Southwestern Electric Service Co.

National Labor Relations Board - Board Decisions

May 28, 1951

94 N.L.R.B. 859 (N.L.R.B. 1951)

SOUTHWESTERN ELECTRIC SERVICE COMPANY 859
3. By such discrimination and by interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
5. The Respondent has not discriminated as to the hire and tenure of employ-
ment of Howard Sullivan and Naomi Gleistein within the meaning of the Act.
[Recommended Order omitted from publication in this volume.]
SOUTHWESTERN ELECTRIC SERVICE COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 790 . Case No. 16-
CA-307. May 28,1951
Decision and Order
On March 9,1951, Trial Examiner Lee J. Best issued his Intermedi-
ate Report in the above-entitled proceeding finding that the Re-
spondent had engaged in and was engaging -in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth ,in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.2 The Board has considered the Intermediate Report, the
Respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.3
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act as amended, the National Labor
3 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 Herzog and Members Houston and Reynolds].
2 We find no merit in the Respondent ' s contention that the Trial Examiner erroneously
sustained an objection by the General Counsel to the Respondent's introduction of
evidence to prove that the unit found by the Board was inappropriate , and that the
election conducted by the Board was not fairly held. These issues were fully litigated
and considered by the Board in Southwestern Electric Service Compan , 89 NLRB 114,
90 NLRB 457, and 91 NLRB No 19, and could properly not be relitigated in this
complaint proceeding. Clark Shoe Company, 88 NLRB 989; Pittsburgh Plate Glass Co. v.
N. L. R. B., 313 U. S. 146 (1941) ; N. L. R. B. v. West Kentucky Coal Company, 152 F.
2d 198 (C. A. 6), certiorari denied 328 U. S. 866.
= As appears in section 1 (a) of our Order , we have adopted the description of the
unit which was set forth in our Decision and Direction of Election (89 NLRB 114),
rather than that employed in the unit finding in the Intermediate Report. The difference
is one of phraseology, however, and involves no variation in the unit found appropriate.
94 NLRB No. 131.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Southwestern
Electric Service Company, Jacksonville, Texas, and its agents, suc-
cessors, and assigns, shall :
-1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local 790, as the exclusive representative
of all employees in the Respondent's electrical operations in its Jack-
sonville Division, excluding all employees of the Central Division,
ice plant employees, professional employees, clerical employees,
guards, watchmen, shift operators, and all other supervisors as defined
in the Act.
(b) In any manner interfering with the efforts of International
Brotherhood of Electrical Workers, Local 790, to bargain collectively
with it in behalf of the employees in the aforesaid appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Electrical Workers, Local 790, as the exclusive representative
of all its employees in' the above-described appropriate unit with
respect to grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post in conspicuous places at its plant in its Jacksonville Divi-
sion, Jacksonville, Texas, copies of the notice attached hereto marked
"Appendix A." 4 Copies of such notice, to be furnished by the Re-
gional Director for the Sixteenth Region, shall, after being duly
signed by the Respondent's representative be posted by the Respondent
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) clays from the date of this Order what steps the
Respondent has taken to comply herewith.
Appendix A
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, we hereby notify our employees that :
4 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order," the words "A Decree
of the United States Court of Appeals Enforcing."
SOUTHWESTERN ELECTRIC SERVICE COMPANY 861
WE WILL, upon request, bargain collectively with INTERNA-
TIONAL BROTFIERIIOOD OF ELECTRICAL WORKERS, LOCAL 790, as the
exclusive representative of all employees in the following bar-
gaining unit with respect to rates of pay , wages, hours of employ-
ment, and other conditions of employment , and, if an understand-
ing is reached, embody such understanding in a signed agreement;
All employees in the electrical operations in our Jackson-
ville Division , excluding all employees of the Central Divi-
son, ice -plant employees , professional employees , clerical em-
ployees , guards, watchmen, shift operators , and all other
supervisors as defined in the Act.
WE RILL NOT in any manner interfere with the efforts of INTER-
NATIONAL BROT [-IERH1001) OF ELECTRICAL WORKERS , LOCAL 790, to
negotiate for or represent the employees in the aforesaid unit as
their exclusive bargaining agent.
SOUTI -IWVESTERN ELECTRIC SERVICE COMPANY,
Employer.
By ------------------------------------------------
(Repreeutatn-e) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
James R. Webster, Esq., for the General Counsel.
Trion, Cain, Bergman and Hickerson, by Frank Cain, Esq., of Dallas, Tex. and
Snmimers A. Norman, Esq, of Jacksonville, Tek, for the Respondent.
