Copesan Services, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1970

181 N.L.R.B. 749 (N.L.R.B. 1970)

WIL-KIL PEST CONTROL CO. 749
Wil-Kil Pest Control Company, a Division of
Copesan Services , Inc. and Teamsters "General"
Local Union No. 200 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 30-CA-1062
March 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 30, 1969, Trial Examiner Paul
Bisgyer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended,' by refusing to bargain with Teamsters
"General" Local Union No 200, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, as the
duly certified representative of the Respondent's
employees in an appropriate unit; by unilaterally changing
its longstanding practice or unwritten rule, permitting its
servicemen to drive company automobiles used in
servicing their routes to and from their homes, without
first notifying the Union and affording it an opportunity
to discuss the contemplated action; by discriminatorily
depriving employee Willard Jacobs of his previously
enjoyed privilege of driving his company car to and from
home at no cost to him because of his union activity; and
by unlawfully interrogating Jacobs concerning employee
union interest and activity. At the close of the hearing, the
parties waived oral argument but thereafter, the General
Counsel and the Respondent submitted briefs in support
of their respective positions The Union filed a letter
concurring in the position taken by the General Counsel
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a division of Copesan Services Inc , a
New Jersey corporation, is engaged in the sale of pest and
termite control services in Wisconsin and Michigan. The
only facility involved in this proceeding is the one located
in Milwaukee, Wisconsin, where the Respondent's
principal office is also situated. The Respondent' s annual
gross volume of business exceeds $500,000, of which
services valued in excess of $50,000 are furnished to firms
located in Wisconsin whose annual sales to customers
located outside the State exceeded $50,000
It is admitted, and I find, that the Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Wil-Kil Pest
Control Company, a Division of Copesan Services,
Inc., its officers, agents, successors, and assigns,
shall take the actions set forth in the Trial
Examiner's Recommended Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard on October 1, 1969,
in Milwaukee, Wisconsin, on the complaint of the General
Counsel issued on September 3, 1969,2 as subsequently
amended, and the answer of Wil-Kil Pest Control
Company, a division of Copesan Services, Inc., herein
called the Respondent or Company. Presented for decision
are the questions whether the Respondent violated Section
II. THE LABOR ORGANIZATION INVOLVED
There is no question that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
'Name appears as amended at the hearing
The complaint is based on original and amended charges filed on July
18 and 30, 1969, respectively , copies of which were duly served on the
Respondent by registered mail on the dates of fdmg
'Section 8(a)(l) makes it an unfair labor practice for an employer "to
in terfere with , restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent , Section 7, provides that
"[elmployees shall have the right to self-organization , to form , join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection "
Section 8 (a)(3), with certain qualifications not material herein, prohibits
an employer "by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization . "
Section 8(a)(5) makes it an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his employees" in
an appropriate unit
181 NLRB No. 119
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The events preceding the Union's certification
Because of dissatisfaction with the wages and benefits
they were receiving, the Respondent's servicemen
requested an opportunity to discuss the situation with
management Therefore, on or about February 3, 1969,1 at
the regular monthly meeting the Company holds with its
servicemen, these employees voiced their complaints to
Manager Russ Glassow. Although declaring that it was
virtually impossible to grant higher wages or improved
benefits for financial reasons, Glassow suggested that they
submit concrete demands Thereupon, the servicemen met
privately and, after some discussion among themselves,
Willard Jacobs, one of the group, put their demands into
written form and presented the document to Glassow.
Upon receiving it, Glassow cautioned the employees,
"Don't rock the boat . . You guys got your cars and
things like this. . You get a lot of benefits and you
don't want to lose any of them " The meeting broke up
with the employees asking for an answer by February 17
and stating that otherwise they would strike. Glassow
indicated that he would see what could be done.
