Redd Pest Control Co., Inc.

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.