NLRB v. Douglas County Electric Membership Corp., No. 22484.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBROWN and COLEMAN, Circuit , and GARZA
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORPORATION, Respondent.
Decision Date22 March 1966
Docket NumberNo. 22484.

358 F.2d 125 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORPORATION, Respondent.

No. 22484.

United States Court of Appeals Fifth Circuit.

March 22, 1966.


358 F.2d 126

Gary Green, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott C. Lichtman, Atty., N. L. R. B., Washington, D. C., for petitioner.

358 F.2d 127

Alexander E. Wilson, Jr., Alexander E. Wilson, III, Atlanta, Ga., Robert J. Noland, Douglasville, Ga., Wilson, Branch, Barwick & Vandiver, Atlanta, Ga., for respondent.

Before BROWN and COLEMAN, Circuit Judges, and GARZA, District Judge.

JOHN R. BROWN, Circuit Judge:

Another of a growing list1 of cases where the § 8(a) (5) failure to bargain is the vehicle for testing the validity of an RC Representation Proceeding, this one presents two questions. One is the substantive problem of the Employer's right to challenge an election because of known, but unauthorized pre-election pro-union campaigning by supervisors. The other, more troublesome, is a procedural one relating to the sufficiency of the Employer's opportunity to be heard either in the RC proceeding, the § 10(b) unfair labor proceedings, or both. We enforce.

In summarizing the setting, we draw freely on the Board's brief except as to those few matters questioned by the Employer.2

On May 13, 1963, the Union3 filed a petition for election with the Board. Thereafter the Employer filed a motion to dismiss the petition alleging that "the proposed bargaining unit * * * was conceived, fostered and organized by five men characterized as supervisory personnel employed by the Employer * * *." A hearing was held, and on June 20, the Regional Director issued a Decision and Direction of Election, rejecting the Employer's claim that the five foremen, the alleged organizers of the Union, were supervisors within the meaning of the Act.

The election was scheduled for July 19. A notice sent by the Employer to all employees announced the details of the election and emphasized management's strong opposition to the Union. At the election, however, the employees voted in favor of the Union. The Employer challenged the ballots cast by the five foremen, but since 15 of the 16 unchallenged ballots were for the Union, the challenged ballots could not affect the results of the election.

Several days after the election, the Employer filed objections, repeating the allegation that the Union campaign was "conceived, instigated, conducted and * * * furthered by the said five supervisors * * *." Permitting these five men to vote, the Employer asserted, had created an "atmosphere of domination and coercion" and had "prevented a fair election." The Regional Director undertook to investigate4 the issues raised by the objections, overruled the objections, and certified the Union on August 9 as the exclusive representative of the employees. In overruling the objections, the Regional Director noted that the Employer had been permitted to challenge the ballots cast by the five alleged supervisors and that their votes had not been counted. Further, he ruled, the mere act of voting by a supervisor, without further incident, is not a basis for setting aside an election.

On August 19, the Employer requested Board review of these determinations by the Regional Director, reiterating that "the election was rendered invalid by the atmosphere of supervisory coercion." On September 30, the Board denied the Employer's Request for Review, ruling that "no substantial issues warranting review" had been raised.

Meanwhile, however, the Employer had taken steps to alter the Regional Director's determination of June 20 that the five foremen were not supervisors. Thus, on July 15, four days before the election, the Employer had presented to each employee a written memorandum

358 F.2d 128
whose stated purpose was "to spell out in no uncertain terms that * * * foremen are supervisors in every sense of the word." In this memorandum, the Employer authorized the five men to exercise various specified supervisory functions. At the same time, the Employer filed with the Regional Director a motion to reopen the record "in order that the appropriate unit in this case may be amended" by excluding the five foremen. Over the Union's objection, the Regional Director reopened the record to take evidence "with respect to the authority conferred upon the foremen on July 15, 1963, or thereafter * * *. Such action does not constitute a reconsideration of the Regional Director's Decision * * on June 20, 1963, but has the sole purpose of determining whether the foremen are now supervisors within the statutory meaning and, if so, of appropriately amending the description of the bargaining unit * * *."5

After notice and hearing, the Regional Director issued a Second Supplemental Decision and Order, dated September 25, in which he concluded that the Employer's July 15 memorandum had effectively given supervisory authority to the five foremen. Accordingly, he amended the bargaining unit to exclude the foremen in accordance with the Employer's request.

Thereupon, the Employer filed a motion with the Board requesting reconsideration of the Board's September 30 refusal to review the Regional Director's August 9 determination not to set aside the election. Since the five men were now established to have been supervisors at the time of the election, the Employer asserted, their mere participation in the election constituted undue influence over the employees.6 The Board denied this motion.