On or about February 10, Glassow told Jacobs that he
needed more time to submit the servicemen's demands to
the Company's "Board " Jacobs agreed to speak to the
employees about extending the time to March 1 In the
course of their conversation Glassow commented that the
employees were "asking a lot" and again cautioned that,
"You've got to be real careful. They will pull the cars in "
Jacobs understood these remarks to mean, and I find was
so intended, that the privilege the servicemen were then
enjoying of driving company cars to and from their homes
free of charge might be withdrawn. Following this
conversation, Jacobs persuaded the servicemen to grant
the extension and he accordingly informed Glassow.
About March 1, Glassow called Jacobs into his office
and advised him that the Respondent was willing to give
the servicemen greater insurance benefits in case of illness
and paid holidays When Jacobs inquired whether this was
all the Respondent was offering, Glassow answered, "Yes,
and if you don't like it, you can draw your time." Jacobs
expressed resentment over this remark The substance of
this conversation was later communicated by Jacobs to a
number of the servicemen
Although unhappy over the rejection of their demands,
the servicemen did nothing except to voice their "gripes"
to Glassow at their regular staff meeting on April 1.
However, immediately thereafter the employees discussed
among themselves the next step to take At the suggestion
of Jacobs that a Teamsters local could best represent their
interests, the servicemen went to the Union's offices to
enlist their assistance. There they met Business
Representative Charles Scott who had them sign union
authorization cards An organizational meeting was
subsequently held, which Jacobs attended
On April 1, the Union sought recognition from the
Respondent as the servicemen's exclusive bargaining
representative and the next day filed a petition for
representation (Case 30-RC-1033). When Jacobs reported
at the facility on April 8,5 he was summoned to General
Manager Werner Schmidt's office In answer to Schmidt's
inquiry why the employees had gone to the Union, Jacobs
'All dates refer to 1969
explained that the employees could get nowhere with the
Company, that they resented being told on March 1 that,
if they did not like what the Company offered them, they
could draw their time, that they needed a wage increase in
view of the rise in the cost of living, and that he favored
the Union and advised the employees that the best thing
they could do under the circumstances was to affiliate
with the Union. Schmidt then asked Jacobs why the
servicemen had not come to him to discuss the situation.
Jacobs replied that they had given that idea some thought
but did not believe that they had anything to gain, adding
that it was too late to withdraw from the Union. Probably
at this point Schmidt commented that he"figured that . .
[the employees] made the wrong move " In the course of
the conversation, Schmidt also disavowed making any
threat regarding "the cars or anything" else. This led into
a general discussion of automobiles, the mileage on
Jacobs' car and Jacobs' house which was then under
construction in Grafton, Wisconsin. Upon leaving the
office, Jacobs repeated that a union was needed at the
Respondent's establishment and that he was for it.
On April 18, Jacobs attended the representation hearing
and served as an observer for the Union in the election
held on June 2 pursuant to the Decision and Direction of
Election issued by the Regional Director on May 2. In
that Decision, the Regional Director, rejecting the
Respondent's contention that the unit should include the
employees at the Respondent's four locations, found the
following unit appropriate for collective bargaining
purposes: '
All servicemen and warehousemen of the Employer at
its Milwaukee, Wisconsin, facility; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act, as amended
The Respondent's Request for Review of the Regional
Director's Decision was denied on June 2
2. The Union' s certification , the Respondent 's refusal
to recognize
On June 10, following a Board-conducted election,
which the Union won by a vote of 8 to 6, the Union was
certified as the exclusive representative of the employees
in the above-described unit Accordingly, on July 14,
Union Representative Charles Scott orally requested of
General Manager Schmidt that arrangements be made for
the commencement of contract negotiations. By letter
dated July 15, Schmidt declined the request, advising the
Union that the Respondent had "decided to seek a court
review of the NLRB decision which segmented the
Milwaukee office . for collective bargaining purposes,"
instead of including the employees at its other branches in
a single unit In response, Scott wrote the Respondent a
letter on July 21 in which he proposed that they
nevertheless bargain with each other and that any
agreement reached would be cancelled and their
