Rollins, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1971

193 N.L.R.B. 159 (N.L.R.B. 1971)

ROLLINS, INC. 159
Rollins, Inc. and Orkin Exterminating Co., Inc., and
National Council Distributive Workers of America.
Cases 10-CA-8694 and 10-CA-8753
this case With respect to Legg's threat to Hopkins, we adopt the Trial
Examiner's finding that this conduct violated Section 8(a)(1) of the Act
Member Fanning would find the interrogations by Legg to be coercive and
violative of Section 8(a)(I)
September 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 16, 1971, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices and recommended that the
allegations pertaining thereto be dismissed. Thereaft-
er, Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision with
briefs in support thereof. Respondent also 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
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings,' conclusions,2 and recommenda-
tions of the Trial Examiner.
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 Trial Examiner and hereby orders that
Respondents, Rollins, Inc., and Orkin Exterminating
Co., Inc., Atlanta, Georgia, their officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
i Respondent has excepted to certain credibility findings made by the
Trial Examiner it is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F.2d 362 (C A 3) We have carefully examined the record and find no
basis for reversing his findings
2 We agree with the Trial Examiner that Supervisor Legg's interrogation
of employees Bryant and Adair was not violative of Section 8(a)(1), but we
do so not because the employees regarded Legg as a fellow employee, but
on the ground that the conduct was not coercive in the circumstances of
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The original charge in
Case I O-CA-8694, was served on Respondents) on Novem-
ber 12, 1970, and that in Case 10-CA-8753 was served on
December 10, 1970.2 A consolidated complaint issued on
February 4, 1971, and the proceeding was heard on March
9 and 10. The issues litigated involved alleged violations of
Section 8(a)(3) and (1). After the hearing briefs were filed
by Respondents and the General Counsel.
Upon the entire record,3 including observation of the
witnesses' demeanor, the following findings and recom-
mendations are made:
1. THE RESPONDENTS-THE SINGLE-EMPLOYER ISSUE
Rollins, Inc., hereinafter called Rollins, is a domestic
corporation with an office and place of business at Atlanta,
Georgia. Orkin Exterminating Co., Inc., hereinafter called
Orkin, is a domestic corporation with an office and place of
business in Atlanta, Georgia, where it is engaged in
providing pest control services to residences and commer-
cial establishments. Annually, Orkin has gross receipts of
$500,000 and receives from out-of-state suppliers more than
$500,000 worth of goods. It was stipulated at the hearing
that Orkin is a wholly-owned subsidiary of Rollins, and that
both corporations are under common control with respect
to all matters, including their labor relations policies. It is
found that both constitute a single employer for jurisdic-
tional purposes and that there is therefore adequate basis
for asserting jurisdiction over both Rollins and Orkin.
The General Counsel would have the Board find, in
addition, that Rollins and Orkin constitute a single
employer for purposes of determining responsibility for any
violations that may be found herein. The record indicates
that at the time of the alleged violations all the employees
and supervisors involved were on the payroll of Orkin,4 and
there is a dearth of evidence that any of the violations
found below were inspired by any member of Rollins'
management.5
Thus, absent a finding of joint liability as a matter of law,
it would be necessary to dismiss as to Rollins. However,
there seems to be ample basis for such a finding here. In
Darlington Manufacturing Co,6 the Board stated the
applicable rule as follows:
It is now well established that for two or more legal
entities to constitute a "single employer" for purposes
' The designation of Respondents appears as ammended at the hearing
2 All dates are in 1970 unless otherwise shown the orders of May 21 and
9 For corrections of the transcript and certain evidentiary rulings, see
the orders of May 21 and June 11, 1971
4 Even Crawford , in whom control of the labor relations of both
corporations was vested , was on the Orkin payroll at the time of the instant
events
5 While it may well be that , by virtue of his performance of services for
Rollins (see preceding fn.), Crawford should be considered a member of its
management , there was insufficient evidence that he instigated any of the
alleged violations herein Moreover, even if it were found that he did, there
would be insufficient basis for inferring that , in so doing , he was acting in
his capacity as an officer of Rollins and not of Orkin
6 139 NLRB 241
193 NLRB No. 28
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of assessing liability for unfair labor practices it must be
shown that there was a sufficient degree of common
ownership and common control of labor relations and
operations so that it may be said they are engaged in a
common enterprise.?
