Foothill Sierra Pest Control, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 22, 2006

32-CA-022419 (N.L.R.B. Nov. 22, 2006)

JD(SF)-62-06
Sonora, CA
.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

FOOTHILL SIERRA PEST
CONTROL, INC.

and Cases 32-CA-22419

GENERAL TEAMSTERS
LOCAL 439

Gary M. Connaughton, Atty., Counsel for the General Counsel,
Oakland, California.
Peter Nordstrom, Foothill Sierra Pest Control, Office Manager,
Sonora, California.

DECISION

I. Statement of the Case

LANA H. PARKE, Administrative Law Judge. This matter was tried in Sonora, California
on September 20 and 21, 2006 upon a Complaint and Notice of Hearing (the Complaint) issued
June 30, 20061 by the Regional Director of Region 32 of the National Labor Relations Board
(the Board) based upon charges filed by General Teamsters Local 439 (the Union.) The
Complaint alleges that Foothill Sierra Pest Control, Inc. (the Respondent) violated Sections
8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging its employee Kirtlye
Wheeler because she engaged in union or other protected concerted activities. The
Respondent essentially denied all allegations of unlawful conduct.

II. Issue

Did the Respondent violate Sections 8(a)(1) and (3) of the Act by discharging employee
Kirtlye Wheeler because she engaged in union or other concerted, protected activities?

III. Jurisdiction

The Respondent, a California corporation with an office and place of business located in
Sonora, California (the facility) has been engaged in sale of weed and pest control services to
residential and business customers.2 During the 12-month period preceding issuance of the
Complaint, the Respondent, in the course and conduct of its business operations, derived gross

1 All dates herein are 2005 unless otherwise specified.
2 Where not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, and/or unchallenged credible evidence.

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revenues in excess of $500,000 and purchased and received goods valued in excess of $5,000,
which originated outside the State of California. The Respondent admits, and I find, it has at all
relevant times been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of
the Act.

IV. The Facts

During the period relevant to this matter, Jim Tassano (Mr. Tassano) was president and
co-owner of the Respondent with David Lapape (Mr. Lapape), among others, serving as
supervisor. The Respondent employed 10 to 12 individuals as applicators, i.e. workers who
sprayed herbicides and pesticides on customers’ properties. One of the Respondent’s
applicators was Kirtlye Wheeler (Ms. Wheeler), hired as an applicator/trainee on November 20,
2004.3 Ms. Wheeler received her applicator license in 2004 and passed the required California
state examination in February. From November 2004 to May, Ms. Wheeler worked for the
Respondent as a weed control applicator.4

On March 21, Ms. Wheeler sprayed sterilant chemicals on extensive ornamental
landscape borders at the residential property of the Respondent’s customer, Joseph Cygal, (the
Cygal job or the Cygal property). Thereafter Mr. Cygal complained that the spraying had killed
plants in his borders. On about April 19, Mr. Lapape, accompanied by Ms. Wheeler, inspected
the Cygal property and concluded that Ms. Wheeler had applied chemicals contraindicated for
use on ornamental plants, resulting in the destruction of numerous plants.5 While at the Cygal
property, Mr. Lapape contacted Mr. Tassano by cell phone, informed him that Ms. Wheeler had
sprayed sterilants in Mr. Cygal’s flower beds, and described the damage. Ms. Wheeler told
Mr. Lapape that she would do whatever it took to rectify the situation, including resigning or
paying for the damaged plants. Mr. Lapape told her not to worry about it, saying that such
mistakes happened to everyone. When Mr. Lapape returned to the facility, he once again
described the damage at the Cygal property to Mr. Tassano.

In May, Amador California County Department of Agriculture commenced an
investigation of the Respondent (the county investigation) prompted in large part by the
problems at the Cygal job. In late May, the Respondent received the estimate of damages
stemming from the Cygal job: $2,229.00. In a conversation with Mr. Tassano, Ms. Wheeler
offered to pay the damages and/or to resign, but Mr. Tassano declined her offer.

