North Arkansas Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1967

168 N.L.R.B. 921 (N.L.R.B. 1967)

NORTH ARKANSAS ELECTRIC COOPERATIVE
North Arkansas Electric Cooperative , Inc. and
International Brotherhood of Electrical Workers,
AFL-CIO. Cases 26-CA-2585 and 26-CA-2620
December 18,4967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 13, 1967, Trial Examiner Lowell Goer-
lich issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief. The General Counsel filed cross-exceptions
and a supporting brief to which the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
cross-exceptions, the briefs and the entire record in
the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Exam-
iner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, North Arkansas Electric
Cooperative, Inc., Salem, Arkansas, and its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
1 As we agree with the Trial Examiner that Lenox is not a managerial
employee, we do not reach the issue or pass upon the Trial Examiner's
statements concerning the applicability of the Act to the Union or other
concerted activities of managerial employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: Upon charges
filed by the International Brotherhood of Electrical Work-
921
ers, AFL-CIO, herein called the Union , the General
Counsel of the National Labor Relations Board , herein
called the Board , on behalf of the Board , by the Regional
Director for Region 26, on January 13, 1967, issued an
order consolidating cases, consolidated complaint and
notice of hearing, in which consolidated complaint the
North Arkansas Electric Cooperative , Inc., was named
as the Respondent . In the complaint it was alleged that
the Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) of the National Labor Rela-
ions 'Act, as amended , herein called the Act. Respondent
filed timely answer in which it denied that it had engaged
or was engaging in the unfair labor practices as alleged.
The consolidated cases came on for hearing at Salem,
Arkansas, on March 7 , 8, 9, and 10 , 1967 . On March 10,
the cases were continued until April 6 , 1967. In the
meantime , issues relating to Case 26-CA-2620 were set-
tled by the parties and a motion to sever and to withdraw
portions of the consolidated complaint was filed by the
General Counsel and a motion to the Trial Examiner for
severance of consolidated cases and' consolidated com-
plaint and for dismissal of Case 26-CA-2620 was jointly
filed by the Respondent and the Charging Party. Upon
consideration of the motions , the Trial Examiner ap-
proved the settlement which was proposed by the parties
and which had been complied with and granted the
Charging Party leave to withdraw its charge and dismiss
complaint and dismissed those parts of the consolidated
complaint which referred to Case 26-CA-2620, being
paragraphs 1(b), (c), and (d) and paragraphs 7 through 16,
paragraph 18, and those portions of paragraphs 19, 20,
and 21 which refer to any paragraph other than paragraph
17 in the consolidated complaint . The hearing proceeded
on the remaining allegations in the consolidated com-
plaint on April 6 and 7, 1967, at Salem , Arkansas.
At the hearing each party was afforded a full opportuni-
ty to be heard, to call , examine and cross -examine wit-
nesses, to argue orally upon the record , to submit
proposed findings of fact and conclusions of law, and to
file briefs . All briefs have been reviewed and considered
by the Trial Examiner . Upon the whole record ' and upon
his observation of the witnesses , the Trial Examiner
makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, North Arkansas Electric Coopera-
tive, Inc., is now and has been at all times material herein
an Arkansas corporation, with its principal office in
Salem, Arkansas, and district offices in Evening Shade,
Mountain Home, and Salem, Arkansas. Respondent, a
public utility, is engaged in the distribution and sale of
electrical power and electrical services in northern Ar-
kansas. It provides electrical services and power to its
9,000 member-customers in six counties in North Arkan-
sas, with over 2,700 miles of electrical lines in existence.
The Respondent employs 55 people.
' In'reaching his decision herein the Trial Examiner has considered
only those parts of the record which are pertinent to the allegations of
consolidated complaint remaining after the granting of the aforesaid mo-
tions.
168 NLRB No. 122
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The general organizational structure of the Respondent
consists of:
Board of Directors: Responsible for setting the
general policies
General Manager: Responsible for overall opera-
tions, with seven staff departments under his super-
vision:
District Offices-Salem, Mountain Home,
and Evening Shade: Responsible for construc-
tion, maintenance, and operation of physical
plants within the three districts
Management Services Department
Member Services Department
Office Services Department
Engineering Department
All of the seven staff departments under the supervi-
sion of the general manager are responsible for the opera-
tions within their respective department.
