH MAY THEN APPEAR TO BE NECESSARY, WILL BE HELD BY THE TRIAL EXAMINER AT 10:00 A.M. APRIL 13,1964, IN ROOM 555, BOOK BUILDING, 1249 WASHINGTON BOULEVARD, DETROIT, MICHIGAN, THE TIME AND PLACE NOW SCHEDULED FOR THE HEARING IN THIS CASE. The Hearing At the hearing on April 13, counsel for the Respondent renewed his motion for a stay of proceedings and I denied it.' The General Counsel then pressed his motion for a judgment on the pleadings. In the course of the oral argument of this motion, the General Counsel and counsel for the Respondent2 expressed their agreement upon certain elements of the representation case and as to some, if not all, of the other material facts in the present unfair labor practice case. As a result, I received in evidence from the General Counsel the following documents, which counsel for the Respondent admitted were authentic and which the General Counsel produced as the complete material record in the representation case (Case 7-RC-5980): the Union's representation petition filed on October 11, 1963, a consent-election agreement executed by the parties and approved by the Acting Regional Director on November 1, 1963, and the Acting Regional Director's report on challenged ballots and certification issued on December 24,1963. I Counsel informed me that although argument had been presented in the district court action on plaintiff's motion for a restraining order and on a cross-motion of the Board's Acting Regional Director for a dismissal of the district court action, the court had then reached no decision in these matters nor had it issued any order which would be inconsistent with my continuation of the present unfair labor practice proceedings The district court, however, later issued its memorandum opinion as I note in the text at the end of this "Statement of the Case " ' Although counsel for the Union was present in the hearing room, he filed no appearance UDACO MFG. CO. 705 The following summary of the recitations, findings, and conclusions presented by the Acting Regional Director in his report and certification of December 24, 1963, provides for the most part the necessary basis for understanding and evaluating the opposing positions developed by the General Counsel and counsel for the Respondent concerning the validity and effectiveness of the Union's certification: (1) Of approximately seven persons eligible to vote in the representation election conducted under the direction and supervision of the Acting Regional Director on November 14, 1963, three cast votes for, and two against, representation by the Union, and the ballots of the remaining two (Toshio and Yoshio Uyeda) were challenged by the Union. (2) The Union originally challenged the ballots of these two men on the ground that they were supervisors but then, "[s]ubsequent to the date of the election . . . notified the Region that it now takes the position that its challenges are meritorious not only on the ground that the challenged individuals are supervisors but also because they are relatives of the Employer." (3) An investigation was thereupon conducted under the direction and supervision of the Acting Regional Director and, "all parties were afforded a full opportunity to present witnesses as well as any other evidence pertinent to the challenges." (4) In substance, the Acting Regional Director's investigation revealed, and he found, that Toshio and Yoshio Uyeda were brothers of the Respondent and had been employed by the Respondent since 1946 at what is currently a weekly salary of $125, although all other employees have been hourly rated at a maximum of $2.10; that no records of the hours worked by Toshio and Yoshio Uyeda are kept, "although their average workweek is purported to be approximately 65 hours per week"; that, until August 1, 1963, all three brothers, including the Respondent, had lived in the upstairs portion of a dwelling, the lower floor of which was occupied by their parents; and that, although Toshio Uyeda took care of their ill father and did not work from May 23 to November 14, 1963, he continued to receive his regular weekly salary. (5) In view of his foregoing findings with respect to the relationship between the brothers, the Acting Regional Director found it "unnecessary to pass on the merits of the claim that Toshio and Yoshio Uyeda are supervisors within the meaning of the Act" and, instead, sustained the Union's challenges to their ballots, for the following reasons: In view of the flat salary basis of compensation, which remains constant notwithstanding the number of hours worked, the close family affinity, including, until recently, collective living arrangements, and the extensive paid leave of absence granted one of the challengees, the undersigned finds that the two challengees enjoy a special status with the Employer herein and that they share a community of interest with the Employer rather than with the rank-and-file work force as a whole. Accordingly, the undersigned finds that Toshio Uyeda and Yoshio Uyeda were not eligible to vote in the election and the challenges to their ballots are sustained. (6) The Acting Regional Director thereupon certified the Union as the majority, and therefore the exclusive, bargaining representative of the Respondent's employees in the following described appropriate unit , exactly as it had been described by the parties with the approval of the Acting Regional Director in their original agreement for consent election: All production and maintenance employees of the Udaco Manufacturing Company located at 8850 Mark Twain, Detroit, Michigan, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. Supplementing the foregoing information, the General Counsel advised me during his argument at the hearing that, (a) although filed in writing and furnishing the sole grounds relied on by the Acting Regional Director in sustaining the challenges, the Union's postelection amplification of its grounds for the challenges was not served on the Respondent; and (b) relying upon "the sole discretion" entrusted to him by the consent-election agreement as to his "method of investigating challenges," the Acting Regional Director has submitted in the present unfair labor practice case only the representation petition, the consent-election agreement, and the report and certification from the representation case, without also presenting "the affidavits on which his findings [were] based." In her oral argument at the hearing, counsel for the Respondent admitted that the Respondent has refused to bargain with the Union since service of process upon him in the district court action. She also admitted the accuracy of the tally of ballots as it is summarized in the Acting Regional Director's report. Furthermore, she admitted the truth of the findings made by the Acting Regional Director in his report and certification concerning the relationship between Toshio and Yoshio Uyeda and the Respondent and their compensation as salaried employees in contrast with