Orkin Exterminating Co.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 404 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orkin Exterminating Co., Inc. and Tony G. Allen.
Case 10-CA-17560
30 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 17 March 1983 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
Contrary to the judge, our dissenting colleague
would dismiss the instant complaint because, in his
opinion, Supervisor Tony Allen was not unlawfully
constructively discharged, but instead quit his em-
ployment "prematurely." A reading of the credited
testimony reveals our colleague to be in error in
his conclusion.
Allen told Branch Manager Joe Jones he (Allen)
had spoken with the National Labor Relations
Board, and that he wanted to testify on behalf of
an employee who had previously been discharged
by the Respondent. Shortly thereafter, Jones told
Allen that he had spoken "to his people," and "the
word . . . is that management will not testify, and
you will not testify for anybody as long as you're
employed by [the Respondent]." As incisively
noted by the judge, Jones had previously told
Allen that the employee Allen would testify for
had been discharged for union activity, and also
that Jones hated unions.3 In these circumstances,
we think that any reasonable person hearing the
words spoken by Jones would logically believe
that his tenure would be terminated if he chose to
give testimony to the Board. As did the judge, we
conclude that Jones gave an ultimatum to Allen
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We have modified the judge's recommended Order so that it con-
forms to the violation found herein. We have also modified the notice to
conform to the Order.
3 Jones also had earlier indicated to Allen that Allen's credibility as a
sales manager had been ruined, and that he would probably be "hurt
down the road" because of his union activities.
270 NLRB No. 75
that Allen could not testify to the Board if he re-
mained employed by the Respondent.4 When Allen
decided that he would testify to this Agency, the
Respondent left Allen no choice but to resign. Ac-
cordingly, we find in agreement with the judge
that the Respondent constructively discharged
Allen in violation of the Act.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Orkin Exterminating Co., Inc., Gaines-
ville, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph l(a).
"(a) Interfering with, restraining, or coercing
nonsupervisory employees in the exercise of their
statutory rights by discharging supervisory person-
nel for giving testimony before the National Labor
Relations Board, or for expressing their intention to
do so."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER HUNTER, dissenting.
Assuming, arguendo, that a constructive dis-
charge of a supervisor under circumstances similar
to those of the instant case might properly be
found violative of the National Labor Relations
Act, I would not find that the Respondent con-
structively discharged its supervisor Tony Allen in
violation of the Act. Rather, I conclude that
Allen's resignation cannot be attributed to any un-
lawful action by the Respondent, and thus that
Allen's resignation was a voluntary, albeit prema-
ture, act which was not a constructive discharge.
The Respondent indicated to Allen that it did
not want any members of its management to testify
to the National Labor Relations Board. Instead of
testifying to the Board, or further challenging the
Respondent about its intentions, Allen chose
abruptly to resign. It is evident that the Respond-
ent did not change the content of Allen's job nor
4 Cf Martin Arsham Sewing Co., 244 NLRB 918 (1979).
5 Inasmuch as the Respondent's conduct independently violated Sec.
8(a)(I) of the Act, we find it unnecessary to consider whether the Re-
spondent's conduct also violated Sec. 8(a)(4 ). See Better Monkey Grip Co.,
115 NLRB 1170 (1956), enfd. 243 F.2d 836 (5th Cir. 1957); Oil City Brass
Works, 147 NLRB 627 (1964), enfd. 357 F.2d 466 (5th Cir. 1966); H. H.
Robertson Co., 263 NLRB 1344 (1982). In agreeing with the judge's con-
clusions, we find it unnecessary to rely on his comment that, even if
Allen did not mention precisely that he intended to testify before the
Board, such knowledge could be imputed to the Respondent. We also do
not rely on his further implication that, even if Jones' testimony were
credited, there might be a violation of the Act.
Member Dennis concurs in the finding of a violation based on the par-
ticular facts presented here.
404
ORKIN EXTERMINATING CO.
did it inflict physical or emotional distress on him.