The board of directors, who is elected by the member-
ship at annual meetings, governs the Respondent, sets its
policies, sets the guidelines, and hires the general
manager. During the period herein involved Jack
Cochran was the general manager and Boyce Drake was
the district manager at Mountain Home, Arkansas.
During the past 12 months, the Respondent, in the
course and conduct of its business, received in excess of
$250,000 gross revenues for service performed. The
Respondent admits and the Trial Examiner finds that the
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: The principal question before the Trial Ex-
aminer is whether Electrification Advisor Jack Lenox,
who was discharged by the Respondent "[b]ecause he
had been asked to remain neutral and he disobeyed," was
a managerial employee, whose duties and authority were
of such a kind as to exclude him from the coverage of the
Act. The pertinent facts in this regard are as follows.
Shortly prior to August 18, 1966, the date upon which
the Union filed a petition for certification of representa-
tives, the Respondent learned of union activity among its
employees. On September 8, 1966, a representation hear-
ing was held in Case 26-RC-2726 and an election was
conducted on October 27, 1966, in the following unit:
All employees of the Employer working in its Salem,
Mountain Home, and Evening Shade, Arkansas, dis-
2 Electrification advisors were not excluded specifically from the unit.
According to Respondent's attorney, Robert F. Fussell, in an off-the-
record conversation prior to opening of formal record in Case
26-RC-2726, Attorney Fussell, representing the Respondent, stated to
Smith and Brizendine, representatives for the Union, that it was Respond-
ent's position the electrification advisors were managerial employees and
should be excluded. The parties then agreed they should be excluded. Mr.
Smith, the Union 's representative, was present in Case 26-CA-2585 and
did not deny that Fussell made this statement at the representation hear-
ing in Case 26-RC-2726. No evidence was introduced as to the duties of
the electrification advisors in the representation case. Lenox did not vote
in the election.
tricts, including maintenance, construction, service,
and surveying personnel, but excluding office clerical
employees, salesmen, guards, and supervisors as
defined in the Act.2
The Union prevailed in the election and was later cer-
tified as the exclusive bargaining representative.
On October 20, 1966, Manager Cochran discharged
Lenox, as put by Cochran, "[b]ecause he had been asked
to remain neutral3 and he disobeyed, insubordination to
orders. 114
In that Section 7 of the Act grants employees the right
to freely engage in union activities and Section 8(a)(1) and
(3) of the Act protects employees against an employer's
interference with such rights and an employer's dis-
criminatory discharge of an employee for exercising such
rights, accordingly Lenox's discharge was unlawful un-
less the Act's proscriptions were not applicable to the
Respondent's discharge of Lenox under the facts and cir-
cumstances as revealed in the record.
Second: Electrification Advisor Lenox was assigned
to the Member Services Department which is responsible
for the power use and public relations operations of the
Respondent. The job classifications in the Member Ser-
vices Department consist of manager and electrification
advisor. Including Lenox, there were two electrification
advisors in the Respondent's employ. While both elec-
trification advisors reported nominally to the manager of
the Member Services Department, Lenox, because of the
distance between Mountain Home and Salem, Arkansas,
reported to Mountain Home District Manager Boyce
Drake rather than to the manager of the Member Services
Department who maintained offices at Salem.
Lenox participated along with the manager of Member
Services Department, the manager of Management Ser-
vices Department, the district manager at Mountain
Home, and the other electrification advisor in the
preparation of the existing Position Description (which is
set out in Appendix A attached hereto) and Standards of
Performance for Electrification Advisor. Lenox testified,
in respect to the position description, that he "at least
touched" on all parts of it at "one time or another" except
that part, "keeps informed and prepares sketches and
estimates of costs of all types of pig and poultry brooding
equipment and housing."
Lenox occupied a private office in the Mountain Home
District Office Building. Manager Drake was the only
other employee at Mountain Home who was assigned an
office. Lenox scheduled his own time and activities and
when he performed occasional services at night, he'was
allowed time off at his discretion. Lenox received no
extra pay for overtime hours.
