Orkin Exterminating Co. of Florida, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1965

152 N.L.R.B. 83 (N.L.R.B. 1965)

ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 83
All our employees are free to become or remain, or refrain from becoming or
remaining , members of the above-named or of any other labor organization , except
to the extent that such right may be affected by the provisos of Section 8(a)(3) of
the Act.
ROWE INDUSTRIES, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event the above-named employees are presently serving in the
Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, 16 Court Street, Brooklyn, New York, Telephone No. 596-3751, if they
have any question concerning this notice or compliance with its provisions.
Orkin Exterminating Company of Florida , Inc. and Truckdrivers,
Warehousemen and Helpers of Jacksonville, Local Union No.
512, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
12-CA-2799. April 23,1965
DECISION AND ORDER
On October 30, 1964, Trial Examiner Alba B. Martin issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations . Thereafter , the Respondent and the Gen-
eral Counsel filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 Exam-
i The Respondent contended that the Trial Examiner's credibility resolutions in favor
of the General Counsel's witnesses demonstrated his bias and prejudice against the Re-
spondent. We find, upon careful analysis of the entire record, that the Trial Examiner
was not biased and prejudiced as his credibility findings resulted from a fair appraisal
of the evidence as a whole and the demeanor of the witnesses
152 NLRB No. 8.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner's Decision, the exceptions and the briefs, and the entire record in
the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with the exceptions noted below.3
The Trial Examiner found, and we agree, that the Respondent vio-
lated Section 8(a) (1), (3), and (5) of the Act. With respect to the
8(a) (5) allegation, according to the Trial Examiner, although the
Respondent's conduct during the bargaining sessions did not alone
evidence a refusal to bargain in good faith, its entire conduct, both
before and after the election, including its repeated assertions that it
would never sign a contract with the Union, the discharge of 2 union
supporters during the actual negotiating period with the avowed pur-
pose of destroying the Union, the harassment of a member of the
Union's bargaining committee during the period covering the bargain-
ing sessions, and the importation during the height of the negotiations
of 10 technical representatives from its home office to accompany
employees on their routes during their workday, clearly showed that
the Respondent was not engaged in the negotiations with the good-
faith intent of reaching agreement. We agree.
It is well established that the Board must look beyond what occurs at
the bargaining table to determine whether a party to the negotiations
is bargaining in good faith or is just going through motions that
amount to mere surface bargaining.4 It is a rare and simple case where
one party bluntly announces that it will not bargain with the other
party. In the more difficult case, as the present one, the Board must
take an intelligent look at the totality of the Respondent's conduct.5
After an exhaustive perusal of the Respondent's conduct in this case
we are convinced that the Respondent never intended to reach agree-
ment with the Union. That this state of mind not only existed at the
2 The Trial Examiner found that the Respondent violated Section 8(a) (1) when repre-
sentatives of management on a number of occasions told employees in effect that if the
Union was voted in and there was a strike employees could lose their jobs . In view of
the fact that such statements would merely present cumulative evidence of 8(a) (1)
violations , we find it unnecessary to pass upon them. Therefore, we do not adopt the
Trial Examiner 's findings in that regard.
s We find, contrary to the Trial Examiner , that the record contains admissible evidence
showing that the Respondent Informed the Unemployment Compensation Division of the
Florida State Industrial Commission that employee Bight had resigned his employment
and had not been discharged . Thus the record contains evidence of a letter dated
January 11, 1964, sent by Respondent Branch Manager Balcom informing the State
agency that Kight had resigned his position and had not been discharged . By letter
of January 20, 1964 , the State agency informed Bight that he was disqualified from
receiving unemployment compensation because he quit his job . We find this evidence
sufficient to support a finding that, by such conduct , Respondent violated Section 8(a) (1)
of the Act . Therefore , we shall order the Respondent to cease and desist from engaging
in such conduct and also order the Respondent to notify the State agency , in writing,
that the Board has in the subject proceeding determined that employee Kight had not
voluntarily quit his employment , but had been unlawfully discharged for engaging in
union activities.
d See N.L.R.B . v. Herman Sausage Company, Inc., 275 F. 2d 229 (C.A. 5 ), enfg. 122
NLRB 168, rehearing denied 277 P. 2d 793.
6 See N.L . R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131 ( C.A. 1),
enfg. 96 NLRB 850, cert. denied 346 U . S. 887.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 85
time precise statements were made to this effect, but extended into the
bargaining sessions themselves, is evidenced by the Respondent's
'simultaneously engaging in unfair labor practices to undermine the
Union at the very time it was assertedly accepting the Union and deal-
ing with it in good faith.
While it is true that the parties' first four and one-half bargaining
meetings resulted in agreement as to certain noneconomic items, it is
equally true that agreement on these noneconomic bargaining items
was contingent on reaching agreement on economic matters. When the
content of the Respondent's economic proposals is explored and com-
pared with the Union's economic proposals, it becomes abundantly
clear that Respondent envisioned this to be the rock on which bargain-
ing was to founder. Thus the Respondent's first three economic pro-
posals contained the very same wage rates the employees were then
receiving and were patently unacceptable. It was not until the seventh
meeting between the parties, after the Union submitted the prior
proposals to the employees and they were rejected, that the Respondent
offered a wage increase , and this amounted to 15 cents per hour for
only 11 out of 53 employees. From all the facts it is obvious that, while
the Respondent was making only slight concessions, which the Union
would predictably reject, the Union greatly reduced its original
demands by making progressively lesser requests.
In light of the foregoing, it is apparent that the Respondent did not
approach the bargaining table at any time with an open mind and
sincere desire to reach agreement, but rather, had a predetermined
intention not to do so., Accordingly, we find, in agreement with the
Trial Examiner, that the Respondent failed to bargain in good faith
with the Union and thereby violated Section 8(a) (5) and (1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that the Respondent, Orkin
Exterminating Company of Florida, Inc., Jacksonville, Florida, its
officers, agents, successors , and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order with the said additions
and modifications.
1. Delete from paragraph 1(d) of the Recommended Order the
phrase "threatening employees with loss of their jobs if they strike".
2. Add to said paragraph 1(d) at the end thereof "reporting to
State agencies that employees have resigned when, in fact, they were
discharged, in order to punish them for their union activities."
6 See D' L.R B v Fitzgerald Mills Corporation , 313 F. 2d 260 (C.A. 2), enfg. 133 NLRB
877, cert denied 375 U S 834.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Add the following as a new paragraph 2(g), the present para-
graphs 2 (g) and 2 (h) being consecutively relettered :
"(g) Notify the Unemployment Compensation Division of the
Florida State Industrial Commission, in writing, that the National
Labor Relations Board has in the subject proceeding determined that
Charles Fight was discharged by Respondent in order to punish him
for his union activities and did not resign his employment."
4. Delete from the second indented paragraph of the Trial Exam-
iner's notice the sentence " Wx WILL NOT threaten employees with loss
of jobs if they strike."
5. Add the following two paragraphs to the Trial Examiner's
notice :
WE WILL NOT report to State agencies that employees have
resigned when, in fact, they were discharged, in order to punish
them for their union activities.
WE WILL notify the Unemployment Compensation Division of
the Florida State Industrial Commission, in writing, that the
National Labor Relations Board has determined that Charles
Fight was discharged by the Company in order to punish him for
his union activities and did not resign his employment.
6. Add the following immediately below the signature line at the
bottom of the notice :
NoTE.-We will 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 Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
MEMBER FANNING, concurring in part and dissenting in part:
I concur in the majority's conclusion that Respondent violated Sec-
tion 8 (a) (1) and (3) of the Act. I also agree that Respondent violated
Section 8 (a) (5) to the extent it was unwilling to process a grievance
relating to employee Davis. However, I cannot agree that the General
Counsel has sustained his burden of proving by a preponderance of
the evidence that Respondent refused to bargain in good faith, in viola-
tion of Section 8 (a) (5) and (1) of the Act.
The basis for the majority's finding that Respondent bargained in
bad faith is unrelated to the actual bargaining negotiations that took
place in a hotel room in Jacksonville, Florida, on January 10, 23, and
24, February 11, 25, and 26, and March 19, 1964. Indeed, the majority
appears to concede that no bad faith was evidenced by the Respondent
with respect to its negotiations relating to noneconomic matters. The
record shows, and the Trial Examiner found, that during the first
four and one-half meetings the parties reached full agreement as to
`ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 87
'these matters. Thus , the parties reached agreement on a recognition
clause, seniority , a management rights clause , a clause permitting the
Company to contract out work, a grievance procedure including arbi-
tration , the furnishing of employee uniforms by the Company , leaves
of absence and physical examinations , no strikes or lockouts, job
stewards , a checkoff clause, a picket line clause , and a termination
clause. Obviously , some of the issues resolved in these collective-
bargaining sessions were beneficial to Respondent and some were bene-
ficial to the Union and its members , and some may have had economic
implications. What is clear, however, is that Respondent made sub-
stantial concessions to the Union in this area of bargaining despite its
previous unfair labor practices , including threats of some supervisors
that the Company would not bargain or give in to union demands.
It appears to be the majority's position that no violation of Section
8(a) (5) occurred until the parties began negotiations with respect to
clear economic issues during the last two and one -half bargaining
sessions. As to these sessions, the Trial Examiner found that the
Respondent "did not have the requisite intent to explore in good faith
the possibility of getting .together with the Union on economic matters
and did not intend to try to reach a meeting of the minds on those
matters." He found that Respondent 's "intent" was established by its
conduct outside the bargaining sessions . In the absence of evidence of
"any change" in Respondent 's intent during negotiations , the Trial
Examiner found that a violation of Section 8 (a) (5) occurred . Neither
the Trial Examiner nor the.majority indicate precisely what evidence
would be necessary to establish a "change " in Respondent 's intent not
to bargain . It seems to me that in the circumstances of this case the
only evidence of change acceptable to the majority would be a yielding
by the Respondent to the Union's demand with respect to wage and
fringe benefits . The record does not suggest that Respondent bar-
gained on economic matters in an intransigent manner. The Union
made its economic proposals and the Respondent countered by sub-
mitting at least four proposals of its own , each of which differed from
the former. After the sixth bargaining session Respondent's proposal
apparently was sufficiently attractive to the Union 's negotiating com-
mittee to be submitted to the employees for approval . While it was
rejected by the employees , this does not, in my opinion , suggest that it
'was made by the Respondent in bad faith. During the seventh bar-
gaining session the Respondent increased its economic offer to include
a 15-cent-an -hour increase for its termite control employees. This
offer too was submitted by the Union to the employees and rejected by
them in secret ballot. Subsequent thereto the Union requested the
Respondent to resume bargaining and the Respondent agreed to do so.
The record does not disclose what happened thereafter . However,
Respondent asserts in its brief that bargaining continued.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For these reasons, and with particular emphasis on the character of
the bargaining sessions between the parties, I would find that the
General Counsel has not sustained his burden of proving, by a pre-
ponderance of the evidence, that Respondent has violated Section
8 (a) (5) of the Act in the bargaining negotiations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented by counsel , was heard before Trial
Examiner Alba B. Martin in Jacksonville, Florida, from March 30 to April 9, 1964,
on complaint of the General Counsel and answer of Orkin Exterminating Company
of Florida, Inc., Respondent herein.' The issues litigated were whether Respondent
violated Sections 8(a)(1), (3), and (5) of the Act. At the conclusion of the hear-
ing the General Counsel presented oral argument. Respondent filed a brief which
has been carefully considered.2
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Florida corporation with a plant located at Jacksonville , Florida, is
engaged in the business of providing pest and termite control services to homes and
commercial establishments . During the year prior to the issuance of the complaint
Respondent's gross sales exceeded $500,000 and Respondent purchased over $50,000
worth of goods and materials from outside the State of Florida . Respondent admit-
ted and I find that Respondent is now, and has been at all times material herein, an
employer engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the
Act.
Respondent is a wholly owned subsidiary of Orkin Exterminating Company, a
Delaware corporation , whose headquarters is in Atlanta , Georgia, and which oper-
ates in a number of States of the United States through wholly owned subsidiary
corporations , including Respondent . Perry Kaye is vice president and operations
manager of the parent company and of Respondent . Earl F. Geiger is vice president
and sales manager of the parent Company. Perry Kaye expressed belief that Geiger
was also an officer of Respondent . It was not disputed and I find on the entire record
considered as a whole that in the events herein Geiger was acting with authority
from Respondent and that Respondent was responsible for his statements and actions.
II. THE LABOR ORGANIZATION INVOLVED
Truckdrivers, Warehousemen and Helpers of Jacksonville, Local Union No. 512,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , herein called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
' The charge was filed on December 4 ; the amended charge was filed January 27; the
second amended charge was filed February 5, the third amended charge was filed March 2;
and the fourth amended charge was filed March 16, 1964. All of the above charges were
filed by the Union.
2 In a motion filed after the bearing the General Counsel moved to correct many
errors in the record. Respondent objected to the granting of 12 of the proposed
changes but not to the granting of the rest Upon consideration the unopposed changes
are hereby made, and the General Counsel's motion is denied as to the 12 opposed changes.
The General Counsel ' s motion has been placed in the exhibit file as "Trial Examiner's
Exhibit No. 1," and Respondent's reply and covering letter as "Trial Examiner's Exhibit
No. 2."
I
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC.
III. THE UNFAIR LABOR PRACTICES
89
A. The setting
In June or July 1963,3 Respondent 's district manager, Samuel Walkup, who is
superior to the branch manager in the Company 's hierarchy , spoke to all pest control
servicemen and supervisors in Jacksonville concerning "side jobs"-the doing of jobs
"on the side" with company equipment and chemicals and pocketing the money.
Walkup told pest control people that the Company knew the practice was going on,
that the Company would be on the lookout for such practice , and that anyone found
engaging in it would be discharged immediately . Insofar as the record shows, Walkup
discussed no other subject.
Effective September 3, Respondent replaced its long-time and well-liked branch
manager in Jacksonville , Walter Bryan , with another branch manager , Harry J.
Balcom , who had held the same position for about 2 years in Orlando , Florida, and
in West Palm Beach, Florida , for about 4 or 5 years . According to Vice President
Geiger, Balcom's "strongest forte" has always been to follow company policy. Bryan
was not discharged but was transferred to Albany, Georgia , where he is still serving.
According to the credited testimony of Jesse Wright on cross-examination , Balcom
said, presumably to employees , that "if we cooperated with him in running our routes
and getting our collections in, everything would be alright."
By September 17, 2 weeks after he took over , Balcom had discharged five employees
for doing "side lobs" and keeping the money ; and on September 17 he asked for and
received the resignation of a supervisor allegedly for his part in the "side jobs."
On September 18 Branch Manager Balcom reported to employees that the Com-
pany had accepted the resignation of the supervisor . On that day , also, Vice Presi-
dent Earl F . Geiger, of the Atlanta office, spoke to the pest control personnel . Geiger
testified that he came to Jacksonville to try to stop the "side jobs" with no further
loss of personnel He told the pest control personnel that the "side jobs" would have
to stop . He said the Company was partly responsible because it had not taught
employees not to do them. He said that all past sins and transgressions would be
forgotten but that all side jobs must stop . In testifying Geiger did not contend that
any other subjects were discussed . In substance , Geiger testified that at this point
the "side jobs" substantially ceased. Certainly the record alluded to the doing of no
specific "side jobs" thereafter except one allegedly done by Kight as seen below.
Thereafter "side jobs" did not exist as a major problem.
B. The self-organization of the employees
As a result of the above management changes, discharges of employees , and com-
ments by Balcom and Geiger, fear and feeling ran so high among the employees that
there was talk of walking off the job. Instead , upon the suggestion and initiative of
employee Jesse Wright,4 on the evening of September 18, some 30 employees held a
meeting and signed cards applying for membership in the Union and authorizing the
Union to represent them for the purposes of collective bargaining . This was a com-
pletely spontaneous move by the employees.
C. Respondent 's reaction to the unionization of its employees
Respondent 's reaction to the self-organization of the employees was as immediate
and conclusive as was the action of the employees in signing up for the Union. No
Orkin employees in its over 700 offices throughout the country were then or ever had
been up to this time represented by a union The entire record established that
Respondent was dead set against the unionization of its employees and that its policy
of opposition to the Union was faithfully followed by its officers and supervisors
right down the line. This conclusion is borne out by Respondent 's efforts to transfer
the employee leader from the scene, Respondent 's written threats and statements
s All events herein occurred from June through December 1963 and from January
through ,March 1964.
4 This employee ' s name is Jesse L. Wright, Sr He is refei red to herein as Jesse W right
and Wright.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union could do nothing for the employees, and by verbal threats and inter-
rogations of employees, and by other violations by officers and supervisors high and
low, as seen below.
