Dekalb Gas, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 352 (N.L.R.B. 1961)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dekalb Gas, Inc.; Howell Gas Service , Inc.; National Utilities
of Gainesville, Inc.; 1 National Utilities , Inc. and/or 2 Dekalb
Gas Co. of Stone Mountain , Inc.; Howell Gas of Athens, Inc.;
National Utilities of Hall County, Inc.; National Utilities of
Cleveland , Inc.; National Utilities of Winder , Inc.; National
Utilities of Dahlonega, Inc. and Local #72, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of United States and Canada, Petitioner.
Cases Nos. 10-RC-482, 10-RC-4823, 10-RC-4824, and 10-RC-
48423 September 22, 1961
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held in this matter before Anthony J.
Leggio, hearing officer, on October 20, 1960. Thereafter, on January
4, 1961, the Selling Corporations filed a motion to dismiss representa-
tion petitions on the ground that all of their assets had been sold to
Suburban Gas Company of Pomona, California, hereinafter referred
to as Suburban, on November 1, 1960. Following the Petitioner's
filing of its opposition to the motion, the Board ordered further hear-
ing for the purpose of receiving additional evidence. A copy of the
order scheduling hearing was served upon all interested parties, in-
cluding Suburban Gas Company. The second hearing commenced
on February 14, 1961, before Hearing Officer Leggio at which time no
representative of Suburban or the Purchasing Corporations entered
a formal appearance. The second hearing was adjourned until Febru-
ary 17, 1961, and a supplemental notice of hearing was served on
W. K. Weatherly, the division manager of the six Purchasing Cor-
porations, who accepted service. In accordance with the supplemental
notice of hearing, the hearing resumed on February 17, 1961. At
this hearing, Weatherly testified that he was president of all four
Selling Corporations; during the first part of May 1960, he met Ralph
Gain, whom he identified as comptroller of Suburban; thereafter,
there were various telephone conversations between Weatherly and
officials of Suburban; in September, Weatherly traveled to Pomona,
California, at which time a meeting of minds as to the sale of the
Selling Corporations was achieved; on October 27,1960, Gain traveled
to Georgia and the necessary papers were signed for the sale of the
Selling Corporations to the Purchasing Corporations; and the sale
i The name of the Employer appears as amended at the first hearing.
z It appearing that the assets and goodwill of the original four corporations , hereinafter
referred to as the Selling Corporations , were sold to six Purchasing Corporations , herein-
after referred to as the Purchasing Corporations, a motion to amend the name of the
Employer so as to include the latter corporations was granted at the second bearing.
8 These cases were ordered consolidated for hearing by Regional Director Walter C
Phillips.
133 NLRB No. 58.
DEKALB GAS, INC., ETC. 353
was consummated on November 1, 1960. The Purchasing Corporations
are wholly, owned subsidiaries of Suburban.
In view of the foregoing, it is apparent that the Purchasing Cor-
porations are the instrumentalities through which Suburban pur-
chased, the assets and goodwill of the Selling Corporations and op-
erates those properties. As Suburban received adequate notice of the
February 14; 1961, hearing, and as Weatherly, the division manager of
the Purchasing Corporations, appeared at the hearing, and as supple-
mental notice of hearing was given to the Purchasing Corporations,
through their division manager, we find no merit in the Purchasing
Corporations' contention that they did not receive adequate notice
of hearing in this matter, or opportunity to present evidence on the
matters at issue in this proceeding.
The hearing officer's rulings made at the hearings are free from
prejudicial error, and are hereby affirmed.'.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
1. The Purchasing Corporations contend that the record does not
show that the Board has jurisdiction over them, or that their opera-
tions satisfy the Board's applicable jurisdictional standards. Their
argument appears to be that because there has been a bona fide sale
of the assets and goodwill of the Selling Corporations to the Purchas-
ing Corporations, the Board cannot assert jurisdiction on the basis
of the operations of the Selling Corporations before the sale.
The argument is without merit. The petitions in this case raised
a question concerning representation, at a time prior to the sale of
the Selling Corporations, and a hearing was held which went into
considerable detail as to the working conditions and employment rela-
tionships of the employees of the various Selling Corporations, with-
out notice to the Board that the sale had been consummated , although
it now appears that it had been. That record discloses that the Selling
Corporations were each owned by W. K. Weatherly, as sole stock-
holder, and that Weatherly, as president of the Selling Corporations,
exercised control over their operations. It demonstrated further that
a common labor relations policy was applied to the Selling Corpora-
tions; their operations were similar in nature and *conducted on an
integrated basis. These factors have customarily been relied upon by
the Board to find that multiple corporations constitute a single em-
ployer for jurisdictional purposes,5 and we find that the Selling Cor-
' In view of our disposition of this aspect of the case , we find it unnecessary to pass
upon the hearing officer's ruling , granting the untimely filed motion of Martin H.
Peabody, to quash a subpoena duces tecum served upon him as attorney for the Purchas-
ing Corporations , which subpena called for production of documents relating to the
purchase of the Selling Corporations.
