Scientific Pest Control Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1976

224 N.L.R.B. 1651 (N.L.R.B. 1976)

SCIENTIFIC PEST CONTROL CORPORATION 1651
Scientific Pest Control Corporation and Extermina-
tors, Fumigators and Termite Workers, Local 155,
Service Employees International Union, AFL-CIO
and Local 522, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Party to the Contract
Local 522, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Exterminators, Fumigators and Termite
Workers, Local 155, Service Employees Interna-
tional Union , AFL-CIO and Scientific Pest Control
Corporation, Party to the Contract Cases 29-CA-
4236 and 29-CB-2058
June 23, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On November 20, 1975, Administrative Law Judge
John M Dyer issued the attached Decision in this
proceeding Thereafter, the Respondent Company,
the Respondent Union, and the General Counsel
filed exceptions and supporting briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith I
Contrary to the conclusion of the Administrative
Law Judge, the complaint, as amended on September
4, 1975, does allege an 8(a)(5) violation by Respon-
dent Company Moreover, the issue was fully litigat-
ed at the hearing Thus the record discloses that in
addition to the 8(a)(1), (2), and (3) misconduct found
herein, Respondent Company refused to recognize
and bargain with Local 155 on September 9, 1974, at
a time when Local 155 represented a majority of
Respondent's employees in an appropriate bargain-
ing unit 2 In the circumstances, we find that, as of
September 9, Respondent Company failed to honor
an obligation under the Act to bargain with the ma-
jority representative of its employees and thereby
violated Section 8(a)(5)1 This violation calls for a
I The following inadvertence contained in the Decision of the Adminis
trative Law Judge is hereby corrected In the first line of par 13 of sec II A
the date January 7 is changed to September 7
2 Excluding office clerical employees guards, watchmen and supervisors
3 Trading Port Inc 219 NLRB 298 (1975) Member Jenkins concurs in
the result
bargaining order in favor of Local 155 as of Septem-
ber 9, 1974
As found by the Administrative Law Judge, Balz
and Raupp, exterminator service routemen, were dis-
charged by Respondent Company on October 18,
1974, at its St James, Suffolk County, New York,
location at the request of Respondent Union because
of their nonmembership in the Respondent Union,
and Respondents thereby violated the Act 4 These
employees have never been reinstated to their jobs at
St James as they should have been and an order of
reinstatement there is required to effectuate the poli-
cies of the Act
On October 28 and 29, 1974, respectively, Balz and
Raupp were rehired at Respondent Company's Port
Washington, Nassau County, New York, location
The reason they were not reinstated at St James, but
were located at Port Washington instead, where they
found it less convenient to work, is because Respon-
dent Union supporters at St James opposed the re-
turn of these Local 155 adherents at St James and
threatened a strike if they were rehired there On De-
cember 7, 1974, Balz and Raupp were terminated at
Port Washington because they refused to apply for
salesmen's licenses
If the effect of the unlawful conduct herein is to be
undone, and the preventive purposes of the Act is not
thwarted, Balz and Raupp must be reinstated at St
James, without loss of pay occasioned by the dis-
charge and nonreinstatement at St James That is
where they were discharged for refusing to join the
Respondent Union at a time when they were not ob-
ligated to and only such reinstatement without loss
of pay can serve to restore the status quo and reas-
sure the employees of their statutory right to remain
secure in their employment, free from reprisals how-
ever they choose to exercise the rights guaranteed
them by Section 7 of the Act
Respondent Company's rehire of Balz and Raupp
at Port Washington rather than at St James where
their return was opposed by Respondent Union ad-
herents 5 only served to aggravate the impact of the
unlawful conduct by Respondents and underscores
the need for the remedy we deem necessary
The discharge of Balz and Raupp at Port Wash-
ington does not negate the necessity for this remedial
action It is not established in the record that Balz
and Raupp would have suffered the same fate had
4 Although the Administrative Law Judge found that Respondent Com
pany violated Sec 8(a)(1) (2) and (3) of the Act by discharging Balz and
Raupp on October 18 pursuant to its unlawful contract with Respondent
Union par 4 of his Conclusions of Law falls to include the 8(a)(2) finding,
accordingly this Conclusion of Law is amended to reflect the 8(a)(2) viola
tion
5 As for Respondent Company s duty to resist the pressures it yielded to
see A clang Inc 193 NLRB 86 (1971)
224 NLRB No 212
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they remained employed at St. James. It seems evi-
dent that the return of these discriminatees to St.
James even upon their discharge at Port Washington
was not agreeable to Respondents.
Therefore, we shall order Respondent Company to
reinstate Balz and Raupp at St. James without preju-
dice to their seniority or other rights and privileges.
And as we have found that both Respondents are
responsible for the discrimination suffered by Balz
and Raupp on October 18, we shall order them joint-
ly and severally to make these employees whole for
the loss of pay that they may have suffered by reason
of the discrimination against them.'
Backpay and restitution of fees are to be computed
on a quarterly basis as in F. W. Woolworth Company,
90 NLRB 289 (1950). Interest in the amount of 6
percent is to be added to the backpay and to the
amounts paid by the employees and/or deducted
from their wages which is to be refunded, as in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), as
further amplified in Seafarers International Union of
North America, Great Lakes District, 138 NLRB 1142
(1962). Respondents will also be ordered to make
available to the Board or its agents, upon request,
payroll membership lists, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts due the employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Scientific Pest Control Corpora-
tion, St. James and Port Washington, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees regarding
their union activities and desires.
(b) Threatening to discharge its employees and/or
curtail or close its business or make working condi-
tions more arduous if the employees join or support
Local 155.
(c) Promising unspecified benefits if its employees
do not join or support Local 155.
6 Respondent Union may terminate its liability for further accrual of
backpay to Balz and Raupp by notifying the Respondent Company, in
writing, that it has no objection to their reinstatement The Respondent
Union shall not thereafter be liable for any backpay accruing after 5 days
from the giving of such notice Absent such notification, the Respondent
Union shall remain jointly and severally liable with the Respondent Compa-
ny for all backpay to Balz and Raupp that may accrue until the Respondent
Company complies with our Order to offer them reinstatement
Respondent Company's further obligation to reimburse Raupp for losses
suffered because of the unlawful reduction of his earnings on or about
September 10, 1974, continues , of course , until Raupp's reinstatement as
ordered herein
(d) Discharging its employees and/or reducing
their pay in order to discourage employees from join-
ing or supporting Local 155.
(e) Assisting or contributing support to Respon-
dent Union, Local 522, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, and
from otherwise interfering with the representation of
its employees through a labor organization of their
own choosing, by recognizing such labor organiza-
tion as the exclusive representative of any of its em-
ployees for the purpose of collective bargaining at a
time when another union represents the majority of
its employees and Local 522 does not represent an
uncoerced majority of the employees in an appropri-
ate unit.
(f) Giving effect to, or in any manner enforcing,
the collective-bargaining agreement executed with
Local 522 on September 16, 1974, and effective from
September 13, 1974, or to any modification, exten-
sion, renewal, or supplement thereto, or any su-
perseding agreements, or to checkoff authorization
cards executed pursuant to such agreements, unless
and until said labor organization has been certified
by the Board as the exclusive bargaining representa-
tive of such employees; provided, however, nothing
herein shall require Respondent Company to vary or
abandon any wage, hour, seniority, or other substan-
tive features of its relations with its employees which
have been established in the performance of such
agreements or to prejudice the assertion by employ-
ees of any rights they may have thereunder.
(g) Refusing to bargain collectively with Extermi-
nators, Fumigators and Termite Workers, Local 155,
Service Employees International Union, AFL-CIO,
as the exclusive bargaining representative of the em-
ployees in the appropriate bargaining unit.
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement in conformity with Section 8(a)(3) of the
Act, as amended.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Local 522, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the representative of its employees for the purpose
of collective bargaining unless and until said labor
organization has been duly certified by the Board as
the exclusive representative of such employees.
(b) Jointly and severally with Respondent Union,
reimburse all present and former employees who be-
came members of Respondent Union on and after
SCIENTIFIC PEST CONTROL CORPORATION
September 12, 1974, the date of the execution of a
recognition agreement between Respondent Compa-
ny and Respondent Union, for monies paid by them
or deducted from their earnings for initiation fees,
dues, assessments, or other obligations of member-
ship in Respondent Union, together with interest at
the rate of 6 percent per annum.
(c) Upon request, as of September 9, 1974, bargain
collectively with Exterminators, Fumigators and Ter-
mite Workers, Local 155, Service Employees Interna-
tional Union, AFL-CIO, as the exclusive representa-
tive of the employees in Respondent Company's unit
of:
All employees of Respondent Company, exclu-
sive of office clerical employees, guards, watch-
men, and all supervisors.
And if an understanding is reached, embody such
understanding in a signed agreement.
(d) Jointly and severally with Respondent Union
make William Raupp and Dennis Balz whole for the
losses of pay they suffered by reason of their October
18 discharges, as provided for herein.
(e) Make William Raupp whole for the loss of pay
he suffered by reason of Respondent Company's re-
duction of his remuneration, as provided for herein.
(f) Offer to each William Raupp and Dennis Balz
immediate and full reinstatement to his former posi-
tion at the St. James, New York, location or, if such
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges.
(g) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
reimbursement due under the terms of this Order.
(h) Post at its St. James and Port Washington,
places of business copies of the attached notices
marked "Appendix A" and "Appendix B."' Copies
of said notices, on forms provided by the Regional
Director for Region 29, after being duly signed by
the appropriate representatives, shall be posted by
Respondent Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its employees are customarily
posted. Reasonable steps shall be taken by Respon-
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
1653
dent Company to insure that said notices are not al-
tered, defaced, or covered by any other material.
(i) Mail to the Regional Director for Region 29
copies of the attached notice marked "Appendix A"
for posting by the Respondent Union. Copies of said
notice, on forms provided by the Regional Director
for Region 29, after being duly signed by the repre-
sentatives of Respondent Company, shall be forth-
with returned to said Regional Director for such
posting.
(j) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Local 522, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Jamaica, New York, its officers,
agents, and representatives, shall.
1. Cease and desist from:
(a) Acting as the collective-bargaining representa-
tive of the employees of Respondent Company in the
unit heretofore found appropriate for the purpose of
dealing with said Respondent Company concerning
rates of pay, wages, hours of employment, or other
terms or conditions of employment, unless and until
such labor organization shall have been certified by
the Board as the exclusive representative of such em-
ployees.
(b) Performing, enforcing, or giving effect to its
collective-bargaining agreement of September 16,
1974, with Scientific Pest Control Corporation, or en-
tering into or enforcing any extension, renewal, mod-
ification, or supplement thereof, or any superseding
collective-bargaining agreement with Respondent
Company.
(c) Causing or attempting to cause Respondent
Company to discriminate against employees in viola-
tion of Section 8(a)(3) of the Act by entering into or
maintaining any agreement with Respondent Com-
pany at a time it is not the representative of an un-
coerced majority of these employees, which condi-
tions employment on membership in Respondent
Union, or in any other manner causing or attempting
to cause Respondent Company to discriminate
against any employee in violation of Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Jointly and severally with the Respondent
Company reimburse those employees who became
members of Respondent Union after execution of
the recognition agreement of September 12, 1974, for
moneys paid by them or deducted from their earn-
ings for initiation fees, dues, assessments, or other
obligations of membership in Respondent Union,
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and jointly and severally with Respondent Company
make whole the employees listed in the section of the
Administrative Law Judge's Decision entitled "The
Remedy" for any loss of pay they may have suffered
by reason of the discrimination practiced against
them, together with interest at the rate of 6 percent
per annum.
(b) Jointly and severally with Respondent Compa-
ny make William Raupp and Dennis Balz whole for
the losses of pay they suffered by reason of their Oc-
tober 18, 1974, discharges, as provided for herein.
(c) Post at its business office and meeting hall cop-
ies of the attached notices marked "Appendix A"
and "Appendix B." 8 Copies of said notices, on forms
provided by the Regional Director for Region 29,
after being duly signed by the appropriate represen-
tatives, shall be posted by the Respondent Union im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to its
members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Mail to the Regional Director for Region 29
signed copies of the attached notice marked "Appen-
dix B" for posting by Scientific Pest Control Corpo-
ration. Copies of said notice, on forms provided by
said Regional Director, after being duly signed by
the Respondent Union's representative, shall be
forthwith returned to said Regional Director for such
posting.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
IT IS FURTHER ORDERED that the allegation concern-
ing the alleged violation of the Act by the discharge
of Thomas Clifford be dismissed.
8 See In 7, supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist Local 522, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization, or otherwise interfere with
the representation of our employees through a
labor organization of their own choosing.
WE WILL NOT recognize Local 522, or any suc-
cessor thereto, as the representative of any of
our employees for dealing with us with respect
to rates of pay, wages, hours of employment, or
other terms and conditions of employment, un-
less and until such labor organization shall have
been certified by the Board as the exclusive rep-
resentative of our employees.
WE WILL NOT perform, enforce, or give effect
to the collective-bargaining agreement which
was effective from September 13, 1974, with Lo-
cal 522 or enter into or enforce any extension,
renewal, modification, or supplement thereof, or
any superseding collective-bargaining agreement
with said labor organization.
WE WILL NOT refuse to bargain with Extermi-
nators, Fumigators and Termite Workers, Local
155, Service Employees International Union,
AFL-CIO, as the exclusive representative of our
employees for the unit described below.
WE WILL NOT discourage membership in Local
155, Exterminators, Fumigators and Termite
Workers, Service Employees International
Union, AFL-CIO, by discharging employees or
otherwise discriminating in any manner in re-
spect to their tenure of employment or any term
or condition of employment.
WE WILL NOT unlawfully interrogate employ-
ees concerning their membership or support of a
union.
WE WILL NOT threaten to discharge employees
and/or curtail or close our business or make
working conditions more arduous to discourage
our employees from becoming members of or
supporting a union.
WE WILL NOT make promises of better condi-
tions to discourage employees from becoming
members of or supporting a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be af-
fected by an agreement requiring membership in
a labor organization, as authorized in Section
8(a)(3) of the Act.
WE WILL withdraw and withhold all recogni-
tion from Local 522 as a representative of any of
our employees for the purpose of dealing with
them with respect to rates of pay, wages, hours
of employment, or other terms or conditions of
employment, unless or until said organization
shall have been certified as such representative
by the Board.
WE WILL jointly and severally with Respon-
dent Union reimburse those employees who be-
SCIENTIFIC PEST CONTROL CORPORATION 1655
came members of Respondent Union after the
execution of the recognition agreement of Sep-
tember 12, 1974, for moneys paid by them or
deducted from their earnings for initiation fees,
dues, assessments, or other obligations of mem-
bership in Respondent Union.
WE WILL, upon request, as of September 9,
1974, bargain collectively with Exterminators,
Fumigators and Termite Workers, Local 155,
Service Employees International Union, AFL-
CIO, as the exclusive representative of our em-
ployees in the bargaining unit described below,
and, if an understanding is reached, embody
such understanding in a signed agreement. Said
bargaining unit is:
All employees of Scientific Pest Control Cor-
poration excluding office clerical employees,
guards, watchmen, and supervisors as defined
in the Act.
WE WILL jointly and severally with Respon-
dent Union make William Raupp and Dennis
Balz whole for any loss of pay they may have
suffered by reason of their being discharged on
October 18, 1974, and WE WILL further make
William Raupp whole for any loss of pay he suf-
fered on and after September 11, 1974.
WE WILL offer to Dennis Balz and William
Raupp immediate and full reinstatement to their
former positions at our St. James, New York,
location or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges.
Corporation or enter into or enforce any exten-
sion, renewal, modification, or supplement
thereof, or any superseding collective-bargaining
agreement with Scientific Pest Control Corpora-
tion.
WE WILL NOT cause or attempt to cause Scien-
tific Pest Control Corporation to discriminate
against employees in violation of Section 8(a)(3)
of the Act by entering into or maintaining any
agreement with them which requires as a condi-
tion of employment membership in Local 522,
or in any other manner causing or attempting to
cause Scientific Pest Control Corporation to dis-
criminate against any employee in violation of
Section 8(a)(3) of the Act.
WE WILL jointly and severally with Scientific
Pest Control Corporation reimburse those em-
ployees who became members of our organiza-
tion after execution of the recognition agree-
ment of September 12, 1974, for moneys paid by
them or deducted from their earnings for initia-
tion fees, dues, assessments, or other obligations
of membership in our organization, and make
whole William Raupp and Dennis Balz for any
loss of pay they may have suffered by reason of
the unlawful discrimination against them.
LOCAL 522, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
SCIENTIFIC PEST CONTROL CORPORATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT act as the collective-bargaining
representative of the employees of Scientific
Pest Control Corporation in the unit appropriate
for the purpose of dealing with said Company
concerning rates of pay, wages, hours of em
ployment, or other terms or conditions of em-
ployment, unless and until this labor organiza-
tion shall have been certified by the Board as the
exclusive representative of those employees.
WE WILL NOT perform, enforce, or give effect
to our collective-bargaining agreement of Sep-
tember 16, 1974, with Scientific Pest Control
JOHN M. DYER, Administrative Law Judge: Extermina-
tors, Fumigators and Termite Workers, Local 155, Service
Employees International Union , AFL-CIO , herein called
Local 155, filed a charge in Case 29-CA-4236 against Sci-
entific Pest Control Corporation , herein called the Compa-
ny or Respondent Company , on March 3, 1975,1 and on
the same date filed the charge in Case 29-CB-2058 against
Local 522, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , herein
called Local 522 or Respondent Union.
On June 27, 1975, the Regional Director of Region 29
issued an order consolidating cases, complaint and notice
of hearing in these two cases. The complaint alleged that
Respondent Employer violated Section 8(a)(1), (2), and
(3) of the Act by actions it took during September and
October and that Respondent Union violated Section
8(b)(1)(A) and (2).
In addition to the standard service and jurisdictional
allegations , the complaint alleges that Respondent Compa-
ny interrogated and threatened its employees , discharged
1 Unless specifically stated otherwise all dates herein occurred in 1974
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one employee because of the employee 's adherence to Lo-
cal 155, and after Local 155 achieved a majority in the
appropriate unit Respondent Company refused to recog-
nize it, further interrogated its employees and recognized
and signed a contract with Respondent Union. It is alleged
and the parties stipulate that pursuant to that contract Re-
spondent Union requested , and Respondent Company dis-
charged , two employees because they refused to become
members of Respondent Union pursuant to that contract.
The complaint alleges that Respondent Company attempt-
ed to destroy the majority status achieved by Local 155
and that the alleged violations of the Act are serious
enough to warrant the entry of a bargaining order in favor
of Local 155.
During the hearing in this matter held on September 22
and 23, 1975, in Brooklyn , New York , General Counsel
deleted an allegation regarding the discharge of Anthony
Nuzzi. Respondent Company and Respondent Union
amended their answers to admit in addition to the jurisdic-
tion and commerce information that the Respondent
Company and Respondent Union executed a recognition
agreement on September 12, and executed a
collective-bargaining agreement effective from September
13, which required membership in good standing in the
union . They further admitted that Respondent Employer
discharged William Raupp on September 7 and reinstated
him on September 9, discharged Thomas Clifford on Octo-
ber 1, and discharged William Raupp and Dennis Balz on
October 18 and reinstated them on October 28 and 29 at a
different location. Respondents denied that Local 155 had
majority support on September 9, that Respondent Com-
pany knew it, and that either of the Respondents had vio-
lated the Act.
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
The General Counsel has filed a memorandum of law on
one point.
The essential question in this case is whether Local 155
had a majority and made a demand on Respondent Com-
pany for recognition which foreclosed Respondent
Company's subsequent recognition of Local 522 and made
such action and any actions taken thereunder unlawful un-
der the Act. The September 7 interrogations and threats
and discharge of Raupp are not basically disputed by Re-
spondent Company.
On the basis of all the evidence I have concluded that
Local 155 did have a majority of employees in an appropri-
ate unit and made such known to Respondent Company
prior to Respondent Company's meeting and signing a
contract with Respondent Union, that both Respondent
Company's prior unfair labor practices in its interroga-
tions, threats , and discharge and its subsequent actions in
recognizing Respondent Local 522, which did not repre-
sent an uncoerced majority of the Company 's employees,
and Local 522 's actions in seeking the discharge of employ-
ees for not joining Local 522 violated the Act, and I will
order appropriate remedial action.
On the entire record in this case , including the exhibits
and the testimony proffered , my evaluation of the reliabili-
ty of the witnesses based on the evidence they produced,
and their demeanor I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
Scientific Pest Control Corporation is a New York cor-
poration with its principal place of business and office lo-
cated in St . James, Suffolk County, New York , and with an
additional location in Port Washington Nassau County,
New York . Respondent is engaged in providing and per-
forming insect and pest extermination and fumigation serv-
ices for its customers and during the past year , which is
representative of its operations , Respondent Company
bought more than $50,000 worth of pesticides , chemicals,
and other goods which had originated directly outside the
State of New York and which it bought from corporations
engaged in business in New York.
Respondent Company admits and I find that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Respondent Company and Respondent Union admit
and I find that Local 155 and Local 522 are each labor
organizations within the meaning of Section 2(5) of the
Act.
It. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent Company is a closed corporation with Sal-
vatore Giordano and his wife , each owning 50 percent of
the stock. The Giordanos have two boys, Mark and Joseph
who are 15 and 17 years old , who attend school and ac-
cording to their father work on Saturdays , school holidays,
and other occasions when he feels it necessary , and clean
offices , trucks, or whatever jobs he needs done around the
office.
About 75 percent of the Company's business is in servic-
ing private residences and the remainder is in servicing
food handling plants , restaurants , and other commercial or
governmental establishments.
Most of the contracts are on a monthly service basis and
the Company has established routes and dispatches its ser-
vicemen on daily runs of 18 customers or so. On some
accounts which had to be serviced early in the morning, the
serviceman would make the stop before reporting to the
office. One serviceman testified that prior to September he
would take route cards for 2 or 3 days ' work and only
report back after finishing those routes . In September, after
Local 155 appeared on the scene , Giordano required the
servicemen to report in every day both in the morning and
the evening.
Additionally the Company has a tree spraying service
which is most active in the growing season . Mr. Giordano
testified that the heaviest part of the business starts in the
spring and runs through August or September , depending
on the weather.
The regular business hours are from 8 a.m. to 5 p.m.,
with a half hour for lunch and two 15-minute breaks. Most
employees were required to provide a serviceable automo-
SCIENTIFIC PEST CONTROL CORPORATION 1657
bile to be used on the routes and they were given a flat fee
of $20 to $30 per week for the use of their car. Respondent
had some trucks which were used by servicemen on differ-
ent bases.
Most of the employees who started work during 1974,
started at $110 or $120 a week and were raised to $125 a
week. They worked 5 days a week plus a half day on Satur-
day every other week.
The parties agreed that at Respondent Company the ap-
propriate unit consisted of all employees excluding office-
clerical employees, guards, watchmen, and supervisors.
The payroll for both September 9 and 10 listed 15 such
employees and additionally included 3 office clericals,
whom the parties agreed should be excluded, and Supervi-
sor John Guenther. The payroll also listed Salvatore Gior-
dano and his wife Mary A. Giordano, the 2 owners of the
Company's stock, and Mark and Joseph Giordano, their
sons.
Respondent Company urged that Mark and Joseph
Giordano should be included in the unit. However, as the
children of the owners of the Company and not being em-
ployed in the same way or manner as the other employees,
they have no community of interest with the other employ-
ees and must be excluded.
Respondent also sought to include in the unit an individ-
ual named Frank Baudo who is a full-time New York City
policeman and worked part time for Respondent Company
on an irregular basis for several years. Because of his police
duties Baudo had not worked for the Company in 1974
until mid-September. His duties when employed were
mainly on a "fill-in" basis. As an irregular part-time em-
ployee who was not employed at all in 1974 until mid-
September, Baudo could not be considered as a proper
member of the unit.
The remaining questions concerning the unit and the
majority status of Local 155 will be considered infra
Ernest Lombardi, the organizer and secretary-treasurer
of Local 155, testified that he first contacted two of Re-
spondent Company's employees, Mike Passintino and An-
thony Nuzzi, on September 4 and asked whether they had
any interest in organizing a union at their Company. When
they said they were interested, Lombardi explained the or-
ganizational procedure and they signed authorization cards
for him.
Passintino and Nuzzi told William Raupp on the follow-
ing day of their meeting with Lombardi and asked if he
was interested in a union. He said he was and they told him
Lombardi would contact him. He met Lombardi on the
next day around noontime and signed a union authoriza-
tion card. Lombardi gave him a number of authorization
cards after Raupp agreed to do the inside organizing.
Raupp spoke to Clifford, Balz, Minter, De Meo, Michelic-
ka, Vollano, and Patrick Tierney concerning the union.
Thomas Clifford testified that on Saturday, January 7,
before leaving on his route, Giordano asked if he had
heard anything about union activity or anybody trying to
bring in a union. Clifford said no, and Giordano told him
that if he did to please let him know and Clifford agreed to
do so.
As Clifford, who was driving a company truck, was re-
turning from his route, he was met by Giordano who had
him pull over. Giordano said he knew the men were at-
tempting to start a union and asked Clifford why. Clifford
replied that they needed more money and wanted more
benefits. Giordano said that all they had to do was come to
him. Clifford replied that Billy Raupp had gone to him a
couple of times and that Giordano kept telling Raupp that
he could not do anything and they would have to wait.
Giordano said if they did join the union he would have to
fire everybody and just keep his supervisors, and run the
Company from his house.
When Raupp finished his route work on Saturday, Sep-
tember 7, and was in the office working on the routecards,
Giordano said he would like to see Raupp in his basement
office. Giordano asked Raupp what the story was with the
Union. Raupp told Giordano they were bringing in a union
and were looking for better benefits and better salary.
Giordano said the only one he had to worry about was
himself, that he did not blame them for going union and he
would probably do the same thing if he was working for an
employer and looking for a better salary. He told Raupp
that he could always quit and get another job. Raupp re-
plied he liked the work. Giordano told him he was being
terminated and to leave the equipment in the garage and
that he would not be able to go to the University as they
had planned According to Raupp Giordano pulled out
Raupp's file and removed an application from it and tore it
up along with what appeared to be a check Giordano con-
tinued that he would most likely blacklist Raupp with all
the other exterminators and Raupp probably would never
get another job in an exterminating company. Giordano
said he would close up the shop if any union came in, get
rid of all the regular service customers and service workers,
and just keep Melville, Guenther, and Knox and work out
of his basement. (Giordano had identified those he would
keep as supervisors according to Clifford, supra.) Giordano
asked Raupp who had brought the Union in and Raupp
replied no one. Giordano said somebody had to bring it in.
Raupp said that the Union had contacted the men and that
he was the organizer and spoke to most of the men. Gior-
dano asked if he had any cards from Local 155 and when
Raupp pulled some out and showed them to Giordano,
Giordano grabbed for them and put them in his pocket.
Giordano told Raupp to take his car around back and
empty out his chemicals and equipment. He added that if
Raupp could clear up the union activity he could have his
job back.
Raupp drove his car around to the garage where the
chemicals were stored and emptied them out of his car. He
left and called Lombardi, and met with him later that day.
Raupp told Lombardi that one of the office-clericals told
him that employee Vollano had spoken to Giordano about
the union activity
Lombardi set up an employee meeting to be held on
Sunday, September 8, at a local tavern. At the meeting
union authorization cards with the employee's name, ad-
dress, and the name of the Company printed on them were
passed out, and a number of cards were signed and dated
by employees. The group agreed to meet with Lombardi at
the Company's office on Monday morning, prior to going
to work, so that Lombardi could take up the question of
Raupp's discharge with Giordano.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Giordano testified that on Monday he told
Lombardi that Raupp was not discharged, Giordano did
not deny any of the statements or actions attributed to him
by Raupp and Clifford as occurring on September 7, in-
cluding Raupp's discharge. There being no contradiction
of this testimony and it appearing that the testimony about
these events by Raupp and Clifford is credible, I conclude
and find that Respondent Company, by Giordano, in vio-
lation of Section 8(a)(3) and (1) of the Act discharged
Raupp on September 7, and engaged in the interrogations
and threats detailed above which I find were in violation of
Section 8(a)(1) of the Act.
Giordano admitted that on Monday, September 9, after
his meeting with Lombardi, he asked four or five of his
employees why they wanted to join the union. He testified
that he possibly spoke to Raupp, Clifford, and Balz,
since-
Vaguely, they were the instigators . They're young kids,
they don't know what's going on . They approached
me several times for raises
We're going through a difficult time; finances
weren't there.
Asked why he asked the men whether they were mem-
bers of the union he answered:
Well, truthfully, like any small businessman, I want to
know why I wasn't first approached to see what the
grievances were.
If there was anything wrong, they could come to
speak to me, rather than want to become unionized.
They would certainly have gotten more from me than
with a union at that time.
But they were looking for things that were beyond
my scope of providing.
Question: Did you have any other reason to ask
them if they had signed cards?
Answer: No.
Raupp testified that after Giordano had asked the group
in which he was present whether they wanted the union,
and the group replied that they were in favor of the Union,
Giordano said he would fix that, that the Union would
never get into his shop. This latter statement was not de-
nied by Giordano, and I find that it is a threat in addition
to his admitted interrogation of employees both of which I
conclude and find were in violation of Section 8(a)(1) of
the Act.
B. Local 155 s Actions
After Raupp told him of his discharge on September 7,
Lombardi asked Raupp to set up a meeting for all the em-
ployees on Sunday, September 8. Authorization cards were
distributed at this meeting to employees and an additional
number of cards were signed and dated. Lombardi identi-
fied the card given to Patrick Tierney, stated that he saw
Patrick Tierney sign and date the card and return it to him,
and further that he discussed the possible benefits of
unionism with Tierney at the time.
Patrick Tierney, who had been a tree sprayer with the
Company, was called by Respondent Company and shown
the authorization card and said that it was not his signature
and he did not remember the date being on it. He acknowl-
edged going to the meeting and having the card presented
to him but said he passed it back without signing it. He
testified that he told Lombardi that he didn't want any-
thing to do with the Union and passed it back to him. He
said the signature looked like his but that it was not his.
Tierney said that he went to the meeting in order to get a
free dinner and admitted that he had drunk several beers
prior to going there. He left the Company shortly thereaf-
ter and contacted Giordano a few weeks prior to the hear-
ing in this matter, looking for a job. He was not given ajob
and was told by Giordano that there were a lot of people
who were laid off and if things picked up they might be
able to put him on.
During the initial part of the hearing Respondent offered
to stipulate that Patrick Tierney's last day of employment
was September 6 and that he was not actually employed or
on the payroll on September 9 and 10, when Local 155's
demand was made, despite the fact that his name appears
on a payroll list for September 9 and 10, prepared by the
Company for this hearing. General Counsel refused to stip-
ulate to this statement. Respondent thereafter made no at-
tempt to demonstrate that Tierney was not employed on
September 9 and 10, nor did it question Tierney in this
regard. The General Counsel's witnesses testified that Tier-
ney was still employed at that time and had been among
the employees interrogated by Giordano.
The authorization card with Tierney's name is similar to
the other authorization cards received in evidence from
Local 155 in that they were all prepared with a printed
name and address and the Company's name, and after a
date and a signature there are initials which look like E. L.,
which I take to be the initials of Ernest Lombardi attesting
to that signature. These initials also appear after the signa-
ture on the authorization card bearing Tierney's name.
I credit the testimony of Lombardi that he saw Tierney
sign this authorization card. I do not credit Tierney's deni-
als that he did not do so. At the time of this hearing Tier-
ney had applied for ajob with the Company and had been
told he had a chance of being hired. His testimony denying
that he had ever spoken to anybody about his testimony
before coming to the hearing is part of the picture making
up his testimony. Although this question is an old one it
appears to demonstrate in this instance that Tierney is cov-
ering up and seeking to curry favor with Respondent by
giving this testimony. I find that the authorization card was
signed by Patrick Tierney while he was an employee of
Respondent and is valid and authorizes Local 155 to bar-
gain for him.
