Hastie and Freedman, Circuit Judges, and Weber, District Judge.
This case is before the Court on the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. for enforcement of its order dated August 25, 1964. The Board found that respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the duly elected and certified representative of its employees. This case involves one out of four of respondent's plants upon which petitions were heard on a consolidated record resulting in findings that each was an appropriate bargaining unit, and directing that an election be held.
At the hearing on the petition respondent contested the appropriateness of the single plant unit. Respondent did not request the Board to review this finding.
At the election, of 62 ballots 31 favored the Union, 29 were opposed, and 2 ballots were challenged by the Union. The Regional Director conducted an administrative investigation, overruled one challenge and sustained one. The challenged ballot which was overruled was not counted because it would not change the result, and the Union was accordingly certified. Respondent made a request for hearing at this time.
A Request for Review was filed by the respondent with respect to the sustained challenge on the grounds that the Regional Director had denied respondent a hearing with respect to the supervisory status of the challenged employee. The Request for Review was denied without hearing.
The respondent refused to recognize or bargain with the Union and an Unfair Labor Practice charge and hearing followed. Here respondent contended that the single plant unit was inappropriate but the Trial Examiner refused to pass on this issue on the grounds that respondent's failure to seek a review of the original representation decision precluded litigating this issue in any subsequent unfair labor practice proceeding.*fn1 Also, respondent sought to introduce evidence on the alleged supervisory status of the challenged employee. The Trial Examiner refused to pass on this issue on the grounds that the Labor Board's refusal of Request for Review of this issue could not be relitigated under the Board's Rules. A detailed offer of proof was made on the record but was rejected by the Trial Examiner. Respondent also claimed that it was improperly denied a hearing on the question of the alleged supervisory status of the challenged ballot. The Trial Examiner rejected this contention on the grounds that it had been examined and rejected by the Board on the Request for Review, and, absent newly discovered evidence, the issue could not be relitigated in the complaint hearing.
This petition for enforcement followed. Respondent admits that it has refused to recognize and bargain with the Union, but asserts that the Labor Board's findings and conclusions that respondent violated the Act are not supported by substantial, material and valid evidence on the record considered as a whole, as required by the Act, and are erroneous as a matter of law. Specifically, respondent contends that:
(1) The Board's determination that the challenged employee was supervisory was made on the basis of an ex parte investigation and without granting a hearing which deprived respondent and its employees of their rights under law; and
(2) The direction of an election in a single plant unit was erroneous and contrary to the requirements of the National Labor Relations Act.
The Appropriate Bargaining Unit Determination.
Respondent argued that the determination of the appropriate bargaining unit in this case was made by the Labor Board in violation of Section 9(c)(5) of the Act which provides that:
"In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling." 29 U.S.C. § 159 (c)(5).
In support of this argument respondent points to its history of representation petitions. Respondent operates six bakery plants within an 85-mile radius of Harrisburg, Pennsylvania. In 1956 and in 1960 the Board held that a unit of employees in a single plant of respondent was not appropriate, holding that:
"the high degree of integrated, centralized and detailed managerial control of labor relations policies for all the plants, the interdependence of the plants in the Employer's production and distribution system, the similarity of functions of all the production and maintenance employees, and their uniform working conditions and fringe benefits" (Joint Appendix p. 1366).
all compelled a conclusion that a single plant unit was not appropriate. (Case No. 4-RC-4091). In 1961, the parent organization of the Union involved here agreed to and the Labor Board directed an election in a multi-plant unit of all respondent's plants, which the Union lost. In 1963 the Board reversed its 1960 position and directed an election in a single plant unit in Williamsport on petition of a local of the Teamsters Union. A Request for Review of the unit determination was denied, but the Union lost the election. Also in 1963, at the Pottsville plant, the Board directed a single plant unit election for a Teamsters Union Local, the respondent requested Review which was denied, and the Union lost the election.
The present proceeding grew out of four single plant representation petitions in 1963 for four of respondent's plants, and the determination by the Regional Director after hearing, that each of said plants was an appropriate unit for the production and maintenance employees. The respondent did not file a Request for Review of this determination, but filed its Request for Review on the supplemental determination of the Regional Director concerning the contested ballots in the election. In this Request for Review respondent stated that it was not abandoning its objection to the unit determination but it devoted its arguments to the challenged ballot issue. The Trial Examiner at the unfair labor practice hearing held that under Sec. 102.67(f) of the Board's Rules and Regulations the respondent's failure to request review of this finding precluded it from being raised at this time, in the absence of any evidence unavailable at the time ...