In that case, citing the fact that the majority of the stock
of each of a group of affiliated corporations, including the
three corporate respondents, was owned by the same family
and the high degree of centralization of control over labor
relations policies and over other aspects of the operations of
all the corporations, the Board found that all three
respondents were jointly and severally liable for the
violations committed by one of them.8 Similarly, in
Morrison Cafeteria Consolidated, Inc.,9 a parent corporation
was held jointly and severally liable with its subsidiary for
the latter's unfair labor practices, upon the basis of a
finding that both corporations "constituted a single
integrated enterprise with common officers and directors
who administered a common labor policy." to
Here, as already noted, it was conceded that both
corporations are under the same ownership, that they are
subject to common control, and that such common control
extended to the labor relations policies of both corpora-
tions . The record shows further that Rollins performs
certain technical services for Orkin and that several months
after the instant events the employees here involved,
together with their supervisors, were transferred from the
payroll of Orkin to that of Rollins.
Accordingly, it is found that at all material times Orkin
and Rollins constituted a single employer for the purpose of
assessing liability and they will be hereinafter collectively
referred to as "Respondent.""
II. THE UNION
National Council Distributive Workers of America,
contacted Union agent Elem. Union cards were distributed
and signed. On September 25, Elem wrote Orkin, claiming
that the Union represented a majonty of the production
employees in the duplicating department and requesting
bargaining. In another letter of the same date Elem listed
the names of eight employees who would be "active" on
behalf of the Union, including Shipes, Bryant, and Adair.12
On September 28, Elem visited the plant and, accompanied
by three employees, approached Crawford, who handled
Respondent's labor relations, and requested recognition of
the Union as the representative of the 11 employees then in
the duplicating department. Crawford referred Elem to
legal counsel. On October 16, the Union filed with the
Board a petition for an election among the foregoing
employees, and on November 12 a hearing was held on that
petition. On December 7 the Regional Director ordered an
election, which was held on January 8, 1971. In the
meantime, on November 6, when one of the presses broke
down, Orkin decided to subcontract the work that would
otherwise have been done on that press and informed
Shipes that, because of the retirement of that press, her
services were no longer needed. She has not been replaced.
Bryant had worked since March as an office employee in
the duplicating department. She signed a Union card on
September 17, attended Union meetings, and on November
12 testified for the Union at a hearing before the Board on
the Union's petition. On November 27, she was notified
that herjob was being eliminated and was offered a transfer
to the personnel office, which she accepted. However, on
December 4 she quit.
In the election held on January 8, 1971, the vote was 6 to
3 for the Union, with 5 challenged ballots. Those
challenged were Bryant, Shipes, Proctor, Warren, and
Bishop. At the time of the instant hearing the challenges
were still pending.
herein called the Union , is a labor organization under the B. Discussion
Act.
1. The 8(a)(1) issues
III. THE MERITS
The pleadings raise the following issues:
1. Whether Respondent unlawfully interrogated and
threatened employees and solicited an employee to engage
in surveillance of the Union activities of other employees?
2. Whether Respondent violated Section 8(a)(3) by
discharging Shipes and constructively discharging Bryant?
A. Sequence of Events
The Union's campaign to organize the duplicating
department in Orkin's Atlanta plant was launched in mid-
September when, after ascertaining that a majority of the
employees favored representation by a union, Hopkins
r Id , at p. 255.
8 This finding of joint responsibility was ultimately sustained , 397 F 2d
760 (C A. 4), cert denied 393 U S 1023
9 148 NLRB 139, 177 NLRB No 113, enfd, in part 431 F 2d 254 (C A
8)
io See , also, N L R B v. Concrete Haulers, Inc, 212 F 2d 477, 479 (C A
5); Calcasieu Paper Co, The, 99 NLRB 794, 796-797, enfd 203 F 2d 12
(C A. 5)
ii In any event , whether or not Rollins and Orkin be deemed a single
employer , it would seem that, in view of the wholesale transfer to it on or
Bryant testified that on September 28, when Union agent
Elem visited the plant to request recognition from
Crawford, assistant supervisor Legg asked Bryant if the
employees knew what they were doing, and that she
answered, "Yes, we know." Bryant added that about 3 days
later Legg asked her why the employees had been involved
with a "black union." 13
Hopkins testified that on September 28, when he
accompanied Elem to Crawford's office, Legg asked
Hopkins if he knew what he was doing; and that, when
Hopkins answered that he did, Legg remarked, "Don't you
know it happened before and the whole shop was fired?"
