Farmers LP Gas, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1973

207 N.L.R.B. 401 (N.L.R.B. 1973)

FARMERS LP GAS 401
Farmers LP Gas, Inc., and Searcy LP Gas, Inc. and
Chauffeurs , Teamsters and Helpers Local Union
No. 878, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 26-CA-4798
November 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on July 13, 1973, by Chauf-
feurs, Teamsters and Helpers Local Union No. 878,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Farmers LP Gas, Inc., herein at times called
Respondent Farmers, and Searcy LP Gas, Inc.,
herein at times called Respondent Searcy, and at
times collectively called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 26, issued a
complaint on July 26, 1973, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 11, 1973,
following Board elections in Cases 26-RC-4424 and
4425 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the units found appropriate;' and that,
commencing on or about June 19, 1973, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On July 31, 1973, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On August 13, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on August 21,
1973, the Board issued an order transferring the
proceeding to the Board and a notice to show cause
I Official notice is taken o f the record in the representation proceedings,
Cases 26-RC-4424 and 4425 as the term "record" is defined in Secs . 102.68
and 102 .69(f) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystenu, Inc, 166 NLRB 938, enfd . 388 F .2d 683 (C A. 4,
1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F.2d 26 (C.A. 5,
1969); Intertype Co. v Penello, 269 F Supp . 573 (D C. Va., 1967), Follett
why the General Counsel's motion for summary
judgment should not be granted. Thereafter, on
August 22, 1973, Respondent filed its memorandum
in opposition to General Counsel's motion for
summary judgment. Subsequently, on September 7,
1973, counsel for the General Counsel filed his reply
to Respondent's opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its memoran-
dum in opposition to General Counsel's motion for
summary judgment, Respondent attacks the determi-
nation, made in the underlying representation Cases
26-RC-4424 and 4425, that,Respondent Farmers
and Respondent Searcy constitute, for jurisdictional
purposes, a single employer whose operations meet
the Board's standards for the assertion of jurisdiction
over retail enterprises.
Our review of the record herein indicates that on
January 23, 1973, the Union filed its petitions
seeking to represent separate units of the employees
of Respondent Farmers and Respondent Searcy,
respectively. At the consolidated hearing, the parties
stipulated to the commerce data of Respondents
Farmers and Searcy's operations2 but litigated the
issue of whether the Respondents Farmers and
Searcy were a single enterprise for jurisdictional
purposes. On March 5, 1973, the Regional Director
issued his Decision and Direction of Election in
which he directed elections in the units requested and
in which he found (1) that the two concerns were a
single integrated retail enterprise and constituted a
single employer for jurisdictional purposes, (2) that
their combined sales, but not- their separate sales,
including the sales tax collected, exceeded the
Board's discretionary jurisdictional standard for
retail enterprises, (3) that the fact that Respondents
Farmers and Searcy each purchased products in
excess of $50,000 directly from outside the State of
Arkansas and that Atlantic Richfield Company of
Philadelphia, Pennsylvania, is the principal supplier
of the Respondents Farmers and Searcy, shipping
products to them from outside the State of Arkansas,
established that the Respondents Farmers and
Corp., 164 NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the
NLRA
2 During their 1972 fiscal year, Respondents Farmers and Searcy,
respectively, had gross sales of $222,000 and $268, 000, exclusive of sales
taxes of $6,000 and $7,000, and each purchased products valued in excess of
$50,000 directly from outside the State of Arkansas.
207 NLRB No. 52
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Searcy are engaged in interstate commerce, and (4)
that it would effectuate the purposes of the Act to
assert jurisdiction.
Respondent thereupon filed with the Board a
request "for review of the Regional Director's Deci-
sion, in which it contended that Respondents
Farmers and Searcy were not a single employer for
jurisdictional purposes and, since the sales of neither
of them satisfied the Board's retail jurisdictional
standard, the Board had no jurisdiction over their
operations. By order dated April 2, 1973, the Board
denied the request for review as it raised no
substantial issues warranting review.
Subsequently, on April 4, 1973, the elections in the
two separate units were conducted and the Union
won both. The Respondent then filed timely objec-
tions in which, inter alia, it renewed its jurisdictional
contentions. On May 11, 1973, the Regional Director
issued his Supplemental Decision and Certification
of Representative in which he rejected Respondent's
jurisdictional contentions as an attempt to relitigate
that which had previously been decided, overruled
the objections in their entirety, and certified the
Union. Again the Respondent filed with the Board a
request for review, in which it contended (1) that the
Regional Director erred in finding that Respondents
Farmers and Searcy constitute a single integrated
enterprise for jurisdictional purposes, and (2) that
since the Regional Director refused to review the
jurisdictional issue on its merits, the Board itself
ought to do so. On June 4, 1973, the Board denied
the request for review as not raising substantial issues
warranting review.
