Kentucky Rural Electric Cooperative Corp.

KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION 887 place in issue factual matters which could be resolved only on the basis of evidence introduced at a hearing, but which were not placed in evidence because of such stipulation, for the requested unit is on its face clearly one which the Board will not find appropriate, if con- tested.7 Accordingly, we shall permit the Employer to withdraw from its unit stipulation. Consequently, we find that, absent the Employer's agreement, the requested maintenance-type unit is not appropriate. Accordingly, we find that no question affecting com- merce exists concerning the representation of employees of the Em- ployer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. We shall, therefore, dismiss the petition. [The Board dismissed the petition.] 7Florida Enterprises, Inc. of Georgia d/b/a Cadillac Hotel, supra Kentucky Rural Electric Cooperative Corporation and Inter- national Brotherhood of Electrical Workers, Local Union 369, AFL-CIO, Petitioner. Case No. 9-RC-3965. May 24, 1960 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 C. Brafford, hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Leedom and Members Bean and Fanning]. Upon the entire record in this case , the Board finds : 1. The Employer, a nonstock corporation , operating a plant in Louisville, Kentucky , is engaged in furnishing services to 23 member rural electric cooperative associations in the State of Kentucky. Each association supplies electric power and related services to as many as 15,000 to 18,000 subscribers. The Employer performs the following services for its member associations : Assembling new transformers and shipping them to members , repairing transformers and related electrical equipment , supplying hardware, home appliances, and pub- lic information advice, and billing of all electrical accounts to sub- scribers of the member associations . A nominal fee is charged for these services to each of the members . If at the end of the year the Employer has a profit, it is returned to the members on a percentage basis. These members are nonprofit associations selling electrical power to subscribers. During the past 12 months , the Employer pur- 127 NLRB No. 109. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chased products exceeding $1 million in value which were shipped to the Employer from outside the State of Kentucky. During the same period, the Employer's gross volume of business exceeded $1 million. The Employer contends that the coverage of the Act does not extend to it because of the nonprofit nature of its operations. However, it is well settled that the nonprofit character of a cooperative does not withdraw it from the coverage of the Act.' We find that the Em- ployer is an "employer" within the meaning of the Act. The Employer also contends that, as a matter of policy, assertion of Board jurisdiction is not warranted in this case because the Employer is a nonprofit organization and its operations are noncom- mercial in character. We reject this contention. The Employer is engaged in buying supplies and equipment, assembling and processing materials, selling materials to its members, and furnishing services to these members for a fee. The fact that the Employer may be a nonprofit cooperative does not obviate the effect that strikes or labor disputes involving its employees may have upon the free flow of inter- state commerce; 2 and the effect of the Employer's operations on such commerce is in no way diminished by the distribution of its annual profits to its member associations. The Employer's buying and selling of goods and its selling of services to members are clearly commercial in nature.3 As the Employer during the past year purchased products which originated directly from out of State in value exceeding $1 million, its operations clearly affect commerce within the meaning of the Act. As the Employer is engaged in the public utility industry, its gross volume of business exceeded $250,000 a year, and it has the aforesaid inflow of goods, we find that it will effectuate the policies of the Act to assert jurisdiction over the Employer.' 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer's plant is organized into seven departments. The transformer department performs the assembly of transformers and the repair and testing of many types of electrical equipment. All production and maintenance employees work in this department. Sub- scribers of member associations are billed through the Employer's central billing department; this department also operates a printshop. ' Gibson County Electric Membership Corporation , 65 NLRB 760, 763, footnote 10 2 Mississippi Chemical Corporation, 110 NLRB 826, 829; Gibson County Electric Membership Corpoi atoon, supra, footnote 1. 3 Mississippi Chemical Corporation, supra. 4 Sious; Valley Empire Electric Association, 122 NLRB 92, 94. KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION 889 The engineering and purchasing department purchases raw materials for the Employer and operates a warehouse and shipping facilities. All bookkeeping is done by the accounting department. The power use department provides educational aid regarding agricultural and home economics problems. Public relations advice is furnished to member associations by the public relations department. The admin- istrative department oversees the plant operation and provides legal and technical services. The Petitioner seeks a unit of all production and maintenance em- ployees, including warehouse employees and certain printing depart- ment employees. The Employer contends that none of the employees in the printshop should be included in the unit because their work differs from that of the production and maintenance employees. In the alternative, the Employer contends that if any printshop em- ployees are included in the unit, the Board should include them all. The Petitioner would include the two male printing press operators in the unit and exclude, as plant clericals, the remaining four female employees in the printshop who are engaged in artwork, layout, design, proofreading, mailing, and addressing. A forelady immediately di- rects the work of the female employees. The two printing press operators work under the direction of a supervisor who is in charge of the entire printshop. All printshop employees receive the same employment benefits. Although