Simplot Fertilizer Co.

National Labor Relations Board - Board Decisions

Feb 19, 1954

107 N.L.R.B. 1211 (N.L.R.B. 1954)

SIMPLOT FERTILIZER COMPANY 1211
employees, experimental machine shop employees,4 library,
reproduction and document control employees, technicians,
confidential, administrative, professional, and office clerical
employees , draftsmen , guards, and supervisors as defined in
the Act.
(B) All transportation department employees , warehouse,
procurement, and property disposal department employees,
cafeteria employees, and heavy equipment repair shop
employees, excluding office clerical, administrative, and pro-
fessional employees , draftsmen, guards , and supervisors as
defined in the Act.
If a majority of employees in each voting group vote for the
Petitioner, the 2 voting groups will together constitute a single
appropriate unit. If the majority in the 2 voting groups vote for
different representation, the employees in such voting groups
will constitute separate appropriate units. The Regional
Director conducting the elections shall issue to the parties
certification of results of the election including certification
of representatives if appropriate.*
[Text of Direction of Elections omitted from publication.]
4The Petitioner would include, and the Employer and Intervenor exclude, 6 experimental
machine shop employees. The experimental machine shop is a small shop located in the tech-
nical laboratory and is supervised by a graduate physics engineer. The machinists do no
production work, but together with the engineers and physicists are engaged in designing and
making experimental models. The machinists in this shop have been excluded from the
collective-bargaining contracts between the Employer and the Oil Workers. We find that the
interests of these employees are more closely linked with the technical and professional
employees with whom they work in close association, than with the employees in either of
the 2 voting groups. We shall exclude them. Rockwell Manufacturing Company, 89 NLRB 1434.
5 Member Murdock would dismiss the petition rather than direct elections in the above voting
groups. As he construes the Petitioner's position, it desires an election in the overall unit
and in no other. Moreover, the Oil Workers, although opposing the Petitioner's broad unit,
apparently does not desire an election among the employees for whom it is the certified and
recognized bargaining representative. He believes, therefore, that the Board is directing
elections which none of the parties desires.
J. R. SIMPLOT COMPANY, d/b/a SIMPLOT FERTILIZER
COMPANY and INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL NO. 370, AFL, Petitioner. Case No.
19-RC-1045. February 19, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
A Decision and Direction of Election issued herein on
August 26, 1952.1 Pursuant to a Second Direction issued on
1100 NLRB 771.
107 NLRB No. 254.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 22 , 1953, and an amendment thereto on June 24, 1953, an
election by mail ballot was conducted under the direction and
supervision of the Regional Director of the Nineteenth Region.
Upon counting and tabulation of the ballots, a tally of ballots
was issued and served upon the parties hereto in accordance
with the Rules and Regulations of the Board.
The tally shows that of 51 eligible voters, 43 voted. Of
these, 28 voted for and 14 voted against the Petitioner, and 1
cast a challenged ballot . On July 2Z, 1953, the Employer filed
detailed objections to the election and the conduct thereof. The
Regional Director , in his report on objections , dated August 4,
1953, recommended to the Board that a hearing be held on the
issues raised . 2 On August 20, 1953, the Board issued an-order
directing hearing on objections wherein it was directed that
the hearing officer designated to conduct the hearing prepare
and cause to be served upon the parties a report containing
resolutions of credibility of witnesses , findings of fact, and
recommendations to the Board as to the disposition of the
objections.
Pursuant to the order of the Board , a hearing was held on
October 8, 1953, before David E . Davis, hearing officer. The
Board has reviewed the rulings made bythe hearing officer and
finds that no prejudicial error was committed . The rulings are
hereby affirmed.
On November 16, 1953, the hearing officer issued his report
on objections , a copy of which is attached hereto , finding that
none of the objections raises substantial and material issues
with respect to the election, and recommending that the objec-
tions be overruled. On November 30, 1953, the Employer filed
exceptions to the hearing officer ' s report on objections.
The Board has considered the hearing officer's report, the
exceptions , and the entire record in this case , and hereby
adopts the findings , conclusions , and recommendations of the
hearing officer as modified below.'
As to its exception to the hearing officer's finding of no
merit in the first objection , in which it is alleged that the
election was held in violation of Tribal laws, the Employer
contends that the finding is not supported by the evidence, that
the hearing officer erred in stating that the Council Ordinance,
if contrary to the National Labor Relations Act, as amended,
is void as an ultra vires act , that the Board has no jurisdiction
within the confines of the Fort Hall Reservation, and that
assertion of jurisdiction by the Board would place the
Employer ' s leases with the Tribe in jeopardy . We find no merit
in this exception and, like the hearing officer, overrule the
first objection . However , in so doing , we merely reaffirm, on
the basis of all the evidence in the record , the Board ' s findings
2 As the one challenged ballot could not affect the election results , the Regional Director
did not pass upon it.
3 The Board agent notified the Employer that an election by mail ballot was going to be
held, rather than that it was going to be held " immediately" as the hearing officer found.