Hopkins added that about once a week thereafter Legg
about January 1, 1971, of the entire duplicating operation , without any
apparent change in the employees' duties or working conditions , Rollins
would be responsible, as a successor of Orkin , for remedying any of its
unfair labor practices Charles R Krimm Lumber Company, 97 NLRB 1574,
enfd 203 F 2d 194 (C A 2) Moreover, the apparent facility with which
personnel may be shifted from one payroll to another demonstrates that
there can be no assurance that any remedial order would be effective,
unless it ran against both corporations
i2 See G C Exh 2, which consists of both the letters of September 25
i3 Elem was black
ROLLINS, INC. 161
would ask him about the progress of the Union campaign;
that about November 15 Legg asked Hopkins if the draft of
the Union's contract proposals had been completed; and
that, when Hopkins answered in the negative, Legg
observed that the employees would not win, and "the
Company would go to any and all extremes to stop" the
Union.
Adair testified that on September 28, after Union agent
Elem's appearance at the plant, Legg asked Adair if he
intended to join the Union, eliciting the answer that he had
already done so. While acknowledging that on the occasion
of Elem's visit to the plant he asked Bryant, Hopkins, and
Adair what was going on, Legg denied putting any other
questions about the Union at that time. He did not dispute
that Adair disclosed on September 28 that he hadjoined the
Union but insisted that such disclosure was voluntary. His
version of the incident with Bryant about 3 days later was
that, being puzzled that the employees would seek the aid of
the instant Union rather than one of the traditional
printers' unions, he asked Bryant, "why this type of union?"
Although admitting that he received reports from time to
time from Hopkins about the progress of the Union
campaign, Legg insisted that these were volunteered by
Hopkins. Legg, moreover, categorically denied uttering any
of the threats ascribed to him by Hopkins. Specifically, with
respect to the incident in November, Legg's version was
that the only discussion of the Union on that occasion was
a remark, volunteered by Hopkins, that Legg was covered
by the Union's proposed contract and that his wage rate
thereunder would be "15 or 17 percent over the highest paid
person in the shop." Hopkins admitted that he had
conversations with Legg, in the course of which Hopkins
stated that Legg was covered by the Union contract and
would receive benefits thereunder, including a wage
increase.
Respondent offers the following defenses with respect to
the charges of interrogations and threats by Legg:
1. He was not a supervisor.
2. His denials of the interrogation and threats imputed
to him should be credited.
3. Even if Legg is found to be a supervisor and the
General Counsel's witnesses are credited as to the alleged
interrogations, no violation should be found on the basis
thereof because of their isolated and insubstantial nature,
coupled with the fact that Legg was admittedly regarded at
the time of such incidents as a member of the bargaining
unit.
Legg's status as a supervisor was litigated in the
representation case, and the Regional Director there found
that he was a supervisor. Although no review of this finding
by the Board was sought, Orkin was entitled to relitigate
that issue here.14 I have, accordingly, reviewed the
testimony at the hearing in the representation case, as well
as such additional testimony as was offered at the instant
hearing.
The record in the representation case shows the
following:
Legg's title was assistant supervisor of the duplicating
department and he had held that position for about a year,
serving under Prickett until the latter part of October and
thereafter under Prickett's successor, Murphy. In addition
to certain manual work, Legg'sjob admittedly consisted of
assigning work, scheduling work to meet deadlines, and
monitoring the flow of work. Legg admittedly had
discretion to select the machine on which a particular job
would be done, based on such considerations as compara-
tive cost of operation as well as the availability of the
machine. He interviewed job applicants and, although
denying that he made any recommendations, conceded that
he commented to his supervisor on the' qualifications of
such applicants. Legg acknowledged that in the discharge
of his duties he orally reprimanded employees and on
"quite a few" occasions threatened to terminate them, and
that he had warned two press operators of suspension. He
insisted, however, that he could only recommend suspen-
sion to the departmental supervisor, and that in most, but
not all, cases the former supervisor, Prickett, had made
independent investigations before acting on any recom-
mendations by Legg for disciplinary action. Legg conceded
that he might make recommendations regarding the
disposition of employee grievances. His salary was about 25
percent higher than that of his highest paid subordinate.
In addition, the record of the instant hearing shows the
following:
When he succeeded Prickett as supervisor of duplicating
late in October, Murphy admittedly was advised of Shipes'
shortcomings by Legg, who recommended her discharge.