W. J. Cox, International Representative, of Dallas, Tex, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on October 5, 1950, by International Brotherhood of
Electrical Woikers, Local 790, herein called the Union, the General Counsel of
the National Labor Relations Board, herein called the General Counsel and the
Board, respectively, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued a complaint dated December 4, 1950, against Southwestern
Electric Service Company, Jacksonville, Texas, herein called the Respondent,
alleging that Respondent engaged in and continues to engage in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat 136, herein called the Act. Copies of the charge, complaint, and note e
of hearing thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that- (1) all employees in the electrical operations in the Jacksonville Division
of Respondent employed at its Jacksonville plant, exclusive of all employees of
the Central Division. ice plant employees, professional employees, clerical em-
ployees, guards, watchmen, shift operators, and supervisory employees, constitute
a unit appropriate for the purpose of collective bargaining within the meamu.a
of Section 9 (b) of the Act, (2) at all tines since April 27, 1950, the Union has
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been the exclusive representative of all employees in the above-described appro-
priate unit, and, by virtue of Section 9 (a) of the Act, has been and is now the
exclusive representative of all the employees in said unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment; (3) on or about July 17, 1950, and at all times
thereafter, the Respondent has refused to bargain collectively with the Union as
the exclusive representative of the employees in the aforesaid appropriate unit ;
and (4) by the foregoing conduct, the Respondent has engaged in and is engaging
in unfair labor practices violative of Section 8 (a) (1) and (5) of the Act.
The Respondent filed an answer denying (1) that it is engaged in commerce
within the meaning of the Act or subject to the jurisdiction of the Board; and
(2) that it has not engaged in any acts or omissions constituting unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2 (6) and (7) of the Act. It specially denies the appropriateness
of the unit alleged in the complaint and that the Union was or is the duly
elected and certified exclusive representative of such employees.
Pursuant to notice, a hearing was conducted on January 3, 1951, at Jackson-
ville, Texas, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel, a representative of the Union was present, and all parties
were afforded full opportunity to be heard and to introduce evidence bearing
upon the issues involved.' Counsel for the General Counsel and the Respondent
orally stated the case, reviewed the contentions of the respective parties, and
argued before the undersigned on the record. All parties were informed of their
rights to file briefs and/or proposed findings of fact and conclusions of law. None
have been filed by either party.
The Trial Examiner was requested to take judicial notice of, and both the
General Counsel and Respondent introduced as exhibits, the following decisions
and orders of the Board in representation proceedings wherein the same parties
in the instant case were involved :
Case No. 16-RC-286, dated July 12, 1949, and reported in 85 NLRB 153;
Case No. 16-RC-431, dated March 31, 1950, and reported in 89 NLRB No. 6;
Case No. 16-RC-431 (supplement), dated July 17, 1950, and reported in
90 NLRB No. 155;
Case INTO. 16-RC-431 (Order), dated August 30, 1950, and reported in 91
NLRB No. 19.
Upon the entire record in the case, which contains no oral testimony, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT'
Southwestern Electric Service Company is a public utility corporation organ-
ized and existing by virtue of the laws of the State of Texas. It is primarily
engaged in the purchase, generation, and sale of electric energy ; and also
engages in the manufacture and sale of ice. It owns and maintains two separate
operating systems in eastern Texas, with no interconnecting power lines other
than those of the Texas Power and Light Company, an unaffiliated corporation.
1 The exclusion of certain testimony proffered by the Respondent is hereinafter discussed.
2 Findings herein are based upon statements of counsel for the Respondent in the record,
and the record of prior proceedings before the Board in Case No. 16-RC-286 and
Case No. 16-RC-431, supra.
SOUTHWESTERN ELECTRIC SERVICE COMPANY 863
The first system, herein called the Jacksonville Division, furnishes electric
energy to approximately 17 cities and towns in an area adjacent to and including
Jacksonville, Texas. It comprises substantially the same physical properties
and operations formerly owned and conducted by Gulf Public Service Company,
over which the Board asserted jurisdiction in 18 NLRB 562, enforced in 116 F.
2d 852 (C. A. 5). In 1941 the ownership and operation of these properties passed
from Gulf Public Service Company to Southwestern Public Service Company ; and
in 1945 from the latter to the Respondent. This division obtains electric energy
primarily from its own generating plant at Jacksonville, Texas, and is under
contact with the Texas Power and Light Company providing that either company
will supply the other in an emergency with energy up to a fixed amount.
