Orkin Exterminating Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orkin Exterminating Co., Inc. and Tony G. Allen. Case 10-CA-17560 30 April 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 17 March 1983 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 Contrary to the judge, our dissenting colleague would dismiss the instant complaint because, in his opinion, Supervisor Tony Allen was not unlawfully constructively discharged, but instead quit his em- ployment "prematurely." A reading of the credited testimony reveals our colleague to be in error in his conclusion. Allen told Branch Manager Joe Jones he (Allen) had spoken with the National Labor Relations Board, and that he wanted to testify on behalf of an employee who had previously been discharged by the Respondent. Shortly thereafter, Jones told Allen that he had spoken "to his people," and "the word . . . is that management will not testify, and you will not testify for anybody as long as you're employed by [the Respondent]." As incisively noted by the judge, Jones had previously told Allen that the employee Allen would testify for had been discharged for union activity, and also that Jones hated unions.3 In these circumstances, we think that any reasonable person hearing the words spoken by Jones would logically believe that his tenure would be terminated if he chose to give testimony to the Board. As did the judge, we conclude that Jones gave an ultimatum to Allen I The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We have modified the judge's recommended Order so that it con- forms to the violation found herein. We have also modified the notice to conform to the Order. 3 Jones also had earlier indicated to Allen that Allen's credibility as a sales manager had been ruined, and that he would probably be "hurt down the road" because of his union activities. 270 NLRB No. 75 that Allen could not testify to the Board if he re- mained employed by the Respondent.4 When Allen decided that he would testify to this Agency, the Respondent left Allen no choice but to resign. Ac- cordingly, we find in agreement with the judge that the Respondent constructively discharged Allen in violation of the Act.5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Orkin Exterminating Co., Inc., Gaines- ville, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph l(a). "(a) Interfering with, restraining, or coercing nonsupervisory employees in the exercise of their statutory rights by discharging supervisory person- nel for giving testimony before the National Labor Relations Board, or for expressing their intention to do so." 2. Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, dissenting. Assuming, arguendo, that a constructive dis- charge of a supervisor under circumstances similar to those of the instant case might properly be found violative of the National Labor Relations Act, I would not find that the Respondent con- structively discharged its supervisor Tony Allen in violation of the Act. Rather, I conclude that Allen's resignation cannot be attributed to any un- lawful action by the Respondent, and thus that Allen's resignation was a voluntary, albeit prema- ture, act which was not a constructive discharge. The Respondent indicated to Allen that it did not want any members of its management to testify to the National Labor Relations Board. Instead of testifying to the Board, or further challenging the Respondent about its intentions, Allen chose abruptly to resign. It is evident that the Respond- ent did not change the content of Allen's job nor 4 Cf Martin Arsham Sewing Co., 244 NLRB 918 (1979). 5 Inasmuch as the Respondent's conduct independently violated Sec. 8(a)(I) of the Act, we find it unnecessary to consider whether the Re- spondent's conduct also violated Sec. 8(a)(4). See Better Monkey Grip Co., 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (5th Cir. 1957); Oil City Brass Works, 147 NLRB 627 (1964), enfd. 357 F.2d 466 (5th Cir. 1966); H. H. Robertson Co., 263 NLRB 1344 (1982). In agreeing with the judge's con- clusions, we find it unnecessary to rely on his comment that, even if Allen did not mention precisely that he intended to testify before the Board, such knowledge could be imputed to the Respondent. We also do not rely on his further implication that, even if Jones' testimony were credited, there might be a violation of the Act. Member Dennis concurs in the finding of a violation based on the par- ticular facts presented here. 404 ORKIN EXTERMINATING CO. did it inflict physical or emotional distress on him. Indeed, the Respondent took no affirmative action to deprive Allen of any rights that he may have previously enjoyed. Allen was therefore never placed in any jeopardy of job loss or threatened with more onerous working conditions by the Re- spondent. Thus, there were no immediate threats which justified Allen's precipitous response to the Respondent's admonition. Rather, he simply re- signed prematurely in anticipation that something might happen to him. I find that such a resignation does not amount to a constructive discharge and, accordingly, I would dismiss the complaint alleging that the Respondent constructively discharged him. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interfere with, restrain, or coerce nonsupervisory employees in the exercise of their statutory rights by discharging supervisory person- nel for testifying before the National Labor Rela- tions Board, or for expressing their intention to do so. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL reinstate Tony G. Allen to his former position at the time of his discharge, or to a sub- stantially equivalent position if his former position no longer exists, and WE WILL remove from his personnel records all reference to his discharge and send him a notice in writing thereof that this termi- nation will not be used against him in any way. WE WILL make whole Tony G. Allen for any loss of earnings or other benefits sustained by him by reason of our discharge of him with interest on moneys due. ORKIN EXTERMINATING Co., INC. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on August 18 and Sep- tember 24, 1982, at Gainesville, Georgia, pursuant to a complaint issued by the Acting Regional Director on December 2, 1981, and is based on a charge filed on Oc- tober 21, 1981, by Tony G. Allen, an individual. This case had previously been consolidated with Case 10- CA-17523. However, pursuant to a settlement agree- ment, I granted a motion to sever Case 10-CA-17523 from Case 10-CA-17560 at the hearing on August 18, 1982. The remaining complaint in Case 10-CA-17560 al- leges that Orkin Exterminating Co., Inc. (the Respond- ent) constructively discharged Tony G. Allen, a supervi- sor, "because of his intention to seek the assistance of the National Labor Relations Board," and thereby violated Section 8(a)(4) and (1) of the National Labor Relations Act (the Act). The Respondent, by its answer filed on December 7, 1981, has denied having violated the Act. On the entire record in this case, including my obser- vations of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for General Counsel and the Respondent, I make the following FINDINGS OF FACT AND ANALYSIS' I. JURISDICTION A. The Business of the Respondent The complaint alleges, the Respondent admitted in its answer, and I find that "the Respondent is, and has been at all times material herein, a Georgia corporation with an office and place of business located at Gainesville, Georgia, where it is engaged in providing pest and ter- mite control services to residential and commercial cus- tomers," that the "Respondent, during the past calendar year [prior to the filing of the complaint], which period is representative of all times material herein, purchased and received at its Gainesville, Georgia, facility material and supplies valued in excess of $50,000 directly from suppliers located outside the State of Georgia," and that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization It was stipulated by the parties at the hearing and I find that the Georgia State Council of Carpenters (the Union) is a labor organization within the meaning of Sec- tion 2(5) of the Act. I The following includes a composite of the testmrion) of the witnesses, which testimony is credited except as specific credihilit) resolutiotns are hereinafter made 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICE In September 1981, an organization campaign was commenced by the Union among the Respondent's em- ployees. Tony G. Allen, the Charging Party herein, was then employed as a sales manager by the Respondent at its Gainesville branch office. He had been initially em- ployed by the Respondent in August 1976 as a sale man- ager. Allen had the responsibility for working with sales- men and training new salesmen. 2 Allen testified that he became aware of the Union's campaign in September 1981, and that he signed a union authorization card and attended a union meeting which was attended by certain of the Respondent's salesmen (all but one of the salesmen who reported to Allen), including salesman Charles Bowen and union representative Jones (Ernest Joseph Jones). 