the hourly rates paid other employees. She denied, however, that (as the Acting Regional Director had also found) the two other brothers had ever lived on the same story or in the same flat with the Respondent, asserting instead that the two other brothers had lived with their parents in the flat on the lower story. When it appeared during the course of counsel's arguments at the hearing that the Respondent had not been served with the Union's postelection challenge based on the two brothers' relationship with the Respondent and that the Respondent was therefore in fact not afforded an opportunity to present evidence or argument on this matter which the Acting Regional Director investigated and eventually relied upon as the sole basis for sustaining the Union's challenges, I at first suggested to the General Counsel, and then directed, that he certify to the Board at Washington, the complete record of the representation case (including specifically the Union's postelection amplification of the basis of its challenge and the affidavits or other evidence compiled by the Acting Regional Director in his investigation as the basis of his findings in his report on challenges of December 24, 1963) which, in my opinion at the time, Section 9(d) of the Act would require be certified to the court reviewing any bargaining order which might be issued in the present complaint proceeding. In addition, I directed the General Counsel to permit counsel for the Respondent to inspect, and copy, such record for her information before forwarding it to the Board, so that she might, even after the close of the hearing, make any argument or application to take evidence which should then seem proper in the Respondent's defense. Upon this state of the record, the General Counsel rested his case on the three exhibits produced by him from 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the representation case and the factual admissions made by the Respondent's counsel. He thereupon moved for judgment thereon, as well as upon the pleadings. Counsel for the Respondent offered no evidence during the hearing but, relying upon the facts otherwise shown, attacked the validity of the Acting Regional Director's certification of the Union and contended that, the certification being invalid, the complaint must be dismissed for lack of proof that, at the time the Respondent admittedly refused to bargain with the Union, the Union was the majority, and therefore the exclusive, bargaining representative of any appropriate bargaining unit of the Respondent's employees. The attack made upon the certification by the Respondent both at the hearing in the present case and in his brief, is based on contentions that the Acting Regional Director, in issuing his certification of the Union, made basic related determinations on matters beyond the legitimate powers possessed by him in the representation case; i.e., (1) by sustaining the Union's challenges to the ballots of the Respondent's brothers because of their family relationships and thus not on the ground originally given by the Union, which the Respondent had been given notice was to be the subject of the Acting Regional Director's investigation, but upon an entirely different ground of which the Respondent was given no notice, so that, as a result, the Respondent was deprived of any opportunity to present any material counterargument or evidence in the Acting Regional Director's investigation; and (2) by then certifying the Union as having been selected as the exclusive bargaining representative of an appropriate unit different from that which the parties, with the Acting Regional Director's approval, had agreed in their agreement for consent election, was the appropriate unit. On the other hand, the General Counsel, both in his brief and in his argument at the hearing, defends the Acting Regional Director's sustaining the Union's challenges on a ground of which the Respondent had not been given notice, asserting that the Acting Regional Director's "investigation and decision in this respect are in nowise channeled or limited by the parties' positions as to the reasons for any challenges." Joe Gold, d/bla City Tire Co., 117 NLRB 753, 754, 755. Moreover, in general defense of the Acting Regional Director's certification of the Union, particularly under the provisions of the agreement for consent election granting the Acting Regional Director power to make "final and binding" determinations "upon any question, including questions as to the eligibility of voters," the General Counsel contends that the questions which the Respondent now attempts to raise in the present complaint case, were finally disposed of in the representation case and the Acting Regional Director's actions and his ultimate conclusions in that case may not now be reviewed. Before the close of the hearing on April 13, 1964, I denied the General Counsel's motion for a judgment on the pleadings, and granted the parties 20 days for the filing of briefs and proposed findings of fact and conclusions of law. Proceedings since the hearing On April 22, 1964, the General Counsel filed with the ' The findings and conclusions made in this section and in section II are based upon uncontradicted allegations of the complaint Board and served upon the Respondent a "Request to Board for Special Permission to Appeal Trial Examiner's Ruling," referring thereby to my directions to the General Counsel during the hearing that the General Counsel (a) certify to the Board the complete record in the representation case, and (b) permit counsel for the Respondent to inspect and copy such record so that she might make any argument or application to take evidence which should then seem proper in the Respondent's defense. By telegraphic order issued and served on the parties on May 11, 1964 (a copy thereof being also forwarded to me as the Trial Examiner), the Board granted the General Counsel's request and his appeal, specifically stating that "The Trial Examiner is hereby reversed on the ground that the evidence directed to be produced is not a proper part of the record to be considered in this proceeding." In the meantime, on May 1, 1964, counsel for the Respondent had filed and served on the General Counsel a motion for a dismissal of the complaint based upon the General Counsel's failure to comply with my direction that he permit her to examine the record in the representation case. In view of the Board's reversal of my direction, I now deny this motion filed on May 1, 1964, by the Respondent for a dismissal of the complaint. On September 30,1964, the United States District Court for the Eastern District of Michigan issued a memorandum opinion in the civil action against the Acting Regional Director, the Respondent, and the Union, to which reference has already been made, holding that the Acting Regional Director had no power to make his determination for the reasons set forth by him, that Yoshio Uyeda, the plaintiff, was not eligible to vote