Lenox, as electrification advisor, was classified in the
management grade group under the Respondent's Wage
and Salary Administration Schedule and was paid a sal-
ary on a monthly basis as were the general manager, dis-
3 According to Cochran, Lenox was ordered to remain neutral because
Cochran "considered him a management employee, and part of the
management team He was excluded from the union and was considered
as a management employee, and [Cochran] felt like as a member of
management [the Respondent] had the right to ask him to remain neutral
and not to take sides."
4 According to Lenox, Cochran at the time of Lenox's discharge told
him that he had proof that he had attended a union meeting and that he
could not "tolerate this" and would have to terminate him.
NORTH ARKANSAS ELECTRIC COOPERATIVE
trict manager, engineer, office manager, manager of
Member Services, and assistant to the general manager.
Other employees were paid on an hourly basis. At the
time of Lenox's termination Lenox was paid a monthly
salary of $471. District managers' salaries ranged from
$383 to $536 a month.
At the time of his discharge, Lenox was receiving
$50,000 coverage for business travel insurance - the
same as the general manager, assistant general manager,
manager of Member Services Department, and district
managers. The employees in the bargaining unit received
$25,000 business travel insurance coverage.
Lenox participated twice yearly in staff Power Use
Planning and Evaluation meetings, the purpose of which
was to plan new programs and secure new customers.
Participants other than the electrification advisors were
the general manager, department heads, and district
managers.
Lenox made several recommendations which were
later approved after investigation by the board of
directors. One recommendation concerned a change in
billing of the all-electric heating rate for commercial
establishments at 7 cents and 2 mills above 200 KWH
rather than 1 cent and three quarters during the warmer
months of the year. Another recommendation involved
the donation of an electric post yard light to individuals
who built Gold Medallion homes. Lenox also proposed
and prepared a booklet on wiring specifications from a
booklet published by another electric cooperative which,
after editing by Drake, was submitted to Manager
Cochran for approval. Lenox also compiled a list of peo-
ple, primarily electricians and home builders, to whom
the booklets were distributed.
Annually Lenox discussed the budget for the power
use and public relations program pertaining to the Moun-
tain Home District with District Manager Drake and sub-
mitted recommendations in respect to advertising needs
and costs thereof.5 Lenox's recommendations after con-
sideration and review by Drake and Manager Cochran
were submitted to the board of directors.
After the advertising budget was approved by the
board of directors, Lenox had authority to spend the
money for advertising. Lenox prepared and placed adver-
tising material for the Respondent on the radio and in
newspapers and other publications. These advertise-
ments were for the most part of an institutional kind and
standard copy for the industry. Copy for these advertise-
ments was not usually checked with Drake 6 but were
brought to Drake's attention in the monthly report Lenox
submitted to Drake.7
The Respondent was a member of the Arkansas
Adequate Wiring Bureau, which was set up to promote
safe wiring throughout the State of Arkansas. Lenox
5 Lenox testified,
Mr. Drake and I got together at that time, when necessary, each
year, and talked about the expenditure that would be needed for film
for cameras, processing the film, Gold Medallion plaques, Gold
Medallion certificates, and items such as those, and included in this
would be radio advertising and so much for newspaper advertising
and this we would talk about, and he would submit, if necessary, for
this money.
923
acted as manager of this bureau for all three districts of
the Respondent covering six counties in North Arkansas.
Lenox's duties as manager of the bureau were to make
personal inspections of wiring in houses or business
buildings to determine whether the wiring jobs met the
standards of the bureau. If the wiring jobs met such stan-
dards, Lenox so certified by issuing a certificate as
manager of the Arkansas Adequate Wiring Bureau.
Lenox did not certify the jobs if the wiring did not meet
the bureau's standards.
Lenox was the only certifying authority for the Arkan-
sas Adequate Wiring Bureau in the Respondent's territo-
ry. The bureau discontinued operations approximately 1-
1/2 years ago. However, Lenox continued to issue such
certificates on behalf of the Respondent, as manager of
the Respondent's branch of the Arkansas Adequate Wir-
ing Bureau, until his discharge.