D. Respondent's efforts to transfer the employee leader
On September 19, the day after Jesse Wright led the 30 employees into the Union,
according to the credited testimony of Wright, who by his demeanor impressed me
as a very credible witness, Branch Manager Balcom summoned Wright to his office,
stood behind his desk, said, "Fellow, I hear you have a message for me," and accused
Wright of "flapping your big mouth about a union and a walk-off." Balcom asked
if Wright was unhappy in his job, and stated that if he was not satisfied he could
leave right then and "take one or all of them" with him. Balcom added that "the
Company is bigger than you and I both." Wright asked if Balcom was firing him.
The latter replied in the negative and added that Wright was one of his best men.
The second following day, Saturday, September 21, Balcom telephoned Wright
at his home and informed him that on Monday the Company wanted to take him to
Orlando, Florida, to talk with District Manager Walkup. (The district, with head-
quarters in Orlando, covered northern Florida, including Jacksonville.) On Monday,
with the Company providing the ticket, Wright went to Orlando and talked with
Walkup.
District Manager Walkup talked to Wright about becoming a supervisor in Cocoa
Beach, Florida, which is about 160 miles from Jacksonville. Walkup talked of a
salary exceeding Wright's present income. Wright had never been a supervisor
although he had worked for the Company for some 43/4 years. Walkup testified
concerning Wright's "certain natural ability for leading men, which is definitely
required of a supervisor " Wright was a successful pest control serviceman for
years but had not done well as a pest control salesman during the first 6 months of
1963. At his own request Wright had transferred back to serviceman on July 1,
1963, and had not thereafter , to Walkup's knowledge, complained about his status.
Yet on September 23, in taking the initiative to persuade Wright to transfer out of
Jacksonville , Walkup told him it was a step down for him to go back to the ranks
and that it would save face to become a supervisor . No testimony suggested that-
Wright was concerned about saving face. Although Walkup talked of Wright's
having to pass a company written examination before becoming a supervisor, the
record reflects no substantial doubt in Walkup 's mind but that Wright would pass.
the examination . Walkup admitted that on Friday night, September 20, when he
called Balcom to send Wright to Orlando , Walkup learned from Balcom that the
men had had a meeting on September 18; but Walkup denied knowing , when he
spoke of the Cocoa Beach job to Wright , anything about the latter 's union activity.
As on September 19 Balcom had accused Wright of "flapping your big mouth" about
a union , it is inconceivable that if the following night Balcom told Walkup about the
meeting of the men he did not also, tell Walkup at the least that he suspected a union
and Jesse Wright were involved . During their conversation in Orlando Walkup told
Wright that it was against company policy to promote an employee to supervisor in-
the town in which he worked.5
Wright took a few days before declining the proffered job on the ground that they
had a nice home in Jacksonville and his wife had a good job there. In substance,-
on cross-examination , he explained his delay by saying "I was scared . This was the
first time I had been in union activity . I don't know-I didn 't know what they are-
going to do to me. I was scared to tell him no." On cross-examination Wright
testified further, "I felt in my mind they were trying to get me out of Jacksonville."-
A few days later the Company 's technical representative for northern Florida,
Charles Witherington , spoke to Wright about becoming an assistant technical repre-
sentative , a traveling job around northern Florida which would keep Wright out of-
Jacksonville most of the time during the week and permit him to be home only on,
the weekends. As a pest control serviceman Wright traveled only within the Jack-
sonville area and was in and out of the office everyday. Witherington talked of a
salary in excess of what Wright was making and an almost guaranteed raise by the-
end of the year . When Wright protested that he was not qualified for the job,
Witherington replied that he could train him. Witherington talked of Wright's lead-
ership qualifications and said that his job would be to train other men . Witherington
has a master 's degree in entomology . It was not shown that Wright is a college
graduate.
5 About 21/ months later John Taylor was made a supervisor in Jacksonville where-
he had been working as an employee
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 91
Witherington testified that for a year or two before he spoke to Wright he thought
he needed an assistant because of the workload , and that on several occasions he had
discussed this need with his superior , the parent company's technical director in
Atlanta, Georgia. He testified in substance that he spoke to one Tom Mills in Pensa-
cola, Florida, about such a job in February 1963, and that it was not until midsum-
mer that Mills was no longer under consideration for it. Given an opportunity,
Witherington did not convincingly account for his delay in talking to Wright about
the job from midsummer until just after the beginning of the union movement in
mid-September. Nor did he respond to the question as to how he happened to take
the initiative to take the matter up again with Atlanta in September just a day before
he first spoke to Wright about it.
The entire record considered as a whole established that in suggesting these two
other positions to Wright, District Manager Walkup and Technical Representative
Witherington were acting on behalf of the Respondent, and I so find; and that
Respondent was motivated in its timing of the suggested reassignments of Wright
by a desire to remove him from the Jacksonville scene where it knew he was "flap-
ping" his "big mouth" about a union. Thus, Wright's "certain natural ability for
leading men" was suddenly recognized only after he began demonstrating this ability
by leading the self-organizing movement ; as he modestly testified on cross-examina-
tion, "I believe I have been the go-between the men and the Union." Almost imme-
diately he was taken to Orlando at company expense to be offered one possibility.
Shortly he was offered the second , for which he was technically scarcely qualified,
at a time explained in the record only in relation to his union activity . Upon the
entire record , I hold that Respondent spoke to Wright about the two jobs in an
effort to deprive the newly organized employees of his services, and to defeat the will
of the employees and the Union, Respondent thereby interfering with the employees
in their exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby
violating Section 8(a) (1).
E. Efforts to defeat the, Union at the election
Pursuant to a petition'filed September 20, and a Decision and Direction of Elec-
tion dated October 25, on November 22 the Regional Director held an election in a
unit consisting principally of pesf control servicemen and termite control servicemen
and helpers , and excluding office employees and salesmen . There were 53 employees
eligible to vote.
To defeat the Union at the election Respondent wrote its employees ' two letters,
and high officials made several trips to Jacksonville to try to persuade these 53
employees to vote against the Union. Vice President Geiger stated that "I tried to
persuade all the employees to vote against the Union." At least partly to this end
Geiger, of Atlanta, Georgia, made two trips to Jacksonville in November staying 2
days each time, and went a third time a day or so before the election . District
Manager Walkup of Orlando, Florida, was in and out of Jacksonville. Vice Presi-
dent Kaye, operations manager over 700 Orkin offices throughout the country, was
sufficiently interested in how these 53 employees were going to vote to make his first
trip to Jacksonville in about 2 years and give them two talks, one before the election
and one immediately after. Kaye, Geiger, and Walkup were all in Jacksonville the
day before and the day of the election.
Despite Respondent 's massive effort, by numerous violations of the Act , as seen
above and below, and by lawful persuasion, to defeat the Union, the employees voted
overwhelmingly for the Union: 32 in favor of the Union; 8 against the Union; and
11 challenged ballots.
F. Written threats and message of futility
On or about November 12 Vice President Kaye sent the following letter "To All
Orkin Employees At Jacksonville and St. Augustine" on the letterhead of the parent
company:
On Friday, November 22nd, between 3:30 p.m. and 4:30 p.m., you will have
the right to vote in a secret election to determine whether or not you want to
be represented by the Teamsters Union. This is a most important decision for
you and your family.
Here are some of the things I would like you to think about and discuss with
your family before the election:
1. Problems at Jacksonville.
As you know, we have had some problems here at the Jacksonville office in
the past, Your Company 's Atlanta Home Office has not been aware of these
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
problems until the last two to three months. Since that time we have made
changes in management in Jacksonville, and have added a vacation relief man,
set monthly guarantees for pest control servicemen and made other changes in
the Pest Control Department. We recognize that similar problems may exist
in the Termite Department and we are also taking steps to make some changes
there. I am continuing to study the Jacksonville situation and will make such
other changes that are necessary to be sure that each of you are working under
the same conditions and receive the same benefits that are in effect for our
employees at other branch offices throughout the United States. We believe that
you can see that we are taking positive steps to clear up problems that may have
been here in Jacksonville in the past.
2. Is a union needed at Jacksonville?
Orkin has been in business since 1901 and now has over 700 offices through-
out the country. None of our people are now represented by a labor union
nor have they ever been represented by a union. I believe this is because our
employees have never felt that they had reason to need a representative to act
and speak for them. I personally do not believe that a union would be of any
help to any of you here in Jacksonville.
3. Strikes and Violence.
Everyone of us has money obligations that we have to meet each month We
cannot afford to miss a pay check The Teamsters Union has a bad history of
strikes and violence. I do not believe that you would want to run the risk of
being involved in a strike or violence.
4. Dues, Fines and "Special Assessments."
Think-can this Teamsters Union do anything for you? Certainly it knows
nothing about our business-it is a truckdrivers' union. Why pay out part of
your pay check in dues, fines and "special assessments" to support this Team-
sters Union when they can do nothing for you? [Emphasis supplied.]
5. Who are the leaders of this Union drive?
Look around . . . who are the men who are trying to get you in this Union?
Ask yourself-what is in it for them? Do they want to be the shop steward to
get a job with the Union so that they can try to boss you around9
Let me urge you to think about this election very seriously. Weigh what you
have to gain against what you have to lose. If you do this frankly and honestly
with yourself, I am sure that you will vote "NO" and against the Teamsters
Union on the 22nd.
On November 19, 3 days before the election, Vice President Kaye sent to the same
employees on parent company letterhead the following letter:
This coming Friday each of you will have the chance to vote by secret ballot
as to whether or not you want to turn your job and your future to the Teamsters
Union. I want to urge each of you to think seriously about this most important
decision and to be sure to vote. If you fail to vote, you will let someone else
make your decision for you.
Below are some questions and answers which I want you to study carefully
before you vote on Friday.
Q. Can the Union guarantee me my job at Orkin?
A. NO! Only the continued growth and success of your Company-Orkin-
can give you future employment with Orkin.
Q Can the Union give me raises, promotions, and increased benefits?
A. NO! Only your Company-Orkin-can give you raises, promotions and
increased benefits based upon economic considerations and your ability to
progress.
Q. Can the Union call me out on strike against my wishes?
A. YES! Often times people working under a union contract are called out
on strike against their wishes and are required to obey picket lines Sometimes
they also find that after the union has called off the strike someone else has
taken their job-and not only have they lost all the money during the strike and
gone heavily into debt, but they have also lost their jobs.
Q. If I have signed a Union card, can I still Vote "NO" against the Union9
A. YES! No matter why or what you have signed, you can still vote against
the Union.
Q. What can the Teamsters Union do for me?
A. NOTHING! The Teamsters know nothing about our business. All these
outsiders can do is charge you dues, fines, so-called "special assessments" and
call you out on strike. If you don't want this, vote "NO."
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 93
Let me again urge you to give this matter careful consideration and if you do,
I believe you will want to vote against this group as shown below.
Sincerely,
PK/jw
(S) Perry Kaye
Vice President and Operations Manager
Do you wish to be represented by Teamsters Union No. 512?
YES NO
THIS IS THE WAY TO VOTE AGAINST Tt )E TEAMSTERS UNION.'
To be noted is that both of these letters talked of the possibility of a strike and
that the second letter placed emphasis under the thought that strikers have "lost
their jobs." The record contained no suggestion that at this time a possible strike,
economic or otherwise, was being discussed among the employees or rumored in the
plant. Thus it appears beyond a doubt that Vice President Kaye, in introducing the
thought of a strike in these letters, timed as they were 10 days and 3 days before the
election, was intentionally threatening employees with loss of their job rather than
merely abstractly instructing them in the consequences of an economic strike. Cf.
Hoffman-Taff Inc., 135 NLRB 1319, 1321. The Little Rock Downtowner, Inc.,
143 NLRB 887, 890. Further, informing the employees in both letters that the
Union could do nothing for them was an act reasonably calculated to create an
atmosphere of futility and to discourage support for the Union among employees.
By such threat and message of futility Respondent interfered with, restrained, and
coerced employees in the rights guaranteed them in Section 7, thereby further violat-
ing Section 8(a)(1). Cf. The Little Rock Downtowner, Inc., supra; The Trane
Company (Clarksville Manufacturing Division), 137 NLRB 1506.
Further to be noted is that in "Problems at Jacksonville" in the first letter the indi-
cation was that the changes which had been made and would be made were for the
benefit of the employees, not to "crack down" on them. Further to be noted is that
Kaye stated that the Atlanta home office had been aware of the Jacksonville problems
for only 2 or 3 months, whereas Geiger, of Atlanta, and Walkup, who took his orders
from Atlanta, testified in substance that Atlanta had known of the problems for 21/s
years.
G. Other threats, interrogations, interference, and promises of benefit
by officials and supervisors
1. Geiger's interrogation of Wright, promise of benefit, and threat of reprisal;
Balcom's threat to King
Early in November Vice President Geiger returned to Jacksonville and talked to
employees individually and collectively. On November 6 he sent for Jesse Wright
and they introduced themselves to each other. In substance, as both testified, Geiger
asked Wright why Wright and the men wanted a union. Wright replied for job secu^
rity, pointing out that now the Company could fire a man at any time. According
to Geiger, Wright cited the case of the given supervisor, whom the Company had
fired after 21 years' service. Geiger replied that he had been discharged for mis-
appropriation of company funds. According to Wright, Geiger talked about not
wanting a third party sitting in. When Geiger asked why Wright did not take the
Cocoa Beach job, Wright gave as a reason that the Company could have fired him to
break up the Union before the ink was dry on his contract.
According to the credited testimony of Wright, during this conversation Vice
President Geiger said, "You know who is going to get squeezed, the man in the middle
... now who is going to get screwed in the end? ... old Jesse." Geiger also said
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company had never had a union and would not accept one. Wright said
that "one of us will be surprised on the 22nd and I think it will be you." In sub-
stance Geiger said that winning the election would not determine what the Union
would get, that the Company did not have to accept union demands.
Under all the circumstances of this case I hold that Geiger's interrogation as to
why Wright and the employees wanted a union reasonably tended to interfere with,
restrain, and coerce employees in the rights guaranteed in Section 7 of the Act, and
that the remark about Wright getting "screwed in the end" amounted to an implied
threat of reprisal because of Wright's union activities; Respondent thereby violating
Section 8 (a) (1) of the Act.
During the discussions between Geiger and Wright the subject arose of Wright's
entitlement to certain salesman's commissions of about $1,000 for work on the 48
Duval County schools prior to his return to being a serviceman on July 1. Accord-
ing to Wright's credited testimony, Geiger said that legally the money was not
Wright's, that the Company liked to do favors for some employees, and that the
Company would like to give him the commission but that it could not do so if the
Union came in. Respondent contended in substance that by virtue of certain docu-
ments Wright signed when or shortly after he returned to service work, Respondent
was not thereafter legally bound to pay him the $1,000 commissions previously
earned as a salesman. A resolution of the issues before me does not require that I
resolve that question.
Under all the circumstances in this case, Geiger's remarks about the commissions
amounted to a promise of benefit if the Union did not come in and a threat of reprisal
if it did; Respondent thereby further interfering with, restraining, and coercing
employees in the rights guaranteed in Section 7 of the Act, Respondent thereby vio-
lating Section 8 (a)( 1 ).
In substance Geiger testified that during this conversation, as they were talking
about the supervisory position Wright had turned down, Geiger asked Wright what
were his ambitions. Wright replied that he had always wanted to be a politician and
that in leading the men now he was expressing some of his ambition.
During this November 7 conversation Geiger also said, according to Wright's
credited testimony, that the Company was going to change twice-a-month service in
Jacksonville to once-a-month service, and that on some jobs the men were pricing the
jobs too low and they should be raised. To be noted is that both of these changes
would help pest control employees by lessening their work and increasing their
commissions.
Particularly to be noted about Geiger's remarks to Wright in their far-ranging con-
versation on November 7 is that nothing Geiger said indicated a management intent
to crackdown on the employees, to tighten up on them, to improve their perform-
ance, to enforce alleged company policies or rules, or to make any change in man-
agement's relations with employees
On November 13 or 14, when Geiger again came to Jacksonville, he asked to talk
with Wright and two other employees,in the office. On that occasion he accused
Wright of intimidating employees, which in substance Wright denied. Geiger
admitted that some employees came in and told the Company what was going on.
Geiger mentioned the name of one employee, Don Stover, observing that the men
thought Stover was a spy. Wright replied that some of the men thought Stover was
indeed a spy. Geiger said in substance that the Company had not one but five or six
spies. By informing an employee that the Company had five or six spies, thereby
giving the impression of surveillance of employees in the exercise of their rights
-under Section 7 of the Act, Respondent further violated Section 8 (a) (1) of the Act.
