Simplot Fertilizer Co.

National Labor Relations Board - Board Decisions

Aug 26, 1952

100 N.L.R.B. 771 (N.L.R.B. 1952)

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.