Tri-County Electric Membership Corp.

National Labor Relations Board - Board Decisions

Jan 6, 1964

145 N.L.R.B. 810 (N.L.R.B. 1964)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-County Electric Membership Corporation and International
Brotherhood of Electrical Workers, Local Union No. 485, affili-
ated with The International Brotherhood of Electrical Work-
ers, AFL-CIO . Case No. 11-CA-2150. January 6, 1964
DECISION AND ORDER
Upon a charge duly filed on May 24, 1963, by the above-named
Union against Tri-County Electric Membership Corporation, herein
called the Respondent; the General Counsel for the National Labor
Relations Board duly issued' and served a complaint and notice of
hearing, dated June 14, 1963, alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, herein called
the Act. With respect to the unfair labor practices, the complaint
alleged, in substance, that since on or about May 20, 1963, the Re-
spondent refused to bargain with the Union as the duly certified
'exclusive collective-bargaining representative of the Respondent's
employees in a unit of production and maintenance employees.
On July 8, 1963, all parties to this proceeding entered into an agree-
ment wherein they waived a hearing before a Trial Examiner and the
issuance of an Intermediate Report and Recommended Order, and
joined in a request to submit the case directly to the Board for find-
ings of fact, conclusions of law, and the issuance of a Decision and
Order on the basis of a record consisting of the stipulated facts con-
tained in said agreement and the exhibits and documents referred to
and incorporated by reference therein.
On July 19, 1963, the Board, pursuant to Section 102.50 of the
Board's Rules and Regulations, Series 8, as amended, approved the
aforesaid stipulated record in lieu of hearing and granted the parties'
.request to transfer the proceeding directly to the Board.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to u three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
Upon the basis of the aforesaid stipulation, and the entire record
in the case, including the brief filed by the Respondent,' the Board
makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent was incorporated in May 1940 under the provisions
of the Electric Membership Corporation Act of North Carolina (Gen-
i The Respondent has requested oral argument . This request is hereby denied because the
record and Respondent 's brief adequately present the issues and the positions of the parties.
145 NLRB No. 79.
TRI-COUNTY ELECTRIC MEMBERSHIP CORPORATION 811
eral Statutes of North Carolina, section 117-6 et seq.; Public Laws
of 1935, chapter 291). It is engaged in the business of distributing and
selling central station electric power to its members in a multicounty
area wholly within the State of North Carolina, servicing its members
in Wayne, Duplin, and Lenoir Counties and in the fringe areas of
Wilson, Johnston, and Jones Counties. It receives financial assist-
ance in the form of loans from the Rural Electrification Administra-
tion, a Federal instrumentality created by Congress to facilitate the
distribution of electric power through cooperative agencies and other
enterprises. It purchases its power from Carolina Power and Light
Company, a privately owned utility, and from the Southeastern Power
Administration, an agency of the Federal Government. Its member-
ship is approximately 93 percent residential and farm, with the bal-
ance, commercial, institutional, and industrial. During the year 1960,
the Respondent did 'a gross volume of business resulting in operating
revenues of $611,839, and for the first 9 months of 1962 its gross vol-
ume of business through operating revenues was $527,531.
We find that the Respondent is, and at all times material herein
has been, engaged in commerce within the meaning of Section 2(6)
of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction in this case.a
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union No.
485, affiliated with The International Brotherhood of Electrical Work-
ers, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
All production and maintenance employees employed by the Re-
spondent at Goldsboro, North Carolina, excluding office clerical em-
ployees, professional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
B. The certification of the Union as exclusive bargaining
representative
Following a petition filed on November 29, 1962, by the Charging
Party herein in Case No. 11-RC-1739, the Regional Director for the
Eleventh Region of the Board, by a Decision and Direction of Elec-
tion dated January 11, 1963, directed that an election be held among
the Respondent's employees in the appropriate unit described above.
2 Sioum Valley Empire Electrio Aasociation, 122 NLRB 92, 94.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was conducted on May 1, 1963. The tally of ballots
showed that there were 15 eligible voters, of whom 13 voted for, and
2 against, the Union. As a result of the aforesaid election, the Board's
Acting Regional Director for the Eleventh Region, on behalf of the
Board, on May 9, 1963, issued a certification to the Union as the ex-
clusive collective-bargaining representative of the employees in the
aforesaid appropriate unit.
C. The refusal to bargain
On May 10, 1963, the Union, by letter to the Respondent, requested
a date to meet for the purpose of collective-bargaining negotiations
and enclosed a proposed agreement. On May 20, 1963, Respondent,
by letter, refused the request, asserting as its reason therefor its belief