in the representation election. (Uyeda v. Brooks, 57 LRRM 2275.) The parties did not notify me of the court's opinion and have made no motion or request based upon it. By the time I learned of the opinion on October 16, 1964, through a general distribution of judicial decisions of interest to the Board's Trial Examiners, I had, upon my independent consideration of the record and the briefs in the present case before me, reached the same conclusion as the court concerning the Acting Regional Director's lack of power, although on somewhat different grounds which appear in the present complaint case record, and with somewhat broader, though consistent, results affecting the issues in the present complaint case. Moreover, I had drafted a substantial portion of the present Decision, which in its final form now presents these conclusions and their bases in my record. Under the circumstances, I am issuing my present Decision and Recommended Order in the belief that they do not interfere with the jurisdiction asserted by the court nor with the possible terms of its order, which so far as I know have not been settled. Upon consideration of briefs filed by the General Counsel and counsel for the Respondent, and upon the record in this case as a whole, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS The Respondent, Mitchiyoshi Uyeda, an individual doing business as Udaco Manufacturing Company, is engaged at an office, plant, and place of business in Detroit, Michigan, in the manufacture, sale, and distribution of specialized screw machine products, hydraulic air products, and related products. In the course UDACO MFG. CO. and conduct of his business in Detroit during 1963, a representative year, he manufactured, sold, and delivered products of a value of more than $50,000 to Detroit and Dearborn, Michigan, business enterprises, each of which annually shipped products of a value of more than $50,000 from their respective Michigan places of business to points outside the State of Michigan and also received products of a value of more than $50,000 at their respective Michigan places of business directly from points outside the State of Michigan. During the same year, the Respondent also purchased steel and other goods and materials of a value of more than $15,000 which were transported and delivered to his Detroit plant directly from points outside the State of Michigan. I find that the Respondent is engaged, and has at all material times been engaged, in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO (herein called the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES4 A. The Facts Following a petition for certification filed under Section 9(c) of the Act by the Union in Case 7-RC-5980 on October 11, 1963, the Union and the Respondent entered into an agreement for consent election which was approved by the Board's Acting Regional Director on November 1, 1963. Under the agreement, which was entered into under Section 102.62(a) of the Board Rules and Regulations, Series 8, as amended, the parties waived a representation hearing (which would otherwise have been required under the Act and the Board Rules and Regulations as the necessary basis for determining the appropriate bargaining units) and agreed that the Acting Regional Director should conduct an election by secret ballot to determine whether the employees of the Respondent in the following "appropriate collective bargaining unit" desired to be represented by the Union and, upon the basis of the election, should issue either "a certification of representatives or of results of election, as may be indicated": All production and maintenance employees of the Udaco Manufacturing Company located at 8850 Mark Twain, Detroit, Michigan, but excluding all clerical employees, professional employees, guards and supervisors as defined in the Act. The only other provisions of the agreement having any bearing upon the nature and extent of the Acting Regional ' The findings and conclusions reached in his section are, in each instance, based upon either uncontradicted allegations in the pleadings, the contents of the various documents introduced in evidence by the General Counsel as the material record from Case 7-RC-5980, and admissions made by counsel orally at the hearing or in the papers submitted by them in connection with the motions made before and during the hearing Most of this has already been set forth above, in the section entitled "Statement of the Case " ' Under the provisions of the Act and the Board Rules and Regulations, in the absence of an agreement for consent election between the parties approved by the Regional Director, if the Regional Director upon investigating the representation petition 707 Director' s powers so far as his conduct has put them in issue in the present case, were the following: 1. SECRET BALLOT.-An election by secret ballot shall be held ... among the employees of the undersigned Employer in the unit defined below Said election shall be held in accordance with the National Labor Relations Act, the Board Rules and Regulations . and the applicable procedures and policies of the Board , provided that the determination of the Regional Director shall be final and binding upon any question , including questions as to the eligibility of voters , raised by any party hereto relating in any manner to the election , and provided further that rulings or determinations by the Regional Director in respect of any amendment of any certification resulting therefrom shall also be final. 2. ELIGIBLE VOTERS.-The eligible voters shall be those employees included within the Unit described below .... * 5 TALLY OF BALLOTS .- . Upon the conclusion of the counting [of ballots] . the Regional Director shall furnish a Tally of Ballots to each of the parties. When appropriate , the Regional Director shall issue to the parties a certification of representatives or of results of election , as may be indicated. * * * * * 6. OBJECTIONS , CHALLENGES, REPORTS THEREON.-. . . If the challenges are determinative of the results of the election , the Regional Director shall investigate the challenges and issue a report thereon. The method of investigation of ... challenges , including the question whether a hearing should be held in connection therewith , shall be determined by the Regional Director , whose decision shall be final and binding. At the election held on November 14. 