Redd Pest Control Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 453 (N.L.R.B. 1974)

REDD PEST CONTROL COMPANY, INC. 453
Redd Pest Control Company, Incorporated and UBC,
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO . Case 15-CA-4883
April 30, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 28, 1973, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Redd Pest Control
Company, Incorporated, Jackson, Mississippi, its
officers , agents , successors , and assigns , shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed by UBC, Southern Council of
Industrial Workers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (the Union), on June 21,
1973,1 against Redd Pest Control Company, Incorporated
(Respondent), a complaint was issued on August 3 alleging
that on February 19 Respondent discriminatorily dis-
charged employee Jack Wayne in violation of Section
8(aX3) and (1) of the Act2 and in March or April
unlawfully interrogated an employee concerning union
activities and sentiments, in contravention of Section
8(axl).
Pursuant to due notice, a trial was held before me in
Jackson, Mississippi, on September 18 and 19. All parties
were represented and were afforded full opportunity to be
heard, to present oral and written evidence, and to examine
and cross-examine witnesses . The parties waived oral
argument and since the hearing briefs have been filed on
behalf of the General Counsel and the Respondent.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs, I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaint alleges , the answer admits, and I find
that:
A. Respondent, a Mississippi corporation, with its
principal office in Jackson, Mississippi, is engaged in the
operation of pest control services from several locations,
one of which, the only one involved in the present case, is
located in Jackson, Mississippi. During the past year, a
representative period, Respondent' s gross sales exceeded
$500,000 and it purchased and received goods valued in
excess of $50,000 directly from points outside Mississippi.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Discharge of Wynne
1. The facts
Respondent is engaged in pest and termite control at
several locations , including Jackson , Mississippi, the
establishment involved in this proceeding.
On January 15, Roger Jack Wynne (commonly called
Jack), James Howell , and Graham Taylor, service techni-
cians employed by Respondent in Jackson , visited the
president of the Mississippi AFL-CIO to inquire about the
possibility of organizing Respondent 's employees . There-
after Wynne, the alleged discriminatee in the present case,
spoke in favor of unionization to around 10 or 15 of his
fellow employees, principally at a restaurant during lunch.
There is no evidence that any supervisors or management
personnel were present at these times or that either Wynne
or any of his fellow employees spoke to any supervisory
personnel about possible organization during this early
stage.
On February 10 Wynne, Taylor, and Howell again met
with the president of the Mississippi AFL-CIO, together
with a representative of the Carpenters local, the Charging
Party herein . They received blank union authorization
cards . Wynne thereafter asked some 10 to 15 Jackson
employees to sign authorization cards . In addition, he and
Taylor spoke to some employees at Respondent's
Vicksburg , Mississippi , location.
Employee Jack S. Coring testified that on February 15,
over morning coffee at a restaurant, he was asked by
I Unless otherwise stated , all dates herein are in 1973
2 National Labor Relations Act, as amended (61 Stat 136,73 Stat. 519,
29U.SC § 151 ,etseq).
210 NLRB No. 66
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wynne and Howell to sign a union card. Later that day he
received his paycheck from Mrs. Peter McKay, Respon-
dent's accounting manager and payroll clerk, who at the
hearing was admitted to be a supervisor. Coring comment-
ed, ruefully, on the amount of the check, which reflected a
recent reduction in the amount of his overtime work and
the area of his route. Mrs. McKay commiserated, ex-
pressed the opinion that "she thought it was kind of a bad
deal . . . that [the servicemen] had been given," and asked
what Coring thought the men might do about it. Coring
replied that "a lot of them [were ] talking about going
union."3 Coring testified that he did not mention any
employees' names to Mrs. McKay in this conversation.
Apparently immediately thereafter Mrs. McKay trans-
mitted to Richard Redd, Respondent's vice president
(hereafter called Richard), the information she had
received from Coring. Richard testified that, having
experienced an employee walkout in 1971, he immediately
became troubled and telephoned his counsel for advice.
According to Richard, counsel advised him that, if
Respondent had any personnel action, such as wage
increases or disciplinary action in contemplation, it should
take the action immediately, before it became impossible
because of a union campaign. Richard further testified that
immediately upon receiving that advice from counsel he
arranged for a meeting of the "executive committee,"
consisting of himself and his father, J. C. Redd, and Clem
Burwell , Respondent's chief executive officer and vice
president, respectively. According to Richard, the "execu-
tive committee" met the next day (i.e., Friday, February
16` and decided upon the discharge of Wynne and Howell .
On the morning of Monday, February 19, Wynne was
informed of his discharge, assertedly for "dishonesty," by
Luther Hammonds,4 Respondent's branch manager in
Jackson and Wynne's supervisor.
Richard testified that, under circumstances described
below, he decided around January 10 "that it would be
best for [Respondent] to terminate [its] relationship with
Jack [Wynne]" but, at the request of Hammonds, final
action was withheld until Richard could meet with his
father and Burwell. Richard's testimony in this connection
was:
At that time, I told Luther that it was quite a serious
thing, of quite a serious nature and that I felt that it
would be best for us to terminate our relationship with
Jack and Luther requested I not do it immediately, that
I consider it because he said Jack was a long time
employee. That [Hammonds] felt like he had, as he put
it, "scared the hell out of [Wynne]" so he wouldn't do it
again and that he would hate to lose him and to please,
before I made the decision entirely, to meet with my
father and with Clem Burwell.