As already noted, the representation election had resulted in the Union's certification on August 9. Thereupon, the Union repeatedly requested the Employer to meet for the purpose of collective bargaining. The Employer refused, asserting that the Union's certification was invalid because of the activities of the five foremen.

Upon charges filed by the Union, a complaint issued against the Employer. At the unfair labor practice hearing, the Employer sought to defend primarily on the grounds that the participation of the five foremen in the Union's organizing campaign invalidated the election. The Trial Examiner declined to admit proffered testimony to show the activities of these five men, however, on the grounds that this defense had already been "sufficiently and properly litigated in the representation case." The Board affirmed the Trial Examiner's rulings, found that the Company's refusal to bargain violated § 8(a) (5) and (1) of the Act, and ordered the Employer to cease and desist, and bargain collectively with the Union upon request.

On the surface there does appear to have been no real hearing at any stage on the Employer's contention of supervisor pro-union campaigning. Thus, at the time of the Regional Director's decision of August 9 overruling the Employer's objections on this ground, the Director was in effect still adhering to the earlier determination that the line foremen were not supervisors. If, as held, they were not supervisors, their pro-union organizational activities were legally irrelevant. Nor was this really changed by the reopening (also by an order of August 9) of the question of supervisory status in the light of the July 15 memorandum outlining duties. For the Employer's July 16 motion sought

358 F.2d 129
...

To continue reading

Request your trial
34 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...proceeding. See NLRB v. Air Control Prods., 5 Cir., 1964, 335 F. 2d 245; NLRB v. Douglas County Elec. Membership Corp., 5 Cir., 1966, 358 F. 2d 125. There is no reason to distinguish post-election hearings from those held earlier, unless it were contended that the later hearings dealt with ......
  • NLRB v. Smith Industries, Inc., No. 25691.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 12, 1968
    ...or was unavailable at the time of the representation proceeding. N. L. R. B. v. Douglas County Electric Membership Corp., 5 Cir., 1966, 358 F.2d 125, 129 (Brown, J.); United States Rubber Co. v. N. L. R. B., 5 Cir., 1967, 373 F.2d 602, 604. However, the usual procedure is to remand for a he......
  • Home Town Foods, Inc. v. NLRB, No. 26487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 1, 1969
    ...of "specific evidence of specific events from or about specific people," NLRB v. Douglas Co. Elect. Membership Corp., 5 Cir. 1966, 358 F.2d 125, 130, claiming that pre-election misconduct by union supporters and election day misconduct by the union organizer, the union supporters, and the B......
  • NLRB v. Golden Age Beverage Company, No. 26286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1969
    ...in support of allegations having a basis in law sufficient to overturn the election. N.L.R.B. v. Douglas County Electric Membership Corp., 358 F.2d 125, 130 (5th Cir.1966); accord, N.L.R.B. v. O.K. Van Storage, Inc., 297 F.2d at Despite the several aforementioned opportunities for the Compa......
  • Request a trial to view additional results
34 cases
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...proceeding. See NLRB v. Air Control Prods., 5 Cir., 1964, 335 F. 2d 245; NLRB v. Douglas County Elec. Membership Corp., 5 Cir., 1966, 358 F. 2d 125. There is no reason to distinguish post-election hearings from those held earlier, unless it were contended that the later hearings dealt with ......
  • NLRB v. Smith Industries, Inc., No. 25691.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 12, 1968
    ...or was unavailable at the time of the representation proceeding. N. L. R. B. v. Douglas County Electric Membership Corp., 5 Cir., 1966, 358 F.2d 125, 129 (Brown, J.); United States Rubber Co. v. N. L. R. B., 5 Cir., 1967, 373 F.2d 602, 604. However, the usual procedure is to remand for a he......
  • Home Town Foods, Inc. v. NLRB, No. 26487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 1, 1969
    ..."specific evidence of specific events from or about specific people," NLRB v. Douglas Co. Elect. Membership Corp., 5 Cir. 1966, 358 F.2d 125, 130, claiming that pre-election misconduct by union supporters and election day misconduct by the union organizer, the union supporters, an......
  • NLRB v. Golden Age Beverage Company, No. 26286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1969
    ...in support of allegations having a basis in law sufficient to overturn the election. N.L.R.B. v. Douglas County Electric Membership Corp., 358 F.2d 125, 130 (5th Cir.1966); accord, N.L.R.B. v. O.K. Van Storage, Inc., 297 F.2d at Despite the several aforementioned opportunities for the Compa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT