Lassus Fuel Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 27, 1972196 N.L.R.B. 703 (N.L.R.B. 1972) Copy Citation LASSUS FUEL CO., INC. 703 Lassus Fuel Co., Inc. and Local 297, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case 25-CA-4161 April 27, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 23, 1971, Trial Examiner William F. Scharnikow issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The complaint in the above case alleges in substance, but the Respondent, Lassus Fuel Co., Inc., in its answer denies, (1) that the Respondent and Lassus Bros. Oil, Inc., although separatel incorporated, are a single employer engaged in ` a single integrated business enterprise, and as such are engaged in commerce within the meaning of Section 2(6) and (77) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act; and (2) that the Respon- dent, Lassus Fuel Co., Inc., engaged in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act, by various acts including a refusal to bargain with Local 297, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (herein called the Union) as the duly selected exclusive bargaining representative of an appropriate bargaining unit of Respondent's employees within the meaning of Section 9(a) of the Act. Pursuant to notice, a hearing was held in Fort Wayne, Indiana, before me, the Trial Examiner duly designated by the Chief Trial Examiner, on June 29 and 30 and July 21, 1971. The General Counsel and the Respondent appeared by counsel and the Union by its representative and all were afforded full opportunity to be heard, to examine and cross- examine witnesses, andto introduce evidence bearing on the issues. On October 4, 1971, the General Counsel and counsel for the Respondent submitted briefs which have been duly considered. Upon the entire record in the proceedings and my consid- eration of the briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS Jurisdiction Jurisdiction in the present case depends upon a consider- ation of the stock ownership, control, and Operation of two separately incorporated businesses by members of the Las- sus family from an office in Fort Wayne, Indiana. One of these businesses is that of the Respondent, Lassus Fuel Co., Inc., which is engaged in the retail sale and delivery of fuel oil to Indiana residential customers and small businesses in the vicinity of Fort Wayne and which will therefore be referred to as the Respondent Fuel Company. The other business is that of Lassus Bros. Oil, Inc., which will be referred to as the Gasoline Company since it is engaged in the retail sale and distribution of-gasoline and related prod- ucts, to some extent directly to Indiana farms and busi- nesses but principally to motor vehicle operators through 12 gasoline service stations which it operates in Fort Wayne and nearby points in Indiana. The Respondent Fuel Company neither receives nor ships any goods or materials in interstate commerce and its annual gross sales are approximately $275,000. The Gas- oline Com an 's gross annual sales exceed $3,000,000 and the annualpvalue of its purchases and receipt of motor oils and grease from suppliers outside the State of Indiana ex- ceeds $15,000. Obviously, if considered separately and not in combination, only the business of the Gasoline Compa- ny, and not that of the Respondent Fuel Company, would meet the absolute statutory jurisdictional requirement of Section 2(6) and (7) of the Act that the employer be engaged at least to some substantial degree in a business affecting commerce,' or the additional requirement administratively imposed by the Board in the case of a retail business that the employer's annual gross volume of business be at least $500,000. To justify jurisdiction, therefore, the complaint alleges in substance, but the Respondent denies, that the Respondent Fuel Company and the Gasoline Company are a single "employer engaged in a "single integrated business enter- prise." The threshold issue thus is whether the businesses of the two companies "are sufficiently integrated to consider the business of both together in applying the jurisdictional standards" in the light of an interrelation of their opera- tions, centralized control of labor relations, common man- agement, and common ownership or financial control.3 While no one of these factors is to be regarded as control- ling, special attention should be given to the extent of "oper- ational integration" as illustrated by the first three factors rather than by mere existence of common ownership or financial control.4 Members of the Lassus family own all the stock and serve as the officers and directors of both companies. Thus, three brothers, August, Elmer, and William Lassus, own all the i Catalina Island Sightseeing Lines, 124 NLRB 813, 814-815. 2 Carolina Supplies and Cement Co., 122 NLRB 88. 3 Twenty-first Annual Report of the National Labor Relations Board, 14-15; Sakrete of Northern California v. N L R B., 332 F.2d 902 (C.A. 9); Radio and TV etc Union 1264 v. Broadcast Service of Mobile, 380 U.S. 255- 256 4 Ibid. 196 NLRB No. 109 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stock of the Respondent Fuel Company in equal shares and, also in equal shares, 9 ,000 of the 9 ,400 shares in the Gasoline Company , the remaining 500 shares in the latter company bein held by John and James E . Lassus (Elmer Lassus' sons and William Yarnelle (a nephew of August Lassus). August, William, and Elmer Lassus are respectively the president, vice president, and secretary-treasurer of both companies and are members of their boards of directors. John Lassus (Elmer's son) is the executive vice president of the Gasoline Company and he, James Lassus , and William Yarnelle serve on that company's board of directors along with August , Elmer, and William Lassus. At the operating levels of the companies , however , despite the use of a common office owned by the Respondent Fuel Company , there is a distinct cleavage and separation of management , payrolls , supervision , personnel , and equip- ment. August Lassus is the general manager of the larger scaled operations of the Gasoline Company , and, as such, super- vises the company 's office staff of four women, operates the company's service stations, and hires and supervises the Company's two year-round drivers , one of whom drives a truck which transports gasoline from an Indiana refinery directly to the Gasoline Compan 's service stations and the other of whom drives a smaller "city delivery truck" which makes deliveries from the Gasoline Company's Fort Wayne bulk plant to farmers and small businesses . Two of Elmer Lassus' sons assist August Lassus in managing the Gasoline Company's business. John Lassus makes up the payroll without clerical assistance and, in addition to being second in charge of the Gasoline Company 's operations , is in full charge whenever August Lassus is on vacation . And James Lassus (Elmer's other son) is the gasoline station superin- tendent under August Lassus. Elmer Lassus is similarly in charge of the separate opera- tions of the Respondent Fuel Company as its general man- ager . He supervises that company 's separate clerical staff of three women and its separate group of ttruckdrivers, the only personnel employed by the Respondent Fuel Company, and makes up its payroll without clerical assistance. Be- cause its business is mostly seasonal-from October to May-the Respondent employes only two year-round truckdrivers , one of whom is a transport truck driver (Tom Settles) and the other of whom (Byron Collier) is a city delivery man. In the winter season , the Respondent Fuel Company also employs three seasonal full -time city delivery men and an additional part-time delivery man. For its trucking operation , the Respondent Fuel Company owns and uses a transport truck and four or five smaller city delivery trucks . As the terms indicate , the transport driver hauls fuel oil from an Indiana refinery to the Respondent Fuel Company's storage area in Fort Wayne , from which point the city men make the local deliveries to customers in the smaller delivery trucks . Except for about a month's vacation each year, Elmer Lassus manages the entire busi- ness of the Respondent Fuel Company possibly with assist- ing supervision of the seasonal drivers from the year-round delivery man, Byron Collier. During Elmer Lassus' vaca- tions, but only during such periods , his son John Lassus takes charge of the Respondent Fuel Company 's operations and makes up its payroll. Notwithstanding this definite separation of the manage- ment, operation , and nature of the two businesses , the Gen- eral Counsel contends that the two separately incorporated companies are a single employer engaged in a "single inte- grated business enterprise ." In addition to the common stock ownership and the identity of officers and directors, the General Counsel relies upon the following facts shown by the evidence. The two companies use common, unparti- tioned office space in a building owned by the Respondent Fuel Company and have a common four-trunk telephone line. In lieu of office rent, the Gasoline Company pays the light bills and half the telephone bill. Both companies use the same posting machine which is operated by one of the clericals who, for 6-month periods, alternates between the payrolls of the two companies. Although the other clerical employees are separately employed and paid by one of the companies and have their regular full-time duties for their respective employer, all of them answer telephone calls at random on the four trunk lines and, with the rush of fuel orders in the winter time, Gasoline Company clericals take any "overflow" of fuel orders. Both companies bill their customers each month and, although the clericals do not ordinarily "interchange," if permitted by their lighter, reg- ular clerical workloads during the summer time, the Re- spondent Fuel Company's clericals will sometimes ` voluntarily" help the Gasoline Company's clericals in the latter's billings. With the exception of the four seasonal city delivery drivers of the Respondent Fuel Company, the em- ployees of both companies receive paid vacations and op- tional coverage under group life and health insurance plans, to which their respective employer contributes one-third of the premiums. Although each company has its own trucks, there have been two situations in which a truck of the Re- spondent Fuel Company has been made available to the Gasoline Company. One was the recent 2-week use of one of the Respondent Fuel Company's delivery trucks by the Gasoline Company's city delivery man (Shoemaker) when the Gasoline Company's truck had broken down, and for this there was no charge by the Respondent Fuel Company. The other situation is a more regular occurrence, in which the Gasoline Company in order to meet its service station requirements has found it necessary to supplement the hauls of gasoline in its transport truck by having gasoline trans- ported to the stations either by a freight company (as it sometimes does) or by the Respondent Fuel Company's transport truck driven by the Respondent Fuel Company's regular transport driver (Settles). For this, the Gasoline Company pays the Respondent Fuel Company a gallonage freight charge sometimes amounting to as much as $2,000 in the period of a month. Finally, there is a limited inter- change of personnel between the two companies during the vacation periods of the two city drivers and of Elmer l,as- sus. Thus, the city drivers substitute for each other, each at the same time also performin his regular duties for his own employer, and John Lassus regularly second in charge of the Gasoline Company's operations) substitutes for his fa- ther, Elmer Lassus, during the latter's annual one-month vacation and takes charge of the payroll and operations of the Respondent Fuel Company. The General Counsel apparently believes that these vari- ous elements in the relationship between the two companies demonstrate such a degree of integration and interdepen- dence in their operations through uncompensated mutual assistance , common use or interchange of personnel and equipment, and a centralized control over labor relations as to warrant the conclusion that the two companies are a single employer engaged in "a single integrated business enterprise." In my opinion, the evidence relied upon by the General Counsel warrants no such conclusion. The mere fact that the permanent employees of both companies received paid vacations and optional coverage under group life and health insurance plans is certainly insufficient to indicate any significant common pattern in the two companies' dealings with their employees. Nor does it therefore indicate any such actual, as distinguished from LASSUS FUEL CO., INC. 705 a potential , centralized control of labor relations which the Board has held to be essential to a finding of integration of operations and management .5 Furthermore , the other facets of the interrelationship between the companies , upon which the General Counsel also relies , are actually insubstantial when appraised by any realistic standard , and do not affect the essential general separation and independence of the companies in the management and conduct of their two different businesses with their respective staffs of employees and equipment . Thus, in the light of all the rest of the evidence , the companies' use of the common office space owned by the Respondent Fuel Company and a common telephone does not show any significant degree of uncom- pensated assistance to the Gasoline Company , particularly since , although the Gasoline Company a s no fixed renta, it makes its contribution by paying the light bill and half the telephone bill. Moreover , again upon all t e evidence before me, it does not appear that there is any such substantial exchange or common use of personnel as would indicate that the two companies are a single employer merely be- cause their small, separate clerical forces occasionally help each other in answering the telephone and, during the sum- mer, in sending out monthly bills,; because the posting oper- ator works alternately on the payrolls of both companies; because the regular city driver of each company regularly substitutes for the city driver of the other company during their short vacation periods ; and because the assistant man- ager of the Gasoline Company also substitutes for the gen- eral manager of the Respondent Fuel Company during the latter's annual 1-month vacation . Nor do f regard the evi- dence of the occasional use of a truck of the Respondent Fuel Company by the Gasoline Company as sufficiently substantial to justify a holding that the business operations of the companies are integrated . In only one instance does the evidence show that the Gasoline