Richard further testified that no such meeting was held
between January 10 and February 16 because of various
absences from the city. He testified to the following
specific absences: Richard was out of the city from
3 The summary of this conversation is based on Coring 's credited
testimony , which was uncontradicted , since Mrs. McKay did not testify.
4 The complaint states this name as "Hammond" and the allegation as to
his supervisory status is admitted in the answer However, at the hearing the
January 11 "until sometime around the 13th or the 14th."
At that time the elder Redd was away, the dates of his
absence being unspecified . Burwell left town "on the 18th
to be gone on a three weeks' tour of the branches" and
Richard departed on January 22 for a "tour of the Texas
branches." There was no further evidence concerning
departures or returns. No corroborating evidence was
offered. While lack of documentary or other corroborative
evidence is not ordinarily essential for evidence to be
credited, the absence of corroboration is deemed signifi-
cant in the present case because of the unexplained failure
of Respondent to call the elder Redd, Burwell, and, most
importantly, Hammonds.
According to Richard, Hammonds apparently had full
authority to take personnel action, including discharging
employees. However, the "executive committee" was called
on to make decisions in certain instances , as follows:
Any discharge of a very serious nature, such as
dishonesty with an employee that's been with us a long
time, that we consider a career employee with us.
According to Richard, since some time in 1969, when he
became a member of the "executive committee," that body
has considered "maybe five" of the unspecified total
number of discharges effectuated. No other witness
testified to having ever previously heard of the existence of
an "executive committee." Respondent has an operating
"manual," which apparently contains some reference to
employee discipline and/or discharge, but, so far as
appears, that manual contains no indication of the
existence or functions of an "executive committee."
Respondent's failure to offer the manual in evidence, like
its failure to produce Hammonds, Burwell, and the senior
Mr. Redd, is deemed significant in appraising the evidence.
Richard provided no details concerning the discussion at
the claimed meeting of the "executive committee" on
February 16. So far as appears, neither Hammonds nor
Wynne was interviewed. And it appears that nobody
interviewed Wynne's helper, who, as set forth below, was
involved in or present as Wynne's supposedly "dishonest"
acts. Nor does it appear that Richard informed his father
and Burwell of Hammonds' recommendation that Wynne
not be discharged. We now turn to the claimed "dishones-
ty" for which Richard, with the concurrence of the
"executive committee," allegedly decided to discharge
Wynne on the day after Richard claims he first learned
that there was some union organizational activity among
Respondent's employees.
Wynne had been employed by Respondent as a termite
service technician for 13 years, under the supervision of
Branch Manager Hammonds. So far as appears, Wynne
had never been criticized or reprimanded in any manner
until April 1972. At that time he was orally reprimanded by
Hammonds for having permitted his helper to go to a job
and work a half a day by himself. When Hammonds
learned of this conduct, he told Wynne that it was against
company policy and that it was not to happen again. So far
witnesses generally referred to the man in question as "Hammon" or
"Hammonds" and the last spelling is used in Respondent's brief. Since he
did not testify, there is no firsthand information as to the correct spelling
and f assume Respondent's counsel is in the best position to know.
REDD PEST CONTROL COMPANY, INC. 455
as appears, that was the end of the matter until the
discharge some 10 months later. Respondent now main-
tains that Wynne's conduct in April 1972 constituted
"dishonesty," since the job done by the helper was credited
to Wynne in computing his compensation.5 Wynne
testified, without contradiction, that Respondent encour-
aged each service technician whenever possible to leave his
helper working on one job while the technician went off to
perform on another job. Wynne had frequently adopted
that practice, but the incident in question was the first and
only time he had permitted his helper to take the truck out
by himself. There is no suggestion in the record that either
Respondent or the customer paid out any more or less than
they would have if Wynne had accompanied his helper.
In its termite business, Respondent has two major types
of operation. One is the basic work of eradicating termites;
the other consists of inspecting premises and, if they are
found free of termites, in effect, guaranteeing freedom
from termites for 1 year. This second type of operation is
called "termite inspection and protection" and is per-
formed pursuant to printed contracts referred to as TIP
agreements . The TIP agreement, signed by the customer
and by Respondent's service technician, identifies the
property and recites that it has been inspected and
Respondent will reinspect and treat the property without
cost if infestation is found within the term of the contract.
The initial period of the contract is 1 year, renewable if
both parties agree, upon the payment of the stated annual
renewal price.6 When a service technician makes an annual
inspection under such an agreement, he has the homeown-
er sign a "service receipt," in form of an IBM card,
prepared in triplicate. This "service receipt," when signed
by the customer, also constitutes an agreement for a 1-year
renewal of the protection.
On November 10, 1972, Wynne inspected certain
premises which were covered by a TIP agreement. He
testified that upon completion of the inspection, he had the
lady of the house sign the service receipt and, as is
customary, left a copy with her. When he was preparing his
daily report later that day he noticed that the service
receipt was signed in the name of "Mrs. John L. Lovaric," 7
whereas the IBM card showed the owner's name as "Cain
Neal Mrs." Wynne thereupon crossed out the name and
wrote "Kovaric." Additionally, he wrote on the card:
"Cancel-new owner-new contract." Then using carbon
paper, he traced Mrs. Kovaric's signature onto a TIP
agreement . He submitted both the service receipt, marked
as above stated, and the TIP agreement to Respondent's
office with his daily report. At an unspecified time,
Hammonds initialed the card pursuant to Respondent's
established rule that a supervisor's approval is required for
cancellation of any contract. The service receipt was
5 Technicians are paid "$500 base salary and ... 30 percent of all
productions over $3,200 per month." The amount of the helpers job was
included in Wynne's "production."
