*1 WEICK, Bеfore COMBS BROOKS,* Judges. * Judge Henry sitting designation. Brooks, Brooks L. then The Honorable Judge, a member of this Court. has since become United States District Court Chief Kentucky, the Western District *2 Judge. WEICK, Carolina, der the of laws North which were formed for the of exclusive benefit applica- us This case is before members, their own did not have Relations tion National of Labor power domain, of eminent were not sub- issued its order for enforcement of ject supervi- to substantial control or Utility against District The Natural Gas sion, any portion and not did exercise of County, Dis- [the of Hawkins Tennessee sovereign power of the state. The trict], Dis- found that order which Board reasoned: 8(a) (1) and (5) trict Section violated Act, as the National Labor Relations of Utility “The Districts are not creat- seq), et (29 amended U.S.C. § directly by They ed the State. are refusing bargain union certi- with the by petition property formed owners representative the Bоard as fied upon County Judge’s determination pipe of a unit District’s fitters. of the feasibility of the Thus, thereof. NLRB No. 167 NLRB 100 and 170 No. is no more a direct creation 156. of the privately-owned State than such bargain The District had public refused сompanies railroads, service (the ground union on the it with the carriers, and motor require which also District) was a subdivision governmental some form of approval, Tennessee, the state of therefore it was such as a certificate of convenience operation from the of the Act necessity.” and (App., p. 7) 15 n. jurisdiction and the no over Board had reasoning obviously This fallacious it.1 privately because owned railroads and Cоde, Section 6-2607 of the Tennessee carriers, though motor they may even Utility or- under which have certificates of convenience and ne- ganized, provided is a that a District cessity, operated profit of their ‘municiрality’ public corporation or owners, whereas the District is owned perpetuity corporate under and name operated by state, not for body same shall that name be a profit private individuals. The politiс corporate power per- District, unlike trucking railroads petual succession, any power but without companies, public corporation is a levy or collect taxes.” added.] [Italics subject regulation wаs not even the State Supreme Commission, Public con Court Tennessee Utilities and was from in First all strued this Suburban statute taxes. McCanless, Water Util. Tenn. Dist. v. Randolph Reliance the Board on (1941), and held S.W.2d misplaced. Randolph, case, unlike оur organized that District holding by high- there no the state’s municipal corporation and as such private est court utilities were instrumentality an arm or of the state. political subdivisions the state. to follow the deci- Board declinеd highest court, rely- private were sion of utilities Tennessee’s ing “formed for the exclusive benefit of instead on NLRB v. Elec. Here, Membership Corp., own members.” F.2d the District was 1965), private formed for the benefit of the which case non- inhаbi- involved organized community. profit utility corporations tants of the un- provides: earnings 2(2) pital, part if of the net inures Section of the Act any any private “(2) ‘employer’ The term to the benefit of shareholder includes subjeсt agent individual, any person person acting employer, as an of an or or indirectly, Railway Act, in- as amended from or but shall not any time, organization any wholly or clude the States or time to labor United employer), (othеr acting corporation, any owned Government or than when as an anyone acting Bank, any capacity or of officer Federal Reserve or State or organization.” thereof, any agent of such labor subdivisiоn cor- or 152(2)) poration (29 operating § or association a hos- U.S.O. Randolph, utilities involved did dents to necessitate election of commissioners,
not of eminent domain. this indicates that factor have only pow- Here, not has the District Tennessee considers the functions of a “political can er also exer- District of a of eminent domain but subdi- requiring cise entities. vision” it over other election of commis- by the sioners electors when thе District Commissioners *3 encompasses specified a population. subpoena power further to wit- have the oaths. and to administer nesses do not of the Board Prior decisions “public are records”. holding District's reсords support S. here. In Mobile its publish required its (1938), The District Ass’n, is the S. 8 1297 NLRB gen- newspaper in of annual a statement Docks Com- Board held the State that bonds political eral circulation. Income from its subdivi- an mission was Alabama, in- is from federal claimed be sion the without of state of Security come taxes. benefits for Social particular of functions discussion voluntary employees instead of are legal applied. the In criteria to Ox- be mandatory District Dist., as the is considered