Company used the Respondent Fuel Company 's city delivery truck without compensation . Otherwise , the only use of one company's equipment by the other has been on a freight -charge gallo- nage basis to supplement the Gasoline Company's transport truck's deliveries of gasoline to its service stations, an ar- rangement which the Gasoline Company in fact also makes with an independent outside trucker. This evaluation of the insubstantiality of these various elements of the evidence relied upon by the General Coun- sel to show that the Respondent Fuel Company and the Gasoline Company are a single employer finds support, generally and in considerable pertinent detail, not only in the Board's decision in Drivers, Chauffeurs and Helpers Lo- cal No. 639, (Poole 's Warehousing, Inc.), 158 NLRB 1281, 1284-86, but also in the decision of the Court of Appeals for the Fifth Circuit in Vulcan Materials Company v. United Steel Workers of America, AFL-CIO, 430 F .2d 446, 451- 454. In each of these decisions , the question presented was whether several employers could realistically be treated as a "single employer in cases arising under the secondary boycott provisions of Section 8(b)(4) of the Act. In Vulcan, the Court said (at pp. 452-453): In determing whether the relationship of a secondary employer and a primery employer is such as to destroy neutrality , the court must look to the essence of the relationship , and not its incidental trappings .... Fur- 3 Drivers, Chauffeurs and Helpers, Local No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Poole's Warehousing, Inc.), 158 NLRB 1281, 1286. thermore, there is authority that the fact that two com- panies share a common bookkeeper, use the same sta- tionery at the main office; that one performs minor services for the other and bills the other; that both companies are listed in the telephone directory at the same address and with the same telephone number is insufficient to establish that both companies are oper- ated as a single, integrated business enterprise so as to destroy neutrality.... With regard to the interchange of employees and services pursuant to the operating agreement between Vulcan and Forman, it has been held that normally one who hires an independent con- tractor to perform services, such as the services sup- plied Forman by Vulcan, will not be considered an employer with respect to the independent contractor's employees, even though the independent contractor and its employees are subject to some quantum of con- trol by the party using their services. [Citations omitted.] In short, I conclude that the various elements in the relationship between the Respondent Fuel Company and the Gasoline Company which the General Counsel stresses , are relatively minor and insignificant and do not obscure the important facts (1) that the companies are actually engaged in two different kinds of busi- nesses, each selling a different t pe of petroleum prod- uct for a different use to a different type of customer and using a different type of sales and distribution procedure;6 (2) that at their operating levels, there is a distinct separation of management, payrolls, supervi- sion , personnel, and equipment; (3) that there is no evidence of any actual, centralized control-as distin- guished from a potential centralized control-of anything that could be dignified as a common labor relations policy for the two companies;' and (4) that the two businesses are each self-sufficient, their opera- tions are not interdependent, and an interruption of the operations of either of them would not affect the opera- tions of the other.8 Accordingly, on these facts I find and conclude, contrary to the General Counsel's position, that the Respondent Las- sus Fuel Co., Inc., and the Lassus Bros . Oil, Inc., are not a single employer engaged in "a single integrated business enterprise," and that the complaint against the Respondent Lassus Fuel Co., Inc., must be dismissed for want of juris- diction since its business does not meet either the absolute statutory jurisdictional requirement of Section 2(6) and (7) of the Act, that the employer be engaged at least to some substantial degree in a business affecting commerce, or the additional requirement administratively imposed by the Board in the case of a retail business that the employer's annual gross volume of business be at least $500,000. Upon the foregoing findings of fact and conclusion, I recommend the following: ORDER It is ordered that the complaint herein be and the same is hereby dismissed in its entirety for want of jurisdiction. 6 See International Union of Operating Engineers, Local 428 AFL-CIO, 169 NLRB 184; Clark Concrete Construction Corp, 116 NLRB 321, 323; Goodman's Inc., 101 NLRB 352 7 See Drivers, Chauffeurs and Helpers Local No. 639 (Poole 's Warehousing, Inc.), 158 NLRB 1281, 1286. 8 See Piedmont Wood Products, Inc., 156 NLRB 151 Copy with citationCopy as parenthetical citation