When the weed season ended in May, the Respondent transferred Ms. Wheeler, along
with most of the weed control applicators, to pest control. Mr. Lapape urged Mr. Tassano to
assign Ms. Wheeler permanently to pest control or to fire her. Mr. Tassano refused, saying he
wanted to assign Ms. Wheeler back to weed control when the weed season resumed because

3 During the initial period of her employment with The Respondent, Ms. Wheeler went by
the name Kirtlye Ferrari.
4 The Respondent sprays predominantly for weeds during the months of October/November
to April/May, called the weed season. Spraying done in the intervening months, called the pest
season, mainly addresses pests.
5 Sterilants are not to be used in crop settings such as ornamental areas; there is no dispute
that Ms. Wheeler applied sterilants to the ornamental borders at the Cygal property. It was later
determined that approximately 80 ornamental plants had been destroyed.

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he thought she could learn from her mistakes. On June 10, the Respondent paid the full
appraised amount of damages ($2,229.00) to Joseph Cygal in settlement of his claim.6
Although, during the course of the Cygal job problem, Mr. Lapape informed Ms. Wheeler that
she had used the wrong products in the wrong places and reviewed chemical labels with her,
the Respondent neither disciplined nor requested reimbursement from Ms. Wheeler for her
mistake on the Cygal job.7

On October 12, the Amador County Department of Agriculture issued its investigatory
findings, notifying the Respondent, inter alia, that Ms. Wheeler8 had applied herbicide chemicals
at the Cygal job that were not labeled for use in ornamental landscape sites. The county
proposed to assess the Respondent a fine of $2,400 and notified the Respondent of its right to a
hearing on the proposed action, which the Respondent elected. When Mr. Tassano informed
Ms. Wheeler of the proposed fine, she again offered to resign and/or pay the fine. Although the
Respondent had never before been fined for misuse of chemicals, Mr. Tassano told
Ms. Wheeler that neither action was necessary and that everything was fine.

In October, weed control season having commenced, Mr. Tassano told Ms. Wheeler that
he wanted her to return to weed control. Ms. Wheeler said she was not comfortable with
returning to weed control because of what had happened. Although Mr. Tassano said he could
really use Ms. Wheeler on the weed control team, he agreed to her remaining on pest control.

In November, the Respondent announced an alteration in its employee compensation
procedures, essentially changing commissions from weekly to monthly imbursement. Believing
the change significantly decreased employees’ wages, Ms. Wheeler contacted the Union.
During the latter half of November and early December, Ms. Wheeler met with union
representatives and thereafter discussed potential union representation with about five other
employees.

On November 30, Mr. Tassano and Mr. Lapape attended a hearing conducted by the
Amador County Department of Agriculture regarding the county investigation. At the hearing,
the county presented the Respondent with a binder that contained the evidence collected by the
county during its investigation. The binder included color photographs of the damaged Cygal
property. The photographs portrayed expanses of ornamental borders in which dead foliage
and desiccated stalks predominated. Mr. Tassano did not look at the photographs until the
following day. When he did, he was shocked by the enormity of the damage done at the Cygal
job. At some time thereafter, Mr. Tassano reviewed other damages for which Ms. Wheeler had
been responsible: the Terry Jewell job on February 29, the Rich Patane job on March 21, the
Kristi Jarvis job on April 5, and the Al Dunkel job on April 13, the Jay De Oliveri job on April 21,
and the Glen Dooley job on April 25.9 According to Mr. Tassano, he also considered that in late

6 The Respondent had previously had to pay damages on jobs performed by other employees,
including one of Dylan Smith’s two years previously, the cost of which was about $2,000.
7 Mr. Lapape testified his discussion with Ms. Wheeler constituted “discipline.” To
Mr. Tassano discipline was “training.” He worked under the assumption that employees were
trying to do their best and when shown how to do a task correctly, they would comply. Under
that definition, Mr. Tassano considered that Mr. Lapape had “disciplined” Ms. Wheeler. I find
that the Respondent did not discipline Ms. Wheeler, as the term is commonly understood, i.e., in
any way that impacted employment duration or compensation.
8 Ms. Wheeler is referred to in the report as “Kay Ferrari.”
9 The Respondent’s average applicator had no more than one to two damage claims per year.