Lenox also investigated for the purpose of ascertaining
whether customers qualified for all-electric rates. If
Lenox found that they met such requirements, customers
were taken off the regular rate and placed on the all-elec-
tric rate.
On occasion Lenox handled customer complaints such
as high bills, improper billing, or not enough power.
Lenox had authority to adjust a bill in accordance with
the Respondent's policy in this respect.
Lenox was also called upon to attend meetings and
make speeches on behalf of the Respondent at civic or-
ganizations such as the Rotary Club and the Lions Club,
primarily in the Mountain Home area; attend instructor
meetings, workshops, and conventions on power use and
public relations; participate with professional organiza-
tions pertaining to power use and public relations, such as
the Rural Electrification of Arkansas, and the National
Association of Electrical Inspectors; serve as advisor for
the State Vocational Agricultural Institute Workshop8
held each year for a period of 1 week; teach courses in
adequate wiring and motor repairing over a 2-year period
of time to vocational agricultural teachers; work with
4-H Clubs and Home Demonstration Agents in electrical
product demonstrations held in schools and give lectures
on power use; counsel with individual customers as to
proper wiring of homes and commercial establishments,
estimate proper heat requirements and advise necessary
measures to solve any problem they might experience,
such as installing heavier wiring, additional circuits, and
proper voltage.
Several years ago the Respondent conducted an em-
ployee training session on electricity in the nature of a
school for the employees covering an 8-week period. The
courses were taught by Respondent's personnel com-
posed of General Manager Cochran, Member Services
Manager Goff, District Manager Drake (Mountain
lar item, or we didn't use it all this year, and it doesn't took like we
need this much for' this particular item, so we will reduce that portion.
Lenox further testified that he "verbally" gave Drake cost figures on the
type of advertising that he thought was needed at Mountain Home.
6 Lenox testified that he ran no radio advertisements of his own com-
position without checking with Drake.
' At the end of each month Lenox submitted a list of his activities for
that month to District Manager Drake.
8 The purpose of the workshop was to instruct teachers in adequate wir-
ing and motor repairs.
This was informal discussion, and he would say, well, will this be
enough for this. Maybe we ought to have another $10 on this particu-
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Home), District Manager Hall (Salem), and Electrifica-
tion Advisor Lenox.
Lenox purchased no items valued in excess of $10
which did not appear on the budget without the approval
of Drake.
Third: The Respondent seriously contends that
Lenox, as a "managerial employee or a part of Respond-
ent's management," was excluded as an employee
within the meaning of the Act. Hence the Respondent
committed no wrong in discharging him because he failed
to remain "neutral" during a union organizational cam-
paign.
The General Counsel first urges that the Respondent,
"by admitting that Lennox (sic) was discharged for his
union activities or in Cochran's parlance, `for not remain-
ing neutral . . .' and by stipulating that Lennox (sic) was
not a supervisors per se violated the Act." The General
Counsel plants this contention on the assertion that "the
Act itself does not exempt managerial employees from its
coverage." But assuming arguendo that Lenox is a
managerial employee,10 while there is merit in the
General Counsel' s contention , the Board has held other-
wise (by which holding the Trial Examiner is bound). In
the case of Swift & Company, 115 NLRB 752, 753-754,
It was the clear intent of Congress to exclude from
the coverage of the Act all individuals allied with
management .2 Such individuals cannot be deemed to
be employees for the purposes of the Act. Ac-
cordingly we reaffirm -the Board's position that
representatives of management may not be accorded
bargaining rights under the Act....
2 See Section 2(2) and (3) of the Act; 93 Cong. Rec. 6442 (1947).
The General Counsel next urges that Lenox was not a
"managerial" employee but a "rank and file employee,
thus his discharge violated Section 8(a)(3) of the Act."
The Court of Appeals for the District of Columbia has
commented that the Board had not developed clear stan-
dards for determining what is a "managerial employee."
Retail Clerks International Association, Local 880 v.