The second system, herein called the Central Division, services an area adjacent
to and including the towns of Mexia and Marlin, Texas. The electric energy
distributed through the latter system is purchased primarily from the Texas
Power and Light Company; but it maintains, on a standby basis, three generat-
ing plants located respectively at Mexia, Marlin, and Rosebud, Texas, for utiliza-
tion at the request of Texas Power and Light Company on infrequent occasions,
when that company is unable to deliver the contracted for supply. The electrical
properties now constituting the Central Division were acquired by Southwestern
Public Service Company from Texas-New Mexico Public Utilities Corporation,
and later transferred to the Respondent. There is no history of collective bar-
gaining in the Central Division.
Customers of the Respondent include United States Post Offices; Western
'Union Telegraph Company; St. Louis Southwestern Railway Company; Missouri
Pacific Railway Company ; Houston, Texas, and New Orleans Railroad ; Two
States Telephone Company ; Gulf States Telephone Company ; Southwestern
Bell Telephone Company; and a number of other companies engaged in interstate
commerce over whom the Board has asserted jurisdiction in other proceedings,
1. e., Sheffield Steel Company, J. C. Penney Company, Sears-Roebuck & Company,
Gulf Refining Company, and Humble Oil & Refining Company.
Contrary to the contention of Respondent, the Board has previously found,
and I now find that the Respondent is engaged in commerce within the meaning
of the Act. It falls within the classification of public utilities where the Board
asserts jurisdiction in all cases, subject only to the rule of de minimis.8
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 790, is a labor organi-
zation within the meaning of Section 2 (5) of the Act, admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceedings
1. Case No. 16-RC-286
In October 1948, the Union filed a petition for a unit limited to the power
plant employees in the Respondent's Jacksonville Division. In that proceeding
the Respondent vigorously urged that the only unit that could be appropriate
was ". . . just the Jacksonville District, the same unit set up by the Board
previously and confirmed by the Circuit Court. We say that is all that could be
appropriate." The Board dismissed that petition on the ground that the em-
W. C. King d/b/a Local Transit Lines, 91 NLRB 623.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees sought to be included in the unit did not constitute a functionally distinct
group with interests separate from the distribution employees 4
2. Case No 16-RC-431
Following dismissal on July 12, 1949, of its petition in the previous proceeding,
the Union filed another petition seeking a unit limited to the Respondent's Jack-
sonville Division and comprising all employees working in the electrical opera-
tions of that division except professional, office, and clerical employees. There-
upon, the Respondent contended that to be appropriate the unit must also include
all similar employees in its Central Division A hearing was conducted at which
all pasties were given full opportunity to be heard. Based thereon, the Board
found that the Respondent's two electrical s,) stems, i. e, its Jacksonville Division
and Central Division, are not physically interdependent, and that the unit sought
by the Petitioner followed the lines of a geogi aphical and administrative division
of the Respondent's operations, comprising a readily identifiable and homogeneous
group of employees. It was found, therefore, in accordance with existing policy,
that all employees in the Respondent's (Employer) electrical operations in its
Jacksonville Division, excluding all employees of the Central Division, ice plant
employees, professional employees, clerical employees, guards, watchmen, shift
operators, and all other supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act. As part of the investigation to ascertain a representative
of employees in the unit for the purposes of collective bargaining, an election by
secret ballot was ordered to be conducted under the direction and supervision
of the Regional Director for the Region in which the case was heard, and subject
to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regu-
lations, among the employees in the unit found to be appropriate.'
Pursuant to the foregoing Decision and Direction of Election issued by the
Board, an election by secret ballot was duly conducted on April 27, 1950, under
the direction and supervision of the Regional Director for the Sixteenth Region.
The tally of ballots showed that out of approximately 35 eligible voters, 34
cast their ballots. It was found that a majority of the valid votes were cast in
favor of the Union On May 2, 1950, the Respondent (Employer) protested the
conduct of the election, filed detailed objections, and moved that the election
be set aside. The Regional Director conducted an investigation, and found no
irregularities sufficient to affect the result of the election The Respondent then
tiled exceptions to the recommendations of the Regional Director, and the Board
thereupon fully considered the Respondent's objections to the conduct of the
election, the Regional Director's report thereon, and the exceptions to the report.