8 Apparently they are guaranteed renewable for 4 or 5 years.
7 Again, this name is spelled in various ways in the record. The spelling
here used represents my reading of the signature on the service receipt
which Mrs . Kovanc acknowledged as genuine.
8 The TIP was not produced at the trial according to Respondent, it had
been mislaid or lost.
9 Mrs . Kovaric first testified that her husband had serviced only
Richard's personal car. However, she later changed this testimony, as
stamped "cancelled" on November 30, 1972. Presumably
Hammonds had also noted his "approval" on the Kovaric
TIP in conformity with Respondent's rule.8
Mrs. Kovaric, who testified on behalf of Respondent,
has known Richard since around 1958, when they were
classmates at high school. Additionally, Respondent has its
trucks serviced at the gasoline service station operated by
Mr. Kovaric. Although Mrs. Kovaric serves as the
bookkeeper for the gasoline service station, she was very
vague as to the amount of business Respondent does with
the service station. However, she placed the volume of such
business for the month preceding the hearing (presumably
the month of August 1973) at about $800. There is no
formal contract, oral or written, between Respondent and
Mr. Kovaric's service station.9
Mrs. Kovaric testified that on the day of the termite
inspection , November 10, she informed Respondent's
service technician that the former owners of the property,
the Cains, had moved and that she, Mrs. Kovaric, had just
moved in . She further testified that after he had made the
inspection, the service technician asked her to sign the
service receipt "just to prove that he had been by there, to
show that he had been by there for an inspection."
However, at the hearing, Mrs. Kovaric was unable to
identify Wynne; in fact, she identified another person in
attendance as the man she thought was the technician.
Respondent sent Mrs . Kovaric a bill for $21 for the
year's renewal . Mrs. Kovaric testified that she was
surprised by the bill because she had not requested the
service. She spoke to her husband, who thereupon called
Richard. Upon Richard's advice, transmitted through Mr.
Kovaric , she returned the bill to Respondent with a note
asking Richard to "take care of" the matter . Richard
testified that he then turned the matter over to Respon-
dent's accounting clerk for cancellation. According to
Richard, the accounting clerk later reported back that
there was a new TIP contract on file . Richard testified that
he then telephoned Mrs. Kovaric, who said "she had not
signed any contract. The only thing she has signed was the
renewal card." The evidence is somewhat confused as to
the precise dates of these events . Respondent maintains
that they occurred around the third or fourth week of
December 1972. Wynne testified, however, that Ham-
monds spoke to him about the matter on November 24,
1972. Although Respondent's counsel expressed the opin-
ion that this date was "crucial," he failed to call
Hammonds, who presumably could have shed considera-
ble light on the question of dates , as well as on almost all of
the relevant facts. Nonetheless, for the purpose of this
Decision, it will be assumed (although not necessarily
decided) that the Kovaric matter came into focus toward
follows: Q. Does [Mr . Kovanc ] also service the company vehicles that
belong to Redd Pest Control? A . I don't think at that time . I'm not sure. Q.
Does he now? A. He does now. Q . About when did that start? A. I'm not
sure . I can't say.... Q. Has it been since the incident that occurred
involving the termite contract? A. I think it was before then . Q. Now, you
testified a moment ago that before then he serviced Mr. Redd's car but not
the company vehicles . Was that testimony incorrect ? A. To the best of my
recollection , he serviced the vehicles, the company trucks before then. I may
be wrong but I think he did . Q. You're not sure? A. I'm not positive . He told
me to tell the truth."
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of December, rather than November, as main-
tained by Wynne.
The evidence was undisputed that, so far as the
customer's obligation is concerned, there is no substantial
difference between signing a service receipt (or, in
Richard's words, a "renewal card") and executing a new
TIP agreement. Indeed, the TIP agreement is probably
more beneficial to the customer since it is guaranteed
renewable for 4 or 5 years. It was further undisputed that if
a customer , after having signed a renewal agreement,
informs Respondent that he does not desire continuation
of the service, all he has to do is call the office and the
account will be canceled.
Service technicians are paid on a commission basis. The
commission rates relevant to the present case were 15
percent of the annual fee for a renewal inspection and 50
percent for a new TIP contract and inspection.10 Thus,
since the Kovaric annual rate was $20, Wynne's commis-
sion would be $3 as a renewal, but $10 as a new TIP.
Commissions are paid to the technicians in the month the
transactions are reported. If, however, as frequently
happens, a customer thereafter states that he does not want
to renew the service, the commission is then retrieved by
deduction from the technician's pay the next month.
Wynne's commission was paid on the Kovaric TIP, but
then deducted the next month after the Kovarics said they
did not want the service.
Hammonds orally reprimanded Wynne for his handling
of the Kovaric matter.ii Wynne's testimony concerning
this was:
[Hammonds] had the copy of the contract that I had
turned in. . . . And he asked me if Mrs. Kovanc had
signed it, and I told him she had not, that I traced her
name off the IBM card, and turned it in, and he said,
"well, did you know this was forgery," and I said "no,
sir, I did not." ... He said, "all I can tell you, don't let
it happen again," and that was the end of the
conversation.