3 Allen testified he attended a meeting about 5 p.m. with Branch Manager Jones and District Manager Berlin at which Berlin announced to Allen that salesman Charles Bowen would be discharged. When Allen inquired as to the reason for Bowen's discharge, Berlin referred to an incident a month prior thereto at which Regional Vice President Wilson had attended a sales meeting and had directed an inquiry to Bowen to which Bowen had re- torted with a vulgar remark, and said that Bowen was to be terminated for this reason as it was feared Bowen would act similarly with customers. Allen protested that he had worked with Bowen "on many occasions" and that Bowen had never been involved in any difficulties with customers. Berlin said Allen "couldn't sell him on keeping Charles [Bowen] on board." Allen was then in- structed by Berlin and Jones to call Bowen into the office, and Bowen was then terminated by Berlin.4 Allen testified further that on the same day following Bowen's discharge he was present during a conversation between Joe Gable (the Respondent's service manager) and Branch Manager Jones wherein Gable inquired of Jones, "What about the rest of those cards?" and Jones replied, "What cards?" Gable then said, "The Union au- thorization cards that Charles [Bowen] had said 70 or 80 percent of the people had signed." Allen testified Jones then replied, "I don't know what they're going to do about it yet," and then asked Allen, "If I knew anything about the Union," to which Allen replied, "No." Allen testified Jones then pulled out of his pocket a "piece of literature of the things that an employer can't do to dis- criminate against employees for engaging in union activi- ties," and Jones then said, "This is the reason Charles [Bowen] was fired, is because he was trying to organize a Union." Allen testified he then told Jones that he (Allen) had signed a union card and Jones told him that he (Jones) could not talk to Allen "about it anymore." 2 The parties stipulated at the hearing and I find that Allen, the Re- spondent's Gainesville branch manager Joe Jones, and the Respondent's north Georgia district manager John Berlin were all supervisors as de- fined in Sec. 2(11) of the Act. 3 Union representative Jones testified at the hearing as did Branch Manager Jones. Union representative Jones was employed as an organiz- er for the Union and conducted the Union's campaign to organize the Respondent's employees. 4 Bowen was discharged on October 6, 1981. Allen testified the following day he was told by Branch Manager Jones that he could not straddle the fence concerning the Union, that his credibility as a sales manager had probably been ruined, and that "[i]t would probably hurt me down the road." He testified that Jones also told him he hated unions, and he (Jones) was going to eliminate the "gas bonus program." Allen testified that the following day he telephoned union representative Jones from his home and repeated what Branch Manager Jones had told him, and that union representative Jones warned him to be careful as he was not certain whether Allen would be protected under the law. Union representative Jones recommended Allen call the National Labor Relations Board. Allen tes- tified that he called the Board and talked with a lady, and that he told her of the circumstances of the dis- charge of Bowen and that "I wanted to voluntarily come out and testify on behalf of Charles Bowen and the Na- tional Labor Relations Board." Allen testified further that the next morning he met with Branch Manager Jones in the Gainesville office and told Jones that he had talked with representatives of the National Labor Relations Board and that he wanted to testify on behalf of Bowen, and Jones replied he did not know "whether I could testify to the National Labor Re- lations Board." Allen testified Jones questioned him "about the union authorization cards, where they came from, how were they to be returned, if I had signed one, and I told him no again; and he wanted to know if Jim Hames was involved and I told him I really didn't know." Allen testified Jones also "said they had made an example of Charles Bowen by his firing because of the union activities." Allen then left to go to Lanier Petrole- um to buy gas and, when he arrived, there was a tele- phone call waiting for him from Branch Manager Jones, who told him to wait there as he needed to talk to Allen. When Jones arrived, he told Allen, "He had talked to his people, and the word from his people is that manage- ment will not testify, and you will not testify for any- body as long as you're employed by Orkin." Allen asked the reason for this and Jones told him, "That's all he knew to tell me." Allen started to leave in his automo- bile, but then returned to the service station and told Jones "[t]hat he could tell his people that I would testify to the National Labor Relations Board, and that I was resigning my position if they wouldn't allow me to testi- fy." Two days later, Allen returned to the Respondent's premises and saw Berlin and Branch Manager Jones and asked to be returned to work, but Jones refused to do so and said there was "no way" that Allen would be reem- ployed. The Respondent's counsel questioned Allen on cross- examination. Allen was unable to identify the lady he had spoken with at the National Labor Relations Board or to place the time of day when he placed