Orkin Exterminating Co. of South Florida, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1962

136 N.L.R.B. 399 (N.L.R.B. 1962)

ORKIN EXTERMINATING CO. OF SOUTH FLORIDA, INC. 399
the parties are completely unaffected by the Board's contract-bar
resolution.
Accordingly, and assuming, as does the majority, that the clause
herein violates Section 8(e), we would hold that the contract involved
does not constitute a bar, and we would direct an election herein.
Orkin Exterminating Company of South Florida, Inc. and Jessie
S. Glawson and Teamsters , Chauffeurs and Helpers, Local
Union No. 79, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Cases Nos.
12-CA-,0067-1 and 192-CA-2107. March 20, 1962
DECISION AND ORDER
On January 10, 1962, Trial Examiner James V. Constantine 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. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner 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, the brief, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings,' conclusions,
and recommendations.
For the following reasons, we agree with the Trial Examiner that
the Respondent, by calling individual employees to the office of its
general manager, Kolkana, on June 20, 1961, and interrogating them
about union activities, violated Section 8(a) (1) of the Act: These
inquiries were not shown to be for the purpose of determining the ex-
tent of the Union's representation for any legitimate objective; were
not in all instances accompanied by assurances to the employees that
there would be no reprisals; included an inquiry as to "who was in
1 The Respondent appears to be one of many Orkin corporations located throughout the
United States. As the Board has already asserted jurisdiction over the Orkin corporations
in Orkin Exterminating Company, Inc, 115 NLRB 622, we find, for the reasons there stated
and in agreement with the Respondent 's admission , that Respondent ' s operations meet the
Board's jurisdictional standards.
136 NLRB No. 40.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back of the Union"; and occurred in a context of threats to close the
plant if the Union organized it, and of pressures put on employees to
withdraw their union cards z Accordingly, we find, as did the Trial
Examiner, that there is no merit in the Respondent's contention that
the interrogation here involved was permissible under the Board's
Blue Flash doctrine 3
ORDER
The Board hereby adopts the Recommended Order of the Trial
Examiner.4
2 The Trial Examiner found, on the basis of "undenied or credited testimony," that
several supervisors, including one Paul Roberts, engaged in such coercive conduct As it
appears from the record that Roberts, who was suffering from cancer, was too 111 to testify,
and as the unlawful activities attributed to him are cumulative, we do not base any find-
ing of unfair labor practices on conduct by Roberts
8Blue Flash Express, Inc, 109 NLRB 591; see also Southern Coach & Body Co, Inc.,
135 NLRB 1240
'The notice attached to the Intermediate Report as an appendix is hereby amended by
adding the following paragraph to the bottom of the notice: Employees may communicate
directly with the Board' s Regional Office, Ross Building, 112 East Cass Street, Tampa 2,
Florida, Telephone Number 223-4623, if they have any question concerning this notice or
compliance with Its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed by Jessie S. Glawson, an individual,
on July 20 and August 30, 1961, respectively, and a charge filed by Teamsters, Chauf-
feurs • and Helpers, Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein called Local 79, on
September 5, 1961, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Twelfth Region (Tampa, Florida), issued his con-
solidated complaint, dated September 8, 1961, against Orkin Exterminating Com-
pany of South Florida, Inc., herein called the Respondent. With respect to the
unfair labor practices, the complaint in substance alleges that Respondent engaged
in and was engaging in conduct forbidden by Section 8(a).(1) of the National Labor
Relations Act, 29 U.S.C.A. 141 et seq., herein called the Act, and affecting commerce
within the meaning of Section 2(6) and (7) of the Act. Respondent has answered
denying the alleged unfair labor practices but admitting certain facts.