N.L.R.B., 366 F.2d 642, 644 (C.A.D.C.). The court
further observed,
... there seem , however, to be two tests. The first
is whether, even if they do not supervise other work-
ers, their position with the employer presents a
potential conflict of interest between the employer
and the workers, e.g., employment interviewers who
have authority in hiring, New England Telephone, 90
NLRB 639 (1950). This strand of the managerial em-
ployee test is often phrased in a more conclusory
manner , i.e., that the employer is closely related to or
aligned with the management ; such a determination,
however, also seems to turn on the possibility of a
conflict of interest arising, e .g., timekeepers and ex-
peditors, Bendix Aviation Corp., 47 NLRB 43
(1943); an office manager and record keeper who has
no confidential information about other employees,
Burke Brewery, Inc., 54 NLRB 1061 (1944).
9 It was stipulated by the parties that Lenox was not a supervisor within
the meaning of the Act; the Trial Examiner so finds.
10 The Trial Examiner considers that the term "managerial employee,"
as used herein , is synonymous with "employee allied with management,"
"representative of management," and "part of management."
11 It was said in International Ladies Garment Workers Union v.
N.L.R.B., 339 F.2d 116, 123 (C.A. 2) "Although the Act makes no spe-
cial provision for `managerial employees ,' under a Board policy of long du-
ration, this category of personnel has been excluded from the protection
of the Act."
The Board also excludes from the protection of the
Act, as managerial employees, "those who formu-
late, determine, and effectuate an employer's poli-
cies," AFL-CIO, supra at 973, and those who have
discretion in the performance of their job, but not if
the discretion must conform to an employer's
established policy, Eastern Camera and Photo Corp.,
140 NLRB 569, 571 (1963) (store managers who
could set prices are not managerial). The rationale
for this Board policy, though unarticulated, seems to
be the reasonable belief that Congress intended to
exclude from the protection of the Act those who
comprised a part of "management" or were allied
with it on the theory that they were the one from
whom the workers needed protection.
and at page 645,
. According to Board policy, however, discretion
is not the touchstone if it must conform to the em-
ployer's established policy.... [Emphasis supplied.]
The Board itself has said in Eastern Camera and Photo
Corp., 140 NLRB 567, 571, "The Board has defined
managerial employees as those who formulate, deter-
mine , and effectuate the Employer's policies.... In fact,
the determination of an employee's `managerial' status
depends upon the extent of his discretion, although even
the authority to exercise considerable discretion does not
render an employee managerial where his discretion must
conform to the employer's established policy."12 In
Central Maine Power Company, 151 NLRB 42, the
Board reiterated,
The Board has defined managerial employees as
those who formulate, determine , and effectuate the
employer's policies . The determination of an em-
ployee's managerial status depends upon the extent
of his discretion, and the absence of established pol-
icy and regulations to aid in the exercise of such dis-
cretion is a factor entitled to considerable weight.
The record is barren of any competent proof that
Lenox exercised discretion absent any established policy
or regulation of the Respondent. In fact the Responsibili-
ties and Authorities established for electrification ad-
visors in the position description provide that the elec-
trification advisor "within the limits of established poli-
cies, budget, legal requirements, and authority delegated
by the Manager, Member Services, assumes responsibili-
ties and personally performs the following activities...."
(Emphasis supplied.) Lenox did not exercise the kind of
discretion or such management prerogatives which
marked him as a representative of management or allied
with management to such an extent as to deny him the
rights and privileges of an employee within the meaning
of the Act, nor did Lenox' s position with the Respondent
present a potential conflict of interest between the
Respondent and its employees. See Retail Store Em-
ployees Union, Local 880, Retail Clerks, 153 NLRB 255.
Also, in that the Act is remedial in character,13 and is to
be broadly and liberally construed to accomplish its pur-
12 In this case the Board found "store managers" who could hire per-
sons for Christmas and summer employment , assist in setting prices for
the employer merchandise , and order new merchandise for a store were
not managerial employees
13 In N.L.R.B. v. Knoxville Publishing Co., 124 F.2d 875,881 (C.A. 6),
the court said, "... The act is remedial in character and is to be broadly
and liberally construed to accomplish its purpose."