1963, ballots were cast by all seven employees of the Respondent . Included, were Toshio and Yoshio Uyeda , who were brothers of the Respondent, who had lived with the Respondent until August 1, 1963 , in the same building. and who were paid weekly salaries by the Respondent without record kept of the hours they worked in contrast with the hourly rates paid to other employees for actual time worked . Of the five ballots of the other employees , three were cast for, and two were cast against, representation of the Union. At the time of the election the Union challenged the ballots of Toshio and Yoshio Uyeda solely on the ground that they were supervisors. Following the election , the Union notified the Acting Regional Director in writing that its challenges of the brothers ' ballots were based "not only on the ground that the challenged individuals are supervisors but also has reasonable cause to believe that a question of representation affecting commerce exists, he is required to conduct an initial "appropriate hearing upon due notice", to afford the parties the right to appear, to introduce evidence, and to submit oral and written arguments presenting their positions, and, "upon the record" of such hearing, "to determine the unit appropriate for the purpose of collective bargaining, to determine whether a question of representation exists, and to direct an election, dismiss the petition, or make their disposition of the matter" (Section 9(c)(1) and (4) of the Act, Sections 102 63, 102 64, 102.66, and 102 67 of the Board Rules and Regulations, Series 8, as amended) 298-668 0-69-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they are relatives of the Employer." However, no notice of this amplification of the basis of the Union's challenges was given to the Respondent. Accordingly, contrary to the Acting Regional Director's statement in his report on challenges- that his investigation of the challenges "afforded Call parties] a full opportunity to present witnesses as well as any other evidence pertinent to the challenges," it appears, and I find, that the Respondent was not informed of the necessity, nor afforded the opportunity, of presenting evidence upon, or argument with respect to, the materiality of, the relationship of the challenged voters to the Respondent. On December 24, 1963, the Acting Regional Director issued his report on challenged ballots and certification of representatives. As I have noted in detail in my Statement of the Case, the Acting Regional Director found it unnecessary to determine whether Toshio and Yoshio Uyeda were supervisors, and sustained the Union's challenges to their ballots solely upon his findings of their relationship to, and the distinctive terms of their employment by, the Respondent. He held merely that these factors showed such "a special status" and "a community of interest with the Employer rather than with the rank-and-file work force as a whole" as to render them ineligible to vote in the election. Having thus sustained the two challenges, the Acting Regional Director certified the Union as the exclusive bargaining representative of an appropriate unit of the Respondent's employees, describing the unit in the identical language used by the parties in the agreement for consent election which the Acting Regional Director had himself approved on November 1, 1963. Having been served with process in the district court action which was begun on February 6, 1964, and is referred to my Statement of the Case, the Respondent has refused, on and since about February 17, 1964, to meet and bargain with the Union as the bargaining representative of any of his employees. B. Conclusions To show that the Respondent, by his admitted refusal to bargain with the Union, has committed an unfair labor practice within the meaning of Section 8(a)(5) of the Act, the General Counsel relies upon the Acting Regional Director's certification in the representation case that the Union was selected as bargaining representative by a majority of the Respondent's employees in an appropriate unit for purposes of collective bargaining and therefore has been, and is, the exclusive bargaining representative of all the employees in that unit within the meaning of Section 9(a) of the Act. Upon the validity of the certification of these essential facts and conclusions, depends any finding of unfair labor practice in the present case. As already indicated in my Statement of the Case, the Respondent attacks the validity of the certification on the ground that, by sustaining the Union's challenge to the Respondent's brothers' ballots solely because of their family relationship and the distinctive terms of their employment and then certifying the Union as the exclusive bargaining representative of a unit excluding the brothers, the Acting Regional Director, without giving notice to and affording the Respondent an opportunity to object, departed from, and changed, the broad all-employee unit ' See in 5, above. which the parties with the Acting Regional Director's approval had stipulated was appropriate in their consent- election agreement. According to the Respondent, the Acting Regional Director thereby exceeded his power under the consent-election agreement. The Respondent's basic proposition that a consent- election agreement limits the Regional Director to the unit stipulated, is sound. Under the Act and the Board Rules and Regulations, such an agreement provides a substitute for an otherwise mandatory representation hearing, followed by consideration of the parties' evidence, statements of positions, and arguments, and an ultimate decision upon the record concerning certain matters, the most important of which is the scope of the appropriate bargaining unit.6 The agreement of the parties as to the unit approved by the Regional Director, is therefore controlling and immutable throughout the representation proceeding up to and including certification, and limits the power of the Regional Director by permitting him no deviation from the stipulated unit, although in other respects, such as rulings on objections to the conduct of elections and challenges of ballots, and his method of investigating and deciding these questions even without hearing, his power is broad and his "determinations" are "final and binding." This appears not only from the provisions of the Act and the Board Rules and Regulations, but is unmistakably pointed up by the provisions of the usual form of consent-election agreement approved by the Acting Regional Director in the present case, which require him to conduct the election in the case "among the employees of the undersigned Employer in the unit defined below," and place emphasis upon the fact that "The eligible voters shall be those employees included in the Unit described below." Certainly, under the consent-election agreement approved by him, the Acting Regional Director did not possess the power, expressly or by the effect of any action on his part, to alter or change the unit stipulated to be appropriate in the agreement, especially if he effected such a change (as the Respondent contends he did) without giving prior notice to the Respondent and affording him a hearing and the consideration of his possible objections. The General Counsel agreed in his oral argument at the hearing (as would in any event appear clear) that the "effect" of the Acting Regional Director's report on challenged ballots was a determination that the Respondent's two brothers were "not within the unit." Obviously, this determination was the necessary basis