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November or early December he had had to “[get] on [Ms. Wheeler’s] case” about spraying
pesticide on grape vines, which was a serious illegality even though the customer had
requested it.10

On about December 9, Mr. Tassano and his wife, Ilene (Mrs. Tassano), learned that two
staff group photos that hung in the main employee room at the facility had been defaced: on
each photo a large black “X” had been drawn through Mrs. Tassano’s face.11 In the days
following, Mr. Tassano called a couple of employees into his office to ask if they had defaced
the photos; he did not ask Ms. Wheeler, and no one suggested she was responsible.

Mr. Lapape became aware that the Respondent’s employees were engaging in union
organizational activity when he overheard seven or eight employees openly discussing the
Union. He overheard the employees say that Ms. Wheeler had started things with the Union,
and at some point, he learned there was going to be a union meeting at Ms. Wheeler’s house.12
Based on what he heard, Mr. Lapape believed that Ms. Wheeler was “driving” the organizational
effort. Shortly thereafter, Mr. Lapape told Mr. Tassano he had overheard employees talking
about the Union. Mr. Tassano told Mr. Lapape he had already heard something about that.
Mr. Tassano testified that his memory was “cloudy” as to who had talked to him about the
Union. With regard to Ms. Wheeler’s activity, Mr. Tassano said that prior to her discharge, he
was only aware that she was one of the employees interested in the Union but that he knew
nothing about a union meeting to be held at her home until given that information during the
Board’s investigation. Rather, Mr. Tassano said, he believed Steven Deaver was leading the
union organizational movement, as he had heard a union meeting was going to be held at his
house. I cannot accept Mr. Tassano’s testimony. In the absence of testimony to the contrary, it
is reasonable to infer that Mr. Lapape fully recounted to Mr. Tassano what he had overheard
about employee interest in the Union, and a full account must have included his knowledge of
Ms. Wheeler’s involvement, including the meeting to be held at her home.

Notwithstanding absence of any evidence impugning her, at some point Mr. Tassano
came to believe that Ms. Wheeler was responsible for the defacement of his wife in the group
photographs.13 On the evening of December 14, the unresolved photograph defacement

10 According to Mr. Tassano, Ms. Wheeler told him of the incident, and employee James
Martin testified that one to two months before she was fired, Ms. Wheeler told him the “boss”
was annoyed because she had sprayed grapevines. Ms. Wheeler denied both the incident and
any recounting of it. I accept the testimony of James Martin who seemed forthright and reliable.
11 Mrs. Tassano recalled the incident occurred in early November, but the sequence of
undisputed events suggests that Mr. Tassano’s timing is more accurate.
12 Ms. Wheeler was the only employee to host a union meeting in her home. The meeting,
which was held on December 13 and attended by five employees, had originally been planned
for Steven Deaver’s home but had to be relocated shortly before the meeting date. It is not clear
from Mr. Lapape’s testimony whether he learned that the meeting was yet to be held or that it
had been held, but, since he knew of it before Ms. Wheeler’s discharge, it is reasonable to infer
that Mr. Lapape learned of the union activity and the meeting shortly before December 14.
13 Mr. Tassano speculated that Ms. Wheeler had defaced the photographs because of residual
resentment over the past discharge of her son, because the offense seemed more likely to have
been committed by a woman than a man, and because Ms. Wheeler had, deviously in his view,
attributed responsibility to Dylan Smith whom Mr. Tassano considered irreproachable.
Ms. Wheeler denied any culpability in the defacement.

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incident precipitated a domestic crisis between Mr. and Mrs. Tassano. Mrs. Tassano became
particularly upset at having been targeted and her distress was compounded the fact that only
one employee had thanked her for her efforts in preparing food and gifts for a company
Christmas party. Mr. Tassano was also upset and felt he had to take some action. Mr. Tassano
testified that while he did not fire Ms. Wheeler because of the defacement, the circumstances
“got the blood to boil a little bit higher than it was.”

