Central Electric Power Cooperative

National Labor Relations Board - Board Decisions

Aug 25, 1955

113 N.L.R.B. 1059 (N.L.R.B. 1955)

CENTRAL ELECTRIC POWER COOPERATIVE 1059
Central Electric Power Cooperative and International Broth-
erhood of Electrical Workers, Local No. 2, AFL , Petitioner.
Case No. 14-RC-2735. August 25,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Henry L. Jalette, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer, herein called Central, is a nonprofit electric
power cooperative organized in 1949 under the Rural Electric Coop-
erative law of Missouri. Central has 7 members, including 6 electric
cooperatives known as Boone, Howard, Calloway, Consolidated,
Three Rivers, and Ko-Mo, respectively,' and a corporation known as
Sho-Me,2 which operates under a franchise from the Missouri Public
Service Commission; all are situated in Missouri. The Petitioner
contends that Central's operations meet the current tests established
by the Board for local public utilities or for enterprises rendering
services thereto. The Employer takes no position respecting jurisdic-
tion.
Central is owned by 6 of its members, including Sho-Me, and is
directed by a board of directors composed of 2 individuals selected by
each of its members. Central's construction was financed by the Rural
Electrification Administration. Central is engaged in the purchase
and generation of electric power and its distribution at wholesale to
its operating members, who in turn resell the power at retail to con-
sumers, including farm families and municipalities. Central's pur-
chases of power are from Southwest Power Administration. All of
Central's power lines are situated in the State of Missouri except for
13 miles in the State of Arkansas, over which is transmitted the power
purchased by Central. Central has no operations or employees in
Arkansas and distributes all of the power it sells at points in Missouri.
In 1954, Central purchased power valued at $1,300,000. During the
same period, Central sold power valued at $1,775,182.50, of which
$1,008,000 represents sales to Sho-Me; $450,000 represents sales to the
other members ; $100,000 represents income from the rental of its lines ;
'Boone Electric Cooperative, Columbia, Missouri ; Howard Electric Cooperative, Fay-
ette, Missouri, Calloway Electiic Cooperative, Fulton, Missouri; Consolidated Electric
Cooperative, Mexico, Missow i ; Three Rivers Electric Cooperative, Linn, Missouri ; and
Ko-Mo Electric Cooperative, Tipton, Missouri
' Sho-Me Power Corporation, Maishfield, Missouri. Sho-lie is wholly owned by 11 dis-
tribution cooperatives, save for nine qualifying shares. It furnishes power to those coop-
eratives, to municipalities at wholesale, and to 7,000 customers at retail. The 11 coopera-
tives furnish electric service to farm families at retail.
113 NLRB No. 104.
t
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the remainder represents income from the sale of power to South-
west Power Administration.
For the fiscal year ending June 30, 1953, Boone, Howard,. Calloway,
Consolidated, and Three Rivers had a total volume of business of
$1,459,519; Ko-Mo had a total volume of business of $464,000; and
Sho-Me had a total volume of business of $1,750,398, making a total
volume,of business for all members in the amount of $3,673,917. Coma
merce figures for these companies for 1954 were not adduced in the
record.
In Greenwich Gas Company and Fuels, Incorporated, 110 NLRB
564, the Board (Members Murdock and Peterson dissenting) decided
that in future cases it would assert jurisdiction over local public utility
and transit systems affecting commerce whose gross volume of business
is $3,000,000 or more per annum. In Clay Electric Cooperative, Inc.,
111 NLRB 175, the Board held that "REA" cooperatives are analo-
gous to local public utilities for Board jurisdictional purposes and
therefore subject to the test set forth in the Greenwich Gas case for
local public utilities.
In our opinion, it was not the intention of the Board to include
wholesale electric cooperatives such as Central within the scope of its
local public utility test. On the contrary, we believe that for jurisdic-
tional purposes such wholesale cooperatives are more analogous to those
intrastate enterprises over which the Board asserts jurisdiction in
accordance with the tests set forth in Jonesboro Grain Drying Coop-
erative,110 NLRB 481, than to local public utilities and retail, electric
cooperatives, which, unlike wholesale cooperatives, customarily and
traditionally serve the consuming public or segments thereof.
Accordingly, we hereby modify the Board's test for the assertion
of jurisdiction over local public utilities, as originally set forth in
the Greenwich Gas case, as follows : in all future cases, the Board will
assert jurisdiction over local transit systems, local retail public utility
systems, and local retail electric cooperatives affecting commerce whose
gross volume of business is $3,000,000 or more per annum; and will
assert jurisdiction over wholesale electric utilities in accordance with
the standards in the Jonesboro case.
As Central's annual direct inflow of power from outside the State
exceeds the minimum figure of $500,000 established by the Board for
the assertion of jurisdiction over intrastate enterprises based on their
direct purchases from without a State, we find that the Employer is
engaged in commerce within the meaning of the Act, and that it will
effectuate the purposes and policies of the Act to assert jurisdiction
over the Employer in the instant case.