Wynne testified that he was again called into the office
about the matter by Hammonds on January 25. Ham-
monds said that "Mr. Redd," presumably Richard, had
asked Hammonds what has been done about the matter.
Wynne asked Hammonds what he (Wynne) should do and
Hammonds replied, "just don't let it happen again, and
that was the end of that conversation." Wynne nonetheless,
on his own, proceeded to the main office to discuss the
matter with Richard. When informed that Richard was out
of town, Wynne left word that he would like to see Richard
as soon as possible. Richard never did get in touch with
Wynne.
Wynne testified that about a week after he attempted to
see Richard, service technician Graham Taylor reported to
Wynne that "Richard told Graham . . . that he knew
about the TIP and for [Wynne] to forget about it, that
everything was all right." Taylor corroborated these facts,
testifying concerning a conversation he had with Richard
on January 29, after Wynne's and Taylor's assistants had
been reassigned to work on their own, which resulted in
decreased compensation for the two technicians. Taylor
told Richard that Respondent's conduct had created the
impression that the Company was trying to get rid of
Taylor and Wynne. According to Taylor, Richard denied
any such intention:
... he said he wanted to assure me that was not the
case. That he did not want to get rid of us because, he
said, "You and Wynne are my best two operators that
we have and I assure you we don't want to get rid of
either one of you." And he wanted me to assure Wynne
of that. He told me, he said he knew that Wynne was in
his office last week to see him and he was out and said
he was sorry he was out.... And he said he figured
that's why Wynne came to see him was about the TIP.
So, he told me to assure Wynne that everything was
okay on the TIP and said to tell him if he thought it
wasn't, to come by and see him but there was no use
because it was okay, he understood on the TIP. Said
there wouldn't have been anything on the TIP if the
lady hadn't been such a good friend. He said the door
was open, though. To tell Jack everything was okay but
the door was open if he still wanted to come see him,
come down and he'd be glad to talk to him about it.
Told me that I had a job with Redd as long as I wanted
it and not to worry about my job.
As previously stated, on the morning of February 19,
without any prior warning or notice, Hammonds dis-
charged Wynne, assertedly because of his misconduct in
April 1972, in permitting his helper to go out on a job
alone, and, apparently primarily, for his misuse of a TIP
agreement in the Kovaric matter. Respondent maintains
that these two incidents establish "dishonesty."
The April 1972 incident apparently was never taken very
seriously by Respondent. While it may have been against
company policy to permit a helper to take a truck out on a
job by himself (although there is no substantial evidence of
any such announced rule), it had never been considered
"dishonest" or otherwise improper for the technician to
leave his helper alone on a job while the technician worked
elsewhere. So far as appears, the technician 's commissions
in such cases were computed on the total "production"
done by the two-man crew. There is no evidence that
Respondent ever expressed the opinion that such conduct
was "dishonest" vis-a-vis the customers or vis-a-vis the
Company.
As to the Kovaric incident, Respondent maintains that
Wynne's conduct was both contrary to established compa-
ny policy and dishonest.
Wynne first testified that he "always" wrote new TIP
agreements when ownership of covered property changed.
He later acknowledged, as shown by documents intro-
duced in evidence by Respondent, that in some instances
he had had TIP contracts transferred from the original
contracting parties to the transferees of the property by
simply marking the IBM cards, without the execution of
new TIP agreements . Taylor, also a termite service
10 On termite treatments , which average around $200 , the technicians I I As stated above , it is here assumed , as Respondent contends, that this
receive 10-percent "sales" commission plus 15 percent for performing the event transpired in December 1972.
work Renewal rates are generally 10 percent of the initial treatment charge
REDD PEST CONTROL COMPANY, INC. 457
technician at Respondent's Jackson location, testified that
he too used new TIP agreements when he inspected
property after ownership had changed. He did so, he
testified , under instructions, Hammonds' instructions,
which were explained principally on the fact that a new
TIP agreement provided a ready means for increasing the
annual renewal price, particularly as to relating old
contracts . Coring gave testimony substantially the same as
Taylor's. However, Coring is regularly employed as a pest
control technician and fills in on termite work only
irregularly . Richard testified that Respondent's record
showed only six termite renewals and one TIP executed by
Coring in the period April 1971 through December 1972.
None was a transfer.
As Respondent notes, Wynne himself did not testify to
Hammonds ' having given instructions to use TIPs in
transfer cases as a ready means for increasing prices.
However, Wynne said he has always used TIPs in transfer
cases and thus presumably there would be no occasion for
specific repeated instructions by Hammonds. And on
seven TIP transfers executed by Wynne, which are in
evidence, four show price increases.
Respondent maintained that it was against clearly
announced policy to use TIP agreements in connection
with transfer of ownership of property. To support this
contention Respondent produced three witnesses. Two of
them, John Allen and Walter E. Martin, had never worked
at Respondent 's Jackson location and had never worked
under Hammonds , manager of the Jackson branch.
Respondent 's third witness on this question was Billy
Leach, assistant branch manager under Hammonds. He
testified that "on occasions" he had told the technicians
not to write new TIPs in connection with transfers of
ownership. He said that at the beginning of the TIP
program, which he thought was about 4 or 5 years ago, he
had given such instructions to Wynne, because "we had a
little problem with [Wynne] doing that and he was told
that if it was just an existing piece of property, that it
would be transferred over, instead of writing a new TIP."
