# Opposition Brief — National Labor Relations Board v. Natural Gas Utility District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0291%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 600 ## Text Pal . MeBPOUUCTION oases sen casessecsnesssssasscnecscenssensuncensssnessne. hiekahasbosibed pool 1. Answer to “Questions Presented” eiakiien [sepals Bee fl. Answer to “Statement” ie a A. The Board’s Findings of Fact | ..............-.. 3 B. The Decisions of the Board and the Court of Appeals anne ccasessccesesensneenssassneseessnnsnssnsansnssssencsecssseass 8 Ill. Answer to “Reasons for Granting the Writ” 11 A. The Randolph Case and the Case at Bar Deal with Different Entities 12 B. The Court of Appeals Below Followed the Ran- dolph Case by a into Account the Econo- mic Realities i . 16 Conclusion. 20 Case Citations Bailey v. Carolina Power wise sett 212 N.C. 768, 195 SE. 64 (1938) . 14 Cardillo v. Liberty Mutual Co., 330 US. 469, 423 (1947. ee First Suburban Water Utility District v. McCanless, 177 Tenn. 128, 146 S.W.2d 948 (1941) 00. 8 Mobile cesnianted Authority, etc., 8 NLRB 1297 (1938) Si ae 11, 18 National Laie iladlens ai v. : linen ‘Poaie Elec- tric Membership Corp., 65 NLRB 760 (1946) . 12 National Labor Relations Board v. Hearst Publications, Be, SEZ UG. 102 (1044) .....2..2020n..0-cerenecoresseercenssosseesneee 19, 20 National Labor Relations Board v. Randolph Electric Shh voaiaade ey 343 F.2d 60 (1965) ........... 2,3, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20 New ‘Bedford, Wood's Hole, Martha’s Vineyard, etc., Steamship Authority, 127 NLRB 1322 (1960) ....... 11, 19 — BNC ae sae ate ep eee eae ee 11 INDEX New Jersey Turnpike Authority, 33 LRRM 1528 (1954) 11, 15,18 Oxnard Harbor District, 34 NLRB 1285 (1941) 11,18 Pitt and Greene Electric Membership Corporation v. Carolina Power and Light Co., 255 N.C. 258, 120 S.E.2d 749 (1961) br . & West v. American Telephone and Telegraph, 311 USS. 223 (1940) 19 SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 RR re MEE ae NATIONAL LABOR RELATIONS BOARD, Petitioner, vs. THE NATURAL GAS UTILITY DISTRICT OF HAWKINS COUNTY, TENNESSEE, Respondent. BRIEF OF RESPONDENT IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT INTRODUCTION The respondent, The Natural Gas Utility District of Hawkins County, Tennessee, respectfully urges that the Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit, filed herein on behalf of the National Labor Relations Board, be denied. 2 The only question presented is whether the decision of the Court of Appeals for the Sixth Circuit below is in con. flict with the decision of the Court of Appeals for the Fourth Circuit in National Labor Relations Board Vv. Ran. dolph Electric Membership Corp., 343 F.2d 60 (1965). It is submitted, that for the reasons set forth herein. after, there is no conflict between the two decisions, and, accordingly, the petition should be denied. I, ANSWER TO “QUESTIONS PRESENTED” Respondent disagrees with petitioner’s statement of the “questions presented.” The question presented here is not “Whether federal law rather than state law governs the determination, under Section 2(2) of the National Labor Relations Act, whether an entity created by a state is a ‘political sub- division’ thereof and therefore not an ‘employer’ subject to the Act.” Neither is it “Whether the Board properly con- cluded that the respondent public utility district is not a political subdivision of the State of Tennessee, and whether, under the correct standard of judicial review, the court of appeals should have upheld that determina- tion.” The reasons considered by this Honorable Court in deciding whether or not to grant a petition for a writ of certiorari are set forth in Rule 19 of the rules of this Court. The only reason for granting such a writ alluded to in the contents of the petition herein is that set forth in Rule 19(1)(b) as follows: “Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter.” — 3 Thus, the only question here presented is whether the decision of the court of appeals below is in conflict with the decision of the Fourth Circuit Court of Appeals in the Randolph case, supra, on the same matter. As explained hereinafter, the two decisions did not consider “the same matter,” and, in any event, the court of appeals below decided this case in accordance with the rule in the Randolph case, merely distinguishing the facts here involved. It is submitted that what petitioner has done in its petition is to take the last several sentences from the full opinion of the court of appeals below and presented the same so as to try to create a conflict in the two de- cisions. It is submitted that a conflict in decisions which would be the basis for granting the petition for certiorari does not exist. II. ANSWER TO “STATEMENT” A. The Board’s Findings of Fact. Respondent only partially agrees with this portion of petitioner’s brief. On page 3 of its brief, petitioner states: “The undisputed facts with respect to the