A few days after Geiger's early November trip, Branch Manager Balcom called
,employee King into his office and told King, according to the latter's credited testi-
5nony, that Balcom knew he was attending the union meetings , that the Company
had ways of getting rid of those who were in the Union and vote for the Union, and
-that he would like to think of King as a good company map. Under all the circum-
stances of this case, informing this employee the Company had ways' of getting rid
,of union participants was a threat and ,a violation of Section 8(a)(1). .
2. Geiger's threats to employees and giving impression of surveillance;
Walkup's threat to replace strikers
Vice President Geiger testified in substance -that concerning the. Union he spoke
substantially the same to the pest control'servicemen on November 6 and the,termite
servicemen and the office girls and salesmen on November 7. He admitted telling
ithem that Orlkiu ',had no unions but denied =stating that Orkin never would have a
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 95
union in Jacksonville. He admitted stating that it could happen that employees would
lose their jobs as a result of the Union. He explained this by saying he told the
employees that:
The fact that they signed cards did not mean we had a union. . . . They would
have to vote a union in , which was a majority vote, if they voted a union in, the
Union and the Orkin Exterminating Company would negotiate and if they could
not agree in ... those negotiations there would be a strike, we would have to
bring people in as an obligation to our customers to service the accounts ... of
those people who went on strike. [Emphasis supplied.]
Geiger added that he told the meeting of office girls and salesmen that "I thought Jesse
was in this for personal reasons and that he was the only one that had anything to
gain." In substance, Geiger told them he thought Wright wanted to be the union
steward. As Geiger explained in testifying, this was in reference to his conversation
with Wright the previous day during which Wright had spoken of leading the men
in the union movement as being an outlet for his ambitions. In testifying, Geiger
admitted that Wright had not in fact told him that he expected to be union steward.
Employee Beverly Hood testified, in substance, that in talking to the women office
employees and the salesmen, Geiger
... said he was calling us together to tell us some . . . servicemen had talked
with the Union and were trying to bring the Union into the Company; that Orkin
had never had a union, it never would have a union, they would not sign a con-
tract, that if they voted the Union there would be an inevitable strike and they
would bring men in from other branches to run the routes and the boys would
be without a job. He said we . . . the salesmen and the girls in the office, had
influence over the servicemen and it would be appreciated . . . if we used it to
the Company's benefit; that he knew we could not tell them exactly how to vote,
but we did have influence . . . . He mentioned Jesse Wright, he said- Jesse was
a leader .... The leader ....
Employee Annie Mae Pararo remembered the substance of. what' Geiger said to
the office employees and salesmen as follows: - '
He said there had been some talk about a union being voted into the Company
and that the Union had tried to be organized at another Orkin office across the
country but they had never been voted in yet If they should be voted in, the
Company would not sign any contract. The boys would have to go on strike
and therefore they would lose their job. They would call other men into fill
their jobs and the boys would be out of jobs. He would appreciate, he knew
we had some influence with the boys when we came in contact with them, he
would appreciate us to use that influence not to vote in the Union.
Employee James King, a very credible witness, testified that in talking to the
termite men, Geiger told them that:
We didn't need a union. Orkin had never had a union and we never would have
a union. It was tried in Atlanta and was voted down and if anybody wanted to
go to Atlanta and find out how happy they were it was all right That they
didn't need a middle man to speak for us, that he would put his phone number
on the blackboard along with him name and his line and office was always open
to us .... He made the statement that if we get a union and if we went on strike
they had enough "blue shirts" to run the office without anyone presently
employed.
King explained that blue shirts were technical men. '
Thus, Geiger's version was that he said that the Company would brink iii others to
service the accounts of strikers, and the employees' version was that he ,'said the
Company would bring others to take their routes and they would 'be;btit of jbbi. To
the employees it amounted to the same thing whichever way its was "stated; a threat
that if they struck they would lose their jobs.
Geiger admitted that he had no knowledge of any union threat to strike: ' It thus
appears, and I conclude, that in threatening economic reprisal if the employees struck,
Respondent through Vice President Geiger further interfered with, restrained, and
coerced employees in their Section 7 rights, 'Respondent thereby further violating
Section 8 (a)(1). Cf. Hoffman-Taff, Inc., supra; The Little Rock Downtowner, Inc.,
supra.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the credited testimony of Merlin Davis, who by his demeanor
impressed me as a credible witness, on this visit Geiger told a group of servicemen
that the Company knew who belonged to the Union, who had signed cards, and who
had attended meetings. Geiger added that "we have spies also ." Although Geiger
denied that the Company had any spies, upon this testimony, credibility finding,
Respondent's actions , and the entire record considered as a whole, I find and conclude
that in fact Respondent did know what employees signed cards and who attended
union meetings. By telling employees that the Company had spies, thereby giving
the impression of surveillance, Respondent interfered with employee Section 7 rights,
Respondent thereby further violating Section 8 (a) (1).
In the light of all the facts I conclude, as testified by the employees, that Geiger
stated not only that Orkin never had had a union but also that it never would have
a union, and would not sign a contract. The entire record showed that it was prime
company policy to defeat the Union and that this policy was understood by officials
and supervisors.
The day before the election Supervisor Crelia sent employee Rollins in to see
District Manager Walkup. In the presence of Crelia, Walkup asked Rollins if he was
going to vote the right way. Walkup then said that if the Union was voted in, and
the Union and the Company could not reach an agreement and there was a strike,
the Company would bring in many men to service the routes. By this interrogation
and this implied threat to replace the men Respondent further violated Section 8(a)
(1) of the Act.
3. Vice President Kaye's promise before the election and attack
and threats after the election
The morning before the election, on November 21, Perry Kaye, vice president and
operations manager of the parent corporation and also of Respondent, spoke to the
employees in groups. During his remarks he said in substance, according to the
credited testimony of several employees confirmed in part by Vice President Geiger
and Kaye himself, that when a union comes onto a property it "blows up a leader
full of hot air and big union ideas who leads the men astray." He stated also that
he had something good to tell them the next day after the election but that it was
against the law to tell them now. By making this promise of benefit to try to influ-
ence the result of the election, Respondent further violated Section 8(a) (1) of the Act.
Immediately after the overwhelming vote for the Union at the election the follow-
ing afternoon, Kaye held another meeting of employees. He said nothing about the
"something good" he had promised them the day before. Instead he gave them a
"tough," a "crackdown," speech. He told them in substance that the Union was not
going to run Orkin; that hereafter employees would follow company policy to the
letter; that they would be crackerjack servicemen; that credit allowances and making
collections would be kept to their barest minimum; that they would service their
contracts at the exact times called for in the contracts; that their routes would be
finished by the 25th of each month; that a record of complaints on each route was
sent to the district office; that anybody who did not want to follow company policy
could resign or he would be discharged; and that Balcom was in charge and had the
full backing of Atlanta. Vice President Geiger, who heard the speech, admitted on
cross-examination that employees could have taken this speech as a warning. District
Manager Walkup testified that in this speech, Kaye gave employees only existing
company policy, but Walkup admitted that he did not know whether employees had
ever been told about the company policy of sending a record of complaints on each
route to the district office.
Under all the circumstances of this case, the tone and contents of this talk amounted
to a threat of economic reprisal against the employees because they had selected the
Union as their bargaining agent. As has been seen above, in their several talks with
employees between the advent of Balcom and the election, and in Kaye's two letters,
Respondent's officials had attacked the Union but had put no pressure on the employ-
ees except on the subject of "side jobs." Then immediately after the election Kaye
came down upon the employees like a "ton of bricks"; he dealt them a blow to the
body; and he threatened their very jobs unless they toed the line and followed "com-
pany policy" in every act of their employment life. By placing this tough massive
pressure upon employees and threatening them with economic reprisal because they
had selected the Union as their bargaining agent, Respondent further violated Section
8(a)(1) of the Act.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 97
4. Violations by Supervisor Hardy
Paul Hardy, aged 24, had worked for Respondent as a termite laborer for some
2 or 3 years in Orlando, Florida, when he was transferred to Jacksonville about
July 8, 1963, as a supervisor over the Duval County School job. On August 1 he
became a supervisor in the Company's general termite business. In Orlando he had
worked part of the time under Branch Manager Balcom, who himself became branch
manager in Jacksonville 2 months later, on September 3. Hardy impressed me as a
willing, even an eager, executor of Respondent's antilabor policy, and because of his
strong bias his credibility was highly doubtful on controversial matters.
a. On Sunday, September 22 or 29, according to the credited testimony of James
Arthur King, who by his demeanor or as a witness impressed me as a very credible
witness, King and Hardy had a conversation at the Jacksonville office. When King
asked Hardy who was the distinguished gentleman he had seen the day before (with
Hardy), the latter replied, "That distinguished gentleman was a union representative."
During the ensuing discussion about the Union, Hardy said in substance that the
Company needed a man to attend union meetings so that it would know what was
said and would "be prepared for them in advance." When King spoke of the risk
such a man would be taking, Hardy reassured him with the thought that the Company
would back him up 100 percent. He said he knew Jessie Wright was a ringleader,
and that the three Negroes were in the Union. The three Negroes, all of whom
worked under Hardy, were Henry Thompkins, Joseph Stafford, and Worthy Smith.
King stated that he would see if he could attend a meeting.
King attended a union meeting and reported to the meeting the conversation he
had had with Hardy. A day or so later Hardy told King he did not like it a bit that
King had reported their confidential talk, that King had put Hardy's job in jeopardy,
and that he was not going to lose his job for anybody.
By suggesting the Company's need of an informer and that the Company would
back him up, Supervisor Hardy interfered with the rights of employees guaranteed
in Section 7 of the Act, Respondent thereby further violating Section 8(a)(1).
b. One evening in November, Hardy placed himself in a public telephone booth
on the street near the union hall where union meetings were held. Hardy testified
that he went there out of curiosity to see if there was a meeting since he had heard
rumors there was to be a union meeting that night. Unconvincingly he testified that
he was not interested in the number of employees who attended or their identity.
From the telephone booth Hardy telephoned Branch Manager Balcom and told him
there was no meeting going on. Hardy testified Balcom must have known a meeting
was scheduled for that night because "all the union meetings was mentioned by most
all of the employees all during the day before a meeting . . ." and because "most
everybody knowed" when union meetings were going to be held. Hardy telephoned
Balcom to tell him that no employee was at a meeting and there was no meeting
because Hardy, as he testified, thought the employees had been discouraged away
from the meeting and that Balcom would be interested to know that they had been
discouraged away because the Company did not want a union. He testified further
that he was pleased when he saw that the men were discouraged away because he
was "for the Company."
By Hardy's placing himself in the telephone booth to engage in surveillance upon
a union meeting, thereby giving the impression of engaging in such surveillance (at
least two employees saw him there as they were going to or from a union meeting
or while they were at it), Respondent further violated Section 8(a)(1) of the Act.
c. The day after the above telephone incident, according to the credited testimony
of employee King, Supervisor Hardy asked him if he had been at the union meeting
the night before. Such interrogation reasonably tended to interfere with, restrain,
and coerce employees in the rights guaranteed in Section 7, Respondent thereby
further violating Section 8 (a)( I).
d. Within a week before the election, according to King's credited testimony,
Hardy asked him how he was going to vote. Hardy admitted asking King if he had
made up his which way he was going to vote. Either version reasonably tended to
interfere with, restrain, or coerce employees in the rights guaranteed in Section 7,
Respondent thereby further violating Section 8(a) (1).
e. The morning after the election Hardy said to King: "Well, you think you have
got a union. Orkin's never has had a damn union and never will have a union."
f. The first thing the morning after the election, Hardy spoke to the termite crew.
He was then the only supervisor over this crew of some 10 or 12 men. He cracked
down on them, telling them he wanted "more work, more work," out of them.
789-730-66-vol. 152-8
'98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee King, an articulate witness, testified that after the election Hardy com-
plained about the amount of work the termite treaters did, that he "became over-
bearing. You could not do enough to please him regardless of what you did and you
,could never satisfy him." He set a certain quota of inspections or reinspections that
the men were supposed to do per day, and he was unconcerned with their pleas on
some occasions that because of the geography of the situation or the long distances
involved in driving to and from outlying towns, they could not possibly make his
quota. Although Hardy was always tougher than his predecessor, I find, on the entire
record, that after the election he intensified his toughness and rode the employees
unnecessarily and for discriminatory reasons
Joseph S. Stafford, Jr, an impressively honest and credible witness, testified that
after the election "there was quite a change" in the relationship between himself and
,Supervisor Hardy, that:
I wasn't able to satisfy him on anything after that .... It was on the amount of
work I was doing. It was never enough and regardless of what it was-the jobs
he gave me, no matter what they were . complicated and he didn't want to
allow enough time to do them properly and he was just always on my back ....
Worthy Smith was complaining a lot about him being on him and about trying
to do two or three jobs and having them all set up at the same time and give him
no assistance on it and giving him calls late in the day he could have done earlier
and having him finish them up at night by the truck light .... He wanted me to
report from 20 to 30 minutes earlier although my time didn't start until 8:00
He refused to give me the pay for that period of time but he demanded that
I be there.
Upon the above facts and the entire record, including Vice President Kaye's
-"tough" speech just after the election, I hold that the day after the election and there-
after Supervisor Hardy, in execution of Respondent's new "tough" policy, undertook
to enforce for discriminatory reasons a production standard it was impossible for
some employees to meet; in reprisal against the union victory in the election; and to
establish a pretext to "weed out" union sympathizers, including Stafford and Thomp-
kins. By undertaking to enforce such a production standard for such purposes
Respondent further violated Section 8 (a) (1) of the Act.
Upon the above facts and the entire record, I conclude also that Supervisor Hardy
.undertook to keep himself informed concerning the union sympathies, intentions,
. and activities of the employees and kept Balcom informed as to what he learned.
5. Violations by Supervisor Taylor
"Johnny" Taylor was another young man (such as Paul Hardy) who was promoted
- from the ranks to supervisor. He became a supervisor December 1, 1963,6 but the
record showed that during the period before that he was being groomed as a super-
visor and was an acting supervisor riding with employees on their service calls. The
- testimony concerning his statements to employees was not denied, as Taylor was not
called as a witness.
Employee Wayne Webber credibly and without contradiction testified that a few
days before the election Taylor rode with him in his truck and told Webber that he
,was sent out by Branch Manager Balcom to discuss the Union with Webber. Taylor
said substantially that he hoped Webber would be for the Company and not for the
Union, that the Company would not accept a union, that if the men had a union and
went on strike the Company had technical men it would send in to replace the men.
Taylor also said that all the men who might have participated in the Union "would
be weeded out one-by-one."
Again on a trip to Georgia with Webber and Theron Rollins in early January 1964,
Taylor repeated the statement that anyone who had anything to do with the Union,
"would be weeded out one-by-one." At this time Supervisor Taylor also stated in
substance that the Company would not enter into a contract with the Union.
Shortly before the election, while he was an acting supervisor, Taylor stated that
Balcom sent him out to talk with Webber about the Union. Upon all the evidence,
I conclude that in talking to Webber as he did, while riding on a company mission,
Taylor was acting within the scope of his employment and was speaking for manage-
9 Taylor became a supervisor December,1,1n the city where he had served as an employee,
although on September 23, District Manager Walkup told Jesse Wright that such was
. ,contrary to "company ,policy."
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 99
ment The fact that he repeated his "would be weeded out one-by-one" statement in
January when he was a supervisor and was a part of management is added proof that
on the earlier occasions he was speaking for management.
By threatening on these two occasions to weed out those who participated in the
Union, Respondent interfered with, restrained, and coerced employees in the rights
guaranteed in Section 7, Respondent thereby further violating Section 8(a)(1) of
the Act. By threatening to replace strikers Respondent further violated Section
8(a)(1).
On the Saturday before Christmas 1963, in the Company's parking lot, and again
inferentially on the trip to Georgia in January, Supervisor Taylor offered employee
Rollins in the presence of another employee $100 if he would "whip" Jesse Wright
on company property so the Company could fire Wright." On the first occasion
Taylor quoted Geiger as being willing to pay the $100 and said he had just talked with
Geiger on the telephone. Geiger testified that over the long-distance telephone he
told Taylor, when Taylor told him in detail about alleged bad feeling between Wright
and Rollins, that Geiger would give $100 to see the fight between them. Thus instead
of trying to placate the situation between Wright and Rollins, Geiger's remark made
it worse and Taylor represented the remark as an offer to pay Rollins $100 to beat
up on Wright. By encouraging and offering to pay an employee to "whip" the
employee union leader in these circumstances, Respondent further violated Section
8(a) (1).
