Orkin Exterminating Co., Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1968

170 N.L.R.B. 158 (N.L.R.B. 1968)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orkin Exterminating Company, Inc. and Joe Allen,
Donald Brooks, Ronald C. Carter, Dennis F.
Craft and Joseph N. Tarpley. Cases
9-CA-4196-1, -2, -3, -6 and 9-CA-4273
March 8, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein."
' The Trial Examiner's Recommended Order is ambiguous in that para-
graph 2 thereof provides for reinstatement and backpay for four dis-
cnmmatees whereas the last paragraph provides that the complaint be
"dismissed insofar as it alleges a violation of Section 8(a)(3) of the
Act " It is apparent that the quoted portion refers to the Trial Examiner's
finding, which we affirm, of insufficient evidence to prove violations of
Section 8(a)(3) with respect to the wage increases Respondent gave to
Craft and Tarpley on February 17, 1967 Accordingly, we shall modify the
Recommended Order to remove such ambiguity
On November 16, 1967, Trial Examiner Thomas
A. Ricci issued his Decision in the above-entitled
consolidated proceeding, finding that the Respond-
ent had engaged in and was engaging in certain
unfair labor practices and recommending that it
cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that the Respond-
ent had not engaged in other unfair labor prac-
tices alleged in the consolidated complaint and
recommended dismissal of those allegations.
Thereafter, the General Counsel filed limited ex-
ceptions to the Trial Examiner's Decision and a
supporting brief, and Respondent filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases 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, and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations' of the Trial Examiner, as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Orkin Exterminating Company, Inc., Huntington,
West Virginia, its officers , agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein.
Delete the last paragraph of the Trial Examiner's
Recommended Order and substitute therefor "IT IS
HEREBY ORDERED that ' the complaint be, and it
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in
the above-entitled proceedings was held before me
on July 11 and 12 and August 1 and 28, 1967, at
Huntington, West Virginia, on complaints issued by
the General Counsel against Orkin Exterminating
Company, Inc., herein called the Respondent, or
the Company. Charges in Cases 9-CA-4196-1, -2,
and -3 were filed on February 21, 1967, and in
Case 9-CA-4196-6 on February 23; the complaint
based on these four charges was issued on April 21.
In Case 9-CA-4273 the charge was filed on May
12, 1967, and the complaint issued on June 16; the
two complaints were consolidated for purpose of
hearing. The issues litigated are whether the
Respondent unlawfully discharged five of its em-
ployees in violation of Section 8(a)(3) of the Act.
Briefs were filed after the close of the hearing by
the Respondent and the General Counsel.
Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Orkin Exterminating Company, Inc., a Delaware
corporation, is engaged in the business of pest ex-
termination and termite control, has its central of-
fice in Atlanta, Georgia, and operates in several
States. During the past year, a representative
period, the Company received materials and goods
valued in excess of $50,000 at its locations in dif-
ferent States, which originated in States other than
those where it was received, and which came to its
destinations directly, across State lines. One of the
local operations where such 'out-of--State shipments
were received is Huntington, West Virginia, the
only location involved in this proceeding. During
the same period, the Respondent performed ser-
vices in the several States valued in excess. of
$500,000 for its customers.- I find that the Respon-
dent is engaged in interstate commerce within the
meaning of the Act, and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
170 NLRB No. 24
ORKIN EXTERMINATING COMPANY, INC. 159
H. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union,
AFL-CIO, herein called the Union, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
In the beginning of the year 1967 the Respon-
dent's Huntington office used two separate groups
of operating employees, one servicing route
customers as pest control men in touring company
cars, and another doing like route work as termite
control servicemen. There were also a few salesmen
and several office clerks. In charge of the office was
William Scales, manager; beneath him the only
other supervisors were Thomas Reining, over the
pest control men, and Donald Schoolcraft, over the
termite control servicemen. In early January em-
ployees began discussing the possibility of joining
some union, and in late January or early February
five men-Joe Allen, Donald Brooks, Ronald
Carter, Dennis Craft, and Joseph Tarpley, all pest
control men, met at a dairy bar four or five blocks
from the company office and agreed to take posi-
tive steps towards forming a union . On Monday
morning, February 13, two of them-Brooks and
Carter-went to the local office of the Steelworkers
Union, parked their Orkin cars nearby, and spoke
to an official there, who advised them to commu-
nicate with another union officer at Charleston.
Two days later, before they had time to take the
next step, both of them, together with Allen, were
discharged by Scales without any prior warning that
they were in danger of dismissal for any reason.