She was in fact discharged a few weeks later. Murphy
acknowledged that Legg had made recommendations as to
disciplinary action, and, while asserting that he investigated
all such recommendations, Murphy admitted that he relied
thereon "wholeheartedly" and always followed them.
When asked why, in view of such complete reliance, he
bothered to make any investigation, Murphy answered:
I want to find out more about it. I use his recommenda-
tions and try to find out more in detail.
The best that can be made of the foregoing rather cryptic
explanation is that, in making such investigations, Murphy
proceeded on the assumption that Legg's recommendations
werejustified, the only purpose of the investigation being to
fill in the details as a matter of information. Moreover, the
fact that Legg, as he conceded, had on a number of
occasions warned employees of discharge or suspension
reflects either his own belief that he had the power to
discharge or suspend or his confidence that any recommen-
dation he might make on that score would be approved.
Also, I deem significant in this regard Resp. Exh. 10, which
consists of a series of reports on the operations of the
duplicating department during various weeks between
February 5 and October 1, 1970. These reports, 13 in
number, are addressed to Prickett's superior, Burson, and,
while some are signed by Prickett, most are signed by Legg
himself. One of the latter reports-for the week ending July
9-contains the following:
I found it necessary to make an operator change this
week by switching Jo Shipes to the 360 and Doug
Hopkins to the Heidelberg.
14 See Spruce Up Corporation, 181 N LRB No 108, fn 4, and cases there named Orkin as the employer, Rollins was substituted as the employer
cited It may be noted, moreover, that, while the original election petition during the course of the hearing
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The report then cites Legg's reasons for making the
change.
From all the foregoing circumstances, it is concluded that
Legg had authority to exercise independent judgment with
respect to changes in employee duties and work assign-
ments, and effectively to recommend disciplinary action in
the form of suspension or discharge.15 It is therefore found
that Legg was at all times material a supervisor within the
meaning of the Act.
With regard to the credibility issues raised by his
testimony, Legg, as noted above, admitted discussing the
Union with the General Counsel's witnesses but insisted
that such discussions consisted only of (a) innocuous
queries prompted by curiosity, or (b) voluntary disclosures
by the employees. On the basis of demeanor, I credit Bryant
and Hopkins as to the incidents described by them. As for
Adair, he was a puzzling witness. He was one of the original
group of Union adherents, professing to have been quite
friendly to Shipes, one of the alleged discriminatees herein,
and on December 2 he gave the General Counsel an
affidavit which contained a number of statements damag-
ing to Respondent, including frequent references to
interrogations by Legg. However, at the hearing, admitting
that he had a change of heart about the Union, Adair
insisted that in his affidavit he had overstated or misstated
some of the interrogation by Legg described therein.
Nevertheless, with regard to the interrogation on Septem-
ber 28, described above, Adair repeated at the hearing
substantially the same version as appears in his affidavit. In
view of his current avowed disenchantment with the Union
and in view of his repudiation of other matters in the
affidavit, it seems clear that he had no interest at the
hearing in aiding the Union and no reason to testify falsely
on its behalf. Accordingly, I credit his testimony as to the
September 28 interrogation. 16
However, with respect to all the foregoing interrogation,
there seems to be some force in Respondent's contention
that Legg occupied an ambiguous role. The record shows
that the employees regarded him as a member of the
bargaining unit and as, therefore, having a legitimate
interest in keeping posted on developments with regard to
the Union 17 (and it may well be that he shared their belief
that he was properly in the unit) Under these circum-
stances, it is not clear how his queries can be treated any
differently from similar queries by one employee of
another. Where employee A asks employee B whether he
intends to join a union or whether he knows what he is
doing in opting for union representation, no one would
contend that such questions could have a coercive
tendency. There is no more reason to impute such a
tendency where the questions are put by one who, although
a supervisor, is generally regarded as a fellow employee. In
15 Legg testified that he frequently had recommended Shipes' discharge
to Prickett, but without avail However, it is clear from Murphy's testimony
cited above that, whatever may have been Prickett's practice, Murphy gave
great weight to Legg's recommendations on disciplinary action
16 The complaint also alleges interrogation of Adair by Legg on
December 2 However, the only basis for this allegation appears in a
passage in Adair's affidavit, which passage was repudiated by him at the
hearing As that part of the affidavit does not constitute affirmative
evidence under the foregoing circumstances, dismissal of that allegation
will be recommended