District’s status as an employer under the Act are as follows.” The petitioner then sets out a few facts, also some argu- mentative conclusions, but does not list many other un- disputed facts in this record with respect to the District’s status as an employer under the Act. Respondent desires to set out the following additional undisputed facts: amu 4 (a) The Natural Gas Utility District of Hawkins County, Tennessee is only one of nearly 270 utility dis. tricts in the 95 counties in the State of Tennessee (R. 50)! (b) Any district established under the Utility Dis. trict Law of 1937 (R. 98-130) is specifically empowered under §6-2608, Tennessee Code Annotated, “to conduct, operate and maintain a system or systems for the furnish. ing of water, sewer, sewage disposal, natural gas, artificial gas, police, fire protection, garbage collection and garbage disposal, street lighting, parks and recreational facilities, transit facilities, etc., or two or more of such systems— and to carry out such purpose will have the power and authority to acquire, construct, reconstruct, improve, bet- ter, extend, consolidate, maintain and operate such system or systems within or without the district - - -” (R. 120). (c) The Utility District Act was passed by the Ten- nessee legislature to provide a municipal corporate ar- rangement to furnish certain needed governmental services usually in small towns and rural areas, including, but not limited to, the foregoing listed services; these services were not, and, usually could not be, otherwise provided (R. 51); $6-2607, T.C.A., provides that the district, when formed, “shall be the sole public corporation empowered to furnish such services,” so long as the district continues to furnish any of the services which it is herein authorized to furnish (R. 117). (d) The legislature further provided in §6-2607, T.C.A., that: “From and after the date of the making and filing of such order of incorporation, the district so in- corporated shall be ‘a municipality’ or public corporation in perpetuity - - -.” 1. “R.” refers to the joint appendix before the Court of Appeals, a copy of which was filed with the petition. ww 5 (e) The county judge who appoints the first com- missioners, and who fills vacancies in the event the com- missioners cannot agree among themselves, is the top gov- erning official in each county and is himself a publicly elected official (R. 86). (f) Commissioners serve with only very nominal compensation (R. 126). (g) So long as a district shall own any system, its property and revenue are exempt from all state, county and municipal taxation, and its bonds are also so exempt, except for estate, inheritance and transfer taxes (R. 113). (h) By §6-2613, T.C.A., utility districts are specifically exempt from state regulation by the Tennessee Railroad and Public Utilities Commission, even though privately owned public utilities are specifically covered (R. 106). (i) Further, §6-2615, T.C.A., speaks of the utility dis- trict’s records as “public records” (R. 107). (j) Apart from the Utility District Act, §6-318, T.C.A., “Municipal Property and Services,” §6-604, T.C.A., in the Municipal Corporations section, and §9-1202, T.C.A., dealing with revenue bond refinancing, refer to and/or characterize a utility district as a “municipality” (R. 36). (k)- Under several federal statutes, including 42 USC 418 (and its counterpart in the Tennessee Code, §8-3811), recognition is given to the fact that a utility district is a governmental entity; an arrangement is provided for vol- untary coverage to provide social security benefits to Dis- trict employees, rather than the mandatory coverage re- quired of non-governmental entities; also interest earned on a utility district’s bonds is claimed to be exempt from federal income tax (R. 35). 6 (1) The district is required to publish its annual state. ment in a newspaper of general circulation by :6-26}7. T.C.A. (R. 108). (m) The district not only has the power of eminent domain, but can exercise it even against other govern. mental entities (R. 104). (n) The state legislature passed this Act to provide a municipal corporate arrangement to furnish certain re. quired services, not feasibly done otherwise (R. 30, 50). (0) Section 6-2612 of the Utility District Act is a gen- eral grant of power and vests in the district “all the powers necessary and requisite—capable of being delegated by the legislature” (Emphasis added) (R. 105). (p) Section 6-2614, T.C.A., as amended, provides that in certain counties, the three commissioners be appointed until the first of the month following the next general elec- tion and, at that election, the commissioners be elected for terms of 2, 4, and 6 years by the qualified voters of the district (R. 125). (q) Vacancies, other than those filled as above, are filled by a vote of the remaining commissioners. If they fail to agree, the fact is certified to the County Judge, who appoints the new commissioner (R. 106, 125). Thus, the