Called as an adverse witness at the start of the hear-
ing, Scales testified he released Carter "because of
his reluctance to accept any change in company
policy regarding' any policy without argument and
creating dissension among fellow employees,"
Brooks because he "had expressed a desire to go to
the fire department," and Allen because of "his ex-
cessive drinking :.. his social night life was inter-
fering with both, the quality and quantity of his
work." Scales also said he made the decision to
disdharge'these three men that very day.
'Of the 0 men then doing pest control work, all
but 1 were junior to these 3. Etter was hired in
1952. Allen had worked 10 years, and both Brooks
and Carter 8years. For the rest, four men had been
3 years on the job, three men-Staton, Tarpley, and
Triplett-5 months, and Craft only 3, months. The
theory of the complaint is that Scales knew, or must
have known by Wednesday, February 15, just who
the prounion employees were and quickly released
Allen, Brooks, , and Carter because they were
among, the agitators. The proposed conclusion of
both knowledge of union activity and illegal
motivation is said to rest upon the- following facts:
(1) it was a small group of employees, and talk of
union activities-as well as identity of those who
favored it-was bound to come to the Company's
attention; (2) Manager Scales regularly patrols the
streets checking on the men, with their Orkin sign
trucks prominently singling them out; two of the
men-Brooks and Carter-were parked outside the
union hall on the 13th; (3) the -action of mass
dismissal of the 15th was unprecedented, unan-
nounced, and virtually wiped out the core of the
pest control group, hitting at the most experienced
and long satisfactory men; (4) the asserted reasons
advanced in defense of, the discharges are unper-
suasive and unsupported by objective evidence,
particularly in view of the timing of the dismissals-
immediately upon the heels of the union activity;
(5) the manager discussed the union campaign with
Supervisor Reining only 4 days before the
discharges (denied, but not credibly, by Scales) and
attempted to ascertain from the supervisor the
identity of the unioneers; and (6) the antiunion pol-
icy of this Company has been established in a series
of past Board decisions.'
Craft was discharged on March 13. He was called
to the office that day, where he found not only
Manager Scales, but also Cecil Taylor, district
training supervisor from Louisville, and Frank
Hackett, troubleshooter from the Respondent's
central office in Atlanta. Hackett asked had he ever
held out money from the daily collections-. Craft re-
called he once had, from a Saturday to the follow-
ing Tuesday, when he had turned it in. With this,
Scales discharged the man. On May 4 Scales, while
patrolling the city, found Tarpley's car parked on
the street unlocked and with the ignition keys in the
dashboard lock. He waited until Tarpley returned
from servicing a customer and took him straight to
the office for discharge. Scales 'had learned, 2
weeks before at an unemployment compensation
hearing, that Tarpley was among those who-favored
the Union, and both these men had been given
raises on the same day, February 17. Again the
complaint alleges that Craft and Tarpley were not
released for proper cause, but instead also suffered
illegal discrimination because of their union activi-
ty, in violation of Section 8(a)(3) of the Act.
The defense-to all of this was spoken by Scales at
the hearing . He said he knew nothing about union
organization before receiving a letter ` from the
Board's Regional Office on February 28 advising
him that Allen, Brooks, and Carter had filed unfair
labor practice charges. He also testified that in each
of the five instances the men had been released in
the regular course of business, that the business had
' Orkin Exterminating Company of Florida , Inc, 152 NLRB 83, enfd 379
F 2d 542 (C A 5), Orkin Exterminating Company of Kansas, Inc, 136
NLRB 630; Orkin Exterminating Company of Florida, Inc, 136 NLRB 399
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deteriorated in- consequence of poor per-
formance-with the first three men as the more
delinquent workmen, and that the last two persons
were released for violating company rules against
withholding cash receipts and leaving cars un-
locked.
Every employee witness who testified referred to
Thomas Reining as the supervisor of the pest con-
trol group. Originally a salesman, he came to
Huntington in September 1965 as a route salesman
on pest work. In August 1966 Scales promoted him
to supervisor, and the prior supervisor changed jobs
to become a salesman. Reining testified, without
contradiction, that he supervised the pest control
routes, worked on collections, followed up
customer- complaints, approved the men's daily
time report sheets, verified the hours they worked
each day, discussed their mistakes and discrepan-
cies with them and authorized overtime work. He
recommended the discharge of two men and they
were released. In January, while the manager was in
the hospital, he was in complete charge of the of-
fice. There is also uncontradicted testimony that
when Reining became supervisor Scales announced
the promotion at a meeting of all employees. I find,
as alleged in the complaint, that at the time of the
events and up to the time Reining was , discharged
on March 3, he was a supervisor as defined in the
Act.