Rollins credibly testified that both before and after the election Taylor said in his
presence that if "they" could get something on Jesse Wright "they" were going to fire
him. Under all the circumstances of this case, I find that "they" referred to the
Company, and that Taylor's remark amounted to a threat and was not merely a pre-
diction. As during at least the week between the election and December 1 Taylor
was in training for and serving as acting supervisor, I find that by Taylor's threat
after the election Respondent further violated Section 8(a) (1) of the Act
In addition to all of the above, Supervisor Taylor was an informer upon the
employees to Balcom. According to the latter's uncontradicted testimony Taylor
reported to Balcom something that he had earlier heard Hood say in the Company's
snack room; and around January 17, Taylor told Balcom that Jesse Wright was leav-
ing his route area and going to the Spudnit Shop for coffee and lunch Shortly after
they signed union cards Beverly Hood and Annie Marie Pararo, the only two office
girls who signed union cards and the only two who were discharged, each told Taylor
that she had signed a card. As Taylor was an informer and as this was information
which Taylor would have known Balcom would want to have, I find on the entire
record that Taylor relayed this information to Balcom.
H. The timing of the discharges, Respondent's principal defense,
and Respondent's weed-out policy
The complaint alleged the discriminatory severance of nine employees. Severance
or the beginning of the severance of seven of these nine employees took place during
the first 5 weeks after the election-between November 23 and December 27 The
eighth occurred on January 16, 1964, and the ninth on March 6, 1964.
The General Counsel pointed out and the record proved that following the arrival
of Balcom, September 3, there were the five employee dischaiges and one supervisor
discharge for "side job" thievery within the first 2 weeks. Then, insofar as the record
showed, between September 18 and the day after the election, November 23, a period
of over 2 months, there were no discharges Then, the day after the election, Satur-
day, November 23, Davis was discharged; the following Monday, November 25,
Bowen was severed, 2 days later Crook was severed; 1 week later, on December 4,
Thompkins was discharged; 2 days later, December 6, Kight was severed, the follow-
ing day, December 7, Pararo was discharged; and 3 weeks later, December 27, King
was suspended, later to be severed.
The General Counsel convincingly contended in substance that the above and the
other two discharges (Hood on January 13 and Stafford on March 6,'1964), timed
as' they were soon after the employees voted overwhelmingly for the Union, were
in reprisal for that employee action and were the "weeding out" of union participants
threatened by Supervisor Taylor. The General Counsel contended in substance that
this phase of Respondent's relations with its employees began with Vice President
Kaye's "get tough" speech to employees immediately after the election.
Principally through witnesses Vice President Geiger and District Manager Walkup,
Respondent unconvincingly contended as its principal defense to the discharges and
severances after the election that they were not related to or in reprisal for the
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' support of the Union at the polls, but were solely related to Respondent's
efforts, begun 21/2 years before, to "clean up the mess in Jacksonville"; including the
increase of rate of growth, the diminishing of cancellations, and to improve its oper-
ations there in all respects, including the elimination of long-time employees for
infractions of "company policy."
The testimony of Vice President Geiger and District Manager Walkup presented
a picture of efforts, largely futile, during this 21/z-year period to make these improve-
ments and changes in line with alleged "company policy." If it took as long as
Respondent's evidence and its theory of the case claimed for the parent company
and Respondent to correct the situation in Jacksonville, it is difficult to see how
Orkin became the "world's largest pest control company," as the bottom of its letter-
head claims it to be. Nor is this alleged 21h-year period consistent with Vice Presi-
dent Kaye's statement to employees in his November 12 letter, as seen above, that
"Your Company's Atlanta Home Office has not been aware of these problems until
the last 2 to 3 months."
If, as Respondent contended, the discharges were connected with and a part of a
program of enforcing in Jacksonville the standards and "company policy" of other
Orkin branch offices, it would seem that in a clear and positive manner Respondent
would have informed officers, supervisors, and employees of this program. The
record did not prove this was ever done. It is inconceivable that in laying on such
a great change of standard and practice as was alleged by Geiger and Walkup in their
testimony, Respondent would not have told supervisors and employees, by bulletin
board notice or otherwise, exactly what was expected of them and then seen that
they did it Yet "company policy" was not in writing insofar as the record showed
except possibly in piecemeal tidbits in letters from Branch Manager Balcom to indi-
vidual employees. The entire record disclosed that "company policy" under Balcom
was not a publicly announced, broad-based, evenly and justly administered set of
rules to be abided by, but, rather, convenient language for cracking down on employ-
ees who violated management's idea of proper conduct. Thus, as an example, many
employees while serving their routes took time out for coffee from time-to-time,
sometimes with supervisors, and sometimes off of their routes,7 and they were never
told as a group that this was against company policy, that it was hereafter prohibited
or restricted to certain times or certain places.
If the discharges after the election were not related to union activities in any way,
but related solely to Respondent's alleged program to "clean up the mess" and to
upgrade its Jacksonville office, as contended by Respondent, no convincing reason
appeared in the record as to why several of the discharges were not made sooner,
thereby cleaning up the mess and upgrading the branch office that much earlier.
If the postelection discharges were but a continuation of the preelection "clean up"
campaign, the record offered no convincing explanation for the 2-month period-
September 18 to November 22-when there were no discharges at all.
Respondent contended in substance, through Geiger, Walkup, and Balcom, that
it did not discharge some of the dischargees herein, such as Thompkins, Stafford, and
Hook, sooner because its "company policy" was against hasty discharges. In sub-
stance, these witnesses contended that Respondent had a humane, long-suffering,
slow-to-discharge approach toward employees. As will be seen this alleged policy
was not followed in the discharge of Merlin Davis, where great haste was shown right
after the election The fact that it was not followed in the Davis case is proof that
there was no such policy or that it was followed only sometimes, not always, accord-
ing to the convenience of the moment. Further, any policy of slow elimination of
employees would have been economically costly and contrary to its alleged policy
of improving the economic performance of the Jacksonville branch office.
If, as it contended in substance, Respondent eliminated some of the dischargees
herein, such as Thompkins and Stafford, to improve the production and profits. of
the Jacksonville office, it appears that it would not have undertaken to transfer out
of Jacksonville one of its servicemen, Jesse Wright, who was told by Balcom, ". . . you
are one of the best men I have. You run a $1,500 route . Nevertheless
Respondent tried to transfer him out of Jacksonville to defeat the Union and the will
of the employees. From this, upon the entire record, I conclude that after the advent
of the Union on September 18, Respondent was more strongly motivated to defeat
the Union than to improve the productivity and profits of the Jacksonville office.
District Manager Walkup testified in substance that there was less of this in the
North Florida district than in most districts of the Company . From this it appears
that this was a companywide practice of employees.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 101
District Manager Walkup testified , in substance , that under normal conditions
Branch Manager Balcom had the authority to discharge employees without clearing
with Walkup; but that all of the severances involved in this case were discussed with
Walkup before they were made. On all the evidence I conclude that Balcom discussed
each of these severances with Walkup before making them because he knew that in
making them he was carrying out Respondent's policy toward supporters of the Union
and was flirting with violation of the law.
Supervisor Taylor, who was the company observer at the election, was in a position
to know what company policy was. As has been seen above, he told Wayne Webber
that he had been sent out by Balcom to discuss the Union with Webber As this was
not denied, and in the light of the entire record, I find that this was a fact. On this
occasion Taylor told Webber that the Company would not accept the Union; a pre-
diction which other officers, officials, and supervisors had consistently expressed, as
seen throughout this Decision thus far. Upon all the evidence, I conclude that it
was company policy not to accept the Union and that there would not be a union
at Orkin. From his long-distance telephone call with Vice President Geiger, as has
been seen above, Taylor knew that company policy was not to diminish any ill-feeling
between Jesse Wright and another employee over the Union but to make it worse.
And Taylor knew also, as he stated to employee Rollins, that it was company policy
to discharge Wright if the Company could get something on him. Under all the cir-
cumstances in this case, including the state of Taylor's knowledge of company policy,
I find that it was also company policy to weed out one-by-one, as stated by Taylor,
those who participated in the Union, and thereby to weaken the Union numerically
and so lessen its collective-bargaining strength and its capacity to win a strike. To
accomplish this I find also that Respondent waited and looked for pretexts which
would give it seeming cause for severing the union participants.
Vice President Geiger, District Manager Walkup, and Branch Manager Balcom,
each of whom testified at length in this proceeding , impressed me as sharers in the
spirit of these company policies, and as willing executors of them. As has been seen
above, Balcom's "strongest forte," as seen by his higherups, "has always been to
follow company policy " In view of their part in the formulation and execution of
these company policies, and as for the reasons stated above their statement of
Respondent 's principal defense was totally unconvincing on what motivated the dis-
charges, these three company witnesses did not impress me as credible witnesses on
controverted matters.
I. The discharges
1. Company knowledge of the dischargees ' union activities
As has been seen above, Vice President Geiger and Branch Manager Balcom both
told employees that the Company had spies. In addition Respondent had informers
and the record reflected a number of incidents of company knowledge that could
have come from only spies or informers. Thus the day after the employees signed
the cards Balcom accused Wright of "flapping your big mouth about a union ...."
Thus Balcom told King he knew he was attending union meetings. The day after
King spoke at a union meeting, Supervisor Hardy knew what he had said. Hardy
knew Wright was the ringleader and that the three Negroes had joined.
In addition, as has been found above, Geiger told a group of servicemen that the
Company knew who belonged to the Union, who had signed cards, and who had
attended meetings.
Upon the above findings and conclusions, and upon the entire record considered
as a whole, I believe and find that prior to their discharges Respondent knew that
each of the employees whose discharges are considered below had signed a union
card and had engaged in the additional union activity set forth below.
2. The discharge of Merlin T. Davis
Merlin T. Davis worked for Respondent as a pest control serviceman for several
years until his discharge by Branch Manager Balcom on November 23, 1963, the day
after the election.
Davis attended the original meeting of the employees on September 18, signed a
union card that night , and attended four or five other meetings.
Davis credibly testified in substance that in November, 2 or 3 weeks before the
November 22 election, his supervisor, Don Crelia, asked him if he had heard any-
thing about a union, and stated that if he could find out who was starting a union he
wanted to see them to try to talk some sense into them and try to talk them out of it.
Although Crelia denied this and most of the other alleged violations attributed to
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him, by his demeanor and his testimony Crelia appeared uncertain of his facts and
his memory and was not a credible witness. Under all the circumstances of this case,
Crelia's interrogation of Davis and his announcement of intention to Davis reasonably
tended to interfere with, restrain, and coerce employees in the rights guaranteed in
Section 7 of the Act, Respondent thereby further violating Section 8(a)(1).
Davis credibly testified further that about a week or 2 before the election Davis
overheard Crelia tell an employee that there would never be a union at Orkin, and
that, in substance, if a union was voted in and there was a strike the Company would
fly in technical men from Atlanta to take the jobs. For the reasons stated elsewhere
herein, I find that Creha's statement that the Company would bring in others to take
jobs amounted to a threat and loss of employment if there was a strike and was a
violation of Section 8(a) (1).
Normally Davis' assignments, or at least his new assignments, were given to him
in writing, referred to in the evidence as "start sheets," which he found on a hook
when he reported for work in the morning. On the morning after the election,
Saturday, November 23, there were at least one, and possibly two, new assignments
on his hook and he had one old account to service that morning.
Shortly before 8 o'clock that morning, November 23, according to Davis' credited
testimony, Eugene McKendree, a pest control salesman, asked Davis if he wanted to
ride out with McKendree, Witherington, and Faircloth (technical representatives) to
kill some bees at a church. Office employee Carolyn Oberkircher, who overheard
at least part of the conversations, testified on cross-examination that McKendree
asked Davis, "Would you like to meet us out at the church?" [Emphasis supplied.]
Robert Center, a termite salesman who also overheard the conversation, was not
asked on the witness stand for his version of what he heard or what he later told
Balcom
Certainly the record did not prove that on this occasion McKendree gave Davis an
order or an assignment or that Davis so understood it; nor was there a start sheet
on the hook assigning Davis to the church job.
Technical Representative Witherington went out to the church job that morning
to determine how the job should be done and what chemicals would not damage the
oil paintings on the church windows. The afternoon before he had begun his prepa-
ration for the job, including assembling a fogging machine which he thought would
be needed. But not until they were out at the church and Witherington had made
his decision as to how to proceed did he ask McKendree if the serviceman for the
area (Davis) was going to meet them out there McKendree replied in the negative,
stating that the serviceman had another commitment Nor was Witherington fully
equipped to do the job; he lacked a "B and G" to spray the bees around the eaves.
The record suggests that Witherington may have thought of this trip to the church
as a preliminary, investigatory, visit; otherwise he could be expected to have gone
out fully equipped and to have made provision for a serviceman to be there to do
the work. Davis was the serviceman for the area and presumably Davis' supervisor,
Don Crelia, had something to do with supervising his activity; but Crelia had given
Davis no instruction to go to the church, and, insofar as the record revealed, Crelia
was never consulted by Witherington or McKendree concerning the church job.
These facts do not lend credence to the claim that Davis had any duty to respond
affirmatively to McKendree's invitation that morning to accompany the group to the
church or meet them there.
To McKendree's invitation just before 8 that morning Davis replied in substance
that he was going to get some coffee and do his assignments and that he could meet
them at the church later on.
Davis then had coffee at a restaurant with a supervisor and two other employees,
one of whom was Jesse Wright. The entire record disclosed that it was customary
for employees and supervisors to have coffee together, even during working hours-
Davis and Carl Harris, another pest control serviceman, then rode in Harris' truck
and performed the work assigned to them that morning. Employees were encour-
aged to double up on Saturday mornings, to ride in one truck rather than two trucks,
in order to save company gasoline and wear and tear on the trucks.
At the church Witherington sprayed the inside of the church with the fogging
machine and then the group Gtarted hack to the office to get a "Band G." Enroute
they met Davis and Harris, who had a "B and G" at an intersection, and at the request
of Witherington, Davis and Harris returned with them to the church and sprayed
around the eaves with the "B and G."
When Branch Manager Balcom arrived at the office that morning about 8:30 or
8:45, both Oberkircher and Center reported to Balcom the conversation between
Davis and McKendree which they had overheard. Balcom testified that Center and
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 103
Oberkircher both told him Davis had refused to go to the church and do a job that
morning.8 As soon as they came in Balcom questioned Witherington and McKendree
about it. From Witherington he learned that in fact Davis had gone to the church
with the "B and G" when requested and had done what he was asked to do in finishing
the job. As Balcom was considering discharging Davis, Witherington cautioned him
not to act hastily and to consider the matter carefully. Witherington also indicated
that Davis was a good serviceman, although a little quick-tempered. Balcom did
not discuss the pending discharge with Supervisor Crelia or with Serviceman Harris
with whom Davis rode that morning.
Before making the discharge Balcom called Walkup long distance. Walkup
expressed it as his opinion that Respondent had just cause to let Davis go but that he
"didn't know whether it was sufficient as far as the Union was concerned"; and so
Walkup advised Balcom to get in touch with the attorneys through a company man in
Atlanta.
Balcom left word for Davis to come and see him when he called in, and Davis
arrived at the office midmorning. In Balcom's office Davis found himself confronting
Balcom, Witherington, and McKendree. According to Davis' credited testimony, not
substantially denied by Balcom, the latter asked him where he had been that morning
at 8 o'clock. Davis replied that he was having coffee with the rest of the boys.
Balcom asked if he did not know that he was supposed to go out to the church and
that it was his job to do it. Davis replied in the negative and added, in substance, that
he did not believe that McKendree was seriously asking him to take that job. Balcom
pointed out that the church was in Davis' territory. Davis observed that there was
no start sheet on the church job and that he thought McKendree was kidding. Balcom
did not dispute the nonexistence of a start sheet.
After excluding Davis for a few moments during which Balcom conferred with
Witherington and McKendree (during which Witherington cautioned Balcom against
a hasty decision) Davis was called back in and then, according to the credible,
undenied, and credited testimony of Davis, said: "Undoubtedly you didn't hear Mr.
Kaye ... the day he said this company was not run by the Toad ... this cup of coffee
means your job." Although Balcom denied referring to the Toad, I find on the entire
record that he said it.