SIMPLOT FERTILIZER COMPANY 1213
in the prior Decision in this case that the Board has jurisdic-
tion and that it would effectuate the policies of the Act to assert
it over the Employer herein, and that the Council Ordinance in
no way conflicts therewith. We do not here decide whether the
Ordinance otherwise comports with the provisions of the Act.
As we have overruled the Employer's objections, and as the
tally of ballots shows that the Petitioner obtained a majority of
the valid votes cast in the election, we shall certify the Peti-
tioner as the bargaining representative of the employees in
the appropriate unit.
[The Board certified International Union of Operating Engi-
neers, Local No . 370, AFL, as the designated collective-
bargaining representative of the employees in the unit hereto-
fore found appropriate.]
Hearing Officer ' s Report On Objections To Election
Pursuant to a Decision and Direction of Election issued August 26, 1952, by the National
Labor Relations Board, hereinafter called the Board , an election by mail was conducted
under the direction and supervision of the Regional Director for the Nineteenth Region among
the employees in the unit found appropriate in the Decision
Said election was conducted by an agent of the Regional Director by mail. The ballots were
mailed on June 16 , 1953, and were returnable June 22, 1953 The ballots were counted on
July 17, 1953, and a tally of ballots issued on July 17, 1953. The tally, in its material parts,
is as follows:
Approximate number of eligible voters 51
Void ballots ... ........ . .. .... 0
Votes cast for petitioner ... .. ........... .. .. ... .............. ......... 28
Votes cast against participating labor organization . ... . .. . ............. 14
Challenged ballots.. . .......... ...... ... .... ....... .. ..... ... ... 1
Valid votes counted plus challenged ballots ...... 43
Challenges are not sufficient in number to affect the results of the election
A majority of the valid votes has been cast for the petitioner
On July 22, 1953, the Employer filed timely objections to the election and the Regional
Director, in his report on objections to election dated August 4, 1953, recommended to the
Board that a hearing be held on the issues raised by said objections On August 20, 1953, the
Board issued an order directing hearing onoblectionswherein it was directed that the hearing
officer designated for the purpose of conducting the hearing shall prepare and cause to be
served upon the parties a report containing resolutions of the credibility of witnesses , findings
of fact, and recommendations to the Board as to the disposition of said objections.
Pursuant to said order of August 20, 1953, the Regional Director issued and served upon
the Employer and the Petitioner a notice of hearing. Said hearing was conducted in Pocatello,
Idaho, on October 8, 1953, before the undersigned duly designated hearing officer. Employer,
Petitioner, and the Board were represented by counsel and each was given full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the
issues, and to file briefs. A brief has been received by the hearing officer from the Employer
and has been duly considered.
Since no exceptions to the Regional Director's report on objections to election were filed
and the Board adopted the said Regional Director's recommendations as contained therein, the
objections of the Employer as found by the Regional Director may be stated as follows:
I.
That the said order and direction of election was held in direct violation of, and con-
trary to, the provisions of all acts relating to the Shoshone-Bannock Tribes, Inc., the
Rules, Regulations and Ordinances adopted by the Shoshone Bannock Tribes, Inc.
337593 0 - 55 - 78
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL
That the National Labor Relations Board lost jurisdiction to issue any order in the said
premises for the reason that the Second Directionof Election was dated May 22, 1953, and
directed that an election be held not later than thirty days from the date of the Second
Direction, and that thirty days had expired at the time an order was issued by the National
Labor Relations Board termed "An Order Amending Second Direction of Election."
III.
That the election was not conducted in the manner as provided by the Statutes of the
United States of America and the Rules and Regulations of the National Labor Relations
Board in this:
(a) That the election was not conducted by secret ballot, pursuant to the provisions
as to a secret ballot
(b) That the J. R Simplot Company did not know that the election was being
conducted
(c) That the J. R Simplot Company was not permitted to have an observer present
(d) That many of the employees are non-whites, namely, Indians, and there is
grave doubt as to whether or not they could understand adequately the English language
so that they could act without assistance in voting.
(e) That certain envelopes, supposed to have contained ballots, were delivered to
the J. R. Simplot Company, who, in due course, delivered the same to the head-
quarters of said mine plant, and that in the event the employees voted and utilized
the ballots that were in said envelopes such employee had to carry the same to the
United States Post Office located many miles from the point of where said ballots
were delivered, and there is no proof as to who did the actual voting, or who placed
the ballots in the mail system for the return to the Board, or that the said employees
so receiving said ballots were the ones so voting.
(f) That there was no identification had of the parties marking the said ballots,
or marking the said envelopes, so that one would know, or could know, that the
party whose name was on the envelope was an employee and that such employee
actually voted.
N
That there was no adequate or appropriate reason why an election should be had by
mail.
V.
That the said election by mail was not ordered by the National Labor Relations Board
or by anyone in authority , after the said National Labor Relations Board had had the
matter submitted to it and issued an order that that type of an election be held.
V-A.
That improper addresses were used by the National Labor Relations Board in advising
employees as to an extension of time, namely:
c/o J. R. Simplot Co ,
Fort Hall, Idaho
as the Company has no such address , hence all employees did not have an opportunity to
vote.