Indeed, the Respondent took no affirmative action
to deprive Allen of any rights that he may have
previously enjoyed. Allen was therefore never
placed in any jeopardy of job loss or threatened
with more onerous working conditions by the Re-
spondent. Thus, there were no immediate threats
which justified Allen's precipitous response to the
Respondent's admonition. Rather, he simply re-
signed prematurely in anticipation that something
might happen to him. I find that such a resignation
does not amount to a constructive discharge and,
accordingly, I would dismiss the complaint alleging
that the Respondent constructively discharged him.
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with, restrain, or coerce
nonsupervisory employees in the exercise of their
statutory rights by discharging supervisory person-
nel for testifying before the National Labor Rela-
tions Board, or for expressing their intention to do
so.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reinstate Tony G. Allen to his former
position at the time of his discharge, or to a sub-
stantially equivalent position if his former position
no longer exists, and WE WILL remove from his
personnel records all reference to his discharge and
send him a notice in writing thereof that this termi-
nation will not be used against him in any way.
WE WILL make whole Tony G. Allen for any
loss of earnings or other benefits sustained by him
by reason of our discharge of him with interest on
moneys due.
ORKIN EXTERMINATING Co., INC.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on August 18 and Sep-
tember 24, 1982, at Gainesville, Georgia, pursuant to a
complaint issued by the Acting Regional Director on
December 2, 1981, and is based on a charge filed on Oc-
tober 21, 1981, by Tony G. Allen, an individual. This
case had previously been consolidated with Case 10-
CA-17523. However, pursuant to a settlement agree-
ment, I granted a motion to sever Case 10-CA-17523
from Case 10-CA-17560 at the hearing on August 18,
1982. The remaining complaint in Case 10-CA-17560 al-
leges that Orkin Exterminating Co., Inc. (the Respond-
ent) constructively discharged Tony G. Allen, a supervi-
sor, "because of his intention to seek the assistance of the
National Labor Relations Board," and thereby violated
Section 8(a)(4) and (1) of the National Labor Relations
Act (the Act). The Respondent, by its answer filed on
December 7, 1981, has denied having violated the Act.
On the entire record in this case, including my obser-
vations of the demeanor of the witnesses, and after due
consideration of the briefs filed by counsel for General
Counsel and the Respondent, I make the following
FINDINGS OF FACT AND ANALYSIS'
I. JURISDICTION
A. The Business of the Respondent
The complaint alleges, the Respondent admitted in its
answer, and I find that "the Respondent is, and has been
at all times material herein, a Georgia corporation with
an office and place of business located at Gainesville,
Georgia, where it is engaged in providing pest and ter-
mite control services to residential and commercial cus-
tomers," that the "Respondent, during the past calendar
year [prior to the filing of the complaint], which period
is representative of all times material herein, purchased
and received at its Gainesville, Georgia, facility material
and supplies valued in excess of $50,000 directly from
suppliers located outside the State of Georgia," and that
the Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
B. The Labor Organization
It was stipulated by the parties at the hearing and I
find that the Georgia State Council of Carpenters (the
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
I The following includes a composite of the testmrion) of the witnesses,
which testimony is credited except as specific credihilit) resolutiotns are
hereinafter made
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICE
In September 1981, an organization campaign was
commenced by the Union among the Respondent's em-
ployees. Tony G. Allen, the Charging Party herein, was
then employed as a sales manager by the Respondent at
its Gainesville branch office. He had been initially em-
ployed by the Respondent in August 1976 as a sale man-
ager. Allen had the responsibility for working with sales-
men and training new salesmen. 2 Allen testified that he
became aware of the Union's campaign in September
1981, and that he signed a union authorization card and
attended a union meeting which was attended by certain
of the Respondent's salesmen (all but one of the salesmen
who reported to Allen), including salesman Charles
Bowen and union representative Jones (Ernest Joseph
Jones). 3
Allen testified he attended a meeting about 5 p.m. with
Branch Manager Jones and District Manager Berlin at
which Berlin announced to Allen that salesman Charles
Bowen would be discharged. When Allen inquired as to
the reason for Bowen's discharge, Berlin referred to an