I credit Jesse Wright's testimony that sometime after the discharges of Davis, Hood,
Thompkins, and Stafford, Respondent's district sales manager, Young, from Walkup's
office in Orlando, and who was in and out of Jacksonville where he conferred with
Balcom (and who therefore was in a position to know), told Wright that Respondent
fired Davis and Hood because they signed union cards, and Stafford and Thompkins
because they signed union cards although Respondent probably loaded them down
with enough work to justify the discharges. The findings in this paragraph are based
on testimony brought out on cross-examination of Wright and found on pages 127
to 132 of the transcript of the testimony.
In view of the timing of this discharge, the haste of its execution contrary to
Respondent's alleged policy of making haste slowly, the fact that Respondent knew
Davis was a union participant as found above, the fact that Walkup told Balcom to
check the lawyers as to whether Respondent had sufficient reason "as far as the Union
was concerned," the fact that there was no start sheet assigning the church job to
Davis, the fact that Balcom knew from Davis' own lips that Davis did not believe
McKendree was seriously asking him to do the church job, and upon the entire record
considered as a whole, I believe and find that the basic defense of Davis' alleged refusal
was but a pretext, and that Respondent really discharged Davis in reprisal for his and
other employees' actual or suspected support of the Union; in reprisal against the
employees' supporting the Union at the polls; as the first of the weeding-out process;
to discourage further employee support for the Union; and to weaken the Union for
the forthcoming negotiations and in the event of a strike; Respondent thereby violat-
ing Section 8(a) (3) and (1) of the Act.
3. The termination of James Bowen and Burnus Roy Crook
Employees Bowen and Crook of the termite department were terminated November
25 and 27, respectively, immediately after the election. Bowen's last day of work
was Saturday, November 23, the day after the election. Supervisor Hardy testified
that Branch Manager Balcom and Hardy decided to make a layoff and that Hardy
decided how many and whom to lay off. Hardy testified that he decided to lay off
8 The record's only convincing explanation for the informers' role played by those by
those two employees that morning is that they were responding to the spirit of Vice
President Kaye's "get tough" speech of the evening before and as "loyal" company em-
ployees were giving Balcom information they knew he would want to hear.
-104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two employees and selected Bowen and Crook. Upon the entire record, I conclude
that Branch Manager Balcom had more to do with the selection for layoff than Hardy
allowed.
In "laying off" Crook and Bowen, Supervisor Hardy gave as the reason lack of work
in the termite department. Hardy testified he told them the backlog was used up.
Balcom testified the termite backlog was reduced to the extent that the Company no
longer needed them. Respondent offered no evidence other than these bare assertions
as to the amount of work to be done in the termite department the first 2 workdays
after the election. Respondent did not prove or suggest when the decision to have a
layoff was made, or why the backlog in the termite department suddenly gave out the
day after the election.
This was the time of year when more than the usual number of termite men did
inspection and reinspections. Bowen's last work before his "layoff" was doing inspec-
tions. King's uncontradicted testimony was that about this time they were "definitely
behind" in reinspections. From this testimony it did not appear that there was no
work for Bowen.
During the next 2 months after these two "layoffs" Respondent hired nine new
employees in the termite department: one on December 11, one each on January 2
and 3, three on February 13, and one each on February 15, 18, and 25. In addition,
Respondent hired one new employee in the termite department on March 7 and two
on March 13 The addition of these 12 new hires within 21/2 months following the
"layoff," in a business which was not shown to have a large turnover of employees,
shows the pretextural nature of the claim that these were "layoffs."
Bowen had quit in a huff over a work assignment in October and had been taken
back by Hardy a few days later in November. Respondent did not show that the
termite backlog differed just after the election from its posture before the election
in November when Respondent took Bowen back.
Hardy testified that one reason for his selection of Bowen was the latter's low
seniority. But he also testified that seniority had nothing to do with his selection of
Crook.
Hardy testified in substance that one reason for his selection of Bowen for layoff
was that his work was inadequate. If this was true Respondent did not explain why
his work was adequate enough to be hired or rehired just a few days before.
In substance Hardy assigned some of Crook's inadequacies-his alleged inability to
read graphs well and the fact that he did not have a driver's license-as reasons for
his selection for layoff. Hardy had known of these inadequacies for months and, if he
was going to lay him off because of them, no legitimate reason appears as to why he
waited until the fourth working day after the election.
Balcom took the position that Bowen and Crook were laid off rather than discharged
because they were temporary employees who worked from day-to-day as needed.
But Crook had worked continuously since February 15, 1961, approximately 3 years,
and Bowen had worked continuously for about 6 months except for the few days
when he quit. According to the uncontradicted and credited testimony of Crook, his
former supervisor, Richardson, and Former Branch Manager Bryon told him that he
was permanent with the Company.
Upon all the facts concerning these two employees and the entire record, I conclude
that Bowen and Crook were not laid off with any intent to take them back, but were
discharged on November 25 and 27, respectively.
In January, and again in February 1964, Crook in vain telephoned the Company
about his returning to work. Hardy testified that the second time Hardy told Crook
that he had decided not to rehire him because of his past bad work. Thus the meaning
of Hardy's testimony, if believed, is that in February he converted Crook's layoff into
a discharge.
Hardy also testified that he selected Crook and Bowen for layoff in a move to
upgrade the termite department. Hardy had had ample opportunity to observe the
work of Crook and Bowen since July 1, 1963, when Hardy began work in Jacksonville
on the Duval County School job on which Crook and Bowen also worked. Since
August 1 Hardy had been their only supervisor. The record contained no convincing
reason as to why, if Hardy was going to discharge Bowen and Crook to upgrade the
department, he should have waited until just after the election and then laid them
off rather than discharge them.
Crook and Bowen had both signed union cards on September 18 at the same time
some 30 employees signed them and Crook had attended all the union meetings there-
after but one. The record proved, as found above, that Respondent knew the identity
of those who signed cards and attended meetings. Further, on November 18, 4 days
before the election, according to Crook's credited testimony, Branch Manager Balcom
asked him how he was going to vote in the election and Crook did not tell him. As
the Company's position against the Union was then well known to employees as a
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 105
result of Vice President Kaye's letters and the verbal efforts of other executives, as
seen above, Crook's nonresponse to Balcom was an indication to the latter that Crook
favored the Union.
Crook also credibly testified that on November 18 Balcom told him that "If the
Company went on a strike that all the men would be replaced," and that "If a layoff
happened to appear I would have to go."
Under all the circumstances of this case, Balcom's interrogation of Crook as to how
he was going to vote in the election reasonably tended to interfere with, restrain, and
coerce employees in the rights guaranteed in Section 7 of the Act. By this interroga-
tion, and by threatening to replace those who went on strike and by threatening to
layoff Crook 4 days before the election, Respondent further violated Section 8 (a) (1)
of the Act.
As Bowen and Crook, who were known by Respondent to have signed union cards
and Crook to have attended union meetings and likely to have voted for the Union,
were discharged almost immediately after the election; as Respondent was dead set
against the Union and intended to weed out union adherents one by one; and as
Respondent's defense to these discharges was totally unconvincing; I conclude upon
the entire record that Respondent discharged Bowen and Crook because of their
union activities, in reprisal against the employees' supporting the Union at the polls,
to discourage further employee membership and support of the Union and to weaken
the Union's bargaining strength in subsequent collective- bargaining negotiations and
in the event of a strike; Respondent thereby further violating Section 8 (a) (3) and (1)
of the Act.
4. The termination of Charles Kight
Charles Kight worked for Respondent for some 4 or 5 years. He was hired by
Balcom in West Palm Beach and worked there under Balcom for about 2 years. He
was transferred to Jacksonville at his own request and worked there as a pest control
serviceman for about 1 year prior to his termination on December 7, 1963. The ques-
tion is whether he quit or was discharged.
Kight had the route at Jacksonville Beach, a separate community some miles from
Jacksonville. One day late in September while Kight stopped for coffee at the beach,
his supervisor, Don Crelia, stopped in and had a cup of coffee with him. First they
talked about customers. Then the subject of the Union came up. Crelia advised
Kight to stay out of the Union. He said that "Orkin's is not going to have a union
here or in any other office." Creha added that "they already had some 60 men in
Atlanta to replace us if the Union was elected and we went on strike . . . the main
thing a union is for striking anyway . . . you'll see what the railroads are doing."
Creha also said that the Company would close the office before it would have a union.
Crelia admitted that "I did say (to Kight) that I did not see how the men could
benefit from a union," but denied saying the Company was not going to have a union
and would close its doors. He also denied the reference to 60 men As Crelia's
alleged remarks were consistent with what other officials of management were telling
employees during the period herein involved and as, in any case, by his demeanor
Crelia impressed me as an uncertain witness, I credit Kight's testimony. By Crelia's
threat to close the doors and to replace the men if they struck, Respondent violated
Section 8 (a) (1) of the Act.
In late September, as Balcom was advising Kight to stay out of the Union, Kight
replied that he was not interested and that he was going to quit anyway. Kight gave
as the reason that prior to the Union two or three medical doctors had advised him to
get out of the exterminating business in the interest of his health There being a
company supervisor in Pensacola, Florida, Lewis Kirkland, who wanted a transfer to
Jacksonville, Balcom arranged for the transfer and Kirkland began work in Jackson-
ville on or about October 15. He rode with Kight on the latter's route for 2 weeks to
learn the route.
During this 2 weeks, the last half of October, Kight took a day off and spent it look-
ing, with no success, for another job. Immediately he told Balcom that he had
changed his mind, that jobs were scarce, and that he would like to stay with Orkin.
Kight testified that Balcom and also Vice President Geiger assured him that he could
stay on. He was kept on until December 7. Kirkland was given Kight's route and
Kight was used as a substitute or relief man. He worked on several routes for a week
or two at a time. Finally a man was transferred from Tampa, Florida, and took over
the route Kight was last driving and Kight was terminated.
Kight having raised the question of his health, on November 18 Respondent had
Kight examined by a medical doctor, Dr. Knowles, in Orlando, Florida. Through a
mistake he was given only a cursory examination and the Doctor's secretary wrote an
apology to Kight. The Company then had him examined thoroughly on Novem-
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 19 or 20 by a Jacksonville doctor, who pronounced Kight as in satisfactory shape,
as having no allergies, and as fit to continue working. All of this was reported to the
Company on or about November 19 or 20.
Kight testified without contradiction that about November 20, 2 days before the
election, Balcom called him in, reminded him that they had been friends a long time,
that Balcom had hired him in West Palm Beach, that the Company had done a lot for
him, and then asked Kight how he was going to vote in the election. Kight replied
that he did not want to sound harsh but that he did not think that it was any of
Balcom's business. Under all the circumstances of this case, this interrogation by
Balcom reasonably tended to interfere with, restrain, and coerce employees in the
exercise of rights guaranteed in Section 7, Respondent thereby further violating Sec-
tion 8(a)(1) of the Act. By this interrogation and Kight's response, Balcom reason-
ably knew that Kight favored the Union and would vote for the Union.
During the conversation Balcom said that there was a union meeting last night and
that 11 men were present. Kight replied that he heard that but that he himself had
not been present. This evidence was further proof that Respondent had a source or
sources of information concerning union meetings
As Balcom and Kight were talking Geiger joined the group. Geiger advised Kight
to vote, to vote his convictions, and to vote the right way. Geiger testified that he
tried to get all employees to vote against the Union.
Respondent's principal defense to the termination of Kight was that Kight quit in
September and that later, in December, Respondent accepted his resignation. Although
in late September Kight said not that he then quit but that he was going to quit, and
although Kight told Balcom at that time that he would give Balcom 2 weeks' notice,
Balcom took immediate steps to replace Kight with a supervisor from Pensacola.
While the Pensacola man was learning the route Kight informed Balcom that he had
changed his mind and wanted to stay. Although Kight's old route was given to the
new man, Kight was in fact kept on for a month or more after that and was finally
replaced not by the supervisor from Pensacola but by a man from Tampa.
Geiger had several conversations with Kight about employment Geiger admitted
that Kight wanted to withdraw his resignation and that Geiger "was not at all sure
whether I wanted him to withdraw that resignation." But in fact Kight had already
withdrawn it prior to his first conversation with Geiger on November 6. Geiger was
allegedly concerned about Kight's health, and was allegedly not satisfied with the
decision of the doctor who gave Kight a thorough physical examination and called
him fit.
The record established beyond any doubt, and Geiger and Balcom admitted as
much, that when Kight was terminated it was the Company who made the decision
he should go, not Kight. On cross-examination Vice President Geiger admitted that
he himself did not make a decision concerning Kight before the election and that after
the election he "offered my opinion" to two officials below him in the organization,
Walkup and Balcom, that "Kight is not a good man for our Company"; and Balcom
admitted that an alleged Seabreeze Motel incident entered into his decision to accept
Kight's resignation.
On direct examination Balcom testified that while Kirkland was operating Kight's
old route and Kight was serving as a relief man on another route, Kirkland quoted the
manager of the Seabreeze Motel at Jacksonville Beach as saying that Kight serviced
five rooms for him for $5 and pocketed the money. If true this would have been an
"odd job." On cross-examination, Balcom admitted that although this report came to
him in November and entered into the termination decision in December, Balcom did
not in the meantime undertake to learn when Kight had allegedly done the "side job,"
whether before or after Geiger's condonation speech of September 18. (Kight testi-
fied he had done no "side jobs" since then.) Balcom did not check this information
with the owner of the Seabreeze Motel and he did not discuss the subject with Kight.
Balcom testified that he told the Board's agent that at the time of Kight's termination
he did not have positive information about the alleged Seabreeze incident. Also, on
January 11, 1964, Balcom wrote the unemployment compensation division of the
Florida Industrial Commission, inter alia, that "at the time of his (Kight's) resignation
we were suspicious that he was conducting an exterminating business of his own with
our equipment and our supplies ... we have now confirmed this and this certainly
confirmed our decision not to rehire Mr. Kight after he had resigned "
According to the undenied and credited testimony of Kight, on December 6 close
to "quitting time," Balcom called Kight into his office. Supervisor Don Crelia was
there, and so was Miss Oberkircher, the secretary, who took notes during this exit
interview. Balcom opened by observing that he guessed Kight was wondering what
had been going on the last few weeks. Then Balcom told Kight that the Company had
to let him go, that "the doctor said if you work over a couple more years you are
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 107
probably going to be suing the Company ... the doctor says you are pretty good now
but if you are in the Company for 2 more years you would be suing the Company ....
Orkin don't want to take the chance." Kight had never threatened to sue the Com-
pany. Balcom told Kight he was accepting his resignation-although Kight protested
in vain in effect that he had withdrawn his resignation and that Vice President Geiger
had told him he would be put in the sales department.
At Balcom's suggestion Kight then went to apply for unemployment compensation.
He then returned and told Balcom that the unemployment man said that Balcom said
that Kight was not discharged, that he had quit. Balcom replied that he had accepted
Kight's resignation, that Kight had quit. Kight replied that he had told Balcom he
would give him 2 weeks' notice. Balcom said, "I accepted your resignation." Kight
said he was applying now for a selling job. Balcom replied, "I can't accept you now
as anything with the Company."
Upon the above facts and the entire record, I conclude that Kight's termination was
a discharge rather than a resignation; that in view of Kight's clean bill of health from
the Company's doctor, Respondent's alleged fear that Kight would later sue the Com-
pany was a pretext and not the real reason for the discharge, that in fact Respondent
discharged Kight in reprisal for his union activities, for his and the employees' support
of the Union at the polls; that his discharge was a part of Respondent's weeding-out
process of union participants designed to weaken the Union in collective bargaining
and in the event of a strike; that by thus discouraging further employee membership
and activity in the Union, Respondent violated Section 8(a)(3) and (1) of the Act.
The complaint alleged that by making to the unemployment compensation division
of the Florida State Industrial Commission a false report to the effect that Kight had
voluntarily quit his employment, thereby causing the Commission to deny to Kight
the employment benefits to which he was entitled, Respondent further violated Section
8(a)(1). The only evidence in the record on this subject was hearsay evidence
admitted not for the truth of the evidence but to explain Kight's further action. In
view of this state of the record I find that this allegation of the complaint was not
sustained by the proof.
5. The discharge of Annie Marie Pararo
Pararo worked for Respondent as its telephone switchboard operator from April
1962 until December 7, 1963. She was one of the two women employees who signed
cards for the Union (the other was Beverly Hood). She signed a card on Septem-
ber 19 and told John Taylor she had done so a few days later. I have found above,
on the entire record, that Taylor relayed this information to Balcom.
At his request Pararo helped Jessie Wright set up the employees' meeting for the
evening of September 18 by telling the employees as they telephoned in that day
about it. She assisted the employees during the self-organizing efforts by letting
Jessie Wright know when company officials, such as Kaye, Geiger, and Walkup were
coming to Jacksonville, and when calls were placed to or received from the home
office in Atlanta.
