Central Electric Power Cooperative

CENTRAL ELECTRIC POWER COOPERATIVE 1059 Central Electric Power Cooperative and International Broth- erhood of Electrical Workers, Local No. 2, AFL , Petitioner. Case No. 14-RC-2735. August 25,1955 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 Henry L. Jalette, 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, herein called Central, is a nonprofit electric power cooperative organized in 1949 under the Rural Electric Coop- erative law of Missouri. Central has 7 members, including 6 electric cooperatives known as Boone, Howard, Calloway, Consolidated, Three Rivers, and Ko-Mo, respectively,' and a corporation known as Sho-Me,2 which operates under a franchise from the Missouri Public Service Commission; all are situated in Missouri. The Petitioner contends that Central's operations meet the current tests established by the Board for local public utilities or for enterprises rendering services thereto. The Employer takes no position respecting jurisdic- tion. Central is owned by 6 of its members, including Sho-Me, and is directed by a board of directors composed of 2 individuals selected by each of its members. Central's construction was financed by the Rural Electrification Administration. Central is engaged in the purchase and generation of electric power and its distribution at wholesale to its operating members, who in turn resell the power at retail to con- sumers, including farm families and municipalities. Central's pur- chases of power are from Southwest Power Administration. All of Central's power lines are situated in the State of Missouri except for 13 miles in the State of Arkansas, over which is transmitted the power purchased by Central. Central has no operations or employees in Arkansas and distributes all of the power it sells at points in Missouri. In 1954, Central purchased power valued at $1,300,000. During the same period, Central sold power valued at $1,775,182.50, of which $1,008,000 represents sales to Sho-Me; $450,000 represents sales to the other members ; $100,000 represents income from the rental of its lines ; 'Boone Electric Cooperative, Columbia, Missouri ; Howard Electric Cooperative, Fay- ette, Missouri, Calloway Electiic Cooperative, Fulton, Missouri; Consolidated Electric Cooperative, Mexico, Missow i ; Three Rivers Electric Cooperative, Linn, Missouri ; and Ko-Mo Electric Cooperative, Tipton, Missouri ' Sho-Me Power Corporation, Maishfield, Missouri. Sho-lie is wholly owned by 11 dis- tribution cooperatives, save for nine qualifying shares. It furnishes power to those coop- eratives, to municipalities at wholesale, and to 7,000 customers at retail. The 11 coopera- tives furnish electric service to farm families at retail. 113 NLRB No. 104. t 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the remainder represents income from the sale of power to South- west Power Administration. For the fiscal year ending June 30, 1953, Boone, Howard,. Calloway, Consolidated, and Three Rivers had a total volume of business of $1,459,519; Ko-Mo had a total volume of business of $464,000; and Sho-Me had a total volume of business of $1,750,398, making a total volume,of business for all members in the amount of $3,673,917. Coma merce figures for these companies for 1954 were not adduced in the record. In Greenwich Gas Company and Fuels, Incorporated, 110 NLRB 564, the Board (Members Murdock and Peterson dissenting) decided that in future cases it would assert jurisdiction over local public utility and transit systems affecting commerce whose gross volume of business is $3,000,000 or more per annum. In Clay Electric Cooperative, Inc., 111 NLRB 175, the Board held that "REA" cooperatives are analo- gous to local public utilities for Board jurisdictional purposes and therefore subject to the test set forth in the Greenwich Gas case for local public utilities. In our opinion, it was not the intention of the Board to include wholesale electric cooperatives such as Central within the scope of its local public utility test. On the contrary, we believe that for jurisdic- tional purposes such wholesale cooperatives are more analogous to those intrastate enterprises over which the Board asserts jurisdiction in accordance with the tests set forth in Jonesboro Grain Drying Coop- erative,110 NLRB 481, than to local public utilities and retail, electric cooperatives, which, unlike wholesale cooperatives, customarily and traditionally serve the consuming public or segments thereof. Accordingly, we hereby modify the Board's test for the assertion of jurisdiction over local public utilities, as originally set forth in the Greenwich Gas case, as follows : in all future cases, the Board will assert jurisdiction over local transit systems, local retail public utility systems, and local retail electric cooperatives affecting commerce whose gross volume of business is $3,000,000 or more per annum; and will assert jurisdiction over wholesale electric utilities in accordance with the standards in the Jonesboro case. As Central's annual direct inflow of power from outside the State exceeds the minimum figure of $500,000 established by the Board for the assertion of jurisdiction over intrastate enterprises based on their direct purchases from without a State, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes and policies of the Act to assert jurisdiction over the Employer in the instant case. 2. The labor organization herein involved claims to represent cer- tain employees of the 4mployer. - . , 1 ,.. . CENTRAL ELECTRIC POWER COOPERATIVE _ 1061 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 a unit of the Employer's linemen, engaged in servicing the lines of the Employer's Chamois, Missouri, plant, the Employer's sole plant. The Employer contends that the Petitioner's unit is inappropriate, and