Pit Stop Markets

National Labor Relations Board - Board Decisions

May 27, 1986

279 N.L.R.B. 1124 (N.L.R.B. 1986)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cheuvront-Hill Corporation d/b/a Pit Stop Markets
and United Food and Commercial Workers
Union, Local 303, Petitioner . Case 36-RC-4571
27 May 1986
DECISION AND REVIEW
BY MEMBERS DENNIS, JOHANSEN, BABSON,
AND STEPHENS
On 4 August 1982 the Regional Director for
Region 19 of the National Labor Relations Board
issued his Decision and Direction of Election in the
above-entitled proceeding in which he concluded
that the Employer's operations satisfied the Board's
standard for assertion of jurisdiction over retail op-
erations. Accordingly, he ordered an election at
the Employer's facility. Thereafter, in accordance
with Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations , the Employer
filed a timely request for review of the Regional
Director's decision on the ground that the Region-
al Director had departed from Board precedent.
By telegraphic order dated 2 September 1982,
the Board granted the Employer's request for
review.
The Board has considered the entire record in
this case with respect to the issue under review and
makes the following findings.
The Employer operates a retail gas station and
convenience grocery store in Salem, Oregon. It
leases the property from Western Stations Compa-
ny. Western Stations is a gasoline distributor which
obtains its products from companies such as
ARCO, TOSCO, Mobil Oil, and other suppliers.
The Employer and Western Stations have also
entered into a "dealer consignment and commission
agreement ." Under this contract, title to the gaso-
line provided by Western Stations to the Employer
remains with Western Stations until sold. Western
Stations remits a commission to the Employer for
each gallon of gasoline sold at the station. Money
taken in on the sales of gasoline is deposited daily
by the Employer into Western Stations' bank ac-
count. Purchases made on charge cards are also de-
posited into Western Stations' account. As a rule,
Western Stations sets the retail price of the gaso-
line.
The Employer's gross volume of business de-
rived from the grocery operations is approximately
$100,000. Its gross volume of sales in gasoline is
about $1 million, from which the Employer re-
ceives approximately $43,000 in commissions from
Western Stations.
Based on the foregoing, the Regional Director
concluded that the Employer's operations satisfied
the Board's gross volume of business standard for
asserting jurisdiction over retail operations. In so
doing , the Regional Director included the gross
volume of gasoline sales at the Employer's estab-
lishment, and not merely the commission fees for
such sales as urged by the Employer. The Regional
Director concluded that the Employer's lack of
title to the goods sold was immaterial for jurisdic-
tional purposes,' and thus the gross volume of
sales, including the sale of gasoline , was the proper
measure in determining jurisdiction.
The Employer contends that the Board does not
have jurisdiction over it. The Employer argues that
it is in the grocery business, and that it simply pro-
vides Western Stations, and the customers of West-
ern Stations, with a service by pumping Western
Stations ' gasoline . The value of that service is ap-
proximately $43,000 (i.e., the commissions it re-
ceives from Western Stations), and this amount
coupled with the $100,000 from its grocery oper-
ations is not sufficient to meet the Board's jurisdic-
tional standards for retail enterprises. We do not
agree, and we hereby affirm the Regional Direc-
tor's decision.
The Board's retail standard of jurisdiction is
based on nnual gross volume of business. All retail
enterprises which otherwise meet the Board's statu-
tory jurisdiction and do an annual gross volume of
business of at least $500,000 meet the Board's
standard in this area.2
In the instant case, the evidence reveals that the
Employer sells groceries, and sells gasoline. The
annual gross volume of business derived from the
Employer's operation is approximately $1.1 million
annually. This sum represents the true amount of
business conducted at the Employer's place of op-
erations, and satisfies the Board's retail jurisdiction-
al standards. We agree with the Regional Director
that the Employer's lack of title to the gasoline
does not warrant a different result. For the fact re-
mains that the Employer is sufficiently involved in
commerce to come within the Board's jurisdiction-
al ambit.3 The Employer here actually sells prod-
i The Regional Director cited NLRB Y Bradford Dyeing Assn, 310
U S 318, 324-326 (1940), Texsun Citrus Exchange, 82 NLRB 540 (1949),
and Sanger Winery Assn , 88 NLRB 852 (1950), in support of his conclu-
sion
2 Carolina Supplies & Cement Co, 122 NLRB 88 (1958)
' Budget Ranch Market, 148 NLRB 1469 (1964), cited by the Employ-
er, is distinguishable There the Board excluded the gross receipts attrib-
utable to a grocery store' s sale of money orders "issued on behalf of a
bank" because the receipts were not "derived from the retail sale of
goods owned by the store" but were merely "the face value of money
orders issued on behalf of a bank " Id at 1470 By citing Devco Diamond
Rings, 146 NLRB 556 ( 1964), which concerned the valuation of services
performed by a nonretail enterprise for customers of separate retail estab-
lishments , Budget Ranch implicitly classified the sale of the money orders
as a service which could not be assessed on the basis of the receipts from
the sale Whether or not that was a proper way of classifying the sale of
Continued
279 NLRB No. 161
PIT STOP MARKETS
ucts: gasoline and groceries. Moreover, an employ-
er's return from the sale of a product is rarely the
total amount of the sale; the employer must deduct
the cost, etc., from that sale. Yet it is gross volume
sales amounts to which the Board looks in deter-
mining jurisdiction, not profit margin or some
other yardstick. The same test should be used here,
and, indeed, was applied by the Regional Director.
money orders , we are here clearly dealing with retail sales of a good
(gasoline), and thus the gross receipts from those sales are properly
counted under the implicit rule of Budget Ranch To the extent that
Budget Ranch may be read as suggesting either that retail enterprises may
not encompass the providing of services or that the valuation of a retail
sales transaction turns on who holds title to the goods prior to the sale,
we overrule it
1125
Whether the Employer buys gasoline from its sup-
pliers and receives a return on investments (as it
apparently does with groceries), or receives a com-
mission from the supplier for the amount of gaso-
line sold, the result in both situations is that the
Employer receives gross revenues and obtains net
income from the sale. It is clear to us that the Em-
ployer is involved in interstate commerce, and
meets the Board's jurisdictional standards. Accord-
ingly, we shall assert jurisdiction over the Employ-
er, and we remand the case to the Regional Direc-
tor for the purpose of opening and counting the
impounded ballots in the election conducted in this
case, and for further appropriate action pursuant to
the Board 's Rules and Regulations.