district is administered, either by publicly elected officials, or by officials‘ appointed by publicly elected officials of the county. (r) The general ouster law of Tennessee available for ouster or removal of elected officials applies to the district's commissioners (R. 106; see notes after §6-2614, T.C.A.). On page 4 of the petition the following are listed among the “undisputed” facts: a 7 “The powers of the District are vested in and exer- cised by a three member board of commissioners, who are not subject to state or county regulation (Emphasis added). . . . Neither the state nor the county has any control over the District’s employees, and they are not considered state or county employees.” (Emphasis added). It is submitted these statements, rather than being un- disputed facts, are actually dubious and/or argumentative conclusions when considered in the light of all the truly undisputed facts, including (a) through (r) listed on pages 4 through 6. Two other observations must be made about these so called “facts”’: (a) In the opinion of the Court of Appeals below, reported at 427 F.2d 312, the following appears as footnote 2 on page 314: “We disagree with the Board’s ruling that because the State does not supervise the District or remove or dis- cipline its commissioners or subordinates, therefore the District is not a political subdivision. We would think that the independence of the District strengthens rather than weakens the proposition that it is a political sub- division.” (b) Section 6-2613, T.C.A., specifically exempts a dis- trict from the regulation by the State Railroad and Public Utilities Commission required of a private utility. This is done because of a district’s governmental nature. What is significant about this is that the National Labor Relations Board has misunderstood the significance of this exemption throughout this entire proceeding. It is submitted that both of the foregoing are typical examples of the Board’s failure in this case to properly evaluate the “economic realities.” — 8 FP. The Decisions of the Board and the Court of Appeals. In its brief on page 6, petitioner, in referring to the initial Board decision, states that despite the fact that the Supreme Court of Tennessee had characterized districts as “arms or instrumentalities” of the state, “the Board examined all of the relevant factors and concluded that the District was ‘an essentially private venture, with insufficient identity with or relationship to the State of Tennessee to support the conclusion that it is an exempt governmental employer under the act.’” There is, however, that large number of relevant factors above sect out which are in this record and which the Board apparently failed to consider. Similarly, in reference to the court of appeals’ action, on page 7 of its brief, the Board quotes only two paragraphs from the very end of the opinion below (the entire basis for contending a conflict exists arises because of this lan- guage). What petitioner does not do is recognize that the court of appeals below had, for several pages, approved the Randolph rule, but merely distinguished the facts here. Accordingly, the following is also quoted from the opinion below reported at 427 F.2d 312 on page 313: “Section 6-2607 of the Tennessee Code, under which the Utility District was organized, provided that a District is a ‘municipality or public corporation in perpetuity under its corporate name and the same shall be in that name a body politic and corporate with power of perpetual succession, but without any power to levy or collect taxes.’ The Supreme Court of Tennessee construed this Statute in First Suburban Water Util. Dist. v. Mc- Canless, 177 Tenn. 128, 146 S.W.2d 948 (1941), and — held that a District organized under it was a municipal corporation and as such was an arm or instrumentality of the state. The Board declined to follow the decision of Tennessee’s highest court, relying instead on NLRB v. Randolph Elec. Membership Corp., 343 F.2d 60 (4th Cir. 1965), which case involved private non-profit utility corporations organized under the laws of North Carolina, which were formed for the exclusive benefit of their own members, did not have the power of eminent domain, were not subject to substantial con- trol or supervision, and did not exercise any portion of the sovereign power of the state. The Board rea- soned: ‘The Utility Districts are not created directly by the State. They are formed by petition of property owners upon a County Judge’s determination of the feasibility thereof. Thus, the District is no more a direct creation of the State than such privately- owned public service companies as railroads, and motor carriers, which also require some form of governmental approval, such as a certificate of con- venience and necessity.’ (App., p. 15 n. 7). 