bargaining relationship terminated should the court
sustain the Company's position that the bargaining unit
was not appropriate. The Respondent was not amenable
to this proposal and informed the Union on July 28 that it
saw no reason to bargain in a unit that improperly
excluded its employees at its other locations
At the hearing, the Respondent reiterated its refusal to
bargain on the ground that the Board's unit determination
'Regular servicemen are required to report to the office once a week A
group meeting is usually held the first working day m the month
WIL-KIL PEST CONTROL CO
was erroneous It also indicated that, in support of its
position, it was relying on the record made in the
representation proceeding and that it did not intend to
offer any new or additional evidence relating to the
question
3 Unilateral promulgation of rules relating to the use
of company cars
The Respondent employs 11 servicemen at its
Milwaukee facility Nine of them have regular routes
where they service their respective customers on a monthly
basis The remaining two, called special men, do not have
specific territories to service but report every day at the
office to receive their daily assignments For at least 7
years until July 14, it was the Company's practice or
unwritten rule that regular servicemen, after completing
their rounds at night, could, at no cost to themselves,
drive their assigned company cars to their homes and the
following morning drive directly to their routes to service
their customers This privilege was enjoyed regardless of
the location of the servicemen's homes and applied to the
special men as well 6
Consistent with its refusal to recognize the Union as the
representative of its Milwaukee servicemen the
Respondent promulgated written rules relating to the use
of company vehicles, without first notifying or discussing
the matter with the Union A copy of these rules was
mailed to each serviceman and provides in pertinent part
RULES ON COMPANY VEHICLES
1 Any employee living within his route may drive
the company vehicle home in lieu of returning to the
office each night
2 The company may, at its discretion, allow an
employee, who does not live within his route, to use the
car to go back and forth from his home
3 Any employee living outside of Milwaukee county
and not within his route shall return the car to the
company parking lot each night and pick it up every
morning
Note All of the above shall apply only on changes
of residence in the future Due to a condition existing
until this time, it will not effect (sic) any of the
employees under their present residence
The only serviceman adversely affected by this rule is
Jacobs who on August 29 moved out of Milwaukee
County to his newly constructed home in Grafton,
Ozaukee County, Wisconsin ' As a result of changing his
residence, Jacobs is required under the new rules to park
his assigned car on the company parking lot at night after
servicing his route and to pick it up in the morning to
service his customers' Concededly, at the time the
changes were made General Manager Schmidt had been
well aware for at least 6 months that Jacobs was building
a house in Grafton which he contemplated occupying upon
its completion
This privilege was once taken away from a serviceman who failed to
take care of his assigned car Concededly Jacobs did not lose his car
privilege for this reason
'Prior to moving Jacobs lived in the territory he serviced in Milwaukee
County Although another regular serviceman Joseph Kofler lives outside
Milwaukee County he is allowed to drive a company car to and from his
home at no cost to him Since the published rules by their terms operate
prospectively the restriction does not apply to Kofler who has been living
outside the county for some 20 years However the Respondent indicates
B Concluding Findings
751
I With respect to the refusal to bargain
As indicated above, the Respondent refuses to recognize
and bargain with the Union in order to test the validity of
the certification It urges that the unit in which the Union
was certified as the employees' exclusive representative is
inappropriate and consequently it is under no obligation to
deal with the Union As the unit issue was fully litigated
in the representation proceeding and the refusal to bargain
is not based on newly discovered or previously unavailable
evidence, I find that the certified unit is appropriate for
the purpose of collective bargaining and that, therefore,
the Respondent's admitted refusal to recognize and
bargain with the Union violated Section 8(a)(5) and (1) of
the Act
2 With respect to the unilateral change in the
company car practice
There can be no question that the privilege long enjoyed
by servicemen to use company cars to drive to and from
home at no expense to themselves, regardless of the
location of their residence, is a valuable term and
condition of employment Indeed, the Respondent has
been willing to permit Jacobs, the only serviceman
adversely affected by the newly announced rules, to