NLRB 1285 nard Harbor 34 political 42 “a U.S. extensively subdivision” (1941), the Board reviewed 418(b) (5). C. it § the held functions of the District political There was was a subdivision. not neces it opinion, was In our any particular charac- indiсation that created sary the be District teristic was determinative. po a by to constitute in order the state Authority, Turnpike Jersey if In New It sufficient is subdivision. litical 2-RC-2245, reported conformity April 16, 1954, un- created in be the District 1528, officially at thе Board 33 L.R.R.M. state law. Authority Turnpike a held that the the Act noted It should be political pow- in of its subdivision view fed require agencies of either does not ers, obligations given duties, it governments created eral or state indi- the statе. Three factors were fact, wholly directly. of a matter As issue, e., as determinative of the cated i. government corporations, includ owned appointed the the administrators were ing Bank and even Reserve the Fеderal Governor; it the of eminent had specifically non-profit hospitals, are domain; exempt. and its were tax bonds exempt.2 Hole, Bedford, Mar- New Wood’s is Tennessee law Under Authority, Vineyard, S. 127 tha’s etc. S. county judge, petition to the created (1960), Authority NLRB the 1322 pub- official, a who must find elected operate steam- established own a necessity lic therefor. convenience ship opinion the line. The Board was of county judge apрoints the first law, e., that state i. a determination in the three commissioners nominated highest state, the in the con- court petition seeking formation the Dis- of trolling a on what constitutes trict, and fills in the vacancies the event In that the Board cit- subdivision. case agree among commissioners cannot ed Tel. Tel. West v. American & having popu- In counties themselves. 223, 236, 183, 179, 85 L.Ed. U.S. 61 S.Ct. 482,000 lation of or more the commis- (1940), held: which sioners of the Districts elected at regular genеral Although “True, in the elections. Erie as was intimated present case, highest District in involved case Railroad of the did court requisite not have the is the of is number resi- state final arbiter what disagree ruling independence 2. We with the Board’s would think that We supervise strengthens because does not rather State than politi- discipline proposition District or remove or its com- weakens subordinates, missioners or therefore the cal subdivision. not a subdivision. spoken, public nearly it has diction over state law. When in pronouncement accepted by Utility Tennessee, is to be Districts in which defining perform variety law Districts pub- federal courts wide * * lie functions. Randolph great gave The Court in Court weight opinion of the Board view that this of the decision Board in misconcep- New on a was based case because the Board’s “famili- Bedford holding Supreme arity problems tion of experi- with labor and its County, 328 ence Court in R.F.C. Beaver administration of the Act.” judgment, U.S. 90 L.Ed. Id. 62. present S.Ct. at our (1946), question on relied. case which involves more of a of mu- nicipal Membership problem, law NLRB v. Elec. than a labor Corp., supra, Supreme F.2d at 63 n. decision Court of *4 opinion, controlling importance our in New the Board Tennessee was of Bedford holdings question in applying did not err in the the whether District was County. political West and Beaver There was subdivision of the state. In policy. opinion, Board our binding The conflict national on the noted, however, that in New Board. Bedford in there had determination been no Enforcement is denied. companies state courts to whether as political Board wеre subdivisions. specific proceeded COMBS,
then
review certain
Judge
to
(dissenting).
de-
the entities
characteristics
before
grant
I would
enforcement on authori-
ciding
exempt
they
“political
that
were
ty
of N.L.R.B. v.
Electric
subdivisions.”
Membership Corporation,
created publicly appointed or
istered noted The Board
elected officials. do operations and services
the District’s *5 significantly from those not differ employees
private utilities whose
subject com- to the Act. The
pletely conduct autonomous
daily affairs; su- exercises no
pervision re- and reserves no responsible discipline
move or those operations.
Although utility incorporation dis- stat- is authorized elaborate
tricts
utory scheme, respondent’s crea- actual efforts from the direct
tion resulted obtaining the residents desirous of
local gas. District’s
benefits of natural unequivocally
manager testified governed by commission- the board of regulations adopts
ers which rules
necessary operation; rates; sets all service
board ultimately board,
manager, hires employees and determines
and fires
wages; nor neither any way is controlled county government. or state furnishing nat-
It is noted gas only provided service
ural is the necessarily is not
this District and this function.