But Leach acknowledged that he never had any superviso-
ry authority over Wynne. And Richard testified that he
had never heard of any technicians other than Wynne and
Taylor using TIPs in transfer cases and he first learned of
their practice only when the Kovanc matter arose. On the
basis of his demeanor, together with the vagueness and
confusion throughout his testimony, I find Leach to have
been an unreliable witness.
To support its contention that it was well-established
company policy to restrict the use of TIP agreements,
Respondent introduced into evidence a memorandum
dated September 22, 1971, from President J. C. Redd to all
branch managers. The tenor of that memorandum is that
care should be exercised in executing new TIP agreements
because of the possibility of undue risk entailed in
"insuring" property which has not been treated or which
has been treated by some other company which Respon-
dent did not consider reliable. The memorandum begins:
Our TIP program has been a concern of ours for
several years due to the fact that we have sold TIPS in
some branches without proper controls and within two
or three years the damage claims have begun to pour
in.
The record establishes beyond any doubt that the danger
in the TIP program was the risk involved in, as a practical
matter, insuring property improperly treated. It was for this
reason that a strict rule was imposed that "No TIPS will be
payed for or approved . . . for payment unless the
manager signs them." There is not a word in the
memorandum which would indicate that TIPs should not
be written on property recently treated by and/or currently
under TIP agreements with Respondent.
When faced with the fact that many TIPs had been
written, and approved by the branch manager, in connec-
tion with transfers of ownership of property, Richard
maintained that Respondent's records were kept in such a
way that it would be virtually impossible to detect these
situations. While Richard's explanation was not entirely
intelligible, he apparently maintained that, although the
service technicians would submit the renewal cards for
cancellation at the same time they submitted the new TIPs,
the two documents would follow different courses within
Respondent's office.
Other testimony by Richard apparently belies this view.
There are in the record seven TIP agreements executed by
Wynne in transfer cases. Richard testified that these seven
,.were selected at random by going back to Mr. Wynne's
daily work report and pulling at random transfer TIPs that
he had sold." He corrected this by changing "transfer
TIPs" to "transfer and TIPs." And there is Leach's
testimony that Respondent had had "a little problem" with
Wynne's writing TIPs in transfer cases some 4 or 5 years
earlier.
It was Richard's professed opinion that in the Kovaric
transaction Wynne had "dishonestly" sought to obtain the
commission of approximately $10 payable in the event of a
TIP agreement rather than the approximately $3 which
would have been due on a straight renewal. But if Wynne
was trying to obtain unwarranted compensation, he
certainly did not go about it very resourcefully. On the
renewal card itself he disclosed that the original agreement
was to be canceled and replaced by a new contract because
of a change in ownership. Nobody with a bit of larceny in
his heart would have gone out of his way to reveal this
situation if it was contrary to established policy or
operating instructions . If, as Richard maintained, the
practice theretofore followed by Taylor and Wynne had
gone undetected because of the manner in which Respon-
dent's books were kept, a technician set upon "getting
away" with this claimed "petit larceny" would presumably
have followed the simple course of marking the service
receipt "canceled" and separatedly submitting a TIP
agreement in the name of the new owner. In attempting to
support Respondent's position, Leach and Richard appar-
ently maintained that normally the cancellation and the
TIP would be approved and sent to the office at different
times. But I credit Wynne's uncontradicted testimony that
he sent the two documents to the office together, attached
to his daily report. Since it is undisputed that Hammonds
was required to approve both documents, I can infer only
that if Hammonds had testified he would have disclosed
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he approved the TIP at the same time he initialed the
service receipt for cancellation.
When questioned on this score , Richard was unable to
provide any reason for his having concluded that Wynne
was being "dishonest" in the face of the fact that he clearly
disclosed the nature of the transaction by his notations on
the service receipt. For his part, Wynne credibly testified
that he believed Mrs. Kovaric wanted a contract. To be
sure, Wynne gave no explanation other than poor
judgment for having traced Mrs . Kovaric's signature from
the service receipt onto the TIP. But he made no attempt to
hide this fact, which is evident on the face of the receipt
and which he immediately acknowledged when Ham-
monds first spoke to him about the matter .12 Since it is
undisputed that the TIP would have been accepted by
Respondent even if it clearly revealed that Wynne had
affixed Mrs. Kovaric's name,13 it would be difficult to
conclude that the tracing of the signature in and of itself
was a "dishonest" act.
As in the case of telephone contracts, Mrs. Kovaric was
unavailable to sign the TIP when, at the end of the day, at
the plant, Wynne first noticed that she was not the person
named on the service receipt. Since he believed she wanted
the service , it was not unreasonable for him in some form
to transfer her approval, indicated on the service receipt,
onto a TIP agreement.
In appraising Respondent 's motivation in the discharge,
which is in effect the ultimate issue , the immediate
circumstance must be considered . Richard at no time
talked to Wynne, despite Wynne's attempt to discuss the
matter. Nor did Richard or anybody else, so far as appears,
representing management interview Lanzell Ford, the
assistant who had accompanied Wynne on the Kovaric
visit.