incident a month prior thereto at which Regional Vice
President Wilson had attended a sales meeting and had
directed an inquiry to Bowen to which Bowen had re-
torted with a vulgar remark, and said that Bowen was to
be terminated for this reason as it was feared Bowen
would act similarly with customers. Allen protested that
he had worked with Bowen "on many occasions" and
that Bowen had never been involved in any difficulties
with customers. Berlin said Allen "couldn't sell him on
keeping Charles [Bowen] on board." Allen was then in-
structed by Berlin and Jones to call Bowen into the
office, and Bowen was then terminated by Berlin.4
Allen testified further that on the same day following
Bowen's discharge he was present during a conversation
between Joe Gable (the Respondent's service manager)
and Branch Manager Jones wherein Gable inquired of
Jones, "What about the rest of those cards?" and Jones
replied, "What cards?" Gable then said, "The Union au-
thorization cards that Charles [Bowen] had said 70 or 80
percent of the people had signed." Allen testified Jones
then replied, "I don't know what they're going to do
about it yet," and then asked Allen, "If I knew anything
about the Union," to which Allen replied, "No." Allen
testified Jones then pulled out of his pocket a "piece of
literature of the things that an employer can't do to dis-
criminate against employees for engaging in union activi-
ties," and Jones then said, "This is the reason Charles
[Bowen] was fired, is because he was trying to organize
a Union." Allen testified he then told Jones that he
(Allen) had signed a union card and Jones told him that
he (Jones) could not talk to Allen "about it anymore."
2 The parties stipulated at the hearing and I find that Allen, the Re-
spondent's Gainesville branch manager Joe Jones, and the Respondent's
north Georgia district manager John Berlin were all supervisors as de-
fined in Sec. 2(11) of the Act.
3 Union representative Jones testified at the hearing as did Branch
Manager Jones. Union representative Jones was employed as an organiz-
er for the Union and conducted the Union's campaign to organize the
Respondent's employees.
4 Bowen was discharged on October 6, 1981.
Allen testified the following day he was told by
Branch Manager Jones that he could not straddle the
fence concerning the Union, that his credibility as a sales
manager had probably been ruined, and that "[i]t would
probably hurt me down the road." He testified that
Jones also told him he hated unions, and he (Jones) was
going to eliminate the "gas bonus program."
Allen testified that the following day he telephoned
union representative Jones from his home and repeated
what Branch Manager Jones had told him, and that
union representative Jones warned him to be careful as
he was not certain whether Allen would be protected
under the law. Union representative Jones recommended
Allen call the National Labor Relations Board. Allen tes-
tified that he called the Board and talked with a lady,
and that he told her of the circumstances of the dis-
charge of Bowen and that "I wanted to voluntarily come
out and testify on behalf of Charles Bowen and the Na-
tional Labor Relations Board."
Allen testified further that the next morning he met
with Branch Manager Jones in the Gainesville office and
told Jones that he had talked with representatives of the
National Labor Relations Board and that he wanted to
testify on behalf of Bowen, and Jones replied he did not
know "whether I could testify to the National Labor Re-
lations Board." Allen testified Jones questioned him
"about the union authorization cards, where they came
from, how were they to be returned, if I had signed one,
and I told him no again; and he wanted to know if Jim
Hames was involved and I told him I really didn't
know." Allen testified Jones also "said they had made an
example of Charles Bowen by his firing because of the
union activities." Allen then left to go to Lanier Petrole-
um to buy gas and, when he arrived, there was a tele-
phone call waiting for him from Branch Manager Jones,
who told him to wait there as he needed to talk to Allen.
When Jones arrived, he told Allen, "He had talked to his
people, and the word from his people is that manage-
ment will not testify, and you will not testify for any-
body as long as you're employed by Orkin." Allen asked
the reason for this and Jones told him, "That's all he
knew to tell me." Allen started to leave in his automo-
bile, but then returned to the service station and told
Jones "[t]hat he could tell his people that I would testify
to the National Labor Relations Board, and that I was
resigning my position if they wouldn't allow me to testi-
fy." Two days later, Allen returned to the Respondent's
premises and saw Berlin and Branch Manager Jones and
asked to be returned to work, but Jones refused to do so
and said there was "no way" that Allen would be reem-
ployed.