continue to use his company car if he paid for the
difference in mileage between his home and the office and
his home and route In view of my determination that the
Respondent was legally obligated to recognize and deal
with the Union, as the servicemen's exclusive bargaining
representative, I find that its failure to notify and discuss
with the Union the contemplated change in the then
prevailing practice concerning the use of company vehicles
and the consequent loss of the privilege by Jacobs further
violated Section 8(a)(5) and (1) of the Act, irrespective of
the Respondent's overall good or bad faith
The Respondent, nevertheless, argues that the rules in
question do not reflect a modification of policies but
rather are the written formulation of rules, which "simply
clarified the permissible limits of the then existing
company policy ' The record, however, does not
substantiate this contention On the contrary, it is
conceded that employee Kofler has for years been
enjoying this privilege, despite his residence outside
Milwaukee County In fact, the rules themselves indirectly
acknowledge the prior absence of a residence restriction
on the right to use company cars by noting that the
restriction "shall apply only on changes of residence in the
future " Moreover, General Manager Schmidt gave as one
of the reasons for the difference in treatment accorded
Jacobs and Kofler the fact that the rule was prospective
In view of the foregoing, I conclude that the
Respondent breached its bargaining obligation when it
unilaterally changed its practice regarding the use of
company cars
that Kofler was permitted to retain the privilege because the distance from
his home to the center of his route is only approximately one and a half
miles greater than to the office while the distance from Jacobs home to his
route is about 10 miles greater than to the office
'However enforcement of the published rules is being held in abeyance
pending decision in this case In addition the Respondent has proposed to
Jacobs to reinstate the privilege on payment of a mileage charge from his
home to County Line Road
IN L R B v Benne Katz 369 U S 736
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 With respect to discrimination
Apart from unilateral action, the General Counsel
contends that the published rules respecting the use of
company vehicles were adopted in reprisal for employee
Jacobs' leadership in the union movement and that, by
thus depriving him of his previously enjoyed privilege of
using his assigned company car to drive to and from his
home after he moved to Grafton, the Respondent
discriminated against him in violation of Section 8(a)(3)
and (1) of the Act The Respondent, on the other hand,
insists that the promulgation of these rules was dictated
solely by sound business considerations I find the General
Counsel's position supported by the credible evidence.
As indicated above, the only serviceman who lost a
valuable fringe benefit as a result of the institution of the
new rules was Jacobs,," who was responsible for enlisting
the Union's assistance to secure higher wages and
improved working conditions for the employees
Undeniably, General Manager Schmidt was well aware of
Jacobs' union interest and activity, his attendance at the
representation hearing, and his participation in the Board
election as a union observer, as he was aware for some 6
months that Jacobs had planned to move into his new
home in Grafton upon its completion. In this context, the
timing of the announcement appears to me to be more
than pure happenstance, as the Respondent urges.
Nothing unusual occurred on that occasion to require a
sudden change in a longstanding practice except the
Union's request for contract negotiations following its
certification The Respondent's asserted economic reasons
for its action neither satisfactorily explain the timing nor
can they withstand scrutiny Thus, the Respondent argues
that the restriction imposed by the rules on the use of
company cars was prompted by rumors over the preceding
6 or 8 months that a number of servicemen, in addition to
Jacobs, were contemplating moving outside Milwaukee
County and that, in order to avoid incurring greater
operating costs if employees living outside the county were
permitted to continue to drive their company cars to and
from their homes, it withdrew the privilege from
employees in that category However, General Manager
Schmidt could only name one such employee whom he
had heard had such plans and that employee subsequently
quit the Respondent's employ. Moreover, apart from the
fact that residence outside the county would not
necessarily cause substantial increases in mileage expense
to the Respondent," the Respondent neither attempted to
verify the rumors nor advised the employees in advance
that they risked loss of a.valuable fringe benefit if they
moved out of the county, as.would reasonably be expected
from an employer not guided by ulterior motives.