Finding no prejudicial irregularities sufficient to affect the result of the election,
the Board on July 17, 1950, issued its Certification of Representatives, certifying
that International Brotherhood of Electrical Workers, AFL, Local No. 790, had
been designated and selected by a majority of the employees of Southwestern
Electric Service Company in the unit found to be appropriate as their representa-
tive for the purpose of collective bargaining; and that, pursuant to Section 9 (a)
of the Act, as amended, the said organization is the exclusive representative of
all the employees in such unit for the purpose of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of employment
Thereafter, the Respondent filed a motion for reconsideration by the Board
of its previous action. It requested that a hearing be ordered on its objections
4 85 NLRB 153.
5 89 NLRB 114.
6 90 NLRB 457.
SOUTHWESTERN ELECTRIC SERVICE COMPANY 865
to the conduct of the election and exceptions to the report of the Regional
Director. Having fully considered in its previous decisions all of the facts
alleged by the Respondent, and having found that such facts, assuming them
to be true, did not constitute improper conduct of such character as to have
affected a free choice in the election, the Board concluded that a further hearing
could serve no useful purpose, and therefore on August 30, 1950, denied the
request'
B The refusal to bargain
1 The request and refusal
On September 15, 1950, an authorized representative of the Union dispatched
to the Respondent's agent a letter, which reads in pertinent part, as follows :
In accordance with our telephone conversation on September 12th, 1950,
and accoi ding to instructions from Mr. Sliewmake, an official of the South-
western Electric Service Company, Jacksonville, Texas, telling me to call
you, as you were their agent, I am at this time informing you that the Coin-
mittee of Local Union 790, International Brotherhood of Electrical Workers,
(A. P. of L.) and myself, are ready and anxious to start negotiations for a
working agreement for certain employees of the Southwestern Electric Service
Company, as soon as possible. This unit of employees has been certified by
the National Labor Relations Board, as you well know I can see no justi-
fication for a further delay in this matter.
Yours truly,
W. E. Cox,
Representative, International Brotherhood
of Electrical Workers, (A F. of L
CC-Vice Pres. Ingram
Mr Makeig, Pies SW Elec Co
Dr Edwin Elliott, Dir N. L. R. B.
Local Union 790, IBEW
By letter of September 29, 1950, the Respondent replied in pertinent part, as
follows :
Your communication of September 15th arrived during my absence, which
is the reason for not answering sooner.
Pursuant to your request for Southwestern Electric Service Company to
bargain with the International Brotherhood of Electrical Workers, A. P. L.,
Local No. 790, pertaining to employees in the Jacksonville division of the
company made to me on the 18th day of September, 1950, you are advised as
follows :
It is the position of the company, as it has been in the past, that it cannot
afford to enter into collective bargaining negotiations with your union per-
taining to the unit heretofore approved by the board The company can
neither afford to enter into collective bargaining with your union pertaining
to the unit approved by the Board for the reason that such will create an
unjustifiable burden upon the company and its employees, and will create
disturbance and confusion by reason of the fact that in entering into col-
lective bargaining with the union covering the particular unit approved by
the Board, due to circumstances and conditions of management and methods
of operations of the company, the management would be automatically bar-
91 NLRB No 19
953841-52-vol 94-56
S66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining with the union on matters which would materially and directly affect
other employees of the company working in the identical type of work as
the employees covered by the unit approved by the Board . This would
create a condition where the union would be bargaining automatically for
employees not under its control or jurisdiction , and, by virtue thereof, would
create an unjustifiable burden upon both the management and the employees
of the company , whether they be in or out of the unit approved by the Board.
You are further advised that it is the position of the company , as it always
has been, that the approval of the unit by the Board was in direct conflict
with all precedents heretofore established by the Board in approving units
as being appropriate for collective bargaining . It is the position of the
company that the establishment of the unit by the Board is nothing short
of being an arbitrary and unlawful act by the Board, and in direct violation
of the spirit and intent of the Act as amended.
You are further advised that it is the position of the company that the
election was not fairly held and that , if a fair election were held pursuant
to the rules and regulations prescribed by the National Labor Relations
Board, a majority of the employees in the proposed and alleged unit would
vote against the union representing them as their exclusive bargaining agent.
You are further advised that it is the position of the company that the
order of the Board on July 17, 1950, overruling our exceptions and objections
to the election , and the order of the National Labor Relations Board of
August 30 , 1950, denying the company 's request for a hearing on its objections
and exceptions were directly contrary to precedents , arbitrary and directly
in conflict with the spirit and intent of the Labor -Management Relations
Act as amended.
