Devils Lake Sioux Mfg., Corp.

DEVILS LAKE SIOLUX MFG. CORP. Devils Lake Sioux Manufacturing Corporation and General Drivers Local 581, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 18-RC- 12009 June 28, 1979 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBIRS JENKINS AND TRUESDALE On October 12, 1978, the Regional Director for Re- gion 18 dismissed the petition in the above-entitled proceeding. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Di- rector's decision with supporting brief, contending that the Employer is not the type of organization in- tended by the Act to be excluded from the Board's jurisdiction as a wholly owned government corpora- tion. By telegraphic order dated November 22, 1978, the National Labor Relations Board granted the request for review, reinstated the petition, and remanded the case to the Regional Director for a hearing, further ordering that the case be transferred to the Board subsequent to the hearing. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding, including the Petitioner's and the Em- ployer's briefs with respect to the issues under review, and makes the following findings:' 1. Devils Lake Sioux Manufacturing Corporation. hereinafter called the Employer or Devils Lake, is a North Dakota corporation engaged in the manufac- ture and sale of lightweight synthetic camouflage modules at its Fort Totten, North Dakota, facility. In the year previous to the hearing, the Employer pur- chased goods and materials valued in excess of $50,000 which were shipped to and received by it from points outside the State of North Dakota and the Employer sold and shipped goods and materials valued in excess of $50,000 from its North Dakota facility to points directly outside the State. In 1973, Devils Lake was formed by agreement be- tween the Sioux Indian Tribal Council, hereinafter ' As the record and briefs adequately present the issues and the positions of the parties, the request for oral argument by the Petitioner is hereby denied. tribal council' and the Brunswick Corporation. The Employer has leased a portion of the tribal reserva- tion on which it has constructed its sole plant. Bruns- wick and the Employer signed a management agree- ment3 which provided that Brunswick would furnish some employees with expertise in management to ad- minister the Employer under the policies set by the Employer's board of directors. The tribal council owns 51 percent of the stock of the Employer and Brunswick holds the rights to the other 49 percent. Pursuant to the terms of the man- agement agreement mentioned above, Brunswick offi- cials in managerial positions have the authority to hire, fire, and set the Employer's labor relations poli- cies. Officials of Brunswick comprise five members of the Employer's nine-member board of directors, and the tribal council is represented by the other four members. The chairman of the board is a Brunswick official, and of the eight department heads. only one is a tribal member. Devils Lake employs over 400 workers, including 140- 170 members of the tribe. The Employer and the tribal council contend that the Employer is exempt from coverage under the Act because it is a tribal commercial enterprise operating on the tribe's reservation under the direction and au- thority of the tribe's governing council.4 They con- tend that the result in this case is controlled by Fort Apache Timber Companv, 5 where the Board refused to assert jurisdiction over wholly owned tribal enter- prises. The Petitioner contends that the Employer is not controlled by the tribal council, but in effect is oper- ated by the Brunswick Corporation, which controls and sets all labor relations policies, and that Fort Apache does not apply to the case at hand because the Employer is not a wholly owned government corpo- ration. For the reasons set forth below, we agree with the Petitioner's contentions. In Fort Apache we concluded that an employer which was wholly owned and completely directed by a tribal council was exempt from the coverage oft' the Act.6 In that case all the workers were paid by and worked for the tribe, not the employer, and the gov- erning council of the tribe completely controlled the operations and labor policies, while contracting with an individual person for management services to run the company. The instant case is inapposite; Devils Lake is com- pletely managed and operated by the Brunswick Cor- ' The tribal council is the governing bodN of the Devils Lake Sioux Tribe. herein called the tribe. 'The original contract as signed in 1973 for a term of 5-1/2 ears, but the agreement has been extended 3 more ears. 4 See Fort Apache Timber Comtparn. 226 NRB 503 ( 1976) 'Id ' Id, at 506. 243 NLRB No. 28 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poration. Since Brunswick officials represent a major- ity of the board of directors and the department heads, we conclude that, even though the tribal coun- cil owns 51 percent of the stock,' the Employer is, in effect, controlled by the Brunswick Corporation, especially with regards to labor relations policies. Thus, the Employer is not a wholly owned tribal en- terprise which is completely controlled by the tribal council and it, unlike the employer in Fort Apache, is not exempt from the provisions of the Act. Accord- ingly, we find that the Employer is an employer of the employees involved herein within the meaning of Sec- tion 2(2) of the Act. We further find that the Em- ployer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The parties stipulated, and we agree, that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of' the Employer The fact that the tribal council has the potential power, under the terms of its original agreement with Brunswick, to buy all the outstanding stock of the Employer from Brunswick upon 90 days' notice-thereby rendering the Employer wholly owned by the tribal council-does not warrant a different result herein. Our decision is based on the currently existing facts as pre- sented at the hearing, and those facts indicated that the Employer is not now wholly owned and administered by the tribal council. within the meaning of Section 9(c)( I) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent "all full-time and part-time production and maintenance employ- ees and clerical employees excluding confidential [employees], supervisors and guards as defined by the Act." The Employer objects to the inclusion of office clerical and professional employees with production and maintenance employees. The Employer contends that the office clericals' supervision, benefits, and pay scales are different from production and maintenance employees and further that it would be improper to include professional employees in the unit. We find that there is insufficient evidence in the record to de- termine the appropriate unit or units.' Accordingly, we shall remand this case to the Regional Director for further investigation including, if necessary. further hearing to determine the appropriate bargaining unit or units and such further action as is required to con- duct election therein. ORDER It is hereby ordered that this case be, and it hereby is, remanded to the Regional Director for Region 18 for further action consistent with this Decision on Re- view. The parties appear to have contemplated further proceedings with re- spect to unit questions, if the Board decided to assert jurisdiction. 164