First Termite Control Co., Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1980

247 N.L.R.B. 684 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First Termite Control Co., Inc. and David White.
Case 32-CA-1685
January 29, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 29, 1979, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs2
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
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 Administrative Law Judge, as modified
below, and hereby orders that the Respondent, First
Termite Control Co., Inc., Oakland, California, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer David White, Donnie White, Stephen
Madison, Jimmy Rae Harris, and William Lytle
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of pay or other benefits in the manner set
forth in the remedy section."
I The General Counsel's motion to dismiss Respondent's exceptions is
hereby denied.
I In its exceptions and brief Respondent contends, inter alia, that valid
offers of reinstatement have been made to the discriminatees. We will leave
the resolution of this issue to the compliance stage of these proceedings.
We have modified the Administrative Law Judge's recommended Order to
include the full reinstatement language traditionally provided by the Board.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Oakland, California, on August 16, 1979, based
on charges filed April 3, 1979, and a complaint issued May
16, 1979, alleging that Respondent violated Section 8(a)(1)
of the National Labor Relations Act, as amended, by
discharging five of its employees because of their protected
concerted activities. The General Counsel and Respondent
have filed briefs.'
Upon the entire record in the case, including my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, is engaged in
providing termite and pest control services at its principal
place of business in Oakland, California. Its services are
performed on and at private residences. Some, approximate-
ly 5 percent, of the work comes to the Company from direct
calls by the homeowners. The bulk of the work, however,
comes from real estate agents calling the Company at the
time a sale is being made or contemplated. The Company is
paid for its work by the owner of the house, normally the
seller, when such a transaction is involved. During the past
year, the Company had gross revenues in excess of $500,000.
The General Counsel asks that jurisdiction be asserted
over Respondent on the basis of the Board's "retail"
standard, which requires annual gross revenues of $500,000
or more. Respondent maintains that it is a "nonretail"
business and therefore must meet a $50,000 outflow or
inflow test. Respondent also claims that the General Counsel
failed to demonstrate "legal jurisdiction" in that the General
Counsel failed to prove any interstate transactions.
As to the first point, I am satisfied that Respondent is a
retail enterprise. The selling of services, like the selling of
goods, to the ultimate individual consumers is a retail
function. The Board so held in Marty Levitt, 171 NLRB 739
(1968), pointing out that, although the selling of a service
rather than a commodity is not precisely either a retail or
nonretail function, to the extent that the service is sold "to
the ultimate consumer," rather than to "commercial enter-
prises," the Board's retail standard for the assertion of
discretionary jurisdiction shall apply. The fact that many or
most of the services performed by Respondent are made in
connection with contemplated sales of the residences in-
volved in no way changes the nature of the business-
supplying a service to the individual consumer. Nor does the
fact that the bulk of the "requests" for Respondent's services
is through real estate agents have any significance. The
realtors are merely the agents of the seller-the individual
consumer-for the purpose of getting the services as well as
for selling the house. But the service is done for the
' Respondent's "Hearing Brief' submitted to me at the hearing constitutes
its brief to me at this point by its request.
247 NLRB No. 106
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FIRST TERMITE CONTROL CO.
homeowner and paid for by the homeowner. That is the test
the Board and the courts have established.
I am also satisfied that the General Counsel has provided
ample basis for establishing "legal jurisdiction" over Re-
spondent. The General Counsel and Respondent stipulated
at the outset of the hearing that Respondent purchased
$20,000 worth of Douglas fir from Economy Lumber Co. for
the period May 16, 1978, through May 16, 1979; that
Economy Lumber Co. purchased $1,544,614 worth of
Douglas fir which was shipped to it, and that "for these
purchases, Economy Lumber Company has copies of bills of
ladings or freight bills provided by the shippers showing that
$769,958 of such shipments originated outside the State of
California. Because Economy Lumber comingled its Doug-
las fir purchases during the period ... it is not possible with
exactitude to determine whether any specific piece of
Douglas Fir Lumber, sold by Economy to First Termite
Control, originated out side the State of California."
Respondent's counsel then stated that the stipulation did not
include a concession by Respondent that the documents in
question were admissible into evidence. The General Coun-
sel then called Elaine Rountree, the bookkeeper for Econo-
my Lumber Co. and introduced through her copies of a
freight bill from Southern Pacific Railroad Company for
shipment of Lumber coming to Economy Lumber Co. The
bill stated on its face that the shipment originated in the
State of Washington.'
Respondent claims that the freight bills are "hearsay"
because they were made out by the railroad, not by
Economy Lumber Co., and therefore, even though they are
in the custody of Economy Lumber Co. they do not come
within the exception to the hearsay rule contained in the
Federal Rules of Evidence. Although there are instances
where this may be so, the instant situation is not one of
these. As the Court of Appeals for the Fifth Circuit recently
noted, "The law is clear that under circumstances which
demonstrate trustworthiness it is not necessary that the one
who kept the record, or even had supervision over their
preparation, testify." United States v. Flom, 558 F.2d 1179,
1182 (5th Cir. 1977). In that case the Fifth Circuit rejected a
claim of error in the receipt into evidence of invoices held by
one company, indentified by an official of that company,
even though the invoices were prepared and sent by another
company. That case is squarely opposite here. See also
United States v. Ullrich, 580 F.2d 765 at 772 (5th Cir. 1978).
Here, as in Ullrich, supra, the documents "have all the
indicia of trustworthiness that the federal rules require for
the admission of hearsay evidence." The aforesaid principle
is particularly apropos here, as the criteria for the establish-
ment of legal, as distinct from discretionary, jurisdiction are
so broad as to encompass any interstate transaction above de
minimis. Although Economy Lumber Co. comingles the
lumber it receives, with half of its purchases coming from
out of State, it is more than reasonable to infer that more
than a de minimis amount of the $20,000 worth of
Economy's lumber purchased by Respondent originated
outside the State of California. I find, accordingly, that
Respondent is an employer engaged in commerce within the
I It was stipulated, as noted above, that the total of such freight bills showed
S769,958 worth of the lumber coming from the State of Washington.
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction herein.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The events in this case occurred during a 2-day period
starting the evening of November 29, 1978, and ending the
morning of December 1, 1978. About 4:30 p.m. on Wednes-
day, April 29, Jan Gladstein, Respondent's bookkeeper and
the wife of its former president, Morris Gladstein (who
concededly had supervisory authority at that time), and
employee Tommy White had a heated discussion about the
latter's pay. Several other employees, including alleged
discriminatees Jimmy Rae Harris and David White, were
present at that time. Tommy White told Jan Gladstein that,
if he "was only going to get paid for one day," he would quit.
Robert Kuch, Respondent's president, was also present at
this time. When David White asked Jan Gladstein for how
many days she was going to pay Tommy, Kuch called out to
Tommy White, but Jan Gladstein then told Kuch that
"Tommy had quit and to leave it lie." The foregoing took
place in Respondent's office. Immediately thereafter a
number of employees and Robert Kuch were outside the
office near David White's truck. Donnie White said to Kuch
that Jan Gladstein had not treated Tommy White fairly, and
Kuch replied that he "knew that Jan was hassling Tommy."
Donnie White then said that "there would be people that
wouldn't show up at work the next day because of the
harassment towards Tommy, and Mr. Kuch said that he
didn't blame us for taking the time off."
That evening there was a meeting at Donnie White's
house. The employees at that meeting (including the five
alleged discriminatees, Tommy White, and two others)
agreed to stay off from work the next day in order to protest
the treatment of Tommy White. The five alleged discrimina-
tees followed through on this plan and did not report to
work on November 30. The next morning all of these
employees reported to work. Morris Gladstein, who was
asked by Kuch to come to the plant that day, asked to see
David White and Madison, the first two to arrive. Gladstein
asked each where he was the preceding day. When each said
that he was "looking for work," Gladstein said "keep on
looking." The next to arrive, Harris, responded to the same
question in the same manner. Gladstein said to Harris, "I
admire you for sticking up for your friend, but it's going to
cost you your job, you say you were looking for a job, keep
right on looking." Gladstein refused Harris' request to "talk
about it." Gladstein then came out of the office. Lytle and
Donnie White were there along with several other employ-
ees. Gladstein first addressed Lytle with, "if you're going to
stick up for that loud-mouthed fucking punk, let him
support you." He then asked Lytle where he had been, and
Lytle said that he too was looking for a job, whereupon
Gladstein told him, as he had the others, to "keep on
looking." Finally, Gladstein asked Donnie White if he was
looking for a job, and upon receiving an affirmative answer
he told White to keep on looking. White requested his tools,
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Gladstein said that he would get them that afternoon.
White indicated that he would charge the Company rent for
the tools. Gladstein then said to all the employees, "I want
you all off my property."
B. Discussion
The facts set forth above show plainly that the five
employees were, in fact, engaged in a concerted work
stoppage on November 30 to protest what they regarded as
harassment of fellow employee Tommy White by Supervisor
Jan Gladstein.'
Respondent asserts, however, that Respondent did not
know that the employees had been concertedly withholding
their services or engaging in a protest on November 30, that
even if it did the employees were not discharged, and even if
they were the reason therefor was not their protected
concerted activities.'
It is true that on Friday morning, December 1, no
employee referred to the Wednesday afternoon incident
between Tommy White and Jan Gladstein or mentioned
their meeting and the fact that they had all decided to stay
off from work to protest White's treatment. The fact, even
standing alone, that all employees were out on the same day
is however, more than sufficient to establish not only that
they were engaging in a "concerted activity" by staying out
on Thursday, but also that Morris Gladstein and Robert
Kuch at the very least should have known that the five were
acting in concert.