17 This is attested not only by the Union's inclusion of Legg in the
both cases, it would be normal to ascribe questions such as
Legg asked here to legitimate curiosity rather than to prying
by management 18 or a desire to ferret out Union adherents
for the purpose of reprisals.19
However, the threats ascribed to Legg by Hopkins stand
on a different footing. Even though he regarded Legg as in
the unit, Hopkins could not have failed to realize that by
virtue of Legg' s role in transmitting management's
directions to employees he was in a better position than an
ordinary employee to learn about management policies and
more likely to enjoy its confidence, and Hopkins, therefore,
had good reason to believe that Legg knew whereof he
spoke, when, on September 28, he attributed past
discharges to employee union activity and when, in
November, he warned of the futility of the Union campaign
and of management's determination to go to any extreme to
stop the Union. Thus, unlike his interrogation, the
foregoing remarks by Legg may not be equated with a mere
discussion between fellow employees of matters of common
concern, but constituted rather warnings about manage-
ment's attitude to the Union by one who, although looked
upon as a fellow employee, was apparently in a position to
know the truth of the matter. Such warnings would
necessarily tend to chill Union activity, all the more so
because they came from an apparently friendly source,20
and, having been delivered by one who was in fact a
supervisor, Respondent is chargeable with the foregoing
remarks as a violation of Section 8(a)(1).
The complaint, as amended, also alleges unlawful
interrogation by Burson on or about November 30. Adair
testified that sometime after the representation hearing of
November 12 Burson asked him if he had joined the Union,
eliciting an affirmative answer, and Adair acknowledged to
be true a passage in his pretrial affidavit concerning this
incident, in which he declared that during the week after
the November 12 hearing he was summoned to Burson's
office and asked by him what he thought about the Union
and whether he had any complaints about the "union
situation." Although Burson denied any such interrogation,
I credit Adair for reasons already noted, and it is found that
the foregoing interrogation was unlawful.
The General Counsel relies, further, on a statement in
Adair's pretrial affidavit that during the week of November
23 he was again summoned to Burson 's office, where, after
expressing strong hostility to the Union campaign, he asked
if Adair had "any new information concerning the shop",
eliciting the reply that the employees were disturbed by the
recent addition of two new employees to the duplicating
department. At the hearing, Adair, in effect, finally adopted
this portion of his affidavit,21 and the General Counsel
would have the inference drawn from the context of
Burson's solicitation of "new information concerning the
coverage of its proposed contract, but also by the high degree of candor
exhibited by the employees in discussing Union matters with him
18 This would be particularly true in the case of Legg's inquiry of
Bryant as to why the employees had picked the instant Union . On its face
this was a request for enlightenment about the qualifications of the Union
rather than an attempt to ascertain the extent of involvement with the
Union of Bryant or any of the other employees.
19 William B Patton Towing Co, 180 NLRB No 16
20 Gifford-Hill & Co., Inc, 188 NLRB No. 45.
21 Although initially professing to have no recollection on the point,
ROLLINS, INC. 163
shop" that he was asking for a report on current employee
Union activity.22 However, the fact that Adair, according
to his affidavit, replied to Burson's inquiry only with a
report on the employees' reaction to the recent additions to
the work force would seem to militate against any such
inference and to support instead the view that Burson's
alleged inquiry reflected an interest, not specifically in
Union activity, but in the state of employee sentiment or
morale in general, and was so understood by Adair.
Accordingly, although the matter is not free from doubt, no
violation is found on the basis of the latter incident.
The amended complaint further alleges that on or about
November 30 Burson solicited an employee to engage in
surveillance of employee Union activities. Here, the
General Counsel again relies on Adair's affidavit finally
adopted by him in that respect at the hearing,23 in which he
related that after the foregoing discussion of the two new
additions to the work force the following occurred:
He asked me to keep him posted on any new
developments and that the gun was not pointed at me
and that my future at Rollins was bright.
At the hearing Adair professed to be unable to recall
anything about Burson's foregoing alleged request for
reports on new developments, and Burson denied making
any such request. While the total failure of Adair's
recollection on the point is suspicious,24 in view of the
ambiguity of the affidavit and the absence of any
affirmative evidence in the record that Burson was referring
to new developments in the Union campaign rather than to
any changes in Adair's personal situation25 or some other
innocuous matter, the evidence does not appear to
preponderate in favor of a violation finding. Accordingly,
dismissal of the instant allegation will be recommended.
