Simplot Fertilizer Co.

SIMPLOT FERTILIZER COMPANY 771 2. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer is the sole proprietor of an appliance store located at Phoenix, Arizona. The Employer purchases between $40,000 and $50,000 in value of appliances each year, all of which are delivered to the Employer from a Phoenix warehouse and are sold within the State of Arizona. The Employer currently operates under a fran- chise agreement with the Maytag Rocky Mountain Company, Colorado Springs, Colorado, providing for the sale and advertisement of May- tag products by the Employer under various restrictions exercised by the distributing Maytag Company. Although the Employer's operations are not unrelated to com- merce, the interstate aspects of these operations are not of sufficient magnitude to justify the assertion of jurisdiction under the Board's announced jurisdictional policy.2 Accordingly, we shall grant the motion of the Employer, made at the hearing, to dismiss the petition filed herein. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. ' See Reiley's Stores, Inc, 96 NLRB 516, and cases cited therein . Cf. Avedls Baxter and Ben Baxter d/b/a Baxter Bros ., 91 NLRB 1480. J. R. SIMPLOT COMPANY, D/B/A SIMPLOT FERTILIZER COMPANY 1 and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 370, AFL, PETITIONER. Case No. 19-RC-10415. August 26,195R 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 Howard E. Hilbun, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 I The name of the Employer appears as amended at the hearing 2 The hearing officer referred to the Board the Employer's notion to dismiss this pro-. ceeding rn the following grounds- ( 1) Its operations are not subject to the jurisdiction of the Board ; (2) the Petitioner has failed to make an adequate showing of interest as the Petitioner 's showing was based upon the number of employees working at the time the- petition was filed and when the Employer was operating on an off -season basis ; and (3) the Bard should not direct an election before the start of the Employer's mining season The Employer 's motion to dismiss is hereby denied For the reasons stated in paragraph numbered 1, infra, we find no merit in the Employer 's first contention . With respect to. 100 NLRB No. 115. 227260-53-Vol. 100--50 '772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds : 1. The Employer, a division of J. R. Simplot Company, an Idaho -corporation, is engaged, under the trade name of Simplot Fertilizer Company, in the mining of phosphate rock and shale and in the manu- facture of fertilizer products in the State of Idaho. In connection with these enterprises, it operates a phosphate mine on the Fort Hall Indian Reservation, in Idaho, the only operation involved in this proceeding, and a fertilizer plant near Pocatello, Idaho, approxi- mately 20 or 25 miles from the mine. Although the Employer's min- ing operations are conducted primarily for the purpose of obtaining phosphate rock for conversion into fertilizer products, the Employer also sells phosphatic shale, a byproduct of its mining operations, to Food Machinery and Chemical Corporation, Westvaco Chemical Di- vision, which operates a plant near Pocatello, Idaho.3 During 1951, the Employer sold fertilizer products, manufactured at its Pocatello plant from the phosphate rock produced at its mine, valued at more than $1,000,000, approximately 50 percent of which was shipped di- rectly to points outside the State of Idaho. The Employer contends that as only its mining operations are in- volved in the instant proceeding and as none of the products pro- duced at its mine is shipped directly to points outside the State of Idaho, the Board does not have jurisdiction herein. We find no merit in this contention. The record reveals that the Employer's mine and fertilizer plant are under common supervision and mana- gerial control. Thus, both operations are supervised by the mine and plant manager, who maintains an office at the Pocatello plant, and all administrative and clerical functions, including bookkeeping and maintaining the payroll, are carried on at Pocatello. Moreover, as pointed out above, the Employer's mine is operated primarily for the purpose of supplying its fertilizer plant with phosphate rock and its mining operations actually represent the initial step in the manufac- ture of fertilizer products. Accordingly, we find, on the basis of these facts, that the Employer's mining operations constitute an in- tegral part of its fertilizer manufacturing operations.4 As the Em- the second contention , the Board has repeatedly held that a labor organization 's showing 'of interest is a matter for administrative determination by the Board and is not subject to collateral attack by the parties . J. J Crosetti Co , 98 NLRB 268. Moreover, in sea- sonal operations , such as those involved herein , it is the Board 's policy to require a showing of interest only among those employed in the unit at the time the petition is filed and not, as the Employer asserts, among those who ill be employed during the peak of the season . J. J. Crosetti Co., supra; Fruitvale Canning Company, 78 NLRB 152. With respect to the Employer 's third contention , that issue is now academic as the Employer's operating season, which normally continues from the middle of May or early June until November, is now in progress. D Although the record reveals that the Employer sold and shipped 500,000 tons of shale to this company during 1951 , it does not indicate the value of the shale. 