Farmers LP Gas, Inc.

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 of 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.