Sioux Valley Empire Electric Association

National Labor Relations Board - Board Decisions

Nov 14, 1958

122 N.L.R.B. 92 (N.L.R.B. 1958)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increased caseload, and to comments and briefs of interested parties
received in response to its invitation contained in the Board's July 22,
1958, press announcement of its proposed changes in jurisdictional
policies.6 It is the Board's opinion that in the light of its current
budgetary limitations and the volume of cases which may be expected
under its other standards, the $100,000 gross volume of business stand-
ard will extend the Board's jurisdiction over communications systems
to the maximum possible extent at this time and will reasonably ensure
that the Board will assert jurisdiction over all labor disputes involving
such enterprises which tend to exert a pronounced impact on commerce.
Application of the $100,000 gross volume of business test for radio
stations to the facts in this case requires the Board to assert jurisdic-
tion over the Employer. Accordingly, contrary to the Employer's
contention, the Board finds that it will effectuate the policies of the
Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
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 parties stipulated to the appropriate unit as follows :
All staff announcers, special program announcers, news and news-
writer announcers, special program announcers, freelance announcers,
and all other regular employees, including regular part-time employ-
ees who perform before the microphone, employed at the Employer's
New Brunswick, New Jersey, radio station, but excluding engineers,
salesmen, receptionists, clerical employees, guards, and supervisors as
defined in the Act.
In view of the parties' stipulation the Board finds that the foregoing
employees which they would include within the unit, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
6 (R-570.)
Sioux Valley Empire Electric Association and Local 426, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, Peti-
tioner. Case No. 18-RC-3620. November 14, 1958
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 William D. Boetticher,
122 NLRB No. 18.
SIOUX VALLEY EMPIRE ELECTRIC ASSOCIATION 93
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 is a rural electric cooperative engaged in the
transmission and sale of electricity to its members, all of whom are
located in South Dakota. It was organized and began operations
in 1939 with loans from the Rural Electrification Administration.
Its gross volume of business during 1957 was approximately $1,102,000,
of which $1,097,681 was received for the sale of electrical energy.
It is a member-owner of the East River Electric Power Cooperative,
Inc., a South Dakota corporation engaged in the sale of electricity
to its 21 member-owners, all of which, with one exception, operate
only in South Dakota. The Petitioner contends that East River
Electric Power Cooperative, and its 21 member-owners, including
the Employer, constitute a single employer and the Board should
assert jurisdiction over the Employer on the basis of that group's
total sales in excess of $5,000,000. The Employer contends that only
its operations may be considered for purpose of determining jurisdic-
tion but that the Board should assert jurisdiction,' even though its
operations do not satisfy the $3,000,000, gross revenues test applied
to public utilities since 1954.2
Ever since the enactment of the National Labor Relations Act
in 1935 the Board has consistently held to the position that it better
effectuates the policies of the Act and promotes the prompt handling
of cases not to exercise its jurisdiction to the fullest possible extent
under the authority delegated to it by Congress. For the first 15
years the Board exercised its discretion in this area on a case-by-case
basis. In 1950 the Board first adopted certain jurisdictional standards
designed to aid it in determining where to draw the dividing line
between exercised and unexercised jurisdiction. In 1954 the Board
reexamined its jurisdictional policies in the light of its experience
under the 1950 standards and revised its jurisdictional standards.
At that time the Board noted that "further changes in circumstances
may again require future alterations of our determinations one way
or another." I Consistent with this practice of periodic review of
its jurisdictional policies and as a direct consequence of the Supreme
Court's decision in P. S. Guss d/b/a Photo Sound Products v. Utah
Labor Relations Board 4 denying to the States authority to assert
jurisdiction over enterprises as to which the Board declines to exercise
its statutory jurisdiction, the Board reexamined its existing juris-
1 In view of our disposition of this matter we need not decide the single-employer issue
raised by Petitioner.
2 See Greenwich Gas Company and Fuels, Inc., 110 NLRB 564.
3 Edwin D. WVemyss , an individual, d/b/a Coca - Cola Bottling Company of Stockton,
110 NLRB 840, 842.
4 353 U.S. 1.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dictional policies and the standards through which such policies were