NORTH ARKANSAS ELECTRIC COOPERATIVE
poses, among which are "protecting the exercise of work-
ers of full freedom of association" and "of self organ-
ization"14 (for the exercise of which Lenox was
discharged) and in that the rights and privileges provided
for individuals by the Act are in the public interest,15 a
construction which denies an individual the protection of
the Act ought to be avoided unless compelled by the clear
language of the statute itself,16 the legislative history17 or
well-established specific precedent. Reference to
Packard Motor Car Company v. N.L.R.B., 330 U.S. 485,
seems pertinent. Justice Jackson, speaking for the Court,
said, at 493,
It is also urged upon us most seriously that
unionization of foremen is from many points bad in-
dustrial policy, that it puts the union foreman in the
position of serving two masters, divides his loyalty
and makes generally for bad relations between
management and labor.1' However we might ap-
praise the force of these arguments as a policy
matter, we are not authorized to base decision of
question of law upon them. They concern the
wisdom of the legislation; they cannot alter the
meaning of otherwise plain provisions.
Since the Trial Examiner finds nothing in the specific lan-
guage of the Act or the legislative history of the Act ex-
cluding electrification advisors as herein defined from the
coverage of the Act as employees within the meaning of
the Act, and since the Trial Examiner has found no
specific controlling precedent on the subject,19 it must
also follow for the purposes of this Decision that Lenox
is an employee within the meaning of the Act and under
its aegis. To hold otherwise is to tread on the prerogatives
of the legislative branch of the government. Such is the
teaching of Packard Motor Car v. N.L.R.B., supra.
Accordingly, upon the entire record, the Trial Examiner
finds that by the discharge of Lenox the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations set
forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, 10.
15 In the case of Local Union No. 12 Progressive Mine Workers v.
N.L.R.B., 189 F.2d 1 , 5 (C.A. 7), cert. denied 342 U.S. 868, the court
said , "The function of the Board is to be performed in the public in-
terest ..." In the case of Henry 1. Siegel Co., Inc. v . N.L.R.B., 340
F.2d 309, 310 (C.A. 2), the court said , ". . violations of the National
Labor Relations Act give rise to public rather than private rights."
16 In Local Union 219, Retail Clerks International v. N.L R.B., 265
F.2d 814,817 (C.A.D.C.), the court said,
Justice Frankfurter stated in his separate opinion in Lion Oil [352
U.S. 282, 297] that-
It has - become a judicial responsibility to find that interpretation
which can most fairly be said to be embedded in the statute, in
the sense of being most harmonious with ... the purposes that
Congress manifested.
925
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Jack Lenox on October 20, 1966, and thereby
violated Section 8(a)(3) and (1) of the Act, it is recom-
mended, in accordance with Board policy,20 that the
Respondent remedy such unlawful conduct. It is recom-
mended that the Respondent offer to Jack Lenox im-
mediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniori-
ty or other rights and privileges and make him whole for
any loss of earnings he may have suffered as a result of
the discrimination against him by payment to him of a
sum of money equal to the amount he would have earned
from the date of his discriminatory discharge to the date
of an offer of reinstatement, less net earnings during such
periods to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289, and shall include interest at the rate of 6
percent per annum to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will ef-
fectuate the purposes of the Act for jurisdiction to be ex-
ercised herein.
3. By unlawfully discharging Jack Lenox on October
20, 1966, the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of their rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1)
of the Act.
5, The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, it
is recommended that Respondent, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from discriminating against any
employee because of membership in or activities on be-
17 In respect to exclusions the Trial Examiner has found no specific
mention of the job or position classification of electrification advisor in the
legislative history of the Act. Nor is there mentioned any excluded general
classification in which the position of electrification advisor as herein
detailed would fall.
19 A similar argument has been advanced on behalf of the electrification
advisor, an admitted nonsupervisor
11 The Trial Examiner is not unmindful of the case of Rural Electric
Company, Inc., 130 NLRB 799, 800, cited by the Respondent, in which
that Trial Examiner in a footnote found that an "electrification adviser"
was a managerial employee. This Trial Examiner does not consider that
such footnote contains a sufficient description of the authority and duties
of the "electrification adviser" to be helpful in the determination of the
status of the electrification advisor herein involved.
