Hastings, Senior Circuit Judge, Kiley, and Kerner, Circuit Judges.
Illinois State Journal-Register, Inc. (Company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act (Act), as amended, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board (Board), issued against the petitioning-Company on June 3, 1968. The Board found the Company had engaged in unfair labor practices within the meaning of Section 8 (a)(1) and 8(a)(5) of the Act, as amended, 29 U.S.C.A. § 158(a)(1) and (a)(5), by refusing to bargain collectively with the International Mailers Union (Union), exclusive bargaining representative for the Company's 14 city and country district circulation managers working out of Company's Springfield, Illinois plant.
The Board, pursuant to Section 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), cross-petitions for enforcement of its order.*fn1
The record reveals that the Company is an Illinois corporation engaged in the business of publishing daily newspapers in Springfield, Illinois. It further shows that on August 30, 1967, the Union filed a petition with the Board seeking to represent for purposes of collective bargaining the Company's city and country district managers.
Subsequent to a hearing ordered by the Thirteenth Regional Director of the Board to consider, inter alia, whether the district men whom the Union sought to represent were supervisory or managerial employees, the Regional Director issued a decision finding that such district managers were not supervisory or managerial employees and that they constituted a unit appropriate for the purposes of collective bargaining pursuant to Section 9(b) of the Act, as amended, 29 U.S.C.A. § 159(b). The Board denied the Company's request for review of the Regional Director's unit decision in case No. 38-RC-419.*fn2
Pursuant to the Regional Director's direction, a representation election was conducted on January 17, 1968 in which a majority of the district managers designated the Union as their collective bargaining representative. On January 25, 1968, the Union was so certified.
It is undisputed that subsequent to the certification the Union requested, and continues to request, the Company to bargain collectively and that the Company has refused, and continues to refuse, to bargain with the Union.
With the Company's refusal to bargain, the Union filed a charge, and the Board's General Counsel, by the officer-in-charge of Subregion 38, issued a complaint and notice of hearing on March 19, 1968 against the Company alleging violations of Section 8 (a)(5) and 8(a)(1). In answer to the complaint, the Company admitted its refusal to bargain and alleged that the certification of the Union was invalid on the grounds that the district managers are not employees within the meaning of Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3). Specifically, the Company's answer contends that the 14 district managers are supervisors within the meaning of Section 2(11), as amended, 29 U.S.C.A. § 152(11). The Company contends, therefore, that its refusal to bargain is not violative of the Act since the certification of the Union was invalid as such district men do not constitute an appropriate bargaining unit.
Thereafter, on March 27, 1968, General Counsel filed with the Board a motion for summary judgment. The motion was premised upon the Board's "rule against relitigation." Under such procedure, the Board will not relitigate in a subsequent refusal-to-bargain proceeding matters which have been considered and disposed of in a prior related representation case.*fn3 Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 85 L. Ed. 1251, 61 S. Ct. 908 (1941); NLRB v. National Survey Service, Inc., 7 Cir., 361 F.2d 199, 204 (1966).
By the motion, General Counsel asserted that since the Company admits its continuing refusal to bargain and that since the sole issue raised by the Company's answer related to the question of the unit's propriety, which had been previously determined in Case No. 38-RC-419, a hearing with respect to the alleged unfair labor practice was unnecessary under the rule against relitigation.
In substance, the Board granted the motion on the basis of the reasoning embraced in General Counsel's motion for summary judgment.
In this case, the Company's petition for review of the Board's order in effect represents a petition for review of the Regional Director's finding and decision that the 14 district managers are employees, rather than "supervisors and/or managerial employees", and constitute a unit appropriate for the purposes of collective bargaining. This is true since the validity of the Board's order hinges on the propriety of the Regional Director's finding with respect to the issue of whether the district managers were employees within the meaning of the Act.
It is axiomatic that the Board is accorded wide discretion in establishing the correct limits of a bargaining unit and is not subject to reversal unless it is arbitrary and capricious in the exercise of its discretion. NLRB v. Waukesha Lime & Stone Co., 7 Cir., 343 F.2d 504, 507 (1965); NLRB v. Weyerhaeuser Company, 7 Cir., 276 F.2d 865, 869 (1960), and cases cited therein, cert. denied, 364 U.S. 879, 81 S. Ct. 168, 5 L. Ed. 2d 102. The finding reached in the instant case with respect to the question of whether the district managers were employees and constituted an appropriate bargaining unit "must be sustained if it is supported by substantial evidence on the record ...