2. The 8(a)(3) issues
(a) Shipes
Shipes had worked for Orkin since February 1968 as a
press operator. In September, with Hopkins, she took the
lead in sounding out employee sentiment about obtaining
Union representation, signed a Union card along with the
majority of the other employees, and was one of the three
employees who accompanied Union agent Elem when he
approached Crawford to request recognition. Thereafter,
she solicited employees to attend weekly Union meetings.
Late in October, or early in November, Hopkins notified
Legg that Shipes would be one of three employees who
Adair finally acknowledged that, except for certain specified areas where
he was guilty of overstatements , all statements in the affidavit were true
22 At the hearing Adair offered no clarification of the matter and
Burson denied making any such inquiry
23 See In 21, above
24 It developed at the hearing that, although not mentioned in the
affidavit , Adair had notified Burson on the occasion under consideration
that he was considering leaving Respondent 's employ to accept another
job However , when it was suggested to him by the Examiner that Burson
might have been referring to future developments in that area, Adair
persisted in his denial of any recollection
25 See preceding In
26 As a matter of fact, in the election held on January 8, 1971, while the
vote was 6 to 3 for the Union, the final result depended on the resolution
of challenges to the ballots of the 5 employees involved in those personnel
actions
would attend the representation hearing on November 12.
On November 6, she was notified by Murphy, who hadjust
taken over as supervisor of the duplicating department, that
due to the retirement of one of the presses, the Heidelberg,
it was necessary to eliminate one of the press operators and
that she had been selected because she had the lowest
production. Thereafter, the work formerly performed on
the Heidelberg was contracted out and Shipes has not been
replaced.
The General Counsel conceded at the hearing that
Orkin's decision to retire the Heidelberg on November 6
was economically motivated. He contends only that the
selection of Shipes for layoff was for discriminatory
reasons, pointing to certain evidence in the record from
which it might be inferred that the elimination of Shipes
from the bargaining unit was part of a plan to whittle away
the Union's majority in the duplicating department. This
evidence consists of (a) the fact that during the month
before the issuance of the Board's direction of election in
the representation case Orkin engaged in a series of
personnel actions, consisting of the discharge of Shipes, the
transfer of Bryant out of the unit, and the transfer into the
unit of Proctor, Warren, and Bishop, and (b) the
circumstance that, according to Adair's affidavit, on
December 2 he was told by Legg that as a result of the
foregoing personnel actions the Union no longer had a
majority.26
However, Respondent introduced records of the relative
output of Shipes, Hopkins, and Jolley on the same presses
during 1970, which records show Shipes to be by far the
lowest producer of the three on those presses,27 and she
candidly admitted that she had the lowest production in the
shop.28 Nor was there any contradiction of Legg's
testimony that he had frequently reprimanded her and
recommended her discharge. Moreover, at the time of her
discharge Orkin had been put on notice by Union agent
Elem that all the press operators were Union adherents 29
Accordingly, it having been conceded that there was a valid
reason on November 6 for eliminating one of the press
operators, Orkin could not have done so without reducing
the Union's majority, no matter whom it selected. Thus,
management was in the position of having to choose among
the Union adherents, and it chose one who, while among
the more active Unionists, was also admittedly the lowest
producer. If the General Counsel's position is sound, it was
incumbent upon management to choose a less active
Unionist, even though he was a better worker than Shipes 30
27 Resp Exh 9
28 She contended only that she had to do a great deal of the more
difficult multicolor and close registration work However, she admitted that
Hopkins also did a good deal of that work, and there was no contradiction
of testimony by Legg that she did no more of that type of work than
Hopkins or Jolley
The General Counsel cites, inter alga, the fact that early in 1969, when
she was considering leaving Respondent , Shipes was given a substantial
increase in salary to induce her to stay However, whatever may have been
Respondent 's regard for her ability at that time , that circumstance cannot
overcome the abundant , virtually uncontradicted evidence as to her
shortcomings during 1970 , up to the time of her discharge.
29 See G C. Exh. 2.
30 The only other alternative would have been to terminate Hopkins,
who was even more active on behalf of the Union than Shipes, and who,
according to Respondent , was retained because he was a better producer.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, this would be discrimination in reverse. The Act
does not permit such a result.