VL
That the various Directions , Extensions , or Orders deferring election, or Orders
directing that a different type of election be held , were of such a nature , and given at
such time , or times, so as to permit misunderstandings to arise, and to cause the
J. R. Simplot Company great concern and to be misunderstood in its attitude as to its
employees operating independently or through some particular union so chosen by them
VIL
That the action of the National Labor Relations Board, through its various representa-
tives, more particularly as to actions as of June 16, 1953, were such that could, and did,
SIMPLOT FERTILIZER COMPANY 1215
cause the various employees to have a misunderstanding as to the attitude of the said
Company in relation to the activities of said employees in union matters, and was such
that the employees could, and undoubtedly did, obtain the impression that the J. P.
Simplot Company was opposed to any bargaining unit being set up to deal with said
Company on behalf of said employees
VIIL
That the said actions of the National Labor Relations Board, acting by and through its
said representatives, more particularly those of June 16, 1953, were such that the said
employees could, and did, obtain the impression that the Company was seeking to block
all elections pertaining to representations by labor units while, as a matter of fact, all
the J. R. Simplot Company was doing was carrying out the request that had been filed
with it by its lessors. Shoshone-Bannock Tribes, Inc
DX.
That the J. R. Simplot Company is the holder of certain leases of the Indian lands
issued by individual Indians or by the Business Council of such Tribe, and such lessors
were not consulted and received no notice of the said Second Direction of Election.
X.
That the said actions of the said National Labor Relations Board endangered the prop-
erties of the said J. R. Simplot Company, and endangered the relations existing between
the individual allottees, who issued leases to the J. R. Simplot Company, and the said
Business Council of the said Shoshone-Bannock Tribes, Inc , and that the J. R. Simplot
Company was maintaining a neutral attitude in view of its holding leases as it did, and
that the actions of the representative of the National Labor Relations Board was of such a
nature as to convey to the employees an incorrect attitude on behalf of said Company.
XL
That the actions of the National Labor Relations Board, acting by and through its
examiner or representative, were such that said employees viewed the actions of the
Company with suspicion and lead to a voting that is not a true and correct expression of
the views of the various employees.
X IL
That a vote by mail is never authorized except under extraordinary circumstances and
such circumstances did not arise in the instant matter
XIIL
That on June 16, 1953, at a meeting officially called by the National Labor Relations
Board, the wishes of the Company were expressed by authorized employees, and by
employees with authority to speak for the Company, at which time a representative of the
National Labor Relations Board was present, and, notwithstanding the attitude of the
Company having been explained to such representative, such representative proceeded to
the site of such mine and there asked some employee without authority in such matters
to permit an election to beheld, and that there were present and about the place employees,
and that the actions of such representative caused misunderstandings to arise, and
caused the employees to obtain a false attitude as to the position of the J. P. Simplot
Company in the matter, thereby creating an impression as to the attitude of the Company,
which was not a correct one and which undoubtedly caused employees to change their
views as to who they desired to represent them in employment matters.
Preliminary Findings
Upon the entire record as compiled at said hearing of October 8, 1953, and from his obser-
vation of the witnesses, the undersigned makes these findings of fact and recommendations to
the Board as to the disposition of the Employer's objections to the election
The J. R. Simplot Company, the Employer herein, is the holder of a number of phosphate
mining leases obtained on land within the Fort Hall Indian Reservation in Idaho. Most of
these leases were originally obtained from individual allottees Thereafter, the allottees
assigned them to the Shoshone-Bannock Tribe so that at the present time, all but one of the
leases bear the name of the Shoshone-Bannock Tribe as lessor The leases were obtained in
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1943 and 1944 The party negotiating the leases had entered into an understanding with the
individuals , the Indian agency superintendent , and the Tribal Council that Indians would be
given preference for employment.
The Shoshone-Bannock Tribes , Inc., is incorporated under laws of the United States and
pursuant to the regulations of the Department of the Interior , it is the governing council and
governing body of the Fort Hall Indian Reservation . The leases of the J . R. Simplot Company
are so worded that in the event that a working agreement is concluded with reference to
mining , the permission of the Secretary of the Interior is necessary The J. R. Simplot Com-
pany has a cross contract with the Food, Machinery , and Chemical Corporation , Westvaco
Chemical Division , which agreement , in turn , has been approved by the Shoshone- Bannock
Tribes and the Secretary of the Interior.
During 1947, complaints were made that the mine management was not fulfilling the agree-
ment or understanding concerning preference of employment to Indians Accordingly, the
Shoshone- Bannock Tribes passed an ordinance which forbade labor unions to interfere in any
way in the hire of Indian workers on any job at the mine . The ordinance read as follows:
Ordinance of the Fort Hall Business Council of the Shoshone - Bannock Tribes. Be it
enacted by the Business Council of the Shoshone-Bannock Tribes in accordance with
Article VI, Section 1, paragraph 1, that masmuchas there is considerable industry on the
Fort Hall Indian Reservation , more particularly in the development of phosphate deposits,
and likewise , as there is enrolled , Indians of the Fort Hall Reservation are working for
the different companies that are carrying on these developments , and by reason of the
fact that many of the said Indians do not work regularly or for protracted or long periods
of time, it is deemed advisable that they shall not be compelled to join any organization
in order to work for wages on such projects that are being carried on within the reser-
vation boundaries.