9 This reasoning is obviously fallacious because privately owned railroads and motor carriers, even though they may have certificates of convenience and necessity, are operated for profit of their owners, whereas the District is owned and operated by the state, and not for the profit of private individuals. The District, unlike railroads and trucking companies, is a public corporation and was not subject to regu- lation even by the State Public Utilities Commission, and was exempt from all state taxes. Reliance by the Board on Randolph is misplaced. In Randolph, unlike our case, there was no holding by the state’s highest court that the private utilities were political subdivisions of the state. be oe | 19 In Randolph the private utilities were ‘formed for the exclusive benefit of its own members.’ Here, the District was formed for the benefit of the inhabitants of the community. In Randolph, the utilities involved did not have the power of eminent domain. Here, the District not only has the power of eminent domain but also can exercise it over other governmental entities. The Commissioners of the District further have the power to subpoena witnesses and to administer oaths. The District’s records are ‘public records.’ The District is required to publish its annual statement in a newspaper of general circulation. Income from its bonds is claimed to be exempt from federal income taxes. Social Security benefits for its employees are voluntary instead of mandatory as the District is con- sidered ‘a political subdivision’ under 42 USC. $418(5). In our opinion, it was not necessary that the District be created directly by the state in order to constitute a political subdivision. It is sufficient if the District be created in conformity with state law. It should be noted that the Act does not require agencies of either federal or state governments to be created directly. As a matter of fact, wholly owned government corporations, including the Federal Re- serve Bank and even non-profit hospitals, are spe- cifically exempt. Under Tennessee law the District is created by petition to the county judge, an elected official, who must find a public convenience and necessity therefor. The county judge appoints the first three commis- sioners nominated in the petition seeking formation of the District, and fills vacancies in the event the commissioners cannot agree among themselves. In counties having a population of 482,000 or more the commissioners of the Districts are elected at regular _ 11 general elections. Although the District involved in the present case did not have the requisite number of residents to necessitate the election of its commis- sioners, this factor indicates that Tennessee considers the functions of a District to be that of a ‘political subdivision’ requiring election of commissioners by the electors when the District encompasses a specified population.” Another ground for the decision herein by the Court of Appeals for the Sixth Circuit was that the Board had not here even followed its own prior decisions 427 F.2d 312, 314. Mobile Steamship Authority, etc., 8 NLRB 1297 (1938); Oxnard Harbor District, 34 NLRB 1285 (1941); New Jersey Turnpike Authority, 33 LRRM 1528 (1954); New Bedford Wood’s Hole, Martha’s Vineyard, etc., Steam- ship Authority, 127 NLRB 1322 (1960). Accordingly, it is submitted, petitioner in its brief, as it has done since its earliest decision in this matter, has failed to consider all the facts in the record. Petitioner has also failed to adequately set forth and ex- plain the opinion below of the Court 0: Appeals for the Sixth Circuit. ITI. ANSWER TO “REASONS FOR GRANTING THE WRIT” The decision of the Court of Appeals below is not in conflict with the decision of the Court of Appeals for the Fourth Circuit in National Labor Relations Board v. Randolph Electric Membership Corporation, 343 F.2d 60. The two decisions do not involve “the same matter.” (Rule 19(1) (b) of this Court) First, the two decisions deal with different entities. gy 12 i Second, the Court of Appeals’ decision below, when : considered as a whole, actually followed the Randolph 2 case, set out many “economic realities” and based its de. cision on them, rather than merely blindly and unques- tioningly following state law, as the petition infers, At most, the sentence or two from the opinion below relied upon by petitioner as creating a conflict between this case and Randolph is merely an additional reason for the result reached herein. There is also a third basis for the result reached here- in, i.e., “Prior decisions of the Board do not support its holding here”. 