It cannot be overemphasized that Richard rejected the
advice of Hammonds, Wynne's only supervisor, that the
employee be retained. According to Richard, the "execu-
tive committee" considered discharges only in "very
serious cases," such as those involving "dishonesty" by
long-term employees . It would appear that the only
purpose of such review by the "executive committee"
would be to assure that a veteran employee was not too
harshly dealt with by his supervisor. It does not seem
reasonable to assume that Hammonds , as bianch manager,
would have the unfettered right to discharge or retain
relatively new employees, but would be deprived of the
right to retain an employee with 13 years' good service
marked by only one previous oral reprimand. While it
would seem reasonable that Richard (and/or the "execu-
tive committee") would reserve the right to review the
branch manager's decision to discharge a long-term
employee, it does not appear equally reasonable that he
would reserve the right to review the branch manager's
decision not to discharge such an employee. Significantly,
according to Leach, who was present at the time,
Hammonds did not mention any "executive committee"
decision when he notified Wynne of the discharge.
12 It may well have been evident on the face of the TIP, which, as
previously noted , was not put in evidence.
13 The record contains three TIP agreements which disclose that Wynne
had signed on behalf of the customers-two having been approved by
telephone, the third bearing a notation that the property owner had left
There remains for consideration Respondent 's vigorous-
ly maintained position that it cannot be found guilty of
having discharged Wynne for his union activities because
there is no evidence that Richard, or any other representa-
tive of management, knew of Wynne's union activities.
Otherwise stated, Respondent's position is that, absent
discrimination, Respondent had the absolute right to fire
Wynne for any reason or for no reason whatsoever, and
the General Counsel had failed to meet his affirmative
burden to establish discrimination because he has not
established that before the discharge Richard knew of
Wynne's union activities , which Respondent contends were
relatively slight.
At the outset, it should be noted that, according to
Richard's own testimony, at least the timing of the
discharge was dictated by the union campaign . Richard
testified that it was his learning of union organizational
activities that led him to consult counsel and he precipi-
tously effectuated discharge on counsel 's advice that he
take any contemplated personnel action forthwith, before
becoming "locked in" by a union campaign . Within a day,
according to Richard, an "executive committee" meeting
was assembled and approved Wynne' s discharge, although
there is no credible evidence of any effort on Richard's
part to convene such a meeting in a period of at least 6 or 7
weeks following his claimed decision to discharge Wynne.
Richard testified that although he immediately became
concerned on February 15, when Mrs. McKay informed
him that there was some union activity among the
employees, he asked her no questions . In addition to
discrediting Richard generally on the basis of his demean-
or, I find this testimony, like much of his testimony,
inherently incredible. A man who, like Redd, had previous-
ly been subjected to an employee walkout would normally
be expected to secure whatever information he could from
other supervisory personnel . Like other supervisory person-
nel involved, Mrs. McKay was conspicuous by her absence
from the hearing. Leach, an admitted supervisor, testified
that he had heard rumors of union activity for a matter of a
few weeks before February 15 although he denied,
somewhat equivocally, having learned the identity of the
activists . It seems most unlikely that Leach would not have
transmitted such information to Richard, particularly in
view of Leach's long service and his having been a
supervisor in 1971, when the prior employee walkout
occurred.
A brief word may also be said of Respondent's
contention that Wynne's "union activities can hardly be
classified as extensive or great , and ... others, especially
Graham Taylor, were at least as much, if not more
involved in the union activity than he was ." Wynne,
Howell, and Taylor had initiated the campaign. Wynne
had solicited 10 to 15 employees, out of a total of about 22,
to sign union authorization cards.14 He and Taylor had
also spoken to employees in another branch of Respon-
dent's organization. On the facts, it is impossible to view
Wynne's union activities as insubstantial . The initial
before Wynne 's inspection was completed.
14 Howell , who had joined these employees , was also discharged on
February 19. Although Howell 's discharge was alleged as violative of
Section 8(aX3) in the charge, that allegation was subsequently withdrawn,
for reasons which do not appear on the record.
REDD PEST CONTROL COMPANY, INC. 459
instigation of organizational activities is perhaps the most
significant type of activity-it is the leaders, not the
followers , who constitute a threat. Additionally, Richard
acknowledged that he was aware of the fact that Wynne
had participated in the employee walkout in 1971.15
2. Conclusory discussion
It may well be that Redd's testimony establishing that
the timing of Wynne's discharge was dictated by Redd's
acquiring knowledge of the incipient union organizational
campaign may, in and of itself, be sufficient to establish an
8(aX3) violation . There is no evidence that Wynne would
have been discharged at that particular time had it not
been for the union campaign. His claimed acts of
dishonesty had occurred some 10 and 3 months earlier,
and, according to the credited testimony, had been
condoned. Particularly in view of Hammonds' recommen-
dation that Wynne not be discharged, it appears most
probable that the matter would have been allowed to sleep
indefinitely had Richard not become concerned about the
union campaign. Under these circumstances, even if it
were clear that Richard, did not know of Wynne's union
activities and sympathies, I should find that the immediate
cause of the discharge was the employees' exercise of rights
guaranteed by Section 7 of the Act. There can be no doubt
that the discharge, as an immediate response to Respon-
dent's learning of the campaign, would tend to discourage
union activities.
It is not essential, however, to base a finding of violation
on the foregoing analysis. The evidence amply supports an
inference that Wynne was discharged because of his union
activities.