Be it further enacted that inasmuch as the provisions for leases and developments on
the reservation require that preference be given to Indian employment, no organization
shall come on the reservation and compel membership in any manner in order to work on
such projects
Any Indians or non - Indians violating this ordinance shall be subject to appropriate action
by tribal and federal officers ...Dated July 8. 1947
The constitution and bylaws of the Shoshone-Bannock Tribes provide that the Business
Council of the Fort Hall Reservation shall exercise the following powers, subject to any limita-
tions imposed by the statutes or the Constitution of the United States, and subject further to
all express restrictions upon such powers contained in the constitution and bylaws, and sub-
ject to review at any annual or special meeting of the Shoshone-Bannock Tribes and to negotia-
tion with the Federal, State, and local Governments on behalf of the tribes and to advise and
consult with the representatives of the Interior Department on all activities of the Department
that may affect the Fort Hall Reservation.
Also, to approve or veto any disposition, lease, or encumbrance of tribal lands, interest in
lands, or other tribal assets which may be authorized or executed by the Secretary of the
Interior, the Commissioner of Indian Affairs, or any other official or agency of Government,
provided that no tribal lands shall ever besold, encumbered, or leased for a period exceeding
5 years, except for governmental purposes.
To safeguard and promote the peace, safety, morals, and general welfare of the Fort Hall
Reservation by regulating the conduct of trade and the use and disposition of property upon the
reservation, provided that any ordinances directly affecting nonmembers of the reservation
shall be subject to review by the Secretary of the Interior.
Any resolution or ordinance which by the terms of this constitution is subject to review by
the Secretary of the Interior shall be presented to the superintendent of the reservation who
shall, within 10 days thereafter, approve or disapprove the same, and if such ordinance or
resolution is approved, it shall thereupon becotpeeffective, but the superintendent shall trans-
mit a copy of the same, bearing his endorsement, to the Secretary of the Interior, who may,
within 90 days from the date of enactment, rescind said ordinance or resolution for any
cause, by notifying the Council of such action.
The lessors of all of the J. R. Simplot leases are members of the Fort Hall Reservation
tribe of Indians, known as the Shoshone-Bannock Tribes.
Sometime in 1952, Jack Rockwell, a representative of the International Union of Operating
Engineers, Local 370, AFL, appeared before the Tribal Council and asked permission to
institute an organizing drive at the mine. Such permission was granted. Subsequently, the
SIMPLOT FERTILIZER COMPANY 1217
permission was withdrawn, a petition , the instant case, was filed by the Union , and a hearing
held. The Board, on August 26, 1952, issued its Decision and Direction of Election, directing
an election within 30 days. On September 18, 1952, by an order amending the Direction of
Election, an extension of 20 days was granted within which to conduct the election. A further
amendment on October 16, 1952, granted an additional 20 days. Another amendment of the
Direction of Election was issued on November 25, 1952. This amendment provided that the
election would be postponed pending further order of the Board.
A Second Direction of Election was issued on May 22, 1953, which directed that an election
be held not later than 30 days from the date thereof. On June 24, 1953, an order amending the
Second Direction of Election was issued which extended the time for holding the election for
an additional 30 days.
On June 5, 1953, Orville W. Turnbaugh, the field examiner designated by the Regional
Director to act as his agent and as agent for the Board , sent letters t to each of the parties
enclosing copies of the notice of election . 2 The letters set a preelection conference for June
16, 1953, at 9:30 a. m. in the office of O. R Baum, attorney for the Employer. The notice of
election set the date for said election as June 16, 1953, at 230 p. in to 3:30 p. m at the mine
garage. Thereafter, by letter dated June 8, 1953,9 Baum notified the Regional Director that
the Employer was reluctant to post the notices of election. Accordingly, on June 9, 1953,
duplicate notices of the election were mailed to the individual employees. The notices were
addressed to each employee in care of the Employer. They were received by the Employer
in his office at Pocatello, taken to the mine which is some 14 miles from Pocatello, and there
made available to the employees. Of the 51 go addressed, 4 were returned to the Regional
Board office as undelivered. The undersigned herewith finds that the balance of the notices
(47) were received by the individuals to whom they were addressed.4
The election contemplated in the notice of election was not held as scheduled because of the
intervention of circumstances described below
At the preelection conference held in Baum's office on June 16. 1953, at about 10 a. m , the
following were present: Earl Wooldridge, superintendent of the Fort Hall Indian Reservation;
E. H. Buhler , resident manager of the Simplot Fertilizer division of the Employer, John Kobe,
assistant manager of the Fertilizer division of the Employer; O. R Baum, attorney for the
Employer, Jack Rockwell, field representative of the Petitioner; Earl Butler, an employee
of the Employer and designated by the Petitioner as its observer in the pending election; and
Orville W. Turnbaugh, field examiner of the National Labor Relations Board. At the outset of
the conference, O. R. Baum displayed a letter signed by Joseph Thorpe, Jr., chairman of the
Fort Hall Business Council, and dated June 15, 1953, S which reads as follows:
THE SHOSHONE-BANNOCK TRIBES
(EMBLEM)
FORT HALL INDIAN FORT HALL AGENCY
RESERVATION FORT HALL. IDAHO
June 15, 1953
Mr. O. R. Baum, Counsel
J. R. Simplot Company
Pocatello, Idaho
Dear Sir-
It has been learned that the Union plans to hold an election at the Simplot Mines on the
Fort Hall Reservation, tomorrow, June 16th, and I want to protest this action. You will
recall our Resolution No. 283, adopted September 11, 1952, a portion of which is quoted
here:
ISee Board's Exhibits Nos. 2 and 3.