Pararo credibly testified on cross-examination that she signed her union card Sep-
tember 19 and backdated it to September 18 because she knew to her satisfaction that
'Carolyn Oberkircher had told Balcom that Pararo had told the men employees about
the September 18 meeting. Pararo thought that backdating the card would give her
job protection. As neither Oberkircher nor Balcom denied that the former had
informed the latter concerning Pararo's help in setting up this September 18 meeting,
I find on the entire record that Balcom learned about this shortly after it happened.
Pararo credibly testified that prior to the election Branch Manager Balcom was
friendly toward the office girls (there were about seven), and always made a point
of greeting them when he arrived in the morning. He would greet Pararo and ask
her how she was. After the election he ignored Pararo unless it was completely
necessary; he would pass in front of Pararo's desk and not speak to her.
On December 7, 1963, Balcom called Pararo into his office and told her he was
discharging her, that she was not happy there and there had been some disturbance
over the distribution of sales calls. He said that he had discussed the matter with
Walkup and that they had decided that it was best that Pararo not work there, she
wasn't happy. Balcom testified that the reason he gave her for her discharge was
"mishandling sales calls." 9
The system of handling incoming sales calls had been changed in October from a
geographic basis to a rotation basis in a move towards equal distribution of potential
9 As this was the reason Balcom assertedly gave Pararo, it is unnecessary to consider
other reasons allegedly suggested to Balcom by Office Manager Fraiser but evidently not
persuasive to him.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new business among the two termite salesmen, Irvin Richardson, who became a
salesman August 1, 1963, and Robert Center, who came to Jacksonville as a salesman
September 1, 1963. The record does not support a finding that this change resulted
from antiunion motivation.
The record is somewhat confused as to just bow the new system was to work after
the change, but it is clear that the telephone operator was to refer calls relating to
potential new termite business to one or more of the girls or record it in a book
rather than to one of the termite salesmen. Then from the book the salesmen were
assigned the new business in rotation.
The record established that in good faith Mrs. Pararo attempted to make the new
system work and did not intentionally disregard the instructions concerning the new
system. She credibly testified that Balcom never told her or cautioned her that she
was not complying with the instructions. Testifying later, Office Manager Lola
Fraiser testified that she cautioned Pararo several times to follow the system, Pararo
explaining to Fraiser that she had tried but failed to reach the appropriate girl and so
had referred the call to someone else rather than keep the customer waiting.
The record established that a constant complainer, Robert Center, the termite
salesman and ex-branch manager of another company office, complained twice to
Balcom that Pararo had sent calls directly to the other salesman, Richardson, rather
than to the appropriate girl for entry into the book. One of these complaints was in
October and the second on November 9-both before the election. Center never
himself complained to Pararo about this and if in fact he had justifiable cause for
complaint or felt as strongly about the matter as his testimony suggests he felt, it
appears probable to me that he, a constant complainer, would have complained
directly to Pararo as well as to Balcom. Citing these two complaints, both before the
election, as the basis for Pararo's discharge a month later, shows the pretextural nature
of the defense.
In any case, although I find that Pararo was cautioned to refer the calls to the right
girl or girls so they could get into the book, I also find on the evidence that she was
never accused of not following the new system, intentionally or unintentionally, and
she was never warned that she was not doing her job properly.
Although the record did not show how many incoming and outgoing calls per day
were handled by the switchboard operator, the record did show that Respondent had
some 10 to 12 termite salesmen and some 30 pest control servicemen working routes
in the area and telephoning into the office from time to time. In addition there were
some 10 salesmen and also the supervisors and branch manager who must have used
the telephone frequently. Surely the number of inquiry calls from potential new ter-
mite customers must have been small in comparison to the overall number of calls
handled by the switchboard operator daily. There is no claim that Pararo did not
handle the vast bulk of calls properly.
Of interest and possible significance concerning this discharge is what happened
in Orlando. While he was a termite salesman in Orlando, at least part of the time
while Balcom was branch manager there, Center made this same kind of complaint
about several telephone operators there, and, insofar as the record showed, none of
them was discharged.
In view of the timing of Pararo's discharge a few days after the election on a
pretext, of Respondent's policy of weeding out union participants, of Pararo's known
assistance in setting up the original union meeting and her known signing of a union
card, as found above; and as Pararo was discharged without ever being warned that
her handling of this small percentage of calls might cost her her job, I find on the
entire record considered as a whole that "mishandling sales calls" was but a pretext,
and that Respondent really discharged Pararo in reprisal because she signed a union
card, assisted in setting up the original union meeting, and engaged in other union
activity; because the employees had selected the Union as their bargaining agent at
the election; in carrying out Respondent's policy of weeding out union participants:
to discourage further employees' support for the Union; and to weaken the Union
for the forthcoming negotiations and in the event of a strike, Respondent thereby
further violating Section 8(a) (3) and (1) of the Act.
6. The discharge of James Arthur King
King was a termite serviceman with Respondent for just short of 2 years prior to
his "suspension" on December 27 by Balcom. King worked primarily on inspections
and reinspections under Supervisor Hardy. He signed a union card September 18
and attended union meetings
As has been seen above , Hardy suggested to King the Company's need of an
informer at union meetings , and then accused King of jeopardizing Hardy's job by
disclosing this "confidential talk" at a union meeting. Hardy also interrogated King
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 109
as to whether King had been at the union meeting the night Hardy was in the tele-
phone booth, and also interrogated him as to how he was going to vote. The morn-
ing after the election Hardy told King that Orkin never has had a union and never
will have.
On December 13 by letter the Union advised the Company that King and Jesse
Wright had been "elected as a negotiating committee to assist in the forthcoming
negotiations," and requesting the presence of these two employees at the negotiations.
The negotiations began January 10, 1964, but in the meantime King had been sus-
pended. A copy of this letter was sent to Balcom.
On Tuesday, December 24, the day before Christmas when King was scheduled to
work a half day on reinspections, he stayed home to visit with his brother and wife
who were passing through Jacksonville, and sent word to Hardy through employee
Tommy Webb, who stayed at King's house, that he would not be at work that morn-
ing King did not have a bad absenteeism record.
King worked all day Thursday and Friday, December 26 and 27. Late Friday
afternoon Balcom suspended him for being "A.W.O.L." on the 24th. According to
King's credited testimony, he told Balcom that he sent word to Hardy through Webb
that he would not be there. Balcom replied, "We call that French leave. We don't
tolerate such leave. The Company policy is that you are to call me or Mr. Hardy
and let us know if you are to be absent." King told him he had never heard of that
company policy and there is no proof in the record that King or any other employees
had ever been told of such a company policy. According to King's credited testi-
mony Balcom called in Webb, who confirmed that he had carried the message to
Hardy. Nevertheless Balcom suspended King, telling him that he was going to have
to make an example of him.
The record is in dispute as to whether King was suspended for a specific period
or indefinitely. Balcom at first testified he was suspended for 1 week, on cross-
examination Balcom changed this to 5 days. Hardy testified King was suspended
for 5 days. King testified he was suspended for an indefinite period. King promptly
looked for and found another job, which it is doubtful he would have done if the
suspension had been for only 5 days, especially as he had been elected to the nego-
tiating committee and must have felt some sense of obligation to represent the
employees in the forthcoming negotiations. The Union's contract proposal had been
sent to the Company on December 9 and the first bargaining session began on Janu-
ary 10. In view of these facts, and as I believe King's testimony, I find that on
December 27, King was suspended for an indefinite period and that Balcom told
King, as testified by the latter, that he would let him know when he was to return to
work.
Respondent never did recall King to work. It received an inquiry concerning him
from what turned out to be his new employer. The inquiry indicated King was
seeking employment elsewhere. Balcom and Hardy testified that sometime in the
second week in January they went out to King's house and found him not home, and
that a few days later Hardy went out, talked with King, and was told King was
working elsewhere. Hardy admitted on cross-examination that before he went to
see King he had received a report that King had another job. King denied seeing
or talking to Hardy at all. In any case there was no claim that Hardy told him or
asked him to return to work with Respondent.
Also sometime that week Balcom sent King a telegram asking him to get in touch
with Balcom at his earliest convenience. To be noted is that the telegram did not
tell him to report to work. King learned of this telegram when he returned home
from a trip on his new job on Saturday, January 11. He left Jacksonville on Monday,
January 13, without getting in touch with Balcom. He was driving a truck on long
trips and did not get in touch with Balcom until about February 23. Then he tele-
phoned Balcom and asked about returning to work. Balcom replied in substance
that he had nothing for him.
Upon the above facts and the entire record, I believe and find that Balcom seized
upon another alleged "company policy"-personally telephoning him rather than
sending word in to report an absence-as a pretext to get rid of King; that as
Respondent suspended him for an indefinite period and never recalled him or offered
him reinstatement, the suspension was really a discharge; that Respondent really dis-
charged King because of his and other employees' union activities, to remove him
from the employees' negotiating committee, and thereby demonstrate to the employ-
ees how weak and futile this committee was; because of the employees' selection of
the Union as their bargaining agent at the election; in carrying out Respondent's
policy of weeding out union participants; and to discourage further employees sup-
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port for the Union and to weaken the Union in the forthcoming collective bargaining
and in the event of a strike, Respondent thereby further violating Section 8(a)(3)
and (1) of the Act.
7. The discharge of Beverly Hood
Mrs. Beverly Hood, a termite bookkeeper, worked for Respondent for nearly 3
years until her discharge January 13, 1964.
She signed a union card on September 18 and told Johnny Taylor she had done so
a day or so later. I have found above, on the entire record, that Taylor relayed this
information to Balcom.
In October or early November a post card arrived from the supervisor discharged
for "side jobs" addressed to the service department. While assorting the mail, one
of her duties, Hood came to the card and stuck it on the door of the servicemen's
room in the back. Balcom took exception to this and told Hood she should have
showed it to him first, whereupon she moved it from the door and gave it to him.
Balcom said that he thought he ought to have a little talk with Hood. He said that
the supervisor was a proven thief. He said that ever since he had been in Jacksonville
he felt that Hood did not like him and resented him, because she was so fond of his
predecessor, Walter Bryan. Pursuant to a question by Hood, Balcom admitted that
there was nothing wrong with Hood's work. (In testifying on cross-examination,
Balcom admitted that he could remember no instance in which Hood had refused
to do a job for him and he said that the quality of her work was satisfactory.) 10
Balcom then said, according to the credited testimony of Hood, who impressed me
as a forthright and credible witness, that they were having a problem now with the
Union trying to come into the company and he understood that Hood and several of
the other girls had been approached about the Union and if they were they should
report to him. Instructing or requesting Hood to report to the branch concerning
union matters was further intereference by Respondent with employee Section 7
rights, Respondent thereby further violating Section 8 (a) (1) of the Act. Hood made
no reply as to whether she had been approached by the Union and she did not
thereafter give Balcom any information concerning the Union
Hood was off ill from December 23, 1963, until Monday, January 13, 1964.
Although she was still under the doctor's care and he had not released her to come
to work, at Respondent's request she worked Thursday and Friday mornings of the
week prior to her discharge.
In discharging her on January 13, as she reported to work after her illness, Branch
Manager Balcom told Hood that he had hoped to salvage her, that he felt she
resented him, and that it was obvious she did not like him He said "they" were
having a tough battle at that time but that regardless of what other people thought,
"they would win."
In the severance interview Balcom referred to a conversation Hood had had with
Salesman Irvin Richardson the previous Friday, when Hood had told Richardson
that Stanley Young had said it was up to John Rowe, sales manager in Jacksonville,
whether the Company kept Richardson or not. Balcom told Hood that if they were
going to let Richardson go they would have called him in and talked to him. He
said that Richardson "had done several things including union meetings that the
Company had forgiven him for." Balcom also said that Hood had influence over
the salesmen and servicemen but was not using it to the Company's benefit.
In the severance interview Balcom told Hood her discharge was not because of
her work or because she had been out ill; that he would give her a good recommenda-
tion as a good bookkeeper and an honest employee, but would say she was not a
loyal company employee. He told her that he was letting her go because of "com-
pany security reasons," and also because, according to Hood (assisted by a leading
question), she had not used her influence over the men to the Company's benefit.
Respondent's spokesmen assigned several reasons for the discharge of Hood. Dur-
ing the General Counsel's case-in-chief, Respondent's attorney stated:
The main reason was the hard feeling or lack of cooperation between her and
the manager and her taking this out against the Company in the nature of making
certain statements . . regarding the Company and its business. We feel they
were detrimental to the Company.
10 In view of this testimony it is unnecessary to consider testimony somewhat to the
contrary by Office Manager Fraiser, which evidently was not brought to Balcom's atten-
tion or was unpersuasive to him In this connection I credit Jesse Wright's testimony
that District Sales Manager Young told him Hood was an A-1 bookkeeper
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 111
A few moments later the Respondent's attorney said, referring to certain statements
allegedly made by Hood:
That is exactly why we got rid of her, .. . She said lousy people running the
Company, lousy people in the Company and she wanted someone else to do her
work. That is her idea of the loyalty to the Union . . . .
Branch Manager Balcom asserted as the reasons for the Hood discharge (1) lack
of cooperation, and (2) something Supervisor Taylor told Balcom, allegedly while
Hood was ill, and that Hood had allegedly said. Balcom testified that it was this.
alleged Hood statement which made up his mind to discharge Hood. On cross-
examination he added another factor: the statement she made to Richardson, Bal-
corn said nothing about Hood wanting someone else to do her work or that that is
her idea of loyalty to the Union.
Without contradiction Hood testified that for a year John Taylor has been going
out to her sister's house and servicing it at no charge, and that sometime before the
election, in kidding Taylor about doing this "side job," Hood told him that if she
had roaches she would not call Orkin, that Orkin had some lousy people working for
it, that she would call Peninsular (a competitor of Orkin). In his capacity as an
informer Taylor reported this conversation to Balcom. Balcom testified that Taylor
told him of this statement while Hood was out ill in late December and early January.
As on all the facts it appears more probable to me that Taylor would have informed
on Hood during the union campaign prior to the election when Hood's remark was.
fresher in his mind , I find on all the evidence that Balcom had known of this state-
ment for some months when he dredged it up in January as a pretext for discharging
Hood.
Had this bit of joking among employees really been the basis in part for the dis-
charge, no reason appears why Balcom should not have told Hood this when he dis-
charged Hood-which he did not do. Had Balcom been looking for the facts rather
than a pretext to make another discharge, he could have learned that in fact Hood
had a termite contract with Orkin for her home, Orkin services her father's home,,
and Hood has never had any dealings with Peninsular.
As for Hood's attitude, and her alleged resentment of Balcom because she had
been fond of his predecessor, the well-liked Walter Bryan, Balcom had sensed this
immediately upon his taking over in Jacksonville September 3 and had not seen fit
to discharge her for it then. Hood was not Balcom's secretary. She was a book-
keeper in the termite department and according to Balcom the quality of her work
was satisfactory.
Office Manager Fraiser testified that one day in the first 2 weeks of September Hood
came to her and told her she wanted Fraiser to get off her back, that Fraiser was
riding her, that Fraiser was not going to get her to quit. As one of the two office
personnel who had signed a union card and was known by Respondent to have done
so, Hood was undoubtedly very sensitive to Respondent's antiunion campaign before
the election and its weeding out, discharge, campaign beginning immediately after
the election . In view of Respondent's antiunion policies and campaigns, her speaking
up shows that she was standing up for her rights, not that she had an improper atti-
tude toward management.
Balcom and Fraiser testified in some detail concerning Hood's alleged attitude
during her illness when she returned for 2 half days at Respondent's request to help
the office catch up with work on Hood's desk. At this time Hood had not been
released by the doctor to return to work, and Respondent' s seizing upon her alleged
attitude at this time when she was obviously not physically and emotionally up to par
is an indication of how far Respondent was willing to go to find pretexts for unload-
ing itself of union adherents.
Upon the above facts and conclusions, as Respondent knew Hood had signed a
union card, as Hood had not as requested by Balcom furnished him any information
concerning what girls had been approached by the Union, and as during the exit.
interview Balcom referred to the Union in connection with Richardson and in sub-
stance accused Hood of not being a loyal and secure employee, I find upon the entire
record considered as a whole that Hood's alleged attitude, her alleged lack of coopera-
tion , her kidding of Taylor while he was doing a side job, her wanting someone else
to do her work, that being her idea of loyalty to the Union, and her statement to
Richardson about his future, were but pretexts for Hood's discharge; and that
Respondent really discharged her in reprisal because she signed a union card, because-
she had not cooperated with Balcom informing on other office girls, because the,
employees had selected the Union at the election; in carrying out Respondent's policy
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of weeding out union participants; to discourage further employee support for the
Union; and to weaken the Union in negotiations then gomg on and in the event of a
strike, Respondent thereby further violating Section 8 (a) (3) and (1) of the Act.