By the denials in its answer to the complaint and in
its opposition, the Respondent again attacks the
determination to assert jurisdiction over it as a single
retail employer and argues that there are disputed
factual issues with respect to the basic jurisdictional
question as evidenced by its answer to the complaint
and by the affidavit attached to the opposition.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relltigate issues which were or could have been
litigated in a prior representation proceeding .3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
However, because the issue raised is jurisdictional
in nature, and because the Respondent has requested
a determination of the Board on the merits, we have
decided to review the entire record herein and, in so
doing, we agree with and reaffirm the Regional
Director's determinations (1) that the Respondent is
a single retail employer for jurisdictional purposes,
(2) that the undisputed and stipulated commerce
data submitted in the representation proceeding
establish that the Respondent's combined annual
gross sales, including sales tax, satisfy the Board's
discretionary retail standard and its out-of-State
purchases establish the Board's statutory jurisdic-
tion,4 and (3) that it would effectuate the policies of
the Act to assert jurisdiction over the Respondent as
a single employer consisting of Respondents Farmers
and Searcy. Accordingly, we shall grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Farmers LP Gas, Inc., and Respon-
dent Searcy LP Gas, Inc., collectively called Respon-
dent, are Arkansas corporations with offices and
places of business located in Searcy, Arkansas, where
they are engaged in the sale and distribution of liquid
propane, propane gas, and related products. Respon-
dents Farmers and Searcy are, and have been at all
times material herein, affiliated businesses with
common officers, ownership, directors, and opera-
tors, and constitute a single integrated business
enterprise and a single employer for the purpose of
determining jurisdiction. During their 1972 fiscal
year, a representative period, Respondents Farmers
and Searcy together purchased liquid propane or
propane gas valued in excess of $100,000, of which
the principal supplier was the Atlantic Richfield
Company of Philadelphia, Pennsylvania, and which
was shipped to them by rail car directly from points
outside the State of Arkansas. During their 1972
fiscal year, Respondents Farmers and Searcy collec-
tively sold products valued in excess of $500,000.
3 See Pittsburgh Plate Glass Co. v. N L.RB, 313 U.S. 146, 162 (1941); official notice of the representation case record in 8(a)(5 ) and (1) summary
Rules and Regulations of the Board , Secs . 102.67(f) and 102.69(c). judgment proceedings (see fn. 1. supra ) and to rely on the jurisdictional
4 While data for the Respondent's latest fiscal year 1973 may not have data submitted therein to support the jurisdictional findings in the
been available at the time of the representation case hearing, and in that subsequent unfair labor practice case, as has been done herein . See also
sense might be considered previously unavailable , it is Board policy to take Decker Disposal, Inc, 171 NLRB 879 at 883, and cases cited therein.
FARMERS LP GAS 403
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein..,
H. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union
No. 878, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The units
The following employees of the Respondent
constitute units appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
1. All sales drivers, mechanics, and service
employees employed at Farmers LP Gas, Inc.'s
Searcy, Arkansas location, excluding office cleri-
cal employees, professional employees, all other
employees, guards and supervisors as defined in
the Act.
2. All sales drivers and service employees
employed at Searcy LP Gas, Inc. 's Searcy,
Arkansas location, excluding office clerical em-
ployees, professional employees, all other employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On April 4, 1973, a majority of the employees of
Respondent in said units, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 26, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on May 11, 1973, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 13, 1973, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 19, 1973, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 19, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following;
CONCLUSIONS OF LAW
1. Farmers LP Gas, Inc., and Searcy LP Gas,
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., together called Respondent, comprise an
employer engaged in commerce with the meaning of
Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local
Union No. 878, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All sales drivers, mechanics, and service
employees employed at Farmers LP Gas, Inc. 's
Searcy, Arkansas location, excluding office clerical
employees, professional employees, all other employ-
ees, guards and supervisors as defined in the Act, and
All sales drivers and service employees employed
at Searcy LP Gas, Inc.'s Searcy, Arkansas location,
excluding office clerical employees, professional
employees, all other employees, guards and supervi-
sors as defined in the Act, constitute units appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since May 11, 1973, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate units for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about June 19, 1973, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate units, Respondent
had engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Farmers LP Gas, Inc., and Searcy LP Gas, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment, with Chauffeurs, Team-
sters and Helpers Local Union No. 878, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate units:
1. All sales drivers, mechanics, and service
employees employed at Farmers LP Gas, Inc.'s
Searcy, Arkansas location, excluding office cleri-
cal employees, professional employees, all other
employees, guards and supervisors as defined in
the Act.
2. All sales drivers and service employees
employed at Searcy LP Gas, Inc.'s Searcy,
Arkansas location, excluding office clerical em-
ployees, professional employees, all other employ-
ees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all'employees in the aforesaid appropriate units with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at both its Searcy, Arkansas, locations
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals . the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
FARMERS LP GAS 405
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Govenment
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Chauf-
feurs, Teamsters and Helpers Local Union No.
878, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive representative of
the employees in the bargaining units described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining units
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if the understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining units are:
1. All sales drivers, mechanics, and service
employees employed at Farmers LP Gas,
Inc.'s Searcy, Arkansas location, excluding
office clerical employees, professional em-
ployees, all other employees, guards and
supervisors as defined in the Act.
2. All sales drivers and service employees
employed at Searcy LP Gas, Inc.'s Searcy,
Arkansas location, excluding office clerical
employees, professional employees, all other
employees, guards and supervisors as de-
fined in the Act.
FARMERS LP GAS, INC.,
AND SEARCY LP GAS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.