Orkin Exterminating Co. of Kansas, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1962

136 N.L.R.B. 630 (N.L.R.B. 1962)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination
in employment , and by interfering with , restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a) (3)
and (1 ) and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Orkin Exterminating Company of Kansas, Inc. and Taxicab,
Produce Employees , Ambulance and Funeral Drivers, Local
Union No. 587 , affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 17-CA-1817. March, 08, 19620
DECISION AND ORDER
On December 18, 1961, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that Respondent had not engaged in
certain other unfair labor practices, and recommended dismissal of
the complaint pertaining thereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
i In our opinion , Chairman McCulloch's reliance on Snow & Sons to support his con-
clusion that Section 8 ( a) (5) was here violated is misplaced Member Rodgers dissented
in the Snow case and would not have found a violation of Section 8(a) (5) because even
though the union had been designated by a majority of employees In a private card
check, there was no evidence that the employer was motivated by bad faith in requesting
136 NLRB No. 59.
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 631
ORDER
The Board adopts the Recommended Order of the Trial Examiner
except that paragraph 2 (b) thereof is deleted and the following is sub-
stituted therefor : "Notify the Regional Director for the Seventeenth
Region, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith."
CHAIRMAN MOCULLOCH , dissenting in part :
I would sustain the complaint in its entirety , and would not dismiss
the 8 ( a) (1) and ( 5) allegations.
The facts , as found by the Trial Examiner , show that the Respond-
ent questioned its employees about union activity , ostensibly referring
to the plant of a competitor , Ragan; it discharged its employees with-
out good cause ; and it refused to bargain collectively with the majority
Union, causing a strike which was still current at the time of the hear-
ing. The Trial Examiner dismissed the interrogation , on the ground
that it involved the union activity of other employees , not the Re-
spondent 's; he dismissed the refusal -to-bargain allegation on the
ground that the Respondent 's insistence on a Board election was not
in bad faith within the meaning of the Joy Silk Hills doctrine; and
he found the strike to be merely economic . But he found discrimina-
tion because he was convinced that the Respondent 's motivation was
to forestall union activity among its own employees.
I agree with my colleagues , and with the Trial Examiner , in finding
that the Respondent 's motivation for the discharges made them unlaw-
ful. But I cannot agree that this unlawful motivation stopped there,
and did not also explain the contemporaneous interrogations and re-
fusal to bargain with the Union . This case presents a whole piece of
cloth, not separate and unrelated scraps . I note, however , that in
Fred Snow , et al., d/b/a Snow ct Sons, 134 NLRB 709, the Board
refused to be limited to the Joy Silk Mills doctrine on which the Trial
Examiner here dismissed the 8 ( a) (5) allegation . On the contrary,
the Board found a violation of Section 8(a) (5) because , as here,
the employer "had no reasonable doubt as to the Union 's majority
status" and sought a "Board -directed election without a valid ground
therefor."
Accordingly , I would find that the Respondent violated Section
8(a) (1) and ( 5) as well as 8(a ) ( 3), and that the strike was an unfair
labor practice strike.
a Board election. Member Fanning joined with the majority in Snow in finding that
the employer did not entertain a good-faith doubt as to the union ' s majority status
when it insisted on a Board election because the union had already demonstrated its
majority in an impartial card check to which the employer agreed As no such circum-
stance is present in the instant case , Member Fanning is not convinced on the record
before him that the Joy Silk test of the Respondent 's bad faith in refusing to recognize
the Union has been met
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard by me in Kansas City, Missouri, on September 14 and 15,
1961.
The complaint alleged that from July 6, 1961, Respondent, Orkin Exterminating
Company of Kansas, Inc., refused to recognize and bargain with Taxicab, Produce
Employees, Ambulance and Funeral Drivers, Local Union No. 587, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the collective-bargaining representative of an
appropriate unit of Respondent's employees, in violation of Section 8(a)(1) and
(5) of the Act. The alleged appropriate unit consisted of all pest extermination
and termite control employees at the Kansas City, Missouri, branch of Respondent,
excluding office clerical employees, the technician, salesmen, and professional em-
ployees and supervisors.
It is also alleged in the complaint that on July 3, 1961, Respondent discharged
10 named employees because of their participation in union activities, all in viola-
tion of Section 8(a)(1) and (3) of the Act; and that Respondent illegally inter-
rogated employees in June and July 1961, in violation of Section 8(a) (1) of the
Act.
In its answer Respondent denied that the unit alleged in the complaint was ap-
propriate and otherwise denied the commission of any unfair labor practices.
The parties declined an opportunity to make oral argument but filed briefs with
the Trial Examiner on November 3, 1961.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent is a Kansas corporation and has its principal office and place of busi-
ness in Kansas City, Missouri. Walter A. Helms, is the operating head of the cor-
poration with the title of district manager. He handles the personnel relations of
the corporation. His office is in Kansas City, Missouri. The premises occupied by
Helms in Kansas City also house the Kansas City branch office of the corporation.
Other branch offices of the corporation are in Springfield, Missouri; Topeka, Wichita,
and Dodge City, Kansas; and Lincoln, Nebraska. The branch offices each have a
branch manager and a staff consisting of servicemen who do pest extermination and
termite control work, salesmen who solicit business, office clerical employees, and in
Kansas City, a professional entomologist.
In the course of its business, Respondent annually renders services of a value in
excess of $50,000 to customers outside Missouri; it purchases supplies and materials
valued in excess of $50,000 from sources outside Missouri; it annually renders
services valued in excess of $50,000 to commercial enterprises which themselves are
engaged in commerce within the meaning of the Act; it annually performs services
valued in excess of $500,000
Respondent, at all times material herein, is an employer engaged in commerce
within the meaning of the Act.
The Union represents employees and engages in collective bargaining with re-
spect to wages, hours, and conditions of employment, and is a labor organization
within the meaning of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Early in June 1961, Helms called employees Brock, Polacek, and Rife into his
office. The three men were servicemen on Respondent's pest control crew. The
other members on this crew were Roberts, Matthias, and Orlick. The remaining
servicemen were on the termite control crew. They were Didlo, Thornton, Houli-
han, Junior, Gampher, and Templeton. According to the testimony of Brock and
Polacek, substantially corroborated by Rife, Helms, on the aforementioned occasion,
"asked us if we had known anything about the situation at Ragan, and we asked,
`What situation?' He said, `About the union' and we told him, `No.' He told us
if we heard anything to let him know " This is Brock's testimony. Polacek testi-
fied that Helms said, "You are the oldest employees,' have you heard anything
1 The record Indicates that in point of length of employment the three men and
Thornton were the senior servicemen.
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 633
about what is going on over at Ragan? He said, `Bill, you should know something.'
And I said, `I didn't hear anything.' He said, `Well, they are having trouble over
there and 1 was talking to Mr. New about the union, he said they are on strike.'
I said, `Yes, sir, that is all I know.' " 2 Polacek and Rife, although asked at the
hearing if Helms said anything else or asked them to do anything, answered in the
negative. On all the evidence and based upon my observation of the witnesses, I
credit Polacek's testimony aforedescribed as the most accurate version of what
occurred during the incident in Helms' office.
Without, as far as appears, having been approached by a union representative,
10 of Respondent's 11 Kansas City servicemen signed authorization for representa-
tion cards in the Union after a visit to the home of Paddock, president and business
representative of the Union. The cards were signed on June 26 and 27, 1961, and
were given to the Union no later than June 27. Thornton, the remaining service-
man, signed an authorization card on July 8, 1961.
