Randolph Electric Membership Corp.

National Labor Relations Board - Board Decisions

Nov 21, 1963

145 N.L.R.B. 158 (N.L.R.B. 1963)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require the Company to post a notice would , in my judgment, unnecessarily stigma-
tize it , would serve no useful purpose, and might create rather than quiet labor
troubles.
CONCLUSIONS OF LAW
Respondent , by withholding certain data requested by the Union with respect to
the job evaluation factors and wage rates for specific administrative jobs, has com-
mitted an unfair labor practice affecting commerce within the meaning of Section
2(6) and (7) and Section 8(a) (1) and (5) of the Act.
ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case , I recommend that the Respondent , Curtiss-Wright Corporation,
Wright Aeronautical Division , its officers, agents, successors, and assigns , shall:
1. Cease and desist from refusing to furnish International Union, United Auto-
mobile, Aerospace , and Agricultural Implement Workers of America (UAW)
AFL-CIO, and its Local Union No. 300 , with the job evaluation factors and with
the wage rates , grades, and ranges, and other economic benefits of particular adminis-
trative employees , when requested to do so by said organization.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
Upon request of the above -named labor organization , furnish it with respect to
the particular administrative employees or jobs as to whom the request is made with
the names or number of employees in each requested job classification or title, and
with other relevant data pertaining to the classification of the job or jobs in question
ds "administrative ," including such matters as the job description , the job evaluation
factors, and the wage rate , grade, and range, and other economic benefits pertaining
to the job or jobs.
Randolph Electric Membership Corporation and International
Brotherhood of Electrical Workers, Local Union No. 485,
affiliated with International Brotherhood of Electrical Work-
ers, AFL-CIO . Case No. 11-CA-53149. November 21, 1963
DECISION AND ORDER
Upon a charge duly filed on May 23, 1963, by the Union as Charging
Party against Randolph Electric Membership Corporation, the Re-
spondent, the General Counsel for the National Labor Relations Board
by the Regional Director for the Eleventh Region, issued a complaint
and notice of hearing on June 14, 1963, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (5) of the Act.
Copies of the complaint, the charge, and notice of hearing were duly
served upon the Respondent and the Charging Party.
With respect to the unfair labor practices, the complaint alleged
that on or about May 10, 1963, the Charging Party had been certified
in Case No. 11-RC-1738 as the exclusive collective-bargaining repre-
sentative of Respondent's employees in an appropriate unit of produc-
tion and maintenance employees, as the result of an election conducted
on May 2 which the Union won; and that commencing on or about
May 20 the Respondent refused to bargain with the Union as the said
exclusive bargaining representative.
145 NLRB No. 10.
RANDOLPH ELECTRIC MEMBERSHIP CORPORATION 159
On July 11, 1963, the parties entered into a stipulation which pro-
vides in pertinent part that the parties waive their rights to a hearing
and to the issuance of a Trial Examiner's Intermediate Report and
Recommended Order (known since amendment of the Board's Rules
effective September 3, 1963, as,a Trial Examiner's Decision). In lieu
thereof the parties stipulated that the entire record of this proceeding
shall consist of the stipulation, the charge, the complaint and notice of
hearing, the answer, the affidavits of service, and the exhibits referred
to and incorporated by reference in the stipulation.
By an Order issued on July 19, 1963, the Board approved the afore-
said stipulation, made it a part of the record herein, and transferred
the matter to, and continued it before, the Board.
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 [Members Leedom, Fanning, and
Brown].
