Snowshoe Co.

National Labor Relations Board - Board Decisions

Jul 23, 1974

212 N.L.R.B. 535 (N.L.R.B. 1974)

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.]