2. The labor organization herein involved claims to represent cer-
tain employees of the 4mployer. - . , 1 ,.. .
CENTRAL ELECTRIC POWER COOPERATIVE _ 1061
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of the Employer's linemen, engaged
in servicing the lines of the Employer's Chamois, Missouri, plant, the
Employer's sole plant. The Employer contends that the Petitioner's
unit is inappropriate, and that a single unit which includes the em-
ployees in the Chamois plant with the linemen is alone appropriate.
The Employer employs 23 employees in the Chamois plant and 11
linemen who work on the lines outside the plant. The linemen are
separately supervised and situated and do not regularly interchange
with ,the plant employees. Since July 1, 1953, Utility Workers Union
of America, CIO, has been the Board-certified representative of all
employees at the Chamois plant, excluding office and plant clerical
employees, professional employees, guards, and supervisors as defined
in the Act ; its latest contract with the Employer expired by its terms
on December 31, 1954. At the time of the certification the Employer
employed no linemen. They have not been represented in the past
and are currently unrepresented. Neither Utility Workers Union of
America, CIO, nor any other labor organization currently seeks to
represent them in any unit of larger scope. Under these circumstances,
we conclude that the Employer's linemen constitute an appropriate
residual bargaining unit.'
We therefore find that all outside construction, transmission, and
maintenance employees engaged in work on the lines of the Em-
ployer's Chamois, Missouri, plant, excluding office clerical employees,
watchmen, all other employees, and supervisors as defined in the Act,
constitute an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCIZ, concurring specially :
I concur in the assertion of jurisdiction over this electric utility
Employer because it is a liberalization, although slight, of the highly
restrictive standards for public utilities laid down a year ago in Green-
wich Gas' and is a step back in the direction of .the old de minimis
test. However I do not regard the distinction here drawn between
"wholesale" and "retail" public utilities as the basis for revising the
public utility standard to permit the assertion of jurisdiction here as
a constructive or logical one. My colleagues of the majority say in
,effect that henceforth when confronted with a wholesale public utility
they will disregard the fact that it is a public utility and give con-
8 Lee Brothers Foundry, Inc., 106 NLRB 212.
6 110 NLRB 564.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trolling effect to the adjective "wholesale ," thus applying the Jones-
boro standards for wholesalers instead of the public utility standard.
This kind of logic strikes me as of a piece with that used in Green-
berg Mercantile Corp.,5 where the majority applied the intrastate
retail standard to take jurisdiction of a part of an interstate retail
chain instead of applying the interstate retail chain standard. By the
same logic it would seem that the substantial number of public utilities
which the majority has now classified as "retail " public utilities should
have the Hogue and Knott Supermarkets 5 retail standard applied in-
stead of the public utility standard . Or, since the large number of
electric utilities that generate their own power which they sell to in-
dividual consumers , as well as to commercial concerns , may be re=
garded as 'manufacturers , and as the Jonesboro standards also govern
the Board 's assertion of jurisdiction over manufacturers , that standard
would be applied to such utilities . However, my colleagues do not
follow the reasoning which led to their modification of the Greenwich
Gas standard as it applies to "wholesale " public utilities , to its logical
conclusion with respect to the remaining "retail" public utilities.
More restrictive standards are still imposed on the majority of public
utilities than are imposed on other enterprises whose operations have
less impact on interstate commerce.
The change in the standard does serve , however, to bring into
focus the observations made in the dissenting opinion in the Green-
wich Gas case, in which Member Peterson and I joined , wherein we
stated :
It may also be noted that a yardstick which purports to test
the effect of a utility 's operations on interstate commerce solely,
in terms of the size of its gross revenue is likewise defective for
other reasons . Thus, a $3,000 ,000 utility may generate all its
power and sell all its products within one State or even one large
city, and have neither out -of-State inflow or outflow . A $2,000,000
utility, which by majority fiat has no substantial effect on com-
merce, however , may bring a substantial part of its power across
a State line and may sell across State lines, clearly having a far
greater impact on commerce in terms of its inflow and outflow.
Furthermore, it is obvious that there will be many small industrial
cities throughout the land whose manufacturers ' are dependent
for power upon utilities with gross revenues of less than $3,000,000
and whose shipment of goods in commerce could be stopped by
a cessation of power. Is the effect upon the commerce of indus-
tries which are dependent on power of a cessation of such power
any different because they happen to be located in a community
whose utility has only $1,000 ;000 in gross revenue rather than
112 NLRB 710.
110 NLRB 543.
CENTRAL ELECTRIC POWER COOPERATIVE 1063
$3,000,000? Moreover, the gross receipts standard will result in
taking jurisdiction of some utilities all of whose customers are
residential rather than industrial, while denying jurisdiction over
many utilities which have substantial number of industrial cus-
tomers dependent upon power to produce goods for interstate
commerce. A standard which is productive of such paradoxical
results is obviously, not a proper yardstick by which to measure
impact on interstate commerce.
The modification in the utility standard announced herein adds to
rather than detracts from the paradoxical results produced by the
Greenwich Gas standard.
