Orkin "The Rat Man," Inc.

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warrant application of the general principle. In support of this con- clusion, we note that the contract is not a stop-gap agreement, but a written complete contract covering wages and working conditions; that the record contains no evidence of fraud or of a desire by the parties to manipulate the effective contract date to preclude the filing of rival petitions; and finally that the effective contract date, which was postponed for only a few days at the end of the calendar year, cannot be said to have been unreasonably delayed. A contract executed under these circumstances clearly tends to stabilize bargaining relations, which should not be disrupted by a new election at this time. We find for the reasons set forth above, that the contract of Decem- ber 22 constitutes a bar to a present determination of representatives- We shall, therefore, dismiss the petition.' [The Board dismissed the petition.] The Petitioner also contends that even if we consider the contract execution date con- trolling in this case, the contract is nevertheless not a bar on other grounds: (1) The contract was in violation of Section 8 (a) (1) and 8 (a) (2) of the Act, (2) it contained an illegal union-security clause; and (3) the contract was executed after the Employer had become aware of Petitioner's interest in the employees. We find no merit in the first contention , as it is clearly established that unfair labor practice charges will not be con- sidered in a representation proceeding. Nor do we find merit in the second contention, for reasons set forth in Milwaukee Gas Light Company, 111 NLRB 837. In support of its third contention, the Petitioner cited the case of Associated Food Distributors, Inc., 109' NLRB 574. However, the latter is clearly distinguishable. In that case, the Employer was notified of a majority claim to be followed by the filing of a petition. In the instant case, there was no evidence of a claim of majority or of an intent to file a representation petition . The fact that on the day the contract was signed the Employer was shown a circular distributed by the Petitioner to employees , does not constitute such notice of claim as to prevent a contract bar. Orkin "The Rat Man," Incorporated 1 and Warehouse Employees. Union, Local #322, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Pe- titioner. Case No. 5-RC-1198. May 17,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held on June 23, 1954, before Robert W. Knadler, hearing officer. On January 12, 1955, the Board issued its Order reopening the record for the taking of further evi- dence, and remanding the case to the Region for the purpose of further hearing. Such further hearing was held on February 15, 1955, before the same hearing officer. The hearing officer's rulings made at the. hearings are free from prejudicial error and are hereby affirmed.. Upon the entire record in this case, the Board finds that : The Petitioner seeks to represent a unit of all servicemen engaged. in termite control at the Employer's Richmond, Virginia, opera- 1 The name of the Employer appears in the caption as amended at the hearing. 112 NLRB No. 101. ORKIN "THE RAT MAN," INCORPORATED 763 tions.2 The Employer moved to dismiss the petition on the ground that its operations are local in character and do not meet the Board's minimum standards for the assertion of jurisdiction. For the reasons stated below , the motion is granted. The Employer, a Virginia corporation, is engaged in pest control work throughout the State of Virginia. Most of its work is performed in and about private dwellings, with an average charge of $15 a month for services to each dwelling. For the fiscal year ending October 31, 1954, the Employer's total purchases amounted to approximately $27,000, of which $15,688 came from out-of-State. For the same period the total amount of the sales and services rendered was approxi- mately $294,500, all of which were made locally. This amount in- cludes sales and services amounting to $40,557 rendered to concerns directly or indirectly engaged in commerce. The Employer is one of 29 "Orkin" corporations engaged in pest control work in 25 States. The aggregate business of all 29 corpora- tions for the calendar year 1954 was approximately $12,500,000. One ,of the corporations, Orkin Exterminating Company of Atlanta, Georgia, a purchasing and distribution corporation, for the fiscal year ending October 31, 1954, made out-of-State sales to other pest control businesses in the amount of $194,000. This amount includes $15,688 sales of chemicals to the Employer . Out-of-State sales and services rendered by the other corporations during the fiscal year ending October 31, 1954, exceeded $307,000. A majority of the stock in each of the 29 "Orkin" corporations is owned by Otto Orkin and his imme- diate family . All the corporations have identical officers, and four directors of each corporation are the same . Thus Otto Orkin is the president, treasurer, and a director of each corporation ; M. C. Young is secretary of each; and Sanford H. Orkin, William B. Orkin, and Perry Kaye are vice presidents and directors of all the corporations. Each corporation employs a manager to conduct its business opera- tions. Payment for the manager 's services is usually on a profit- sharing or incentive basis, the amount of his income being dependent on the earnings of the corporation he manages . Each corporation operates independently of the others . Each maintains its own ac- counts and files separate tax returns .' Each manager uses his own discretion as to when and where to make purchases and the quantity thereof. There is no centralized control of the labor relations of the corporations . Thus each manager does his own hiring and firing, sets wage rates, and establishes vacations and other benefits. Simi- larly, there is no interchange of either employees or managers between corporations. 