for the Acting Regional Director's certification of the Union whose majority, as the record then stood, would appear only in a unit excluding the brothers. Accordingly, I further find that the certification issued by the Acting Regional Director was intended by him to be, and was, a certification of the Union as exclusive bargaining agent for an "appropriate" unit which excluded the brothers. But the brothers, despite their relationship to the Respondent and their distinctive terms of employment, were undoubtedly "employees" within the meaning of the Act, and the stipulated description of the unit embraced "all production and maintenance employees" with no express exception to indicate or justify the exclusion of the brothers. Even so, the General Counsel in effect denies that the Acting Regional Director's rulings excluding the brothers from the unit constituted a change or modification of the stipulated appropriate unit, or that in this or any other respect the Acting Regional Director's acts exceeded his UDACO MFG. CO. 709 powers under the consent-election agreement. Thus, in addition to protesting generally against any present review of the Acting Regional Director's acts in the representation case, the General Counsel argues in substance? (1) that the Acting Regional Director did not change the stipulated unit, but merely ruled upon the Union's challenges of the ballots cast by the Respondent's two brothers in the election and thereby exercised his power under the consent-election agreement to rule upon the "eligibility of voters," a matter with respect to which the agreement provided that the Acting Regional Director's "determinations," including "whether a hearing should be held," were to be "final and binding"; (2) that the Acting Regional Director in determining the Respondent's two brothers were not in the appropriate unit , merely construed and then applied the language used to describe the appropriate unit in the consent-election agreement, in accordance with the decisions and policies of the Board excluding close relatives of employers from appropriate bargaining units under certain circumstances; and (3) that, in making these determinations, the Acting Regional Director was not limited to reliance upon contentions made by either of the parties on notice to the other. The argument thus advanced by the General Counsel is based upon, and must be considered in the light of, the findings and conclusions made by the Acting Regional Director in his report on challenged ballots and certification of representative. There, the Acting Regional Director, making no finding that the brothers were not "employees" or that they fell within any of the specific exclusions from the appropriate unit agreed upon, merely concluded, on the basis of their relationship to the Respondent and their distinctive terms of employment, that the brothers "enjoy a special status ... and ... share a community of interest with the Employer rather than with the rank-and-file work force as a whole," and that they were therefore "not eligible to vote in the election and the challenges to their ballots [were] sustained." The only further clue to the justification the Acting Regional Director believed he had for his action was his citation of Adam D. Goettl, d/b/a International Metal Products Company, 107 NLRB 65, and National Broadcasting Company, Inc., 104 NLRB 587, 594, two cases in each of which the Board, after holding a representation hearing, considered the question of whether a brother of the employer should be included in the appropriate bargaining unit found by it. To these two cases should be added City Tire Co., 117 NLRB 753, 754-755, upon which the General Counsel also relies, which he has cited in his brief to me, and in which a union's challenge of a ballot as that of a supervisor was sustained by the Board on the ground that the man, although not shown to be a supervisor, was the son of the employer and was thus specifically excluded from the term "employee" by definition in Section 2(3) of the Act. But, instead of supporting the General Counsel's argument, the Board's decisions in these three cases actually indicate the soundness of the Respondent's position that the Acting Regional Director's determination excluding the employer's brothers in the present case constituted, not a necessary and proper construction of the language used by the parties in stipulating the appropriate unit , which the Acting Regional Director might be permitted to make in the course of ruling on challenges and the eligibility of voters under the consent-election agreement, but such a substantial change in the agreed unit as was clearly beyond the Acting Regional Director's powers under the agreement, especially without giving notice to the Respondent and affording him an opportunity to present evidence and the grounds or reasons for any objections he might have. Thus, of the three cases cited by the General Counsel and the Acting Regional Director, City Tire is the only one which dealt with a consent- election situation, and there the Board affirmed the Regional Director's exclusion of a son of the employer from the stipulated, generally worded "employee," unit solely on the ground that he was not an "employee" within the meaning of either the Act or the unit stipulation, because of the express exclusion of children and spouses of employers from the term by the definition thereof contained in Section 2(3) of the Act. As to National Broadcasting Company and International Metal, the other two cases cited, they were both cases in which the Board determined the appropriate unit, and in the course of doing so considered whether brothers and other close relatives of the employers should be included or excluded, after holding representation hearings in conformity with Section 9(c) of the Act. Furthermore in National Broadcasting Company the parties expressly agreed to exclude the brother of the employer from the bargaining unit and the Board merely followed their agreement, while in International Metal, the Board actually included the employer's brother in the appropriate unit. Finally, in International Metal, by far the most important and significant of the three cases cited by the Acting Regional Director and the General Counsel, the Board noted and applied the mandatory, statutory exclusion of children and spouses from the term "employees" (as it has uniformly done in other cases including the later City Tire case)' but held that possible exclusion from any bargaining unit of other close relative of an employer, such as brothers, depended, in each case, upon "evidence that because of such relationship [the relative] enjoys a special status which allies his interests with those of management," and shows "a lack of interest in common with other employees in the unit." Thus, in International Metal, the Board expressly reversed an earlier line of its cases," in which it had virtually automatically excluded from bargaining units all close relatives of the employer, and held instead that the propriety of exclusion, except in the cases of children and spouses, required an "evaluation and weighing of interests ," and in each case, depended ultimately upon a consideration of whether the interests of the relatives were more closely identified and allied with management or with the other employees. This has been the rule which the ' The General Counsel's argument , here summarized so that it may be fully considered, appears in part in each of the following The General Counsel' s motion for judgment on the pleadings, his oral argument at the hearing , his brief following the hearing, and the statements and reasoning set forth in the Acting Regional Director's report and certification issued in the representation case on December 24, 1963 " See, e.g, The Colonial Craft, Inc., 118 NLRB 913, 914, Southern Press, 121 NLRB 1080, 1083, Bridgeton Transit, 123 NLRB 1196, 1197. 