On December 15, Mr. Tassano’s ire continued to build. At an employee meeting held
that morning (which Ms. Wheeler, on an excused absence, did not attend), Mr. Tassano
chastised the staff for their ingratitude to Mrs. Tassano and circulated the photographs of the
Cygal job for employees to see. Later that afternoon, Mr. Tassano told Ms. Wheeler he was
firing her. When Ms. Wheeler asked the reason, Mr. Tassano told her he had just seen the
pictures from the Cygal job, and he could not trust her to spray anymore.

Ms. Wheeler asked, “The job I did almost a year ago?”

Mr. Tassano said, “Yeah.”

Ms. Wheeler told Mr. Tassano that he was “some piece of work” and that she hoped he
could live with himself and his lack of integrity. Mr. Tassano gave Ms. Wheeler her final check
and told her to clear out her truck and locker, which she did.

According to Mr. Tassano, he fired Ms. Wheeler because he could no longer trust her
performance as an applicator, a decision that was spurred by his belief that she had defaced his
wife’s image in a group photograph.14

V. Discussion

The question of whether the Respondent violated Section 8(a)(3) in terminating
Ms. Wheeler rests on its motivation. The Board has established an analytical framework for
deciding cases turning on employer motivation. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To prove an employee
was discharged in violation of Section 8(a)(3), the General Counsel must first persuade, by a
preponderance of the evidence, that an employee's protected conduct was a motivating factor in
the employer's decision. If the General Counsel makes such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same action would have taken place
even in the absence of the protected conduct." Wright Line, at 1089. The burden shifts only if
the General Counsel establishes that protected conduct was a "substantial or motivating factor
in the employer's decision." Budrovich Contracting Co., 331 NLRB 1333 (2000). Put another
way, "the General Counsel must establish that the employees' protected conduct was, in fact, a
motivating factor in the [employer's] decision." Webco Industries, 334 NLRB 608, fn. 3 (2001).

The elements of discriminatory motivation are union activity, employer knowledge, and
employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). The General Counsel has
established these elements herein. First, the General Counsel demonstrated that Ms. Wheeler

14 Although Respondent presented evidence of additional examples of Ms. Wheeler’s
deficiencies, i.e., frequently overflowing her water tank and a November refusal by customer,
Shelley Gee, to accept Ms. Wheeler’s services, the Cygal job was clearly the sine qua non of
Mr. Tassano’s discharge decision.

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engaged in union activity by contacting the Union, talking to other employees about the Union,
and hosting a union/employee meeting at her house. Second, the General Counsel proved
knowledge through Mr. Tassano and Mr. Lapape’s acknowledgment that they knew of
employees’ union activities and Mr. Lapape’s admission that he believed Ms. Wheeler was
“driving” the organizational effort. Although Mr. Tassano denied knowing that Ms. Wheeler had
a catalyzing role in the union activity, I have not accepted his denial, and Mr. Lapape’s
knowledge may be imputed to the Respondent. State Plaza, Inc., 347 NLRB No. 70 (2006).15
Third, the General Counsel has presented convincing, albeit circumstantial, evidence of the
Respondent’s antiunion animus. Inferences of animus may be drawn from circumstantial
evidence as well as from direct evidence. Flowers Baking Co., 240 NLRB 870, 871 (1979);
Washington Nursing Home, 321 NLRB 366, 375 (1996). The Board has drawn inferences of
unlawful motivation from such circumstantial evidence as the pretextuality of an employer’s
stated reason for discharge. See e.g., State Plaza, Inc., supra; Whitesville Mill Service Co., 307
NLRB 937 (1992); Fluor Daniel, Inc., 304 NLRB 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992);
principle affirmed in Diamond Electric Manufacturing Corporation, 346 NLRB No. 83 (2006);
Tidewater Construction Corp., 341 NLRB 456, 458 (2004)(inferring animus from pretext).