In any event, the conversations involving Respondent's
president, Robert Kuch, and the employees on Wednesday
evening immediately following the White-Gladstein incident
clearly indicated both the nature of the employees' concern
and the fact that they were contemplating a -day work
stoppage to support their position. Kuch agreed with
Donnie White at that time that Jan Gladstein had not been
fair in her treatment of Tommy White, and Kuch did not
deny Donnie White's testimony that he said "there would be
people that wouldn't show up at work the next day because
of the harassment toward Tommy," and that Kuch said "he
didn't blame us for taking the time off." In the course of the
Friday morning catechism of "looking for work" by employ-
ees and "keep on looking" by Morris Gladstein the latter
said to employee Harris (the third employee to be questioned
about his whereabouts the preceding day), "I admire you for
sticking up for your friend, but it's going to cost you your
job, you say you were looking for a job, keep right on
looking." When Harris asked Gladstein whether they could
discuss the problems, Gladstein said they could not. Finally,
according to Donnie White's uncontradicted testimony,
Gladstein, in speaking to the employees in the outer office,
' Whether White was, in fact, harassed by Jan Gladstein and the merits of
the employee's protest or lack of them are of no importance here. Employees
do not have to be correct or even have a tenable position to be protected in
engaging in a work stoppage concerning working conditions.
I With respect to employee Donald White, Respondent argues that he
specifically "quit" before anything was said to him, so that he could not be
considered as having been discriminatorily discharged even if, contrary to
Respondent's position, the other employees are so considered.
' Morris Gladstein testified, almost as an afterthought, that on Friday
morning he "heard a lot of commotion and a lot of loud talk, and maybe some
of it was vulgar. And I inquired of Donnie. who was protesting, what his story
was. And he told me: "I have no story; I've already quit. He was demanding
said, "If you're going to stick up for that loud-mouthed
fucking punk, let him support you."
In sum, there were clear indications of employee dissatis-
faction and the reason therefor on Wednesday evening and
an intimation that they would stay out in protest. And
Gladstein, based on what he said on Friday morning, clearly
understood that the employees had stayed out in protest and
had not, in fact, been "looking for a job." His "keep on
looking," in those circumstances, to the employees who had
reported for work constituted a discharge.
Finally, President Kuch testified on behalf of Respondent
at an unemployment hearing that the employees were
discharged, and that he knew why. He stated that Madison
was discharged by Gladstein "for failing to show up for
work with several other employees in what we determined
was a deliberate effort to undermine our operations for their
own game. We felt it would be injurious to our company to
put up with this. When these men came back, Mr. Madison
explained exactly what he said to Mr. Gladstein and the
discharge was affected. They were paid off that evening ...
they were not fired for looking for another job. Men are
always looking for another job. They were fired for deliber-
ately not showing up for work in unison on a particular day.
That was the day before they came in." Whether this
testimony at the unemployment hearing by the Company's
chief official should be binding on Respondent in this case,
and I think that it obviously should, here the testimony only
confirms what the facts themselves establish without that
testimony, that the employees were discharged for their
concerted work stoppage in protest of Jan Gladstein's
treatment of Tommy White. For all the foregoing reasons I
find that Respondent violated Section 8(a)(1) by discharging
the five employees who engaged in the work stoppage.'
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
By discharging employees David White, Donnie White,
Stephen Madison, Jimmy Rae Harris, and William Lytle on
December 1, 1978, because of their protected concerted
activities, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(I)
and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist from
its unfair labor practices and take certain affirmative action
designed to effectuate the policies of the Act, including
offering reinstatement to David White, Donnie White,
his tools." Donnie White had testified that Gladstein asked Johnny Walker,
Billy Lytle, and him whether they were looking for a job, each employee said
that he was, and Gladstein told each to keep on looking. At that time,
according to Donnie White, he asked Gladstein for his tools, and Gladstein
said that he could not have his tools and "to stay off his property." Donnie
White then told Gladstein that "he could rent them for the day, and at that
time he told me to get my tools." Donnie White came dressed for work that
morning. It is inconceivable that he had "already quit" at the time of his
conversation with Oladstein outside the latter's office. I conclude, therefore,
that Donnie White, like the four other employees, was discharged by
Gladstein because of his participation in the I -day work stoppage.
686
FIRST TERMITE CONTROL CO.
Stephen Madison, Jimmy Rae Harris, and William Lytle,
with backpay computed as provided in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest thereon as computed in
Florida Steel Corp., 231 NLRB 651 (1977), and Iris
Plumbing d Heating Co.. 138 NLRB 716 (1962).'
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, First Termite Control Co., Inc., Oak-
land, California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for engaging in concerted activities for mutual aid
and protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer David White, Donnie White, Stephen Madison,
Jimmy Rae Harris, and William Lytle immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, and make them
whole for any loss of pay and other benefits in the manner
set forth in the remedy section.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Oakland, California,
copies of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent immedi-
ately 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 by Respondent to insure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 32, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
* Counsel for the General Counsel, in a supplemental brief, seeks a remedial
interest rate of 9 percent per annum This is a matter lying within the
discretion of the Board to which I refer the request.
' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 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 this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against you for engaging in work stoppages or other
concerted activities for mutual aid and protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you with regard to your rights
under Section 7 of the Act.
WE WILL offer David White, Donnie White, Stephen
Madison, Jimmy Rae Harris, and William Lytle imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
or other benefits since their discharge, plus interest.
FIRST TERMITE CONTROL CO., INC.
687