9 See, e.g, P A Mueller & Sons, Inc, 105 NLRB 552, 553, International Metal Products Company, 104 NLRB 1076 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board has followed in its decisions since International Metal.io By the effect of these decisions, including International Metal, the Board has recognized that, unless assent has been given by the parties in a consent-election agreement, the possible exclusion from the appropriate bargaining unit of an employer's relatives other than children and spouses, raises questions of such -a nature concerning the composition of the appropriate unit that, under the provisions of the Act and the Board Rules and Regulations," they may properly be decided, not by an administrative investigation by the Regional Director and certainly not without notice to one of the parties as was done in the present case, but only after a representation hearing on due notice to all the parties under Section 9(c) of the Act and upon consideration of the record thereof including any evidence or argument that the parties may wish to submit. In the present case, the ultimate issue is whether the Acting Regional Director had thepower,first, in the course of ruling upon the Union's challenges of the Respondent's two brothers, to make a determination that the brothers were not in the appropriate unit because of their relationship to the Respondent and the distinctive terms of their employment, grounds to which the Respondent had no opportunity to object since he was given no prior notice thereof; and then, on the basis of this determination, to certify the Union as the exclusive bargaining representative of an appropriate unit excluding the brothers. The General Counsel argues that the Acting Regional Director did have this power since all he did was to rule on challenged ballots and the eligibility of voters, matters concerning which the consent-election agreement expressly conferred upon him the right and power to make "final and binding" determinations without holding a hearing. The General Counsel also apparently relies upon the fact that the Acting Regional Director based his determination excluding the brothers from the unit upon their distinctive status and interests which appeared to ally them with management rather than the other employees and that he thus purported to be applying the principles and tests enunciated by the Board in the International Metal case. But, in making these arguments, the General Counsel ignores the question of whether the Acting Regional Director's determination excluding the brothers changed the appropriate unit stipulated by the parties in the consent-election agreement, the answer to which provides the real key to the Acting Regional Director's power or lack of power to make the determination and to issue a certification excluding the brothers. For, as has been pointed out, under the consent- election agreement, the Act, and the Board Rules and Regulations, the Acting Regional Director did not have the power, expressly or by the effect of any action on his part, to alter the stipulated unit, especially without giving notice to the party to be adversely affected and affording him an opportunity to present and support his objections. Thus. contrary to the General Counsel's argument, the Acting Regional Director's power and right to make his determination and certification excluding the brothers from the unit depended upon whether he thereby altered the unit. If he did change the unit, he lacked the power to do so regardless of the form of his action, and it is therefore immaterial that his action took the form of a ruling on challenged ballots which would otherwise have been within his power under the consent-election agreement. Furthermore, if it now be determined that the Acting Regional Director actually changed the unit, the Acting Regional Director also exceeded his power by failing to give the Respondent notice of the action contemplated and an opportunity to object, and it would be immaterial whether, in retrospect upon the later factual admissions made by his counsel in the present complaint hearing, it might appear likely that the Board's decisions would have required the exclusion of the brothers from the appropriate unit had the Acting Regional Director followed proper procedures. Turning to the prime question in the case, I conclude upon the present record that the Acting Regional Director's exclusion of the Respondent's brothers from the appropriate unit was in substance a change in the stipulated appropriate unit which the Acting Regional Director had no power to make in view of the consent- election agreement. The situation was unlike that in which the Board and its Regional Directors have been required by the Act to recognize the specific and limited statutory exclusion of children and spouses of employers from the category "employees" and thus, as a matter of construction, to exclude this group of relatives from any employee-bargaining unit on the clear ground that they could not conceivably be considered as "employees." (See the City Tire case and other cases cited in fn. 8, above.) For the phrase, "all production and maintenance employees," which was used in the present consent- election agreement, certainly included the Respondent's brothers, admitted no other interpretation, and neither required nor permitted any other construction. Furthermore, it is clear from International Metal, the other consistent decisions of the Board, and the provisions of the Act and the Board Rules and Regulations, that the Acting Regional Director's exclusion of the brothers from the unit not only conflicted with, and was forbidden by, the clear meaning of the language of the stipulated unit in the consent-election agreement, but was a matter affecting the composition of the appropriate unit, concerning which the Respondent in the ordinary situation was at least entitled to notice and an opportunity to produce evidence and counterargument, none of which was in fact afforded to him in the present case. Finally, since