199 N.L.R.B. 1116 (N.L.R.B. 1972)

North East Mississippi Electric Power Association

National Labor Relations Board - Board DecisionsOct 30, 1972

199 N.L.R.B. 1116 (N.L.R.B. 1972)

1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North East Mississippi Electric Power Association and International Brotherhood of Electrical Workers, Local Union 1028 , AFL-CIO. Case 26-CA-4389 October 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 19, 1972, by Interna- tional Brotherhood of Electrical Workers, Local Un- ion 1028, AFL-CIO, herein called the Union, and duly served on North East Mississippi Electrical Pow- er Association, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on June 28, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 8, 1972, following a Board election in Case 26-RC-4167, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 13, 1972, and at all times thereafter, Respondent has refused, and continues to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. On June 30, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On July 19, 1972, counsel for the General Coun- sel filed directly with the Board a motion to strike Respondent's answer and a Motion for Summary Judgment. Subsequently, on July 25, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the General Counsel's motion to strike, and a re- 'Official notice is taken of the record in the representation proceeding, 'Case 26-RC-4167, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board 's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd . 388 F.2d 683 (C.A 4, 1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co v Penello, 269 F Supp . 573 (D.C Va., 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (CA. 7, 1968); Sec. 9(d) of the NLRA sponse to Notice To Show Cause, along with a Cross- Motion for Summary Judgment; the General Counsel then filed a response to the Respondent's motions. 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 au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer and response, Respondent con- tends, in effect, that it is not an employer within the meaning of the Act, but rather a political subdivision of the State of Mississippi, and that the unit herein is inappropriate since only a systemwide unit including the six office clerical employees is appropriate. The General Counsel contends that the Respondent is at- tempting to relitigate issues which were litigated and decided in the underlying representation proceeding and which may not be relitigated here. We agree with the General Counsel. The record in Case 26-RC-4167 reflects that on March 30, 1972, the Regional Director issued a Deci- sion and Direction of Election, in which he disagreed with the Respondent's contention that it was a politi- cal subdivision exempt under the National Labor Re- lations Act and found that Respondent "is an employer within the meaning of the Act, operating in interstate commerce, and that it will effectuate the purpose of the Act to assert jurisdiction herein." Fur- ther, he found appropriate a unit excluding the six clerical employees whom the Respondent argued should be included. Thereafter, the Respondent filed a Request for Review again raising the same political subdivision and unit issues. On April 19, 1972, the Board denied the Respondent's request as it raised no substantial issues warranting review. A secret ballot election in the unit found to be appropriate by the Regional Director was conducted on April 28, 1972, and the Union received a majority of the valid votes cast. On May 8, 1972, the Union was certified by the Regional Director as the exclusive bargaining repre- sentative of employees in the appropriate unit. In its response, the Respondent attached an affi- davit of its general manager setting forth certain facts with respect to the Respondent's operations, the com- mittees and customers it services, the rights of custom- ers to vote for and remove directors, and its participation in certain rural electrification adminis- tration loan programs. We agree with the General Counsel that the Respondent has not alleged or shown that the affidavit constitutes newly discovered or previously unavailable evidence or that its contents were not previously known to the Respondent during 199 NLRB No. 129 NORTH EAST MISSISSIPPI ELECTRIC POWER 1117 the pendency of the underlying representation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding.2 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding? We shall, accordingly, deny the Respondent's Cross-Motion for Summary Judgment and grant the General Counsel's Motion for Summa- ry Judgment.4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation doing business in the State of Mississippi, with an office located at Oxford, Mississippi, where it is engaged in the sale and distri- bution of electrical power in the Mississippi counties of Lafayette, Pontotoc, Union, and Marshall. During the past 12 months, Respondent did a gross volume of business in excess of $250,000 and, during the same period of time, it purchased and received electrical power valued in excess of $50,000 directly from points outside the State of Mississippi. We find, on the basis of the foregoing, that Re- 2 See Pittsburgh Plate Glass Co.v. N.LR B, 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c). 3 Respondent 's answer states that it is without sufficient knowledge to admit or deny the allegation that the Union is a labor organization, but in its response to the Motion for Summary Judgment offers no new evidence which was not available in the underlying representation case. Hence there is no factual issue requiring further hearing. Respondent's answer also denies the request and refusal to bargain Attached to the Motion for Summary Judgment, as Exh. A, is a letter of May 10, 1972, requesting information necessary for collective bargaining and, as Exh. B , a letter of Respondent's counsel dated June 13 , 1972, in which it refuses to bargain collectively. In its response to the Notice To Show Cause, the Respondent does not contro- vert the contents of these letters , and in fact admits the authenticity of its June 13 letter (inadvertently referred to as July 13). Thus, the truth of the factual allegations in the complaint concerning the request and refusal to bargain stands admitted by the uncontroverted factual averments in the General Counsel's motion . The May Department Stores Company, 186 NLRB No. 17, and Carl Simpson Buick, Inc., 161 NLRB 1389. 4In view of the determination herein , we find it unnecessary to rule upon the General Counsel's motion to strike the Respondent' s answer. spondent is, 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, and that it will effectuate the policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union 1028, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9 (b) of the Act. All servicemen, meter readers, maintenance men, warehouseman, journeymen linemen, ap- prentice linemen , journeymen apprentice line- men, groundmen, equipment operators, administrative assistant, staking engineer and helper employed by the Respondent, excluding office clerical employees, confidential secretary, guards and supervisors as defined in the Act. 2. The certification On April 28, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 26 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 8, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 10, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 13, 1972, and continuing at all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 13, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. North East Mississippi Electric Power Associ- ation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local Union 1028, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All servicemen, meter readers, maintenance men, warehouseman, journeymen linemen, appren- tice linemen, journeymen apprentice linemen, groundmen, equipment operators, administrative as- sistant, staking engineer and helper employed by the Respondent, excluding office clerical employees, con- fidential secretary, guards and supervisors as defined in the Act constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 8, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 13, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, North East Mississippi Electric Power Association, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with International Brotherhood of Electrical Workers, Local Union 1028, AFL-CIO as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All servicemen, meter readers, maintenance men, warehouseman, journeymen linemen, ap- prentice linemen, journeymen apprentice line- men, groundmen, equipment operators, administrative assistant, staking engineer and helper employed by the Respondent, excluding office clerical employees, confidential secretary, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of NORTH EAST MISSISSIPPI ELECTRIC POWER 1119 the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Oxford, Mississippi, office copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 26, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." national Brotherhood of Electrical Workers, Lo- cal Union 1028, AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All servicemen, meter readers, maintenance men, warehouseman, journeymen linemen, ap- prentice linemen, journeymen apprentice line- men, groundmen, equipment operators, administrative assistant, staking engineer and helper employed by the Respondent, excluding office clerical employees, confidential secretary, guards and supervisors as defined in the Act. Dated By NORTH EAST MISSISSIPPI ELEC- TRIC POWER ASSOCIATION (Employer) (Representative) (Title) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages , hours, and other terms and conditions of employment with Inter- This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161.