Lewiston Orchards Irrigation District

LEWISTON ORCHARDS IRRIGATION DISTRICT 827 Lewiston Orchards Irrigation District and Teamsters Union Local No. 551, Affiliated With the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independ- ent, Petitioner. Case 19-RC-5387 November 25, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed on May 1, 1970, under Section 9(c) of the National Labor Relations Act, as amended, a hearing in this case was held on June 3, 1970, before Hearing Officer Henry L. Chiles, Jr. Pursuant to Section 102.67 of the National Labor Relations Rules and Regulations, the above-entitled matter was duly transferred by the Regional Director for Region 19 to the Board for decision. The Petitioner and the Employer filed briefs. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The labor organization involved claims to represent certain employees of the Employer. 2. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 3. The basic issue in this case is whether the Lewiston Orchards Irrigation District, the Employer, is an employer within the meaning of Section 2(2) of the Act.' The Employer contends that it is exempt from coverage of the Act because it is a political subdivision of the State of Idaho, which is engaged in municipal and state-like functions. As to the Employ- er's contention that it is a political subdivision of the State of Idaho, we find, for reasons discussed below, that such is not the case. Idaho, like other and States, has statutorily provid- ed for the creation of irrigation districts. The Employer was organized and exists pursuant to Title 43 of the Idaho Code, as amended, for the purpose of supplying water to residents or landowners within the district. Geographically the district covers an area of approximately 3,600 acres of land and services a population of between 13,000 and 15,000. About one- fourth of the land is farmland, but the parties stipulated that less than 95 percent of the water stored or delivered is used for farming purposes. Domestic water is supplied for inside the home and irrigation water is supplied for farming and other purposes. During the past year approximately 5,000 acre feet of water was distributed for irrigation purposes, and 777 acre feet of water for domestic consumption. When surplus water is available, persons outside the dis- trict's boundaries receive water under surplus water contracts. In addition to supplying water to residents and landowners within and outside its boundaries, the Employer also provides irrigation water to the hydrant system operated by an instrumentality of the State of Idaho providing fire protection to residents in the district and also installs and maintains the hydrant system. Another ancillary operation of the Employer is the providing of recreational facilities to residents and landowners within the district. It owns and operates a public swimming pool and also operates a public park of approximately 10 acres of land which consists of lighted softball and baseball fields, playground equipment, and picnic facilities. A third type of facility which it operates are picnicking, camping, and boating facilities of various types at its reservoirs. The Employer also leases certain land for the purposes of operating a land fill garbage dump for its residents. Various charges are made to the users of the above services. Under Title 43 of the Idaho Code the first step for bringing into being an irrigation district is a petition by 50, or a majority, of the landowners in the proposed district. Such a petition was presented to the Board of County Commissioners of the county of the above district. The proposal was examined and approved by the Idaho Department of Reclamation, and an election was held among the eligible landown- ers in the proposed district. When approved, a board of directors was then elected by landowner voters. Under the Idaho Code such voters had to possess all the qualifications required of an elector under the general laws of the State of Idaho, and such election was conducted as nearly as practicable in accordance with the general laws of the State. The Code further provides that, in the event of a vacancy in the office of director of the district, the vacancy will be filled by appointment by the remaining members of the Board of the district. The dissolution or modification of the district may be accomplished as provided under the Code, at any time. The Employer's day-to-day operations are controlled by its operating manager, and are free of any direct control by the State. Since its establishment the Employer has had the power of eminent domain and the authority to levy and collect assessments for the purpose of raising I Section 2(2) of the Act provides in relevant part "The term `employer' shall not include . any state or political subdivision thereof. " 186 NLRB No. 121 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money to be applied to any of its established purposes. Bonds which it issues are accepted and sold in the municipal bond market. Surplus funds must be deposited under the State Public Depository Law or invested in bonds specified in the State Code. Now, and for over 20 years, none of the property of the Employer has been assessed for taxation by the State of Idaho, and under effective statutes is exempt from taxation. The books of the Employer have not been required to be audited by any state authority, but have been audited by an independent accounting firm. Since 1969, however, there has been a state require- ment that it must prepare and file with the State Auditor an annual financial report, but it has not yet done so. The Idaho Supreme Court noted, in a tax case involving the Employer, that the irrigation district in question is similar to a "public corporation" having such incidental municipal powers as are necessary to its internal management and proper conduct of its business. The Court further noted that the district's primary purpose is the acquisition and operation of an irrigation system as a business enterprise for the benefit of landowners within the district, such property being held in trust for them in a proprietary capacity, while secondarily and incidentally certain municipal powers have been