Modern Linen & Laundy Service, Inc.

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modern Linen & Laundry Service, Inc. and Eugen Pedersen. Case No. 1-CA 1648. September $3, 1955 ORDER DENYING MOTION On December 10, 1954, the Board issued a Decision and Order i dis- missing the complaint in the above-entitled proceeding. Thereafter, on July 18, 1955, the Charging Party filed a motion for reconsidera- tion, requesting that the record be reopened and that a hearing be held to take new evidence.' On August 10, 1955, the Respondent filed a memorandum in opposition thereto. The Board having duly consid- ered the matter, IT IS HEREBY ORDERED that the said motion for reconsideration, for reopening the record and for rehearing be,, and it hereby is, denied for the reason that it presents no issues which were not previously con- sidered by the Board. By direction of the Board: FRANK M. KLEILER, Executive Secretary: MEMBER MURDOCK, dissenting : I dissent from the. majority's action, denying the Charging Party's motion for reconsideration of the dismissal of the complaint on the grounds that Respondent's operations,do, not satisfy the Board's juris- dictional requirements. Though the motion urges reconsideration of that finding, and with reason,, it also urges that in any event the Board as a matter of fairness and justice to the complainant should assert jurisdiction under the special circumstances here, because if it had not been for the Board's action-in asserting jurisdiction over Respondent in a prior case and subpenaing complainant to testify, he would not have been discharged by Respondent. The Board's original decision in this matter makes no reference to these. factors nor does the order denying complainant's motion. I do not see how they can be ignored or deemed unpersuasive. . In my view the question whether Respondent's operations fall with- in or without the Board's- recently announced jurisdictional standards is, to a degree, an irrelevant consideration. There is no question but that the. Board has legal jurisdiction in this matter. The Board did in fact assert its jurisdiction over Respondent in a prior case, in which a hearing was conducted by a Trial Examiner designated by the Board. The Board did subpena complainant to testify, and complainant testi- 1110 NLRB 1305. 3 Incorporated in this motion was a motion for reconsideration previously filed by the Charging Party on May 18, 1955. 3 Member Murdock would grant the motion for the reasons stated in the attached dissent. 114 NLRB No. 41. MODERN LINEN & LAUNDRY SERVICE, ZINC. -'167 fled against the interests of Respondent. Complainant was discharged by Respondent less than 2 weeks after his testimony in the prior case was taken. The Trial Examiner found, and for the purpose of consid- ering complainant's motion, it must be accepted as a ,correct finding, that Respondent discharged complainant in violation of Section 8 (a) (4) of the Act because of his testimony in the prior proceeding before this Agency. It is obvious that if this Agency had not asserted its jurisdiction and had not compelled complainant to testify , he would not have been .discharged by Respondent. Having„ ,placed- complainant in the -posi- tion of opposing the interests of his employer , the Board cannot in good conscience leave him to the ungentle "mercy" of that Employer, merely because in the interim the Board has changed its jurisdictional policies so as to exclude the Respondent . To do so is to hold that com- plainant should have foreseen the change in jurisdictional policy, and having failed to foresee such change , must accept the consequences. Had he foreseen the change in jurisdictional policy, and accordingly refused to honor the Board's subpena , the Board, not itself gifted with such prescience, may well have brought proceedings against complain- ant to enforce its subpena. To place complainant and other witnesses in such an impossible situation where they are compelled to aid the Board in effectuating the public , interest but are denied protection against unlawful discharge after doing so is unjust and intolerable. In my view complainant was entitled to assume that the Board's action in asserting jurisdiction over Respondent and in subpenaing him to testify was notice to all parties concerned that the provisions of Sec- tion 8 (a) (4) would protect him from any discrimination directed against him by his, employer because of his testimony. Considerations of fairness and equity which move the Board in the assertion or nonassertion of jurisdiction in other special, situations dic- tate ,assertion,here. Thus when the Board broadens its, jurisdictional policies, it thereafter refuses to process complaints against employers which meet - the new jurisdictional test but did not meet the old test at -the time . of the commission of the alleged unfair labor practices. This salutary policy is based on the equitable grounds that it, would be unfair to•penalize employers for actions taken at a time when they were in receipt of advice and notice that the Board as a(matter of policy would not assert jurisdiction over them .4 The same considera- tions of fairness and, equity dictate that the Board should assert juris- diction herein to protect complainant who testified in a Board pro- 4 The Baltimore Transit Com pany, 47 NLRB 109, enforced in Baltimore Transit Com- pany v. N. L. R. B., 140 F. 2d 51 (C. A. 4) ; N. L. R B. v Guy Atkinson Co, 195 F. 2d 141 (C. A. 9) ; Screw Machine Products Co., 94 NLRB 1609; Almeida Bits,'Limes, 'Inc, 99 NLRB 498. - ,- -168 DECISIONS OE. NATIONALf'I:ABOR--RELATIONS' BOARD ,'ceeding in which the' Board had asserted