The answer denies this complaint allegation, and
at the-hearing counsel for the Respondent disputed
the General Counsel's continuing assertion. Aside
from the fact.the Company's position in this respect
is completely untenable in the light of the un-
disputed facts of record, insistence that Reining was
but a rank-and-file employee -casts a beginning
doubt upon the manager's entire testimony. He said
that he went to Reining's home one Saturday even-
ing just a few days before the three discharges, ",to
discuss the evaluation, of the operation, get his
views on it, see if he had any ideas or thoughts as to
the way-,that we could improve; evaluation of the
men were-,discussed." But if Scales is to be be-
lieved, this is precisely the kind of talk that takes
place between the overall chief and his immediate
supervisors in the regular course of business ,opera-
tions. Thus Scales placed-himself in conflict with
his own words,
Reining's testimony is different. According to
him,,Scales, accompanied by 'Supervisor School-
craft who.was in charge of the termite control sec-
-tion,of,the office, drove to-his house and,called him
out to the car,-where the three talked in private in-
side Scales' automobile. In Reining's words: "And
Mr. Scales asked me if I knew my boys were or-
2 In its brief the Respondent argues that Reining should not be believed
on this record because of the testimony of a serviceman named Jim Webb,
who testified that a week after February 15 Reining said he, himself,
favored the Union but wanted no one to know about it Of all the witnesses
who were called, Webb was the least credible. All five of the discharged
employees named in the complaint testified Reining never spoke of the
ganizing, were going to organize. And my next
reaction was organize what. It was a shock to me.
And he commenced to tell me that he had had a
phone call, that he wouldn't identify the person
who called him, an informant that, told him they
were going to organize a union, sign pledge cards to
join a union. And I still was at disbelief at what I
had tried to do for the boys. I couldn't believe that
they would do it against me.... So we talked it
over and we discussed who was behind it. We
tossed names back and forth. We named Mr.
Carter, Mr. Allen. ... We had suggestions from
each other. And we talked about Mr. Tarpley. And
I doubted it. And we talked about Mr. Craft., And I
didn't know too much about Dennis[Craft]. And I
thought of other boys in the out-of-town areas who
might be involved; how they were notified. I knew
nothing about, -the men had been at work. I'd never
had a day off to talk to them. So that was the extent
of it. I was told not to talk about it, which I, didn't
on Monday morning when I came to work."
The following Monday morning,,still according to
Reining, Scales called him into the, office and told
him to "watch the boys. If there was any irregular
. to watch any irregularities ... and-Mr. Scales
had scribbled a few names down that we thought
might be behind it. But we never used it or anything
else. It was just who we thought might be involved
in it. Mr. Carter, Mr. Allen, and Mr. Brooks names
were on it. And again I doubted Mr. Tarpley or Mr.
Craft. And that was the extent of it. I left the office
and I never said a word about it and went on about
the business that day." Reining,was disturbed -by
the sudden discharge of three men the following
Wednesday, and asked Scales why he was going to
do this, and the manager simply answered "he had
a reason why." Scales did not contradict Reining as
to either of these last two exchanges.
The Respondent did not call Supervisor School-
craft to support the manager's testimony. Scales
had never before been to Reining's'home, and there
is no ' plausible explanation- of why he should, , go, to
the supervisor's home on Saturday evening-, to
discuss what would have been routine questions of
operational matters the day before' or the following
Monday in the office. With this, with due con-
sideration of Scales' vague generalities on other
aspects of his testimony, and in- the light' of the
demeanor, at the hearing of both the witnesses, I
credit Reining'2
--Allen- testified that on Wednesday Scales' told
him he was discharged because his drinking and
night life interfered with-the quality and quantity of
his work. Testifying later for the Respondent Scales
expanded upon his reasons,and that ,story _ will be
'Union to, them during their employment Webb's story, discussed below,
and intended to prove Allen was habitually late for work and used to work
privately for customers who should have paid the Company instead, is so
self-contradictory, inconsistent,-and implausible as to make -the witness
completely unworthy of belief. ,
ORKIN EXTERMINATING COMPANY, INC. 161
discussed below. Brooks said that the stated reason
given him on Wednesday was "that I was undecided
whether I was going to take a job with the fire de-
partment or not. And then I told him that I had
turned this job down approximately six months be-
fore that. And he said he heard say about two
weeks before that that I might go take the test
again . "3 Scales did not contradict this testimony as
to the discharge conversation, and again, testifying
later in defense, added a number of further reasons,
never mentioned before, to explain his decision to
terminate . Carter's testimony is that at the time of
discharge Scales told him it was because- he was
"unable to get along with employees." His
testimony too, about what- Scales told him then,
stands undenied, while in his following story Scales
said Carter's performance was bad "all the way
around," and specified it was a matter of the em-
ployee resisting changes in company policy-"He
would influence had cause dissension among his fel-
low employees through these oppositions and op-
posements."
