Orkin Termite Co., Inc.

In the Matter of ORKIN TERMITE COMPANY, INC., EMPLOYER and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 231, PETITIONER In the Matter of ORKIN EXTERMINATING COMPANY, INC., EMPLOYER and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 231, PETITIONER Cases Nos. 10-RC-129 and 10-RC-130, respectively.Decided September 00, 1948 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed,' a consolidated hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Upon the entire record in this case ,3 the Board finds : 1. The Employers are engaged in commerce within the meaning of the National Labor Relations Act, by reason of the following facts : Orkin Termite Company, Inc., and Orkin Exterminating Company, Inc., herein named as Employers, are Georgia corporations, constitut- ing 2 of the 21 exterminating companies owned, operated, and con- trolled by Otto Orkin in the Southern States from Virginia to Texas. Orkin is president of all the companies and signs respective checks for most of the companies, including the Employers. All companies are bonded, guaranteeing work for a period of 5 years and Orkin handles all the bonding from his Atlanta office. Orkin owns approximately 90 percent of the stock of Orkin Ex- terminating Company, Inc., which in turn owns all the stock of Orkin i The petition and other formal papers in Case No. 10-RC-130 were amended at the hearing to disclose the correct name of the Employer. 2 The Employers contend that they have been denied due process of law in that ( 1) they were not served with notice prior to the issuance of the order for consolidation of the two petitions , and (2 ) that the consolidation is prejudicial in that each Employer is entitled to a separate hearing. We find no merit in these contentions . The record discloses that neither of the Employers concerned was in any way prejudiced by the order of consolida- tion or lacked opportunity to introduce evidence bearing on all the issues raised herein. 3 The Employers' motion for oral argument is hereby denied, inasmuch as the record and the brief filed herein , in our opinion, adequately present the issues and the positions of the parties. 79 N. L. R. B., No. 113. 935 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Termite Company, Inc. Orkin is president and Theodore Oser is. vice president and secretary of the Employers. Orkin Exterminating Company, Inc., is a service company engaged in the extermination of all pests other than termites, .with principal offices in Atlanta and three suboffices in other cities in Georgia. Orkin Termite Company , Inc., is engaged solely in the eradication of ter- mites, repair of property damaged by termites, and treatment to pre- vent termites , with offices in Atlanta, Georgia. These Employers maintain their respective offices in the same building in Atlanta,_ Georgia, which is leased from Otto Orkin. They have the same tele- phone number. Each Employer, however, maintains separate records and accounts, and there is no interchange of service employees be- tween the Employers. Otto Orkin is also doing business as Atlanta Chemical Department,. which has offices in the same building as the Employers . He pur- chases chemicals and supplies for use by all 21 of the companies in the Orkin system. It was stipulated at the hearing that approxi- mately 50 percent of such material is purchased from outside the State of Georgia. During the year 1947 Orkin Termite Company,. Inc., purchased from Otto Orkin, d/b/a Atlanta Chemical Depart- ment, chemicals and supplies valued at approximately $8,336.76. Dur- ing the same period Orkin Exterminating Company, Inc., purchased from Otto Orkin, d/b/a Atlanta Chemical Department , materials valued at approximately $13,066.34. The Employer declined to submit a list of the establishments which they serve, contending that such list is a confidential trade list. Orkin Termite Company , Inc., has a gross income of approximately $137,714. Orkin Exterminating Company, Inc., has a gross income of $342,698, and the average monthly income for its Atlanta operations is $13,854. This Employer states that, of this sum, $327 per month was obtained from companies that, according to the Employer's classification, were engaged in commerce, and $37 per month from common carriers. The Employers claim that the remainder of the income is from private homes, grocery stores, stands, and small business enterprises, which they state are not in interstate commerce. However, it appears from the testimony that they service several chain drug stores , chain gro- cery stores, chain five-and-ten-cent stores, and several hotels, all of which are probably within or effect interstate commerce. All types of businesses are solicited and accepted by the Employers at this time. The Employers contend (a) that their individual corporate oper- ations are not in, and do not affect , interstate commerce; and (b) that, in any event, it would not effectuate the policies of the Act to assert jurisdiction in these proceedings . We do not agree. ORKIN TERMITE COMPANY, INC. 937 Each of the Employers herein is a separate corporate entity engaged in performing building services in a specific restricted geographical area within the same State. The Employers are, however, an integral part of the widely spread operations of Orkin, who controls a number of other similar service companies located and operating in a number of States extending from Virginia to Texas. All such service com- panies, under the control of Orkin, depend to a large extent for their economical purchasing of necessary supplies upon a common pur- chaser, known as Atlanta Chemical Department, also under Orkin control. It brings into the State more than 50 percent of the material which it dispenses to the several scattered service companies in the Orkin chain, located in a substantial number of States, of which Georgia is only one. The Employers' enterprises, therefore, are not local in their essential character.4 Under these circumstances, we find that the operations of the two Orkin concerns, named herein as Employers, affect commerce within the meaning of the Act and that it will best effectuate the policies of the Act to assert jurisdiction in these cases. Therefore the Employers' motion to dismiss is hereby denied. 2. The labor organization named below claims to represent em- ployees of the Employers. 3. Questions affecting commerce exist concerning the representation, of employees of the Employers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees constitute separate units appropriate for purposes of collective bargaining within the meaning of Section 9(b)oftheAct: (a) All servicemen of Orkin Termite Company, Inc., excluding all salesmen, office employees, guards, professional employees, and super- visors, as defined by the Act. (b) All servicemen of Orkin Exterminating Company, Inc., ex- cluding all salesmen, office employees, guards, professional employees, and supervisors, as defined by the Act .5 DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with the respective Employers, separate elections by secret ballot shall be conducted as early as pos- sible, but not later than 30 days from the date of this Direction, under * See Matter of A. D. T. Company, 73 N. L. R. B. 265, and Matter of Carnation Company of Texas, 78 N. L. R. B. 519. Cf. Matter of The Great Atlantic & Pacific Tea Company, 77 N. L R B. 389. 5 At the time of the hearing, these servicemen were employed in the exterminating, rat- proofing, and greasing departments. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the direction and supervision of the Regional Director for the Region in which these cases were heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the two units found appropriate in paragraph numbered 4, above, who were employed during the pay- -roll period immediately preceding the date of this Direction of Elections, including the employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Building Service Employees International Union, Local 231. MEMBERS REYNOLDS and GRAY, dissenting : The Employers' entire business operations comprise local building services within a limited geographical area all within State lines. In deciding to assert jurisdiction in these cases, the majority believes that common ownership and control of a number of similar corporate entities located in several States from Virginia to Texas, and a common purchasing source, also under the same control, outweighs as a deter- mining factor the strictly local character of the services rendered by the Employers. We do not agree. In our judgment there would be little, if any, interference with the flow of interstate commerce should a labor dispute disrupt the Employers' operations, which con- sist of no more than the furnishing of a personal service. The local aspect of the Emnployers' operations, therefore, appears to us decisive of the policy issue. We would not assert jurisdiction, and would dismiss the petitions.