Bur-Bee Co.-Pasco, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1950

88 N.L.R.B. 1529 (N.L.R.B. 1950)

In the Matter of BUR-BEE COMPANY-PASCO, INC., AND BUR-BEE
BEE COMPANY-PASCO, INC.,' EMPLOYER AND PETITIONER and INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL No. 556, AFL, UNION
In the Matter of BuR-BEE COMPANY-PASCO, INC., AND BUR-BEE
COMPANY-WALLA WALLA, INC., EMPLOYER and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL No. 556, AFL, PETITIONER
Cases Nos. 19-RM-4, 19-RM-43, and 19-RC-411.-Decided
March 30, 1950
DECISION
DIRECTION OF ELECTION '
AND
ORDER
Upon separate petitions duly filed, a consolidated hearing was held
before Melton Boyd, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed?
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Herzog and Members
Reynolds and Styles].
Upon the entire record in these cases,3 the Board finds :
1. The business of the Employers :
' The name of the Employer appears as amended at the hearing.
2 At the hearing , Bur-Bee Company-Pasco , Inc., herein called the Pasco Co., moved to
dismiss the petition in Case No. 19-RC-411 insofar as it relates to its employees on the
ground that the Pasco Co. has been liquidated and its employees are now employed by
Bur-Bee Company -Yakima , Inc., herein called the Yakima Co., which is not a party
to this proceeding . The hearing officer reserved ruling on the motion for the Board.
For the reasons stated hereinafter, the motion is hereby denied.
The hearing officer likewise referred to the Board the Pasco Co .' s motion to withdraw
its petition in Case No. 19-RM-43 concerning the Pasco Co.'s former employees on the
same ground as that stated above . As the issue concerning the Pasco Co.'s employees is
hereinafter disposed of upon consideration of the petition filed by International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America, AFL, Local 556, herein
called Local 556, in Case No. 19-RC-411, this motion is granted. See Archer-Daniels-
Midland Co ., 66 NLRB 246.
3 After the hearing , the Employer moved to correct certain errors in the transcript. No
objections having been filed thereto , it is ordered that the transcript be, and it hereby is,
corrected in accordance with the motion.
88 NLRB No 256.
1529
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bur-Bee Company-Walla Walla, Inc., herein called the Wall a Walla
Co., and the Pasco Co., Washington corporations, are engaged in sell-
ing confections, fountain supplies, tobacco, cigarettes, and related
merchandise at wholesale in the States of Washington and Oregon.
The majority stock of these two corporations, together with that of
the Yakima Co., another Washington corporation engaged in a similar
enterprise, is owned and controlled by A. F. Paetel. This proceeding is
concerned only with the operations of the Walla Walla Co. and the
Pasco Co.
The Walla Walla Co. has its principal place of business in Walla
Walla, Washington, and conducts its business both there and in Uma-
tilla County, Oregon. During 1949, it sold approximately $714,000
worth of merchandise, about 40 percent of which represented sales to
customers in the State of Oregon. During the same year, it purchased
approximately $268,000 worth of merchandise for use in its operations,
of which approximately 95 percent came from sources outside the State
of Washington.
The Pasco Co. before its liquidation began on December 24, 1949,
conducted its operations in Pasco, Washington. During the period of
approximately 6 months following June 1, 1949, when it commenced
operations, the Pasco Co. sold approximately $239,000 worth of mer-
chandise, practically all of which, with the exception of a few sales
made in Oregon, was sold within the State. During the same period, it
purchased approximately $210,000_worth of merchandise for use in its
operations, of which approximately 95 percent came from sources out-
side the State.
We find that the Walla Walla Co. is engaged in commerce within the
meaning of the National Labor Relations Act and that it will effec-
tuate the policies of the Act to assert jurisdiction over its operations 4
In view of our disposition of the issue concerning the representation
of the employees of the Pasco Co. in paragraph numbered 4, infra, we
shall make no determination as to whether the Pasco Co. is engaged
in commerce within the meaning of the Act or whether it would effec-
tuate the policies of the Act to assert jurisdiction over its operations.
2. The labor organization involved claims to represent certain em-
ployees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Walla Walla Co. within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act .5
4 See Dixie Wholesale Company, Inc ., 73 NLRB 1203; and Waples -Platter Company, 65
NLRB 1074. Cf. Peter Muscarella, et al ., d/b/a Mascarella Company, 87 NLRB 120.
6 The Employers assert that Local 556's petition should be dismissed because the Pasco
Co. has been liquidated and its employees are presently employed by the Yakima Co. We
find no merit in this contention . The petition embraced not only the former Pasco Co.