Upon the basis of the aforesaid stipulation, and the entire record
in the case, including the brief filed by the Respondent,' the Board
makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent was incorporated in January 1939 under the pro-
visions of the North Carolina Electric Membership Corporation Act
and is engaged in the business of distributing and selling central sta-
tion electric power to its members in a multicounty area wholly within
the State of North Carolina, servicing its members in Alamance,
Chatham, Moore, Montgomery, and Randolph Counties. It receives
financial assistance in the form of substantial loans from the Rural
Electrification Administration, an instrumentality created by Congress
to facilitate the distribution of power through cooperative agencies
and other enterprises. It purchases its power from Carolina Power
and Light Company, a private utility, and from the Southeastern
Power Administration, an agency of the Federal Government. These
purchases in 1961 amounted to $279,000 and $70,000, respectively. Its
membership is approximately 95 percent residential and farm with the
balance commercial, institutional, and industrial. During the year
1960 the Respondent did a gross volume of business of approximately
$829,000, and for the 9 months ending September 30, 1962, approxi-
mately $687,000.
We find that gat all times material herein the Respondent has been
engaged in commerce within the meaning of Section 2(6) and (7) of
1 The Respondent 's request for oral argument is hereby denied inasmuch as the record
and its brief , in our view, adequately present its position.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, and that it will effectuate the policies of the Act to assert
jurisdiction in this case.2 The facts concerning the alleged exemption
of the Respondent as an Employer under Section 2(2) of the Act
are discussed hereinafter.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union No.
485, affiliated with International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
HI. THE APPROPRIATE UNIT
In accordance with the certification issued in Case No. 11-RC-1738,
referred to above, we find that all production and maintenance em-
ployees employed by the Respondent at Asheboro, North Carolina,
excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective-bargaining within the meaning of Sec-
tion 9(b) of the Act.
IV. THE CERTIFICATION AND REFUSAL TO BARGAIN
In an election held on May 2, 1963, pursuant to petition filed No-
vember 29, 1962, by the Charging Party herein in Case No. 11-RC-
1738, the tally showed a vote of 17 employees for the Union, 11 against,
and 1 challenged ballot. The Respondent had theretofore requested
review of the Regional Director's Decision and Direction of Election
on the principal ground already urged at the hearing, and now urged
again in this complaint proceeding, that it is a political subdivision
of the State of North Carolina and hence exempt from the provisions
of the National Labor Relations Act. Review was denied by the
Board, the aforesaid election was held, and on May 10, 1963, the Union,
Charging Party herein, was certified by the Acting Regional Direc-
tor as the collective-bargaining representative of the employees in the
appropriate unit described in paragraph III, above.
By letter of May 10, 1963, the Charging Party requested a bargain-
ing meeting, and by letter of May 20, 1963, the Respondent refused
that request because of its belief that the Act is inapplicable to it.
At the same time the Respondent expressed a desire to resolve the legal
question involved promptly.
The Respondent has presented to the Board the same arguments
advanced in the representation case, although now in greater detail.
These arguments have again been carefully considered, but no reason
appears for changing the Board's earlier conclusion that the Respond-
2 Siour Valley Empire Electric Association, 122 NLRB 92, 94.
RANDOLPH ELECTRIC MEMBERSHIP CORPORATION 161
ent is not a political subdivision of a State within the meaning of Sec-
tion 2 (2) of the National Labor Relations Act'
The Respondent electric membership corporation is organized to
supply electric utility service to its members without pecuniary profit
to the corporation. This is the function which electric cooperative
associations generally perform. It is well established that the Board
takes jurisdiction over such cooperatives as public utilities when they
meet the Board's commerce standards.'
The Respondent contends, however, that it is not the customary
cooperative inasmuch as the North Carolina statute under which it is
organized specifically declares that an electric membership corporation
is a "public agency" with the "same rights as any other political sub-
division of the State." 5 This statutory designation as a public agency
is, of course, a factor to be weighed carefully' by the Board. We do not
think, however, that this declaration should be controlling when, as
here, the corporation sought to be exempt as a political subdivision of
the State is not created directly by the State, or administered by State-
appointed or publicly elected individuals.' One or both of these fac-
tors have been present in those cases where, over the years, the Board
has held that it had no jurisdiction of various governmental em-
ployers.7 In addition, we note that the North Carolina statute reserves
3 Section 2(2) reads in part : "The term 'employer ' . . . shall not include . . . any
11State or political subdivision thereof . . . .