It is by now a truism that employer knowledge of
employees' union activities may be proved by circumstan-
tial as well as by more direct evidence. N.LR.B. v. Link-
Belt Co., 311 U.S. 584, 602; F. W. Woolworth v. N.L.R.B.,
121 F.2d 658, 660 (C.A. 2); Syracuse Tank & Manufacturing
Company, 133 NLRB 513, 539. And an express denial of
knowledge by the employer, as is present in Richard's
testimony, is not conclusive. See, e.g., Shattuck Denn
Mining Corporation v. N.LR.B., 362 F.2d 466,470 (C.A. 9,
1966); N.LR.B. v. Edward P. Tepper d/b/a Shoenberg
Farms, 297 F.2d 280, 284 (C.A. 10, 1961). The question of
Respondent's knowledge must be determined from all the
surrounding circumstances. A. J. Krajewski Manufacturing
Co., Inc. v. N.L.R.B., 413 F.2d 673, 676 (C.A. 1, 1969);
Sterling Aluminum Company v. N.LR.B., 391 F.2d 713, 722
(C.A. 8, 1968); N.L.R.B. v. Melrose Processing Co., 351
F.2d 693, 698 (C.A. 8, 1965).
The timing of an unheralded discharge is itself sufficient
to raise a presumption of knowledge (N.L.R.B. v. Mont-
gomery Ward & Co., 242 F.2d 497, 502 (C.A. 2, 1957), cert.
denied 355 U.S. 829; N.LR.B. v. Mid State Sportwear, Inc.,
412 F.2d 537, 539 (C.A. 5, 1969); N.LR.B. v. Tennessee
Packers, Inc., 390 F.2d 782, 784 (C.A. 6, 1968), particularly
in conjunction with the small size of the facility NLRB. v.
The Pembeck Oil Corporation, 404 F.2d 105, 110 (C.A. 2,
1968), remanded 395 U.S. 828 (1969).
The General Counsel made a prima facie showing of
discrimination when he established that Wynne, a long-
time employee with a virtually unblemished record, was
precipitously discharged, without advance notice or warn-
ing, and contrary to the recommendation of his supervisor,
allegedly for past misconduct which had been condoned.
Upon the General Counsel's prima facie showing, "a very
definite burden is imposed on the employer to prove
existence of a reason, not within the Act's provisions,
sufficient to warrant the discharge." N.L.R.B. v. Okla-Inn,
d/b/a Holiday Inn of Henryetta, 488 F.2d 498 (C.A. 10,
1973); N.LR.B. v. Standard Container Co., 428 F.2d 793,
794 (C.A. 5, 1970). Respondent has totally failed to meet
this burden.
As fully discussed above, I find that Respondent's
professed explanation for Wynne's discharge does not
withstand scrutiny. And Respondent is not saved by the
fact, upon which it relies, that Taylor, who was also
involved in initiating the union campaign was not
discharged. NLRB. v. W. C. Nabors Company, 196 F.2d
276 (C.A. 5, 1952), cert. denied 344 U.S. 865; N.LRB. v.
Puerto Rico Telephone Company, 357 F.2d 919 (C.A. 1,
1966).
Finally, I find Respondent's failure to produce evidence,
particularly its unexplained failure to call Hammonds as a
witness, virtually decisive against Respondent' s position as
to the reason for Wynne's discharge. At virtually every
point in the Wynne saga Hammonds was the sole or
principal actor. There is nothing more than hearsay, at
best, concerning his role in the matter. Particularly in view
of Richard's testimony that Hammonds recommended
against discharging Wynne, it is impossible to escape the
inference that, if called as a witness, Hammonds' testimony
would have been adverse to Respondent's position and
supportive of the allegations of the complaint.
Accordingly, on the entire record, with due consideration
to the evidence presented and to the unexplained absence
of additional relevant and presumably available evidence,
together with careful observation of the demeanor of the
witnesses, I find that Wynne was discriminatorily dis-
charged to discourage membership in the Union, in
contravention of Section 8(aX3) and (1) of the Act.
B. Interrogation
1. The facts
Employee Coring testified that sometime in February or
March, while he was in Richard's office, Richard asked
him how the men felt about the Union and if they were
going to go union. Coring replied that he did not know, but
the men he had talked to were "thinking about going
union." As Coring recalled, Redd then asked if Coring had
made a personal decision, to which Coring replied in the
negative, saying that he wanted to find out more about the
Union. Richard testified that he prefaced his questions to
Coring with the statement that the employee was "under
no obligation to answer in any way, whatsoever, and the
door is open if you want to leave." Richard testified that he
then said he was "concerned about it because I don't
15 There is no evidence as to whether Taylor had also participated.
Howell had not been in Respondent 's employ at that time.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like-we had always worked out our problems before and I
don't feel that a union would really benefit the employees
of the company to the extent that was being said that it
would . And Dust wondered where we had fallen down and
in our communications or whatever, in keeping our lines of
communication open with our employees so that they felt
like they needed to go to a union ." He denied, but
somewhat equivocally , that he had asked how Coring
intended to vote . Redd said that he did ask what
percentage of the employees Conng believed would vote
for the Union but he did not "ask [Coring] particular
names of anything like that ." I credit Coring's testimony.
Coring testified to a second conversation with Richard
sometime in March or April. At that time , using the two-
way radios on the company trucks being driven by the two
men, Richard summoned Coring to the parking lot of a
department store after a softball game played nearby by a
team of Redd employees . According to Coring, this
conversation with Richard was about the same as the
earlier one in Richard 's office. Richard testified that he
said to Conng : "Stan, I'm still real concerned about this
thing . If you have any suggestions to make that would help
me in talking to the fellows or anything , I would appreciate
it, any suggestions you have ." According to Richard,
Conng replied that the recent reduction of the technicians'
routes was the employees' principal complaint . Richard
denied that he asked how Coring or any of the other
individual employees felt about the Union. Again I credit
Coring.
