Boran Gas

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 756 (N.L.R.B. 1967)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hesperia Liquid Gas Company, d/b/a
Standard Liquid Gas Company and d/b/a
Boron Gas and General Teamsters,
Chauffeurs , Warehousemen and Helpers,
Local No. 982 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen
& Helpers of America . Case 31-CA-337.
June 21, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On November 14, 1966, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, recommending dismissal of the
complaint filed therein, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions of the General
Counsel and the Respondent, the supporting briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in Barstow, California, on
September 13 and 14, 1966, on complaint of the General
Counsel and answer of Hesperia Liquid Gas Company,
d/b/a Standard Liquid Gas Company and d/b/a Boron Gas,
herein referred to as Respondent. The complaint was
issued on June 23, 1966, upon charges filed March 7, 1966,
and April 19, 1966. The complaint alleges that Respondent
has violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, herein called the Act. The
Respondent has moved to dismiss the complaint for lack of
jurisdiction, and the principal issue in the case is whether
or not Respondent's operations have a substantial impact
on national defense.
The General Counsel and the Respondent have filed
briefs herein and they have been carefully considered.
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
Respondent is a California corporation doing business in
Hesperia, California, as Hesperia Liquid Gas Company, in
Barstow, California, as Standard Liquid Gas Company,
and in Boron, California, as Boron Liquid Gas Company.
Respondent is engaged in the sale and distribution of
propane gas in the area of these three towns.
During the past 12 months, Respondent sold and
distributed from its plants or distribution points, products
valued in excess of $150,000 of which products valued at
approximately $12,000 were sold to Edwards Air Force
Base and other Federal military installations located in the
State of California. One of Respondent's employees
testified, and I find, that the gas is used on Edwards Air
Force Base for heating in many of the buildings and for
running some machinery used by the Santa Fe engineers
on some installation work. The employee did not know the
kind of installation involved, nor did he know any other use
that was made of the propane gas.
The General Counsel contends that the sale of $12,000
worth of propane gas to military establishments for heating
purposes constitutes a substantial impact on national
defense, and Respondent contends to the contrary.
Respondent also contends that the Board does not have
legal or statutory jurisdiction.
I agree with the contention of the Respondent that
Respondent's operations do not have a substantial impact
on the national defense, and I grant Respondent's motion
to dismiss for lack of jurisdiction.
The Board's current jurisdictional standard on
establishments involving national defense was announced
in 1958 in Ready Mixed Concrete & Materials, Inc., 122
NLRB 318. In that case the Board revised its former
standard as to enterprises affecting national defense and
stated:
The Board has determined that it best effectuates
the policies of the Act to assert jurisdiction over all
enterprises, as to which the Board has statutory
jurisdiction, whose operations exert a substantial
impact on the national defense, irrespective of
whether the enterprise's operations satisfy any of the
Board's other jurisdictional standards.
In adopting this standard the Board has eliminated
the requirements that an enterprise's national
defense operations must be directly related to
national defense, must be performed pursuant to
contracts or subcontracts with the Government, and
must amount at least to $100,000, a year. It has done
so because it believes that it has a special
responsibility as a Federal agency to reduce the
number of labor disputes which might have an
adverse effect on the Nation's defense effort. The
Board believes that this responsibility can best be
carried out by the more flexible standard announced
herein.
No dollar-volume of business is determinative in this
test, but to assert jurisdiction it must be established that
the Board has "statutory jurisdiction," that the operations
of a respondent have a "substantial impact" on "national
defense." The General Counsel is of the view that the test
is met herein since the amount of business exceeds a de
165 NLRB No. 114
STANDARD LIQUID GAS CO.
minimis sum and the gas is sold to and used on a military
establishment for heating.
There is no evidence as to whether Respondent is the
sole supplier of propane gas on Edwards Air Force,Base,
nor as to the nature or extent of its impact on national
defense, other than the fact that it is used for heating and
was of a value of $12,000 during the past 12 months.' It
could be reasoned that a work stoppage by Respondent's
employees would result in loss of heat to those buildings
heated by Respondent's propane gas. I cannot find that
this would constitute a substantial impact on national
defense.2
' As to the use of the gas in installation machinery, the
evidence is too vague and indefinite as to its duration and nature
for a finding in this respect
757
As to the issue of legal or statutory jurisdiction, I find
that the transfer of goods and commodities to a Federal
compound from a location within a State and the use of
such goods and commodities on a Federal installation
constitute commerce as defined in Section 2(6) and (7) of
the Act, and therefore, that statutory jurisdiction exists in
this case.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed for
lack of jurisdiction.
2 Ben Patrick , d/b/a Weststde Pattern Works, 150 NLRB 1730,
Rome Laundry, Inc , 51 LRRM 1583, Crystal Water Co , 50 LRRM
1115
299-352 0-70-49