the telephone call. Allen had obtained the Board office telephone number from union representative Jones. Union representative Jones testified he initiated the Union's campaign among the Respondent's employees in September 1981. Jones testified he was informed by Allen that Allen intended to testify on behalf of Bowen, 406 ORKIN EXTERMINATING CO. and he (Jones) told Allen that he (Jones) could offer Allen no protection and that Allen "would have to con- tact the Board to see what protection was available to him." Jones testified he gave Allen the number of a board agent with whom he (Jones) had previously dis- cussed another matter involving the Union's campaign. Bowen testified that he and eight other employees were involved in the union organization campaign among the Respondent's employees and corroborated Allen's testimony concerning what occurred at the meet- ing attended by Branch Manager Jones, Allen, and Bowen at which he (Bowen) was terminated by Berlin assertedly for comments he had made in a previous meet- ing on September 1, 1981, to the Respondent's vice presi- dent. Bowen testified he met the following day with Jones (union representative) at Allen's home and dis- cussed the filing of a charge with the Board. The Respondent called Branch Manager Joe W. Jones as a witness on its behalf. Jones testified that he initially became aware of the union campaign on October 5 or 6 1981, when he was informed of the union campaign by District Manager Berlin. Jones testified he was involved in a conversation with Service Manager Joe Gable and Allen on the day following the Respondent's termination of Bowen, and that in this conversation Gable told him (Jones) that Bowen had made a statement to Gable in the presence of Allen and told Gable that he was the only employee who had not signed a union card. Jones testi- fied he "turned then and looked directly at Tony (Allen]," but did not say anything to Allen at that time. Jones testified Allen "nervously rocked back and forth and said 'yeah, I knew about it."' Jones told Allen, "Tony, you're in management, and then Tony said I can get it stopped." Jones acknowledged having seen the union pamphlet entitled "35 Things Your Employer Cannot Do" (G.C. Exh. 2), which he testified he had been shown by the Respondent's Athens, Georgia branch manager "on the morning of the sixth [October]." Jones testified Allen had "quit" on October 9, 1981, by an- nouncing his resignation to Jones on the parking lot of Lanier Petroleum. Jones acknowledged that a meeting had taken place between himself and Allen earlier that morning at Allen's request at which "Tony told me that he was contacted by the Union, and they had asked him to make a statement." After this conversation, Jones (branch manager) "immediately called my district man- ager [John Berlin]," and told Berlin "[t]hat Tony had talked to me and advised me of that and also Tony had told me that he would not make a statement." Berlin told Jones "he'd get back with me," and did so within 5 min- utes and asked Jones "[i]f I would get in touch with him [Allen] as soon as possible and tell him that he is in man- agement, and management don't make statements to unions." Jones then called the service station and re- quested that Allen wait until he (Jones) arrived. Jones ar- rived at the service station and told Allen that Berlin had advised him to tell Allen "that management does not make statements to unions." Jones testified Allen asked the reason for this and he (Jones) replied "that's all I was told to tell you and that's all I would say." Allen then left but returned to the service station shortly thereafter, and told Jones, "I'm going to the office and turn my stuff in and I will make a statement." Jones then "went on to town to run some errands," and when he returned to the Respondent's office Allen had taken "his stuff out of the company car and was waiting for his wife to pick him up." Jones contended that Allen had not made any reference to the National Labor Relations Board in either of the two conversations on October 9. He also denied he was aware of the existence of any charge having been filed against the Respondent with the Board on October 9. Jones denied having told Allen that he (Allen) would be terminated if he gave a statement to the Union, having told Allen that Bowen had been ter- minated for engaging in union activities, or having made a statement to Allen about eliminating the salesmen's gas bonus. On cross-examination, Jones denied having told Allen that he hated unions, or that Allen had ruined his credibility as a sales manager as a result of his involve- ment with the Union. Analysis The General Counsel contends in his brief that Allen was given a Hobson's choice of not testifying on behalf of Bowen before the National Labor Relations Board or being terminated, and that Allen then