for these reasons the Acting Regional Director lacked the power to make the determinations upon which he based his certification of the Union, I also conclude that the certification is invalid and that it furnishes no probative evidence as to the scope of any appropriate bargaining unit of the Respondent's employees nor as to the Union's majority designation therein. There remains for consideration the General Counsel's broad objection to any review by a Trial Examiner in the present case, of the Acting Regional Director's acts in the representation case. He denies that there has been any claim or showing of what amounts to "arbitrary or capricious conduct" on the Acting Regional Director's part. He further contends that all issues which the "' See, e g , American Steel Buck Corporation, 107 NLRB 554, 555 at fn 4, Kern County Broadcasting, Inc, 116 NLRB 194 (brother included), International Aluminum Corporation, 117 NLRB 1221, 1222 at fn 6 (brother included), Tnnac Metalcrafts, Inc., 121 NLRB 1368, 1370 (brother included), Giordano Lumber Co., Inc , 133 NLRB 205, 207 at fn 7 (son of treasurer of corporate employer included), Chester County Beer Distributors Association, 133 NLRB 771, 774 (brother included), Southern Illinois Sand Co., Inc., 137 NLRB 1490, 1492 (nephew of secretary-treasurer included) " See fn. 5, above UDACO MFG. CO. 711 Respondent has raised in the present complaint case were finally disposed of by the Acting Regional Director in the representation case and may not be relitigated before, nor reviewed by, the Trial Examiner in the present proceeding. In his brief, he refers to the Respondent's attack on the certification as "merely [taking] issue with the Acting Regional Director's evaluation of the evidence concerning the two challenges to the ballots cast in the representation case." In his petition to the Board appealing the Trial Examiner's direction at the hearing that the entire record in the representation case be produced, he refers to "the Respondent's attack on the Acting Regional Director's actions in sustaining the challenges" as "an attack on the merits " of the Acting Regional Director's determinations, and disputes the Trial Examiner's "supposed right of superintendence over the Acting Regional Director's administrative investigation into the challenges ...." In support of his position, the General Counsel cites the Board's decisions in Sumner Sand & Gravel Company, 128 NLRB 1368, 1371, enfd. 293 F.2d 754 (C.A. 9), and in The Diversey Corporation, 139 NLRB 572, 576. In each of these cases, the Board found an employer had committed an unfair labor practice by refusing to bargain with a union certified by a Regional Director under a consent-election agreement and, in reaching this conclusion, affirmed the Trial Examiner's refusal to take evidence offered by the respondent employer in attacking rulings made by the Regional Director in the representation case. In Sumner, the respondent employer contended that the Regional Director acted "arbitrarily and capriciously" by denying a hearing and failing to make a proper "evaluation of the evidence" in his ruling sustaining two challenges on the ground that one of the ballots was cast by a supervisor and the other by a person not employed in the unit on the agreed eligibility date. In Diversey, the respondent employer attacked the Regional Director's overruling the employer's objections to the conduct of the election because the Regional Director had refused a hearing since, upon investigation , he had found the objections raised no substantial or material issues. Specifically, the General Counsel relies upon the Board's following language in its Sumner decision as approving the finality of a Regional Director's decisions under a consent-election agreement , absent a showing of "arbitrary or capricious conduct," and as thus supporting the General Counsel's objection to any review of the Acting Regional Director's acts in the present case: We take this opportunity to reiterate here the Board's policy, uniformly upheld by the courts, that we will deem the Regional Director's determination in consent elections of this character to be final in absence of fraud , misconduct , or such gross mistakes as imply bad faith on the part of the Regional Director even though we might have reached a different decision .... Henceforth, as in the past, only evidence as to the alleged arbitrariness or capriciousness of a Regional Director's determination shall be admitted by a Trial Examiner in any complaint proceeding arising out of a respondent's failure to honor a Regional Director's certification following an agreement for consent election which provides for a final and binding determination of all issues by the Regional Director. We shall disregard evidence erroneously admitted by a Trial Examiner as to the merits of the Regional Director's decision. Of course , this language of the Board states the rule which its Trial Examiner must observe. Moreover, the rule with respect to consent-election situations is simply a facet of the broad rule adopted by the Board and approved by the courts with respect to certifications generally, for the purpose of preventing a relitigation , before a Trial Examiner in a subsequent complaint case, of issues already disposed of in a preceding representation case.12 But, as the language of the Board just quoted from the Sumner case plainly states , and an examination by the other decisions confirms-and for that matter even as the General Counsel 's statements in support of his position indicate-the Board has thus excluded from review and relitigation in the complaint proceeding before the Trial Examiner only the merits of the rulings and decisions made by the Regional Director in the earlier representation case, and not the power of the Regional Director to make the rulings and decisions in question. This distinction appears clearly in the Board's statements made in its decisions in the Sumner and many of its other cases, that a claim of "arbitrary or capricious conduct" on the part of a Regional Director in any representation case will be litigated in the subsequent resulting complaint case. The phrase thus used by the Board ordinarily suggests some impropriety on the part of the Regional Director. But it is in my opinion broad enough to include-and the logic and the purpose of the Board's excluding review only of the merits of the Regional Director's action seems to require that it include-any action or determination of the Regional Director which is beyond the limitations of his power even though he may believe he has the power, as I am convinced was true of_ the Acting Regional Director in the present case. Thus, in accordance with the Board 's purpose and reasoning, it has apparently intended to leave to the Regional Director's judgment and unprejudiced determination the basic, material facts and the merits of questions which he has the power to decide and, in that area alone , to prevent the Trial