* Since 1958 the Board has taken jurisdiction over public utilities doing a gross volume
of business of $250,000 per annum , or alternatively , having an outflow or inflow of goods,
materials , or services , whether directly or indirectly across State lines, of $50,000 per
annum. See the Sioux Valley case , footnote 2, above, involving a rural electric cooperative.
5Gen. Stat. of N.C , chap. 117, sec. 19, Declared public agency of State; taxes and
assessments.
Whenever an electric membership corporation is formed in the manner herein pro-
vided, the same shall be, and is hereby declared to be a public agency, and shall have
within its limits for which it was formed the same rights as any other political sub-
division of the State , and all property owned by said corporation and used exclusively
for the purpose of said corporation shall be held in the same manner and subject to
the same taxes and assessments as property owned by any county or municipality of
the State so long as said property is owned by said electric membership corporation
and is used for the purposes for which the corporation was formed . ( 1935, c. 291,
s. 14.)
6 The North Carolina Rural Electric Authority, as distinguished from electric member-
ship corporations such as this Respondent , is created directly by the State and admin-
istered by members appointed by the governor . In turn, the Authority grants permission,
in rural areas inadequately served with electricity, for the formation of membership cor-
porations to supply electric energy. Permission having been obtained by interested parties,
a corpoartion is formed by the filing of a certificate by "natural " persons, and the corpo-
ration is governed by a board of directors who qualify by being members selected by the
membership. No supervision of the corporation is reserved to the Authority , and no con-
trol of operations is reserved to the Authority except that the Authority has the right of
eminent domain in the corporation 's behalf and is empowered to act as the corporation's
agent in obtaining loans from the Federal Government . See Gen . Stat . of N.C., chap. 117,
arts. 1 and 2.
7 See Mobile Steamship Association , at at., 8 NLRB 1297 , where the State Docks Com-
mission , one of the employers was directly created by the State of Alabama ; Oxnard
Harbor District , 34 NLRB 1285 , a harbor district organized by district residents under a
general enabling act of California , but governed by a board of commissioners elected for
734-070-64-vol. 145-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the State-or its Rural Electric Authority-no supervision and no
substantial control of the operations of electric membership corpora-
tions. Formed for the exclusive benefit of its own members, the Re-
spondent itself does not have the power of eminent domain; it is not
empowered to exercise any portion of the sovereign power of the
State of North Carolina. In the circumstances we find that the statu-
tory declaration that this electric membership corporation has the
rights of a political subdivision is not a sufficient basis for exempting
it from the coverage of the National Labor Relations Act 8 Accord-
ingly, we find that the Respondent is an employer within the meaning
of Section 2(2) of the National Labor Relations Act, and that its re-
fusal on,and after May 20, 1963, to bargain with the certified exclusive
bargaining representative of its employees constitutes a violation of
Section 8 (a) (5) and (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth above, occurring in con-
nection with the operations described in paragraph I, above, has a
close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tends to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
a term of office by qualified voters of the district ; New Jersey Turnpike Authority (Case
No. 2-RC-2245 , April 16 , 19554 ), an authority directly created by the legislature and
governed by members appointed by the governor with advice and consent of the senate;
New Bedford , Woods Hole, Martha's Vineyard, and Nantucket Steamship Authority, 127
NLRB 1322 , a body corporate created by Massachusetts , consisting of members appointed
and removed by the governor with the advice and consent of the executive council.
s In its brief the Respondent states that the Supreme Court of North Carolina has had
no occasion to construe the specific section containing this declaration . Also it appears
that no court test has been sought of the 1959 legislation ( Gen. Stat. of N C., chap. 95,
sees 97-99 ) malting it a misdemeanor for State and State agency employees who are
"engaged exclusively in law enforcement or fire protection activity " to join an affiliated
labor organization , and declaring invalid any contract between such an agency and a labor
union covering any "public employees " of such agency . Although the Respondent asserts
the contrary , we note that this legislation appears to have no application to the type of
employee sought to be bargained for in this case.