Pursuant to due notice, a hearing was held before me at Tampa, Florida, on
November 27, 1961. All parties were represented and participated at the hearing,
and were accorded an opportunity to present evidence, to examine and cross-examine
witnesses, to offer oral argument, and to file briefs. A very able and carefully pre-
pared brief has been received from Respondent.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation, is engaged at Tampa and Miami, Florida, in the
business of providing and performing termite and pest control services and related
services to residential and commercial properties. Only its Tampa facility is involved
in this proceeding. During its last fiscal year preceding September 8, 1961 (the date
of the complaint), Respondent received in excess of $500,000 for services performed
for residential homeowners and commercial properties. During the same period
Respondent received goods and materials valued in excess of $30,000 directly from
States other than the State of Florida. I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction over Respondent.
ORKIN EXTERMINATING CO. OF SOUTH FLORIDA, INC. 401
II. THE LABOR ORGANIZATION INVOLVED
Local 79 is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
During the month of June 1961 , Local 79 conducted an organizational campaign
at Respondent's Tampa plant, during which time Respondent had knowledge of such
organizing campaign.
A. Kolkana's talks with individual employees
On or about June 20 , 1961, Bernard Kolkana , Respondent' s general manager,'
called in some pest control service employees individually to his office at the plant
and spoke to them. Five of these employees testified at the hearing. They are
Jessie S. Glawson, Garry Wayne Skanks, Charles W. Ferman, Reginald B. Fogle, and
Jack William Bibler. In his conversation with each employee Kolkana stated that
he wanted to ask a question pointblank and that he desired an honest answer. He
then asked each employee whether he had signed a union card.
Glawson replied that he had signed a union card. This prompted Kolkana to
inquire why Glawson signed this union card and put Kolkana "on the spot." Glaw-
son replied that not only had a majority already signed, but "we could stand better
working conditions and better working hours." Kolkana further remarked that
Respondent had been very lenient to Glawson while the latter was in the hospital
and that Respondent had "deducted very little, if any," from Glawson's pay. As
Glawson left the office, Kolkana asked him if he could be depended on to be on
Kolkana's side
In his talk with Ferman, Kolkana asked Ferman, upon ascertaining from the latter
that he had signed a (union) card, if Ferman "had a reason" for such action. Ferman
replied that one of his recent paychecks was less than it should have been. Kolkana
promised to take care of this. The next day the shortage was paid to Ferman. In
his conversation with Skanks, Kolkana also inquired as to "who was in back of the
Union."
In his talks to the above-named employees , Kolkana testified , he assured each
employee that their answers would in no way affect their jobs. On cross-examination,
Glawson admitted he was so told, Ferman was unable to recall, and Skanks and
Fogle categorically denied that they received such assurance. Bibler was not cross-
examined on this point. I find that only Glawson and Ferman were assured by
Kolkana that their answers to his "point blank question " did not make any dif-
ference with respect to the employees' job.
Respondent argues that these talks are not proscribed by Section 8(a)(1) because
(1) they do not per se constitute a violation, relying upon Blue Flash Express,
109 NLRB 591; (2) it was not unusual for Kolkana to call employees into his
office to ask them "point blank questions" on how they "feel about supervision and
what they think about the company"; and (3) absent evidence tending to show
restraint or coercion, such conversations are protected by Section 8(c) of the Act.
As to (1), while it is true that interrogation per se does not transgress Section
8(a)(1), it is unlawful where its nature restrains or coerces. As to (2), it is mani-
fest that custom or practice of the Employer cannot render lawful conduct if other-
wise proscribed by the Act. As to (3), as pointed out in the next paragraph the
evidence does show restraint or coercion, so that Section 8(c) does not become
operative.
The evidence narrated above, when considered in the light of the whole record,
including the subsidiary findings recited below in section III B and section III C,
disclose a conscious antiunion animus and a pattern of conduct deliberately cal-
culated to interfere with the unionization of Respondent's employees. This amounts
to interference, restraint, and coercion prohibited by Section 8(a)(1), and I so find.
In the setting in which this conduct occurred , it is no defense that some of the
employees were assured that their jobs would not be affected by their answers. The
vice of this type of activity lies in the coercive aspect of the interrogation. This
taint is neither removed nor immunized by such assurances , and I so find. In any
event the assurances were not given to all the employees interrogated.
1 Kolkana describes himself as general manager The complaint alleges, and the answer
admits, that he Is "branch manager " Some employees testifying referred to him as "dis-
trict manager" or just "manager "
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Statements by Kolkana at a plant meeting of employees
A day or two after Kolkana had the individual discussions with the employees,
he called a meeting in the plant's assembly room. This meeting started about
5 p.m., the normal quitting time, and lasted until about 8:30 p.m. All the pest con-
trol employees, all the supervisors, Kolkana, and Bud Snyder (a "technical man"
of Respondent who happened to be in town) attended.
Glawson testified that Kolkana made the following remarks: The employees had
caused "this mess" on their own time and therefore it was going to be straightened
out on their time; hence the meeting was scheduled for 5 p.m. Since no other
Orkin office was organized, Perry Kaye (Respondent's vice president) would not
tolerate it at Tampa. Mr. Kaye would "set an example out of" the Tampa office
and would come down the following Tuesday, call a meeting , "padlock" the Tampa
operation, and then move it to St. Petersburg even if it meant a loss of 50 percent or
more in business.
Skanks testified that Kolkana asked them "about the union" and whether the Union
could do anything for them which was not already being done for them by Respond-
ent; that Kolkana said there would be "no union in Orkin" and that "if the union
had gone through," Respondent would not agree to any contract anyway and would
"lock up the plant." All that Fogle remembered of Kolkana's statements is that
Kolkana informed the men that "if the union went in and went through" Respondent
could close down the shop, work out of Clearwater, and "bring in technical men."
Apparently Bibler recalled only that Kolkana asked "what the union could offer
us" that Respondent had not already done for the men; that Kolkana discussed
Respondent's insurance plans at some length; and that Kolkana asked some employees
"individually" to stand up and give an opinion about the Union.
In large part Kolkana's testimony confirms that of the employees. Kolkana testi-
fied that he "commented on" insurance, commissions , and salaries; that he said
that "if we had a lot of problems the Company could move it [the Tampa plant]
and work it out of another office"; and that Respondent "could live without" the
Tampa office. But he "did not know" whether he said "it would be done."
Respondent contends that each of the General Counsel's witnesses "presented a
different version" of what Kolkana said. I do not so find. Rather, I find that each
remembered some parts of the discussion which the others had forgotten or over-
looked. But no inconsistency in their testimony can be discerned-in fact, in some
instances they corroborate each other.
I find that Kolkana made the statements attributed to him by the General Counsel's
witnesses. I further find that Kolkana's statements constittued a threat to Respond-
ent's employees that it would close its Tampa plant and deprive them of employment
if Local 79 succeeded in organizing Respondent's Tampa employees; that he in-
terrogated such employees collectively concerning their union desires; and that such
conduct amounts to interference, restraint, and coercion banned by Section 8 (a)(1).
C. Inducing or encouraging employees to withdraw from the Union and other
interrogations and threats of reprisal
Undenied or credited testimony shows other instances of Section 8(a)(1) conduct.
About a day after the meeting in the assembly room, Supervisor Paul Roberts re-
quested some employees to meet him at a restaurant on North Boulevard in Tampa.
When he met them, Roberts told the employees that "if this union goes through"
the employees will lose their jobs. Shortly thereafter Kolkana joined them and
said "about the same thing."
About the same time Supervisor Walter Watchel met other employees at a drug-
store at North Boulevard and Columbus Drive, where he had directed them to see
him. They then joined the Roberts group at a park near Woodlawn Cemetery on
North Boulevard. At the park Watchel told the employees that no other office of
Respondent was organized, and that he knew definitely that Perry Kaye would make
an example of the Tampa office by operating out of St. Petersburg, even though it
meant losing part of Respondent's business in Tampa. Watchel then gave the
employees a blank piece of paper with a request that they use it as an instrument for
withdrawing from Local 79 "in [their] own handwriting."
Shortly after the assembly meeting described above, Kolkana, while speaking
to Skanks and two other employees, requested them to "try and stop it [the union
movement] before we had gone too far," and to explain to the men that Respondent
ORKIN EXTERMINATING CO. OF SOUTH FLORIDA, INC. 403
would close the office. As -a result, Skanks called a meeting of the employees in
Respondent 's assembly room for that night for the purpose of considering Kolkana's
request.
Other instances of coercive conduct are revealed by .the record. On one occasion,
while Skanks was at a bowling alley, Supervisor Roberts asked him to withdraw his
union card . On another occasion, Kolkana asked Skanks to withdraw his union
card . And on still another occasion Supervisor Pounds inquired of Skanks whether
the latter had signed a union card , who was "in back of the union ," and "who was
going around and getting the cards signed that night." These events occurred in
June 1961.
Kolkana and Watchel explained that they suggested the resignations from the
Union because some of the men had come to them and expressed dissatisfaction with
having joined Local 79 and indicated an inclination to retract their union member-
ship. Assuming this to be a fact, it cannot justify the active and vigorous steps
initiated by these two supervisors not only to make sure that the employees who
spoke to them recanted but also to generate a movement among the employees
planned to cause their withdrawal from the Union . Hence I find that no defense
exists for the conduct of Kolkana , Watchel , and Roberts.
On the basis of the above subsidiary findings and the entire record, I find that Re-
spondent solicited from its employees their resignations from Local 79 , and engaged
in further threats of reprisals and coercive interrogation , and that such conduct con-
stitutes interference , restraint, and coercion prohibited by Section 8(a) (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 the Respondent as set forth 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 commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in certain unfair labor practices,
it is recommended that it cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of the Act. In view of Re-
spondent's efforts to impede the organizational activities of its employees, it is further
recommended that the cease-and-desist order prohibit Respondent from engaging in
any like or related unlawful conduct.
Upon the basis of the above findings of fact and of the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs and Helpers, Local Union No. 79, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a)
of the Act.
3. By (1) interrogating its employees individually and collectively concerning
their union membership, activities, and desires; (2) threatening its Tampa employees
with reprisals that it would close its Tampa plant in the event Local 79 was successful
in organizing its Tampa plant; and (3) soliciting from its employees their resignations
from Local 79, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in this case , it is recommended that Respondent , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees individually or collectively concerning
their union membership, activities, or desires.
641795-63-vol. 136--27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening its employees with closing its Tampa plant or with other re-
prisals because of union activity or support if Local 79 was successful in organizing
its employees.
(c) Soliciting its employees to resign their memberships in Local 79 or any other
labor organization.
(d) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post in its plant at Tampa, Florida, copies of the notice attached hereto
marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Di-
rector for the Twelfth Region , shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notice is not altered, defaced , or covered
by any other material.
(b) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the receipt of this Intermediate Report and recommended Order, what
steps Respondent has taken to comply herewith.3
It is further recommended that unless Respondent shall within the prescribed
period notify the said Regional Director that it will comply, the Board issue an
order requiring Respondent to take the aforesaid action.
a If these recommendations are adopted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommendations of a Trail Examiner," in the
notice. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by substituting the words "Pursuant to a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a
Decision and Order "
3In the event that these recommendations are adopted by the Board, this provision shall
be modified to read. "Notify said Regional Director, 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 recommendations 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 unlawfully interrogate our employees individually or collec-
tively concerning their union membership, activities, or desires.
WE WILL NOT threaten our employees with closing our Tampa plant or with
loss of employment if Local 79 of the Teamsters Union is successful in organiz-
ing our employees.
WE WILL NOT solicit our employees to resign their memberships in Local 79
of the Teamsters Union or any other labor organization.
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 National
Labor Relations Act.
All our employees are free to become , remain , or refrain from becoming members
of Local 79 of the Teamsters Union or of any other labor organization.
ORKIN EXTERMINATING COMPANY OF SOUTH FLORIDA, 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.