On Saturday, July 1, 1961, Helms held a meeting in his office. Substantially
all the employees, including the servicemen as well as salesmen, attended. Such
staff meetings were not unusual and had been held in the past. Based on the
credited testimony of Brock, Polacek, Rife, and Roberts, whose testimony I have
synthesized, I find that Helms, toward the close of the meeting, made the following
remarks: He asked if the men were aware of the union strike situation at Ragan
and how it was hurting both that company and its employees and that it never need
have happened and that Orkin's employees should feel free to tell him or Bell, the
branch manager, any information the employees had about the Ragan situation or
to discuss any of their own problems with Helms or Bell. Neither Helms nor any
other witness testified that Helms or Bell at this meeting criticized the work per-
formance or attitude of the men.
At the end of the workday on Monday, July 3, 1961, Helms discharged all the
servicemen in the Kansas City branch. The discharges were made orally by Helms
who spoke to the men either in groups or individually. Brock testified credibly, I
believe, that Helms "told us what a good job we had done and we were the best
crew he ever had in the Kansas City branch and he was sorry he was going to have
to terminate us." Brock asked, "All of us?" and Helms replied, "It is for the best
interest of the company to restaff the Kansas City branch-that is all I have to
say." Rife testified credibly that Helms told him on July 3 that "he had to let us go,
I [Rife] had been a good worker but he thought it was better for the Kansas City
office to restaff with new men." Roberts testified credibly that on July 3 Helms told
him "that he was sorry to let me go but he had to." The witness was asked, "Did
he say why he had to," and answered, "No, he didn't."
When questioned about the July 3 discharges Helms testified that over the
weekend he had reviewed the June work reports. He said that he started reviewing
the performance records on Saturday afternoon, July 1, and also reviewed them on
Sunday and Monday morning, July 3. It was his opinion that the "attitude" and
"spirit" of the men was not what it should be and "that the operation wasn't going
along as I expected it to and I decided to clean house and that is exactly what I did "
He testified that the foregoing is what he told the employees. When asked whether
he had said anything about the men being the best crew he had had, the witness re-
plied, "I don't think any statement like that was made." He also denied having used
the phrase that he "had" to discharge the men.
After discharging all the servicemen, Helms testified that about 5 p.m. on July 3
he arranged for employees in other branches of the Company to come to Kansas
City as substitutes. He secured one man from the Topeka branch, one from the
Lincoln branch, another from the Hutchinson branch, and others from the Dodge
City and Wichita branch offices. Among those brought in and put to work on pest
and termite service work were a branch manager and a service supervisor.
On Wednesday, July 5, the first working day after July 3, the discharged employees
selected Brock and Polacek as a committee of two. After the committee contacted
the Union and secured a picket sign, the discharged employees started picketing the
Orkin premises about 1 p.m. The picket sign legend was that "Orkin Exterminating
Company discharged me because of my activity on behalf of Teamsters Local 587 "
During the afternoon of July 5 Helms came out of his office several times and
spoke to the employees picketing. Helms asked them to come into his office so he
could talk to them. They refused and referred him to Brock and Polacek. When
Helms spoke to Brock he asked him to come in and "talk this thing over." Brock
refused and told Helms that he (Helms) would have to take it up with the Union. As
9 Ragan Exterminating Company is a competitor of Orkin's in the area. Mr New is
not identified in the record nor is the union at Ragan's
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rife and Roberts, who were present and overhead the conversation, credibly testified,
Helms then said, "I don't want to talk to the Union, I want to talk to you men."
Brock and the others, however, refused to go in the office and discuss the matter with
Helms. Helms testified that he had spoken to Brock and the others during the picket-
ing and had asked them "to come in and let me discuss this matter with them."
The picketing ceased at approximately 2:30 p m. on Thursday, July 6, and the men
returned to work.3 The employees had, on July 6, each received a special delivery,
registered letter, return receipt requested, dated July 5, and signed by Helms. The
wording of the letters was: "Your termination of July 3rd, 1961, is hereby rescinded
as of that same date. Please report to work immediately." After discussing the
matter with the Union the employees then returned to work as aforementioned.4
On July 6 the Union had sent a telegram addressed to "Orkin Exterminating Com-
pany, Inc., 2826 McGee Traffieway, Kansas City."
The undersigned labor organization represents a majority of all of your extermi-
nating servicemen and plant workers excluding office clerical and supervisory
employees as defined in the National Labor Relations Act as amended. You
are hereby requested to recognize this labor organization as the exclusive repre-
sentative of those employees. Please advise when we may meet for purposes of
negotiating a contract. [Taxicab, Produce Employees, Ambulance and Funeral
Drivers, Local Union No. 587, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America by John S.
Johnson].5
Helms testified that he received the telegram on the afternoon of July 6 after the
men had reported back to work. I credit this testimony. I also find that Respondent
never replied to this telegram and neither Helms nor any other representative of
Respondent ever asked any union representative or any employee any questions
concerning the telegram or its contents.
The record is clear that when the discharged employees returned to work on July 6
or 7 neither Helms nor anyone else said anything critical of their past work perform-
ance or attitude or warned them that they would have to improve or anything of that
nature. In fact, the uncontroverted and credited testimony of Rife is that Helms, in
the presence of Bell, told him when he returned that he was "glad to have me back
to work, glad to see me come back to work, and wanted me to do the work like I
always did " Similarly, Roberts testified without contradiction that Helms told him
that he, Helms, "though he acted a little hasty, that two or three things went on that
he didn't approve of and he was glad to see me back, and I [Roberts] had been doing
a fine job and [he] wanted me to stay right in there " Helms did not tell Roberts
what were "the two or three things" of which Helms had not approved. Other uncon-
troverted testimony is that Helms told dischargees when they returned that he had
been a little too hasty and they should resume their work.
Eight of the servicemen who had previously signed union cards met with Union
Vice President Johnson on July 13 and discussed the failure of the Company to reply
to the July 6 union telegram. The men voted to give their committee (Brock and
Polacek) and the Union authority to call a strike if and when it was deemed
necessary 6
Paddock's uncontroverted testimony is that he telephoned the Company three
times on July 24 and twice on July 25. On these occasions he asked for Helms or
Bell, gave his own name, telephone number, and stated who he was, and asked that
Helms or Bell call him. Paddock did not suceed in speaking with the aforementioned
individuals and his calls were never returned.
Paddock, Johnson, Brock, and Polacek met on July 26 and decided to call a strike
for July 28. The strike commenced on July 28 at 7 a.m. All the servicemen took
part in the strike, with the possible exception of Orlick who went to work for part of
the day and then left. The picket sign carried at the company premises stated: "On
strike. Orkin Exterminating Co. Refused to Bargain with Teamsters L.U. #587."
3 The men either reported back for work on July 6 and resumed work on that date or
they reported back on July 6 and resumed work on the morning of July 7
4 Anparently, in view of the fact that the servicemen were paid principally on a
monthly salary basis and in the light of the unchallenged statement of Respondent's
counsel at the hearing, during the course of arguing a motion to the Trial Examiner, the
rescission of the discharges also resulted in no loss of pay to the employees
5 Johnson is vice president of the Union
6 Of the 11 servicemen who had been discharged on July 3, 1, a member of the termite
crew, named Didlo, apparently left Kansas City and did not return to work with the
others on July 6 or 7
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 635
On July 28 the Union wrote the Company a letter that read, "Repeating our request
of July 6th, the undersigned labor organization represents a majority of all your
exterminating servicemen and plant workers, excluding office, clerical and super-
visory employees-and are again requesting you to recognize this labor
organization. . . .
Respondent's counsel, by letter of August 2, wrote to the Union as follows:
This will acknowledge your letter of July 28 . the employer is not willing
to meet with you or to recognize your labor organization until such time as you
have been certified by the National Labor Relations Board to represent a unit
determined to be appropriate by the Board.
Paddock testified that because he understood that Respondent's counsel, whose
office was in Atlanta, Georgia, would be in Kansas City in the week of August 7 and
that there was a possibility of sitting down with Respondent and achieving an agree-
ment, the strike was called off. The Union by telegram of August 8 advised Respond-
ent that the employees "have terminated their strike" and would report for work on
August 9. The employees did return to work on August 9. No negotiations took
place between the parties thereafter and the strike was resumed on August 17 and
was continuing at the time of hearing.?
B. The alleged illegal discharges
As we have seen, Helms' explanation for the discharge of all the servicemen on
July 3 was that he had gone over performance records on Saturday, July 1, on
Sunday, July 2, and on Monday morning, July 3. He concluded that the "attitude"
and the "spirit" of the men was not what it should be and that the operation was not
going along as he expected it to. He therefore decided to clean house. Having dis-
charged his entire staff of servicemen Helms brought in personnel from five other
offices of the Company located in five different cities. After the imported personnel
had gone to work on July 5, Helms testified that, on that day, before the picketing
had commenced, he decided that he had acted "somewhat hasty and wanted to give
the boys an opportunity to do the job as I thought perhaps they could do if they
buckled down." He, therefore, on July 5, wrote a letter to each of the discharged
employees rescinding the discharges. The discharged employees reported back to
Helms on July 6 and either resume working toward the end of that day or reported
for work the following morning, July 7.
In appraising the foregoing, my estimate of Helms as he appeared on the witness
stand played an important, if not decisive, part. Helms had been with the Company
for 18 years. He had been district manager since 1953 and had been a branch mana-
ger since 1944. He impressed me as a very alert managerial employee, both mentally
and physically. He appeared to be thoroughly familiar with the business and he was
the operating head of the entire Kansas City based corporation, with offices in that
State and in adjoining States. He definitely did not give me the impression of a man,
who, on business matters, would act imprudently hastily or impulsively.
With the foregoing in mind, we then examine his testimony that after going over
the performance records of his employees in Saturday afternoon, Sunday, and on
Monday morning, he decided to discharge his entire staff of servicemen because of
their attitude and unsatisfactory work records. This purportedly carefully considered
decision was supplemented by Helms bringing to Kansas City personnel, including
key supervisors, such as a branch manager, from five other offices of the Company.
The plausibility of Helms' testimony is affected by the fact that elsewhere in the
record he testified that "about every day" it was his practice to review the sales and
service records of his operation. I believe this to be a fact since, as indicated, Helms
impressed me as a man who was thoroughly on top of his job. It is my belief that
very little grass grew under Helms' feet and that he knew almost exactly what the
day-to-day performance of his employees was. He was, of course, right on the
scene in Kansas City and had a staff of 11-not hundreds-of servicemen, about
whose work, I believe, he was fully cognizant . The testimony, therefore, about
pouring over the records of 11 employees for 3 days before discharging them is
7A meeting of the Union had been held on August 15 The vote was 8 to 0 to resume
the strike Thornton one of the termite control men who was not present at the
August 15 meeting, was one of the pickets The picket sign stated that the Company
had refused to bargain with the Union
The record does not show what efforts, if any, were made by the Union to talk with
Respondent's representatives in the period August 7 to 17 Apparently the Union was
standing by its July 28 letter and the Respondent was content to stand by its August 3
reply
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhat surprising . The allegedly poor performance records were not produced
at the hearing and when asked for specific instances of poor performance Helms
referred to one man who was not, in Helms ' words, "spry and perky ." The only
other testimony that Helms offered in reply to the aforementioned inquiry was the
statement that termite men were not completing their jobs on time. When asked
which jobs were not so completed Helms said, some jobs in the latter part of June.
Although asked , Helms said he was unable to name the jobs.
More important , however, is the evidence that, when the employees were dis-
charged, Helms, rather than criticizing their performance , told them how good their
work had been and attributed his action to something that he felt obliged to do for
the good of the Company .8
The deliberate discharge of Respondent 's entire staff of servicemen without prior
warning or criticism raises further questions . Generally speaking , this cutting off
of all operational employees before replacements had been hired or hired and
trained fails to impress me as the action that a prudent manager such as Helms
would ordinarily take for economic reasons in the course of business operations.
Such a drastic step would ordinarily be reserved for situations where the business
position of the company was being seriously and immediately jeopardized by a
wholly inefficient or unqualified staff of employees . Although the action was sudden
it was deliberate . Not only were the discharges deliberate but a very deliberate
action was taken in commandeering personnel from five other offices to come in to
replace the dischargees.
In view of the foregoing well-thought -out steps , the reversal of the decision on the
next working day after the discharge merits attention . Helms' explanation to the
employees when they returned and his testimony at the hearing is that he simply
decided that he had acted hastily and he therefore rescinded the discharges. But
while the discharges had come suddenly it is apparent from the evidence previously
described that the original decision was far from a hasty one. As said before, Helms
also did not impress me as a man who made hasty decisions on business matters
when the factors involved were economic . I find Helms' testimony particularly
unconvincing in the light of the uncontroverted evidence that when the employees
were rehired not a single word was said to them about being given a second chance
or an opportunity to improve their work or anything of that nature. If the men
had been discharged because of poor work performance and attitude , after the
Respondent had carefully gone over their records , and the Respondent , we shall
assume, arguendo, then decided that he had been "hasty ," it is quite incredible that,
as a minimum , he would not have told them upon their return that they should or
must improve their performance . Far from warning the employees to improve or
exhorting them to change their ways Respondent in substance simply told the return-
ing employees that he had acted hastily and that they should resume their work as
formerly.
I find myself unable to credit Helms' testimony that after careful review of work
records he decided to forthwith discharge all his servicemen ; or his testimony that
after making such a careful decision for purely economic reasons he then decided
that he had acted hastily and unwisely and rehired the employees without any men-
tion of the necessity of improving their work , the alleged very cause of the discharge
and the rather elaborate and costly steps taken to carry on .the business immediately
after the discharges.
In rejecting Helms' testimony aforedescribed I am by no means implying that
employers on occasion cannot act hastily or unwisely . It is simply my conclusion
that in view of my impression of Helms and the facts in this record his explanation
is not credible.
Having rejected Respondent 's explanation for the discharges, the question remains
whether the General Counsel has sustained the burden of proving that the discharges
were illegally motivated . In the absence of evidence that Respondent had knowledge
of the union activities of the employees prior to their discharge it is apparent that
the General Counsel can prevail only if an inference of such knowledge on the
part of Respondent is drawn or on some basis establishing illegal motivation.
The General Counsel argues that the circumstances lead only to the conclusion
that Respondent had become aware of its employees ' union activities and dis-
charged them for that reason . The General Counsel urges that "It just does not
stand to reason that all 11 servicemen had to be discharged because all 11 of them
suddenly failed to turn in an adequate job performance."
8 The details of the various statements have been set forth earlier In this report.
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 637
While I have rejected Respondent's unconvincing explanation of the discharges
and while an inference of employer knowledge may be drawn, particularly in a small
establishment with close contact between employees and supervisors, I find it un-
necessary to infer employer knowledge. More compelling and based on definitive
evidentiary findings heretofore made is the conclusion that Helms was greatly con-
cerned about the fact that there was union activity among Ragan's employees This
is clear from the evidence regarding the June and July 1 statements made by Helms
to his own employees. Helms' questions to his employees indicate ,that he believed
they had some contact with or information about the Union-Ragan situation although
not necessarily that they were union adherents. These statements reveal, I believe,
Helms' concern not primarily about his competitor but principally because he was
apprehensive that a union-management situation such as existed at Ragan might
develop at Orkin. Helms urged his employees to bring their information and prob-
lems to him or to Bell with the unmistakable desire to thereby head off any possible
resort to union activity comparable to that which had occurred at Ragan. This
concern of Helms was no passing matter and had been expressed on two separate
occasions. The inquiries and the invitations to Orkin's employees to discuss any
problems with management apparently bore no fruit in spite of the urgent invitation
as late as July 1. Under these circumstances and in view of the implausibility of
Helms' testimony regarding the discharges, I view the discharges of July 3 as the
culmination of Helms' concern about the possible spread of the infection of union
activity from Ragan's employees to those of Orkin, both groups of employees being
in the same type of employment in the same area. I believe that Helms decided
to clean house as a precautionary measure and this is the explanation for the whole-
sale discharges and for his remarks to the employees that although they were good
workers he felt obliged to discharge them and to restaff the entire force for the
best interest of the Company. I find that the discharges for the above reasons were
discriminatory and in violation of Section 8(a) (1) and (3) of the Act.9
Having rejected Helms' explanation of the discharges and the rehirings and having
set forth my conclusion as to the reason for the discharges, it is perhaps unnecessary
to also state my conclusions regarding the reason for the rehirings. However, it is my
opinion that Helms' testimony that he decided to rehire the employees before the
picketing commenced on July 5 raises serious questions . Helms had discharged the
men orally and I have difficulty in understanding why, on July 5, when the picketing
had commenced, Helms did not then orally tell the men that they were rehired, if he
had previously decided, as he testified, to do so. While it is true that Helms had
asked various employees to step into his office for a discussion of undisclosed sub-
jects during the July 5 picketing, he gave no intimation that he had already decided
to rehire the men nor did he tell them that they were rehired. Surely a few simple
words would have adequately conveyed such a message and did not entail or necessi-
tate a conference in the company office if Helms had previously decided on the rehir-
ings. There is no evidence regarding the time of day when Helms' rehiring letter,
dated July 5, registered, special delivery, was mailed. All we know is that the letters
were received at noon on July 6. In the same connection there is no evidence that
Helms had consulted company counsel before making the July 3 discharges but there
is evidence that Helms spoke to counsel, whose office was in Atlanta, Georgia, by
telephone, on July 5. At the hearing Helms was asked whether he had not mailed
the July 5 letters subsequent to his conversation with counsel. The answer on such a
matter would normally appear to be susceptible to a positive statement but Helms'
answer was less than positive and he said, "... I am not at all sure it was subsequent
to it."
If Helms had impressed me as a frank and forthright witness I would have some
question about drawing conclusions on the foregoing aspects of his testimony. How-
ever, since Helms' testimony regarding the discharges and the rehirings has impressed
me as wholly unconvincing and since I am not persuaded that a man of his character
and in his position acted without reason, it is necessary to draw what I believe to
be the most reasonable and plausible inferences from the evidence before me.
9 Witness Brock testified without contradiction that Respondent terminated one of its
two salesmen in addition to all the servicemen Assuming that such was the fact, there
is no evidence in the record by Respondent that its salesman was inefficient nor is any
explanation given for such discharge Since the record shows no union activity what-
soever by the salesmen, the discharge of one of them does not fall readily within the
General Counsel's theory that Respondent discharged its employees because it knew of
their union activities. It is my view that the discharge of the salesman although not
an issue is quite consistent with my previously expressed opinion as to why Respondent
cleaned house on July 3
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have previously set forth my conclusion regarding the discharges. That con-
clusion did not rest on the premise that Helms, on July 3, knew that his employees
had joined the Union. He either suspected that the Ragan union infection had
affected his employees or he believed that the best insurance against such a possibility
was to clean house by discharging all servicemen, even at the cost of some incon-
venience in filling their places from other offices. When the pickets appeared on
July 5 with placards stating that they had been discharged because of their union
activity, Helms knew definitely that what he had either previously suspected or had
sought to insure against was a fact, to wit, that Orkin had a union situation on its
hands. Thus confronted for the first time with evidence that Orkin had some kind
of a union problem in the form of picketing that asserted that Orkin had discharged
its employees for union activity, Helms, I believe, realized that legal aspects were or
might be involved. Previously, the situation appeared as merely an operational
matter susceptible of practical solution without legal ramifications, i.e., union activity
among employees of an exterminating company in the area; no definite knowledge
or no knowledge of union activity among Orkin employees; no union appearance to
the Orkin scene; a precautionary measure of discharging all Orkin servicemen who
might have been or might be affected by the possible spread of union ideas from
Ragan employees to Orkin employees as evidenced by Helms' anxious questioning
of his employees on two occasions. At that stage no legal problem was apparent.
The discharge of the men would presumably end the matter. But then, as we have
seen, on July 5, with the appearance of the pickets and the legends on the placards,
the matter assumed complications. The Union was picketing the place of business
and the Company was being accused of discharging employees for union activity. It
is my belief that Helms, not long after the picketing had commenced, then decided
to rehire the men. He may well have consulted counsel on July 5 after the appear-
ance of the pickets and after his own unsuccessful efforts to discuss "the matter"
with the employees. Helms does admit having spoken to counsel by long distance
telephone to Atlanta on that date.io
C. The alleged illegal interrogation
The General Counsel contends that Respondent, by Helms' questioning of employ-
ees in June 1961 and on July 1, 1961, engaged in interrogation violative of Section
8(a)(1) of the Act. The two incidents have been described in detail under sub-
section A, above, of this report, and reference has also been made to them under
subsection B, dealing with the July 3 discharges.
As I view the evidence regarding the June and July talks, Helms, in substance,
asked for information about the situation at Ragan, a competitor of Respondent,
that had been struck by an unidentified union.ii Helms' statements were to the
effect that the Ragan situation was harming both Ragan and Ragan's employees
In addition to asking Respondent's employees for any information that they had
regarding the Ragan situation Helms told them in effect that they should feel free
to discuss any problems that they might have with himself or Manager Bell
It is reasonable to conclude that Helms had a natural interest in what was occur-
ring, for good or ill, at a competitor's place of business. I do not believe that the
evidence warrants the conclusion that he was interrogating his own employees about
the union activities of the Ragan employees, rather than about the general situation
10If Helms had decided on July 5, before picketing commenced, to rescind the dis-
charges and to rehire the men, I believe he would have told this to the men when they
appeared or during the picketing As I have previously observed, a few simple words
were all that were required and Helms was speaking to the picketing employees several
times during the July 5 picketing Helms did not testify that "the matter" he had
asked the men to discuss in his office or had wanted to discuss was the rescission of the
discharges or the rehiring and for the reasons already stated I do not believe that this
was what he had in mind at the time While, of course, laymen use registered letters
and return receipts I seriously doubt that, in the circumstances described, Helms would
have resorted to this method of rescinding the discharges in preference to or prior to
making a simple oral statement to that effect to his employees It is the professional
in the field of labor law who commonly would be aware that in numerous Board and
court cases, there have been serious controversies regarding whether in a particular case
an offer of rehiring or reinstatement was made or when such an offer was made and
the terms of such offer This is certainly a factor tending to jibe with the real possibility
that Helms consulted counsel after the picketing commenced and then advisedly effected
the offer of rehiring in a legally provable manner by registered mail with return receipt.
11 Unidentified in the instant record.
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 639
at Ragan. There is no evidence of any liaison between Helms ' and Ragan's man-
agement. If Helms was primarily interested in the union activities of Ragan em-
ployees he certainly did not make it clear that this was what he wanted. He asked
for information about the Ragan situation in general.
I am also of the opinion that Helm's language does not sufficiently indicate that
he was interrogating his employees about their own union activities. Nor was he
promising them any benefit or threatening them with any consequences regarding
union activity.
As I have stated above, in considering the July 3 discharges, it is my view that in
June and July Helms' talks with employees indicate not solely a natural interest in
a strike situation involving a competitor but deep concern that a similar situation
might somehow affect Respondent 's employees with resulting management-labor
problems like those at Ragan. I believe his request that the employees feel free
to discuss any information or problems with himself or Bell was an attempt to head
off any possible situation comparable to that at Ragan, i.e., a strike. Helms may
have believed that the suggested procedure would also divulge any union activity or
membership among his employees but he did not express himself in these terms.
He did not promise anything or threaten anything if employees discussed their prob-
lems with him or compare such a suggested procedure with resort to a union or
indicate that any union activity of the employees would be in any way affected.
There is no evidence that Respondent in June or on July 1 was aware of any
union activity among its own employees and no request had been made by the
Union for recognition. Under these circumstances, for an employer to invite his
employees to discuss their problems with management is not, in my opinion , illegal.
The fact that the employer may have hoped that he might thereby obviate any neces-
sity on his employees ' part to engage in union activity such as was occurring in a
competitor 's plant does not alter the conclusion . 12 As previously indicated, the
particular circumstances and the language used do not convince me that Respondent
has violated Section 8 ( a)(1) of the Act. I recommend dismissal of paragraph
X(a), (b), and (c) of the complaint.
D. The alleged refusal to bargain
1. The appropriate bargaining unit
The unit as alleged in the complaint consists of all extermination and termite
control employees at the Kansas City, Missouri , branch of Orkin Exterminating
Company of Kansas, Inc., excluding office clerical employees , the technician, sales-
men, and professional employees and supervisors as defined in the Act.
Neither the General Counsel nor the Respondent contends that the appropriate
unit is a multiplant one consisting of the extermination and termite control em-
ployees of all the six branch offices of Orkin Exterminating Company of Kansas,
Inc.13 There is no interchange of employees among the several branches although
an employee may from time to time make a permanent transfer from one location
to another. Each branch office is autonomous or semiautonomous and is directed
by a branch manager. Aside from the general supervision by Helms as district man-
ager, there is no evidence to support a contention , and none has been made by any
party, that a multiplant unit of servicemen in all branch offices of the Kansas cor-
poration is appropriate.
Repondent contends that the salesmen should be included in the bargaining unit.
At the Kansas City branch there are two salesmen . Helms testified that selling the
service that the Respondent rendered is the principal job and occupation of the sales-
men. The salesmen are paid on a commission basis in addition to a guaranteed
salary. According to Helms, the guaranteed salary of the salesmen "is rather small
in proportion to what we expect them to earn on a total basis " and at least half or
more of the salesmen 's income comes from commissions. The salesmen ordinarily
drive their own cars and they dress according to the type of contact to be made,
e.g., they will wear a suit when simply contacting a customer but will don a uniform
"quite frequently" if they are out inspecting buildings in the course of their efforts
to secure new business.
'- It is a fair statement that in unorganized plants, good employer -employee relations
programs, counseling services, good wages, fringe benefits, etc , may have as part of
their purpose the establishing of conditions that make for employee satisfaction, includ-
ing absence of a desire for union representation Respondent 's effort to afford its em-
ployees ready access to management regarding problems is not illegal by reason of the
effort, at least in the context of the very limited statements made by Helms.
Is The names and locations of the branch offices are set forth in section I, above.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The two salesmen at Kansas City had formerly been employed as servicemen by
Respondent. Helms testified that the salesmen on occasion are sent out with a new
serviceman and show him the routes, the customers, and the fundamentals of the
work. All Respondent's employees have the same holidays, vacations, pensions, in-
surance, and Christmas bonus, the latter being based on length of service.
As the name indicates the servicemen , who are in two categories , pest control and
termite control, perform the physical services that Respondent sells to its customers.
They receive a monthly salary plus an incentive percentage that is based on the
volume of work on their respective routes. Each man has a different route and, as
Helms testified, "consequently a different volume derived." If a serviceman in the
course of his work secures a new job from a customer or a new customer he would
receive the same commission as would a salesman . The servicemen wear uniforms
and drive company trucks in performing their work.
Although Respondent's salesmen and servicemen do have some common aspects
in their employment, I believe that a unit confined to the servicemen is an appro-
priate one. One category is primarily concerned with selling a contract to customers
and the other category is primarily responsible for performing the contract. All good
salesmen have considerable knowledge and know-how about the product or service
they sell and many can, on occasion, adjust or repair the product or render the
service. But such is not their primary function. The servicemen too, on occasion,
may sell the product or service, e.g., a television serviceman may point out reasons
why purchase of a new set would be a wise move for a customer or a pest control
serviceman may sell a termite contract, pointing out that he found evidences of
termites while exterminating other pests. But, again, services rather than sales is the
primary function of the serviceman.14
In addition to its contention that salesmen should be included in the bargaining
unit, Respondent asserts that the unit should be otherwise confined to its Kansas City
pest control servicemen and permanent termite control servicemen.
Helms testified without contradiction that the termite work is of a seasonal nature
relating to the swarming season of termites. He stated that in Kansas City Respond-
ent employed one permanent termite employee (apparently Thornton), and that
for the busy season , April to August or September, additional but temporary termite
control employees were added to the payroll. A substantially similar pattern was
followed in the other branches. With the exception of Houlihan, Junior's, testimony
there is little, if any, evidence contrary to Helms' testimony. As a matter of fact,
Houlihan, Junior's, testimony indicates that he was a temporary employee and he
testified that Helms had in fact used that term when he was hired. When Houlihan
told Helms that he was interested in permanent employment the latter simply said
that he would see how things worked out. The evidence shows that Houlihan, Junior,
was hired May 1, 1961. The date of hiring of the other termite men is not shown
except that Thornton, a permanent employee, was hired in March of 1959. Accord-
ing to Houlihan, Junior, a few days before the strike of August 17, 1961, Bell had
called Houlihan, Junior, Gampher, and Wesley Templeton into his office and had
told Houlihan and Templeton they were going to be laid off for lack of work.15
14 In L Fatato, Inc, 87 NLRB 546, 547, the Board excluded the category known as
"drivers-loaders-salesmen" from a unit of drivers and helpers although the excluded em-
ployees did spend some of their time loading and distributing beer in the employer's
trucks and, like drivers, also performed some maintenance work However, the evidence
showed that they were "primarily interested in soliciting customers and that their em-
ployment interests [were] more akin to those of salesmen . . Norfolk Broadcasting
Corporation, 98 NLRB 1095, radio station's salesman excluded from unit of announcers
and programmers although, in addition to selling, he wrote commercial copy and pro-
duced commercial recordings ; the Board observed in Herboth Tractor Co., 79 NLRB 431,
433, that "In the absence of a compelling argument to the contrary, the Board will not
in this case depart from its practice of excluding clerical employees and salesmen from
a unit of manual workers." This principle was reiterated in Dunlap Chevrolet Company,
91 NLRB 1115, 1116, and in Seattle Packing Company, 106 NLRB 451, 452 The Board
in Niagara Beer Distributers Association, 108 NLRB 1571, 1573-1574, noted that sales-
men "are primarily engaged in selling their firm's product " Although the salesmen
checked on drivers to see that customers were being properly serviced and did on occa-
sion fill in as drivers and also performed maintenance work they were excluded from the
unit; cf Foremost Dairies, Inc , 124 NLRB 293.
i, Houlihan, Junior, was a very young man who was unimpressive as a witness I do
not believe he was untruthful but he had difficulty in conveying his thoughts or in throw-
ing much light on the general situation. In addition to Thornton, a permanent termite
control employee who received a higher salary than the other termite employees, there
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 641
There is no contention or evidence controverting the bona fides of Bell's statement.