It is clear that throughout this critical period-
from about February 15 through early March-
there were central office officials in the Huntington
area taking an active part in what was going on.
Craft testified, again,without contradiction, that a
few days after February 15 there was a meeting of
employees in the office, where Scales, speaking of
the discharge of the three men, found occasion to
say "that we was a growing company and we was
getting along pretty good. That if we'd keep our
noses clean that we. could be right along with the
company." Gardner, the district manager, was also
present. He said, as Carter testified, "he agreed
with Mr. Scales that we, was having a little problem
down there. And that if we'd stick with them they
was about to get it straightened out. And he agreed
that if we kept our noses clean that we could be
right along with them also." Gardner did not testify
and Scales did not deny having used these words.
Tarpley was also present at the office meeting; he
said Taylor, the district supervisor, was also there.
Tarpley quoted Scales as saying "we was, had had a
little problem: That he was going to get it solved
and just to bear with them." Scales then told the
men his -reasons for so many discharges-Brooks
because' he "wanted .:. to get a job with the- fire
department," Carter because he "couldn't ^ get
along with the' men," and Allen because "night life
and drinking was involving with his work." Scales
then went on to' say, still according-to the uncon-
tradicted testimony of Tarpley, "if we was worried
about our jobs to forget it. Just to keep our noses
clean,and do our job."
There is also, uncontradicted and credited
testimony by Reining, the supervisor, that late
Wednesday, after the three men had been
discharged, with Scales in the office there were
Gardner, Doran, Pierce, and Cecil Taylor, and that
Gardner said to him "maybe it [the discharges-] was
to the good," and when Reining suggested the
Company should first have talked to the men,
Gardner added "we can't do that. Because that's
not, it's against the law."
A few days later, on Saturday, Hackett; the
troubleshooter, invited Reining to his hotel room in
town and asked what was his opinion of the circum-
stances of the office, they "had checked around,
they could find nothing else wrong as far as this
trouble ." Reining questioned the validity of the
reasons given the men, and Hackett replied it was
the Company's privilege to discharge anyone, even
the vice president.
What is most significant about all of this talk, at
the time of the events, about "a little problem down
there," "sticking" with the Company, "to bear with
them," "found nothing else wrong , as far this trou-
ble," and, repeatedly, that the employees should
"keep their noses clean," is what was not said, by
any of the company agents, either to the three men
discharged or to those who remained. The entire
burden of Scales' testimony-he was the only com-
pany representative who testified in defense-is
that progressive loss of business, poor performance
by the entire pest service group, and impossible
deterioration of everybody's work, demanded im-
mediate action, else he would have been compelled
to resign his 26-year job. He was very detailed, at
the hearing, as to the precise failings that had to be
corrected-reduced cash collections, cancellation
of accounts for which the servicemen were respon-
sible, fall off in their individual sales, etc., but he
did not give any of these reasons to the men whom
he released then without warning. More important,
and this is where his entire defense assertion fails,
neither he, nor the other officials who- converged
upon Huntington to do something about the alleged
neglect of duty and lackadaisical attitude of the
work force as a whole, told those who were kept on
what was required and what they had to do to avoid
the ax which had fallen upon the others. Not one
word then about better service to the customers,
drumming up new business, collecting money more
promptly, etc. -Instead, they spoke ambiguously of
problems, sticking with the Company, and keeping
noses clean . With management concerned only" a
few days earlier with the surprise union organiza-
tional campaign, with their manager turning to
Reining, who was closer to the employees, in his
search for the identity of the persons responsible
for the activity, with the names of the -particular
persons discharged -in the-mouth of the manager
while investigating the- union campaign, and' with
the bosses saying , nothing about' production
problems and economic' matters now urged in
8 Brooks also testified that 4 or 5 months before his discharge he had told corroborated his testimony, and added that he had reported we fact to
Supervisor ,Reining of his final decision not to change employment . Reining Scales at that time
350-999 O - 71 - 12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense, the meaning of the equivocal terms is
plain. What the employees were being told was to
guard against becoming identified with the Union if
they wished to avoid the fate of those who were al-
ready gone. And this was not the first time this
Company has resorted to such techniques to ferret
out the union proponents in its employ.
These facts convincingly indicate a pervasive and
extreme determination to strike at the employees'
attempt to bring a union into their affairs. Such
sudden discharge of three very experienced men
with many years with the Company, while retaining
others who had worked only a matter of months,
not only weakens any assertion of an intent to im-
prove the performance of the whole group, but
shows Scales had decided to stop at nothing to
achieve an illegal objective. Craft and Tarpley, who
were discharged later on March 13 and May 4, and
who were also discussed as suspected prounion men
during the manager's questioning of Supervisor
Reining , must be considered as falling in the same
group with Allen, Brooks, and Carter, so far as the
Company's attitude towards them is concerned. A
different reason is assigned by the Respondent to
explain their-, discharge, but the same question is
presented as to them. Were the reasons stated to
Craft and Tarpley-withholding collections and
leaving a car unlocked-and the explanations given
at the hearing by Scales to justify the first three
discharges , only pretexts to cover antiunion
animus? ', Unless the affirmative defense suffices to
establish affirmatively that economic cause was in
fact the basis of discharge, and the only basis, it fol-
lows that dismissal of all five men constituted
separate violations of Section 8(a)(3) of the Act, as
alleged in the complaint.
Allen, Brooks, and Carter
The manager's testimony concerning the declin-
ing picture of the Huntington office, and of the
relative position of these three servicemen in terms
of work performance, when compared to the rest of
the pest control crew, was given entirely in general
terms, statements of personal opinion, and unsup-
ported conclusionary phrases. There were no docu-
mentary records or reports of the Company offered
to give credence to -his oral testimony. He started
by saying that as far back as November 1966 the
Huntington office fell to the bottom, "profitwise,"
of all, the company offices in the two-State district
including Kentucky and West Virginia; He said the
company records showed his `office had received
the - "booby prize", for 2, consecutive months-
January and February. It would have been a simple
thing,; to produce such reports. ' He 'also testified a
new system of payment was instituted on October
1, 1966, and that therefore March 1 was, the time
when periodic appraisal of the individual work per-
formance of the employees would normally be
made. But he also repeated that the Company has a
policy of evaluating each workman every 90 days.
There is no way of reconciling this 90-day period
concept with the 5 months between October I and
March 1. From here, Scales continued that he
reviewed the- records of each employee among the
12 and learned, from the written -records, that these
3 men were the poorest, either individually or col-
lectively, as a subsegment of the whole. He spoke in
great detail of exactly how the records as main-
tained helped him see all this-records of cancella-
tions, outstanding balances, sales, delinquent ac-
counts, and such things. Scales explained all these
figures appear on reports which reflect the work of
each man and are prepared in his office, each
month and sent to the Louisville main office. He
produced none of them. -
He was an unconvincing witness. He' added to the
vagaries of his whole testimony in this respect by
saying that in reviewing the records, and thus
evaluating the relative merits of each man, he also
considered as a factor the years of service and ex-
perience of the individuals, and thereby added an
opinion element to the formula of what he believed
to be the production capacity of the men. Here he
removed all objective tests from his testimony. It
was then brought out on cross-examination that-the
two-State district issues a monthly report listing the
names of the 10 top servicemen and that this is
posted in the local offices. Scales -was asked was it
not true that for November, January, and February
the names of Allen, Brooks, and Carter appeared
-on this list regularly. He answered: "My answer is
that they were on there probably one month and
they may have been on there even' more than once.
But I can't say that they were on there -.for three."
But these were the very months in which, according
to Scales, the Huntington office floundered, with
these particular men as the culprits. Absent sup-
porting documentary and objective proof, in these
circumstances 'the` manager simply cannot be, be-
lieved. There are too many weaknesses in his total
testimony. At the start of the hearing, he spoke-only
of a "general letdown" in work by Brooks which
led him "to believe he would be better-off with the
fire, department." After Brooks had testified in sup-
port of the complaint, Scales added how the man's
"balances .went up every- month; counting October
through February." In a continuing attempt to por-
tray the men as undersirable workmen; Scales went
on to add further failings on their part,-and he indi-
cated, although not always plainly, that these were
further considerations which caused him,, to get -,rid
of them. He shifted grounds concerning Carter, first
saying it was a matter of the man causing dissension
among fellow employees, and later blanketing him
with the others as among the pooresf performers in
their route service work. In the 'end ',Scales even
added that, when examining Carter's worksheets
before the discharge, "'there were several' accounts
where money showed irregularity where money was
held out for a several days period from the time he
ORKIN EXTERMINATING COMPANY, INC. 163
collected until he turned it in." Three weeks later
Scales discharged Craft ostensibly for withholding
receipts, but he never said a word to Carter about
this, resting only on the statement-denied by the
employee in his face-that the man wanted to
transfer to the fire department.
