Rollins, Inc.

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.