Another reason advanced by' the Respondent for the
restriction on the use of company cars is that its prior
practice placed it at a disadvantage with its competitors
"The restriction placed on servicemen in the use of company cars to
drive to and from thei r homes located outside the county is not applied to
special men who have no fixed routes and are subject to call night , day and
weekends The distinction thus made between servicemen and special men
appears to be reasonable and I do not rely on this difference in treatment
in finding discrimination against Jacobs
"As indicated above, the Respondent permits employee Kofler to use his
company car to drive home and to his route, although he lives outside the
county, on the asserted ground that the difference in distance between his
home and the company facility where he would otherwise be required to
park the company car and the distance between his home and route is
minunal Significantly, the restriction in the rules is not qualified by any
mileage differential
who do not allow its employees to drive company cars to
their homes if located out of town. In fact, the
Respondent points out, its main competitor even charges
its employees who reside in town $20 a month for use of
company cars for such purposes. However, this ostensible
disadvantage apparently existed for some time without
troubling the Respondent too much until the Union was
certified as the employees' bargaining representative In-
any event, the Respondent could not have been seriously
concerned over the expense since the restriction applied
only to one employee who happened to be the union
leader
Equally unpersuasive is the Respondent's further reason,
for the new rules that they were needed to enable it to
furnish better maintenance of its automobiles However,
not only was no evidence presented that the Respondent
was experiencing any difficulty in servicing its vehicles
before it made the rule changes, but, if there were a
maintenance problem in that respect, only Jacobs'
company car would be affected. Besides, it is difficult to
believe that maintenance arrangements made for cars
assigned to other servicemen could not also be feasibly
made for Jacobs' car without completely withdrawing his
car privilege.' 2
Similarly, I find incredible the Respondent's assertion
that the restriction in question was designed to make
readily available at its parking lot the car of a serviceman
residing outside the county who might be unable to work
on a particular day. Here, too, not only was it not shown
that this was a troublesome or frequent problem, but also
the restriction applied solely to Jacobs and not to other
servicemen whose homes are located a substantial distance
from the company office, albeit within the county.
Significantly, it is not claimed that Jacobs' absences from
work created the problem ostensibly sought to be
remedied by the new rules " Finally, casting further,
serious doubt that the alleged economic reasons motivated
the adoption of the published rules is the fact that there is
no evidence that the Respondent even attempted to
explain its action to the servicemen in those terms. This, it
appears to me, would be the natural thing that an
employer, prompted by legitimate considerations, would
do
Certainly, an employer, who is under no statutory duty
to bargain with the representative of his employees, may
grant or withdraw employee benefits for any reason, good,
bad or indifferent, provided it is not to discourage union
membership or activity. However, as noted above, the
Respondent's professed business reasons for the restriction
on the use of company cars, which deprived Jacobs of a
fringe benefit, just do not ring true. On the contrary, I
find that the only rational explanation for the new rules
was the Respondent's desire to penalize Jacobs for the
prominent role he played in unionizing the facility and
thereby to undermine the employees' support of the
Union This is confirmed by Manager Glassow's warning
to the servicemen that they risked loss of their car
privilege as a result of their concerted demands for
"Admittedly, Jacobs' car privilege was not withdrawn because of his
failure to give proper care and attention to his assigned vehicle
"Although in his opening statement at the hearing the Respondent's
counsel indicated that another reason for the announced rules was to
prevent the company cars from being used for personal purposes, no
evidence was adduced to show that any serviceman, including Jacobs, was
guilty of abusing the car privilege Moreover, here, too, the rules reached
only Jacobs
WIL-KIL PEST CONTROL CO
increased wages and improved working condition s'° and by
General Manager Schmidt's subsequent ominous comment
to Jacobs that the employees "made the wrong move" in
affiliating with the Union, after Schmidt received the
Union's initial request for recognition, questioned Jacobs
why the employees had gone to the Union to represent
them, and was informed by Jacobs that he had advised the
employees to do it because of their inability to get
anywhere with the Company on their own. The fact that
the Respondent did not discriminate against other union
adherents does not exculpate it for the discrimination
practiced against Jacobs who served as an object lesson
As one court observed, "a discriminatory motive,
otherwise established, is not disproved by an employer's
proof that it did not . [discriminate against] all union
adherents."' S
In sum , I find that the Respondent, by depriving Jacobs
of his previously enjoyed car privilege, discriminated
against him to discourage union membership and activity
in violation of Section 8(a)(3) and (1) of the Act
4 With respect to interrogation