Reasons for discharge that appear clearly as af-
terthoughts were also advanced as to Allen. Scales'
first answer was that this man neglected his work
because of his "drinking and night life," and Super-
visor Reining did testify he had spoken to Allen to
.'slow down" lest his social excesses interfere with
his work. Reining , who intimately supervised these
men, also said, however, that Allen's outside activi-
ties had not impaired his performance, or caused
him to report late for duty. One of the first defense
witnesses called was Webb, a serviceman . Asked to
comment on Allen's record of lateness, he started
by saying, "Well, right before he was discharged he
came in maybe nine , ten; just any time he got
ready." As he continued it developed that while his
records are kept at the Huntington office Webb
lives and works in Kentucky, that he covers other
county territories, and that he only visits Hunting-
ton "for service meetings," or when he runs out of
supplies "around the last part of the month ...
once a month." He added he had gone to Allen's
home to call him twice, but that this was when
Allen was late for service meetings, on Saturdays,
when the men normally do not work. On direct ex-
amination the Respondent drew from Webb
testimony that he had one Saturday worked with
Allen and Reining on a private extermination job,
with Orkin equipment. The witness then added that
this had happened "a month before" Allen was
discharged, and that he had reported the incident
to Manager Scales "right after we did it." He then
reversed himself completely, and said he first spoke
of it to Scales "after they was discharged," that it
was in connection with a subsequent investigation
by the manager, when it was first discovered the
Company did,, not have an account, to service the
particular, building where he and Allen had worked
that Saturday. I do not credit Webb at all. Scales,
following Webb to the witness stand, said Reining
had once told him (Reining) thought Allen might
be doing side work for a competitor but was not
sure. Scales' admitted he heard nothing about the
Saturday work performed by Webb and Allen until
after Allen had been released. With the Respondent
having no knowledge of such work by Allen before
February 15, injection of this matter at the hearing
in further justification of the discharge serves only
to indicate the affirmative defense of discharge for
cause is no more than an afterthought.'
I find the evidence in its totality insufficient to
prove the Respondent's contention that Allen,
Brooks, and Carter were dismissed for economic
reasons, and I therefore conclude that they were
discharged for the purpose of discouraging union
activities among the employees generally and in
violation of Section 8(a)(3).
Dennis Craft
Craft was hired as a regular route serviceman in
November 1966. He signed a union card and it will
be recalled his name was mentioned with others as
possible union minded when the manager discussed
the campaign with Reining. He was present at the
employee meeting on or about February 17, after
the three men had been released, when the com-
pany officials told him to keep his nose clean and
stick with the Company. Towards the close of the
meeting , District Manager Gardner told him his pay
was being increased from $350 per month to $435.
He was told he would have to service more ac-
counts than in the past, but Craft testified this
never came about and that he-was not worth "'that
much" of a raise.
When he reported for duty -on March 13 he
found Hackett, the troubleshooter from Atlanta,
and District Supervisor Taylor waiting for him on
the parking lot. They went into Scales' office where
Hackett asked had he ever held out company
money from one month to another. Craft said no,
and then recalled, and admitted, he once had
withheld a receipt from a Saturday to the following
Tuesday before turning it in . Craft then asked
Scales when was it he had withheld money, but the
manager said nothing. At this point Hackett told
Scales : "well, there it is. You-all can take it from
here," and with this Taylor left the room. Scales
thereupon discharged Craft.
It is a rule of the Company, of course, that
money the- men collect on the route each day be
turned in that evening with the daily reports. Craft
conceded he did withhold a receipt at least once for
a few days , and it seems clear he did it more than
once . "Well, if, I did they didn't take it- out of my
paycheck. I don't guess I did." With this, the paper
record introduced by the Respondent to prove
'After the Respondent had rested, the General Counsel subpenaed cer-
tain of its records relating to the work reports of the employees, and in
rebuttal placed selected portions into evidence. I am unable to discern
record support, in these exhibits, for the conclusionary testimony of Scales
that Allen; Brooks, and' Carter compared unfavorably to the other ser-
vicemen in respect to the quality and quantity of their work , and the
Respondent in its brief, does-not point to any A significant entry shows the
monthly change in collectable accounts in effect for the pest. control
groups For the 7-month period September 1966 to March 1967 inclusive
the successive change figures are plus $171, plus $124 ; minus $21, plus
$105; plus $103, plus $145; and minus $448
5 The fact that two other employees were discharged the same day lends
no support to the contention that the pest control group had become gross-
ly incompetent John Bolin had worked briefly, with the local office errone-
ously under the impression his clearance investigation in Atlanta was
satisfactory It was then discovered he had a police record , and the record
shows he was released for this reason Awon McComas was a termite con-
trol serviceman , and Scales testified he was discharged because "we just
didn't have the business to maintain extra personnel."
