Midway Drilling & Pump Co.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not they will refrain from forcing or requiring Bel-Toe Construc- tion Co., by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to the piledrivers rather than to laborers and oper- ating engineers. Midway Drilling & Pump Co. and International Union of Oper- ating Engineers, Local No. 12, AFL=CIO, Petitioner. Case No. f31-RC-8857. January 5, 1965 DECISION DISMISSING PETITION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Barton W. Robertson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, the Board finds: 1.- The Employer is a sole proprietorship engaged in the business of water well drilling, pump testing, and pump installing in Cali- fornia. In 1963, the Employer was paid $155,000 by the State of California for the drilling of two exploratory water wells. The purpose of the wells is to secure water to be used in settling the basin of a reservoir being constructed by the State water facility for the California aqueduct, San Joaquin Valley. In 1 or 2 years this reservoir will be joined to the California Water Resources De- velopment system, the so-called Feather River project. This is a State project, the purpose of which is to bring water from northern California to southern California. The State of California has appropriated $1,375,000 for the system. The Federal Government will make specific contributions totaling approximately $266,000,000 toward the construction of the San Luis Reservoir at Los Banos, California, and the Oroville Dam at Oroville, California, although there are no Federal funds designated generally for the Feather River project. A contribution of slightly less than $200,- 000,000 for the reservoir is in consideration for the Federal right to use 45 percent of its storage capacity. A contribution of $66,000,000 toward the Oroville Dam represents 22 percent of the cost of con- struction and is being made because the dam will be used in Federal flood control projects. Both the dam and reservoir are integral parts of the Feather River project. The Employer drilled wells for the San Joaquin Reservoir which is located at a point distant from both the San Luis Reservoir and 150 NLRB No. 72. MIDWAY DRILLING & PUMP CO. 787 the Oroville Dam. There are no Federal funds involved in the con- struction of either the San Joaquin Reservoir or the wells drilled by the Employer nor is there evidence that the Employer has performed other services in interstate commerce. The Employer maintained that it has not done work for the Feather River project in 1964 and may never again do any comparable work. In two recent cases,' the Board viewed Federal contributions to State projects on which Employers worked as indirect outflow and asserted jurisdiction on the ground the Employers met the Board's discretionary standards for nonretail enterprises. In one of these cases, Browne and Buford, supra, the Employer was a partnership engaged in rendering surveying, design, and in- spection services. The Employer received $23,672.86 as direct out- flow for out-of-State services which did not, in itself, meet the Board's outflow test of $50,000. However, the Employer "performed substantial services to political subdivisions of the State of Kansas in connection with the programs financed in large part by the Fed- eral Government." The Employer received $28,342.73 for services rendered to the Urban Renewal Agency of Kansas City, and $34,672.67 for services rendered Wyandotte Township, Kansas, the latter in connection with the construction of sewage treatment facili- ties. Federal assistance represented two-thirds to three-fourths of the net cost of the urban renewal project, and 30 percent of the Wyandotte sewage treatment project. Finding that "a labor dispute disrupting services to these projects would have a serious and ad- verse impact on programs which are closely. bound to the national interest," the Board viewed such services as indirect outflow and asserted jurisdiction. In the second case, Truman Schlup, supra, the Employer received $30,916.15 from the Kansas State Highway Commission for survey work performed in connection with the building of State and inter- state highways, $25,139.05 from the Urban Renewal Agency of Kan- sas City, and approximately $57,600 for a sewage extension plan drafted for Kansas City, Kansas. The urban renewal and sewage extension projects were recipients of "substantial" Federal funds as part of nationwide Federal programs. For the reasons stated in Browne and Buford, the Board held outlays for such projects to be indirect outflow and asserted jurisdiction. We find the present case distinguishable from the foregoing cases in that the Employer's drilling of two wells is much further re- moved from the impact of Federal financing. Here the Federal Government's contribution is not to the entire Feather River project but only to two specific elements of such project; namely, the San i Browne and Buford, Engineers and Surveyors , 145 NLRB 765 ; Truman Schlup, Con- sulting Engineer, 145 NLRB 768. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luis Reservoir and the Oroville Dam. Even though the Employer was drilling water wells for still another reservoir in the Feather River project, no Federal funds were received for this other reser- voir and consequently the Employer's work was not paid for by Federal moneys either directly or through State or other channels., In both Truman Schlup and Browne and Buford, supra, the Federal Government's contribution was to projects which the Employers worked on directly. Moreover, the Employer's uncontradicted testi- mony is it has not engaged in any comparable work on such project in 1964, and may never be involved in similar operations in the future. Upon consideration of these factors and the entire record, we con- clude that it would not effectuate the purposes of the Act to assert jurisdiction herein 2 [The Board dismissed the petition.] 2In view of our dismissal on jurisdictional grounds, we find it unnecessary to consider or determine the appropriate unit or whether drillers are supervisors within the meaning of the Act. Arnold Constable Corporation and District 65, Retail, Whole- sale Department Store Union, AFL-CIO, Petitioner. Cases Nos. 2-RC-12745, 2-IBC-12746, and 2-BC-12747. January 6,1965 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before Hearing Officer Robert E. Harding. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The appropriate unit. The Employer is a Delaware corporation operating retail stores in New York, New Jersey, and Pennsylvania. These cases concern the store located at 453 Fifth Avenue, New York City. Approxi- mately 500 employees are involved in this proceeding. 150 NLRB No. 80.