2 See Board's Exhibit No. 4.
9 See Board 's Exhibit No. 5A.
4 This finding becomes necessary in view of the limited stipulation entered into by the
parties.
5 This letter is attached to Board's Exhibit No. 1B.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"No action heretofore taken by the Council shall be deemed a consent by the tribe to the
holding of any election to ascertain representatives for the purpose of collective bargain-
ing with said Simplot Company on behalf of the members of the tribe or for any purpose
inconsistent with the objects of this resolution. It is specifically declared that the tribe
on behalf of its members has no intentions of becoming bound by a majority vote of
present employees of said Simplot Company, the majority of which are non-Indians, until
the preference rights of tribal members have been preserved and obtained as the case
may be."
Since that time our Resolution No. 286, adopted September 23, 1952 has provided for the
modification of all mining leases now in force so as to give Reservation Indians certain
preference in employment at the mines and our attorney has been working with you on
these modifications
The Indian Office wrote us on February 24 to ask about our views in the matter, but
the Tribal Council in their meeting on March 10 instructed Mr. Boyden, our attorney,
to proceed as outlined in our Resolution No. 286.
The Tribal Council is not holding official meetings just now but I am sure the members
have not changed their stand in this matter. It is requested, therefore, that your Company
take no part in plans to hold an election on the Reservation tomorrow, and I am asking
one of our Tribal Officers to deliver a copy of this letter to your manager at the mine,
with the request that no election be held.
Yours sincerely,
/s/ Joseph Thorpe, Jr.
Joseph Thorpe, Jr.
0. R. Baum then stated that in view of the foregoing letter, the Employer would not participate
in an election held on the premises leased by the Employer from the Shoshone-Bannock Tribes,
since such participation would jeopardize the leases. Turnbaugh, the Board agent, requested fa-
cilities to conduct the electiort, and a company observer. Both requests were rejected by the
Employer for the reasons stated above. Baum then suggested that the election should be post-
poned and the problem submitted to the Office of Indian Affairs. Turnbaugh, in turn, stated that he
had been instructed, and he had every intention insofar as was possible, to conduct the
election. He then stated that he would go to the mine and see if he could arrange to hold the
election somewhere, and Baum stated that the Employer had no objection to the holding of the
election off company premises.
At about 2:30 p. in on the same day, June 16, 1953, Turnbaugh went to the mine The events
and conversations are best summarized by a report dated June 17, 1953, made by Charles
Sweetwood, superintendent of the mine, to L. M. Buhler, resident manager of the mine. The
report 6 reads as follows:
Mr. Turnbaugh of the National Labor Relations Board arrived June 16th at the Mine at
approximately 2 P. M. for the purpose of conducting an election to determine whether or
not the hourly wage employees desired to have a Union instituted at the mine (specifi-
cally the International Union of Operating Engineers, Local No. 370, AFL). Mr. Turnbaugh
presented all necessary credentials and informed us that he would like to have an observer
from this company to be present at the election and that he would like to have us give
him a place and equipment to hold the election. We informed him that we were on Tribal
land leased from the Shoshone Bannock Tribe Inc., and that the Tribe had not to our
knowledge, given us permission to assist in any such election, and if he planned to hold
that election, it must be held at some point not on our leases. We informed him that as
far as this company was concerned, he was privileged to hold this election, but as men-
tioned above, not within the confines of our leases. We also informed him that on June 15th
we had received a copy of a letter addressed to O. R. Baum from Joseph Thorpe, Jr , of
6 See copy o the report attached to Board's Exhibit No. lB. There was testimony at the hearing
with respect to the events bySweetwood, Kobe, and Hugues. It is the opinion of the undersigned
that the testimony adds nothing beyond what is contained in the report, which was made,
apparently, immediately after the occurrence of the events or a day later. The only fact that
the testimony contributed was that the conversations took place in the shop or garage, which
is 80 feet long by 40 feet wide, and about 40 feet deep. Those engaged in conversation did not
stand in one place but walked to various parts of the garage and at various times, 4 to 6 of
the eligible voters were close enough to hear the conversation if they listened.
