The Kleinhans Co.

National Labor Relations Board - Board Decisions

Feb 28, 1956

115 N.L.R.B. 627 (N.L.R.B. 1956)

THE KLEINHANS COMPANY 627
in my'dissenting opinion in the earlier Orkin "The Rat Man," Incor-
porated case." The contrary conclusion of my colleagues in that case
resulted not from an absence of evidence showing the integrated na-
ture of the operations of the Orkin corporations, but rather from the
failure realistically to evaluate the factors of common ownership,
common officers and directors, and the fact that all of the corporations
were engaged in the same type of business, which conclusively
showed that those corporations were in fact a single integrated enter-
prise. The absence of a centralized control of labor relations and the
absence of employee interchange relied on by my colleagues in the
earlier Orkin case and in such cases as Modern Linen ct Laundry
Service, Inc.," and Safeway Transit Company 11 as a basis for their
refusal to find "single employer" are factors which are more appro-
priately considered in determining the appropriate unit. To rely
exclusively on such factors in determining the jurisdictional question
of whether a "single employer" exists is to confuse unit and jurisdic-
tional questions to the detriment of employees seeking the benefits of
collective bargaining.
Accordingly, because the 29 Orkin corporations are commonly
owned and have the same officers and directors who exercise a com-
mon control over the policies of all corporations, I find that they con-
stitute an integrated multistate enterprise and that it will effectuate
the policies of the Act to assert jurisdiction herein.
9 112 NLRB 762.
10 110 NLRB 1305, 114 NLRB 166.
11 111 NLRB 1359.
The Kleinhans Company and Retail Clerks International Associ-
ation, Local 212, AFL-CIO, Petitioner . Case No. 3-RC-1604.
February 28,1956
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to the Board's Decision and Direction of Election, dated
November 17, 1955,1 an election was conducted under the direction and
supervision of the Regional Director for the Third Region. Upon con-
clusion of the election the parties were furnished a tally of ballots
which shows that of approximately 79 eligible voters, 76 cast valid
ballots of which 40 were for the Petitioner, 36 were cast against the
Petitioner, and 2 voted challenged ballots. The challenged ballots are
not sufficient in number to affect the results of the election.
I Not reported in printed volumes of Board Decisions and Orders.
115 NLRB No. 96.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 12, 1955, the Employer filed five timely objections to
conduct affecting the results of the election.' Because the Regional
Director construed the first 4 objections to be essentially a motion for
reconsideration of the Board's original decision, he without further
action referred the 4 objections to the Board for disposition. We
agree with the Regional Director's action concerning these objections.
Except for the offer of newly discovered evidence contained in the
Employer's supplement to its motion, the grounds upon which both
the motion and the first 4 objections are based may essentially be re-
duced to 1 ground, i. e., that the Board erred in its original decision by
excluding the service employees from the unit.
The Employer's Offer of Newly Discovered Evidence
This offer of evidence consists of statements by three service em-
ployees that during the organizational campaign the Petitioner at-
tempted to solicit their membership in the Union. The Employer
contends that the Board should reopen the record, admit the evidence,
and upon such evidence find the unit inappropriate on the ground that
the unit was based on the extent to which the Petitioner had organized
the employees. In view of the facts in this case, we find no merit in
the contention that the record be reopened for further evidence. As-
suming arguendo that the evidence offered is newly discovered, such
evidence is inunaterial, as we have already, in our original decision,
found that the unit possesses the basic qualities of appropriateness.
Accordingly, the motion to reopen is denied.
As regards to the rest of the motion bearing on the question of the
unit determination, together with the first four objections which are
treated as part of that motion, these items contain nothing which has
not already been considered by the Board in its original decision in this
case. Accordingly, we find no merit in the above motion and the four
objections, which are therefore overruled.
Objection 5 remains for consideration. In accordance with the
Board's Rules and Regulations, the Regional Director conducted an
investigation of this objection and on December 13, 1955, issued and
served upon the parties his report on objections. In this report, the
Regional Director found that the objection was without merit and
recommended that the objection be overruled. The Employer filed
exceptions to the Regional Director's finding and recommendation.
Objection 5 is essentially that the field examiner of the Board struck
the names of the servicegirls from the list of eligible voters submitted
On the same date the Employer filed with the Board a motion in this case entitled
"Motion to reopen record and redeteimine the unit" Thereafter. on January 5, 1956, the
Employer filed a supplement to its motion. As the motion, except for its supplement,
essentially contains the same grounds upon which the first 4 of the Employer 's 5 objec-
tions to conduct of election is based, we shall hereinafter consider both the original motion
and the 4 objections together.
CARL BURWICK AND COMPANY 629
by the Employer and they were therefore disfranchised. The Re-
gional Director's investigation shows that, when the eligibility list was
submitted to the Board's Regional Office and was examined by the
Petitioner in accordance with the customary procedure, the field
examiner's attention was called to the fact that the list included serv-
ice employees which were specifically excluded by the Board from the
unit. The field examiner therefore struck the names of the service
employees from the eligibility list. There is no contention that em-
ployees other than service employees were stricken from the list of
eligible voters. Because we specifically excluded service employees in
our original decision, which we have also reaffirmed herein, we find
that the objection is wholly without merit. Accordingly, we adopt the
Regional Director's recommendation and overrule the objection.
In view of the foregoing, and as it appears that the Petitioner has
received a majority of the valid ballots cast, we shall certify it as the
exclusive bargaining representative of the Employer's employees in
the appropriate unit.
[The Board certified Retail Clerks, International Association, Local
212, AFL-CIO, as the designated collective-bargaining representative
of the employees of the Employer at its Buffalo, New York, store, in
the unit heretofore found appropriate.]
Hyman and Israel Burwick, d/b/a Carl Burwick and Company
and Alpheus S. Mascroft, Jr.
Hyman and Israel Burwick , d/b/a Carl Burwick and Company
and American Federation of Grain Millers , AFL-CIO. Cases
Nos. 1-CA-1869 and 1-CA-1926. February 29, 1956.
DECISION AND ORDER
On November 23, 1955, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices al-
leged in the complaint to be in violation of Section 8 (a) (1) and
(2) of the Act, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain unfair labor
practices alleged in the complaint to be in violation of Section 8
(a) (1), (3), and (4) of the Act. Thereafter, Alpheus S. Mascroft,
Jr., the Charging Party in Case No. 1-CA-1869, filed a brief and
exceptions with respect to the Trial Examiner's finding that the
Respondents had not reduced his hours of employment in violation
of Section 8 (a) (3) of the Act. The Respondents filed a reply brief.
No other exceptions were filed.
115 NLRB No. 94.