40 See The Rushton Company, 158 NLRB 1730.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
half of the International Brotherhood of Electrical Work-
ers, AFL-CIO.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Jack Lenox immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges.
(b) Notify Jack Lenox if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the
Armed Forces.
(c) Make whole Jack Lenox for any loss of pay he may
have suffered by reason of Respondent 's discrimination
against him in accordance with the recommendations set
forth in "The Recommended Remedy" herein.
(d) Preserve and, upon request , make available to the
Board and its agents, for examination and copying, all
payroll records , social security records, timecards, per-
sonnel records and reports , and all other records relevant
or necessary to determination of backpay due and to the
reinstatement and related rights provided under terms of
this Recommended Order.
(e) Post at its Salem , Mountain Home , and Evening
Shade , Arkansas, offices, copies of the attached notice
marked "Appendix B."21 Copies of said notice to be
furnished by the Regional Director for Region 26, after
being duly signed by Respondent 's representative, shall
be posted by it immediately upon 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 Respondent to insure that said notices
are not altered, defaced , or covered by any other material.
(I) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Recommended
Order , what steps the Respondent has taken to comply
herewith.22
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed insofar as it alleges violations of
the Act other than those found in this Decision.
21 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
22 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in wasting, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX A
POSITION DESCRIPTION
ELECTRIFICATION ADVISOR
1. OBJECTIVES
A. To provide maximum service to the membership
by:
1. Rendering prompt, efficient , and reliable
electrification service that will promote good
will between the cooperative and the members.
2. Encouraging the members to participate in
farm and home improvement programs and
through effective use of electric service.
3. Enlisting the participation and active interest
of the employees in the cooperative to develop
a power use program.
4. Providing the leadership for member par-
ticipation in farm and home demonstrations in-
cluding water under pressure, home heating,
wiring, milking, milk cooling, brooding, and
lighting.
B. To promote power use by working toward the
continued development and successful accomplish-
ment of programs, procedures, and practices that en-
courage the increased and more effective use of elec-
tric service to make rural living easier and more
productive.
C. To promote good public and member relations by
individually cooperating and participating in civic
and community affairs and organizations and using
every opportunity and method of counseling for
developing support, understanding and acceptance
of the cooperative's plans, programs, and objectives.
D. To help encourage and maintain a high standard
of morale among the employees of this cooperative
by assisting the creation and maintenance of team
spirit, cooperation, and enthusiasm throughout the
organization.
E. To continue personal education improvement by
research and study where it will contribute to more
effective performance in the accomplishment of the
plans and programs of the Member Service Depart-
ment.
II. REPORTING RELATIONSHIPS
A. Reports to: Manager, Member Services
B. Directs: None
III. RESPONSIBILITIES AND AUTHORITIES
A. Within the limits of established policies, budget,
legal requirements, and authority delegated by the
Manager, Member Services, assumes responsibilities
and personally performs the following activities:
1. Submits recommendations and advises de-
partment head in the development of the depart-
mental plans, operating budget, and procedures;
makes suggestions for the programs and activi-
ties necessary to best accomplish the depart-
ment and the cooperative objective.
2. Participates in power use planning and
evaluating meetings by contributing any infor-
mation which might be helpful to plan and im-
plement programs.
3. Keeps informed by evaluation records of the
operational cost of electrical equipment as com-
pared to other types of equipment.
4. Participates in the planning and accomplish-
ment of statewide rural electrification training
and workship programs on the use of electrical
equipment as directed or required.
5. Keeps informed in agriculture practices to be
able to converse intelligently with farmers about
future prices, trends, and practices with regard
to farmers.
NORTH ARKANSAS ELECTRIC COOPERATIVE
6. Keeps well informed about farm and home
electrical equipment and methods of operation.
7. Familiarizes himself with the applicable
provisions of the National Electrical Code with
respect to adequate wiring.
8. Keeps abreast of all factors involved in elec-
tric heating installations including comparative
costs, installation problems, and sources of
supply.
9. Keeps informed and relates to consumers the
standards, design , and color schemes for effec-
tive and adequate lighting.
10. Keeps informed and prepares sketches and
estimates of cost on all types of pig and poultry
brooding equipment and housing.
