SALT RIVER VAL. W. USERS'ASS'N v. National Lab. Rel. Bd.

• Citation: 206 F.2d 325
• Decision Date: 23 July 1953
• Docket Number: No. 13456.,13456.
• Parties: SALT RIVER VALLEY WATER USERS' ASS'N v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

206 F.2d 325 (1953)

SALT RIVER VALLEY WATER USERS' ASS'N v. NATIONAL LABOR RELATIONS BOARD.

No. 13456.

United States Court of Appeals, Ninth Circuit.

July 23, 1953.

Jennings, Strouss, Salmon & Trask, Irving A. Jennings, Richard G. Kleindienst, Phoenix, Ariz., for petitioner.

George J. Bott, Gen. Counsel, NLRB, David P. Findling, Assoc. Gen. Counsel, NLRB, A. Norman Somers, Asst. Gen. Counsel, NLRB, Dominick L. Manoli, Thomas F. Maher, Attys., NLRB, Washington, D. C., Charles Hackler, Atty., NLRB, Los Angeles, Cal., for respondent.

Before MATHEWS, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

The Salt River Valley Water Users' Association, hereafter the Association, petitions to review and set aside an order of the National Labor Relations Board, hereafter the Board, which requires the Association to cease and desist from certain unfair labor practices and to take certain affirmative action. The Board's order is based upon findings that employee Leo Sturdivant was discharged in violation of § 8(a) (1) of the Labor Management Relations Act of 1947, hereafter the Act, 29 U.S.C.A. § 158(a) (1), for engaging in activities protected by § 7 of the Act, 29 U.S.C.A. § 157, and that remarks made by a supervisory official of the Association violated § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), since they were an interference with employee H. C. Selliez's protected rights.

The first question presented is whether the Association is engaged in activities affecting commerce within the meaning of the Act.

The Association, an Arizona corporation, conducts the operations of a federal reclamation project called the Salt River Project. In this capacity the Association maintains an irrigation system for the 242,000 acres of the Salt River Valley, 213,000 acres of which are under irrigation. Each landholder living within the geographical boundaries of the Project is entitled to one share of stock in the Association for each acre of land he owns. These irrigated farm lands have become the center of a vast agricultural industry. The irrigation facilities maintained by the Association are valued in excess of $16,000,000.

Various statistical reports of the Department of Agriculture were introduced in evidence to show the impact of the Association's operations upon the flow of interstate commerce. An examination of these exhibits discloses that the Salt River Valley contributes a very significant portion of Arizona's total agricultural production and that a substantial percentage of the Valley's produce is shipped out of the state. These exhibits also show the importance of the Salt River Project to the economic prosperity of the Salt River Valley.¹

Witness Don Barrett, an official of a company engaged in the packing and shipping of vegetables, testified that of 1500 cars of produce grown on lands within the Project which his company had packed during the last year all but 150 or 175 cars entered interstate commerce. He stated that this roughly represented the percentage of produce packed by his company which went out of the state and stayed in the state through the years. He finally testified from experience that a majority of the vegetables grown in Arizona are shipped out of the state.

The evidence is sufficient to show that the Association furnishes a substantial portion of the Salt River Valley's water for irrigation purposes, and that in turn a substantial portion of the produce grown in the Valley is shipped out of the state. In order to establish that the activities of the Association affect interstate commerce the Board is not required to go to the extent, as the Association contends, of proving the exact percentage of the crops that are grown in the Salt River Valley which are supplied with water by the Association. Although some of the water used in the area may be derived from private pumps, the magnitude of the Association's contribution to the lands from which are shipped large quantities of produce for interstate transportation establishes the effect of the Association's activities upon interstate commerce.²

This Court has held that employees engaged in the irrigation operations of the Association were "engaged in the production of goods" for interstate commerce within the meaning of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 203 (j). Reynolds v. Salt River Valley Water Users' Ass'n, 9 Cir., 1944, 143 F.2d 863, certiorari denied, 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611. That the activities of the Association "affect" interstate commerce would seem directly to follow. Since the decision in the Reynolds case the Association has ceased generating electrical power, this duty now being performed by the Salt River Project Agricultural Improvement and Power District, nevertheless the generation of electrical power, admittedly sold by the Power District to corporations engaged in interstate commerce, was dependent upon water power sources contributed by the Association and its facilities. Thus, as the Board found, the Association's irrigation operations "play an indispensable part in the interstate power operations."

There is no merit in the Association's contention that it is not engaged in activities affecting commerce because it "buys nothing" and "sells nothing" in interstate commerce. See, for example, Zall v. N.L.R.B., 9 Cir., 1953, 202 F.2d 499, where an employer produced chicken feed which was sold to purchasers who fed it to breeding stock whose hatching eggs were later sent out of the state. Cf. McComb v. Super-A Fertilizer Works, Inc., 1 Cir., 1948, 165 F.2d 824 (Fair Labor Standards Act), where an employer made fertilizer which was sold to farmers who raised sugarcane, which was in turn sold to sugar mills to be processed into sugar and molasses, which was then shipped in commerce.

The Board found that the Association violated § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by discharging Leo Sturdivant, who was employed by the Association as a zanjero.

This Court has previously considered the nature of a zanjero's duties in Reynolds v. Salt River Valley Water Users' Ass'n, supra. It will suffice for our purposes to note that the zanjeros are responsible for the delivery of water to the Association's shareholders upon daily instructions. The unusual nature of their work which includes the actual measuring and routing of the water from the canals maintained by the Association through the various intermediate ditches and laterals to the point of delivery requires the zanjeros to be on duty 24 hours a day, seven days a week. The actual performance of their work, however, is intermittent rather than continuous, and it does not appear that other activities were prohibited when they did not interfere with the carrying out of the zanjeros' duties.

The peculiar nature of the zanjeros' duties and working hours has resulted in considerable dispute as to their wages and the adequacy thereof under the minimum wage provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. This matter had been discussed at meetings of the union to which the zanjeros belonged, but some of the zanjeros were dissatisfied with the progress the union had made. Therefore, in October of 1950, a group of zanjeros attended a meeting at which Sturdivant was selected to circulate a petition conferring upon him power of attorney to recover for the zanjeros by court action or negotiation their individual claims for backpay and overtime wages allegedly due from the Association under the provisions of the Fair Labor Standards Act. In less than two weeks Sturdivant obtained the signatures of 30 or 35 zanjeros on his petition. The Association discharged him on November 7, his discharge slip stating merely that he was "an unsatisfactory employee."

The Board asserts that circulation by Sturdivant of the petition authorizing him to take action on behalf of the zanjeros in regard to their grievances constituted "concerted activities for the purpose of * * mutual aid or...