implemented. As a result the Board has determined to revise its
jurisdictional policies at this time so that more individuals, labor
organizations and employers may invoke the rights and protections
afforded by the Statute. In Siemona Mailing Service,5 the Board
fully set forth the general considerations which persuaded it that
this could best be accomplished by the utilization of revised jurisdic-
tional standards announced on October 2, 1958, as an administrative
aid in making its jurisdictional determinations. The Board has
chosen this case to set forth the revised standard to be applied in
all future and pending cases involving public utilities.
The Board has decided that it will assert jurisdiction over all public
utilities which do a gross volume of business of at least $250,000 per
annum or which have an outflow or inflow of goods, materials or
services, whether directly or indirectly across State lines, of $50,000
or more per annum.6
In utilizing a gross volume of business test for local public utilities
the Board has in mind the Supreme Court's statement that the term
" `affecting commerce' applies to a privately owned public utility
whose business activities are carried on wholly within a single state." 7
There is thus no necessity in the normal public utility case to prove
the existence of a flow of commerce across State lines in determining
whether or not to assert jurisdiction over such an enterprise. In some
cases however, a local public utility may not have sufficient gross
volume of business to satisfy the standard, but nevertheless may have
purchased or sold goods, materials or service across State lines in
an amount sufficient to warrant assertion of jurisdiction over manu-
facturing organizations. The application of the $50,000 outflow-
inflow test will eliminate the anomaly inherent in a refusal to assert
jurisdiction over such a local public utility. By lowering the gross
volume of business required to $250,000 and by applying the alterna-
tive $50,000 outflow-inflow standard, the Board has endeavored rea-
sonably to ensure that its jurisdiction will be exercised over all labor
disputes involving local public utilities which exert or tend to exert
a pronounced impact on commerce. Keeping in mind the significant
increase in its case load which may be expected not alone under the
revised standards for public utilities but under other standards as
well, the Board does not believe it to be administratively feasible to
extend further its jurisdiction in this field at this time. As the Em-
6122 NLRB 81.
9 Compare Siemens Mailing Service, supra.
4 Amalgamated Association of Street Electric Railway & Motor Coach Employees v.
Wisconsin Employment Relations Board, 340 U.S. 383, 391.
SIOUX VALLEY EMPIRE ELECTRIC ASSOCIATION 95
ployer's gross volume of business of approximately $1,102,000, ex-
ceeds the $250,000, test announced herein, the Board finds that it will
effectuate the policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
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 to represent a unit of maintenance and
construction employees including the six area maintenance foremen
and one construction foreman. The Employer agrees with the scope
of the unit but contends that the area maintenance foremen and con-
struction foremen are supervisors as defined in the Act and should be
excluded. The area served by the Employer is divided into six areas,
each of which is regularly serviced by a maintenance crew consisting
of an area maintenance foreman and an assistant, who are stationed
in the area and work out of their homes. The construction foreman,
like the area maintenance foremen, a working foreman, directs the
work of a six man crew and works out of Colman, South Dakota, the
Employer's home base.
The Petitioner stresses the fact that the ratio to supervisors of
supervised employees, if the foremen are found to be supervisors is
exceedingly high, and that the Board has relied upon that factor in
other cases in finding against supervisory status for working fore-
men. However, while this is a factor of considerable weight, the
record reveals that the foremen involved herein, have been delegated
and do exercise authority effectively to recommend changes in the
employment status of employees working under their direction. Such
-authority relates to hiring and discharge and transfer of employees,
and to changes both in their job ratings and wage rates. Accordingly,
and notwithstanding the high ratio of supervisors to supervised
employees, the Board finds that area maintenance foremen and the
construction foremen are supervisors within the meaning of the Act.
The Board finds that following employees employed by the Em-
ployer at its South Dakota operations, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
All employees, excluding area maintenance foremen, construction
foremen, office clerical employees, service consultants, janitors, meter
testers, watchmen and guards, professional employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]