Accordingly, without adopting the rationale of the majority; I con-
cur in the assertion of jurisdiction over the Employer because I be-
lieve that all public utilities have such an important impact on com-
merce as to warrant the Board's assertion of jurisdiction over all such
enterprises which are engaged in commerce, subject only to the rule of
de minimis.
MEMBER RODGERS, dissenting :
I would not assert jurisdiction over the Employer in this case.
The Employer, a nonprofit cooperative under the Rural Electric
Cooperative Law of Missouri, purchased in 1954 power. valued at
$1,300,000, and during the same period sold power valued at $1,775,-
182.50, most of which was to its own members within the State. The
Board held in Clay Electric Cooperative, Inc., 111 NLRB 175, that
"REA" cooperatives like the Employer, 'are analogous to local public
utilities for Board jurisdictional purposes. In Greenwich Gas Com-
pany and Fuels, Incorporated, 110 NLRB 564, the Board announced
that the minimum standard necessary for taking jurisdiction over a
public utility is $3,000,000 gross annual business. As the Employer's
gross volume of business is considerably below that figure, jurisdiction
cannot be asserted under the Board's current policy. Nor can juris-
diction be asserted over the Employer, as the Petitioner contends, on
the basis of the annual total value of business of its members since the
Employer and its members are clearly not functionally integrated with
respect to labor relations" policies or in an operational sense so as to
warrant a finding that they together constitute a single employer for
jurisdictional purposes.
The majority does not question the impact of the Clay Electric
decision on this Employer's business, and apparently finds no merit
in the Petitioner's contention that the Employer together with its
members be treated as a single 'employer. Instead, my colleagues
assert jurisdictionzby creating an exception to the policy expressed in
the',Greenwich Gas case on the basis, of the Employer being a so-called
370288-56-vol 113-68
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"wholesale" cooperative. I consider this an utterly unwarranted dis-
tinction. The Greenwich Gas criterion is based on gross volume of
business of public utilities. To assert jurisdiction over a cooperative
which fails to meet the minimum gross volume figure because it sells
to its members at "wholesale" is manifestly in derogation of the juris-
dictional standards with respect to public utilities recently adopted,
and serves only to unduly complicate, without warrant in fact or
logic, an otherwise simple rule. I disagree that any such result was
intended when the rule was adopted. Clearly, the so-called "whole-
sale" cooperative, operating, as it does, within the State, is essentially
as local and no different from any other cooperative. The majority's
distinction, in my opinion, is therefore more fancied than real.
As the Employer's annual gross volume of business is far below
the minimum figure established in Greenwich Gas, I would dismiss
the petition.
Royal Jet , Incorporated and Independent Metal Workers of
America, Petitioner. Case No. 21-RC-3922. August 25; 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Ben Grodsky, hearing officer.
The hearing officer 's rulings made at the hearing are free from prej-'
udicial error and are hereby affirmed.'
The Employer and Sheet Metal Workers International Association, Local Union No.
170, AFL, contend that the Petitioner has failed to make a proper. showing of interest as-
serting that the showing may be tainted with fraud . Where, as here, parties are advised at
the hearing that evidence of fraud in procurement of cards may be adduced before the Re-
gional Director and fail to do so , there is no warrant for further inquiry into their authen-
ticity. Under all the circumstances , we are administratively satisfied that the Petitioner's
showing of interest is sufficient . See Fox Manufacturing Company, 112 NLRB 977; Poto-
mac Electric Power Company, 111 NLRB 553 -
The Employer and Intervenor moved to dismiss or remand this proceeding because of
the hearing officer ' s prejudicial error in (1) , Refusing evidence to prove that the Peti-
tioner 'was not a labor . organization and, in effect , ruling that the Petitioner was a labor
organization ; ( 2) permitting the Petitioner to amend the unit description to conform
with that in the Intervenoi ' s contract ; ( 3) denying the Intervenor 's motion to dismiss;
and (4 ) closing the record before the Board ruled on the motions made at the hearing.
As to ( 1), we agree that the hearing officer erroneously restricted the attempts to present
evidence pertaining to the status of the Petitioner as a labor organization because it is a
proper issue to be investigated at the hearing and to be determined by the Board. How-
ever , we find no prejudicial error because the hearing officer made no such determination
and because the record reveals sufficient evidence upon which the Board can make such
a determination . As to ( 2), the hearing officer did not abuse his discretion in permitting
the unit amendment , nor was anyone prejudiced because the parties were afforded full
opportunity to litigate the unit issues As to ( 3), Section 102 57 of the Board's Rules
and Regulations provides that motions to dismiss be referred to the Board for disposition.
The hearing officer inadvertently denied the Intervenor ' s motion to dismiss but promptly
corrected his error and referred the motion to the Board We do not believe that this
constitutes prejudicial error . As to ( 4), the hearing examiner properly closed the record
at the end of the hearing without waiting for the Board 's determination of motions made
on the record . In accord with Section 102 59 of the Board's Rules and Regulations, the
Regional Director forwarded the entire record , including rulings and motions, for review
113 NLRB No. 101.