Dixie Electric Membership Corporation

National Labor Relations Board - Board Decisions

Nov 19, 2014

361 N.L.R.B. 942 (N.L.R.B. 2014)

942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dixie Electric Membership Corporation and Interna-
tional Brotherhood of Electrical Workers, Local
Union 767. Cases 15–CA–019954 and 15–UC–
061496
November 19, 2014
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON AND SCHIFFER
On August 31, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
1089. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Fifth
Circuit, and the General Counsel filed a cross-application
for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings and conclusions, to the extent and for the
reasons stated in the Decision and Order reported at 358
NLRB 1089, which is incorporated herein by reference,1
1 Member Johnson concurs that the Respondent violated Sec. 8(a)(5)
by changing the scope of the unit without the Union’s consent when it
removed the chief system operator (CSO) and system operators (SOs)
from the unit. See Arizona Electric Power Cooperative, Inc., 250
NLRB 1132 (1980) (finding that, independent of whether dispatchers
were supervisors, utility unlawfully removed dispatchers from unit
without union’s consent during term of contract). Because it would not
materially affect the remedy, Member Johnson finds it unnecessary to
decide whether this conduct also violated Sec. 8(a)(5) as a unilateral
transfer of unit work or whether the Union waived its right to bargain
over any transfer.
In concurring in the finding that the UC petition was untimely filed,
Member Johnson notes that he would not find the 4-month delay here
unreasonable if the parties had agreed to this amount of time in their
side agreement. In the absence of an agreed-upon timeframe, however,
the Respondent was required to file its petition “shortly after the con-
tract was executed.” WNYS-TV, 239 NLRB 170, 171 (1978). The
cases cited by the judge demonstrate that the gap here is beyond what
the Board has allowed.
we adopt judge’s recommended Order, as modified here-
in.2
ORDER
The National Labor Relations Board adopts the re-
commended Order of the administrative law judge as
modified below and orders that the Respondent, Dixie
Electric Membership Corporation, Baton Rouge, Louisi-
ana, its officers, agents, successors, and assigns shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 2(f) and reletter
the subsequent paragraphs.
“(f) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

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 do anything that interferes with these
rights.
WE WILL NOT remove chief systems operators and sys-
tems operators from the bargaining unit represented by
Finally, Member Johnson notes that the Respondent’s citation of
Gratiot Community Hosp. v. NLRB, 51 F.3d 1255, 1262 (6th Cir.1995),
is actually a citation to the dissenting opinion, and thus not an accurate
statement of the law. Rule 102.46(c)(3) of the Board’s Rules and
Regulations requires that parties “clearly” present the facts and law in
support of their argument; the Respondent’s misleading citation to
Gratiot fails to meet this standard.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Don Chavas LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014). We shall also substitute new notices to
conform to the modified Order and in accordance with our decision in
Durham School Services, 360 NLRB 694 (2014).
361 NLRB No. 107

DIXIE ELECTRIC MEMBERSHIP CORP. 943
the International Brotherhood of Electrical Workers, Lo-
cal Union 767, without the Union’s consent.
WE WILL NOT fail and refuse to recognize the Union as
the exclusive collective-bargaining representative of our
employees holding chief systems operator and systems
operator positions and WE WILL NOT fail and refuse to
apply the terms of the existing collective-bargaining
agreement to those employees.
WE WILL NOT transfer work from unit employees to
nonunit employees, without first affording the Union
notice and an opportunity to bargain over the transfer
decision and its effects.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind our December 1, 2010 elimination of
the bargaining unit chief systems operator and systems
operator positions, related reclassification of these jobs
as nonunit positions, and consequent transfer of the work
performed by these positions outside the unit.
WE WILL recognize the Union as the exclusive collec-
tive-bargaining representative of the employees occupy-
ing the chief systems operator and systems operator posi-
tions, and, upon request, bargain with the Union regard-
ing those employees’ wages, hours, and other terms and
conditions of employment.
WE WILL apply the terms of the existing collective–
bargaining agreement between Dixie Electric Member-
ship Corporation and the Union to employees occupying
the chief systems operator and systems operator posi-
tions, in the absence of any agreement to the contrary.
However, the Board has not authorized or required us to
withdraw or eliminate any wage increase or other im-
proved benefits or terms or conditions of employment,
which may have already been afforded to the chief sys-
tems operator and systems operator positions, as com-
pared to the wages, benefits, and terms, or conditions of
employment of bargaining unit employees.
WE WILL notify and, upon request, bargain with the
Union in good faith before transferring any work from
unit employees to nonunit employees.
WE WILL make whole any unit employees for any loss
of wages and benefits they may have suffered as a result
of our unlawful actions and, to the extent the chief sys-
tems operator and systems operators lost coverage for
various benefits provided under the collective-bargaining
agreement, WE WILL reimburse them for any expenses
incurred as a result of their lapse in such coverage.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.

DIXIE ELECTRIC MEMBERSHIP CORPORATION

The Board’s decision can be found at –-
www.nlrb.gov/case/15–CA–019954 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.