427 F.2d 312, 314. It is submitted this other reason for the decision below is merely another ground for concluding there is no conflict between the decision in this case and the decision in the Randolph case. eons ors A. The Randolph Case and the Case at Bar Deal with Different Entities. The Randolph case dealt with electric membership corporations while the case at bar deals with utility dis- tricts. Even a cursory comparison of a North Carolina electric membership corporation with a Tennessee Util- ity District reveals a different entity. Coincidentally, the Tennessee statutes also provide for the organization of electric membership corporations in T.C.A. §65-2401 et seq. They are, when formed, very similar to those in the Randolph case, being essentially non-profit cooperatives and otherwise similar to privately owned public utilities. The National Labor Relations Board has itself ruled on such a Tennessee electric mem- bership corporation. NLRB v. Gibson County Electric Membership Corp., 65 NLRB 760 ( 1946). (This case was also cited in the Randolph case.) 13 In its brief, on page 8 thereof, petitioner states that the electric membership corporation considered in Randolph was created pursuant to a state statute similar to the Tennessee statute (T.C.A. §6-2601, $6-2636) creat- ing the utility districts. It is submitted, there is little resemblance between these two statutes. The North Car- olina statute considered in Randolph is, however, quite similar to §65-2401, T.C.A., which provides for electric membership cooperatives in Tennessee. A comparison of the North Carolina Electric Member- ship Corporation Act, involved in the Randolph case, with the act creating the utility districts in Ten- nessee, involved in the case at bar, reveals significant differences between the two: (a) Under the Tennessee Utility District Act, the district may furnish one or more types of service (includ- ing fire, police, garbage collection, etc.) to all persons in the district and has an exclusive franchise for same in the designated area. Sections 117-15 and 117-16 of the General Statutes of North Carolina make it clear that only members are en- titled to get electric power from the North Carolina Electric Membership Corporation. Section 117-16 provides as follows: “The corporate purpose of each corporation formed hereunder shall be to render service to its members only Tennessee utility districts, being political subdivisions of the state, must render service to all persons ir the dis- trict. The North Carolina electric membership corporations, not being governmental in nature, are required by statute — to render services only to their members, and other mem. bers of the public are not entitled to get service from it and, in fact, are prohibited from getting service from it. The case of Bailey v. Carolina Power Company, 219 N.C. 768, 195 S.E. 64 (1938), held that persons, not mem. bers of the electric membership corporation involved in the case, could not maintain an action challenging the validity of the acts of the director of the corporation and, that, the fact that a person is a member of the community, or a resident of the territory, in which an electric mem- bership corporation is authorized to operate, or might be eligible for membership therein, does not entitle him to service by such corporation. Thus, an electric membership corporation exists solely for the benefit of its members; a Tennessee utility district exists to provide governmental services to citizens in certain areas and is similar to a county or municipality. Further, among the type of services that may be rendered by a utility district are such traditionally governmental serv- ices as fire, police, street lighting, garbage collection. etc. (b) The Tennessee Utility District Act provides that the district not only has the power of eminent domain, but can exercise it even against other governmental entities ; (R. 104). On the other hand, §117-18(6) of the General Statutes of North Carolina provides that: “Subject only to the constitution of the state, a corpo- ration created under the provisions of this article shall have power to - - - apply to the North Carolina Rural Electrification Authority for permission to construct or place any parts of its system or lines in and along any state highway or over any lands which are now, or may be, the property of this state, or any political subdivision thereof. In all questions involving the right of way, or the right of eminent domain, the rul- ELSE LEE NAY IES SERENE DB ROBERLV LEST? BBE 9 800 BES 15 ings of the North Carolina Electrification Authority shall be final.” (Emphasis added). Thus, the North Carolina electric membership corpo- rations specifically do not have the power of eminent do- main, while the Tennessee public utility districts not only have this power, but have it against other governmental bodies. The Board itself in the New Jersey Turnpike Author- ity case, supra, has held the presence of this power (emi- nent domain) to be a determinative factor in determining an entity to be a governmental subdivision. (c) Section 6-2607, T.C.A., provides that, once formed, a Tennessee utility district shall be the only public corpo- ration empowered to perform its services within its district. On the other hand, it was held in the case of Pitt and Greene Electric Membership Corporation v. Carolina Power and Light Co., 255 N.C. 258, 120 S.E.2d 749 (1961), that an electric membership corporation and a privately owned public utility corporation are