4 Kennecott Copper Corporation, 99 NLRB 748 See also Grinnell Brothers, 98 NLRB 20, 'I ndustrial Lamp Corporation, et al., 97 NLRB 1021. SIMPLOT FERTILIZER COMPANY 773 ployer, during 1951, shipped fertilizer products valued at over $500,000 directly outside the State of Idaho, we find; contrary to the Employer's contention, that it is engaged in commerce within the meaning of the Act.5 The Employer urges further, in effect, that if the Board decides that it has jurisdiction over the Employer's mining operations, it should, in its discretion, refrain from exercising such jurisdiction, at least with respect to the Employer's Indian employees ,e because these operations are carried on solely within the confines of an Indian reservation and pursuant to leases entered into with the Fort Hall Business Council, herein called the Tribal Council. In this connection, the Employer expresses concern over the possibility of impairing the preference of employment privileges which it has, in the past, granted to members of the Shoshone-Bannock Tribes of the Fort Hall Reservation, and over the possibility of jeopardizing its present "harmonious relations" with the Tribal Council, and hence its leases, if a third party, i. e., a labor 'organization, should be allowed to intervene in these relations. These matters afford no basis for withholding the exercise of our jurisdic- tion. Thus, there is no necessary inconsistency between the Em- ployer's recognizing a labor organization as the representative of its employees, including its Indian employees,-and, at the same time, con- tinuing to grant preference of employment to Indians. Nor is there any basis for assuming that the Board's direction of an election and the Employer's resulting obligation to bargain with the union winning such an election would in any way jeopardize the Employer's bargain- ing relationship with the Tribal Council or adversely affect the Em- ployer's leases, which, in any event, are not subject to renegotiation until 1957. Indeed, the record reveals that the Tribal Council has not only expressed no objections to the "intervention" of a labor organ- ization in its relations with the Employer, but has, in fact, granted specific permission to the Petitioner to enter upon the reservation for the purpose of engaging in organizational activities among the em- ployees of the Employer's mine. Furthermore, we find nothing in the Tribal Council ordinance, to which the Employer has directed our attention, that in any way precludes us from directing an election herein. Any problems which that ordinance might raise are post- certification issues, which we are not called upon to decide at this time. As we perceive no basis for denying to the employees involved herein, including the Employer's Indian employees, the benefits of self-organ- a Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618. G The Employer urges, in its brief, that, if the Board should direct an election herein, the unit should exclude all Indian employees , and that the election should be postponed until the Employer has had an opportunity to negotiate separately with the Tribal Council on behalf of its Indian employees. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ization and collective bargaining granted by the Act,' we find that it will effectuate the policies of the Act for the Board to assert its j uris- diction and direct an election in this proceeding. 2. The labor organizations involved claim to represent certain ent- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, including all Indian employees's employed by the Employer at its mine on the Fort Hall Reservation, Idaho, excluding clerical employees, professional em- ployees, guards, and all supervisors as defined in the Act .9 [Text of Direction of Election omitted from publication in this. volume.] [C]EIAIRMAN HERzoG took no part in the consideration of the above Decision and Direction of Election.] 7 Pursuant to administrative determinations , Indians have been held to be eligible for benefits under other general Federal legislation , such as the Taylor Grazing Act of 1934 (Op. Sol . I. D., M. 28869, February 13, 1937 ) and the United States Housing Act of 1937 ( Op. Sol. I. D., M. 30807, August 6 , 1940). 8 See paragraph numbered 1, supra. 8 Except for the Employer's desire to exclude all Indian employees from the unit, the parties aie in general agreement as to the appropriateness of this unit. GENERAL SHOE CORPORATION and BOOT & SHOE WORKERS' UNION, AFL. Case No. 10-CA-1173. August 26, 1952 Decision and Order On February 4, 1952, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board I has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1 Pursuant to the provisions of Section 8 (b) of the Act, the Board has delegated its= powers in connection with this case to a three-member . panel [Chairman Herzog and'. Members Houston and Murdock]. 100 NLRB No. 181.