The Respondent essentially based Ms. Wheeler’s discharge on her herbicide
misapplication at the Cygal property and on Mr. Tassano’s belief that she defaced his wife’s
photographs.16 Unquestionably, Ms. Wheeler caused catastrophic and costly damage to the
Cygal property for which the Respondent could justifiably have fired her. Ms. Wheeler caused
the damage on March 21; by mid-April, Mr. Lapape had detailed the damages to Mr. Tassano,
by late May, Mr. Tassano knew the damage estimate was $2,229, by mid-June, Mr. Tessano
had compensated Mr. Cygal $2,229 for the damages, and by mid October, Mr. Tassano was
aware the Amador County Department of Agriculture proposed to fine the Respondent $2,400
for the misapplication. On none of those occasions did the Respondent seek to discharge or
even to discipline Ms. Wheeler. On the contrary, Mr. Tassano pardoned the blunder, declined
Ms. Wheeler’s offers of reimbursement, and in October urged her to resume herbicide spraying.
It was not until Mr. Tassano learned of Ms. Wheeler’s union activity in December that the
pardonable became unpardonable. While Mr. Tassano ascribed his volte face to having, for the
first time, seen photographs of the damaged Cygal property, I cannot accept that. Certainly the
photographs dramatized the damage, revealing sered and barren expanses where decorative
vegetation had once apparently flourished. However, Mr. Tassano was no novice at the pest
control business, and he must have been generally, if not specifically, aware of what kind of
damages a $2,229 bill entailed. Moreover, Mr. Tassano saw the Cygal job photographs on
December 1, but said nothing to Ms. Wheeler about them for two weeks even though, by his
account, his blood was boiling. Timing is a significant factor in ascertaining motive. See, e.g.
LB&B Associates, Inc., 346 NLRB No. 92 slip op. 2 (2005); Desert Toyota, at slip op. 3; Detroit
Paneling Systems, 330 NLRB 1170 (2000). Given the months-long gap between damage and
discipline herein, the only reasonable inference to be drawn is that something other than
Ms. Wheeler’s long-past spraying debacle brought Mr. Tassano’s blood to the boil.
Ms. Wheeler’s damage to the Cygal property having been long resolved, the only notable

15 The Board has also inferred knowledge when the reasons for discharge are so baseless,
unreasonable, or contrived as to denote unlawful motivation. Montgomery Ward, 316 NLRB
1248, 1253 (1995). Such an inference is warranted here.
16 Although the Respondent also argued that other misapplications and work errors
contributed to the discharge decision, it is clear that the Respondent focused on the Cygal
property damage and the photograph defacement as deciding factors in the discharge.

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circumstances at the Respondent’s facility at the time of Ms. Wheeler’s discharge were the
defacement of Mrs. Tassano’s photographs and Ms. Wheeler’s union activity.

Turning to Mr. Tassano’s suspicion that Ms. Wheeler defaced Mrs. Tassano’s
photographs, which hardened his resolve to discharge her, Mr. Tassano does not suggest that
any actual evidence supported his belief. The lack of such proof does not, however, decide the
matter. “Absent a showing of anti-union motivation, an employer may discharge an employee
for a good reason, a bad reason, or no reason at all without running afoul of the labor laws.”
Neptco, Inc., 346 NLRB No. 6, slip op 2 (2005).17 However, the Respondent “must show that it
had a reasonable belief that the employee committed the offense, and that it acted on that belief
when it discharged [her]." McKesson Drug Co., 337 NLRB 935, 936 fn. 7 (2002); see also
Midnight Rose Hotel & Casino, Inc., 343 NRB No. 107, slip op. 3 (2004) (employer must
establish, at a minimum, that it had reasonable belief of employee misconduct); Yuker
Construction, 335 NLRB 1072 (2001) (discharge based on mistaken belief does not constitute
unfair labor practice, as employer may discharge an employee for any reason, whether or not it
is just, so long as it is not for protected activity); GHR Energy, 249 NLRB 1011, 1012-1013
(1989) (demonstrating reasonable, good-faith belief that employees had engaged in misconduct
sufficient). The question, therefore, is whether Mr. Tassano believed in good faith that
Ms. Wheeler had defaced the photographs. I cannot find that he held any such good-faith
belief. Although Mr. Tassano questioned a couple of employees about the vandalism, no one
cast suspicion on Ms. Wheeler, and Mr. Tassano never broached the subject to her. Even
when he fired Ms. Wheeler, although assertedly his suspicions made his “blood boil a little bit
higher,” Mr. Tassano said nothing about the defaced photographs. The only reasonable
inference to be drawn from his silence on the subject is that Mr. Tassano did not sincerely
believe Ms. Wheeler was responsible. The evidence thus establishes that the Respondent’s
stated reasons for discharging Ms. Wheeler are pretextual.

