Lamar Electric Membership Corp.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 592 (N.L.R.B. 1964)

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.