As previously discussed, General Manager Schmidt
summoned Jacobs to his office after the Union requested
recognition and filed a representation petition; questioned
him why the employees had gone to the Union before
discussing their problems and demands with him; and
remarked that he "figured that . . [they] made the wrong
move." While under other circumstances, this incident
might not have coercive implications warranting a
remedial order, I find that, when viewed in light of the
Respondent's discriminatory treatment of Jacobs, its
refusal to recognize and bargain with the employees'
certified representative, and its unilateral action,
Schmidt's interrogation amounted to interference,
restraint and coercion prohibited by Section 8(a)(1) of the
Act This finding is not precluded, even though, as argued
by the Respondent, Jacobs "continued as a leading
proponent of the union cause," and Schmidt's conduct did
not result in the employees' rejection of the Union as their
bargaining representative
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
its free flow
"The record does not support the Respondent's statement that Glassow's
remarks concerning the possible loss of the use of company cars were
limited to the contingency of a strike which would require the employees to
leave the cars with the Company during their strike
"Nachman Corporation v N L R B, 337 F 2d 421, 424 (C A 7), enfg
146 NLRB 23, see also N L R B v W C Nabors, 196 F 2d 272, 276
(C A 5), enfg 89 NLRB 536, cert denied 344 U S 865 General Manager
Schmidt testified that the Respondent 's Board of Directors originally
decided at the end of June or beginning of July to terminate the then
existing practice for economic reasons and to require all employees to park
their cars overnight on the Company 's lot but that its decision was not
implemented because the Respondent's counsel advised that the Company
might be charged with unfair labor practices He further test ified that the
rules here in question were promulgated instead I find that narrowing the
rules to deprive only Jacobs of a benefit does not negative the
discrimination committed against hun, as I have found above
V. THE REMEDY
753
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found
and in any like or related conduct and take certain
affirmative action designed to effectuate the policies of the
Act
To remedy the Respondent ' s unlawful refusal to fulfill
its statutory obligation , I recommend that it be directed to
bargain on request with the Union , as the exclusive
representative of its employees in the appropriate unit
described above and , if any understanding is reached,
embody such understanding in a signed agreement In
addition , it is recommended that the Respondent be
directed specifically to rescind the Rules on Company
Vehicles which it had unilaterally and discriminatorily
instituted and to refrain from terminating or altering any
employee benefits or other working conditions , without
first notifying the Union and affording it an opportunity
to bargain over any contemplated change To prevent the
Respondent from reaping the benefits of its unilateral and
discriminatory action and in order to restore the status
quo ante, it is further recommended , in accordance with
the Board ' s customary policy, that the Respondent be
directed to reimburse Jacobs for the loss of moneys, if
any, suffered in consequence of such action, together with
interest at 6 percent per year The posting of a notice is
also recommended
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 All servicemen and warehousemen of the Respondent
at its Milwaukee, Wisconsin, facility, excluding all other
employees, office clerical' employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing since on or about July 15, 1969, to
recognize and bargain collectively with the Union as the
exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(5) of the Act
6. By unilaterally instituting Rules on Company
Vehicles which changed the previously enjoyed conditions
relating to the use of company vehicles by servicemen in
driving to and from home at no cost to them, without first
notifying the Union and affording it an opportunity to
bargain over this matter, the Respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(5) of the Act
7. By instituting Rules on Company Vehicles to deprive
serviceman Willard Jacobs of his previously enjoyed
privilege to use his company automobile to drive to and
from his residence at no cost to him, the Respondent has
discriminated against Jacobs in regard to a term and
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment to discourage membership in,
and activities on behalf of, the Union and thereby has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
8. By the foregoing conduct and by coercively
questioning an employee concerning the employees' union
interests and activities, the Respondent has interfered
with, restrained and coerced employees in the exercise of
their statutory rights within the meaning of Section 8(a)(1)
of the Act
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that the Respondent, Wil-Kil Pest
Control Company, A Division of Copesan Services, Inc.,
Milwaukee, Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Teamsters "General" Local Union No 200, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
the Company's employees in the unit described below,
concerning rates of pay, wages, hours of employment, and
other conditions of employment:
All servicemen and warehousemen of the Respondent at
the Respondent's Milwaukee, Wisconsin, facility,
excluding all other employees, office clerical employees,
guards and supervisors as defined in the Act.