Respondent ' s argument that its status as a public agency and political subdivision has
been recognized in rulings of the attorney general of North Carolina and also by the
United States Treasury Department , we do not consider persuasive in determining the
problem before the Board . The rulings by the State attorney general are not binding on
us in interpreting the Federal statute we administer . Concerning that ruling of the
Treasury Department exempting the Respondent from the payment of Federal income
taxes, we note that many electric cooperatives over which the Board asserts jurisdiction
may also qualify as organizations exempt from Federal income tax. See Internal Revenue
Code of 1954 , sec 501(c)12.
RANDOLPH ELECTRIC MEMBERSHIP CORPORATION 163
The Board , upon the basis of the foregoing facts and the entire
record, makes the following:
CONCLUSIONS OF LAW
1. Randolph Electric Membership Corporation is an employer
within the meaning of Section 2 (2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union
No. 485, affiliated with International Brotherhood of Electrical Work-
ers, AFL-CIO, is a labor organization within the meaning of the Act.
3. All production and maintenance employees employed by the
Respondent at Asheboro, North Carolina, excluding office clerical em-
ployees, professional employees , guards, and 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 amended.
4. At all times since certification by the Acting Regional Director
on May 10, 1963, the Union has been and now is the duly selected,
designated , and exclusive representative of all production and main-
tenance employees in the aforesaid appropriate unit within the mean-
ing of Section 9 (a) of the Act, as amended.
5. By failing and refusing on and after May 20, 1963, to bargain in
good faith with International Brotherhood of Electrical Workers,
Local Union No. 485, affiliated with International Brotherhood of
Electrical Workers, AFL-CIO, as the exclusive bargaining representa-
tive of employees in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices violative of
Section 8( a) (5) of the Act, and also derivatively in violation of Sec-
tion 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
amended Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of
the National Labor Relations Act, as aanended, the National Labor
Relations Board hereby orders that the Respondent , Randolph Elec-
tric Membership Corporation , its officers , agents, successors , and as-
signs , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local Union No. 485, affiliated with In-
ternational Brotherhood of Electrical Workers, AFL-CIO, as the
certified exclusive bargaining representative of all production and
maintenance employees in the appropriate unit herein set forth.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interfering in any related manner with the efforts of said
Union to bargain collectively on behalf of the employees in the said
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 Union No. 458, affiliated with Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the cer-
tified exclusive representative of the employees in the bargaining unit
described herein, with respect to wages, rates of pay, hours of employ-
ment, or other terms or conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed by the Em-
ployer at Asheboro, North Carolina, excluding office clerical em-
ployees, professional employees, guards, and supervisors as defined
in the Act.
(b) Post at its headquarters in Asheboro, North Carolina, copies
of the attached notice marked "Appendix." 9 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after having been duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
the receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the said Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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 :
WE WILL, upon request, bargain collectively in good faith with
International Brotherhood of Electrical Workers, Local Union
No. 485, affiliated with International Brotherhood of Electrical
Workers, AFL-CIO, as the certified exclusive representative of
MILK DRIVERS & DAIRY EMPLOYEES' LOCAL 680, ETC. 165
all employees in the bargaining unit described below with respect
to rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at Asheboro,
North Carolina, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
WE WILL NOT, by refusing to bargain as aforesaid, interfere
with, restrain, or coerce employees in the exercise of their right to
self-organization to form, join, or assist any labor organization to
bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities.
All of our employees included in the aforesaid unit are free to
become, remain, or refrain from becoming or remaining members of
any labor organization.
RANDOLPH ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, Winston-Salem, North Carolina, Tele-
phone No. 724-8356, if they have any question concerning this notice
or compliance with its provisions.
Milk Drivers and Dairy Employees ' Local 680, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind. and Durling Dairy Distributors d/b/a
Woolley's Dairy. Case No. 22-CC-197. November 21, 1963
DECISION AND ORDER
On August 16,1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
145 NLRB No. 14.