Lewiston Orchards Irrigation District

National Labor Relations Board - Board Decisions

Nov 25, 1970

186 N.L.R.B. 827 (N.L.R.B. 1970)

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