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three instances of such temporary withholding by
Craft add little to the persuasiveness of the affirma-
tive defense of discharge for cause . Determination
of the question whether the Respondent in fact
released Craft for this reason , however , requires
consideration of all the record evidence bearing
upon the defense.
There is indication that Scales , assisted by the
visiting officials from higher offices , did not in-
vestigate all three instances proved at the hearing
until after the discharge of the man on the morning
of March 13 , and therefore could not have had
them in mind when dismissing Craft. It appears that
on January 27, 1967, Craft held out $5 and turned
it in on February 3. An entry by Hackett, showing
his check into the matter, is dated March 14, the
day after Craft left. Another daily report of Craft
shows an item of $5.85 collected on January 29,
and also turned in on February 3, and again
Hackett's, notation is dated March 13. Craft col-
lected $7 on February 27, and withheld it. Taylor
signed this file on March 10. It would appear that it
was while Craft was holding this last $7 that he was
called on the carpet, and that the other two cases
were dredged out of the past to make a better
record in defense at the hearing in this complaint.
A serviceman was discharged in 1966 for
withholding over $100 in collections. The record
otherwise shows that incidents like those belatedly
brought out concerning Craft were not uncommon
among the servicemen and that Scales was in no
real sense disturbed about them. At one point he
himself qualified the stringency of the rule: "All
money, is to be turned in as soon after collecting it
as possible. Primarily the same day." He said he
had had reason to suspect Allen, Brooks, and
Carter also of withholding receipts. These matters
came to light when customers, billed for payment,
complained that they had already paid the ser-
viceman on the call. Asked why he had not taken
disciplinary action against the other three, Scales
answered: "It was, all monies were accounted for.
Let's put it that way,," I take this to mean that when
he did check the records of the other three men, if
he did, he found that with time they had turned in
the, cash, and that therefore all was as it should be
to Scales., He even added that of the three, men, as
well as with all the rest, "We get them [complaints
by customers that they had already paid the ser-
viceman] right along ." How long had such com-
plaints been- received against Allen , .Brooks, and
Carter? "Well, you could almost say that you could
go back for a year or two years or three years."
Scales then - attempted to distinguish Craft's
withholding of $7 from all the other situations. ".. .
there is a big difference here. The difference is
there is still some money which is still out' on Mr.
Craft." But Craft was discharged summarily, before
having an opportunity to turn in the last $7, and
Scales refused to tell him on the 13th which ac-
count he had in mind. And when Craft sued for-cer-
tain money due him, the Company did not attempt
to offset the $7, strong indication that it, too, had
been turned in in short order. In any event, that
Scales was not really concerned with this matter is
shown conclusively by his further admission that,"I
had gotten them [complaints about Craft withhold-
ing] in January. I had gotten them in February; had
got them in March." If he could give, Craft an $85
per month raise on February 17, and make it effec-
tive March 1, with such knowledge that Craft had
long been doing what 13 days later Scales said was
intolerable behavior , I cannot credit his statement
that he discharged the man for such reason. I find
on the entire record that this matter of withholding
small amounts of receipts for a few days was not
the real reason -for Craft's discharge, and that he
was released because the Respondent believed-him
to favor the Union, in violation of Section 8(a)(3)
of the Act. - =
Joseph Tarpley
Tarpley started with the Company in November
1966 as a utility man; he was assigned to Brooks'
regular route on February 15, when the latter was
discharged. A few days later, he left his vehicle un-
locked on the street while working, 'the fact was
noticed, by Cecil Taylor, the touring -supervisor,
who happened to pass, and Taylor told him to keep
the automobile locked. It is a rule of the Company,
set out in its manual, that Orkin vehicles must be
completely locked at all times while the men are in
buildings at work ; the reason is not only' to insure
the car against theft , but also to'guard 'against chil-
dren meddling with dangerous chemicals used and
stored in the vehicles. -- -
On May 4 Tarpley left his vehicle on the street in
front of a customer's premises, the doors unlocked
and the key in the ignition lock. It' was his misfor-
tune that Manager Scales chanced-to pass by and
stopped to look at it. Scales said even the: windows
of the doors were down, but this is of little moment,
for 'there is no question-the car :could have been
driven away by anyone. Scales waited until Tarpley
returned from the particular job, rode to the office
with him and forthwith discharged him.