SIMPLOT FERTILIZER COMPANY 1219
the Tribe, requesting us not to take part in any election at the mine at this time. This
letter also quoted a paragraph from a Tribal Resolution, No. 283, adopted September 11,
1952, stating that any such election would be illegal with respect to Tribal Laws. Further-
more, Mr. Kobe told him that this matter had been settled earlier that morning in
0. R. Baum's office, at which time Mr. Turnbaugh was present and the position of the
J. R. Simplot Company was fully explained.
Mr. Turnbaugh was shown our nearest lease boundary and he began to make prepara-
tions to hold the election in his car on the road at that point. At 2:30 P. M. Mr. Earl
Cutler of the Fort Hall Police Force arrived at the mine and informed Mr. Turnbaugh
that he had instructions from Mr. Wooldridge, Superintendent of the Fort Hall Indian
Reservation, not to permit an election on the Reservation at this time. Further, he had
instructions to evict Mr. Turnbaugh should he attempt to hold such an election at any
point on the Reservation or within the boundary of the Simplot Leases.
Mr. Turnbaugh asked Mr Cutler for written authorization to discontinue or postpone
the election. Mr. Cutler did not have such a written authorization, but stated that he was
acting upon orders given to him from Mr Wooldridge. Mr. Turnbaugh stated that inas-
much as everything had been verbal at that time, he would appreciate a first hand state-
ment from Mr. Wooldridge to the effect that it was the Tribe's desire to postpone the
election. Mr Cutler attempted to contact Mr. Wooldridge by Police Car Radio, but was
unable to do so, and told Mr Turner that he would take full responsibility for his actions.
Mr. Turnbaugh gathered the men together in the vicinity of the shop and told them that
although he had not received any written authorization to discontinue or postpone the
election, still he had to honor the law and the desires of the Superintendent of the Indian
Reservation who at this time is acting as a legal representative of the Shoshone Bannock
Tribes, Inc. He said that the election would, therefore, be postponed until further notice.
Mr. Turnbaugh specifically stated to the men that all actions that he was taking at this
time was at the request of a tribal law enforcement officer, and therefore, at the request
of the Tribe. The name of this Company was not mentioned by him, because we had
informed him earlier that any postponement that might be made at this time, was not at
the request of the J. R. Simplot Company. It was specifically at the request of the Tribe.
Mr. Turnbaugh asked Mr. Cutler to puthis eviction notice in writing so that he would be
able to have written authorization to take with him to Seattle.
I did not see the results of this statement. I am quite convinced that all parties con-
cerned are now aware of the fact that the Company is not in any way directly or indirectly
involved with the outcome of the meeting yesterday.
Later that day at approximately 5 p. m., Turnbaugh called O. R. Baum on the telephone
and informed Baum that the election had not been held and that he was going to hold an
election by mail ballot. Baum expressed surprise and said that it put the Company in a
very embarrassing position, and that a mail ballot question had been discussed thoroughly
a year ago. 7
Before the close of the day, mail ballots were sent in care of the Company to each of the
employees who were employed by the Company as of the 15th of May, which was the last
payroll period immediately preceding May 22.8 The ballots were received by the Employer
on June 19. 1953, which was a Friday. Inasmuch as Sweetwood does not go to the office on
Saturday mornings, the ballots were not taken out to the mine until Monday, June 22, 1953.
There the ballots were made available to the employees. The notice of election enclosed
with each ballot stated, "Deposit this envelope, which requires no postage, in the United
States mail so that your ballot will be received in the Regional Office of the National Labor
Relations Board not later than June 22, 1953." The envelope in which each ballot and notice
of election were enclosed included the usual envelopes and instructions for voting common
to mail ballot elections conducted by the Board. 9
On June 22, 1953, Baum, in a wire to the Regional Director, protested the holding of a
mail election on the ground that it "jeopardized" all employees and lessors la On June 23,
1953, Baum supplemented the telegram with a detailed "Protest". 11 This was received on
7See stipulation entered into between the parties.
8See Board 's Exhibit No. 6.
9See Board's Exhibit No. 7. Inadvertently, the hearing officer did not formally receive this
document in evidence during the courseofthehearing. Since the parties stipulated to the facts,
Board's Exhibit No. 7 is herewith received in evidence.
10 Board's Exhibit No. 8.
11Board's Exhibit No. 9.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 25, 1953. Subsequently, on June 30, 1953, Baum filed a four-page document entitled,
"Additional, Further and Supplemental Protest." iz The latter was received on July 3,
1953.
On June 29, 1953, a telegram 13was addressed to Baum over the signature of the Re-
gional Director which extended the time for mailing the ballots to July 1, 1953. The Union
received a similar telegram but none of the employees actually received notification of
this extension. Undelivered telegrams were sent to nine employees whose ballots had not
been received by the Regional Office prior to June 29, 1953. However, the telegrams to
the employees were addressed in care of Simplot Fertilizer Company, Fort Hall Indian
Reservation, Fort Hall, Idaho. Inasmuch as the address of the Company is Pocatello, Idaho,
these telegrams were not received.
