Farmers' Electric Cooperative, Inc.

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen, gang or group leaders, the head floormen, the head cooks, the inspec- ;tors departmental," and the development laboratory assistants , but excluding clerical (including intraplant messengers and Ernest F. Crawford) and office -employees, salaried employees, bricklayers, guards, the head shipping clerk, -supervisors, and all other supervisory employees with authority to hire, promote, -discharge, discipline, or otherwise effect changes in the status of employees; or effectively recommend such action, constitute a unit appropriate for the purposes •of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 85, United Gas, Coke & Chemical Workers of American, C. I. 0., was on May 7, 1945, and at all times thereafter has been, the exclusive representative -of all the employees in the above- mentioned appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the aforesaid Union, the Respondent ,has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire or tenure and terms and conditions -of employment of some of its employees, thereby discouraging membership in the aforesaid Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the above unfair labor practices, and by otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged 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. 8. The Respondent did not commit unfair labor practices by discharging Yousef Ahmed, Joseph Bartha, George Barrier, Anthony Ciurylo, Walter Dolhon, -Andrew Ezak, Cleve Henderson, Thomas J. Morganti, and Robert Simmons. [Recommendations omitted from publication in this volume.] 74 John Henner is excluded as a supervisory employee. FARMERS' ELECTRIC COOPERATIVE , INC. and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 69, AFL . Case No. 16-CA-429. August 25,1952 Decision and Order STATEMENT OF THE CASE Upon a charge filed on September 13, 1951, by International Brotherhood of Electrical Workers, Local Union No. 69, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated October 8, 1951, against Farmers' Electric Cooperative, Inc., Greenville, Texas, herein called the Re- 100 NLRB No. 119. FARMERS' ELECTRIC COOPERATIVE, INC. 747 spondent, alleging that the 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. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that, on or about September 7, 1951, the Respondent refused, and at all times thereafter has continued to refuse, to bargain collec- tively with the Union as the exclusive representative of the Respond- ent's employees in an appropriate unit. In its answer, filed on October 15, 1951, the Respondent in substance admitted the refusal-to-bargain allegations of the complaint but as- serted that the Board had no jurisdiction in this proceeding. On various dates in October 1951, the parties executed a "Stipula- tion," subject to the approval of the Board, providing in substance, among other things, (1) that the "Board may find the facts contained in Appendix A," attached to the stipulation, "to be true and correct"; (2) that "the parties hereby waive a hearing herein and agree that the . . . Board may make Findings of Fact, Conclusions of Law and may issue its Decision and Order based thereon as if the same facts. had been adduced in open hearing before a duly authorized Trial Ex- aminer of the . . . Board"; and (3) that the stipulation, together with copies of the complaint, charge, the Respondent's answer, and Appendix A, attached to the stipulation, shall constitute the entire record in this proceeding. Appendix A, attached to the stipulation, provided in substance, among other things, (1) that "the transcript of testimony, including but not limited to stipulations and exhibits in Farmers' Electric Coop- erative, Inc. and International Brotherhood of Electrical Workers, Local Union No. 69, AFL, Case No. 16-RC-716," be "incorporated herein by reference"; and (2) that "The stipulation appearing in that transcript may be taken as true, and the other evidence therein may be given the same weight and effect as if that evidence had been adduced in the same form in this proceeding." The Respondent thereafter filed a brief with the Board. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman Herzog and Members Styles and Peterson]. The aforesaid stipulation is hereby approved and made part of the record herein, and in accordance with Section 102.50 of National Labor Relations Board Rules and Regulations-Series 6, as amended, this proceeding is hereby transferred to, and continued before, the Board. Upon the basis of the aforesaid stipulations and the entire "748 DECISIONS OF NATIONAL LABOR REIrATIONS BOARD record in the case, and upon full consideration of the Respondent's brief, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation with its principal office in Greenville,- Texas,. is a nonprofit electric cooperative engaged in the distribution of electric power to its members in 11 counties in the-State of Texas. The members consist of 5,236 farm users and approxi- mately 55 commercial or nonfarm users. The enterprise is financed by the Rural Electrification Administration. The Respondent does not generate any electricity. During the 3 ear 1950, the Respondent purchased from Southwest Power Adminis- tration, an agency of the United States Department of the Interior, electrical energy at a cost of $34,211.12? All this power was obtained from the Southwest Power Administration at connecting points within the State of Texas. During 1950, the Respondent purchased electrical supplies and equipment, including poles, wire, transformers, and conductors, in the amount of $21,272.52. Of this amount, supplies and equipment in the amount of $20,117.52 were shipped -to the Re- spondent from points outside the