that a single unit which includes the em- ployees in the Chamois plant with the linemen is alone appropriate. The Employer employs 23 employees in the Chamois plant and 11 linemen who work on the lines outside the plant. The linemen are separately supervised and situated and do not regularly interchange with ,the plant employees. Since July 1, 1953, Utility Workers Union of America, CIO, has been the Board-certified representative of all employees at the Chamois plant, excluding office and plant clerical employees, professional employees, guards, and supervisors as defined in the Act ; its latest contract with the Employer expired by its terms on December 31, 1954. At the time of the certification the Employer employed no linemen. They have not been represented in the past and are currently unrepresented. Neither Utility Workers Union of America, CIO, nor any other labor organization currently seeks to represent them in any unit of larger scope. Under these circumstances, we conclude that the Employer's linemen constitute an appropriate residual bargaining unit.' We therefore find that all outside construction, transmission, and maintenance employees engaged in work on the lines of the Em- ployer's Chamois, Missouri, plant, excluding office clerical employees, watchmen, all other employees, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER MURDOCIZ, concurring specially : I concur in the assertion of jurisdiction over this electric utility Employer because it is a liberalization, although slight, of the highly restrictive standards for public utilities laid down a year ago in Green- wich Gas' and is a step back in the direction of .the old de minimis test. However I do not regard the distinction here drawn between "wholesale" and "retail" public utilities as the basis for revising the public utility standard to permit the assertion of jurisdiction here as a constructive or logical one. My colleagues of the majority say in ,effect that henceforth when confronted with a wholesale public utility they will disregard the fact that it is a public utility and give con- 8 Lee Brothers Foundry, Inc., 106 NLRB 212. 6 110 NLRB 564. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trolling effect to the adjective "wholesale," thus applying the Jones- boro standards for wholesalers instead of the public utility standard. This kind of logic strikes me as of a piece with that used in Green- berg Mercantile Corp.,5 where the majority applied the intrastate retail standard to take jurisdiction of a part of an interstate retail chain instead of applying the interstate retail chain standard. By the same logic it would seem that the substantial number of public utilities which the majority has now classified as "retail " public utilities should have the Hogue and Knott Supermarkets 5 retail standard applied in- stead of the public utility standard . Or, since the large number of electric utilities that generate their own power which they sell to in- dividual consumers , as well as to commercial concerns , may be re= garded as 'manufacturers, and as the Jonesboro standards also govern the Board's assertion of jurisdiction over manufacturers , that standard would be applied to such utilities . However, my colleagues do not follow the reasoning which led to their modification of the Greenwich Gas standard as it applies to "wholesale " public utilities , to its logical conclusion with respect to the remaining "retail" public utilities. More restrictive standards are still imposed on the majority of public utilities than are imposed on other enterprises whose operations have less impact on interstate commerce. The change in the standard does serve , however, to bring into focus the observations made in the dissenting opinion in the Green- wich Gas case, in which Member Peterson and I joined , wherein we stated : It may also be noted that a yardstick which purports to test the effect of a utility 's operations on interstate commerce solely, in terms of the size of its gross revenue is likewise defective for other reasons . Thus, a $3,000,000 utility may generate all its power and sell all its products within one State or even one large city, and have neither out-of-State inflow or outflow. A $2,000,000 utility, which by majority fiat has no substantial effect on com- merce, however, may bring a substantial part of its power across a State line and may sell across State lines, clearly having a far greater impact on commerce in terms of its inflow and outflow. Furthermore, it is obvious that there will be many small industrial cities throughout the land whose manufacturers ' are dependent for power upon utilities with gross revenues of less than $3,000,000 and whose shipment of goods in commerce could be stopped by a cessation of power. Is the effect upon the commerce of indus- tries which are dependent on power of a cessation of such power any different because they happen to be located in a community whose utility has only $1,000;000 in gross revenue rather than 112 NLRB 710. 