Oregon Labor-Management Relations Board

National Labor Relations Board - Board Decisions

Jul 29, 1964

148 N.L.R.B. 53 (N.L.R.B. 1964)

'OREGON "LABOR-MANAGEMENT RELATIONS BOARD 53
there would be no change in the day-to -day relationships with the
Employer, and the newly affiliated local would honor all contractual
commitments with the Employer . In these circumstances , as we be-
lieve that the requested substitution would insure to employees the
continuity of their present organization and representation , we shall
grant the Petitioner 's motion and substitute Emery Unit of Local 509,
UAW, for United Emery Industries Employees Committee (Dice
Road ) as certified representative of the employees in the unit.' Such
amendment of the certification is not , however , to be considered as a
new certification or recertification.
[The Board amended the Certification of Representative issued to
United Emery Industries Employees Committee (Dice Road ) in Case
No. 21-RC-8373 by substituting "Emery Unit of Local 509, UAW"
for "United Emery Industries Employees Committee (Dice Road) ".]
5 See Climax Molybdenum Company, 146 NLRB 508; Minnesota Mining and Manufac-
turing Company, 144 NLRB 419.
Oregon Labor -Management Relations Board and Barbur Boule-
vard Flying A Truck Stop and Automotive Garage & Service
Station Employees Local No. 255 and Robert Ferguson, Em-
ployee of Barbur Boulevard Flying A Truck Stop . Case No.
A 0-75. July 09, 1964
ADVISORY OPINION
This is a petition filed by the Oregon Labor-Management Relations
Board, herein called the State Board, for an Advisory Opinion in
conformity with Sections 102.98 and 102.99 of the National Labor
Relations Board's Rules and Regulations, Series 8, as amended.
In pertinent part, the petition alleges as follows :
1. There is presently pending before the State Board a decertifica-
tion petition (Case No. 1-64) involving Barbur Boulevard Flying A
Truck Stop, herein called the Employer, and Automotive Garage &
Service Station Employees Local No. 255, herein called the Union.
The petition had been filed by Robert Ferguson, an employee of the
Employer. At the hearing before the State Board, the Employer
and Union stipulated as to the nature of the Employer's business and
its commerce data.
2. The Employer is a truck stop and service station engaged at
Portland, Oregon, in selling gasoline, diesel fuel oil, and automotive
accessories, and in rendering services such as lubrication of vehicles.
All sales of diesel fuel oil and gasoline are-made at one rate except
that purchasers of more than 25 gallons of gasoline pay the "truck
148 NLRB No. 11. -
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rate" amounting to a discount of 2 cents per gallon off the regular
price.
3. During the calendar year 1961, the Employer's gross sales were
$232,978, while during 1962 they were $202,110, and during 1963,
$194,611. Approximately 50 percent or $90,000 of the Employer's
gross annual business is derived from sales of diesel fuel oil to com-
mercial vehicles; and approximately 331/3 percent or $20,000 of its
$60,000 annual sales of gasoline are made to commercial vehicles, the
balance of $40,000 to private vehicles. In addition, approximately
$50,000 of its gross annual business is derived from services rendered
to commercial vehicles. According to the stipulation hereinabove
referred to, the Employer makes sales of diesel fuel oil and gasoline
and renders services in excess of $50,000 per annum "to employers who
are engaged in interstate commerce and who are themselves of sufficient
size so as to meet the jurisdictional standards of the National Labor
Relations Board except those of solely the indirect inflow or indirect
outflow standard."
4. The State Board has made no findings as to the aforesaid com-
merce data.
5. There is no representation or unfair labor practice proceeding
pending before this Board that involves the parties hereto.
. 6. Although served with a copy of the petition for Advisory Opin-
ion herein, no response as provided by the Board's Rules and Regula-
tions has been filed by the Employer, the Union, or Robert Ferguson.
On the basis of the above, the Board is of the opinion that :
1. The Employer is a truck stop and service station engaged at
Portland, Oregon, in selling gasoline, diesel fuel oil, and automotive
accessories, and in rendering automotive services to commercial and
private vehicles. Most of the Employer's gross annual business, an
amount in excess of $50,000, is derived from sales and services rendered
to commercial, rather than private, vehicles. Although characterized
by the State Board as a "retail service station," the Employer's opera-
tions are also those of a nonretail enterprise.'
2. The Board has determined that where a single integrated enter-
prise, as here, encompasses both retail and nonretail operations, it
will assert jurisdiction if the total operations of the enterprise meet
either the Board's retail or nonretail standards.2 The current stand-
ard for the assertion of jurisdiction over nonretail enterprises within
the Board's statutory jurisdiction requires an annual minimum of
$50,000 out-of-State inflow or outflow, direct or indirect. Siemons
Mailing Service, 122 NLRB 81, 85, 88. The Employer's more than
$50,000 annual sales and services to employers who are engaged in
1 Bussey -Wslliams Tire Co ., Inc., 122 NLRB 1146.
2 Gradwohl Souse, Inc., 146 NLRB 977, and cases cited in footnote 2 therein ; Harry
Polling, d/b/a Harry's Television Sales and Servace, 143 NLRB 450.
INTERNATIONAL HOD CARRIERS', ETC., LOCAL 894 55
interstate commerce and who themselves meet the Board's jurisdic-
tional standards (other than the indirect inflow or outflow stand-
ards) constitute indirect outflow under the Board's Siemons decision
and would satisfy the current standard for the assertion of jurisdic-
tion over nonretail enterprises.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that upon the
allegations submitted herein, the Board would assert jurisdiction over
the Employer's operations with respect to disputes cognizable under
Sections 8, 9, and 10 of the Act.
International Hod Carriers ', Building and Common Laborers'
Union of America , Local 894, AFL-CIO [Thorpe Construction
Company and Lomelo Construction Company ] and William O.
Strickland . Case No. 8-CB-732. July 30, 1964
DECISION AND ORDER
On January 29, 1964, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the Trial Examiner's findings,' conclusions, and recommenda-
tions except as hereinafter set forth.
We find that, notwithstanding the valid provisions in their written
contract with the Respondent relating to hiring and union security,
Thorpe and Lomelo, pursuant to oral arrangements with Respondent,
maintained a referral or clearance arrangement with Respondent
which discriminated in favor of union members. As a party to such
' The Respondent has excepted to the credibility findings made by the Trial Examiner.
It is the Board 's established policy, however , not to overrule a Trial Examiner 's resolu-
tions with respect to credibility unless , as is not the case here, the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
148 NLRB No. 10.