It is accordingly found that there is no preponderance of
evidence that Shipes was selected for layoff because of her
Union activity.
(b) Bryant
Bryant was hired on March 26 as an office employee in
the duplicating department, her duties there being primarily
those of a clerk and a typist. In addition, when not
otherwise occupied, Bryant did some bindery work,
consisting of collating, jogging, and cutting, and she helped
develop negatives in the dark room. When Murphy took
over as supervisor about November 1, he brought with him
Proctor, who had been his secretary for about 16 months in
another department.31 At the hearing, Murphy assumed
responsibility for the decision to transfer Bryant, explaining
that there was not enough work in the office to keep both
Proctor and Bryant fully occupied and that he preferred to
retain Proctor because he was more familiar with the
calibre of her work. Murphy added that he reached this
decision about November 17 and promptly took the matter
up with Crawford and Bryant. The former confirmed that
Murphy about that date reported that he wished to
combine Proctor's job with Bryant's and transfer her to
another department. Crawford added that there were two
jobs then available for that purpose, one as receptionist in
the personnel department and the other as secretary to a
department head. He acknowledged that the former job
was more confining and the work more repetitive than was
true of Bryant's old job, and that the secretarialjob offered
to Bryant also involved work of a repetitive nature.
Bryant's version was that she first learned about the
proposed transfer in the morning of November 27, when
Murphy notified her of the elimination of her job and the
availability of the other two positions; that Murphy insisted
that she reach a prompt decision; that on November 30 she
chose the personneljob; that her newjob was less satisfying
than the old one because she was required to sit at a desk all
day doing nothing but clerical work, whereas on her old job
she worked part of the time on collating and other
production operations; and that it was basically for this
reason that she quit Respondent's employ on December 4.
Here, as in the case of Shipes, the General Counsel
contends that the transfer of Bryant out of the duplicating
department unit was part of Respondent's plan for
gerrymandering the unit in anticipation of a Board election
on the Union's pending petition. In support of this theory,
the General Counsel cites the following circumstances:
(1) The fact that Bryant was a known union adherent.
(2) The fact that on the very day that Bryant transferred
to personnel two part-time employees were brought into the
duplicating department to perform bindery work such as
Bryant had been doing.
(3) Legg's aforedescribed discussion with Adair on
December 2 of various personnel actions, including
Bryant's transfer and the discharge of Shipes, which,
according to Legg, made it impossible for the Union to win
an election.
As to (1) above, it is not disputed that Bryant's name
appeared on the list of Union adherents submitted by the
Union to Orkin on September 25 and that she testified as a
witness for the Union at the representation hearing on
November 12.
With regard to (2) above, the record shows that on
November 30 Orkin assigned two of its field exterminators
to bindery work on a part-time basis. According to Burson,
he initiated the foregoing assignment late in November,
when, after learning that Adair was thinking of quitting,
Burson decided to train Moscoso, the only full-time
bindery employee, as a replacement for Adair on his press,
and to find someone who could relieve Moscoso on a part-
time basis while he was undergoing such training. Burson
added that he called Crawford for assistance in the matter.
Crawford confirmed this, adding that he located Bishop
and Warren, who were already employed by Orkin as pest
control operators, and arranged for them to divide their
time between their regular work and the bindery operation.
When asked why Bryant could not have been assigned on a
full-time basis to the bindery work, with which she was
already familiar, Crawford explained that there was not
enough work in the bindery to keep her occupied full-time;
and Respondent's records show that from November 30,
1970, to March 6, 1971, Warren and Bishop together
generally devoted substantially less than 40 hours a week to
the bindery work.32 There was, moreover, no contradiction
of Murphy's testimony that the bindery work did not
require any special skill or training.
As for Legg's remarks to Adair, they were not on their
face an admission that management had taken various
personnel actions in order to defeat the Union, but merely
an evaluation of the impact of such actions on the Union's
prospects. While it may seem suspicious that such actions
were taken during the pendency of the Union's petition, it
has already been found that there was a valid economic
reason for terminating Shipes and there was no evidence
offered in rebuttal of the reasons assigned by Respondent
at the hearing for the other actions. Thus, there was no
contradiction of the evidence adduced by Respondent that
Bryant was transferred because there was no full-time job
for her in the duplicating department. In fact, Bryant's own
testimony bears this out, since she admitted that even
before the advent of Proctor there was not enough work in
the office itself to keep Bryant fully employed and that she
occupied her spare time by helping with the bindery work
on a more or less voluntary basis. Clearly, upon the arrival
of Proctor there was even less for Bryant to do in the office.