11. Keeps informed on modern types of dairy-
ing equipment and related practices , keeps in-
formed on all mile [sic] prices, prepares in-
formed estimates involving the use of electrical
equipment and services to improve dairying
practices.
12. Keeps informed on pump standards for
varying types of wells and plumbing systems and
submits suggestions and counsels with members
on their selection of pumps and equipment for
their individual requirements.
13. Maintains detailed activity schedules from
which reports are compiled.
14. Counsels with members individually and in
groups on the selection features such as per-
formance and availability of electrical equip-
ment for the home and farm.
15. Contacts and counsels with members to
provide post sales instruction on the care and
use of electrical farm equipment to assure
satisfaction and knowledge of functions , econo-
my, and operating requirements of the equip-
ment.
16. Encourages member responsibility in
furthering their use of appliances to assure the
continued growth and progress of their coopera-
tive.
17. Assists in the furtherance of promotion pro-
grains by:
a. Arranging for and holding special educa-
tional and promotional programs for products or
methods in coordination with participating
dealers on their sales floor or other approved lo-
cations.
b. Informing participating dealers of ap-
pliance and electrical equipment prospects.
c. Supplying and distributing factual litera-
ture and information to members , contractors,
and suppliers.
18. Schedules and holds product and method
demonstrations for groups in:
a. Schools
b. Civic or community buildings.
c. Homes of members.
19. Keeps informed on method and product
development by:
a. Attending manufacturers , distributors, and
dealers exhibits and workshops.
b. Subscribing to professional, trade, or other
news periodicals.
927
c. Attending institutes , lectures, seminars,
displays, or demonstrations.
d. Associating himself with professional,
educational , or other organizations and groups
with similar and related programs and objec-
tives.
e. Studying and assimilating bulletins, arti-
cles, specifications, and directives applicable to
departmental plans or procedures.
20. Participates in the coordination of depart-
mental programs with the planned activities of
agriculture extension services , vocational
agriculture departments , schools, and 4-H clubs
by:
a. Demonstrations
b. Lectures
c. Loans of Literature and equipment
d. Supervision of projects
e. Contest judging
f. Teaching, training and coaching
21. Collects special interest news items and
pictures and submits recommendations to super-
visor on their publication.
22. Collects photographs and materials for the
preparation of the Rural Arkansas Magazine.
23. Participates in the selection and education
of cooperative minuteman.
24. Participates in community educational
meetings when required or directed.
25. Performs such other activities as required
or directed.
B. Develops plans and procedures for the most ef-
fective accomplishment of the above responsibilities
and authorities.
IV. Relationships
Establishes the following relationships for the pur-
pose of coordination and communication.
A. Internal
1. Manager , Member Services - To receive in-
formation and instructions on job responsibili-
ties.
2. System Personnel-To counsel with and
assist through leadership and participation on
the successful accomplishment of a dyanamic
power use and public relations program; and in
accordance with established departmental
procedures, to advise , inform , and serve as in-
structor for an effective employee training pro-
gram on member and public relations and the in-
creased acceptance of member and employee
responsibilities in this area.
B. External
1. Members -To take the intiative in establish-
ing effective ways to provide individual and
group help on member problems involving elec-
tric service and related matters.
2. Arkansas State Electric Cooperative, Educa-
tion , Agricultural and Related Agencies and
Clubs-To stimulate cooperation , coordinate
planned programs, and encourage leadership
participation.
3. General Public-To actively participate in
community and civic programs and projects.
928 DECISIONS OF NATIONAL
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL offer Electrification Advisor Jack
Lenox, whom we fired for insubordination because
he failed to remain neutral during the union cam-
paign , immediate and full reinstatement to his former
or substantially equivalent position without prejudice
to his seniority or other rights and privileges and will
make him whole for any loss of earnings he may have
suffered as a result of his discharge.
WE WILL NOT unlawfully discriminate against any
employee because of his membership in or activities
LABOR RELATIONS BOARD
on behalf of the International Brotherhood of Electri-
cal Workers, AFL-CIO, or any other union.
NORTH ARKANSAS ELEC-
TRIC COOPERATIVE, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Ten-
nessee 38103, Telephone 534-3161.