that as a "political subdivision" of the State of North Carolina it is
not an "employer" within the definition of the Act and consequently
not subject to the Act's provisions.'
The Respondent urges the same reason as its defense to the unfair
labor practice allegations in the instant proceeding. We reject that
defense as without merit. The legal issue in the instant proceeding
is identical to the one recently decided by us in Randolph Electric
Membership Corporation, 145 NLRB 158. In that case we found
on substantially similar facts that a like entity was not a political
subdivision of a State within the meaning of Section 2 (2) of the Act.
For the reasons stated therein, we similarly find that the Respondent
herein is an employer within the meaning of Section 2(2) of the Act
and as such subject to the Act's provisions and the jurisdiction of the
Board.
Accordingly, we conclude that, by refusing on and after May 20,
1963, to bargain with the Union as the certified bargaining representa-
tive of its employees in the appropriate unit, the Respondent violated
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the 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 commerce 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 the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act,
H A similar contention made by the Respondent in the representation proceeding was there
rejected.
TRI-COUNTY ELECTRIC MEMBERSHIP CORPORATION 813
we shall order the Respondent to cease and desist therefrom. We
shall further order it, upon request, to bargain collectively with the
Union as the exclusive representative of all employees in the appro-
priate unit, and, if an understanding is reached, embody such under-
standing in a signed agreement.
The Board, upon the basis of the foregoing facts, and upon the
entire record, makes the following :
CONCLUSIONS OF LAW
1. Tri-County Electric Membership Corporation is an employer
within the meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union
No. 485, affiliated with The International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the meaning of
the Act.
3. All production and maintenance employees employed by the Re-
spondent at Goldsboro, North Carolina, excluding clerical employees,
professional employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. At all times since May 9, 1963, the Union has been and now is
the certified bargaining representative of all production and main-
tenance employees in the aforesaid appropriate unit within the mean-
ing of Section 9 (a) of the Act.
5. By failing and refusing on and after May 20, 1963, to bargain
with the Union as the certified bargaining representative of the em-
ployees in the aforesaid appropriate unit, the 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.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
amended Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Tri-County
Electric Membership Corporation, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local Union No. 485, affiliated with The
International Brotherhood of Electrical Workers, AFL-CIO, as the
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified bargaining representative of all production and maintenance
employees in the appropriate unit herein set forth.
(b) Interfering in any related manner with the efforts of said
Union to bargain collectively on behalf of the employees in the said
appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the aforesaid Union as
the certified bargaining representative of the employees in the bar-
gaining unit described herein, with respect to wages, rates of pay,
hours of employment, or other terms or conditions of employment,
and, if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is :
All production and maintenance employees employed by the Em-
ployer at Goldsboro, North Carolina, excluding office clerical em-
ployees, professional employees, guards, and supervisors as defined in
the Act.
(b) Post at its headquarters in Goldsboro, North Carolina, copies
of the attached notice marked "Appendix A." a Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon the re-
ceipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with International
Brotherhood of Electrical Workers, Local Union No. 485, affil-
iated with The International Brotherhood of Electrical Workers,
AFL-CIO, as the certified bargaining representative of all em-
SOUTHWEST BANANA DISTRIBUTORS, INC. 815
ployees in the bargaining unit described below with respect to
rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is
All production and maintenance employees at Goldsboro,
North Carolina, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
WE WILL NOT in any related manner interfere with the efforts
of said Union to bargain collectively on behalf of the employees
in the appropriate unit.
TRI-COUNTY ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, Winston-Salem, North Carolina, Tele-
phone No. 724-8356, if they have any question concerning this notice
or compliance with its provisions.
Southwest Banana Distributors , Inc. and South Atlantic and
Gulf Coast District , International Longshoremen 's Association,
AFL-CIO . Case No. P3-CA-1543. January 6, 1964
DECISION AND ORDER
On September 23, 1963, Trial Examiner John P. von Rohr issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Decision. Thereafter, the Gen-
eral Counsel and the Charging Party filed exceptions to the Decision
and supporting briefs. The Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case. to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
145 NLRB No. 87.