Accordingly, there is no reason to doubt that, as
Respondent contends, Murphy was required to choose
between Bryant or Proctor in the office, and the reason
given by Murphy for preferring Proctor, who had worked
for him for 16 months, is a plausible one. Respondent's
failure to assign Bryant to the bindery is, moreover,
adequately explained by the fact that there was no full-time
31 This was the media department, where Murphy had been employed Proctor's duties in that department
as a buyer Resp. Exh. 4 apparently purports to be a description of 32 The average was about 25 hours
ROLLINS, INC.
job for her there, whereas there was in the personnel
department.33
Accordingly, I find no preponderance of evidence that
Bryant was transferred out of the unit for discriminatory
reasons. Absent such a finding, it cannot be held that her
subsequent quit was an unlawful constructive discharge.34
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(5) of the Act and is engaged in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. National Council Distributive Workers of America is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating employees about their
Union sentiments or activities, and by threatening reprisals
for Union activity, Respondent has violated Section 8(a)(1)
of the Act.
4. No discrimination has been proved with respect to
Shipes and Bryant.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended: 35
ORDER
Respondents Rollins, Inc., and Orkin Exterminating Co.,
Inc., Atlanta, Georgia, their officers, agents, successors,
and assigns , shall jointly and severally:
1. Cease and desist from:
(a) Coercively interrogating employees about their union
sentiments.
(b) Threatening discharge or other reprisals for union
activity.
(c) In any like or related manner interfering with,
restraining , or coercing their employees in the exercise of
their right to self-organization, to form, join, or assist
National Council Distributive Workers of America, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at their premises in Atlanta, Georgia, copies of
the attached notice marked "Appendix." 36 Copies of said
notice, on forms to be provided by the Regional Director
for Region 10, shall, after being duly signed by their
representatives, be posted by Respondents immediately
upon receipt thereof, and maintained by them for a period
of at least 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
them to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 10, in
165
writing, within 20 days from the date of receipt of this
Order, what steps they have taken to comply herewith.37
IT IS FURTHER ORDERED that all allegations not sustained
herein be, and they hereby are, dismissed.
33 In his brief , the General Counsel asserts that , if management had
been concerned about reducing costs as it professed to be, it could have
assigned Bryant to the bindery work instead of two "higher salaried"
employees However, while the record shows that Warren and Bishop were
paid $450 a month, there was no evidence as to Bryant 's salary. It follows
that there is no basis for determining that it would have been cheaper to
employ her full time in the bindery work than to employ them there for an
aggregate of about 25 hours a week.
(It may be that any extra bindery work could have been handled by one
part-time man rather than two, and that the reason for bringing in two was
to "stack" the unit against the Union However, the reason for bringing in
two rather than one was not adequately litigated , and, even if it were found
that the reason was to get an additional vote against the Union, that
circumstances would still not establish that there was a full-time
production job in the duplicating department to which Bryant could have
been assigned.)
34 In view of the foregoing disposition of the matter, it is not necessary
to reach the question whether the differences between Bryant 's old and
new jobs were such as to warrant a finding of constructive discharge See J
W Mays, Inc., 147 NLRB 942.
35 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and recommended Order herein
shall, as provided in Section 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
36 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."
37 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 10, in writing , within 20 days
from the date of this Order , what steps they have taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge employees or to
take any other action against our employees because of
their union activity.
WE WILL NOT ask you how you feel about a union or
whether you have signed a union card.
WE WILL NOT in any like or related manner interfere
with the rights of our employees to engage in self-
organization, to form, join, or help National Council
Distributive Workers of America or any other union, to
bargain collectively through a representative of their
own choosing, to act together for collective bargaining
or other mutual aid or protection, and to refrain from
any or all these things.
ROLLINS, INC.
(Employer)
Dated By
(Representative ) (Title)
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORKIN EXTERMINATING CO., This notice must remain posted for 60 consecutive days
INC. from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Any questions concerning this notice or compliance with
Dated By its provisions, may be directed to the Board's Office, Room
(Representative ) (Title) 701, Peachtree Building, 730 Peachtree Street, Atlanta,
This is an official notice and must not be defaced by
Georgia 30308 , Telephone 404-526-5760.
anyone.