Forty-three ballots were received in the Regional Office, as follows:
Number Received in
of Ballots Postmark Regional Office
12 June 22 June 24
12 June 23 June 24, 25
10 June 24 June 25, 26
6 June 25 June 26, 29
1 June 26 June 29
1 July 1 July 3
1 Challenged ballot
No information was available as to the postmark or receipt of the challenged ballot be-
cause that ballot was enclosed within a challenged ballot envelope and the seal of this en-
velope remains unbroken.
On July 17, 1953, as a result of prior arrangements, the ballots were opened and counted
in Baum's office at Pocatello, Idaho. Present were Buhler, Baum, and Kobe for the Em-
ployer. Rockwell for the Union; and Turnbaugh, the Board agent The names of the voters
that appeared on the signature line were checked against the eligibility list, the ballots
opened, intermingled, and counted. One ballot remained unopened because it was challenged
by the Employer's representatives. The tally of ballots showed the results as heretofore
stated. The Employer's representatives refused to sign the tally of ballots 14 and the certi-
fication on conduct of election. 15 Thereafter, on July 22, 1953, the Employer filed timely
objections, as stated above.
CONCLUDING FINDINGS AND RECOMMENDATIONS
Objection No. 1• The evidence in support of this objection consisted of an ordinance passed
pursuant to the provisions of the constitution and bylaws of the Shoshone-Bannock Tribes
of the Fort Hall Reservation. The ordinance forbids labor unions to interfere in any way
in the hiring of Indian workers on any job at the mine. An interpretation of this ordinance
to the effect that representation by a labor organization of mine employees is ipso facto
violative , is unwarranted , anticipatory , and erroneous.
In addition, the powers of the -Council of the Fort Hall Reservation are limited by its
own constitution and bylaws. Article VI, section 1, of the aforesaid constitution and bylaws
provides as follows: "The Business Council of the Fort Hall reservation shall exercise the
following powers, subject to any limitations imposed by the Statutes or the Constitution
of the United States.......
Since the National Labor Relations Act of 1947, as amended, is a statute of the United
States, it takes precedence over any ordinance passed by the Council. If the Council or-
dinance is contrary to the statute, it is void and of no effect as an ultra vires act of the
Council.
The Board , in its initial Direction of Election , rejected the contention that the possi-
bility of a certification of a labor organization would jeopardize the Employer ' s relations
with the Tribal Council, stating that the circumstances "afford no basis for withholding the
'?Board's Exhibit No. 10.
13Board's. Exhibit No. 11.
lBoard's Exhibit No. 13.
>s See Board 's Exhibit No. 14.
SIMPLOT FERTILIZER COMPANY 1221
exercise of our jurisdiction ." The Board likewise stated that there was no basis for deny-
ing the employees , including Indian employees , the benefits of self-organization and col-
lective bargaining granted by the Act. The hearing officer adheres to the Board ' s findings
and considers such findings as res judicata and dispositive of this objection.
It is recommended that Objection No. 1 be dismissed.
Objection No. 2: Objection No. 2 raises the technical objection that since the Second Direc-
tion of Election was issued on May 22 , 1953 , and provided that the election be held within
30 days, and the election was not held within that time , and that an extension of time was
not issued by the Board until June 24, 1953 , after expiration of the 30 days, the Board
thereby could not revive the Direction of Election.
The National Labor Relations Board is an administrative tribunal clothed with _quasi-
judicial authority and, as such , conforms to equitable principles and practices in the per-
formance of its functions . Dismissal of the petition by reason of the failure of the Board
to amend its Direction of Election within the 30-day period would unjustly penalize the peti-
tioner . In its exercise of powers under Section 9 (c) of the Act , the Board has wide dis-
cretion. The amendment of June 24, 1953, falls within the area of such discretion. Espe-
cially is this so when the petitioner cannot be charged in any manner with the delay.
It is recommended that objection No 2 be overruled.
Objection No. 3(a), (e), (f): These raise objections to the procedure in mail ballot elections.
Since the evidence adduc indicates that there was no departure from established procedure
in the conduct of the mail ballot election , the objection is without merit.
Objection No. 3(b) and Objection No. 9: Both of these objections are contrary to the evi-
dence. I find that on June 16 , 1953, Turnbaugh notified Baum that a mail election would
be held immediately . Under the circumstances , such notice seems sufficient. It was not
necessary to notify the Shoshone-Bannock Tribe , nor to consult with it since it was not
a party.
Objection No. 3(c): This objection is likewise contrary to the evidence. The counting of
ba llots was conducted in Baum 's office in the presence of Baum , Buhler, and Kobe, all
of whom were Employer representatives . The only challenge made was by the Employer.
It is well settled that interested parties are not entitled to an observer as a matter of
right . It is a courtesy usually extended by the Board . In the instant case, such opportu-
nity and courtesy were given to the Employer and exercised by him.
The objection is without merit . It is recommended that Objection No. 3(c ) be overruled.
Objection No. 3(d : This objection seeks to void the election because most of the eligible
voters were o the Indian race. The mere restatement of the objection is a complete ref-
utation of it. The Board does not deprive Indians of the right to participate in elections
it conducts.
It is recommended that Objection No. 3 be overruled in its entirety.