the work done in the printshop is substantially different from the work done by the production and maintenance employees, and each group has separate supervision, they are all hourly paid and, so far as appears, all receive the same employ- ment benefits. No union seeks to represent any of the printshop employees separately. As all the printshop employees, including the four female employees, work directly in the production of printed material, we find that they are production employees. Since the print- shop employees appear to have sufficient interests in common with other employees in the unit to be included therein, we shall include them in the unit.5 We find no merit in the Employer's contention, namely, that the Petitioner is not qualified to represent printshop employees because it is not a union that traditionally represents such employees, as the Petitioner is not seeking to sever these employees from an existing unit.' Two warehouse employees work in the Employer's shipping and warehouse department. The Petitioner seeks their inclusion in the unit. The Employer contends that they should be excluded because their work is different from that of the production and maintenance employees. The warehouse employees work under the separate super- vision of the warehouse foreman. There is no transfer of employees 'Litton Indaastries of Maryland, Incorporated, 125 NLRB 722. u Plastic Film Company, Inc , 123 NLRB 1146. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between that department and the department doing production and maintenance work. The warehouse employees spend about 25 percent of their time supplying materials to production and maintenance employees in the transformer department. Like the production and maintenance employees and the employees in the printshop, they are hourly paid. The record does not show that the employment benefits received by the warehouse employees differ from those of the other employees in the unit. As the warehouse employees work exclusively in the care of the Employer's products, as they 'spend a substantial portion of time working in the production and maintenance depart- ment, and as they have a substantial community of interest with the production and maintenance employees, we shall include the ware- housemen in the unit.7 The janitor in the Employer's plant works under the supervision of the warehouse supervisor. The janitor does cleaning in all plant areas, and does no repair or production work. His pay is computed on an hourly basis. The Employer contends that the janitor should be included in the unit; the Petitioner takes no position regarding the jan'itor's unit placement. As janitors are customarily included in a unit with production and maintenance employees, and no persuasive reason has been given for the janitor's exclusion, we shall include him in the unit.' Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act:' All production and maintenance employees of the Employer, including warehouse em- ployees, all printing department employees, and the janitor, but ex- cluding all office clerical, professional, and salaried employees, guards, and supervisors as defined in the Act. 5. Because of a seasonal slump in workload, the Employer gave notice of layoff to 18 of the production and maintenance employees, 7K W B Manufactuiang Company, 106 NLRB 1305, 1307. "Phillips Petroleum Company, Mining and Malting Department Ambrosia Mill, etc., 122 NLRB 1348, 1350 The parties stipulated that the employees in the accounting department should be excluded from the unit as office clerical employees . Consequently, we shall exclude them . The parties stipulated that the purchasing agent , assistant purchasing agent, and a part-time draftsman in the engineering and purchasing department shall be excluded from the unit as professional or plant clerical employees ; accordingly, we shall exclude them. The parties stipulated that the editor and the public relations man in the public relations department shall be excluded as professionals , and that their secretary should be excluded as an office clerical. Pursuant to this stipulation , these persons are hereby excluded from the unit The parties also stipulated that the agricultural engineer and the home economist in the power use department shall be excluded from the unit as pro- fessionals ; accordingly , we shall exclude them It was further stipulated by the parties that J K. Smith, E F Bryan, Hanley Short, Donald Seidert, Lloyd Hall, and Don Chrisman are supervisors within the meaning of the Act Consequently, we shall ex- clude them from the unit. The parties stipulated that Earl Bowling, foreman of the warehouse, and James Ferguson , foreman of the printshop , have authority to recommend hiring and discharge of employees. Accordingly , we find that they are supervisors within the meaning of the Act, and we hereby exclude them from the unit BECHTEL CORPORATION 891 the notice to take effect on March 3, 1960. At the time of the hearing the Employer, was operating- with a total work force of 25 or 26 pro- duction and. maintenance employees, including those who had been given notice of layoff. The Employer expects to recall all furloughed employees after 3 or 4 weeks of layoff. The parties stipulated that these employees shall be eligible to vote in any election directed. As all employees who may be affected by the prospective layoff have a reasonable expectation of reemployment in the foreseeable future in the event of such layoff, we find that they are eligible to vote.lo [Text of Direction of Election omitted from publication.] in American Oil Company, 118 NLRB 229, 230-231. Bechtel Corporation and Albert B. Noseworthy, Robert L. Gibbons, Albert G. Mulley, William T. Green. Cases Nos. 1-CA-2898, 1-CA-2899, 1-CA-2900, and 1-CA-2901.. May 25, 1960 DECISION AND ORDER On February 26, 1960, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the said complaint be dis- missed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts, the Trial Examiner's findings, conclu- sions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by the individuals named in the caption, the General Counsel of the National Labor Relations Board issued a consolidated complaint, dated August 28, 1959, against Bechtel Corporation, herein called Respondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (8) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Respondent 127 NLRB No. 110.