8. The discharge of Joseph S. Stafford, Jr.
Stafford, a 44-year-old Negro, worked for Respondent in Jacksonville for 23 years,
over half of his life. He worked primarily as a termite serviceman. He worked
under seven branch managers including, at the end, Balcom. During all of his years
with the Company he was never laid off. This work record and the credible testi-
mony in the record concerning the months before his discharge was convincing that
he was a competent, thorough, satisfactory workman for the Respondent for nearly
a quarter of a century before Supervisor Hardy began cracking down on him imme-
diately after the election. As has been seen above, after the election Stafford was
never able to satisfy Hardy because Hardy imposed a production standard impossi-
ble for Stafford and other employees in the department to meet, in reprisal against
the union victory in the election and to establish a pretext to "weed out" union
sympathizers, including Stafford.
Stafford signed a union card September 18 and attended five union meetings, all
but one of those that were held. As has been seen above, Supervisor Hardy
expressed to King knowledge that Stafford was in the Union, and Hardy kept Bal-
com informed as to what he himself knew about the union activities of the employ-
ees. Upon the entire record, I conclude that Balcom knew of Stafford's union sym-
pathy and activity.
About a week before the election according to Stafford's credible testimony, Bal-
com called Stafford to his office and told him that as he was an older man in the
termite department (he was the oldest in seniority), Balcom "wished I would talk to
the fellows back there and see if I could talk `some sense on them'-referring to the
election coming up." Balcom added that he knew the employees were underpaid (at
the time of his discharge Stafford was paid $1.25 per hour), that he was speaking "in
general" and could not promise anything, but that "after the election he would give
me a good raise." Implied in this promise of benefit after the election was the
expectation that Stafford would support the Company before and at the election. By
this promise of benefit under all the circumstances, Respondent further interfered
with employee Section 7 rights, thereby further violating Section 8(a) (1) of the Act.
Stafford did not respond to Balcom's request and did not talk to the employees
against the Union.
In view of Respondent's antiunion, antiemployee policy after the election and its
discharge on pretexts of eight other employees after the election, as is found herein,
I find on the entire record that after the election Respondent was looking for a pre-
text to discharge Stafford.
During the workweek before the election, November 18 through 22, Stafford was
on jury duty and absent from the plant. Then he was absent on vacation 2 weeks
and out sick 1 week. Hardy was not satisfied with his first week back after this long
absence, and instead of bearing with him until he got his stride, Hardy reported him
to Balcom and Balcom, after talking with Stafford, on December 23 wrote him a
written notice on December 28, the only written warning notice he ever received in
his 23 years with the Company.
The record showed that several times during his latter months of employment
Stafford complained to Hardy, and once to Balcom, about the incompleteness of
house graphs on jobs sold by Salesman Robert Center. The complaints were that
some of Center's graphs failed to show certain work that had to be performed on
the job, the doing of which necessarily required more time than was indicated on
Center's graphs and reflected upon Stafford as being slower than in fact he was.
Balcom discharged Stafford on March 6, 1964. Balcom read some figures to him
to show he was slow, but at the hearing Respondent did not produce these or any
other figures to make the point. Balcom testified that the reason was "general slow-
down of termite production." I find as credibly testified by Stafford that during his
last several months of employment he did not intentionally slow down his work per-
formance. Hardy testified that the reason for the discharge was "lack of production,"
a different reason. Respondent's brief assigned "general slow work." Stafford tes-
tified without contradiction that in his severance interview Balcom accused him in
substance of not having the interest of the Company at heart. This must have been
in reference to Stafford's having supported the Union, because Stafford's nearly quar-
ter century performance put the lie to any other meaning of that phrase.
Respondent's alleged program concerning improving the Jacksonville office was to
try to keep the present personnel, to avoid hasty judgments on dismissals, and to
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 113
discharge any employees only after ample time for seasoned judgment. Its basic
position concerning the Stafford discharge was that in its seasoned judgment Stafford
was a slow though thorough worker and that he did not make enough money for
the Company. Stafford's own testimony showed that he was more concerned with
giving the Company a good name through thoroughness and excellence of perform-
ance than he was with making money for the Company through sheer quantity pro-
duction at whatever damage to quality. In fact Stafford knew nothing about the
money aspect of the business. But the record also demonstrated beyond any doubt,
through Stafford's testimony and his character, which showed through his words on
the witness stand, that his slowness was nothing new, that Hardy knew it from the
beginning of their relationship, and that it reasonably took Hardy no long period of
study to know that after many years of thinking he was a good man with the Company.
Stafford could probably not be persuaded to change his ways-especially by a boy
just over half his age who bore him no love just because he was a Negro."
So upon the entire record I conclude that it is possible for Stafford to have been
slow and yet not discharged for it, and that that is what happened.
Hardy testified in substance that from September 1, 1963 (Hardy was the only su-
pervisor in the department after August 1), until Stafford was absent on jury duty, va-
cation, and illness-which would have been the period September 1 to November 15-
Hardy spoke to Stafford every week about his slowness.12 District Manager
Walkup testified that he had been watching Stafford since Hardy took over the
termite department August 1, that in late August he learned from Hardy that Stafford
was very slow in his work, that thereafter Walkup made trips to Jacksonville three
or four times a month during which he would discuss termite personnel with Hardy,
that in these discussions Stafford's name always came up. If this testimony is to be
credited it means that between September 1 and November 15, Walkup was in Jack-
sonville from 7 to 10 times and that each time he and Hardy discussed Stafford's
slowness. Also, everyday during September, October, and November before the
election, Balcom had daily records of Stafford's (and other employees') jobs per-
formed and inspections made. If Respondent was going to discharge Stafford for
slowness why did it not do so during this period? Why didn't it discharge him for
slowness between August 1 and the beginning of the Union on September 18 a
period of 7 weeks? Surely this was a long enough time to reach a seasoned judgment
that Stafford was a slow worker. Yet despite its alleged program of upgrading the
Jacksonville office and the profits it was not receiving because of Stafford's slowness,
Respondent did not discharge Stafford at that time.
Instead it waited until what it deemed a safe time after the election and then dis-
charged him on the pretext of slowness. To bolster its pretext Hardy told two rela-
tively new employees it would be more convincing if they put their complaints about
Stafford into writing. Respondent's use of these letters and its use of testimony of
one brand new and one relatively new employee (who were not shown to be neutral
on the union question ) to testify concerning Stafford's past few weeks after he and
other employees had been ridden by Hardy for months was an indication of the
lengths it was willing to go to establish its pretext of slowness, which it had known all
along.
Upon the above facts and considerations and the entire record considered as a
whole, I believe and find that his slowness was but a pretext and that Respondent
really discharged Stafford in reprisal because of his and other employees' union
membership and activity; because he failed to help Respondent defeat the Union;
because the employees had selected the Union at the election ; in carrying out
Respondent's policy of weeding out union participants; to discourage further employee
support for the Union; and to weaken the Union in the collective bargaining then
going on (six bargaining meetings between the Company and the Union had been
had) and in the event of a strike, Respondent thereby further violating Section
8(a)(3) and (1) of the Act.
9. The discharge of Henry Thompkins, Jr.
Thompkins, a 46-year-old Negro who had worked for Respondent at least 13
years, was a termite serviceman. Prior to his discharge by Balcom on December 4,
1963, he had worked under three branch managers , six or more supervisors, and had
never been laid off.
11 Employee King credibly testified that Hardy would say, "I'm from Alabama and
I don't like niggers."
72 Hardy testified that the first time he spoke to Stafford the latter replied he did a
job right no matter how long it took.
789-730-66-vol 152-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompkins signed a union card September 18 and attended union meetings. As has
been seen above he was one of the three Negroes Hardy told employee King he
knew were in the Union. I find upon the testimony of King and Stafford and the
entire record, as well as of Thompkins, that Thompkms was also one of those whom
Hardy cracked down upon immediately after the election and thereafter rode hard
and kept close watch on looking for a pretext to discharge him. Beverly Hood, the
termite bookkeeper, credibly testified that after the election Hardy, the termite super-
visor, checked more closely on his employees and their whereabouts than he had
before. He would check more closely to see if they had called in, how often, at what
times, and whether they had been to the office and at what time. Hood also credibly
testified that the day after Thompkins' discharge Hardy came into the office, said he
thought Worthy Smith, the third Negro, was upset over Thompkins' discharge, and
that Hardy was checking on him closely.
Thompkins testified that in his severance interview Balcom said that "some employ-
ees seem to think that the Union is going to run Orkin but I think differently." As
this alleged statement was undenied, and was consistent with the spirit of other
remarks Balcom made to employees about the Union, I credit Thompkins' testimony.
Respondent's only evidence as to its position concerning Thompkins' discharge was
through witness Hardy. The latter testified that Thompkins was discharged for three
things and for nothing else These three things were: (1) not reporting to the office
when he went on a personal errand, (2) not being on the job at a certain time; and
(3) "turning in" his job when it was not completed. Hardy testified that the quality
of Thompkins' work was not a factor, and, although Respondent adduced evidence
that Thompkins was a slow worker, this too was not contended to be a factor in his
discharge. If slowness was not a factor in Thompkins' discharge this is added proof
that slowness was not the controlling factor in Stafford's discharge for the quality of
Stafford's work was considerably higher than Tompkins'.
All three reasons assigned by Hardy related to one of the assignments Thompkins
worked on his last 3 days of employment, a house on Glenwood Avenue located
about a normal half-hour's drive from the office. I credit Thompkins' testimony that
the first afternoon he ran into trouble on that job and believed he needed advice
before he could continue. His helper, Wyatt, testified that Thompkins complained
about waterpipes being in the way of drilling holes. On their way back to the office,
he and Wyatt did some personal errands, principally going to a junkyard for a gen-
erator and delivering it to Thompkins' car (for a friend to install ) which had broken
down on the way to work that morning. They also gassed up the Company's truck
at a gasoline station. It was possible that they were delayed somewhat by congested
traffic conditions due to the closing of a bridge. They arrived at the office about 11/2
hours after they left the house. Hardy seized upon the incident as a pretext to dis-
charge the prounion employee, Thompkins, on the ground that Thompkins had not
reported that he was going to do an errand on the way back to the office. The helper,
Wyatt, was not discharged
I credit Thompkins' testimony that he had previously done personal errands on
company time, such as paying his rent, and there was no proof that on such occasions
he was supposed to advise the office in advance Hardy testified as to two or three
previous occasions, all before the election, when Thompkins had done personal
errands and Hardy had later asked him where he was. There was no proof that
on these occasions Hardy instructed Thompkins to call in in advance on such errands,
or warned him that personal errands were prohibited or might lead to his discharge.
Nor was there any proof that employees generally were instructed to tell the office
in advance if they were going to make a personal stop, either around the city or on
the way back to the office. The record showed that employees stopped for coffee
from time to time, sometimes had coffee with supervisors, and there was no proof
that employees generally were prohibited from doing so or were instructed to, tele-
phone in in advance that they were going to do so. Thus seizing upon Thompkins
for not doing what others were required to do was but a pretext and not the real
reason for the discharge
Although the record is not completely clear it was apparently Hardy's claim that
the second day Thompkins went to Glenwood Avenue, Hardy went out there about
11 o'clock in the morning and did not find Thompkins there. On cross-examination
Hardy admitted that Thompkins may already have been there and left before Hardy
arrived. Thompkins also worked on another job that day, a big job on a Baptist
church. The testimony suggested also that about 11 o'clock Thompkins may have
been emptying trash. In any case there was no proof that at the time of Hardy's
visit Thompkins was not working somewhere or going between jobs or having lunch.
There was no proof that Thompkins was on a personal errand . So this alleged rea-
son was also a pretext seized upon by Hardy to weed out a union adherent.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 115
As for the third reason, Hardy contended that when Thompkins checked in at the
conclusion of the first day at the Glenwood Avenue job, he "turned in the job" when
it was not completed . This evidently meant that Thompkins turned in the paper order
or instructions and graph on the Glenwood Avenue house . Hardy testified that he
asked if the job was done and Thompkins replied that it was. Thompkins testified
that he told Hardy he ran into trouble and described his trouble , the same problem
he had described to Wyatt before they left the job . Upon all the facts, including the
fact that Hardy went out to the job the next morning, I conclude that Thompkins
did not tell Hardy the job was finished , but asked him for advice , and that Thompkins
did not "turn in the job." Thus this alleged reason was also a pretext and not the
real reason for the discharge
Upon the above facts and conclusions and the entire record in the case, I believe
and find that Respondent discharged Thompkins in reprisal because of his and other
employees ' union membership and activities ; because the employees had selected the
Union as their bargaining agent at the election ; in carrying out Respondent 's policy
of weeding out union participants ; to discourage further employee support for the
Union ; and to weaken the Union in the forthcoming bargaining negotiations and in
the event of a strike , Respondent thereby further violated Section 8 (a) (3) and (1) of
the Act.
J. The threats to Jesse Wright
Respondent having failed to persuade Jesse Wright to transfer out of Jacksonville,
after the election Balcom took another tack. While Respondent itself was engaging
in all the gross violations of the law found herein, Balcom undertook to police
whether Wright was intimidating employees and verbally warned him and sent him
a written warning notice saying that if he intimidated the employees any more he
would be dismissed . Wright's alleged offense was in substance that he talked with
two alleged company informers as to whether they were company spies.
During this conversation with Balcom about a week after the election ( in which
Wright had served as the union observer ) Wright told Balcom he had better have a
good reason if he fired Wright. Balcom replied, "We will have." Balcom added,
"We will get you."
Under all the circumstances of this case I hold that Balcom's verbal threats and
written warning to Wright were motivated against his union activities and that thereby
Respondent further violated Section 8 ( a) (1) of the Act.
Again on January 17, between the first and second bargaining sessions in which
Wright was participating as a representative of the employees , Balcom spoke to
Wright and wrote him a second threatening and warning notice 13 concerning (in
part) leaving his route area for coffee and lunch . This was the occasion when, as
seen above, Taylor informed on Wright to Balcom. As it was not proven that
employees generally had been told that leaving their route area for coffee or lunch
was not permitted, I hold on the entire record that this second warning notice was
issued to try to weaken Wright and the Union during the collective -bargaining nego-
tiations and in reprisal against Wright's and the employees ' union activities , Respond-
ent thereby further violating Section 8 ( a) (1) of the Act.
K. The refusal to bargain in good faith
The union was certified as the representative of the employees in the appropriate
unit 14 on December 4. Meetings of representatives of the Union and the Respond-
ent took place in a hotel room in Jacksonville on January 10, 23, and 24, February
11, 25, and 26 , and March 19, 1964. At first the Union was represented by its busi-
ness representative and two employees , including Jesse Wright. The Respondent was
represented by skilled, experienced , negotiating counsel who presumably was there to
execute Respondent 's negotiating program One of his early acts was to suggest, with
success, at the opening session that they discuss noneconomic items first and leave
economic , money, items to the last . As a result of this maneuver the parties spent
four and one -half negotiating sessions discussing noneconomic matters and, at the
end, two and one-half sessions discussing wages and other money matters.
"These were the only warning notices Wright received in his 51/ years with the
Company.
"The appropriate unit consisted of all employees employed by the Respondent at its
Jacksonville and St . Augustine operations , including pest control servicemen and termite
control servicemen and helpers ; but excluding all office clerical employees, salesmen,
guards , and supervisors as defined in the Act
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meeting of the minds, conditioned upon reaching agreement on money matters as
well, was tentatively reached on a number of noneconomic subjects, including a rec-
ognition clause, seniority, a management rights clause, a clause permitting the Com-
pany to contract out work, a grievance procedure including arbitration, the furnishing
of employee uniforms by the Company, leaves of absence and physical examinations,
no strikes or lockouts, job stewards, a checkoff clause, a picket line clause, and a
termination clause.
At the first meeting the Union made a wage proposal, but this appears not to have
been discussed until the fifth meeting on the afternoon of February 25. Economic
subjects were discussed the rest of February 25 and 26, and on March 19. Included
as economic subjects were holidays, vacations, rates of pay for termite employees,
commissions for pest control employees, time and a half and double time, report pay
on Saturdays, Sundays, and holidays, pension, sick leave, hospitalization, funeral
leave, and pay while on jury service. The Union made several economic package
proposals and Respondent rejected them all and made at least four economic package
counterproposals, each of which was somewhat different from the former. As of the
close of negotiations on March 19 the parties were still quite far apart on economic
issues. Thereafter the parties wrote each other about continuing the negotiations
and setting up another date for a meeting. Of course the record herein does not
reflect whether any further negotiating meetings took place after the hearing herein,
which occurred March 30 to April 9.