2In view of our disposition of the case , we do not pass on the Employer's contentions that the unit is inappropriate 3 One firm of accountants in Atlanta, Georgia, makes out the income tax returns for each corporation 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the foregoing, it is clear that the operations of the Employer, considered alone, fall short of satisfying the Board's jurisdictional standards.4 Nor, in view of the fact that all the "Orkin" corpora- tions are operated independently of each other and the further fact that there is no common control of the companies' labor relations policies, does it appear that these corporations constitute a single employer within the meaning of the Act or that the Employer is an integral part of a multistate enterprise for jurisdictional purposes.' We find, therefore, that the Board's jurisdictional standards have not been met. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] MEMBER MURDOCK, dissenting : I would assert jurisdiction herein, on the ground that the Employer is an integral part of a multistate system of exterminating companies, which together constitute a single employer. The majority's decision not to assert jurisdiction is inconsistent with the Board's decision in Orkin Termite Company, Inc., 79 NLRB 935, and also its very re- cent decision in Hot Shoppes Caterers, Inc. (Case No. 10-RC-2896, issued April 13, 1955; not reported in printed volumes of Board De- cisions and Orders). In the earlier Orkin case, the Board asserted jurisdiction over two Georgia corporations which, like the Employer, were members of the Orkin chain on the ground that they were "an integral part of the widely spread operations of Orkin, who controls it number of other similar service companies located and operating in a number of States extending from Virginia to Texas." The Board's decision in that case was thus predicated on the conclusion that the two Georgia corporations were an integral part of a multistate enter- prise. In the Hot Shoppes case the Board found that Hot Shoppes, Inc., and its subsidiary corporation Hot Shoppes Caterers, Inc., constituted a single employer solely on the basis of the following findings of fact : The president of Hot Shoppes Caterers, Inc. is also a vice presi- dent of Hot Shoppes, Inc. The president of Hot Shoppes, Inc., is a vice president of Hot Shoppes Caterers, Inc., and a member of the board of directors of each corporation. The treasurer of each corporation is the same individual. The same accounting firm maintains the books of each corporation. In these circum- stances, we find Hot Shoppes, Inc. and [its wholly owned sub- sidiary] Hot Shoppes Caterers, Inc., to constitute a single em- ployer within the Act's meaning. 'Jonesboro Grain Drying Cooperative, 110 NLRB 481; Central Valley Pipe Company, 111 NLRB 233. 6 Consolidated Gas Company of Savannah, Consolidated Gas Company of Brunswick, 107 NLRB 148; Dan Dee Central Ohio Corporation, 106 NLRB 1303. CONTRACT BATTERY MANUFACTURING CO. 765 The instant case reflects as great a degree of common ownership as was present in the Hot Shoppes case, in that one individual and his im- mediate family own all of the 29 Orkin corporations, and a greater degree of common control than was present in the Hot Shoppes case, in that one individual is the president, treasurer, and a director of each corporation, another individual is the secretary of each corpora- tion, and four other individuals are vice-presidents and directors of each corporation. Furthermore, there is additional evidence of inte- gration of operations of the corporations, herein involved, which was not present in the Hot Shoppes case. The record shows that one of the 29 corporations Orkin Exterminating Company of Atlanta, Georgia, is a purchasing and distribution company, which purchases chemicals and other supplies, which it makes available to the other "Orkin" corporations. Though the other corporations are free to pur- chase supplies from other sources, it is evident that they rely on the purchasing corporations for the economical purchase of supplies. The Employer purchased over 55 percent of its supplies from the central purchasing during 1954. The central purchasing corporation dis- tributed over $194,000 worth of supplies to other "Orkin" corpora- tions. The lack of a common labor relations policy for all of the "Orkin" corporations detracts no more from the integrated nature of their operations than did a lack of a common labor relations policy detract from the Board's conclusions in the Hot Shoppes case and in Youngs- town Tent and Awning Company,' that the employers involved in those cases together with their parent corporations constituted single employers. Accordingly, as the combined direct outflow of 29 "Orkin" corpora- tions during 1954 was in excess of $250,000 I would assert jurisdic- tion over the corporation herein involved .7 MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 9110 NLRB 835 7 Jonesboro Grain Drying Cooperative, supra Contract Battery Manufacturing Co. and International Union, United Automobile , Aircraft & Agricultural Implement Work- ers of America, CIO. Case No. 10-CA-2029. May 18,1955 DECISION AND ORDER On December 9, 1954, the Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Contract Battery Manufacturing Co., had en- 112 NLRB No. 109.