jurisdiction over his em- ployer, even if it requires a waiver of its current jurisdictional -policy. Moreover, the Board waives its jurisdictional policy to'assert'juris-- .diction over employers whose operations do not meet the Board's present jurisdictional policies in far less compelling circumstances. In the -Coca-Cola Bottling Company 5 case the Board announced that it would waive its jurisdictional standards and assert jurisdiction over employers whose operations did 'not meet the current jurisdictional standards where in unfair labor practice cases decided prior to the issuance of the current standards the Board-had found the employers guilty of violating Section 8 (a) (2) of the Act by recognizing and dealing with an employer-assisted union and had ordered the em- ployers to cease recognizing said unions until certified by the Board. Pursuant to this policy the Board asserted jurisdiction in Richland Laundry ° in order to process a petition to enable the 8 (2) union to obtain a certificate. If it is necessary or desirable for the Board to waive its jurisdictional standards in order to'afford parties who have been adjudged guilty of or a beneficiary of a violation of the Act, the -use of the Board's machinery, it would seem an a fortiori case to like- wise waive the Board's jurisdictional policy in order that an employee, innocent of any wrong doing, be not required to suffer an unremedied discharge resulting from this Board's action in asserting jurisdiction over his employer and compelling him to testify, prior to the change in the Board's jurisdictional policies. An orderly and responsible administration of the Act requires that the Board protect complainants and other witnesses appearing before it, to the limit of its powers. To do less undermines' the authority of the Board and will result in difficulty in getting witnesses to testify in 'the future with-the inevitable result that the Board will'be hampered in its efforts to effectuate the policies of the Act. I can only view the Board's failure to assert jurisdiction herein as an abdication of its re- sponsibilities under the Act. - ' Though I do not believe the Board's assertion of jurisdiction in this matter should depend on whether'or not Respondent's operations sat- 'isfy the Board's present jurisdictional standards, I am convinced that such standards • are met. The record overwhelmingly demonstrates that Respondent' is not a separate enterprise, as the original decision in effect holds, in deciding that it does not meet' the jurisdictional -standards, but rather that it is an integral part of a multistate enter- prise, whose operations bring it within the Board's jurisdictional standards. - e Coca-Cola•Bottling Company of Stockton, 110 NLRB 840 Richland Laundry ct Dry Cleaners, 112 NLRB 294 MODERN LINEN '&' LAUNDRY SERVICE, INC: 169 -Louis Gordon, Respondent's- sole stockholder and president, is also ,the'' chief executive officer of- all other' Gordon-owned enterprises (at least 15 in number). Though Leo Silver,-an officer of Respondent and its general manager, makes all day-to-day operating decisions, Louis Gordon retains-control over all major`policy' decisions. All of Re- spondent's purchases are made by Madison; Textiles, Inc., a Gordon- owned ; enterprise, which, also makes all purchases, for, the other Gordon-owned enterprises. Madison Textiles purchases uniforms manufactured by,Finest Uniforms, Inc., another Gordon-owned enter: prise, for the use of Respondent. Respondent uses trucks owned by Gale Gordon Corporation, another Gordon-owned corporation, which bills Madison Textiles for the Respondent's use of the trucks. Re- spondent uses route sheets which bear the name of Modern Silver Linen Supply Co., still another Gordon-owned company, which car- ries 'on operations similar to those of Respondent, in New Jersey. Some of the linen used by Respondent bears property marks of other Gordon-owned corporations. The records of all Gordon-owned com- panies, including Respondent, are kept in the office of Solomon Perl- mutter. One of his employees who works on Respondent's books is paid by Modern Silver Linen Supply Co. Perlmutter presents all his bills to Madison Textiles, Inc. The above is an incomplete recital of the numerous companies and their functions, owned and controlled by the same interests which own and control Respondent. Nevertheless, it clearly establishes that Re- spondent's operations and the, operations of the other Gordon-owned companies are highly integrated. Even on the unrealistic assumption that Louis Gordon does not have a common control of labor relations policies, Board authority warrants treating all the corporations as a single enterprise. In Hot Shoppes, Inc. (not reported in printed vol- umes of Board Decisions and Orders), the Board found two corpora- tions to be a single employer, on the basis of common ownership, con- trol, and record keeping, even though no showing was made of inte- gration•'of operations or of common labor relations, policies' and in Youngstown Tent and Awning'Conapany 8 the Board found two cor- porations to constitute a single employer in view of the common owner- ship, common officers, and integration of operations, even though it was affirmatively shown that there was no common labor relations policy. At least consistent,with those decisions the dismissal of the complaint in this case should be reconsidered, and the jurisdictional issue be determined on the basis of the operations of all the Gordon- owned operations, as a single employer. 7Case No. 10-RC-2896 , issued -April 13, 1955, not reported in printed volumes of Board Decisions and Orders. 110 NLRB 835. -