The General Counsel contended, but failed to prove, that Respondent's economic
proposals were no different from present company pay and conditions. At best the
General Counsel proved that the Company proposed only small economic changes.
The Company's proposals, statements, and actions during the discussions could
have been made just as they were, and the negotiations gone just as they did, with
the Company having no intent to explore in good faith the possibility of getting
together with the Union on money matters and no intent to let matters get to the
point of a complete meeting of the minds on money matters. It cannot be concluded
from what took place during the negotiations in the hotel room whether or not
Respondent was acting in good faith at the negotiations. To arrive at that answer it
is necessary to look at the entire record, including Respondent's statements and
actions prior to the negotiations.
As has been seen above, Respondent not only violated the law by numerous dis-
charges, threats, interrogations, and in other ways, but in addition by its written and
oral words to employees Respondent indicated an intent not to bargain in good faith
with the Union. Thus, as has been seen, numerous officials (including two vice
presidents, Kaye and Geiger), and supervisors told many employees both before and
after the election that Orkin would not accept or have a union or the Union, that the
Union could do nothing for employees, that the Company would not enter into or
sign a contract with the Union. Respondent has never repudiated any of these state-
ments and representations made to employees. In addition, Respondent's constant
talk before the election of a possible strike when employees were not talking of one,
and of replacing strikers when employees were not talking of one, and of replacing
strikers with technical men, was in itself indication that Respondent had no intent
to bargain in good faith and to enter into a contract with the Union, but intended to
force the Union and employees into an economic strike and then eliminate the
Union by replacing the strikers. That this was Respondent's true intent was given
added weight by the actual arrival in Jacksonville on March 23 during the negotia-
tions of some 10 technical men who thereafter while negotiations were in a critical
period rode in the same trucks with the servicemen. The record suggested no reason
for the timing of the arrival of these technical men other than for its impact upon the
negotiations.
In addition, Respondent unlawfully discharged the seven employees between the
election and the beginning of negotiations (including King, a member of the employee
bargaining committee) and two employees (Hood and Stafford) during the negotia-
tions, and issued a warning notice to committeeman Jesse Wright, in order to weaken
the employees' and Union's collective strength for bargaining purposes and in the
event of a strike, the Union's ultimate sanction.
Upon the above facts and considerations, and the entire record in the case con-
sidered as a whole, I believe and find that prior to and during the January 10 to
March 19 negotiating sessions Respondent did not have the requisite intent to explore
in good faith the possibility of getting together with the Union on economic matters
and did not intend to try to reach a meeting of the minds on those matters. As there
was no proof of any change in its intent during the negotiations it follows that during
the negotiations Respondent refused to bargain in good faith with the Union and
thereby violated Section 8 (a) (5) and (1) of the Act.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 117
The General Counsel contended an additional 8(a) (5) violation by the Company's
alleged unilateral changing of working conditions in the "crackdown" talks of Vice
President Kaye and Supervisor Hardy immediately after the election. As the record
did not clearly establish that actual changes were announced in those speeches, but
at most proved the beginning of tough enforcement for discriminatory reasons of
existing working conditions, I do not find there were unilateral changes and a further
violation of Section 8(a) (5) thereby.
The General Counsel urged a further violation of Section 8(a)(5) in the refusal
of Respondent to meet with the Union concerning the discharge of Merlin T. Davis.
On November 26, 4 days after the election and 3 days after Davis' discharge, the
Union wrote Branch Manager Balcom in Jacksonville as follows:
Please accept this as an official notification that Truckdrivers, Warehousemen
& Helpers Local No. 512 is protesting the unfair discharge of employee Mr.
Merlin T. Davis.
Please advise when we may meet with you in this all important matter in order
to effectuate a better understanding of the same.
Hoping this will receive your prompt and immediate attention and thanking
you in advance for your splendid cooperation in this matter, I remain.
On November 27 Respondent's counsel in Atlanta replied as follows:
This will acknowledge receipt of your letter of November 26, 1963, to Mr.
Harry Balcom, Manager of Orkin Exterminating Company of Florida, Inc.
The discharge of Mr. Merlin T. Davis was for good cause and we will not
meet with you in regard to this matter whatsoever.
The Union's contention in its letter that the discharge of Davis was an unfair dis-
charge put this matter in the focus of a grievance. To Respondent's knowledge the
Union had been selected as the bargaining agent on November 22 and Respondent's
counsel had signed the tally of ballots for the Company. Upon request thereafter
Respondent had a duty to meet with and bargain with the Union concerning this
grievance. By Respondent's refusal to meet with the Union concerning the Davis'
discharge Respondent further violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent having unlawfully discharged Merlin T. Davis, James Bowen, Burnus
Roy Crook, Charles Kight, Annie Marie Pararo, James Arthur King, Beverly Hood,
Joseph F. Stafford, Jr, and Henry Thompkins, Jr., because of their actual or sus-
pected union activities and because of the other reasons stated above, and not having
offered them reinstatement, I recommend that Respondent offer to these nine employ-
ees immediate and full reinstatement to their former or substantially equivalent posi-
tions,15 without prejudice to their seniority and other rights and privileges, and make
them whole for any loss of pay they may have suffered by reason of the discrimination
against them by payment to each of them a sum of money equal to that which he
normally would have earned as wages from the date of his discharge,16 the date of
the discrimination against him, to the date when, pursuant to the recommendations
herein, Respondent shall offer him reinstatement, less his net earnings during said
period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289. The backpay obligation of Respondent shall include
the payment of interest at the rate of 6 percent to be computed in the manner set
1s The Chase National Bank of the City o f New York, an Juan, Puerto Rico, Branch,
65 NLRB 827.
16 The discharge dates were as follows : Davis , November 23, Bowen, November 25,
Crook, November 27, Thompkins, December 4 Kight, December 6, Pararo, December 7,
and King, December 27, 1963; and Hood, January 13, and Stafford , March 6, 1964.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in Isis Plumbing & Heating Co , 138 NLRB 716. As provided in the Wool-
woith case , I recommend further that Respondent make available to the Board, on
request, payroll and other records in order to facilitate the checking of the amount
of backpay due
Respondent having refused to bargain in good faith with the Union at the bargain-
ing negotiations , I recommend that Respondent now bargain in good faith with the
Union concerning wages, hours , and working conditions and embody in a signed
agreement any understanding reached. This recommendation in no way changes
Respondent 's bargaining obligation from what it was under the Act when it began
negotiating with the Union on January 10, 1964, and requires that Respondent enter
into a signed agreement only if while bargaining in good faith Respondent reaches
a meeting of the minds with the Union.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act and the danger of their commission
in the future is to be anticipated from the Respondent 's conduct in the past The
preventive purposes of the Act will be thwarted unless the Order is coextensive with
the threat. In order therefore to make more effective the interdependent guarantees
of Section 7, to present a recurrence of unfair labor practices , and thereby minimize
industrial strife which burdens and obstructs commerce and thus effectuate the poli-
cies of the Act, I shall recommend that Respondent be ordered to cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Unon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Orkin Exterminating Company of Florida, Inc ., of Jacksonville , Florida, is
engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. Truckdrivers , Warehousemen and Helpers of Jacksonville , Local Union No 512,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpeis of America , is a labor organization within the meaning of Section 2(5)
of the Act.
3. By trying to transfer the union leader out of Jacksonville to defeat the employees
and the Union , by threatening employees with loss of their jobs if they struck, by
informing employees the Union could do nothing for them, by interrogating employ-
ees concerning their union sympathies , activities , and intentions , by promises of bene-
fit and threats of reprisal , by giving employees the impression that Respondent was
spying upon their union activities , by threatening that Respondent had ways of get-
ting rid of union participants , by undertaking for discriminatory reasons to enforce
a production standard impossible for some employees to meet, by threatening to
weed out those who participated in the Union , by encouraging and offering to pay
an employee to "whip" the employee union leader on company property to give
Respondent a pietext to discharge the employee union leader , by threatening to fire
the employee union leader if it could get something on him, and by other acts,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Merlin T.
Davis, James Bowen , Burnus Roy Crook, Charles Kight, Annie Marie Pararo, James
Arthur King, Beverly Hood , Joseph F. Stafford , Jr, and Henry Thompkins, Jr.,
thereby discouraging membership in Truckdrivers, Warehousemen and Helpers of
Jacksonville , Local Union No 512, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and ( 1) of the Act.
5. All employees employed by Respondent at its Jacksonville and St . Augustine
operations , including pest control sei vicemen and termite control servicemen and
helpers, but excluding all office clerical employees , salesmen, guards , and super-
visors as defined in the act, constitute a unit appropriate for the purposes of collec-
tive bargaining.
6. The Union , since the date it won the election , November 22, 1963, has been
and now is the exclusive representative of all employees in the aforesaid appropriate
unit for purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
7. By refusing to meet with the Union concerning the discharge of Merlin T. Davis,
and by refusing , on and since January 10 , 1964, to bargain collectively in good faith
with the Union as the representative of the above employees , Respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and ( 1) and Section 2(6) and ( 7) of the Act.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 119
8. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in the case considered as a whole, and pursuant to Section 10(c) of the
Act, I recommend that the Respondent, Orkin Exterminating Company of Florida,
Inc., of Jacksonville, Florida, its officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
others terms and conditions of employment with Truckdrivers, Warehousemen, and
Helpers of Jacksonville, Local Union No. 512, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, as the
exclusive representative of the employees in the following appropriate unit-
All employees employed by Respondent at its Jacksonville and St. Augustine opera-
tions, including pest control servicemen and termite control servicemen and helpers,
but excluding all office clerical employees, salesmen, guards, and supervisors as
defined in the Act.
(b) Refusing to bargain collectively in good faith concerning the discharge of any
employee or any other grievance.
(c) Discouraging membership in Truckdrivers, Warehousemen, and Helpers of
Jacksonville, Local Union No. 512, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor
organization of its members, by discriminating in regard to the hire and tenure of
their employment or any term or condition of employment
(d) Trying to transfer an employee union leader out of Jacksonville to defeat the
employees and the Union; threatening employees with loss of their jobs if they strike;
informing employees the Union can do nothing for them; interrogating employees
concerning their union sympathies, activities, and intentions; making promises of
benefit and threats of reprisal because of union activities; giving employees the
impression that Respondent is spying upon their union activities; threatening that
Respondent has ways of getting rid of union participants, that it will close its doors
before it will have a union; undertaking for discriminatory reasons to enforce a pro-
duction standard impossible for some employees to meet; threatening to weed out
those who participate in a union; encouraging and offering to pay an employee to
fight an employee leader of the Union on company property to give Respondent a
pretext to discharge the employee union leader; and threatening to fire the employee
union leader if it can get something on him.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to join
or assist Truckdrivers, Warehousemen and Helpers of Jacksonville, Local Union No.
512, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2 Take the following affirmative action which I find will effectuate the policies
of the Act
(a) Offer reinstatement to Merlin T. Davis, James Bowen, Burnus Roy Crook,
Charles Kight, Annie Marie Pararo, James Arthur King, Beverly Hood, Joseph S.
Stafford, Jr., and Henry Thompkins, Jr., in accordance with the recommendations
set forth in the section of this Decision entitled "The Remedy."
(b) Make whole Merlin T. Davis, James Bowen, Burnus Roy Crook, Charles Kight,
Annie Marie Pararo, James Arthur King, Beverly Hood, Joseph S. Stafford, Jr., and
Henry Thompkins, Jr., for any loss of pay they may have suffered by reason of
Respondent's discrimination against them in accordance with the recommendations
set forth in the section of this Decision 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, time-
cards, personnel records and reports, and all records necessary to analyze the amount
of backpay due and the rights of Merlin T. Davis, James Bowen, Burnus Roy Crook,
Charles Kight, Annie Marie Pararo, James Arthur King, Beverly Hood, Joseph S.
Stafford, Jr., and Henry Thompkins, Jr., under the terms of this Recommended Order.
(d) Notify the employees herein found discriminated against if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed Forces.
(e) Upon request, bargain collectively in good faith with the above-named Union
as the exclusive representative of all employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(f) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees in the appropriate unit, concerning the discharge
of any employee or any other grievance.
(g) Post at its offices in Jacksonville and St. Augustine, Florida, copies of the
attached notice marked "Appendix." 17 Copies of such notice, to be furnished by
the Regional Director for Region 12 (Tampa, Florida), shall, after being signed by
the representative of Respondent, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to all employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of receipt of this Decision and Recommended Order, what steps the Respond-
ent has taken to comply herewith.18
17 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall he substituted for the words "the Recommended Order of a
Trial Examiner" in the notice If the Board's Order is enforced by a decree of a
United States Court of Appeals, the notice will be further amended by the substitution
of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for
the words "a Decision and Order."
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 12, in writing,
within 10 days from the date of this Order, what steps the 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 National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT try to transfer any employee union leader out of Jacksonville to
defeat the self-organization of our employees.
WE WILL NOT threaten employees with loss of their jobs if they strike.
WE WILL NOT inform employees that Truckdrivers, Warehousemen and Help-
ers of Jacksonville, Local Union No. 512, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, can
do nothing for them.
WE WILL NOT unlawfully ask our employees questions about their union sym-
pathies, activities, and intentions.
WE WILL NOT make promises of benefit and threats of reprisal to our employ-
ees because of their union sympathies, activities, and membership.
WE WILL NOT tell employees that the Company has spies or otherwise give
employees the impression that the Company is spying upon employees' union
activities.
WE WILL NOT threaten that the Company has ways of getting rid of union
participants or that we will close the doors before we will have a union.
WE WILL NOT undertake for discriminatory reasons to enforce production
standards impossible for some employees to meet.
WE WILL NOT threaten to weed out and discharge those employees who par-
ticipate in the Union.
WE WILL NOT encourage and offer to pay an employee to fight any employee
union leader on company property in order to give the Company a pretext to
discharge the employee union leader.
WE WILL NOT threaten to fire any employee union leader if the Company can
get something on him.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC. 121
WE WILL NOT refuse to bargain collectively with Truckdrivers , Warehousemen
and Helpers of Jacksonville , Local Union No. 512, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Helpers of America,
as the exclusive representative of the employees in the bargaining unit described
below.
WE WILL NOT refuse to bargain collectively with the above -named Union, as
the exclusive representative of the employees in the bargaining unit named below,
concerning the discharge of any employee or concerning any other grievance.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the rights to self-organization , to form labor organi-
zations, to join Truckdrivers , Warehousemen and Helpers of Jacksonville, Local
Union No. 512 , affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or refrain from any and all such activities.
WE WILL offer to Merlin T. Davis, James Bowen , Burnus Roy Crook, Charles
Kight, Annie Marie Pararo, James Arthur King, Beverly Hood, Joseph F. Staf-
ford Jr., and Henry Thompkins , Jr., immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
and other rights and privileges previously enjoyed, in accordance with the recom-
mendations of the Trial Examiner 's Decision.
WE WILL make whole James Bowen , Merlin T. Davis, Burnus Roy Crook,
Charles Kight, Annie Marie Pararo, James Arthur King, Beverly Hood , Joseph
F. Stafford , Jr., and Henry Thompkins , Jr., for any loss of pay suffered by them
by reason of the discrimination practiced against them, in accordance with the
recommendation of the Trial Examiner 's Decision.
WE WILL, upon request, bargain in good faith with Truckdrivers, Warehouse-
men and Helpers of America of Jacksonville , Local Union No. 512, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay , wages, hours of
employment , and other terms and conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed agreement
WE WILL, upon request, bargain in good faith with Truckdrivers , Warehouse-
men and Helpers of America of Jacksonville , Local Union No. 512, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, as the exclusive representative of all the employees in the
bargaining unit described below, concerning the discharge of any employee or
any other grievance.
The bargaining unit consists of:
All employees employed at our Jacksonville and St. Augustine operations
including pest control servicemen and termite control servicemen and
helpers, but excluding all office clerical employees , salesmen , guards, and
supervisors as defined in the Act.
All our employees are free to become or refrain from becoming members of Truck-
drivers, Warehousemen and Helpers of Jacksonville , Local Union No. 512, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Help-
ers of America.
ORKIN EXTERMINATING COMPANY OF FLORIDA, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, 500 Zack Street , Tampa, Florida , Telephone No. 228-7711 , if they
have any questions concerning this notice or compliance with its provisions.