resigned in order to testify before the Board concerning Bowen's termina- tion, and the resignation, accordingly, constituted a con- structive discharge of Allen by the Respondent because of his intention to give testimony to an agent of the Na- tional Labor Relations Board. The Respondent contends that Allen's resignation was voluntary and did not result from threats or "intolerable pressure" by the Respond- ent, and further contends that Allen's statements to com- pany officials indicated that he intended to give a state- ment to the Union not the Board, and thus, even if the resignation were found to be a constructive discharge, no violation could be found since Section 8(a)(4) does not require an employer to permit its supervisors to assist labor organizations. I have reviewed the testimony of Allen and Branch Manager Jones concerning the circumstances leading up to and culminating in Allen's resignation on October 9, 1981. I credit Allen's version of the conversation be- tween Service Manager Gable and Branch Manager Jones wherein, Allen testified, Jones stated that Bowen had been discharged for attempting to organize a union. I further credit Allen's version of the meeting betwen Branch Manger Jones and Allen the following day wherein Jones told him that he could not straddle the fence concerning the Union, and that his credibility had probably been ruined as a sales manager and it (his union activities) would probably hurt him down the road. I further credit Allen's testimony that Jones told him that he hated unions, and that he (Jones) was going to elimi- nate the gas bonus program. I also credit Allen's version of the events of October 9 rather than the version of Branch Manager Jones. Initially, I credit Allen that he told Branch Manager Jones that he would testify con- cerning the termination of Bowen rather than that he would give a statement to the Union as testified to by Branch Manager Jones. 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Initially, Jones did not deny that these conversations took place, but rather his testimony tendered to down- play, and in part deny, statements attributed to him by Allen in these conversations. Thus, he denied he told Allen that Bowen was discharged because of his union activity or that he (Jones) hated unions. He also testified Allen told him he was going to give a statement to the Union. If Jones' version as to what he said to Allen con- cerning Bowen's discharge were to be credited, there ap- pears to have been little of substance about which Allen would have been able to give a statement to the Union concerning Bowen's discharge. If on the morning of Oc- tober 9 Allen had told Jones (as Jones contends) that he (Allen) had decided not to give a statement to the Union, I find it unlikely that Jones would have called Berlin im- mediately to inform him that Allen had decided not to testify, and that he (Jones) would have (after talking to Berlin) urgently called the service station to detain Allen until Jones arrived in order to tell Allen that manage- ment representatives do not give statements to unions. I also credit Allen's version that he informed Jones he would testify before the NLRB concerning the discharge of Bowen rather than Jones' version that Allen informed him only that he had been contacted by the Union and would not give a statement to the Union. There was no collective-bargaining agreement in existence and thus no established grievance procedure. It is apparent that the discharge of Bowen for allegedly engaging in union ac- tivities would be a matter for consideration by the Na- tional Labor Relations Board. I further credit the testi- mony of union representative Jones, who testified that he gave Allen the name of a Board agent to discuss whether he (Allen) would be protected in the event he testified. This testimony is consistent with Allen's testimony that he apprised Branch Manager Jones that he intended to testify before the Board as opposed to Branch Manager Jones' version that Allen had only mentioned having been contacted by the Union to give a statement. I do not find Allen's inability to place the date of his conver- sation with the Board agent to require that his testimony that he did so be discredited. Further, I do not find Allen's affidavit inconsistent with his references to giving testimony to the Board in his October 9 meetings with Jones. The affidavit refers to giving testimony (R. Exh. 1). I find that knowledge that Allen intended to testify before the National Labor Relations Board can be in- ferred to the Respondent from the credited testimony of Allen, even assuming that Allen specifically had not uti- lized the phraseology "testify to the National Labor Re- lations Board" in his conversation with Branch Manager Jones. I find, as contended by the Respondent, that Allen embellished his testimony