Tarpley had complained that the door locks' were
defective and the office - had, delayed repairing
them. He was not discharged the first time Taylor
found the doors unlocked. And the Respondent had
reason to believe he favored the Union. I do not be-
lieve these facts warrant an inference of illegal
motivation in this instance ; even an employer deter-
mined, to choke off a union campaign must be
privileged to-operate its business with due regard to
established normal safety rules. Tarpley's name had
been mentioned in the manager's talk with-'Reining
before -February 15, and yet the Company raised
his pay a few days later; and did not discipline- him
the first-time his, vehicle was- found unlocked. To
avoid the reasonable inference arising from the
ORKIN EXTERMINATING COMPANY, INC.
raise , that the Respondent was indifferent to
Tarpley's attitude toward the Union, the General
Counsel now argues , and alleges in the complaint,
that the raise was given instead as a bribe to buy
him out of the Union, and was therefore illegal dis-
crimination- in employment and a violation of Sec-
tion 8 (a)(3) of the Act. But there is no persuasive
evidentiary reason for viewing the raise one way in-
stead of the other. And the same is true of the
warning for the first offense; Taylor could as well
have discharged Tarpley then, but did not. Anyway,
leaving a commercial vehicle like this with a key in
the lock is quite a different chatter than unlocked
doors.
Inquiry into the inner motivation for any
discharge demands consideration of all pertinent
factors; here some point one way and some the
other. On balance, I conclude it cannot be said a
preponderance of the substantial evidence on the
record as a whole supports the complaint allegation
as to Tarpley, and I shall therefore recommend
dismissal of the complaint as to him.
I also find the total evidence insufficient to prove
violations of Section 8(a)(3) of the Act in the
raises the Respondent gave to Craft and Tarpley on
February 17, 1967.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the,
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and' take
certain affirmative action designed to effectuate the
policies of the Act. The Respondent having' unlaw-
fully discharged Joe Allen, Donald Brooks, Ronald
Carter, and Dennis Craft, it must be ordered to
reinstate them to their former employment and to
-make them whole for any loss of earnings they may
have suffered in consequence of the illegal dis-
crimination against them. Backpay shall be based
upon the earnings which the terminated employees
would normally have received during the applicable
period, less any net interim earnings, and shall be
computed on a quarterly basis in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon, Isis Plumbing & Heating Co.,
138 NLRB 716. The extent of the Respondent's
past unfair labor practices justify and require an all
inclusive injunctive order that it not hereafter vio-
late the statute in any other manner.
165
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and
the Union is a labor organization, all within the
meaning of the Act.
2. By discharging the aforementioned four em-
ployees the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7)'of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is hereby recom-
mended that Orkin Exterminating Company, Inc.,
Huntington, West Virginia, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail,
Wholesale and Department Store Union,
AFL-CIO, or any other labor organization of its
employees, by discharging or in any other manner
discriminating against them in regard to their hire
or tenure of employment or any terms Or conditions
of employment.
(b) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the right to self-organization, to form labor
organizations, to bargain collectively through
representatives of their own choosing, and to en-
gage in any other concerted activity for the purpose
of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities,
except as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Offer Joe Allen, Donald Brooks, Ronald
Carter, and Dennis Craft reinstatement to their
former or substantially equivalent positions without
prejudice to the rights and privileges previously en-
joyed.
(b) Make whole the above-named employees for
any loss of pay suffered by reason of the discrimina-
tion against them, in the manner set forth above
under the section entitled "The Remedy."
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Notify the above-named employees, if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
166 DECISIONS OF NATIONAL
(e) Post at its office in Huntington, West Vir-
ginia, cobpies of the attached notice marked "Ap-
pendix." Copies of said notice, on forms provided
by the Regional Director for Region 9, after being
duly signed by the Respondent's representative,
shall be posted by it 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 by Respond-
ent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
IT IS HEREBY FURTHER ORDERED that the com-
plaint be, and it hereby is dismissed, insofar as it al-
leges a violation of the statute with respect to the
discharge of Joseph Tarpley and insofar as it alleges
a violation of Section 8(a)(3) of the Act.
6 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of 'a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' 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 9 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that: -
WE WILL NOT discourage membership in
Retail , Wholesale and Department Store
Union , AFL-CIO, or in any other labor or-
ganization of our employees , by discharging or
otherwise discriminating against them in regard
to their hire or tenure of employment.
LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, as guaranteed in Section
7 of the Act, or to refrain from any and all
such activities, except as authorized in Section
8(a)(3) of the Act.
WE WILL offer Joe Allen, Donald Brooks,
Ronald Carter, and Dennis Craft reinstatement
to their former or substantially equivalent posi-
tions, without prejudice to their rights and
privileges previously enjoyed, and WE WILL
make each of them whole for any loss of pay
they may have suffered by reason of the dis-
crimination against them, in the manner set
forth in the section entitled "The Remedy" in
the Trial Examiner's Decision. -
All our employees are free to become members
of or to refrain from becoming members of any
labor organization.
ORKIN EXTERMINATING
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service, Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive. days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 2407, Federal Office- Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone
684-3663.