The evidence is such that I conclude that four of Respondent's five termite control
employees were temporary seasonal employees as claimed by Respondent. There is
no evidence that customarily Respondent rehired the same seasonal employees from
year to year. It is therefore my opinion that the appropriate unit should be confined
to pest control servicemen and permanent or regular termite control servicemen.16
I find that the appropriate unit consists of all extermination pest control employees,
permanent and regular termite control employees at the Kansas City, Missouri,
branch of Orkin Exterminating Company of Kansas, Inc., excluding office clerical
employees, the technician, salesmen, and professional employees, seasonal and tem-
porary termite control employees and supervisors as defined in the Act.
It is also found that the Union represented a majority of the employees in the
unit that I have found to be appropriate, as well as in the unit alleged in the com-
plaint. The Union did not represent a majority of the extermination pest and termite
control servicemen of all six branches of Orkin Exterminating Company of Kansas.
2. The Union's claim for recognition as bargaining agent and
Respondent's conduct relating thereto
The two requests for recognition made by the Union to Respondent were the
telegram of July 6, 1961, and the letter of July 28, 1961. Both of these communica-
tions were addressed to the Orkin Exterminating Company, Inc., 2826 McGee Traffic-
way, Kansas City, Missouri. The unit that the Union claimed to represent in the
foregoing telegram and letter was "all your exterminating servicemen and plant
workers, excluding office, clerical and supervisory employees. . ... Other than the
foregoing there was nothing else said between the parties on the matter of unit other
than Respondent's letter of August 2. As a matter of fact the only other communica-
tion between the parties was on August 9, 1961, when the Kansas City branch em-
ployees who had struck on July 28 returned to work. On that day, August 9, Paddock
went to the company office, introduced himself to Manager Bell, and told him the men
were returning to work. Bell said, "Fine." No other conversation took place and
Paddock made no demand upon Bell.17
At no time in claiming recognition from Respondent as bargaining agent had the
Union described the unit in which it claimed to represent the employees in the terms
used in the complaint to describe the unit nor did it describe the unit as the one found
hereinabove to be appropriate.
I credit Helms' testimony that upon receipt of the July 6 telegram from the Union
he turned the matter over to company counsel whose office was in Atlanta. It is
also clear that Helms did the same thing with the July 28 letter from the Union.
Respondent and its counsel, as far as the record shows, did absolutely nothing
regarding the July 6 telegram of the Union. There was no reply, no acknowledgment.
There was no antiunion conduct and not even an expression of views regarding the
Union The Union was unable to reach Helms or Bell by telephone on July 24 and
25. On August 2, Respondent replied to the Union's July 28 letter and stated its
unwillingness to meet with the Union or to recognize it "until such time as you have
been certified by the National Labor Relations Board to represent a unit determined
to be appropriate by the Board."
In order to establish a refusal to bargain within the meaning of Section 8(a) (5)
of the Act, there must be on the Union's part a prior request to bargain in the ap-
priate unit.18
Applying this test, we find that the Union's requests to bargain, on their face,
described the unit claimed in broader terms than the unit set forth in the complaint
were the following other termite control men: Didlo, who disappeared from the scene
and apparently departed Kansas City after his discharge on July 3, 1961; Houlihan,
Junior, Gampher, and Templeton
18 Weyerhauser Timber Co, 81 NLRB 472, 474-475; Augusta Chemical Co., 124 NLRB
1021, 1022; W. P Fuller it Company, 122 NLRB 814, 816; Anderson's Super Service,
Inc., 120 NLRB 583, 584-585; Personal Products Corporation, 116 NLRB 393, 395;
American Rice Growers Cooperative Association , 115 NLRB 275, 278; Individual Drink-
ing Cup Company, Inc, 115 NLRB 947.
17 In its unfair labor practice charge filed with the Board, asserting that Respondent
had violated Section 8(a) (5) of the Act, the Union described the unit as "All exterminat-
ing servicemen and plant workers excluding office clerical and supervisory employees as
defined in the Act" of the Company, Orkin Exterminating Company, Inc
18 Joslin Dry Goods Company, 118 NLRB 555, 558; Mike Persia Chevrolet Co, Inc,
107 NLRB 377, 380; The C. L. Bailey Grocery Co., 100 NLRB 576, 579; Barlow-Maney
Laboratories , Inc, 65 NLRB 928, 943; Atlas Storage Division, 112 NLRB 1175, 1178.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the unit that I have found to be appropriate. "All your exterminating servicemen
and plant workers" when the addressee is "Orkin Exterminating Company, Inc., 2826
McGee Trafficway, Kansas City, Missouri" is reasonably susceptible to various in-
terpretations. These interpretations are: (1) Orkin Exterminating Company, Inc.,
Kansas City, Missouri, is a corporation having six branches, one of which is in Kansas
City. All these branches employ exterminating servicemen and plant workers and the
phrase "all your exterminating servicemen and plant workers" means employees of
the foregoing type in all branches;19 (2) Orkin Exterminating Company, Inc., main-
tains a branch office in Kansas City where it employs employees of the type described
by the Union in its telegram and letter and this was the unit referred to by the Union;
(3) Orkin Exterminating Company, Inc., maintains a district office in Kansas City
and, in the district consisting of six branches, it employs employees of the type de-
scribed by the Union and this was the unit referred to by the Union; (4) if the unit
referred to in (2) above was intended the unit description should have included the
phrases "in the Kansas City, Missouri branch office" or "in Kansas City, Missouri"
or similar language; (5) the unit described by the Union is not clear and is at least
ambiguous.
It is my opinion that the unit described by the Union in making its claim for
recognition upon the Respondent was, at least, from the standpoint of the General
Counsel's position, an ambiguous unit on its face. As analyzed above, the unit de-
scribed by the Union was either an inappropriate unit and one in which the Union
did not represent a majority or it was an appropriate unit in which the Union did
represent a majority.
We shall consider, however, other evidence in the record to determine whether,
in spite of the ambiguity of the Union' s claim and demand with respect to unit,
Respondent knew that the Union was claiming a unit confined to the Kansas City
branch.
My conclusions regarding the July 3 discharges were to the effect that Helms,
apprehensive over the Ragan-Union situation and fearful of its spread to Orkin,
regarded the Kansas City branch office as the greatest point of danger, principally
because Orkin's employees were engaged in the same type of work as were Ragan's
and because of the physical proximity of the two companies in Kansas City. The
July 5 picketing and the placards used therein apprized Respondent that the Union
had organized its Kansas City servicemen. I do not believe that the evidence war-
rants any greater imputation than the foregoing. For instance, I cannot say that
Respondent also knew that the Union had or had not signed up servicemen in some
or all of its other branches. True, there was no picketing except in Kansas City but
there had been no discharges except in that city and the picketing was solely attribu-
table to the discharges. The discharges in turn were not because Respondent knew
on July 3 that his Kansas City servicemen had joined the Union but because Helms
was concerned about the possibility, owing to the factors mentioned above 20 If
Respondent, in the light of the evidence in this record, had not known of the union
affiliation of its Kansas City servicemen prior to the appearance of the pickets on
July 5, I cannot conclude that in July it knew one way or the other whether service-
men in other branches had joined the Union. The lack of picketing at other branches
was not determinative of this question since, as explained above, there were no
discharges at such branches. If the picketing on July 5 had been for union recogni-
tion the lack of picketing at other branches would have had some significance in
deciding whether Respondent, early in July, knew with reasonable certitude what
unit the Union was claiming in its otherwise ambiguous July 8 telegram 21
19The Greater Kansas City telephone directory lists Orkin in the following manner:
ORKIN EXTERMINATING CO. INC.
Branch Ofc 2826 McGee Trfwy BA 1-2440
Dist Ofc 2826 McGee Trfwy BA 1-4949
Indep Mo Ofc 311 W Kans CL 2-2434
zu We have seen that on July 3 Respondent terminated not only its servicemen but one
of its two salesmen. The latter had had no connection whatsoever with the Union This
factor aside from jibing with my own view of the reason for the discharges is also some-
what indicative that Respondent may have consistently believed that salesmen would
be in any appropriate unit together with the servicemen This, of course, was Respond-
ent's position at the hearing.
21 Helms' futile efforts to talk with the pickets on July 5 and the fact that they told
him to talk to the Union did no more than confirm what Helms already knew by reason
of the picketing and the placards, i e , that the Kansas City servicemen had joined the
Union
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 643
In the light of the foregoing it is my opinion that neither the July 8 telegram nor
the telegram considered in conjunction with the July 3 to 5 events establish that the
Union had made clear in what unit it claimed to represent a majority or that the
Respondent can be held to have known in what unit the Union claimed majority.
With the foregoing circumstances , the record shows that Respondent did not
reply to the July 8 telegram and on two occasions , July 24 and 25, the union repre-
sentative was unable to reach Respondent 's district or branch manager on the
telephone . We do not know what the Union wished to say to Respondent on July
24 and 25 and in the absence of evidence on the point I conclude that presumably
the Union wished to reiterate the substance of its telegram and to secure recogni-
tion and a contract. During this period ,there is no evidence of antiunion conduct
on Respondent 's part directed against its employees and the employees continued
to work without harassment, threat, or interrogation by Respondent.
Up to this point I find no refusal to bargain on Respondent 's part within the
meaning of Section 8 ( a)(5) of the Act . Precedent to any obligation on Respond-
ent's part was the requirement that the Union make a request to bargain, setting
forth clearly or with reasonable clarity an appropriate unit in which it represented
a majority or that the Unicn 's request in combination with other factors clearly or
with reasonable clarity conveyed to Respondent the foregoing information. For
the reasons stated this was not done and "it was not incumbent upon the Respondent
to seek clarification from the Union" of any unit claimed.22
We now come to the July 28 strike for recognition in which all the Kansas City
servicemen participated . The picket placards stated that Respondent refused to rec-
ognize the Union . It is my ,opinion that on that date Respondent became aware that
the unit claimed by ,the Union was confined to the Kansas City branch . There were
no recognition strikes at any other branch of the Company . The unit that was not,
in my opinion , reasonably clear before , became so on July 28. Although the Union,
in its July 28 letter to Respondent , used the same broad, imprecise language with
respect to the unit as it had used on July 8, it is my opinion that the recognition
strike, confined as it was to Kansas City servicemen , made it sufficiently clear that the
Union's claimed unit in its July 28 letter was all the pest and termite control serv-
icemen in the Kansas City office .23
Respondent 's reply to the Union on August 2 was that it "is not willing to meet
with you or to recognize your labor organization until such time as you have been
certified by the National Labor Relations Board to represent a unit determined to
be appropriate by the Board "
The applicable legal principle is that "an employer may in good faith insist
on a Board election [which of course includes the Board 's determination of the
appropriate unit as well as the majority or lack of majority therein by means of
the election ] as proof of the Union's majority but that it `unlawfully refuses to bar-
gain if its insistence on such an election is motivated, not by any bona fide doubt as
to the union 's majority [ in the appropriate unit ], but rather by a rejection of the
collective bargaining principle or by a desire to gain time within which to undermine
the union.' " 24
In the same cited cases the Board went on to state that "In cases of this type the
question of whether an employer is acting in good or bad faith at, the time of the
refusal is, of course , one which of necessity must be determined in the light of all
relevant facts in the case , including any unlawful conduct of the employer, the
sequence of events , and the time lapse between the refusal and the unlawful con-
duct." 25
22 Mike Persia Chevrolet Co., Inc, supra, p 380
23 No special formula nor exact words are required to convey to an employer the re-
quest to bargain in the particular unit claimed All that is required is that the afore-
mentioned request to bargain in an appropriate unit be conveyed "by clear implication "
Joy Silk Mills, Inc v N.L R B , 185 F 2d 732, 741 (CAD C.).
24 Joy Silk Mills, Inc ., 85 NLRB 1263, 1264
25 In the Joy Silk Mills case the union had made a request to bargain in an appropriate
unit The employer refused to grant recognition until the union was certified by the
Board The union then filed a petition for certification with the Board While the elec-
tion was pending the employer engaged in acts of interference and coercion "which made
a free election impossible ." The Board concluded that under these circumstances "the
Respondent 's insistence upon an election was not motivated by a good faith doubt of
the Union 's majority On the contrary , we are convinced that the real reason the
Respondent rejected the Union's request-was to gain time within which to undermine the
Union's support" A violation of Section 8 ( a) (5) was found
641795-63-vol. 136-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Implicit in the foregoing principle regarding the factors to be considered in deter-
mining whether or not an employer had a good-faith doubt as to the union's majority
in an appropriate unit or whether the professed doubt was a device hiding a determi-
nation not to bargain as required by the Act and a means of securing time to under
mine the union, is recognition of the fact, made explicit by the court of appeals in
the same case, that "Neither the Board nor the courts can read the minds of men." 26
The good faith or lack of good faith of an employer must therefore be determined
not by the surmise, educated guess, or belief of the fact finder as to the innermost
state of mind of the employer but by "all relevant facts, including any unlawful
conduct of the employer, the sequence of events, and the time lapse between the
refusal and the unlawful conduct." The pervading importance of unlawful conduct
on the employer's part, in the face of the union's claim for recognition, as a criteria
for determining lack of good faith in demanding Board certification, is evident.
Certainly this is true absent tangible evidence that the employer did not in fact have
a good faith doubt regarding the union's claim that it represented a majority in an
appropriate unit.
The evidence in the instant case shows no unlawful conduct on Respondent's part
either after the Union's initial claim for recognition on July 8 or after the July 28
claim or after the Respondent on August 2 stated that it would not recognize the
Union until the Board determined the appropriate unit and determined that the
Union represented a majority therein. Prior conduct, however, as well as all other
relevant facts, are to be considered in resolving the question whether Respondent
on August 2 was acting in good faith as that term has been analyzed above. The
July 3 discharges require consideration in order to determine whether such conduct
warrants a determination that the August 2 position of Respondent was taken in
bad faith.
I have found that the discharges were illegal, motivated by a desire to insure
against union organization of Respondent. Whether the discharges were made by
Helms, without consultation with counsel, as I believe was the case, or whether made
after consultation, they reveal opposition to having a union in the plant on Re-
spondent's part. However, the warning to the employees in the attempted blocking
of the Union, inherent in the discharges, was reversed by the quick recission of the
discharges as soon as it became apparent that the men were in the Union and were
being backed by that organization. I have no doubt that the employees believed, and
I believe, that they were restored to their jobs, without loss of pay and without any
reprisal or subsequent antiunion conduct by Respondent, because their union mem-
bership and the union support of them had been made manifest. As to exactly
why Respondent beat this hasty retreat we can only conjecture. Respondent's po-
sition, which I have rejected, is that its action was due simply to Helms' decision that
his original action had been "hasty." But, in my opinion, Respondent's action was
attritutable either to the fact that Respondent did not wish to violate the law, or it
wished to insure itself against any possible backpay liability, or that it believed that
the step it had taken was vulnerable, involving as it did a mass discharge of all
servicemen, who were shown by the picketing to have been union members when
discharged. In any event, the restoration of the employees demonstrates that when
Respondent had definite knowledge that the Union represented the employees and
was supporting them, it did not let the discharges stand or use this method (of anti-
union conduct) of opposing the Union . In effect, moreover, the Respondent, by
its retreat, inevitably allowed the pendulum to swing in the opposite direction. The
employees had been presented with a concrete demonstration of the value of the
Union and of the efficacy of that organization in protecting their jobs. This obser-
vation is confirmed by the continued loyalty of the employees to the Union after the
events of July 3-5, including the fact that the one serviceman, who had not pre-
viously joined the Union, did so on July 8.
While Respondent may not have intended that its retreat would have the full
effect described, it cannot have believed that its quick reversal as soon as the Union
first manifested its presence would leave Respondent with any vestige of the fruits
of its original discharge in destroying or frustrating the Union. Even if Helms'
rather lame explanation to the employees of why he was rescinding the discharges
had been true, I cannot but conclude that all or most of the employees would have
discounted the explanation and would have attributed their restoration to the efficacy
of their union membership and union picketing. I believe Respondent probably
realized this but, as a minimum, as mentioned before, Respondent must have known
that its retreat had left itself with no conduct outstanding that was working against
the Union.
28 Supra, 185 F. 2d 732, 742
ORKIN EXTERMINATING COMPANY OF KANSAS, INC. 645
Unless the Respondent 's demand itself, on August 2, that the Union secure Board
certification in a unit determined by the Board , is evidence of bad faith , I find no
evidence that Respondent made its demand in an aura of illegal opposition to the
Union and that it was opposed to the principle of collective bargaining or wished
to play for time in order to undermine the Union. Respondent probably did not
want the Union and may have desired not to have a union but on this record I con-
clude that the demand for certification in a unit determined by the Board has not
been shown to be in bad faith and to constitute, in the light of all the facts, a refusal
to bargain.
If we shift the focus from the question of bad faith on the employer 's part to that
of good faith we are again aware that we cannot "read the minds of men." Our
attention goes to the discernible. Respondent did not tell the Union why it wanted a
Board determination of the unit and a Board certification. The same observation
would be in order if Respondent had said, in so many words, that it demanded
Board determination and certification because it did not believe that the Union repre-
sented a majority in an appropriate unit . I do not believe that Section 8 (a) (5) rests
on word formula alone . Helms testified that Respondent did not recognize the
Union because it did not believe that it represented a majority or that the unit was
appropriate.
What evidence is there that Respondent on August 2 could have or did have a
good-faith doubt as to the Union's majority in the appropriate unit? If there is no
reasonable basis on which a good-faith doubt could have existed we more readily
may conclude that there was no such doubt and weigh this factor with all the others,
including any evidence of bad faith, as previously discussed herein. But, because
there may have been a reasonable basis for good faith doubt, obviously does not
establish that there was at the time such a good faith doubt. Again, we must view all
relevant factors as a composite picture.
I do not believe that Respondent could have reasonably believed, in the face of
the 100-percent strike of all servicemen on July 28, that the Union did not represent
a majority in any discernibly appropriate unit. The broad, multiplant unit was one
in which Respondent may have well doubted the majority status of the Union but by
August 2 I believe, as previously stated, that Respondent was aware that the unit was
confined to the Kansas City branch. As to the Kansas City unit that the Union was
claiming, Respondent has contended that it was inappropriate because of the ex-
clusion of the two salesmen and because of the failure to exclude temporary and
seasonal termite control employees. My findings as to the appropriate unit have
been that the salesmen were properly excluded but that the temporary seasonal
termite control employees should likewise be excluded 27
After careful consideration of all the evidence in this case it is my conclusion
that the General Counsel has not sustained the burden of proving a violation of Sec-
tion 8(a) (5) of the Act. Consequently, dismissal of the allegation is recommended28
In connection with my conclusion I wish to refer to the case of United Butchers
Abattoir, Inc., 123 NLRB 946, wherein the Board found a section 8(a) (5) violation
and made the statement that "the right of an employer to insist upon a Board-
directed election is not absolute " and he may not insist upon an election if he enter-
tains no reasonable doubt as to either the appropriateness of the unit or as to the
Union's majority status . My conclusion in the instant case is not premised on
any absolute right to a Board -directed election . It is a truism that each case turns on
its own facts. In the cited case the Board found an insubstantial variance between
the proposed unit and the unit found appropriate and noted that at no time did
respondent contend that it had refused to bargain because of the variance. Also,
in the cited case the union had filed a petition for certification with the Board and
=7 In a unit of 11 employees I do not regard the improper inclusion of 4 temporary
employees as a minor variation in the unit The Union was asking Respondent to nego-
tiate a contract on the unit it was claiming, not to discuss composition of the unit It is
unlikely that the Union was prepared to drop 40 percent of its constituents from the
contract
28 Among other aspects, I have considered my conclusion from the standpoint that
assuming , arguendo, that Respondent had violated Section 8(a)(1) by its interrogation
in June and July 1 and assuming that the inclusion of temporary employees in the unit
was a minor variation, whether my conclusion would be different. Because of the times
and nature of the interrogation and all the evidence and lack of evidence in the case,
including the unit aspect that has been assumed , arguendo , I believe my conclusion
would be the same.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this was followed by respondent's unfair labor practices in the form of a mass lay-
off and other illegal acts which the Board found were moves to "make a free elec-
tion impossible." The Board concluded, p. 958, that the respondent's refusal to
bargain "was not based on any bona fide doubts as to the appropriateness of the
proposed unit or the union's majority status, but was intended to gain time within
which to undermine the union's representative status and therefore was in viola-
tion of Section 8(a)(5) and (1) of the Act." I do not regard the cited case as
comparable to the case before me.29
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth above, occurring in connection with the
operations of Respondent 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 commerce and the free flow thereof.
IV. THE REMEDY
Having set forth my findings of fact, conclusionary findings, and conclusions of
law, and having found that Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Since the employees discharged on July 3, 1961, suffered no loss of pay, backpay
is not recommended. Reinstatement is not recommended because the discharged
employees were reinstated.
RECOMMENDATIONS
On the basis of the foregoing findings of fact, conclusionary findings, and con-
clusions of law, and the entire record, it is recommended that:
Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees in order to forestall union activity or unionization of
employees in its branch office.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Post copies of the notice attached hereto marked "Appendix" at its branch
office and district office in Kansas City, Missouri. Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall, after being
duly signed by the Respondent's representative, be posted by it immediately upon
receipt thereof and maintained for at least 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report, what steps it has taken
to comply herewith.
It is further recommended that unless Respondent shall, within 20 days from
the receipt of this Intermediate Report, notify the Regional Director, in writing, that
it will comply with the foregoing recommendations, the National Labor Relations
Board issue an Order requiring it to take the aforesaid action.
20 Cf Fred Snow, et al, d/b/a Snow & Sons, 134 NLRB 709, where a Section 8(a) (5)
violation was found. In that case the union majority had been established by a card
check, "the accuracy or the propriety" of which was not questioned by respondent and
the Board noted that "the appropriateness of the unit sought was admitted by respond-
ent's answer " The Board also took note of respondent's position that " it wanted an
election because the employees might change their minds."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
PENN-MOR MANUFACTURING CORPORATION 647
WE WILL NOT discharge employees in order to prevent union activity or
unionization of our employees.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act
including the right to join unions or to engage in concerted activity for their
mutual aid or protection or to refrain from such activity.
ORKIN EXTERMINATING COMPANY
OF KANSAS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Penn-Mor Manufacturing Corporation and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Case No. 28-CA-721.
March 28, 1962
DECISION AND ORDER
On January 17, 1962, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a brief in sup-
port of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On an amended charge dated September 1, 1961 , filed by Amalgamated Clothing
Workers of America , AFL-CIO, herein called the Union , the General Counsel of
the National Labor Relations Board , herein called the Board, issued his complaint
dated September 27, 1961, alleging in substance that Penn-Mor Manufacturing Cor-
poration , the Respondent herein , discharged six named employees in violation of
Section 8 (a) (3) of the National Labor Relations Act, as amended , herein called the
Act, and by this action and certain specified statements and conduct violated Section
136 NLRB No. 63.