2. Conclusory discussion
The complaint alleges that Richard "during either March
or April, 1973, at its Jackson, Mississippi, office, interro-
gated an employee regarding union activities and his union
sentiments ." Respondent apparently contends that the
second incident, at the department store parking lot,
cannot be found violative of the Act because it was not
specifically alleged in the complaint. However, because the
incident was fully litigated and is of the same general
nature as the conduct specifically alleged, I reject Respon-
dent's contention.
Respondent contends principally that the "interroga-
tion" shown in the record was not violative of the Act
because it was not accompanied by any threats of reprisals
or promises of benefits, was not "part of an intensive and
systematic interrogation," and "did not take place against
the background of employer hostility and discrimination."
Respondent finally maintains that the interrogations were
not unlawful because they "took place in an atmosphere of
marked informality" and Coring was under no compulsion
at any time to answer Mr. Redd's question."
Respondent's argument must be rejected. In the first
place, as heretofore found, Wynne had already been
discharged in the immediate wake of the inception of the
organizing campaign. And, according to his own testimo-
ny, Richard revealed his great "concern" about the union
16 There was testimony concerning a conversation between Taylor and
Richard in which conversation Richard assured Taylor that if the reduction
in the technicians ' routes "was really hurting him, [Respondent] would
activities and at least suggested the possibility that he
would take some action to forestall unionization.1°
The fact is, therefore , that Richard's conversations with
Coring was not "isolated ." Nor can it be said that, in the
circumstances , they were so "informal" as to pass as casual
chats without potential for interfering with the employees'
protected rights . The first discussion was held in the
company offices and the second at an off-premises location
to which Richard had specifically called Coring . See, e.g.,
N.L.R.B. v. Birdsall Construction Company, 487 F.2d 288
(C.A. 5, 1973), and authorities there cited.
Accordingly, on all the evidence , I find that Respondent,
through Richard , unlawfully interrogated employee Coring
concerning union activities and sympathies in contraven-
tion of Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. By discharging Roger Jack Wynne on February 19,
1973, and failing and refusing to reinstate him thereafter,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
2. By coercively interrogating an employee concerning
employees' union activities and sympathies, Respondent
has interfered with, restrained, and coerced employees in
their exercise of rights guaranteed in the Act and has
thereby committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent discriminatorily dis-
charged Roger Jack Wynne in violation of Section 8(aX3)
and (1) of the Act, I shall recommend that it be required to
offer him full and immediate reinstatement with backpay,
to be computed in the manner established in F. W.
Woolworth Co., 90 NLRB 289, together with interest at 6
percent per annum in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716.
Having found that Respondent has engaged in unfair
labor practices in contravention of Section 8(a)(l) and (3)
of the Act, I shall recommend the issuance of a cease-and-
desist order and the imposition of a notice-posting
requirement in accordance with the established and usual
practice in such cases. Although the events involved in this
case occurred only at Respondent's Jackson plant, the
evidence indicates that the union organizing campaign
extends to other locations. Under these circumstances, it
appears advisable that employees at all of Respondent's
plants be given notice of their Section 7 rights in
connection with such campaign. Accordingly, I shall
recommend that the notice-posting requirement embrace
all locations.
Upon the basis of the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
make some provision or would review the situation as it was." Since the
complaint does not allege any violative promises of benefits, I make no
finding as to this incident.
REDD PEST CONTROL COMPANY, INC. 461
ORDER 17
Respondent , Redd Pest Control Company, Incorporat-
ed, its officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their adherence to, or activities on behalf of, UBC,
Southern Council of Industrial Workers, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or
any other labor organization.
(b) Discouraging membership in any labor organization
by discriminatorily discharging any employee or by
discriminating in any other manner in regard to hire and
tenure of employment or any term or condition of
employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
right to self-organization, to form or join labor organiza-
tions, and to engage in any other concerted activity for the
purpose of collective bargaining or other mutual aid and
protection, or to refrain from any or all such activities.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer Roger Jack Wynne immediate and full
reinstatement to his former job, or, if that position is no
longer in existence , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him in the manner set forth in The Remedy section of this
Decision.
(b) 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 and compute the amount of backpay
due under the terms of this Order.
(c) Post at each of its plants copies of the attached notice
marked "Appendix." 18 Copies of said notice, on forms
provided by the Regional Director for Region 15, after
being duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found herein.
17 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 Order herein shall, as provided in Sec
102.48 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.
15 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 all parties had the opportunity to
present their evidence , it has been found that we violated
the law and we have been ordered to post this notice about
what we are committed to do.
The National Labor Relations Act gives all employees
these rights:
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
We assure all of our employees that:
WE WILL NOT discourage membership in UBC,
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization , by dis-
charging any employee or discriminating in any other
manner in regard to hire and tenure of employment or
any term or condition of employment.
WE WILL offer Roger Jack Wynne full reinstatement
and WE WILL compensate him, with interest , for any
loss of earnings suffered by him as a result of our
having discharged him on March 15, 1973.
WE WILL NOT unlawfully question employees con-
cerning their union membership , activities, or sympa-
thies , or concerning any union activities among our
employees.
REDD PEST CONTROL
COMPANY, INCORPORATED
(Employer)
Dated By
(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 directed to the Board's Office, Plaza
Tower, Suite 2700, 1001 Howard Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6361.