State of Texas. The Respondent purchased the balance of these supplies, consisting of conductors, from Aluminum Company of America, Pittsburgh, Pennsylvania, through its warehouse in Dallas, Texas. During the year 1950, the Respondent received from its members, exclusive of fees covering membership applications, meter deposits, and other like payments, all amount in excess of $79,500, in payment for electric power distributed to them.2 Of this amount, the Respond- ent distributed, in addition to an unspecified amount delivered to com- mercial users such as independent school districts, rural grocery stores, athletic fields, and churches, electrical power in the amount of $6,- 083.50 to American Liberty Oil Company, Gulf Refining Company, Iowa Payne Oil Company, Shell Oil Company, Texas Construction .Company, and Southwestern Bell Telephone Company, of whom at least some are engaged in activities affecting interstate commerce 3 We take official notice of the fact that the electric power purchased by the Respondent from Southwest Power , Administration is generated from navigable waterssat the Den- nison Dam on the Red River between the States of Texas and Oklahoma. 2 The amount of $79,500 represents, in addition to cost of electricity to the Respondent plus the cost of distribution , an unspecified amount to repay loans made by the Respondent to defray the cost of capital expenditures. a we take official notice that Southwestern Bell Telephone Company, Gulf Refining Company, and Shell Oil Company are engaged in commerce within the meaning of the Act Southwestern Bell Telephone Company used the electrical power purchased from the Respondent In the operation of ruial telephone lines The four oil companies men- tioned above used the electrical power they purchased from the Respondent In the production of minerals. FARMERS' ELECTRIC COOPERATIVE, INC. 749 As already indicated, the Respondent contends that the Board has no jurisdiction over the Respondent's operations. On the basis of -the foregoing facts, we find that the Respondent is engaged in opera- tions affecting commerce within the meaning of the Act 4 We find no merit in the Respondent's contention that its operations are within the rule of de 'tlminimis. We further find that a cooperative utility of the type involved herein should, for these purposes, be treated as a public utility. Therefore, in accordance with the-Board's established policy to take jurisdiction over public utilities, we shall, in order to ,effectuate the policies of the Act, assert jurisdiction in this case .5 II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is a labor organi- zation within the meaning of the Act. It admits to membership em- ployees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit On May 0, 1951, the Board issued its Decision and Direction of Election in Farmers' Electric Cooperative, Inc., 16-RC-716, in which, among other things, the Board determined that the following employ- ees of the Respondent constitute a unit appropriate for the purpose of collective bargaining : All employees in the construction, maintenance, meter, and trans- former departments, including lineman first class, lineman second class, lineman's helper, apprentice lineman, nieterman, and truck drivers at the Employer's Greenville, Texas, plant, but ex- cluding office and clerical employees, guards, professional em- ployees, and supervisors as defined in the Act. The Respondent did not contend in the representation proceeding and does not now contend that such unit is inappropriate. Accord- ingly, we find that the unit described above was at all times material herein and is now appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 2. The Union's majority status On or about June 21, 1951, the Board, in said representation pro- ceeding, certified the Union as the exclusive representative for the 4 See, for example, Cullman Electric Cooperative, 99 NLRB 753 5 See, for example , Black River Electric Cooperative, 98 NLRB 539 ; Wheatland Electric Cooperative, Inc., 94 NLRB 109; Cherokee County Rural Electric Cooperative Association, 92 NLRB 1181 ; Plymouth Electric Cooperatii e, 92 NLRB 1183 ; W. C. King d/ b/a Local Transit Lines, 91 NLRB 623 ; Buckeye Rural Electric Cooperative, Inc., 88 NLRB 196 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of collective bargaining of all the employees in the unit described above. The Respondent does not dispute the Union's ma- jority status. Accordingly, the Board finds that on June 21, 1951, and at all times thereafter, the Union was, and now is, the exclusive representative of all the employees in the above-described appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 3. The refusal to bargain On or about August 6, 1951, E. S. Reynolds, a union representative, accompanied by a committee of employees, met with F. G. Taylor, the Respondent's manager, and other representatives of the Respondent and presented a proposed contract covering the employees in the aforesaid appropriate unit for the Respondent's consideration. Taylor informed Reynolds that he, Taylor, would be unable to discuss the contract with Reynolds until after September 6, 1951. On or about- September 7, 1951, the Respondent sent a letter to the Union saying that the Respondent had been advised by counsel that the Respondent was not subject to the provisions of the Labor-Man- agement Act, 1947, and that the Respondent accordingly refused to^ consider the Union's proposed contract or to conduct contract negotiations. The parties stipulated, and we find, that since on or about September 7, 1951, the Respondent "has refused to meet with and bargain with the Union for the purposes of collective bargaining with respect to. rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclusive representative of the employees" in the aforesaid appropriate unit "for the reasons set forth" in the Respondent's letter referred to above. We have found that the Respondent is engaged in operations af- fecting commerce within the meaning of the Act and that it would effectuate the policies of the Act to exercise jurisdiction in this case. Hence we conclude that the Respondent's reason for refusing to bar- gain with the Union did not justify the Respondent's conduct. Accordingly, we find that on or about September 7, 1951, and at all times thereafter, the Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (5) of the Act, thereby inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 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 the operations of the Respondent de- FARMERS ' ELECTRIC COOPERATIVE, INC. 751 scribed in section I, above, have a close, intimate, and substantial rela- tion 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. V. THE REMEDY We have found that the Respondent unlawfully refused to bargain with the Union. We believe that to effectuate the policies of the Act, we must order the Respondent, upon request, to bargain with the Union for the employees in the appropriate unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local Union No. 69, AFL, is a labor organization within the meaning of Section 2 ,(5) of the Act. 2. All employees in the construction, maintenance, meter, and trans- former departments, including lineman first-class, lineman second- -class, lineman's helper, apprentice lineman, meterman, and truck drivers at the Respondent's Greenville, Texas, plant, but excluding office and clerical employees, guards, professional employees, 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. 3. International Brotherhood of Electrical Workers, Local Union No. 69, AFL, was on June 21, 1951, and at all times since, has been, the exclusive representative of all employees in the appropriate unit for purposes of collective bargaining within the meaning of Section 9 (a) .of the Act. 4. By refusing on and after September'7, 1951, to bargain collec- tively with International Brotherhood of Electrical Workers, Local Union No. 69, AFL, as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the-Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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 Act. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Farmers' Electric Cooperative,, Inc., Greenville, Texas, 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. 69, AFL, as the exclusive- representative of all its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) In any other manner interfering with the efforts of Interna- tional Brotherhood of Electrical Workers, Local Union No. 69, AFL, to negotiate for or represent the employees in the 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 International Brother- hood of Electrical Workers, Local Union No. 69, AFL, as the exclusive representative of all employees in the appropriate unit described above, and embody any understanding'reached in a signed contract. (b) Post in conspicuous places at its plant in Greenville, Texas, including all places where notices to employees are customarily posted, copies of the notice attached hereto as Appendix As Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representa- tive, be posted by the Respondent immediately upon receipt thereof and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Regioia,. Fort Worth, Texas, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Appendix A 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, we hereby notify our employees that : WE WILL bargain collectively upon request with INTERNA- TIONAL BROTHERHOOD Or Era CTRICAL WORKERS, LOCAL UNION No. I In the event that this Order is enforced by decree of a United States Court of Appeals, there shall he substituted, for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order," UNITED BROTHERHOOD OF CARPENTERS, ETC. 753. 69, AFL, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay,, wages, hours of employment, other conditions of employment,. and if any understanding is reached, embody such understanding; in a signed agreement. The bargaining unit is: All employees in the construction, maintenance, meter, and transformer departments, including lineman first;elass, line man second-class, lineman's helper, apprentice lineman,, meterman, and truck drivers at the employer's Greenville,, Texas, plant, but excluding office and clerical employees,. guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of INTER NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 69, AFL, to negotiate for or represent the employees in the aforesaid unit as their exclusive bargaining agent. FARMERS' ELECTRIC COOPERATIVE, INC., Employer. By ------------------------------------------ (Representative ) ( Title). Dated -------------------- This notice must remain posted for 60 days from the date thereof,. and must not be altered, defaced, or covered by any other material. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , LOCAL. UNION No. 55, AFL, AND FRANK ALLEN, ITS AGENT and THE. GRAUMAN COMPANY. Case No. 30-C,B-17. August 25, 1952 Decision and Order On February 26, 1952, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding, that the Respondents 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 copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed excep- tions and a supporting brief. The Respondents filed a brief in support. of the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner made. at the hearing and finds that no prejudicial error was committed.. 1 Pursuant to the provisions of Section 8 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog anti? Members Styles and Peterson]. 100 NLRB No. 126.