conferred for its govern- ment regulation.2 Other decisions of the State Court have similarly characterized an irrigation district as a "public quasi corporation" or "mutual co-operative corporation," organized to conduct a business for the private benefit of the owners of the land within its jurisdiction. The Idaho Courts have stressed that the landowners are considered members of such a corporation, control its affairs, and alone are benefit- ed by its operations, and that such irrigation districts operate in a proprietary rather than a public capacity.3 Early in its history the Board held that the Section 2(2) exemption applied to public bodies created: (1) directly by a State and governed by state officials appointed by the State; or (2) by election by voters of a state-created district.4 The Employer here is clearly not a public body created directly by a State and 2 See Lewiston Orchards Irrigation District v. Gilmore, 53 Idaho 377, 23 F.2d 720. 3 See, e.g., City of Nampa v. Nampa-Meridian Irrigation District, 19 Idaho 779, 115 Pac. 979; Pioneer Irrigation District v. Walker, 20 Idaho 605, 119 Pac. 304; Tingwall v. King Hill Irrigation District, 66 Idaho 76. 115 F.2d 605; Nampa & Meridian Irr. Dist. v. Briggs, 147 F.2d 75. 4 See Mobile Steamship Assn. et al., 8 NLRB 1297, where the State Docks Commission , one of the employers was directly created by the State of Alabama ; Oxnard Harbor District, 34 NLRB 1285, a harbor district organized by district residents under a general enabling act of California, but governed by a board of commissioners elected for a term of office by qualified voters of the district; New Jersey Turnpike Authority (2-RC-2245, April 16, 1954), an authority directly created by the Legislature and governed by members appointed by the Governor with advice and consent of the Senate; New Bedford, Woods Hole, Martha's Vineyard, etc., Steamship governed by state officials appointed by the State, and thus does not fit under category (1). Nor in our opinion does it fit category (2) above, since the directors were not elected by "qualified voters of the district," as was the situation in the Board's basic case in this area, Oxnard Harbor District, supra, but the district was created and directors elected by a special class of voters, landowners, for the benefit of the particular member landowners, with the eventual determination of the continuance of the Employer in the control of such member landowners. User charges are made for its recreational and other municipal or state-like functions . Such functions are incidental to its primary function of supplying water to the landowner members. Upon a consideration of all the facts, we conclude that the State's control over the Employer operations is no more extensive than that exercised over a typical public utility.5 The Employer would appear to be no more a direct creation of the State than such privately owned public companies as railroads and motor carriers, which also require some form of governmen- tal approval, such as a certificate of convenience and necessity. We note that the Idaho Code grants the right of eminent domain to many entities other than subdivisions of the State, such as pipe lines, cemeter- ies, telephone companies, farmers, railroads, and various public service-type companies.6 Nor are we persuaded that the mere possession of the right to sell public bonds, the power to levy and collect assess- ments, and tax exempt status requires us to find that the Employer constitutes a political subdivision, since we find that such powers were conferred in the aid of a venture which is essentially private in nature. We note that many electric cooperatives over which the Board asserts jurisdiction may also qualify as organi- zations exempt from Federal income tax. While the Board, though considering? does not give controlling weight to a state code and its interpretations by the state courts in determining whether an entity is an employer for purposes of the NLRA,8 we further note that the decisions of the Idaho State Supreme Court do not support the Employer's contentions that the Authority, 127 NLRB 1322, a body corporate created by Massachusetts, consisting of members appointed and removed by the Governor with the advice and consent of Executive Council . See also, Fayetteville-Lincoln Electric System, 183 NLRB No. 18, a body created by special state legislation authorizing city acquisition , and operated by appointees of a municipal official. 5 See Truckee-Carson Irrigation District , 164 NLRB 1176 . Randolph Electric Membership Corp., 145 NLRB 158, enfd. 343 F.2d 60 (C.A. 4). 6 Section 7-701. 7 See. e.g., International Brotherhood of Electrical Workers, 87 NLRB 99, 100-101. 8 Natural Gas Utility District of Hawkins County, Tennessee, 167 NLRB 691. See also 170 NLRB No. 156, enforcement denied 427 F.2d 312 (C.A. 6). Cf. Randolph Electric Membership Corp., supra. LEWISTON ORCHARDS IRRIGATION DISTRICT 829 Employer is essentially differentiated from a private venture ; rather, they indicate it is not. Accordingly, we find that the Employer is not a political subdivision of the State of Idaho, but an employer within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein.9 We shall, therefore, direct an election in an appropriate unit of the Employer's employees, as described below. 4. We find, in accordance with the stipulation of 9 The parties stipulated that the Employer has a gross dollar volume of business in excess of $250,000 annually and purchases goods directly or indirectly from suppliers who in turn purchase goods outside the State of Idaho in excess of $50,000 annually See Sioux Empire Electric Association, 122 NLRB 92,94 10 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company, the parties, the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer, exclud- ing all seasonal swimming pool employees, office clerical employees, professional employees, guards, and supervisors as defined by the Act. [Text of Direction of Election i0 omitted from Publication.] 394 U S 759 Accordingly, it is hereby directed that an election eligibility list containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 19 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed