Natchez Trace Electric Power Association

National Labor Relations Board - Board Decisions

Nov 2, 1971

193 N.L.R.B. 1098 (N.L.R.B. 1971)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Natchez Trace Electric Power Association and Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 26-RC-3971
November 2, 1971
DECISION ON REVIEW
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On May 19, 1971, the Regional Director for Region
26 issued a Decision and Direction of Election in
which, inter alia, he rejected the Employer's conten-
tion that it is a political subdivision of the State of
Mississippi and, therefore, exempt from the jurisdic-
tion of the National Labor Relations Board. Thereaft-
er, the Employer filed a timely request for review and
supporting brief, in which it urged, inter alia, that the
Regional Director erred in finding that it is an
employer as defined in Section 2(2) of the National
Labor Relations Act, as amended.
The Board by telegraphic order dated June 14, 1971,
granted the request for review as it relates to the
jurisdictional issue stated and denied it in all other
respects. Thereafter, the Employer filed a supplemen-
tal brief and the Petitioner filed a brief on review.
The Board has considered the entire record in this
case with respect to the issue under review, including
the briefs on review,I and hereby affirms the Regional
Director's Decision, with the following additions:
The Regional Director's findings as to jurisdiction
are as follows:
The parties stipulated that the Association is an
electrical cooperative, chartered to do business in
the State of Mississippi, and has its main office in
Houston, Mississippi. Annually in the course and
conduct of its operations it receives gross revenues
in excess of $250,000 and also, in the course and
conduct of its business operations, purchases
electrical power valued in excess of $50,000
directly from points located outside the State of
Mississippi.
The Employer, however, contended at the
hearing that it is a "quasi-governmental" agency
or a political subdivision of the State of Mississippi
and is not, therefore, subject to the Board's
jurisdiction. The Petitioner contends that the
Association is an employer engaged in interstate
commerce within the meaning of the Act.
The Association distributes electrical power to a
geographical area within the State of Mississippi
covering the counties of Chickasaw, Pontotoc,
Webster, Calhoun, Clay, Yalobusha, and Grena-
da. The Association is a nonprofit organization
i As the parties ' briefs adequately present the issues under review, the
Employer's request for oral argument is hereby denied
making no distribution of profits to its members,
who join by paying a $10 membership fee and
requesting service. The Association is governed by
a Board of Directors which is elected by the
membership, and no member of the Board of
Directors is appointed by any government official
or organization. The General Manager of the
Association is appointed by the Board of Direc-
tors. The Association has the authority to own,
hold, maintain, sell, lease , exchange, mortgage,
pledge, and in any manner dispose of any real and
personal property which may be necessary, useful,
or convenient for the carrying out and accomplish-
ing of its purpose, which is providing electricity to
its members.
Inasmuch as the Association is a public utility
doing an annual gross volume of business in excess
of $250,000, it meets the Board's commerce
standards. Sioux Valley Empire Electric Associa-
tion, 122 NLRB 92. Further, as the Association is
not a public body governed by the state or by any
officials appointed by the state, it does not fall
within the exclusion of Section 2(2) of the Act.
Lewiston Orchards Irrigation District, 186 NLRB
No. 121. It is well established that the Board takes
jurisdiction over cooperatives such as public
utilities when they meet the Board's commerce
standards. Randolph Electric Membership Corpora-
tion, 145 NLRB 160. Accordingly, I find that the
Association is an employer within the meaning of
the Act, operating within interstate commerce and
that it will effectuate the purposes of the Act to
assert jurisdiction herein.
Section 2(2) of the Act exempts from the Board's
jurisdiction "any State or political subdivision thereof
" In determining whether an entity falls within
the meaning of this provision, the Board inquires into
whether the entity either (1) was created directly by
the State, so as to constitute a department or
administrative arm of the government, or (2) is
administered by individuals who are responsible to
public officials or to the general public.
In applying the Board's standard in the recent
Hawkins County case,2 the Supreme Court found the
Natural Gas Utility District, the employer therein, to
be a political subdivision primarily because the
commissioners administering the District were ap-
pointed by an elected county judge and were subject
to removal under the State's General Ouster Law,
thereby bringing the District squarely within the
second of the Board's tests. However, the Court also
considered numerous other factors in an effort to
determine whether the District operated in a manner
"so as to constitute a department or administrative
2 N L R B. v. Natural Gas Utility District of Hawkins County, Tennessee,
402 U.S 600
193 NLRB No. 144
NATCHEZ TRACE ELECTRIC POWER ASSN. 1099
arm of the government." The Court deemed that the
following facts were relevant to the inquiry: (1) the
state statute establishing the District referred to it as a
"municipality" or "public corporation" with all of the
powers necessary for accomplishment of its purpose
capable of being delegated by the legislature; (2) the
District possessed the power of eminent domain
which could be exercised even against other govern-
mental entities ; (3) all District property and revenue
was exempt from all local taxes and from Federal
income tax ; (4) social security benefits for District
employees were voluntary; (5) the District's records
were "public records," open to inspection and the
District was required to make public disclosure of its
financial position; and (6) as indicated above, the
individuals charged with administration of the Dis-
trict's affairs were appointed by an elected public
official and subject to removal by either certain
government officials or the general public.
In the present case it is clear that the Association
does not meet either of the Board's tests. Thus, unlike
the District in Hawkins County, the Association's
members elect the board of directors which, in turn,
selects the Association's general manager. Neither the
board of directors nor the general manager is
appointed by any public official nor are they subject
to removal either by any public official or by the
general public.3 The statute which provides for the
Association's creation refers to it merely as a
"corporation" and the powers conferred upon it are
similar to those conferred upon other nonpublic
corporate entities . And while the Association may
exercise the power of eminent domain, the power may
not be exercised to acquire property of the State or
any of its political subdivisions.4 In addition, the
Association is subject to all state and local taxes, and
its operation does not appear to be subject to public
scrutiny.
From the above, and from the record as a whole, we
conclude that the Association's operations and
characteristics are insufficient to evidence the degree
of public character contemplated by the political
subdivision exemption. We find, therefore, in agree-
ment with the Regional Director, that the Association
is an Employer within the meaning of Section 2(2) of
the Act.
Accordingly, as we have affirmed the Regional
Director's finding that the Employer is not exempt
from the Board's jurisdiction as a political subdivi-
sion, we shall remand the case to him in order that he
may conduct an election pursuant to his Decision and
Direction of Election, except that the payroll period
for determining eligibility shall be that immediately
preceding the date below.5
3 Contrary to the Association 's contention , we find that it has not been
established that the directors and general manager are "public officials"
subject to removal under state law Nor does the Electric Power
Association Act provide for removal of directors by anyone outside the
Association.
e Although the Board must, of course , consider the power of eminent
domain to be an indicium of governmental status, the existence of such
power is by no means conclusive It is significant , for example , that in
Mississippi such power is also conferred on concededly private utility
companies
5 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R.B v Wyman-Gordon Co, 394 U,S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 26 within 7 days of
the date of this Decision on Review The Regional Director shall make the
list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed