Pan American Exterminating Co., Inc.

National Labor Relations Board - Board Decisions

Oct 5, 1973

206 N.L.R.B. 298 (N.L.R.B. 1973)

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pan American Exterminating Co., Inc. and Building
Service Employees Union , Local No. 362, affiliated
with Service Employees International Union, AFL-
CIO. Case 12-CA-5965-2
October 5, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On August 2, 1973, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of, the Administrative Law Judge and hereby
orders that- Pan American Exterminating Co., Inc.,
Miami, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in said recom-
mended Order.
i Respondent excepted only to the broad cease-and-desist Order recom-
mended by the Administrative Law Judge As a violation of Sec. 8(a)(3) goes
to the very heart of the Act, and in accord with our established practice, we
shall adopt the broad Order. See Dobbs Houses, Inc, A Division of Squibb-
Beechnut, Inc, 197 NLRB 897
DECISION '
STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge : The issues
in this case are did Respondent : (1) promulgate and main-
tain a rule prohibiting employees from carrying on union
organizing activities in order to defeat the union organiza-
tion campaign ; and (2) discriminatorily discharge Homero
Rico in order to discourage union activities in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act,
herein called the Act (29 U.S.C. § 151, el seq.).
For the reasons hereinafter set forth, I find that the Gen-
206 NLRB No. 86
eral Counsel has established by a preponderance of the
evidence that Respondent violated the Act as alleged in the
complaint.
Building Service Employees Union Local No. 362, affili-
ated with Service Employees International Union, AFL-
CIO, herein called Charging Party or Union, filed a charge
with the National Labor Relations Board, herein called
Board, on March 14, 1973, against Pan American Extermi-
nating Co., Inc., herein called Respondent. This charge re-
sulted in a complaint and notice of hearing being issued
May 9, 1973, on behalf of the General Counsel of the Board
by the Regional Director of Region 12 of the Board alleging
violations of Section 8(a)(1) and (3) of the Act.
Respondent denied the essential allegations that it violat-
ed the Act.
With the General Counsel and the Respondent being
represented by counsel, the case was tried before me in
Coral Gables, Florida, on June 13, 1973. The parties were
given full opportunity to present evidence and examine and''
cross-examine witnesses. Counsel for General Counsel and
Respondent argued the case orally, and a brief was timely
filed by Respondent on July 6, 1973.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the oral arguments and the brief of Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
(a) Respondent is a Florida corporation with a plant lo-
cated at Miami, Florida, where it is engaged in the business
of providing exterminating services on a retail and whole-
sale basis.
(b) During the past 12 months, which period is represen-
tative of all times material herein, Respondent has had retail
sales in excess of $500,000, and, in the course and conduct
of its business, has purchased and received goods and mate-
rials valued in excess of $9,000' from suppliers who re-
ceived those goods and materials from points located
outside the State of Florida.
I find Respondent is now, and has been at all material
times herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I find the Union is now, and has been at all material times
herein, a labor organization within the meaning of Section
2(5) of the Act.
The Respondent stipulated to jurisdiction.'
II THE ALLEGED UNFAIR LABOR PRACTICES
Homero Rico, herein called Rico, was employed by Re-
spondent for about five months from November 1972 to
March 9, 1973. Rico was suspended-on Friday, March 9,
1973, and discharged on Monday, March 12, 1973. For the
purpose of this case I will refer to March 9, 1973, as the day
i Findings in Pan American Exterminating Co., Inc., and Service Employees
Union Local No. 362, affiliated with Service Employees International Union,
AFL-CIO, Case 12-RC-4315, May 30, 1973.
PAN AMERICAN EXTERMINATING CO.
of the discharge as it was the last day of his employment.
Rico sprayed insecticide inside homes and buildings on
a route of customers . He would report to the Respondent's
office about 7 : 30 a.m . prepare his equipment , get any spe-
cial instructions and then go on his route . At the end of the
day he would return to the office, turn over his. order book
to the supervisor, talk to him about the happenings of the
day, and check his book for the next day. No customer or
supervisor or official of Respondent ever complained to him
about his work.
Union Activities
Rico was the instigator of the union activities , was in
charge of it and engaged in it . He looked up the Union in
the phone book, called the representative , visited him and
obtained union "application cards, authorization cards."
This was on January 31 , 1973. He talked about the union
to "almost everybody ," (which would be approximately 40
employees) at their homes and on the street . He turned over
cards he got back from employees to Business Representa-
tive James E. O'Halloran , herein called O'Halloran. He
gave O'Halloran a list containing the names and addresses
of all employees, and O'Halloran mailed cards to some of
the employees . This list had been made up by Respondent
and was the Respondent's Christmas card list for 1972 free-
ly given out to employees so that they could send Christmas
cards to each other.
A. Respondent's Knowledge of Rico's
Union Activity
George Alonso , herein called Alonso , an admitted super-
visor of the Company , knew of Rico's union activities and
his desires to correct through unionization what Rico told
him were "injustices ." Alonso cautioned him not to talk
about a union for fear of discharge.
On Friday , March 2, 1973, Sanford Burger, President of
Respondent , spoke to the employees , assembled for that
purpose in the pest control office , telling them Respondent
didn't need a union . He showed them a letter from the
Union with an authorization card and told the employees
they probably had received a similar letter and card. This
letter was the type the Union sent employees pointing out
to them the advantages of joining a union. Alonso interpret-
ed the speech for the non-English -speaking employees.
Burger, at one point in the talk, said there were people in
the meeting who probably had union experience, and,
pointing to Rico, said Rico probably had had union experi-
ence.
B. No-Solicitation Notice and Stop Sign
Rico first noticed, on the day of the meeting , a no-solici-
tartion notice and a large red stop sign posted in three places
on Respondent's property ; i.e., one in the mechanic shop,
one in front of the timeclock , and one in the pest control
office . The stop sign looked like a traffic stop sign . It said,
. . stop, think before you sign the union cards because
they are not telling the truth...." The no-solicitation no-
tice said,
NO PERSON WILL BE ALLOWED TO CARRY ON UNION
ORGANIZING ACTIVITIES ON THE JOB. ANYONE
WHO DOES SO AND WHO THEREBY NEGLECTS HIS OWN
WORK OR INTERFERES WITH THE WORK OF OTHERS
WILL BE SUBJECT TO DISCHARGE.
299
C. Events Leading Up to Rico's Discharge
Before Rico was hired, he took the routine polygraph test
for all job applications and was hired thereafter . On March
7, 1973 , Michael May, Respondent 's executive vice presi-
dent, sent Rico to take another polygraph test . Accordingly,
Rico went to the testing office where he protested that he
thought he was being tested again because of his union
activities . No test was given him . He then returned to
Respondent's plant and met with May and Alonso. He
asked May why he was sent for the second polygraph test
and when told by May that he knew nothing about it, Rico
told May and Alonso that he thought the reason why he was
sent was because he had been organizing the union . He told
them, in effect, if they had just sent him for the test to
determine if he was the one responsible for bringing in a
union he could save them the time and expense because he
was the one . May responded that he didn 't know why the
polygraph tester refused to test Rico, and commented that
he once had a bad experience with a union he belonged to.
On the day of his discharge, 2 days later , Rico came to
work as usual between 7 :30 and 7: 45 a.m. He brought with
him two cameras . May saw him with the cameras and asked
what they were for. Rico told him he was trying to sell them.
Then later on in the morning as Rico was leaving the pest
control office to begin his route , Rico stopped to take a
picture of the stop sign , which was posted in the pest control
office . May saw him and told him (in the words of Rico),
"I don't want God damn pictures taken over here ." Rico left
the premises to begin his route . May remembered that there
was another salesman in the room at the time.
About 10 a.m. the same day, May phoned Rico at a
customer's address and told Rico he wanted to talk to him.
Rico left his route and reported to May's office. In the
office; May told Rico he was suspended while he, May,
made an investigation, and for Rico to take any personal
property he had. May went with Rico to the Respondent's
car where Rico removed his personal property. The follow-
ing Monday, Rico came back to the office and asked May
forhis paycheck- May told him he was dismissed . No reason
was given Rico for his discharge until the trial of this case.
Respondent's Case
May testified that after seeing Rico take the picture, he
told him not to do it without permission. After Rico left on
his route May phoned Burger and told Burger that he
caught Rico taking a picture of material on the wall. May
did not know that Rico was attempting to take a picture of
the stop sign at the suggestion ' of O'Halloran. May testified
he didn't know what Rico was taking a picture of. Burger
told May to suspend Rico and investigate. May called in
Rico and suspended him. No further investigation was
made . The other salesman employee in the pest control
room was not interviewed , but May believed he was Barker
or Bole.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's defense is that Rico was fired for cause
and not because of his prounion activities. Respondent's
brief states that "Respondent Did not Violate The National
Labor Relations Act by Discharging the Employee [Rico] For
Dishonesty." The theory of dishonesty on the part of Rico
is based upon the above picturetakmg incident plus an inci-
dent that occurred in the bookkeeping department some-
time in January 1973.
The bookkeeping department incident arose when Rico
went there to check on his pay. Alonso had never told him
to stay out of bookkeeping and as Rico occasionally-could
not understand why his pay was for the amount on his check
he would go to find answers. In the January incident there
was testimony that voices were raised and Burger told Alon-
so to quite it down. Alonso told Rico and Rico left the
department. Nothing more was said or done.
Respondent had a need to keep confidential its customer
lists and prices. It sets out this need-in great detail in its
hiring contracts with the employees, including Rico, and
there is no doubt about it nor issue concerning it. However,
Rico, as well as other employees, has access to this confiden-
tial information, carrying much of it with him while he
services his customers. Also much of it is posted on the walls
in bookkeeping and in the pest control office.
Respondent takes the position that the incident of Rico's
picturetaking in the pest control office linked to the earlier
incident in the bookkeeping department established to its
satisfaction that Rico was dishonest as he was engaged in
collecting confidential information to sell to others or, in
effect, to use against the best interests of Respondent.,
Conclusions
A discharge for dishonesty or for a belief of dishonesty
is a discharge for cause within the meaning of the Act and
does' not violate the Act. However, I find from the facts of
this case that Respondent is using "dishonesty" as a pretext
for a discriminatory discharge of Rico to discourage union
activity among the employees. Accordingly, this discharge
violated Section 8(a)(3) of the Act, and as it interferes with,
restrains, and coerces employees in their right to engage
freely in union activities or concerted activities for their
mutual benefit as guaranteed by Section 7 of the Act, Sec-
tion 8(a)(1) of the Act is likewise violated. Rico had been a
satisfactory employee on his job at all times. He began
organizing the employees on January 31, 1973, and his
union activity was known by Alonso, his supervisor. Re-
spondent took action on March 2, 1973, against the union
campaign with a stop sign and a no-solicitation rule and
held a meeting on that day to tell the employees they didn't
need a union identifying Rico therein as one who probably
had union experience. Like a kiss of death, this meeting was
followed 5 days-later with Respondent's sending Rico for
another lie-detector test (without any given reason) and
then suspending him 2 days after that on the spurious
ground that he was taking photographs of confidential in-
formation. Rico, of course, was not taking pictures of any
confidential' information but was takinga picture of the stop
sign which was located on the wall opposite from the wall
on which the customers lists were posted. And this could
have been verified had Respondent wished to ask the other
employee present. There was nothing posted that Rico did
not have in his possession or could not copy. Respondent
does not maintain that a picture of the stop sign might also
have contained, inadvertently, some confidential informa-
tion but rather maintains that Rico was taking the picture
dishonestly in order to obtain confidential information. Un-
der the circumstances, the reason given for the discharge
falls for lack of any support. This gives rise to the inference,
based upon Rico's union activity, Respondent's knowledge
and known antiunion feeling, and the timing, that Respon-
dent fired Rico because of his union activity. And this :lie
reason he was discharged in my considered opinion.
No-Solicitation Rule
Stated again, the no-solicitation rule was posted on
March 2, 1973, during the union organization. This was the
first time it was posted, and it is clear it was posted to stop
union solicitation. The rule read: "No person will be al-
lowed to carry on union organizing activities on the job.
Anyone who does so and who thereby neglects his own
work or interferes with the work of others will be subject to
discharge." The rule was written in capital letters. As the
working of this rule is identical with the wording in a rule
the Board has found to be valid in earlier cases, the Respon-
dent can rely on these interpretations in formulating a valid
rule and I find no violation of the Act in the rule itself. (See
Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, 528 and
cases cited therein.)
The General Counsel argues that the rule is invalid in that
it was promulgated for discriminatory purposes. It is well
settled that management can prevent employees from soli-
citing for a union during working hours, providing the ban
is imposed on a nondiscriminatory basis. There was no rule
before Rico's organizing campaign and the rule is specifical-
ly directed at union activities and to no other activities.
Thus solicitation for charities apparently is not stopped nor
are other nonworking activities engaged in by employees
prohibited. Finally, Respondent has not put in any evidence
of necessity for the rule at the time it was posted, that is,
evidence that it was posted for a legitimate business pur-
pose. Accordingly, it maybe inferred that it was posted only
to thwart and discourage union organizational activities,
thereby becoming illegal and in violation of Section 8(a)(1)
of the Act. (Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB
527, 529.)
Upon the foregoing findings and conclusions and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. By promulgating and mairataining a rule prohibiting
employees from carrying on union activities in order to
defeat the union organization campaign the Respondent
interfered with, restrained, and coerced its employees in the
exercise of their rights under Section 7 of the Act and hence
Respondent has engaged in unfair labor practices affecting
commerce within the ,meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
2. By its discriminatory, suspension and discharge of
PAN AMERICAN EXTERMINATING CO. 301 -
Homero Rico as previously found, Respondent had en-
gaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.,
THE REMEDY
Having found that Respondent had engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent discharged Homero Rico
for the purpose of discouraging union activity, and in order
to provide a restoration of the situation, as nearly as possi-
ble, to that which would have obtained but for the illegal
discharge, I will recommend that Respondent be ordered to
reinstate Homero Rico , if not already reinstated , to his for-
mer or substantially equivalent position without prejudice
to his seniority or other rights and privileges, discharging,
if necessary, anyone hired in his stead, and make him whole
for any loss of earning he may have suffered by the payment
to him of a sum of money equal to the amount he normally
would have,earned as wages from March 9, 1973, to the date
of an offer of reinstatement , less net earnings during said
period, with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, including interest at the rate of 6 per-
cent per annum to be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
I shall also recommend that Respondent preserve and
make available to the Board, upon request, payroll-and all
other records necessary to facilitate determination of the
amount due under this Order.
In view of the nature of the unfair labor practices com-
mitted, I am of the opinion that the commission of similar
unfair labor practices may be reasonably anticipated. I shall
therefore recommend that Respondent be ordered to cease
and desist from infringing in any manner upon the rights
guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER2
Pan American. Exterminating Co., Inc., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Promulgating , maintaining, and enforcing an illegal
no-solicitation rule.
(b) Discharging any employee because of his union activ-
ity for the purpose of discouraging union or concerted activ-
ity protected by the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other
mutual aid or protection.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer immediate reinstatement to Homero Rico to his
former or substantially equivalent position, without preju-
dice to his seniority or other rights, and privileges, discharg-
ing, if necessary, any one hired in his stead, and make him
whole in the manner set forth in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary or useful in computing the amount of backpay
due or determining compliance with any provision hereof.
(c) Post in its plant in Miami, Florida, copies of the at-
tached notice marked "Appendix." 3 Copies of said notice,
on forms provided by the Regional Director for Region 12,
after `being duly signed by Respondent, shall, be posted by
it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondert to ensure that said notices are not altered,
defaced, or covered by any other material. "
(d) Notify the Regional Director for Region l2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent had taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Orderrberein shall, as provided in Sec 1112.58
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order , and all objections thereto shall be deemed
waived for all purposes.
3 In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the law and has ordered us
to post this notice.
WE WILL NOT maintain or enforce a no solicitation
rule made illegal because it discriminates against union
activities.
WE WILL NOT discharge any employee because he en-
gaged in union or concerted activity for the purpose of
collective bargaining or other mutual aid or protection.
Since the Board has found that we violated the law
when we discharged Homero Rico, WE WILL offer him
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his job back (if not already reinstated), discharging his
replacement, if necessary , or if such job no longer ex-
ists, WE WILL offer him substantially equivalent employ-
ment, and WE WILL pay him for any loss of 'pay he may
have suffered because we discharged him. Dated By
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their right
to self-organization, to form, join, or assist labor orga-
nizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from engaging in such activities.
All our employees are free to become and remain or to
refrain from -becoming or remaining members of any labor
organization.
PAN AMERICAN EXTERMINATING
Co., INC
(Employer)
(Representative) (Title)
This is an official notice and must ,not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Room 706, Federal Office Build-
ing, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602,
Telephone 813-228-7227.