The Respondent's counsel questioned Allen on cross-
examination. Allen was unable to identify the lady he
had spoken with at the National Labor Relations Board
or to place the time of day when he placed the telephone
call. Allen had obtained the Board office telephone
number from union representative Jones.
Union representative Jones testified he initiated the
Union's campaign among the Respondent's employees in
September 1981. Jones testified he was informed by
Allen that Allen intended to testify on behalf of Bowen,
406
ORKIN EXTERMINATING CO.
and he (Jones) told Allen that he (Jones) could offer
Allen no protection and that Allen "would have to con-
tact the Board to see what protection was available to
him." Jones testified he gave Allen the number of a
board agent with whom he (Jones) had previously dis-
cussed another matter involving the Union's campaign.
Bowen testified that he and eight other employees
were involved in the union organization campaign
among the Respondent's employees and corroborated
Allen's testimony concerning what occurred at the meet-
ing attended by Branch Manager Jones, Allen, and
Bowen at which he (Bowen) was terminated by Berlin
assertedly for comments he had made in a previous meet-
ing on September 1, 1981, to the Respondent's vice presi-
dent. Bowen testified he met the following day with
Jones (union representative) at Allen's home and dis-
cussed the filing of a charge with the Board.
The Respondent called Branch Manager Joe W. Jones
as a witness on its behalf. Jones testified that he initially
became aware of the union campaign on October 5 or 6
1981, when he was informed of the union campaign by
District Manager Berlin. Jones testified he was involved
in a conversation with Service Manager Joe Gable and
Allen on the day following the Respondent's termination
of Bowen, and that in this conversation Gable told him
(Jones) that Bowen had made a statement to Gable in the
presence of Allen and told Gable that he was the only
employee who had not signed a union card. Jones testi-
fied he "turned then and looked directly at Tony
(Allen]," but did not say anything to Allen at that time.
Jones testified Allen "nervously rocked back and forth
and said 'yeah, I knew about it."' Jones told Allen,
"Tony, you're in management, and then Tony said I can
get it stopped." Jones acknowledged having seen the
union pamphlet entitled "35 Things Your Employer
Cannot Do" (G.C. Exh. 2), which he testified he had
been shown by the Respondent's Athens, Georgia branch
manager "on the morning of the sixth [October]." Jones
testified Allen had "quit" on October 9, 1981, by an-
nouncing his resignation to Jones on the parking lot of
Lanier Petroleum. Jones acknowledged that a meeting
had taken place between himself and Allen earlier that
morning at Allen's request at which "Tony told me that
he was contacted by the Union, and they had asked him
to make a statement." After this conversation, Jones
(branch manager) "immediately called my district man-
ager [John Berlin]," and told Berlin "[t]hat Tony had
talked to me and advised me of that and also Tony had
told me that he would not make a statement." Berlin told
Jones "he'd get back with me," and did so within 5 min-
utes and asked Jones "[i]f I would get in touch with him
[Allen] as soon as possible and tell him that he is in man-
agement, and management don't make statements to
unions." Jones then called the service station and re-
quested that Allen wait until he (Jones) arrived. Jones ar-
rived at the service station and told Allen that Berlin had
advised him to tell Allen "that management does not
make statements to unions." Jones testified Allen asked
the reason for this and he (Jones) replied "that's all I was
told to tell you and that's all I would say." Allen then
left but returned to the service station shortly thereafter,
and told Jones, "I'm going to the office and turn my
stuff in and I will make a statement." Jones then "went
on to town to run some errands," and when he returned
to the Respondent's office Allen had taken "his stuff out
of the company car and was waiting for his wife to pick
him up." Jones contended that Allen had not made any
reference to the National Labor Relations Board in
either of the two conversations on October 9. He also
denied he was aware of the existence of any charge
having been filed against the Respondent with the Board
on October 9. Jones denied having told Allen that he
(Allen) would be terminated if he gave a statement to
the Union, having told Allen that Bowen had been ter-
minated for engaging in union activities, or having made
a statement to Allen about eliminating the salesmen's gas
bonus. On cross-examination, Jones denied having told
Allen that he hated unions, or that Allen had ruined his
credibility as a sales manager as a result of his involve-
ment with the Union.
