Gibson County Electric Membership Corp.

National Labor Relations Board - Board Decisions

Feb 1, 1946

65 N.L.R.B. 760 (N.L.R.B. 1946)

In the Matter of GIBSON COUNTY ELECTRIC MEMBERSHIP CORPORATION
and LOCAL UNION B-835, INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR
Case No. 15-R-1.05.Decided February 1, 1946
Mr. LeRoy Marceau, for the Board.
Mr. J. Frank Warmath, of Humboldt, Tenn., and rllr. Floyd Jones,
of Trenton, Tenn., for the Company.
Mr. Gordon Freeman, of Chattanooga, Tenn., Mr. Joe Barham, of
Jackson, Tenn., and Mr. C. McMillian, of Knoxville, Tenn., for the
IBEW.
Mr. Sidney Grossman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local Union B-835, International
Brotherhood of Electrical Workers, affiliated with American Federa-
tion of Labor, herein called the IBEW, alleging that a question affect-
ing commerce had arisen-concerning the representation of employees
of Gibson County Electric Membership Corporation, Trenton, Ten-
nessee, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Horace
A. Ruckel, Trial Examiner. Said hearing was held at Jackson, Ten-
nessee, on May 15 and 16, 1945. The Company and the IBEW
appeared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the hearing, the Trial Examiner
reserved ruling upon the Company's objections to the introduction into
evidence of Board Exhibits 16 to 33, inclusive, and Board Exhibit 72.1
The Company's objections to the introduction of these exhibits are
overruled. Board Exhibits 16 to 33, inclusive, and 72 are hereby
'Board Exhibits 16-33 , incluside, consist of Board correspondence addressed to cer-
tain consumers of the Company and to the Hickman-Fulton Counties Rural Electric Co-
operative Corporation , a TVA distributor , for the purpose of securing information relating °
to commerce , the responses thereto , and two tabulations recapitulating the data received
65 N. L. R. B., No. 126.
760
GIBSON COUNTY 'ELECTRIC- MEMBERSHIP CORPORATION 761
received'iin.evidence. The Trial Examiner's rulings made- at the hear-
ing are free from prejudicial error and are hereby affirmed. All par-
ties were afforded an opportunity to file briefs with the Board. On
October 11, 1945, oral argument was heard before the Board at Wash-
ington, D. C. All parties appeared by counsel and participated in
the argument. ,
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
S
1. THE BUSINESS OF THE COMPANY
Gibson County Electric Membership Corporation, a Tennessee cor-
poration, is a retail distributor of electric energy purchased at whole-
sale rates from the Tennessee Valley Authority, herein called the
TVA. It is a non-profit corporation organized as a result of the
National effort to extend electrification to areas heretofore undeveloped
in this field. It receives financial assistance in the form of substantial
loans from the Rural Electrification Administration, an instrumen-
tality created by Congress to facilitate the distribution of power
through cooperative agencies and other enterprises, as well as from
the TVA.2 It services parts of seven counties within western Tennes-
see.3 As of January 1945, the Company had 4,039 rural and 2,469
urban consumers; 4 almost all of •its consumers are members of the
corporation.
TVA generates electric current by means of numerous hydroelec-
tric generating plants geographically spaced along the Tennessee
River and its tributaries which flow through parts of 7 States in the
Tennessee Valley area. It also generates power through various steam
plants, of which 5 are located in Tennessee and 1 in Alabama. Of
its hydroelectric plants, 13 are in Tennessee , 3 in Alabama, 2 in North
Carolina, and 1 each in Georgia and Kentucky. These plants are in-
terconnected through a system of transmission lines and are inte-
grated in their operations with the interstate functioning of TVA's
multiple purpose waterway system designed primarily to facilitate
navigation and control floods. Although TVA's generation of electric
energy in western Tennessee through its Pickwick hydroelectric plant
and its Memphis steam plant generally exceeds the quantity dis-
2 The Tennessee Valley Authority Act, 48 Stat. 58, and the Rural Electrification Act, 49
Stat. 1363 , authorize preferences to cooperatives.