(b) Making unilateral changes in its former practice
relating to its employees' use of company vehicles to drive
to and from their homes or in any other term or condition
of employment, without first notifying and bargaining
with the above-named Union as the employees' exclusive
bargaining representative.
(c) Discouraging membership in the above-named
Union or any other labor organization by withdrawing
benefits from employees or in any other manner
discriminating against them in regard to any term or
condition of employment
(d) Coercively interrogating employees concerning
union membership, sympathies or activities
(e) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Upon request, bargain collectively with the
above-named Union, as the exclusive representative of its
employees in the above-described unit , concerning rates of
pay, wages, hours of employment and other conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Rescind Rules on Company Vehicles which the
Respondent had unilaterally promulgated and reinstate its
prior practice respecting the employees' use of company
vehicles to drive to and from their homes at no cost to
them.
(c) Reimburse employee Willard Jacobs for any loss of
moneys suffered in consequence of the Respondent's
withdrawal of his previously enjoyed privilege to drive his
assigned automobile to and from home, as set forth in the
section of this Decision entitled "The Remedy "
(d) Post at its facility in Milwaukee, Wisconsin, copies
of the attached notice marked "Appendix "16 Copies of
said notice on forms provided by the Regional Director
for Region 30, shall, after having been duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30 in
writing, within 20 days from the date of the Trial
Examiner's Decision, as to what steps the Respondent has
taken to comply herewith.i7
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read "Notify the Regional Director for
Region 30, in writing , within 10 days from the date of this order as to
what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
The Act gives all employees the following rights:
To organize themselves;
To form, loin or support unions;
To bargain as a group through a representative
they choose; and
To act together for collective bargaining or other
mutual aid or protection.
WE WILL NOT refuse to recognize and bargain
collectively with Teamsters "General" Local Union No.
200, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the Company's
employees in the unit described below, concerning rates
of pay, wages, hours of employment and other
conditions of employment
All servicemen and warehousemen of the Respondent
at its Milwaukee, Wisconsin, facility, excluding all
other employees, office clerical employees, guards
and supervisors as defined in the Act
WE WILL NOT make unilateral changes in the former
practice relating to our employees' use of company
vehicles to drive to and from home at no cost to them
or in any other term or condition of employment,
without first notifying and bargaining with the
above-named Union, as the employees' exclusive
bargaining representative
WE WILL NOT discourage membership in the
above-named Union or in any other labor organization
by withdrawing benefits from our employees or in any
WIL-KIL PEST CONTROL CO. 755
other manner discriminating against them in regard to
any term or condition of employment.
WE WILL NOT coercively question our employees
concerning union membership , sympathies or activities.
WE WILL NOT in any like or related manner interfere
with , restrain or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL bargain collectively, upon request , with the
above-named Union, as the exclusive representative of
our employees in the above -described unit concerning
rates of pay , wages, hours of employment , and other
conditions of employment and, if an understanding is
reached , we will embody such understanding in a signed
agreement.
WE WILL rescind our Rules on Company Vehicles,
which we had unilaterally promulgated , and we will
reinstate our prior practice respecting the employees'
use of company vehicles to drive to and from home at
no expense to them
WE WILL reimburse Willard Jacobs for any loss of
moneys suffered in consequence of our withdrawal of
his previously enjoyed privilege to drive his company
car to and from home at no cost to him.
Date: By.
WIL-KIL PEST CONTROL
COMPANY, A DIVISION OF
COPESAN SERVICES, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board's Office,
Second Floor Commerce Building, 744 North Fourth
Street, Milwaukee , Wisconsin 53203 , Telephone
414-272-8600, Extension 3861