110 NLRB 543. CENTRAL ELECTRIC POWER COOPERATIVE 1063 $3,000,000? Moreover, the gross receipts standard will result in taking jurisdiction of some utilities all of whose customers are residential rather than industrial, while denying jurisdiction over many utilities which have substantial number of industrial cus- tomers dependent upon power to produce goods for interstate commerce. A standard which is productive of such paradoxical results is obviously, not a proper yardstick by which to measure impact on interstate commerce. The modification in the utility standard announced herein adds to rather than detracts from the paradoxical results produced by the Greenwich Gas standard. Accordingly, without adopting the rationale of the majority; I con- cur in the assertion of jurisdiction over the Employer because I be- lieve that all public utilities have such an important impact on com- merce as to warrant the Board's assertion of jurisdiction over all such enterprises which are engaged in commerce, subject only to the rule of de minimis. MEMBER RODGERS, dissenting : I would not assert jurisdiction over the Employer in this case. The Employer, a nonprofit cooperative under the Rural Electric Cooperative Law of Missouri, purchased in 1954 power. valued at $1,300,000, and during the same period sold power valued at $1,775,- 182.50, most of which was to its own members within the State. The Board held in Clay Electric Cooperative, Inc., 111 NLRB 175, that "REA" cooperatives like the Employer, 'are analogous to local public utilities for Board jurisdictional purposes. In Greenwich Gas Com- pany and Fuels, Incorporated, 110 NLRB 564, the Board announced that the minimum standard necessary for taking jurisdiction over a public utility is $3,000,000 gross annual business. As the Employer's gross volume of business is considerably below that figure, jurisdiction cannot be asserted under the Board's current policy. Nor can juris- diction be asserted over the Employer, as the Petitioner contends, on the basis of the annual total value of business of its members since the Employer and its members are clearly not functionally integrated with respect to labor relations" policies or in an operational sense so as to warrant a finding that they together constitute a single employer for jurisdictional purposes. The majority does not question the impact of the Clay Electric decision on this Employer's business, and apparently finds no merit in the Petitioner's contention that the Employer together with its members be treated as a single 'employer. Instead, my colleagues assert jurisdictionzby creating an exception to the policy expressed in the',Greenwich Gas case on the basis, of the Employer being a so-called 370288-56-vol 113-68 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "wholesale" cooperative. I consider this an utterly unwarranted dis- tinction. The Greenwich Gas criterion is based on gross volume of business of public utilities. To assert jurisdiction over a cooperative which fails to meet the minimum gross volume figure because it sells to its members at "wholesale" is manifestly in derogation of the juris- dictional standards with respect to public utilities recently adopted, and serves only to unduly complicate, without warrant in fact or logic, an otherwise simple rule. I disagree that any such result was intended when the rule was adopted. Clearly, the so-called "whole- sale" cooperative, operating, as it does, within the State, is essentially as local and no different from any other cooperative. The majority's distinction, in my opinion, is therefore more fancied than real. As the Employer's annual gross volume of business is far below the minimum figure established in Greenwich Gas, I would dismiss the petition. Royal Jet, Incorporated and Independent Metal Workers of America, Petitioner. Case No. 21-RC-3922. August 25; 1955 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 Ben Grodsky, hearing officer. The hearing officer's rulings made at the hearing are free from prej-' udicial error and are hereby affirmed.' The Employer and Sheet Metal Workers International Association, Local Union No. 170, AFL, contend that the Petitioner has failed to make a proper. showing of interest as- serting that the showing may be tainted with fraud . Where, as here, parties are advised at the hearing that evidence of fraud in procurement of cards may be adduced before the Re- gional Director and fail to do so , there is no warrant for further inquiry into their authen- ticity. Under all the circumstances , we are administratively satisfied that the Petitioner's showing of interest is sufficient . See Fox Manufacturing Company, 112 NLRB 977; Poto- mac Electric Power Company, 111 NLRB 553 - The Employer and Intervenor moved to dismiss or remand this proceeding because of the hearing officer's prejudicial error in (1) , Refusing evidence to prove that the Peti- tioner 'was not a labor . organization and, in effect , ruling that the Petitioner was a labor organization ; ( 2) permitting the Petitioner to amend the unit description to conform with that in the Intervenoi 's contract ; ( 3) denying the Intervenor's motion to dismiss; and (4 ) closing the record before the Board ruled on the motions made at the hearing. As to ( 1), we agree that the hearing officer erroneously restricted the attempts to present evidence pertaining to the status of the Petitioner as a labor organization because it is a proper issue to be investigated at the hearing and to be determined by the Board. How- ever, we find no prejudicial error because the hearing officer made no such determination and because the record reveals sufficient evidence upon which the Board can make such a determination . As to ( 2), the hearing officer did not abuse his discretion in permitting the unit amendment , nor was anyone prejudiced because the parties were afforded full opportunity to litigate the unit issues As to ( 3), Section 102 57 of the Board's Rules and Regulations provides that motions to dismiss be referred to the Board for disposition. The hearing officer inadvertently denied the Intervenor's motion to dismiss but promptly corrected his error and referred the motion to the Board We do not believe that this constitutes prejudicial error . As to (4), the hearing examiner properly closed the record at the end of the hearing without waiting for the Board 's determination of motions made on the record . In accord with Section 102 59 of the Board's Rules and Regulations, the Regional Director forwarded the entire record , including rulings and motions, for review 113 NLRB No. 101.