'Other distributors who secure electric energy from the TVA also serve the Counties in
which the Company operates ; in some instances , they distribute power within part of the
Company's service area.
4 Although the area served by the Company is predominately agricultural , a substantial
portion of its power is used by 27 agricultural processing consumers and 3 industrial
consumers
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributed in this area by its distributors, including the Company, and
electric energy delivered to the Company is metered within the Com-
pany's service area for billing purposes, the record discloses that all
of TVA's transmission lines serve the Company and that the Company
is directly serviced through a line extending from the Kentucky hydro-
electric plant in Kentucky to Martin, Tennessee, in addition to lines
extending from the Pickwick and Memphis plants. The record also
reveals that 16 miles of the Company's distribution lines are used by
TVA for the purpose of delivering power to the Hickman-Fulton
Counties Rural Electric Cooperative Corporation for distribution
predominately in Kentucky."
During the fiscal year ending June 30, 1944, the Company pur-
chased materials amounting to approximately $4S,574 in value, of
which approximately 12 percent was secured from sources outside the
State of Tennessee. During the same period, its purchases of electric
energy from TVA amounted to approximately $118,088 in value .s
For the 6-month period ending June 30, 1944, the Company's distribu-
tion of electric energy to agricultural processing consumers and to
industrial consumers amounted to 25 percent and 3.2 percent, respec-
tively, of its total distribution of power.? During this period, products
transported to points outside the State of Tennessee by seven agricul-
tural processing plants which collectively use approximately 96 per-
cent of the power purchased of the Company by such plants, consti-
tuted from approximately 41 percent to 100 percent of the total dollar
value of their shipments; materials secured from sources outside the
State of Tennessee by agricultural processing plants which consume
about 49 percent of the power received of the Company by such plants,
aggregated approximately 19 percent to 60 percent of the total dollar
value of their purchases. Similarly, two industrial consumers, which
use approximately 89 percent of company power purchased by such
concerns , shipped approximately 90 percent of the total dollar value of
their shipments to points outside the State of Tennessee, and purchased
almost all of their materials from sources outside the State. The
Company also sells a small amount of power for lighting and other
purposes to two railroads engaged in interstate transportation, and to
federal agencies within its service area.'
The power is delivered by TVA in western Tennessee just inside the Kentucky -Tennes-
see border . During the year 1944 , Hickman -Fulton's power purchases amounted to
1,425,587 kwh.
8 During the year 1944 power delivered by TVA for the account of the Company amounted
to 21,846,609 kwh.
T For the 6-month period ending June 30, 1944 , the Company 's total distribution of
power amounted to 8,589,027 kwh ; of this industrial consumers used 278,661 kwh and
agricultural processing consumers used 2,162,075 kwh.
8 Federal agencies served by the Company consist of the Department of Interior, Fish
and Wild Life Service, and various local offices of the Post Office Department.
GIBSON COUNTY ELECTRIC MEMBERSHIP CORPORATION 63
In summary of the foregoing, it is thus clear (1) that a large area in
Tennessee is dependent upon the Company for the distribution of elec-
tric energy and that within such area instrumentalities of interstate
commerce, including railroads and federal agencies, as well as manu-
facturers and agricultural processors who sell a substantial portion of
their products in interstate commerce and secure substantial quantities
of their materials from sources other than Tennessee are dependent
upon the Company as their source of electric energy, (2) that part of
the Company's distributing lines are used by TVA for the transmis-
sion of electric energy for distribution in Kentucky, (3) that although
the Company is directly served by the Memphis and Pickwick plants in
western Tennessee, these plants are but part of the generating system of
TVA which services the Company through all of its transmission lines
and also furnishes the Company with direct line service from its Ken-
tucky hydroelectric plant in Kentucky, (4) that the Company secures
a portion of its materials from sources outside of Tennessee. Upon
the entire record, we are of the opinion that a cessation or interruption
of the Company's business, such as would tend to accompany labor
disputes between the Company and its employees (1) would affect the
flow of electric energy and other commodities received by the Company
in interstate commerce; and (2) would burden and obstruct not only
the operations of various instrumentalities engaged in interstate trans-
portation and in the interstate distribution of power but also the oper-
ation of the business firms served by the Company which manufacture,
process, and ship commodities in interstate commerce and receive sub-
stantial quantities of materials through interstate channels. Accord-
ingly, we find, contrary to the Company's contention, that it is engaged
in commerce within the meaning of the National Labor Relations Act.