BUR-BEE CO.-WALLA WALLA, INC. AND BUR-BEE CO.-PASCO, INC.1531
4. The appropriate unit :
Local 556 seeks to represent a unit composed of all driver salesmen
and warehousemen employed by the Pasco Co. and the Walla Walla
Co. excluding all office and clerical employees, guards, professional
employees, and supervisors as defined in the Act. The Employers do
not disagree with the specific composition of the proposed unit. How-
ever, they contend that the employees at Pasco are appropriately part
of a unit composed of the Yakima Co. employees, presently repre-
sented by an affiliate of Local 556.6 There is no history of collective
bargaining concerning either the employees of the Pasco Co. or those
of the Walla Walla Co.
The Walla Walla Co. employs 11 employees, of whom 8 are stationed
at Walla Walla, Washington, 2 at Pendleton, Oregon, and 1 at La
Grande, Oregon. Before its liquidation began, the Pasco Co. em-
ployed 3 employees, all of whom were stationed at Pasco, which is
located about 46 miles northwest of Walla Walla and about 85 miles
southeast of Yakima, in the State of Washington. As mentioned
above, both of these companies, together with the Yakima Co. are
controlled by A. F. Paetel who directly supervises the operations of
the Walla Walla Co. and, before its liquidation commenced, super-
vised those of the Pasco Co. The operations of the Yakima Co. are
directly supervised by H. F. Paetel, brother of A. F. Paetel. Not-
withstanding their common control, all 3 corporations have been
operated independently of each other. During the period of the
Pasco Co.'s operations, there were no contacts between its employees
and those of the Walla Walla Co., and no appreciable interchange
of personnel between these 2 concerns. Moreover, their respective
employees were paid on the basis of different salary scales, although
their sales commission rates were uniform.
Commencing about December 15, 1949, and continuing through
January 13, 1950, the date of the hearing, the Pasco Co.'s merchandise
was in the process of liquidation. On the former date, the Yakima
Co. assumed the Pasco Co.'s payroll as part of a transaction by which
it acquired a portion of the assets of the Pasco Co. Although the
Pasco Co. still exists as a corporation, its shareholders have sold its
entire stock to the shareholders of the Yakima Co. The record shows
employees but those of the Walla Walla Co. Consequently , a question has been raised con-
cerning the representation of the latter employees , irrespective of the present "employee"
status of the Pasco Co. employees.
6 Local 524 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL, herein called Local 524, has represented the employees of the
Yakima Company for a considerable period of time. Before the hearing in this proceeding
began, the Board was administratively advised that Local 524 had no interest in either the
Pasco Co. or the Walla Walla Co. employees and that both groups were within the juris-
diction of Local 556.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Pasco Co. is being liquidated primarily because of the Em-
ployer's inability to operate this enterprise at a profit during the
6-month period of its existence as a corporation. Upon completion
of the liquidation process, the Employer intends to close the warehouse
that formerly served as a base of operations for the Pasco Co. There-
after, the Pasco area will be serviced with merchandise coming from
the Yakima Co. In addition, the Employer intends to replace the
3 former Pasco Co. employees who are presently on the Yakima Co.'s
payroll. Some of these replacements will be stationed at Pasco and
the others at Yakima. All will be part of the Yakima Co.'s working
force and will be supervised directly by that company's manager.
In view of all the foregoing, we are persuaded that a unit confined
to the employees of the Walla Walla Co. is appropriate. A unit com-
posed of the employees of the latter company and the former em-
ployees of the Pasco Co. would have no justification based upon the
Employer's present administrative organization, particularly because
of the recent liquidation of the Pasco Co. and the transfer of its em-
ployees to the Yakima Co. Such a unit, in fact, would constitute
an arbitrary grouping of employees.7
Accordingly, we find that all driver salesmen and warehousemen
employed by the Bur-Bee Company-Walla Walla, Inc., at Walla
Walla, Washington, and Pendleton and La Grande, Oregon, excluding
all office and clerical employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for. the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
7 See Georgia Fertilizer Company, 83 NLRB 180, and cases cited therein. See also Socony-
Vacuum Oil Company, Inc., 72 NLRB 1086. Cf . The Acme, Inc., 47 NLRB 448.
BUR-BEE CO.-WALLA WALLA, INC. AND BUR-BEE C0.-PASCO, INC.1533
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 556, AFL.
ORDER
IT IS HEREBY ORDERED that the Pasco Co.'s motion to withdraw its
petition in Case No. 19-RM-43 be, and it hereby is, granted.