Examiner's needlessly relitigating the same issues, substituting his evaluation of the evidence and its merits for that of the Regional Director, and thereby affording the parties opportunities for unnecessary and even deliberate delay of the Board's eventual decision in the complaint proceeding. The question of the Regional Director's power or lack of power to make certain decisions, however, is of fundamental concern to the Board , rests upon the nature of the decision and the circumstances in which it is made, and its consideration by the Board requires no relitigation or reconsideration of the merits of the Regional Director's determination of any of the issues . In this area , it appears to me that the Board did not intend to entrust any such substantial question to the Regional Director's own final 12 See e g , Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 158-159, 161, N L.R B v American Steel Buck Corp, 227 F 2d 927, 929 (C A 2), enfg 110 NLRB 2156, 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, Air Control Products of St Petersburg, Inc., 139 NLRB 413, Esquire, Inc , 109 NLRB 530, 539, enfd 222 F 2d 253 (C A 7), Metropolitan Life Insurance Company, 142 NLRB 491, 141 NLRB 337, 141 NLRB 1074, Atkinson Dredging Company, 141 NLRB 1316, enfd 329 F 2d 158 (C A 4), cert denied 377 US 965 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determination, that the Board is directly concerned with the problem in each case when it is raised, and that it is the responsibility of the Trial Examiner and clearly within his power, to consider the matter in the first instance and, upon the basis of the necessary records in both the representation and complaint cases, to make his findings of relevant facts and his conclusions, and to present them to the Board with his recommendations in the complaint case as I am doing in the present proceeding. Indeed, in cases of consent elections under Section 102.62 (a) of the Board Rules and Regulations, Series 8, as amended, such as the one with which we are here concerned, the only way a claim that a Regional Director has exceeded his powers can reach the Board is through the Trial Examiner in a subsequent complaint case. For there is no provision in the Board's Rules permitting an appeal to, or review by, the Board in a representation case such as the present, the only review provisions of Sections 102.67 and 102.69 being limited, so far as consent elections are concerned , to those which are being processed under Section 102.62 (b). is Upon these considerations, and contrary to the General Counsel's contention, I believe I have had the power and the responsibility to permit inquiry into, and to consider, the Acting Regional Director's power in excluding the Respondent's two brothers from the appropriate unit, and that, in so doing and making my necessary findings, conclusions, and recommendations to the Board, I have not transgressed the Board's restrictions upon its Trial Examiners since I have not reviewed the merits of any of the Acting Regional Director's determinations in the representation case, made any evaluation of any evidence considered by him, nor permitted any relitigation of the substance of the issues upon which he passed. In sum, I have concluded that: (1) the Acting Regional Director exceeded his power in excluding the Respondent's two brothers from the stipulated appropriate unit and in then certifying the Union as the exclusive bargaining representative of the employees in the altered unit; (2) the Acting Regional Director's certification of the Union as such representative is therefore invalid; (3) since the General Counsel relies upon the facts and conclusions certified by the Acting Regional Director, there is no probative evidence in the present case that, at the time the Respondent admittedly refused to bargain with the Union, the Union had been selected as bargaining representative by a majority of the employees in an appropriate unit for purposes of collective bargaining nor therefore that the Union was the exclusive bargaining representative of the employees in any such unit within the meaning of Section 9(a) of the Act; and (4) the present complaint alleging the Respondent's refusal to bargain with the Union to be an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, should be dismissed. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions, and the entire record in the case, it is recommended that the complaint herein be dismissed. " See The Diversey Corporation, 139 NLRB at 572, fn 2 In spite of there being no provision for such an appeal to the Board, counsel for the Respondent stated at the hearing that "an appeal was made to the Board, which was denied on the grounds that a consent election . made the certification final and binding " At about this point in the hearing, I requested the General Counsel to certify the entire record in the representation case to the Board and assumed that, if an "appeal" to the Board had actually been made and "rejected," they would be supplied with the remainder of the representation case record . Even the General Counsel's petition in his later successful appeal to the Board from my direction to produce the record stated that, "Respondent filed Exceptions to Report on Challenged Ballots and Certification of Representative , and the Board informed the Respondent that it would not consider its Exceptions " Furthermore , in the same petition, the General Counsel stated that , in addition to the three documents already submitted to me from the representation case record, the General Counsel regarded these "Exceptions " and the Board's "Response " as being part of the "record herein as encompassed by Sec 9(d) of the Act" and, with the papers already submitted , "sufficient to join the issues in the 8(a)(5) proceeding herein " But no such additional papers were ever furnished for my consideration in the present record and I therefore have no knowledge of what may have been their content, even were Ito assume their existence . Certainly, I could not rely upon the statements of either counsel, even were they not so vague In any event , the review provisions of Sections 102 67 and 102.69 of the Board Rules and Regulations , including those of Section 102 67(1) do not apply to the present type of consent- election proceeding and would not raise either the failure of the Respondent to apply to the Board for review nor even an adverse ruling by the Board, as a bar to the Respondent 's present attack upon the Acting Regional Director's power Nor does the General Counsel make any contention that, having nevertheless received "Exceptions " from the Respondent in the representation case, the Board itself issued a ruling, now binding upon me as its Trial Examiner, specifically approving the Acting Regional Director's power to exclude the Respondent 's two brothers from the appropriate unit despite their apparent inclusion in the stipulated unit described in the consent -election agreement.