free to compete in rural areas, unless restricted by contract. (d) Section 117-13 of the North Carolina Act pro- vides that each corporation shall have a Board of Directors to be elected annually by the members, and the powers of the corporation shall be vested in said Board. This pro- cedure resembles the stockholders and the directors of a private corporation and is to be contrasted with that fol- lowed to select the commissioners of the Tennessee utility district. Said commissioners are appointed by the county judge, the top elected official in most counties, and, in cer- tain counties, it is provided, said utility district commis- sioners are elected in general elections. Also of great significance is that profits (similar to dividends) inure to the exclusive benefit solely of the mem- 2 — AOC PE LINE PCTS Fig? We DARL a ON eT GAPE A Ra a Be relate I ABS ae 1 ber (rimilar to stockholders) of the Bleotrte Membership Corporation; while the District under (209m, TOA, (R 112) may only charge such rates ae to remain self stp: porting, and all aes in the entire area are affected by rate changer (the name an raten charged by a county and op a muntelpality for governmental services affect all users in the county and or municipality) (©) Ih respondent's anawer to the statement of the Hane, Heapondont haa wet out herein, at pager 4 through vertain other factors which lead to the conelusion that the Utility cintriet im a political subdivision, None of these factors are provided for under the Klectric Membership Corporation Aet of North Carolina Thus, respondent contends that there inno conflict in the two decisions; one holda that an electric membership corporation in nota “political subdivision", and the other holds that a utility diatrictds a “political subdivinion.” B. ‘The Court of Appeals Below Followed the Ran. dolph Case by Taking Into Account the Keo. nomle Realition, The Fourth Cireuit Court in Randolph stated at 943 P24 ti: “. «= = To the extent that it has taken into account economic realities as well ax the statutory purposes, the Roard’s determination ix entitled to great respect” (Emphasis supplied), It is, of course, the undenied duty and authority of the National Labor Relations Board to make an initial deter- mination of its own jurisdiction, and having done so, to act as it feels the situation demands. It is, however, and has been throughout the course of these proceedings, respondent's position that the NLRB 7 has incorrectly decided Ht has jurisdiction, and, thereafter, has consistently refused to recensider the question (i 1%, 19-26). The Handolph case certainly does not stand for the proposition that once the Hoard has determined ite awn jurisdiction, the eourts ler nied Vatever Chee right try ehaablenipge it This position is in conflict with basic horn book law Ju riadiction can be raised at any time in a proceeding In Cardillo v. Liberty Mutual Company, 490 UG Mi, ATS (1947), it wan stated “But in reviewing an administrative order, it is oni narily preferable where the issue is raised and where the record permite an adjudication, for a federal court first to satinfy itself that the administrative speney or officer had jurisdiction over the matter in dispute” It in respondent's position that the Hoard fwiled tw correctly analyze the “economic renlities” and/or evaluate the total picture, and, consequently, filed ty conrerAly apply the “political subdivision” exemption of $212) A the National Labor Helations Act, which respondent a serts in Clearly dictated in this case, and which the Board's regional office held applicable in Case No 26600-2972, itv volving another Tennessee utility district with identica) powers and created under the same Act H, 64, 5% and Respondent contends that the Court of Appeals below followed the Randolph rule. Rather than holding that state law, rather than Federal law, governs, without consd- ering other factors, that court took into account Ah the “economic realities and the statutory pure” Thus the Court below followed the rule of the Randolph case but distinguished the facts here. The actual holding of the Randolph case with refer- ence to the effect of state Jaw in interpretetion of the Wagner Act is as follows: RETIRE RS OO ALi: 5 gE AO AT NITES BAI We LACE LM. IETS TRO “The fact that North Carolina sees fit to characterize snch corporations as ‘political subdivisions iS Not decisive of the question before us. sinee their relation to the state and their actual methods of operation do not fit the label piven them (emphasis supplied), The Court of Appeals below held, as) far as utility distriets are concerned, that their actual methods of opera. tion and their relation to the state do fit the label that the state has given them In other words, the Randolph case held that where the actual methods of operation and the relation of the body do not fit the label given them by the state, then the fact that the state characterizes it. as a “political subdivision” would not be decisive