In support of the Company's contention that it is not subject to
the Board's jurisdiction, the Company maintains that a strike called
by its employees in 1944 did not interfere with interstate commerce.
In this connection, it also asserts that other sources of labor were avail-
able during the pendency of the strike and that those of its customers
who are engaged in commerce have access to other sources for their
power supply. Such factors, however, are not conclusive.0
The Company also disputes the jurisdiction of the Board for the
reason that it is a non-profit cooperative. However, the non-profit and
cooperative character of the Company does not withdraw it from the
ambit of the Act 10
9 See N. L. R. B. V . Bradford Dyeing Association, 310 U . S. 818; N. L. R. B. v. Western
Massachusetts Electric Co, 120 F. (2d) 455 (C C. A 1) ; Pueblo Gas & Fuel Co. v. N. L.
R. B., 118 F. (2d) 304 ( C C A. 10 ) ; N. L. R. B. V. Henry Levaur, Inc. 115 F. ( 2d) 105
( C C. A. 1 ) ; Southern Colorado Power Co. v. N. L. R B., 111 F. (2d) 519 ( C C. A 10).
10 See Associated Press v . N. L. R. B., 301 U . S. 103; Matter of Rutland Court Owners,
Inc., 44 N . L. R B 587; Matter of Utah Poultry Producers Cooperative Association, 15
N. L. R. B. 534.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Local Union B-835, International Brotherhood of Electrical
Workers, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In July 1944, the IBEW requested recognition as the exclusive bar-
gaining representative of certain of the Company's employees. The
Company refused to accord it recognition.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the IBEW represents a substantial number of
employees in the unit hereinafter found' appropriate 11
We find that,a question, affecting,, commerce has arisen. concerning
the representation of employees of the Company within the meaning
of Section.9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The IBEW requests it unit consisting of linemen-first class, linemen-
second class, apprentice linemen, line helpers, groundmen, truck
drivers, and foremen, at the Company's Trenton, Tennessee, plant,
e4cluding supervisory employees. The Company takes no position
with respect to the genera] composition of the unit, but would exclude
the foremen.
The Company has in its employ four foremen who direct the work
of from one to six employees. The IBEW would include them in the
unit as non-supervisory employees. Although foremen perform some
maintenance work and will not, in the event approval is secured from
government stabilization agencies, earn a higher wage rate than line-
men-first class, their duties are mainly concerned with supervising the
work of other employees and assuming responsibility for the comple-
tion of the job. As part of their duties, they make reports regarding
employee efficiency and may recommend the promotion and hiring of
employees; recently the Company engaged two men recommended by
foremen. Upon the evidence presented, we are of the opinion that the
foremen possess the kind of authority denominated supervisory by the
Board. Accordingly, we shall exclude-them from the unit.
We find that linemen-first class, linemen-second class, apprentice
linemen, line helpers, groundmen, and truck drivers, at the Company's
Trenton, Tennessee , plant, excluding the manager, foremen, and all
or any other supervisory employees with authority to hire, promote,
u The Field Examiner reported that the IBEW submitted 14 authotization cards, all
-of which bore dates in July 1944 , in an alleged appropriate unit consisting of 14 employees.
GIBSON COUNTY ELECTRIC MEMBERSHIP CORPORATION 765
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section, 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Gibson County
Electric Membership Corporation, Trenton, Tennessee, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Fifteenth Region,
acting in this matter as agent for the National Labor Relations Board
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among the employees in the unit found appropriate in Sec-
tion Ili, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including employees who
did not work during said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding any who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of
the election, to, determine whether or not they desire to be represented
by Local, Union B-835, International Brotherhood of Electrical
Workers, affiliated with the American Federation of Labor, for the
lurposes of collective bargaining.