Modern Linen & Laundy Service, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1955

114 N.L.R.B. 166 (N.L.R.B. 1955)

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. -