You may be assured that each and all of the afore -mentioned orders would
be appealed to the circuit court of appeals for review if such were the
company 's legal right to do so However , as you know , the only way that
the company may have its rights protected in this connection , and have the
courts pass upon the order of the Board , is for the same to first go before
the National Labor Relations Board as a complaint case, and then have
the Board rule against the Company in its final decision.
A copy of this letter is being mailed to the Regional Director for the
National Labor Relations Board at F ort Worth, which will be in confirmation
of our previous conversations with the Regional Director ' s office concerning
this matter.
2. The appropriate unit
The complaint alleges that "In order to insure the employees of respondent
the full benefit of their right to self-organization and to collective bargaining
and otherwise to effectuate the policies of the Act, all employees in the electrical
operations in the Jacksonville Division of respondent employed at its Jackson-
ville plant, exclusive of all employees of the Central Division, ice plant employees,
professional employees, clerical employees, guards, watchmen, shift operators,
and supervisory employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9, subdivision (b), of the
Act."
• The Board has found, as fully set forth in Case No. 16-RU-131, above, the
unit alleged in the complaint to be appropriate under the circumstances of this
case. There is no evidence of change in the situation. At the hearing neither
party proffered testimony which was newly discovered or unavailable to the
SOUTHWESTERN ELECTRIC SERVICE COMPANY 867
Board in its previous consideration of the objections and exceptions of the
Respondent'
The position assumed by the Respondent is fully set forth in its above letter
of September 29, 1950, addressed to the Union.
I find, therefore, that the unit alleged in the complaint is appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. Majority status of the Union
As set forth above, the Union won the election held on April 27, 1950, and was
certified by the Board on July 17, 1950, as the exclusive representative of all em-
ployees in the unit found appropriate for the purposes of collective bargaining.
There is no evidence that the Union has since been decertified by the Board, or
otherwise lost its majority.
It is the position of the Respondent that the election was not fairly held,
but the Board, after due consideration of the facts presented by the Respondent
in its objections and exceptions, has found contrary to that contention. Whether
a majority of the employees in the appropriate unit in another fair election
would vote against the Union, as contended by the Respondent, can be determined
only when such election is held pursuant to the Rules and Regulations of the
Board in accordance with the provisions of the Act.
I find, therefore, that on and after July 17, 1950, the Union was the duly
designated bargaining representative of Respondent's employees in the aforesaid
appropriate unit pursuant to Section 9 of the Act, and still is the exclusive
representative of said employees for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other conditions- of
eemployment.
Concluding Findings
The above letter of September 29, 1950, which was addressed to W. J. Cox,
Representative, International Brotherhood of Electrical Workers, A. F. L.,
reveals, and I find that, as of said date, and at all times thereafter, the
Respondent refused and is refusing to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit, and has
thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above,, occurring in
•connection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to, trade, traffic, and commerce among
the several States and tend to bring about labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that Respondent cease and desist
8 The Trial Examiner sustained an objection of the General Counsel to introduction of
testimony by the Respondent which was available in the previous representation proceed-
ings. It is a well-settled rule that an employer cannot be permitted in such case to
relitigate in the complaint proceeding the question of the appropriate unit; N. L. R. B. v.
'Worcester Woolen Mills Corp., 170 F. 2d 13 (C. A. 1) ; Goodyear Rubber Sundries, Inc.,
92 NLRB 1382.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom, and that it take certain affirmative action designed to effectuate the
policies of the Act. Having also found that the Union represented and now
represents a majority of the employees in the appropriate unit, and that Re-
spondent has refused to bargain collectively with it, I recommend that Respond-
ent, upon request, bargain collectively with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local 790, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All employees in the electrical operations in the Jacksonville Division of
Respondent employed at its Jacksonville plant, exclusive of all employees of the
Central Division, ice plant employees, professional employees, clerical employees,
guards, watchmen, shift operators, and supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9, subdivision (b), of the Act.
3. International Brotherhood of Electrical Workers, Local 790, was on July 17,
1950, and at all times thereafter, has been and is, the exclusive representative of
all employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on September 19, 1950, and, at all times thereafter, to bargain
collectively with International Brotherhood of Electrical Workers, Local 790, as
the exclusive representative of its employees in the aforesaid appropriate unit,
Respondent has engaged and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
KEN ROSE MOTORS, INC. and LOCAL 841, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, AND LODGE 1898 OF DISTRICT 38, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL. Case No. 1-CA-765. May
28, 1951
Decision and Order
On March 5, 1951, Trial Examiner Hamilton Gardner issued his
Intermediate Report 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 affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief,
04 NLRB No. 141.