Snowshoe Co.

SHOWSHOE CO. 535 Snowshoe Company and Laborers' International Union of North America, Local Union No. 1182, AFL- CIO, Petitioner. Case 6-RC-6686 July 23, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act,, as amended, a hearing was held before Hearing Officer Frank J. Surprenant of the National Labor Relations Board. Following the close of the hearing the Regional Director for Region 6 transferred this case to the Board for decision. Thereafter, the Employer filed a brief. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 1. Upon the entire record in this proceeding, and for the reason set forth below, the Board finds that the Employer meets the jurisdictional standards for non- retail establishments by directly and indirectly pur- chasing goods and services valued above $50,000 from outside the State of West Virginia. Therefore, the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. Snowshoe Company is a West Virginia corporation presently engaged in creating a year-round resort and in developing real estate for sale near Elkins, West Virginia. It has a three-stage plan for development which, if completed, will take 5 years. Only the first stage of development has been financed, requiring capitalization of $4.5 million. This stage was started in the fall of 1973 and is scheduled for completion in December 1974. Stages two and three will enlarge the resort by adding more ski trails, lifts, and snow-mak- ing machines; a $6.5 million condominum hotel; a golf course; and a vacation-home subdivision. The Employer maintains a unit of 25 to 35 laborers who cut brush and trees in the preparation of ski slopes, ski trails, and access roads. These people do jobs on the site that are deemed too small for the Employer to subcontract. Snowshoe also has construction contracts with sev- eral companies that represent over $1 million worth of goods and services traveling in interstate commerce. It has a $1.1 million contract with a Canadian engi- neering firm to design and then supervise the installa- tion of the stage one ski lifts and show-making ma- chines. This contract represents engineering design services, as well as supervision on the jobsite. The ski lifts, manufactured in Utah, have a total cost, includ- ing installation, of over $500,000. The snow-making system is not premanufactured, but must be assem- bled from component parts, at least $50,000 of which will come from outside West Virginia. Snowshoe also has two other construction contracts totaling approxi- mately $1.6 million with West Virginia construction firms. Each of these contracts will use more than $50,000 worth of materials' not manufactured in West Virginia. In addition to this inflow of materials and services from out of State, Snowshoe has' received income of approximately $450,000 from sale of mem- berships in the resort. The Employer urges that these out-of-state materi- als should be considered "non-recurring capital ex- penditures" 1 and therefore not counted when determining whether this Employer meets the juris- dictional standard for nonretail businesses. The Board has held that it will not assert jurisdiction over an employer's business strictly on the basis of nonre- curring capital expenditures? However, there is Board precedent for finding that where the question is one of counting capital purchases for the purpose of ap- plying the Board's nonretail, inflow test, such pur- chases will be counted if they are not the only items of inflow.' It is clear from the record in this case that Snowshoe has purchased over $1 million worth of materials and services from outside the State of West Virginia, and has received over $450,000 from sales of resort memberships. The combination of these figures easily surpasses the jurisdictional standard for nonre- tail businesses. The Employer also urges that while the resort con- struction may involve other corporations and capital expenditures from out-of-state, the Employer's activi- ty and that of its employees at this time is solely intrastate. The record does not support this conten- tion. Thus, the Employer presently has contracts with various out-of-state companies to provide goods and services valued in excess of $2 million. In view of the interstate character of the Employer's operations and their substantial effect on interstate commerce, we find that the Employer is an employer 1 Magic Mountain, Inc, 123 NLRB 1170 (1959). The Magic Mountain corporation was engaged in constructing and operating an amusement park Less than $100,000 worth of "capital improvement goods" were received from out of State. The Board chose not to assert jurisdiction at that time, because the employer would be engaged solely in operation of the park after installation of the capital goods. 2 Richter Transfer Company, 80 NLRB 1246 (1948); Magic Mountain, Inc, supra 3 Cemetery Service Corporation, 149 NLRB 604, 606 (1964). 212 NLRB No. 29 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce within the meaning of the Act. It will therefore effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. 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. 4. The parties agreed, and we find, that the appro- priate unit is: All employees normally employed on a con- struction project in laborer classifications em- ployed at Snowshoe Company near Elkins, West Virginia, excluding all other crafts normally em- ployed on a construction project, all office cleri- cal employees, guards, and professional employees and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.]