At the meeting on Sunday, Lombardi told all those pres-
ent that he would speak with Giordano on the following
Monday morning and he met with the employees outside
Respondent's premises on Monday, September 9. When
Giordano appeared between 8:30 and 9:00 a.m., Lombardi
identified himself and told Giordano that one of the rea-
sons he was there was because Giordano had fired Billy
Raupp. Giordano invited Lombardi in and they went to
the basement office
According to Lombardi he told Giordano that he had
the majority of his employees signed up and they had au-
SCIENTIFIC PEST CONTROL CORPORATION
thorized Local 155 to represent them. Giordano replied
that he did not believe him and he would like to see the
cards. Lombardi said that if they got a disinterested third
party such as a minister or priest to check the cards, he
would be happy to have that done. Giordano said that if
the Union got in it was going to be pretty hard for him and
that he would have to close up the place and get rid of the
deadwood. Lombardi said that he and Giordano could get
together and work out the issues and that they would do
the right thing. Lombardi had known Giordano for a num-
ber of years since he had been in the exterminating busi-
ness and they had talked on previous occasions. Giordano
told Lombardi to have Patrick Carrol, the president of Lo-
cal 155, call him and they would set up a tentative date and
sit down and see what they could work out. Lombardi
asked again about Billy Raupp and Giordano said that
Raupp was back to work.
Lombardi testified that Giordano said he wanted an
NLRB election and that he replied that he was ready to
proceed with a vote whenever Giordano was ready and
that he would get in touch with Carroll and discuss it.
Lombardi said this conversation with Giordano took be-
tween 45 minutes and an hour and that when they went
outside some of the men were still waiting to see what the
results of the conversation were, and he told them that
Raupp was reinstated and they could go on to work.
Giordano testified that he got to the office about 8.30
a.m. that morning and saw Lombardi out front with several
employees, and that Lombardi said he wanted to speak
with him and the men were not going to go back until he
did. He agreed to meet with Lombardi and they went into
his office. He testified that Lombardi told him the men
wanted to become union members and he asked Lombardi
if he had signed cards and Lombardi said he did not have
to show them to him, that it was not required. Giordano
replied that he would not recognize Lombardi and that was
the end of the conversation.
Concerning Raupp, he said Lombardi mentioned it to
him and he told Lombardi that Raupp was not fired and
could go back to work. At that point they went upstairs
and according to Giordano it was then around 10:00 a.m.
Lombardi started talking to some of the men and he told
Lombardi to get off the property or he would call a cop.
Lombardi said he was right and left, and the men went on
to their jobs.
Giordano denied that anything was said about a priest
or minister. Asked if Lombardi had a majority, Giordano
stated that to his knowledge Lombardi did not say so. This
testimony conflicts with Giordano's other testimony where
he said he asked Lombardi to show him the cards to prove
that he had a majority and Lombardi refused to do so. No
such request would have been made if Lombardi had not
said that Local 155 represented a majority and demanded
recognition and bargaining. On the testimony I have to
conclude that a demand for recognition and a claim of
majority was made by Lombardi and I do not credit
Giordano's denials that an offer to have a third party view
and certify the authorization cards was not made.
Obviously, from the time estimate given by Giordano, a
lot more was said in the meeting than that to which Gior-
dano and Lombardi testified. Lombardi reported the con-
1659
versation to Carroll, Local 155's president, who immedi-
ately drafted a letter reiterating the majority claim and ask-
ing for negotiations and recognition which he mailed per-
sonally that same day to Respondent Company. This letter
was received in evidence with an attached postal receipt
bearing number 455215 and a return receipt postal card
showing that the document with that number was delivered
to Respondent and was received and signed for by Joy
Guarino one of Respondent's clerical employees on Sep-
tember 10.
Another letter was sent by Patrick Carroll to Giordano,
dated September 11, which said that pursuant to their tele-
phone conversation on September 9, where Giordano said
he was willing to meet on September 18, 19 or 20, that
Carroll wished to meet him on Thursday, September 19 at
4:00 p.m. A copy of this letter was received in evidence
with an attached certified receipt bearing number 381265
and additionally had attached to it a return receipt card
showing that it was delivered on September 13, and again
was signed for at Respondent's premises by Joy Guarino.
Respondent offered in evidence the original letter dated
September 9, but it had attached to it an envelope ad-
dressed to Giordano bearing certified mail number 381265.
On the basis of this Giordano claimed that he did not re-
ceive the September 9 letter until September 12 or 13.
It is obvious from the numbers used that Respondent
has attached the envelope from Local 155's September 11
letter to Local 155's September 9 letter, despite Mr.
Giordano's testimony concerning his office practices.
Giordano did not testify concerning the telephone call to
which the September 11 letter refers, which set a time for a
meeting between Carroll and Giordano.
It is possible that this envelope was attached by mistake,
but in view of Giordano's testimony that he would attach
an envelope immediately to the letter when he opened it, it
is clear that this is an attempt to deny knowledge of the
Union's majority and the demand, or the receipt of the
confirming letter, based on his testimony as to what he
normally does when a letter was received.
I do not credit Giordano's testimony since it is clear that
this letter confirming the majority status and demanding
negotiations was mailed on September 9 and received by
Respondent on September 10. Certainly Respondent Com-
pany was on notice that a claim of majority had been made
together with a demand for recognition on September 9
and was reinforced by the letter it received on September
10.
Respondent raised another issue as to the employment
of Mark Minter, whose name is on the payroll furnished by
Respondent Company. Minter prior to September 9, had
sought employment with another company engaged in the
business of cable television. Minter testified that he had
been hired by Respondent Company in April and worked
until September 13 and has signed an authorization card
for Bill Raupp after Raupp had spoken to him about the
Union. On Monday, September 9, Minter stated that Gior-
dano spoke to a group of men in the office where they were
picking up their route cards and individually asked the five
or six men present if they were in favor of bringing in the
Union and that he among others replied that he was. Gior-
dano then told them to get to work. He stated that Giorda-
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no and Lombardi then engaged in their conversation and it
was not until around 9 or 9:30 a.m. when he called his wife
to let her know what had happened that she told him that
the cable-TV company wanted him to report for work as
soon as possible . He called the company and confirmed it
and then waited to talk to Giordano about it . He saw Gior-
dano after waiting about an hour and told Giordano that
he had found another job and was going to stop working
possibly as soon as the next day. After talking a while, he
agreed to work through the rest of that week.
Minter was shown a note which stated:
I, Mark Minter as of 9/9 /74, leave this job of my own
free will to gain further employment . Mark Minter.
The date of the body of the note shows that an 8 was
written and a 9 written over it. Minter stated he started to
write his birth date and then wrote over the 8 with the 9. At
the top of the note , in a different handwriting, is printed
the date of 8-27-74. That date and other writing on the
page is the handwriting of Giordano who stated that he got
the name of the company from Minter in an effort to find
out when Minter had to go to work for them.
Minter testified that he had applied for the job with this
cable-TV company some 2 to 2 - 1/2 months previously but
did not know until the morning of September 9 that he was
going to receive a job there, and that he would not have
made an effort to leave his job with Respondent Company
until he was sure of the job at the other company.
Giordano testified that Minter gave him this letter of
resignation on August 27, and that Minter had written an 8
intending to leave that same day, which would have been
August 27 . Giordano went on to say that Minter agreed to
make the date effective on September 9. Giordano testified
that on September 9, Minter came in and said he wanted to
leave that day since his wife had told him that morning
that he had a call and was to report to work , and he then
asked Minter to give him a few more days and Minter
worked I or 2 more days.
If Minter had intended to resign on 8/27 and started to
write it that way there would have been an 8/27 written
down when the note was presented to Giordano . The docu-
ment shows no sign of a 27 having been written on it.
I credit Minter 's version of the conversation since the
objective evidence of the note appears to bear him out, and
Giordano's testimony is self-contradictory if Minter had
actually given him the note on August 27 stating that he
was planning to leave on September 9. That would have
been approximately a 2-weeks notice which would have
allowed Giordano plenty of time to cover the situation and
have somebody available to replace Minter on that day.
Giordano's testimony , which in effect is that Minter took
him by surprise on the morning of September 9 and that he
asked Minter to give him a few extra days, obviously con-
flicts with saying he had a prior notice.
It is evident that once again Giordano is not being can-
did and it appears that another attempt was made to ma-
nipulate evidence in Respondent Company's benefit.
I find that Mark Minter was an employee on September
9, and previously signed his authorization card and was
intending to remain as an employee unless he was able to
find a better job . Therefore at the time of the demand on
September 9, Minter was an employee who had authorized
Local 155 to represent him and as such he should be count-
ed as an employee and his authorization card counted.
When Lombardi met with Giordano he claimed he had a
majority of the Company 's employees and demanded rec-
ognition . (There were 15 employees in the unit including
Minter and Tierney .) Local 155 at that point had 9 authori-
zation cards from these employees and therefore had a
clear majority of the employees in an appropriate unit.
Respondent claims that the authorization card signed by
Ronald Page should not be counted since he signed an
authorization card for Local 522 which is dated September
12. Respondent 's claim that Page 's authorization card for
Local 155 should not be counted because of dual unionism
is, at its simplest, bootstrapping . By September 12 all of the
unfair labor practices found above had occurred and on
that date, as will be detailed below , Respondent met with a
representative of Respondent Local and signed a recogni-
tion agreement with it, compounding the above offenses
with a violation of Section 8(a)(2). Respondent Union's
acceptance of such aid and its subsequent actions further
violated the Act. Since Local 155, prior to the time of
Page's signing a subsequent card, had a definite proven
majority of the employees in the unit , Respondent
Company's obligation was at that point to deal with Local
155 and not to take the course of action which it thereafter
did. Therefore Respondent 's claim has no foundation be-
cause of the coercive action taken before and after the Lo-
cal 155 card was signed by Page.
C. Respondent Union 's Activities and the Subsequent Events
Sam Casalino on September 9, was a business agent and
the vice president of Local 522. He testified that on Sep-
tember 9, he received a phone call from James Melville at
Respondent Company saying he would like to have a
union in the shop . He asked Melville whether a union was
in there and Melville replied no . They arranged to meet
and on the following day Casahno took authorization
cards with him when he met Melville outside the
Company's premises . Casahno gave Melville the cards and
explained the procedure of organizing and told Melville
when he had the cards signed to notify him and he would
pick them up. He testified that around September 11 Mel-
ville notified him that he had the cards signed and he ar-
ranged to meet Melville before starting time on September
12.
Casalino states that when he got there early that morn-
ing Melville handed him a group of cards and he saw he
had a majority and went into the office and spoke to Gior-
dano. He testified that Giordano listened to him and he
showed Giordano the authorization cards and told him the
next step was to sign a stipulation that Giordano would
agree to sit down and negotiate in good faith with Local
522. Giordano signed the proffered recognition agreement
and on the following day he met with Giordano and went
over a sample contract and they signed a memorandum of
agreement on the contract terms. This handwritten memo-
randum was then put into legal language and a typed form
which was signed by Giordano for Respondent Company
on September 16, being effective from September 13.
SCIENTIFIC PEST CONTROL CORPORATION 1661
Giordano testified that Jim Melville told him he was
talking to a union and that he wanted some security. Gior-
dano contacted his attorney who told him not to make any
decisions until somebody showed him they represented the
majority in the shop. Thereafter Casalino and Melville
came in to speak to him and told him that the men wanted
to be unionized and presented him with some seven to nine
authorization cards. He contacted his attorney who told
him that since there was a majority he could go ahead and
sign the agreement. He agreed that thereafter he signed a
formal contract which provided certain things for the men.
Giordano identified 10 authorization cards as those
shown to him on September 12. The 10 authorization cards
all bear the date of September 12, 1974. An 11th card,
dated September 16, 1974, is signed by employee Joseph
Monti, and is too late to be considered towards Local 522's
status.
Considering the 10 cards which Giordano testified Ca-
salmo presented to him on September 12, 2 of the cards are
purportedly signed by Giordano' s sons, Mark and Joseph,
on that date. There would seem to be some question that
they were present that morning to sign cards when they
were normally at school, but in any event they can not be
counted since they are the children of the owners of the
Company and as stated previously cannot be considered as
unit employees.
Another card bears the purported signature of Frank
Baudo the irregular part-time employee whom I have al-
ready found was not a proper member of the unit.
Also included in the group of cards is one purportedly
signed by Ronald Page. Since I found that his authoriza-
tion card for Local 155 was legitimate, I cannot give effect
to this purported designation of Local 522 and accordingly
it could not be considered as any evidence of Local 522's
status.
We have not been told that anyone other than Minter
had by September 12 said he was leaving the Company,
and in the absence of any other evidence, I can only pre-
sume that on September 12 the appropriate unit consisted
of 14 employees.
Not even considering the coerciveness of the unfair la-
bor practices on the unit employees and what effect such
law violations may have had on their signing authorization
cards for Local 522, it is clear that Local 522 did not repre-
sent a majority in an appropriate unit on September 12,
much less an uncoerced one.
Giordano testified that Melville later told him Casalino
was coming to explain the contract to the employees and a
meeting was set up and the men were instructed to be pres-
ent in the main office on the morning of Monday, Septem-
ber 18. At that meeting, Casalino, after being introduced,
went through the contract terms and explained them to the
employees asking whether all the employees had signed up
for Local 522. Some of the men indicated that they had not.
and Casalino explained one of the contract terms by which
the employees had 30 days in which to join the Union or
they could be discharged.
It was stipulated by Respondent Company and Respon-
dent Union that on and after September 13 Respondent
Company deducted moneys from its employees ' wages as a
condition of their employment and paid such moneys to
Respondent Union.
On October 18, Local 522, by its secretary treasurer,
wrote to Respondent Company requesting that three em-
ployees, Raupp, Balz, and De Meo, be terminated no later
than October 21, unless they had joined Local 522 and
paid the requisite amounts by that date. Giordano testified
that he gave Balz and Raupp another opportunity to sign
authorization cards for Local 522 and they refused and he
dismissed them on October 18.
Thereafter on October 23, Giordano wrote letters to Balz
and Raupp telling them to report back to work. Balz was to
report on Monday, October 28, and Raupp on Tuesday,
October 29, at the Company's other location in Port Wash-
ington. The letter stated that their work and rate of pay
would remain the same. Balz and Raupp reported for work
at that location on those dates.
Giordano testified that he had Balz and Raupp work out
of the Port Washington office because there were bad feel-
ings between the two groups of union adherents which had
almost led to fist fights at the St. James office. Giordano
testified that he did not want any harm to come to any of
the employees and in order to avoid a confrontation, had
Balz and Raupp work from his other location which he
testified was almost as convenient as working out of the St.
James office.
Balz and Raupp later left Respondent Company's em-
ploy, but only the discharges enumerated up to this time
are claimed by General Counsel as being violative of the
Act.
Although contending that the reinstatement to the Port
Washington office was an effort to keep Local 155 adher-
ents segregated from the other employees, General Counsel
makes no contention that the reinstatement was other than
full reinstatement for both Balz and Raupp, with the ex-
ception that as General Counsel alleged, Raupp's take-
home wages were lowered by Giordano around September
9 or 10. This allegation will be considered infra.
With the finding and conclusion that Respondent Com-
pany was operating at its peril when it refused to recognize
Local 155, since Local 155 had a majority on September 9
and had made a demand which the Company understood,
it is clear that Respondent Company's subsequent recogni-
tion and signing of a contract with Respondent Union 522
was invalid and in violation of Respondent Company em-
ployees' Section 7 rights. I conclude and find that Respon-
dent Company independently violated Section 8(a)(1) and
(2) of the Act by recognizing and bargaining with Respon-
dent Local 522 which did not represent an uncoerced ma-
jority of its employees and such act was in derogation of its
obligation to Local 155. Therefore the contract between
Respondent Union and Respondent Company was not
lawful and any actions taken thereunder are likewise un-
lawful and invalid. Accordingly, the discharges of Balz and
Raupp pursuant to the contract and the attempt to dis-
charge De Meo pursuant to the contract are all in violation
of Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the
Act and I so conclude and find.
The circumstances surrounding the recognition and ne-
gotiation of the contract with Local 522 are, to say the
least, highly suspicious considering the fact that Melville,
the apparent instigator of Local 522, was identified at least
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by one of the employees as a foreman and further noting
at one point that Giordano referred to his three supervisors
and by another account calling Melville one of his faithful
employees whom he would keep on if he found it necessary
to lay off all the employees and consolidate his business to
his home basement. Testimony concerning the supposed
signing of these authorization cards by September 11, when
the cards are dated September 12 and contain the signa-
tures of among others, Giordano's 15- and 17-year-old
sons, and the immediate signing of a contract on the fol-
lowing day, conveys a message of blinding speed with
which Giordano contracted with Local 522 while he had
previously displayed severe abhorrence to recognizing or
bargaining in any way with Local 155 to the extent of dis-
charging Raupp and making severe threats regarding the
future of the business and the employees if he was faced
with recognizing Local 155.
Considering also the letter to Giordano which recounted
an agreement between Giordano and Carol to meet in lat-
ter September to discuss the situation, it is clear that Gior-
dano acted with consummate haste in apparently selecting
a union for his employees and contracting with it to defeat
the efforts of his employees in choosing Local 155 as their
bargaining representative.
D. Raupp's Reduction and C lifford's Termination
Raupp testified he started to work for Respondent in
November 1973, at a salary of $110 a week and was moved
up to $125 a week . In March 1974 , after conferring with
Giordano , Raupp arranged to work each Saturday instead
of every other Saturday for a salary of $150 a week . At that
time he was using a company truck about 90 percent of the
time, with Giordano maintaining the vehicle . On the occa-
sions he used his Volkswagen , Giordano paid for his gaso-
line and repairs and did not give him the weekly car allow-
ance other employees received.
On either September 10 or 11 Giordano handed Raupp a
receipt for work done on his Volkswagen and said he want-
ed reimbursement for the repairs Giordano had paid.
Raupp refused saying that he was using the car for service
work and was not getting any extra pay for the use of his
car but was merely being paid a flat salary of $150 . Giorda-
no said he was going to cut his salary back to $125 a week
and Raupp would be working every other Saturday instead
of his present schedule and he would be paid $25 per week
for gasoline and expenses and Raupp would not be using a
Company vehicle anymore. Raupp protested saying he
could not understand being cut back on his work dust be-
cause he was involved in union activity.
Giordano testified that he increased Raupp's work
schedule because of the extra work in the Spring. Raupp
said the increase was not because of increased work but
because one of the servicemen had left and he was helping
out on another route , and that the increase normally
caused by termite work does not begin until April.
Giordano said he cut back on Raupp because the busy
season was ending and Raupp has said he did not want to
work that schedule anymore but wanted to work a normal
schedule like the other men.
These changes in Raupp's employment conditions com-
ing so closely upon Giordano's September 7 discharge of
Raupp for union activities, and Giordano's knowledge that
Raupp was an "instigator," coupled with Giordano' s unde-
nied antiunion actions and sentiments and his dissembling
and untruthfulness in some testimony, leads me to credit
Raupp's version of this incident and find that the cutback
was a retaliative move on the part of Giordano because of
Raupp's union activities.
I conclude and find that the extra work was taken from
Raupp and that he did suffer a reduction in his take-home
pay since he had been using a company vehicle part of the
time without any expense to him and that Raupp had been
taking care of his gasoline fees and some other repair work
when he was using his own vehicle.
It is not clear from the state of the record at the present
time dust how much work Raupp did on Saturday since
Giordano testified that Raupp only worked a few hours
each Saturday.
Being reduced from $150 a week with use of a company
van and having his actual car expenses paid when using his
car to $125 a week with a flat car expense of $25.00 per
week added probably occasioned some loss to Raupp. It
will be necessary to determine the actual amount of loss in
this reduction in the compliance stage of this case.
Giordano testified that Clifford was fired because he did
not have a proper automobile, despite being warned on a
number of occasions that he was undependable in showing
up for work, was habitually late, and that Clifford has falsi-
fied a job order record. Giordano said that the heavy sea-
son was about over and Clifford was going to be laid off as
he was cutting the routes down from 10 to 7. He said that
the last straw was when Clifford's car broke down com-
pletely and he did not have a vehicle to use.
Clifford testified that he started to work for Respondent
Company in January 1974. During cross-examination he
changed that date to March 1974. As noted above he testi-
fied concerning 8(a)(1) interrogations and threats made by
Giordano to him on Saturday, September 7. Clifford joined
the Union and talked to some of the employees about the
advisability of having a union. On the day he was dis-
charged his car broke down and Giordano came to the
location, picked up the chemicals and equipment, and took
them to the office, telling Clifford that if he had a car he
could work the following day. Clifford said it was impossi-
ble for him to get a car the following day, but that he got a
car on the day after that, and asked Giordano if he could
return to work and Giordano said no.
During cross-examination Clifford said he had a 67
Chevrolet Impala, and admitted that after starting work in
March it broke down during the first week of April for I
day and was repaired. Clifford was not sure whether the
car broke down during the week of April 23, but agreed
that it was possible. He agreed that the car may have been
broken down for about a day and a half around May 21.
He did not believe that it was broken down in the latter
part of May or June. The car again broke down and was
out of service a full week in the beginning of August. He
agreed that Giordano told him to get his car fixed and that
he would loan him a company truck. After using the com-
pany truck for about a month, Giordano told him it need-
ed service and according to Giordano the truck was taken
SCIENTIFIC PEST CONTROL CORPORATION 1663
in for repairs and it was found that the truck had been run
with practically no oil and it needed a complete engine
overhaul which cost over $1000.
Clifford admitted that he came in late many times but
said that Giordano did not complain every time although
he let Clifford know that he knew Clifford was late. Clif-
ford admitted that sometime in July Giordano told him
that if he did not shape up and stop the absenteeism and
lateness, he was going to be fired. His lateness and absen-
teeism continued and in August and September Clifford
was late most of the days of each week according to the
timecards.
Clifford denied that his car broke down again on Sep-
tember 10 but said that it did break down around Septem-
ber 24 and on September 30 it quit running and was be-
yond repair. He said that the car he procured on
November 2 was a rented car.
On September 26, Clifford was supposed to service the
Suffolk County Department of Health early in the morn-
ing. He would prepare a receipt form showing what had
been done and also indicate on a running account card
what the condition of the premises was, and both were to
be signed by someone at the premises. On that particular
day, according to Clifford, it was impossible to use pesti-
cides because there were babies already in the building. He
stated he did not get a signature on the running account
card since he did nothing on the premises, but he did note
the condition of the premises as good. He stated he did not
turn in a receipt form but then was shown a copy of a
receipt form on which was written two things "Treated
Prem" and "Please call office for another day." At the bot-
tom is written the name "E. J. Kriedmaker (R H)." On the
running account card for this customer is a signed named
which appears to be similar in all respects including the
initials after the name.
Giordano testified he would normally permit a ser-
viceman to make early stops directly from his home. In
regard to this customer, Clifford turned in the running ac-
count card without a signature but with the notation
"good" and he noted the omission and underlined it. He
stated that on the following workday he received a call
from the health center asking why the service man had not
shown up and that he replied they had a signed receipt
showing the man had been there. He then sent another
serviceman to the health center with this signed receipt and
received a note from Kriedmaker saying that the ser-
viceman had not been there on September 26. Giordano
then called Kriedmaker and asked if he was certain no one
had been there and Kriedmaker said he was. Giordano
asked him to confirm it in writing and Kriedmaker's letter
states that according to his records the serviceman was not
there on September 26 and the signature on the card was
not in his handwriting or that of his assistant.
Giordano then told Clifford that the individual at the
health center said Clifford had not been there. Clifford said
he had been there and no one was around, and that some-
one signed the slip and he thought it was a secretary. Gior-
dano told Clifford that if such a thing happened again he
would be discharged, that Clifford was lax in his work and
had not told him that he was going out there to begin with,
and that he had come in at 10:00 a.m. on September 26
and this supposed service call was supposed to account for
the 2-hour lapse.
Since there is a similar signature with initials, there is a
question of whether Clifford sought to deceive, and the
evidence is not clear cut.
There seems to be no question but that Clifford was not
a punctual employee and had been specifically warned
prior to the advent of Local 155 that continued absentee-
ism and lateness would lead to his discharge. It is also clear
that Clifford had been told that he needed a serviceable car
for his work and had been so notified on several occasions,
and had been permitted to use a company truck when his
car was broken down. It is certainly true that he did not
provide a reliable vehicle which occasioned problems for
Respondent in servicing its accounts when Clifford was
unable to complete his assigned task. When Clifford's car
finally broke down Giordano told him to have another car
by the following day and he could continue to work. Clif-
ford did not do so but says he had a rented car on the
second day. Obviously a commercially rented car would
eat up most of the pay for the job which would make such
a venture untenable. Further Giordano said he had to noti-
fy his insurance company as to what cars were being used
by the servicemen in order to continue a liability floater
policy on them. Giordano said that Clifford, on November
2, told him he was going to get a car and denied that Clif-
ford said he had a car or a rented car.
Although there may be some suspicion that because of
Local 155's appearance and a probable identification of
Clifford with it Giordano was happy to terminate Clifford,
it is clear that under all the circumstances present here,
that Clifford was terminated for not having a serviceable
car to be used in his job and for continually violating in-
structions to be punctual. Under these circumstances, I
cannot find that Clifford was discharged in violation of
Section 8(a)(1) and (3) of the Act and will recommend dis-
missal of this allegation of the complaint.
Summary
Respondent in its oral argument stated that a bargaining
order should not be entered to remedy any violations
found in this case, but urged that if anything were done,
that an election be ordered. However the violations of the
Act which took place in this case including threats of dis-
charge, threats to close the plant, interrogations, the dis-
charge of Raupp for bringing in the Union, and refusal of
Respondent to recognize Local 155 but instead recognizing
Local 522 which did not have an uncoerced majority over
the outstanding claim and majority status of Local 155,
make it clear that the majority status of Local 155 has
probably been dissipated by Respondent's unfair labor
practices. It would be futile at this point to try to restore
the status quo ante by ordering an election held between
these two Unions, since one Union had been favored un-
lawfullly by being granted recognition and a contract in
violation of the Act. Therefore I find that the only possible
remedy for this situation is to negate Local 522's contract
and grant a bargaining order to Local 155. See Ludwig Fish
& Produce Inc., 220 NLRB 1086 (1975).
The factual situation in this case is similar to that in
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sturgeon Electric Company, Inc., 166 NLRB 210 (1967).
This case was further refined by the Board at 181 NLRB
157 (1970). In Sturgeon and in C. H. Heist Corp., 186
NLRB 355 (1970), the Board found an 8(a )(5) violation in
addition to the 8 (a)(1) and (2) violations . There was no
allegation of 8(a)(5) here but the factual situation was even
more egregious with the 8(a)(3) and 8(b)(1)(A) and (2) vio-
lations which occurred.
Therefore an order dismissing the 8 (a)(3) allegation as to
Thomas Clifford , but finding all of the other violations
alleged , will be entered and appropriate remedial action
ordered.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section II,
above, and therein found to constitute unfair labor practic-
es in violation of Section 8(a)(1), (2), (3 ) and 8(b)(1)(A) and
(2) of the Act, occurring in connection with Respondents'
business operations as set forth above in section I, have a
close, intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondents engaged in the unfair
labor practices set forth above, I recommend that they
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act as fol-
lows:
Having found that the Respondent Company and Re-
spondent Local 522 executed a collective-bargaining agree-
ment containing a union -security provision at a time when
another Union , Local 155, was the majority representative
of an appropriate unit of the Company 's employees, it is
ordered that Respondents cease performing , enforcing, or
giving effect to the agreement between them dated Septem-
ber 16, 1974, and jointly and severally reimburse all Re-
spondent Company employees for money paid by them or
deducted from their wages for initiation fees, dues, assess-
ments, or other obligations of membership in Local 522.
Also having found that Respondent Company dis-
charged William Raupp on September 7, 1974 , and rein-
stated him on September 9, 1974 , and discharged William
Raupp and Dennis Balz on October 18, 1974 , at the request
of Respondent Union because of their nonmembership in
Respondent Union, and that Respondent Company rein-
stated Balz on October 28, 1974, and Raupp on October
29, 1974, it is ordered that Respondents jointly and sever-
ally make Balz and Raupp whole for the loss of pay they
suffered by reason of their October discharges , less any
interim earnings they may have had.
Having further found that Respondent Company re-
duced Raupp 's earnings on and after September 10 or 11,
1974, because of his union activities as found supra, it is
ordered that Respondent Company make Raupp whole for
such loss.
Backpay and restitution of fees, etc ., is to be computed
on a quarterly basis as in F. W. Woolworth Company, 90
NLRB 289 ( 1950). Interest in the amount of 6 percent is to
be added to the backpay and to the amounts paid by the
employees and/or deducted from their wages which is to
be refunded , as in Isis Plumbing & Heating Co., 138 NLRB
716 (1962) as further amplified in Seafarers International
Union of North America, Great Lakes District, AFL-CIO,
138 NLRB 1142 ( 1962). It is further ordered that the Re-
spondents make available to the Board , upon request, pay-
roll membership lists, and all other records necessary to
facilitate checking the amounts due the employees.
As a further necessary remedy it is ordered that Respon-
dent Local 522 cease and desist from causing Respondent
Employer to discriminate against employees in violation of
Section 8(a)(3) by entering into and maintaining an agree-
ment which conditions employment with Respondent Em-
ployer on membership in Respondent Local 522 at a time
when it was not the representative of an uncoerced majori-
ty of these employees , and order Respondent Company to
cease and desist from assisting the Respondent Union in
violation of Section 8(a)(2) by entering into a contract with
it unless and until it is certified as the representative of its
employees.
Having also found that Respondent Company sought to
undermine the Union's majority by interrogating employ-
ees, by threats to discharge employees , to curtail or termi-
nate the business , to make working conditions more ardu-
ous, or to grant undisclosed benefits if the employees
abandoned the union, and having found that Respondent
rejected the principle of collective bargaining and acted to
avoid collective bargaining , and has by all the described
actions invaded its employees' rights under the Act as set
forth in section II, above, I am of the opinion that Respon-
dent Company may commit further unfair labor practices
having by its actions detailed herein shown its proclivity
for so doing. Since it is part of the purpose of the Act to
prevent the commission of unfair labor practices , I recom-
mend that Respondent be placed under a broad enjoinder
to cease and desist from ii, this or any other manner in-
fringing upon the rights guaranteed its employees by the
Act. On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 155 and Local 522 are each labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent Company violated Section 8 (a)(1) of the
Act by unlawful interrogation , by threatening employees
with loss of their jobs, with curtailment or closing of the
business, and with making working conditions more ardu-
ous, and by promising them unspecified benefits if they
refrained from assisting Local 155.
4. Respondent Company violated Section 8(a)(3) and
(1) of the Act by the September 7 and October 18, 1974,
terminations of William Raupp and the reduction in his
pay on and after September 11, 1974, and by the October
18, 1974, termination of Dennis Balz.
SCIENTIFIC PEST CONTROL CORPORATION 1665
5. Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by requesting and demanding the October
18, 1974, discharges of William Raupp and Dennis Balz.
6. Respondent Company violated Section 8(a)(1), (2),
and (3) of the Act by recognizing Respondent Union as the
collective-bargaining representative of its employees on
September 12, 1974, and thereafter entering into and en-
forcing a contract with Respondent Union.
7. Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by accepting recognition as the collective-
bargaining representative of Respondent Company's em-
ployees when it did not represent an uncoerced majority of
said employees and further by entering into and enforcing
a contract with Respondent Company.
[Recommended Order omitted from publication.]
*u S GOVERNMENT PRINTING OFFICE 1977 -241-596/1