Objection No. 4 and Objection No. 12: These objections in effect state that a mail ballot
election should not have been ordered under the circumstances . It seems to the under-
signed that sound exercise of discretion required a mail ballot in the circumstances. Any
further attempts to conduct a manual election would only have led to unseemly delays of
an election which had already been delayed for approximately a year from the date on
which it was ordered.
It is recommended that Objections Nos. 4 and 12 be overruled.
Objection No. 5: This states that neither the Board nor anyone in authority ordered a mail-
ballot election . The evidence clearly indicates that the mail ballot was conducted under the
auspices of the Regional Director who, in turn , was authorized by the Board to conduct
the election . The holding of a mail-ballot election rather than a manual election was within
the discretionary powers of the Regional Director and, under the circumstances , was a sound
exercise of such discretion.
It is recommended that Objection No. 5 be overruled.
Objection No. 5(a): Objection No 5(a ) states that improper addresses were used in ad-
vising employees with respect to the extension of time The evidence indicates that the
employees were not notified of the extension of time . However , all but 8 of the eligible
employees voted and there is no evidence that any employee who wished to vote did not
vote because of failure to receive notice of the extension of time. It is clearly apparent
that 8 additional votes could not affect the results of the election.
Accordingly, it is recommended that Objection No. 5(a) be overruled.
Objection No. 6 and Objection No. 7: These objections state in effect that the various orders
of the Board caused misunderstandings of the Company's position by its employees. It
is apparent to the undersigned that more cooperation by the Employer would have made
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeated Board orders unnecessary, and would have led to disposition of the matter with-
in a short period of time from the date of the first Direction of Election. In addition, it
seems clear that the Employer had opportunity at all times to make its position clear
to its employees; if it failed to take advantage of these opportunities, the blame cannot
be charged to the Board.
It is recommended that Objections Nos. 6 and 7 be overruled.
Objections Nos. 8, 10, 11, and 13: These objections state, in effect, that Turnbaugh's activ-
ities on June 16, 1953, influenced the election results to the prejudice of the Erployer.
I find that Turnbaugh, field examiner and Board agent in charge of the election duly or-
dered by the Board, was meticulous in his conduct, tactful in his speech, dignified in his
approach, and extremely fair in his handling of the situation. He was firm in the carrying
out of the task assigned to him but was neither officious nor overzealous. Sweetwood's
report of the incidents at the mine on June 16, 1953, is complete substantiation of the views
herein expressed by the undersigned concerning Turnbaugh. An overzealous or officious
person might have attempted to conduct the election off of the premises leased by the Em-
ployer in defiance of Cutler, the reservation policeman. But Turnbaugh, when informed
by Cutler that he Would be evicted, gracefully withdrew and sought other means bywhich
to carry out the Board's mandate.
No criticism of Turnbaugh's conduct is warranted. Whatever impression the employees
received from overhearing Turnbaugh's conversations with the Employer's representatives
is not chargeable to the Board. It seems pertinent to note that (a) there is no evidence that
the employees were influenced adversely to the Employer by Turnbaugh's activities on June
16; and (b) Turnbaugh, in addressing the employees, made no mention of the Employer,
and specifically exonerated the Employer from blame for the delays in the election. u
It is recommended that Objections Nos. 8, 10, 11, and 13 be overruled.
There remains the fact that the Notice of Election enclosed with each .mail ballot stated
that the ballot should be received in the Regional Office not later than June 22, 1953. Ac-
tually, the ballots were not received by the employees until June 22, 1953, and the ballots
were received in the Regional Office from June 24 to July 3. The question arises whether
this technicality failed to "provide a laboratory in which an experiment may be conducted
under conditions as nearly ideal as possible to determine the uninhibited desires of the
employees." In the undersigned's opinion, all the conditions of a-true test have been met.
Over 80 percent of the eligible voters participated in the election and the election was
conducted with proper safeguards.
Since there is no evidence that the failure to receive the ballots by June 22 was pre-
judicial or interfered with the election, it' is recommended that mere failure by the Re-
gional Director to notify the employees of the extension of time does not raise substantial
and material issues with respect to the election.
Since the undersigned hearing officer has concluded and found that none of the objections
raise substantial and material issues with respect to the election, he recommends that
the Board overrule the objections.
As provided by the Board's Order of August 20, 1953, within 10 days of receipt of this re-
port, any party may file with the Board in Washington, D. C., an original and 6 copies of
exceptions thereto. Immediately upon the filing of such exceptions,-the party filing the
same shall serve a copy thereof upon each of the ot.ier parties and shall also file a copy
thereof with the Regional Director.
is In making the foregoing appraisal and findings concerning Turnbaugh's conduct, the hearing
officer relies upon the testimony of witnesses who are officials of the Employer, and the
documents admitted into evidence. Turnbaugh, himself, did not take the stand.
THE SMITH MEAL COMPANY, INC. and INTERNATIONAL
FUR AND LEATHER WORKERS UNION. Case No. 2-CA-
2607. February 23, 1954
DECISION AND ORDER
On July 22, 1953, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above -entitled proceeding, finding
107 NLRB No. 259.