Orkin Termite Co., Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1948

79 N.L.R.B. 935 (N.L.R.B. 1948)

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.