Analysis
The General Counsel contends in his brief that Allen
was given a Hobson's choice of not testifying on behalf
of Bowen before the National Labor Relations Board or
being terminated, and that Allen then resigned in order
to testify before the Board concerning Bowen's termina-
tion, and the resignation, accordingly, constituted a con-
structive discharge of Allen by the Respondent because
of his intention to give testimony to an agent of the Na-
tional Labor Relations Board. The Respondent contends
that Allen's resignation was voluntary and did not result
from threats or "intolerable pressure" by the Respond-
ent, and further contends that Allen's statements to com-
pany officials indicated that he intended to give a state-
ment to the Union not the Board, and thus, even if the
resignation were found to be a constructive discharge, no
violation could be found since Section 8(a)(4) does not
require an employer to permit its supervisors to assist
labor organizations.
I have reviewed the testimony of Allen and Branch
Manager Jones concerning the circumstances leading up
to and culminating in Allen's resignation on October 9,
1981. I credit Allen's version of the conversation be-
tween Service Manager Gable and Branch Manager
Jones wherein, Allen testified, Jones stated that Bowen
had been discharged for attempting to organize a union.
I further credit Allen's version of the meeting betwen
Branch Manger Jones and Allen the following day
wherein Jones told him that he could not straddle the
fence concerning the Union, and that his credibility had
probably been ruined as a sales manager and it (his union
activities) would probably hurt him down the road. I
further credit Allen's testimony that Jones told him that
he hated unions, and that he (Jones) was going to elimi-
nate the gas bonus program. I also credit Allen's version
of the events of October 9 rather than the version of
Branch Manager Jones. Initially, I credit Allen that he
told Branch Manager Jones that he would testify con-
cerning the termination of Bowen rather than that he
would give a statement to the Union as testified to by
Branch Manager Jones.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Initially, Jones did not deny that these conversations
took place, but rather his testimony tendered to down-
play, and in part deny, statements attributed to him by
Allen in these conversations. Thus, he denied he told
Allen that Bowen was discharged because of his union
activity or that he (Jones) hated unions. He also testified
Allen told him he was going to give a statement to the
Union. If Jones' version as to what he said to Allen con-
cerning Bowen's discharge were to be credited, there ap-
pears to have been little of substance about which Allen
would have been able to give a statement to the Union
concerning Bowen's discharge. If on the morning of Oc-
tober 9 Allen had told Jones (as Jones contends) that he
(Allen) had decided not to give a statement to the Union,
I find it unlikely that Jones would have called Berlin im-
mediately to inform him that Allen had decided not to
testify, and that he (Jones) would have (after talking to
Berlin) urgently called the service station to detain Allen
until Jones arrived in order to tell Allen that manage-
ment representatives do not give statements to unions.
I also credit Allen's version that he informed Jones he
would testify before the NLRB concerning the discharge
of Bowen rather than Jones' version that Allen informed
him only that he had been contacted by the Union and
would not give a statement to the Union. There was no
collective-bargaining agreement in existence and thus no
established grievance procedure. It is apparent that the
discharge of Bowen for allegedly engaging in union ac-
tivities would be a matter for consideration by the Na-
tional Labor Relations Board. I further credit the testi-
mony of union representative Jones, who testified that he
gave Allen the name of a Board agent to discuss whether
he (Allen) would be protected in the event he testified.
