American Municipal Power, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 2018

366 NLRB No. 160 (N.L.R.B. 2018)

366 NLRB No. 160
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
American Municipal Power, Inc. and International
Brotherhood of Electrical Workers, AFL–CIO,
Local Union No. 816. Case 10–CA–221403
August 14, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on June 4, 2018,
by International Brotherhood of Electrical Workers,
AFL–CIO, Local Union No. 816 (the Union), the Gen-
eral Counsel issued the complaint on June 14, 2018, al-
leging that American Municipal Power, Inc. (the Re-
spondent) has violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to recognize and bargain
with it following the Union’s certification in Case 10–
RC–213684. (Official notice is taken of the record in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(d).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On July 5, 2018, the General Counsel filed a Motion
for Summary Judgment. On July 10, 2018, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent filed a response, and the
General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contention, raised and reject-
ed in the underlying representation proceeding, that the
unit is not appropriate under the Act because it includes
employees who do not share a community of interest
with the employees who should be in the unit.1
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-

1 The Respondent’s answer denies par. 6 of the complaint, which
sets forth the appropriate unit. The unit issue, however, was fully liti-
gated and resolved in the underlying representation proceeding. Ac-
cordingly, the Respondent’s denial of the appropriateness of the unit
does not raise any litigable issue in this proceeding.
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor has it shown any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been an Ohio
corporation with a hydroelectric power-generation plant
in Smithland, Kentucky, and has been engaged in the
generation, transmission, and distribution of electric power
and energy.
In conducting its operations described above, the Re-
spondent annually purchases and receives at its Smith-
land, Kentucky power plant, goods valued in excess of
$50,000 directly from points outside the Commonwealth
of Kentucky.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on February
23, 2018, the Union was certified2 on March 6, 2018, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time Operator I and Op-
erator II employees employed by American Municipal
Power, Inc. at its facility located at 1297 Smithland
Dam Road, Smithland, Kentucky, excluding office
clerical employees, professional employees, confiden-
tial employees, guards, and supervisors as defined in
the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.

2 By unpublished order dated May 31, 2018, the Board denied the
Respondent’s request for review.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Refusal to Bargain
By letters dated April 10 and May 14, 2018, respec-
tively, the Union requested that the Respondent recog-
nize and bargain with it as the exclusive collective-
bargaining representative of the unit employees. Since
about April 10, 2018, the Respondent has failed and re-
fused to do so.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since April 10, 2018, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in unfair la-
bor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, American Municipal Power, Inc., Smith-
land, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers, AFL–
CIO, Local Union No. 816, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time Operator I and Op-
erator II employees employed by American Municipal
Power, Inc. at its facility located at 1297 Smithland
Dam Road, Smithland, Kentucky, excluding office
clerical employees, professional employees, confiden-
tial employees, guards, and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facility in Smithland, Kentucky, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since April 10, 2018.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 14, 2018
______________________________________
Mark Gaston Pearce, Member

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
AMERICAN MUNICIPAL POWER, INC. 3
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
AFL–CIO, Local Union No. 816 (the Union) as the ex-
clusive collective-bargaining representative of our em-
ployees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
All full-time and regular part-time Operator I and Op-
erator II employees employed by us at our facility lo-
cated at 1297 Smithland Dam Road, Smithland, Ken-
tucky, excluding office clerical employees, professional
employees, confidential employees, guards, and super-
visors as defined in the Act.
AMERICAN MUNICIPAL POWER, INC.
The Board’s decision can be found at
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decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.