of the question At the end of its opinion herein, the Court of Appeals below did sav the decision of the Supreme Court of Tennessee was of controlling importance on the question whether the Distriet was a political subdivision of the state Th our opment was binding on the Board.” Obviously, if the Court ef Appeals below had orly stated the foregoing and had not, before this, set out in detail the various economic realities on which it based tts decision, there might be a conflict if the same type of entity were mrolred. But, having so set out at length the various economic realities, the last two sentences in the opinion are, at most, only another basis for the Court's decision. Incidentally, still another ground for the result reached below is, as the Court of Appeals stated: “Prior decisions of the Board do not support its decision here”, citing var- ious Board decisions. In Mobile Steamship Authority, ete. supra, Oxnard Harbor District, supra, and New Jersey Turnpike Authority, supra, the Board apparently held the — 19 entities exempt without going, into the question of whether state law is controlling in what constitutes a political sub- division. In New Redford, Wood's Hole, Martha's Vine- yard, ete., Steamship Authority, supra, the Board, citing West v. American Telephone & Telegraph Co,, 311 US, 223 (1940), held state law controlling on what constitutes a political subdivision, Thus, it is submitted, this further demonstrates there is no conflict between the result herein and Randolph, because the Court below, in part, rested its decision on the ground that the Board had not followed its own prior decisions.’ Most certainly, nowhere in Randolph, or in NLRB v. Hearst Publications, Inc., 332 0.S. 102 (1944), cited by pe- titioner in its brief and relied upon by the Court in Ran- dolph, is it stated that state law is not to be considered, All that the Hearst case said was that state law would not “exclusively” control. 322 U.S. 102 at page 125 It is extremely important to note that Randolph chiefly relied upon Hearst. Thus, the “conflict” boils down to the language, in the last two sentences of the full opinion below, where the Court stated that the decision of the Supreme Court of Tennessee that the District is a political subdivision is “binding on the Board” and the language in Randolph, from the Hearst case, that state law does not “exclusively” control. Is this a conflict in decisions on the same matter? It is submitted that both courts followed the rule of first examining and evaluating all the underlying facts and economic realities in deciding that the entity is, cr is not, 2. To this should be added the Regional Director of Region 26 of the NLRB's ruling in Case No. 26-RC-2972 that the West Tennessee Public Utility District of Weakley, Carroll and Benton Counties, Tennessee was not an “employer” within the meaning of §2(2) of the Act (R. 58). — 20 a political subdivision; the Court below, after so doing, held the respondent exempt. When this decision is considered as a whole, no real conflict exists, even if the same type of entity were involved—which, it is also submitted, as herein set out, is not the case. The Court of Appeals below also followed Randolph and the case of NLRB v. Hearst Publications, supra, cited by petitioner in its brief, by looking to the intent of Con. gress in enacting the National Labor Relations Act. Ran. dolph required “taking into account - - - the statutory pur. poses.” The following language taken from the decision of the Court of Appeals below in the case at bar is per- tinent: “It was the clear intention of Congress not to make amenable to the National Labor Relations Act employ- ees of either federal or state governments. The effect of the order of the Board in the present case may be to extend its jurisdiction over public employees, in nearly 270 Utility Districts in Tennessee, which Dis- tricts perform a wide variety of public functions.” CONCLUSION As stated above, petitioner’s contention that there is a conflict of decisions in the courts of appeal is not valid. Different entities were examined in the two decisions. Further, in each case, the NLRB or a federal court of appeals, as the court below in this case and in Randolph did, must, in determining jurisdiction, consider the eco- nomic realities, including giving due consideration to state law, as well as the statutory purposes, in arriving at its decision as to whether an entity is, or is not, a “political subdivision.” The particular facts and economic realities of each case must control. 21 The petition for a writ of certiorari should not be granted. Respectfully submitted, EUGENE GREFNER, JR. Suite 1601 100 North Main Building Memphis, Tennessee 38103 J. O. PHILLIPS, JR. Citizens Union Bank Building Rogersville, Tennessee 37857 Attorneys for The Natural Gas Utility District of Hawkins County, Ten- nessee—Respondent qs? ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0291%3A3. Public record. Not legal advice.