V.Z.P. Radio , Inc., 128 NLRB 113 ; Zanetti Riverton Bus Linea, 128 NLRB 1389.
624067-62-vol. 133-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porations were operated as, and did constitute, a single employer for
jurisdictional purposes. We find, further, that, as the combined gross
volume of business of the Selling Corporations for the year preceding
the first hearing in this proceeding exceeded $500,000 and as their
combined out-of-State purchases exceeded $150,000, per annum, their
operations satisfied the Board's applicable jurisdictional standards.'
The record made at the hearings on February 14 and 17, 1961, dis-
closes that after the sale, the operations, subject of the sale, continued
without substantial change. Thus, though employees of the Selling
Corporations were given oral notice of termination on October 27,
1960, they were not paid their accrued vacation benefits, and they con-
tinued on as employees of the Purchasing Corporations, performing
the same duties and functions under the same supervision. Weatherly,
who had formerly controlled the operations of the Selling Corpora-
tions in his capacity as president, became division manager of all the
Purchasing Corporations. L. B. Fincher continued in his capacity
as general manager in charge of sales. Robin Adair continued to sign
all payroll checks for employees of all corporations. The local man-
agers of the individual Selling Corporations continued in the same
capacities for the Purchasing Corporations. In these circumstances,
we find that the Purchasing Corporations are the successors to the
Selling Corporations for the purpose of operating the propane gas
sale and distribution business formerly operated by the Selling Cor-
porations, which for all practical purposes have been dissolved.' As
the Purchasing Corporations have taken over business operations
which satisfied the Board's jurisdictional standards during their last
year of operation, we ,find that it will effectuate the policies of the Act
to assert jurisdiction herein.8
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9(c) (1) andSection2(6) and (7) of theAct.9
8 The Selling Corporations were engaged in the business of selling and distributing pro-
pane gas, and in the sale of butane gas and related heating equipment Sales were made
to homeowners and to commercial establishments . In accordance with Man Products, Inc,
128 NLRB 546; and Indiana Bottled Gas Company, 128 NLRB 1441, either the Board's
retail standard or its nonreiail standard is sufficient to warrant assertion of jurisdiction
The Selling Corporations' operations in fact satisfied both standards.
7 Chadbourne Hosiery Mills, Inc., 74 NLRB 333.
8 Cf., Chadbourne Hosiery Mills, Inc, supra. Our finding that the Selling Corporations'
operations satisfied the Board 's applicable jurisdictional standards was based , in part, on
the finding that they constituted a single employer for jurisdictional purposes As the
Purchasing Corporations are wholly owned subsidiaries of Suburban and are operated as
a single integrated enterprise , we find that the Purchasing Corporations constitute a single
employer for jurisdictional purposes . While it may be true , as the Purchasing Corpora-
tions contend , that other corporations are also part of this single employer complex, this
fact cannot detract from our consideration of the commerce of the corporations involved
as that of a single employer , rather than of separate employers.
8 We find no merit in the Employer 's contention that sale of the operations involved
herein invalidated Petitioner 's showing of interest, or otherwise removed the question
concerning representation existing prior to the sale.
PLATON FABRICS CORP. 355
4. The petitions in these cases sought separate units of all employees
of the Selling Corporations, other than office clerical employees, sales-
men, and supervisors. At the initial hearing in this case, prior to the
sale of the corporations, the Employer contended that only a single
unit of all employees of all corporations was appropriate. The
Petitioner indicated its willingness to represent such a unit but left
the question to the Board to decide. The Employer has not departed
from its basic contention that a single unit is appropriate. However,
it does argue that if the Board should find such a unit to be appropri-
ate, the employees of Ritchie Gas of Cornelia, Inc., and Rural Gas
Service, Inc., two corporations which allegedly were also purchased by
Suburban since the first hearing in this matter and placed under the
direction of Division Manager Weatherly, must also be included in
the unit. We do not agree. The employees sought by the Petitioner
constitute a readily identifiable group of the Employer's present em-
ployees, with a common employment history, who perform similar
functions for basically the same remuneration and under the same
working conditions. The fact that the Employer may have other
employees who share some of the same community of interests does not
preclude the establishment of the employees involved herein as a sep-
arate unit,10 especially in the circumstances of this case. Accordingly,
in the absence of a bargaining history on a broader basis we find that
the following employees of the Purchasing Corporations constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
All employees including fuel-truck drivers, installation men, and
servicemen, but excluding salesmen," office clerical employees, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
10 Compare Southern Wyoming UtiUtiea Company, and Pacific Power & Light Company,
131 NLRB 1333.
u Contrary to the contentions of the Employer , we find that salesmen have insufficient
community of interests with the Employer 's other employees to require their inclusion in
the unit.
Platon Fabrics Corp . and District 65, Retail , Wholesale and
Department Store Union , AFL-CIO. Case No. 92-CA-7636.
September 26, 1961
DECISION AND ORDER
On March 9, 1961, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
133 NLRB No. 43.