This testimony is consistent with Allen's testimony that
he apprised Branch Manager Jones that he intended to
testify before the Board as opposed to Branch Manager
Jones' version that Allen had only mentioned having
been contacted by the Union to give a statement. I do
not find Allen's inability to place the date of his conver-
sation with the Board agent to require that his testimony
that he did so be discredited. Further, I do not find
Allen's affidavit inconsistent with his references to giving
testimony to the Board in his October 9 meetings with
Jones. The affidavit refers to giving testimony (R. Exh.
1). I find that knowledge that Allen intended to testify
before the National Labor Relations Board can be in-
ferred to the Respondent from the credited testimony of
Allen, even assuming that Allen specifically had not uti-
lized the phraseology "testify to the National Labor Re-
lations Board" in his conversation with Branch Manager
Jones. I find, as contended by the Respondent, that Allen
embellished his testimony on cross-examination when he
testified concerning his conversation with Branch Man-
ager Jones at the service station that Jones had informed
him "and if I wanted to testify, I could just virtually
look for me something else to do." However, Allen im-
mediately conceded when questioned by the Respond-
ent's counsel that Jones had not used those exact words
but rather had told Allen that neither Allen nor "any
other supervisor would testify as long as they were em-
ployed with Orkin Exterminating." My review of Allen's
testimony convinces me that this embellishment was one
of emphasis and phraseology as to the import of Jones'
statement rather than a specific misrepresentation of the
truth, and I do not find this embellishment by Allen in
his testimony to require that his testimony be rejected in
this proceeding.
Section 8(a)(4) of the Act provides that it is an unfair
labor practice for an employer "to discharge or other-
wise discriminate against an employee because he has
filed charges or given testimony under this Act." As the
General Counsel contends in his brief, the Board held in
General Services, 229 NLRB 940 (1977), enf. denied 575
F.2d 298 (5th Cir. 1978), that the protection of Section
8(a)(4) is not limited to employees but also includes su-
pervisors.5 The Board stated in General Services at 941:
In sum, the Board and the courts have recog-
nized that if the Board is to perform its statutory
function of remedying unfair labor practices its pro-
cedures must be kept open to individuals who wish
to initiate unfair labor practice proceedings, and
protection must be accorded to individuals who
participate in such proceedings.
The Board further cited NLRB v. Scrivener, 405 U.S.
117, 124 (1972):
The approach to § 8(a)(4) generally has been a lib-
eral one in order fully to effectuate the section's re-
medial purpose.
See also Hi-Craft Clothing Co., 251 NLRB 1310 (1980),
enf. denied 660 F.2d 910 (3d Cir. 1981), also cited by the
General Counsel, wherein the Board held (concerning a
supervisor and his bonus dispute) at footnote 2 that "an
employer must refrain from discriminating against an in-
dividual for indicating an intent to go to the Board since
it is the Board's function, and not the employer's, to
decide whether the individual is covered by the Act and
his claim has merit."
I find that, under the circumstances of this case, the ul-
timatum given to Allen by Jones at the service station on
October 9, 1981, was clear. He could not testify and
remain employed by the Respondent. In the face of the
discharge of Bowen on October 6, 1981 (3 days prior
thereto), and the statements by Branch Manager Jones to
Allen that Bowen had been discharged for engaging in
union activities, as well as Jones' dislike of unions and his
hurried discussion with District Manager Berlin followed
by his immediate followup encounter with Allen at the
service station, it is clear that the ultimatum given to
Allen was that, if he testified concerning the discharge of
Bowen, he would be discharged. Under these circum-
stances, I find that the choice was manifestly clear to
Allen and constituted a threat to Allen that if he testified
he would be discharged. See Daniel Construction Co., 244
NLRB 704 fn. 2 (1979). It is also noteworthy that Jones
made no attempt to dissuade Allen from resigning nor
did he inquire as to the reason for Allen's resignation.