Since neither the herbicide misapplication at the Cygal property nor the photograph
defacement provoked Ms. Wheeler’s discharge, process of elimination justifies an inference that
the only remaining circumstance, Ms. Wheeler’s union activity, prompted the Respondent’s
action. See State Plaza, Inc., supra; Construction Products, Inc., 346 NLRB No. 60 (2006);
Grant Prideco, L.P., 337 NLRB 99 (2001). The pretextuality of the Respondent’s charges
against Ms. Wheeler support an inference that animus toward Ms. Wheeler’s protected activities
was the motivating factor in the Respondent’s decision to discharge her. The General Counsel
has, therefore, met his Wright Line burden, and the Respondent has not established
persuasively by a preponderance18 of the evidence that it would have (not just could have)
discharged Ms. Wheeler even in the absence of her union activity. Desert Toyota, 346 NLRB
No. 3, slip op. 2-3 (2005); Webco Industries, 334 NLRB 608, fn. 3 (2001); Avondale Industries,
Inc., 329 NLRB 1064,1066 (1999); T&J Trucking Co., 316 NLRB 771 (1995). Accordingly, I find
that by discharging Ms. Wheeler on December 15, the Respondent violated Section 8(a)(3) and
(1) of the Act.

17 Citing Midwest Regional Joint Board v. NLRB, 564 F.2d 434 (D.C. Cir. 1977).
18 A “preponderance” of evidence means that the proffered evidence must be sufficient to
permit the conclusion that the proposed finding is more probable than not. McCormick Evidence,
at 676-677 (1st ed. 1954).

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Conclusions of Law

1. The Respondent is an employer engaged in commerce and in a business affecting
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. The Respondent violated Sections 8(a)(3) and (1) of the Act on December 15, 2005 by
discharging employee Kirtlye Wheeler.
4. The unfair labor practices set forth above affect commerce within the meaning of Sections
8(a)(3) and (1) and Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged employee Kirtlye Wheeler on
December 15, 2005, it must offer her reinstatement insofar as it has not already done so and
make her whole for any loss of earnings and other benefits, computed on a quarterly basis from
date of suspension and/or discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended19

ORDER

The Respondent, Foothill Sierra Pest Control, Inc., its officers, agents, successors, and
assigns, shall

1. Cease and desist from

(a) Discharging any employee for engaging in union or other concerted protected
activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, insofar as it has not already done so,
offer full reinstatement to Kirtlye Wheeler to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.

19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.

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(b) Make Kirtlye Wheeler whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section
of the decision.
(c) Expunge from its files any reference to the unlawful discharge of Kirtlye Wheeler and
thereafter notify her in writing that this has been done and that the discharge will not
be used against her in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Sonora, California
copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 32 after being signed by the
Respondent's authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 15, 2005.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

Dated: Washington, DC, November 22, 2006.

Lana H. Parke
Administrative Law Judge

20 If this Order is enforced by a Judgment of the 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.”
JD(SF)-62-06

APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT discharge any of you for supporting General Teamsters Local 439 or any other
union.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
any of you in the exercise of the rights listed above.

WE WILL offer full reinstatement to Kirtlye Wheeler to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
WE WILL make Kirtlye Wheeler whole for any loss of earnings and other benefits resulting from
her discharge.
WE WILL remove from our files any reference to the unlawful discharge of Kirtlye Wheeler, and
WE WILL notify her in writing that this has been done and that the discharge will not be used
against her in any way.

FOOTHILL SIERRA PEST CONTROL, INC.

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5 p.m.
510-637-3300.
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
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 510-637-3270.