Accordingly, I find that Allen was constructively dis-
charged by the Respondent because of his expressed in-
' Citing General Nutrition Center. 221 NLRB 850 (1975)
408
ORKIN EXTERMINATING CO.
tention to testify before the National Labor Relations
Board concerning the discharge of Bowen, and that the
Respondent thereby violated Section 8(a)(4) and (1) of
the Act. General Services, supra; General Nutrition Center,
supra; and Hi-Craft Clothing Co., supra. Moreover, as-
suming Jones' version of the meetings between himself
and Allen on October 9, 1981 (that Allen had discussed
giving a statement to the Union), were to be credited,
compare Greenbrier Valley Hospital, 265 NLRB 1056
(1982), wherein the Board stated at 1057:
Recently, in Parker-Robb Chevrolet, Inc.,6 the
Board rearticulated certain circumstances in which
the discharge of a supervisor may violate the Act,
including, e.g., giving testimony adverse to an em-
ployer's interest, either at an NLRB proceeding, or
during the processing of an employee's grievance
under a collective-bargaining agreement; or refusing
to commit unfair labor practices. In such circum-
stances, the protection afforded supervisors stems
not from any statutory protection afforded supervi-
sors, but rather from the need to vindicate the exer-
cise by statutory employees of their Section 7 rights.
I find that the General Counsel has established by the
preponderance of the evidence a prima facie case that
Allen was constructively discharged by the Respondent
because of his announced intention to give testimony
before the National Labor Relations Board. I find that
the Respondent has failed to rebut this prima facie case.
Accordingly, I find that the Respondent violated Section
8(a)(4) and (1) of the Act by its constructive discharge of
Allen on October 9, 1981.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE
The unfair labor practice of the Respondent as found
in section II in connection with the Respondent's oper-
ations as found in section I has a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States, and tends to lead to disputes
burdening and obstructing the flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent, Orkin Exterminating Co., Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Georgia State Council of Carpenters is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The General Counsel has established a prima facie
case of a violation of Section 8(a)(4) and (1) of the Act
by the discharge of Tony G. Allen because of his inten-
tion to testify before the National Labor Relations
Board. The Respondent has failed to rebut the prima
facie case, and I find that the Respondent violated Sec-
tion 8(a)(4) and (1) of the Act by its discharge of Tony
G. Allen.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
6 262 NLRB 402 (1982).
THE REMEDY
Having found that the Respondent violated Section
8(a)(4) and (1) of the Act, it shall be ordered to cease
and desist therefrom and to take certain affirmative
action deemed necessary to effectuate the purposes and
policies of the Act, including the posting of the appropri-
ate notice.
Having found that the Respondent discharged Tony
G. Allen in violation of Section 8(a)(4) and (1) of the
Act, it shall be recommended that the Respondent offer
him immediate reinstatement and make him whole for
any loss of earnings and benefits he may have sustained
by reason of the unlawful discharge. It is also recom-
mended that the Respondent expunge from its files any
reference to the discharge of Allen and notify him in
writing thereof. All loss of earnings and benefits incurred
by Allen as a result of the Respondent's acts, as set out
above, shall be computed with interest in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).7
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended8
ORDER
The Respondent, Orkin Exterminating Co., Inc.,
Gainsville, Georgia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging its employees for giving testimony
before the National Labor Relations Board or for ex-
pressing their intention to do so.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Offer Tony G. Allen immediate and full reinstate-
ment to his former position at the time of his discharge
or, if this position no longer exists, to a substantially
equivalent position, without prejudice to any rights or
privileges previously enjoyed.
(b) Expunge from its files any reference to the termi-
nation of Tony G. Allen and notify him in writing of this
and that his termination will not be used as a basis for
future personnel actions concerning him.
(c) Make Tony G. Allen whole for any loss of earn-
ings or other benefits he may have sustained by reason of
the discrimination against him in the manner set forth in
the section of this decision entitled "The Remedy."
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
7 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
8 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 pur-
poses.
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(e) Sign and post copies of the attached notice marked
"Appendix,"9 immediately on receipt in conspicuous
i If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
places at its facilities in Gainsville, Georgia, to which its
employees report. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other mateiral.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed with respect to all allegations of violations not
specifically found herein.
410