on cross-examination when he testified concerning his conversation with Branch Man- ager Jones at the service station that Jones had informed him "and if I wanted to testify, I could just virtually look for me something else to do." However, Allen im- mediately conceded when questioned by the Respond- ent's counsel that Jones had not used those exact words but rather had told Allen that neither Allen nor "any other supervisor would testify as long as they were em- ployed with Orkin Exterminating." My review of Allen's testimony convinces me that this embellishment was one of emphasis and phraseology as to the import of Jones' statement rather than a specific misrepresentation of the truth, and I do not find this embellishment by Allen in his testimony to require that his testimony be rejected in this proceeding. Section 8(a)(4) of the Act provides that it is an unfair labor practice for an employer "to discharge or other- wise discriminate against an employee because he has filed charges or given testimony under this Act." As the General Counsel contends in his brief, the Board held in General Services, 229 NLRB 940 (1977), enf. denied 575 F.2d 298 (5th Cir. 1978), that the protection of Section 8(a)(4) is not limited to employees but also includes su- pervisors.5 The Board stated in General Services at 941: In sum, the Board and the courts have recog- nized that if the Board is to perform its statutory function of remedying unfair labor practices its pro- cedures must be kept open to individuals who wish to initiate unfair labor practice proceedings, and protection must be accorded to individuals who participate in such proceedings. The Board further cited NLRB v. Scrivener, 405 U.S. 117, 124 (1972): The approach to § 8(a)(4) generally has been a lib- eral one in order fully to effectuate the section's re- medial purpose. See also Hi-Craft Clothing Co., 251 NLRB 1310 (1980), enf. denied 660 F.2d 910 (3d Cir. 1981), also cited by the General Counsel, wherein the Board held (concerning a supervisor and his bonus dispute) at footnote 2 that "an employer must refrain from discriminating against an in- dividual for indicating an intent to go to the Board since it is the Board's function, and not the employer's, to decide whether the individual is covered by the Act and his claim has merit." I find that, under the circumstances of this case, the ul- timatum given to Allen by Jones at the service station on October 9, 1981, was clear. He could not testify and remain employed by the Respondent. In the face of the discharge of Bowen on October 6, 1981 (3 days prior thereto), and the statements by Branch Manager Jones to Allen that Bowen had been discharged for engaging in union activities, as well as Jones' dislike of unions and his hurried discussion with District Manager Berlin followed by his immediate followup encounter with Allen at the service station, it is clear that the ultimatum given to Allen was that, if he testified concerning the discharge of Bowen, he would be discharged. Under these circum- stances, I find that the choice was manifestly clear to Allen and constituted a threat to Allen that if he testified he would be discharged. See Daniel Construction Co., 244 NLRB 704 fn. 2 (1979). It is also noteworthy that Jones made no attempt to dissuade Allen from resigning nor did he inquire as to the reason for Allen's resignation. Accordingly, I find that Allen was constructively dis- charged by the Respondent because of his expressed in- ' Citing General Nutrition Center. 221 NLRB 850 (1975) 408 ORKIN EXTERMINATING CO. tention to testify before the National Labor Relations Board concerning the discharge of Bowen, and that the Respondent thereby violated Section 8(a)(4) and (1) of the Act. General Services, supra; General Nutrition Center, supra; and Hi-Craft Clothing Co., supra. Moreover, as- suming Jones' version of the meetings between himself and Allen on October 9, 1981 (that Allen had discussed giving a statement to the Union), were to be credited, compare Greenbrier Valley Hospital, 265 NLRB 1056 (1982), wherein the Board stated at 1057: Recently, in Parker-Robb Chevrolet, Inc.,6 the Board rearticulated certain circumstances in which the discharge of a supervisor may violate the Act, including, e.g., giving testimony adverse to an em- ployer's interest, either at an NLRB proceeding, or during the processing of an employee's grievance under a collective-bargaining agreement; or refusing to commit unfair labor practices. In such circum- stances, the protection afforded supervisors stems not from any statutory protection afforded supervi- sors, but rather from the need to vindicate the exer- cise by statutory employees of their Section 7 rights. I find that the General Counsel has established by the preponderance of the evidence a prima facie case that Allen was constructively discharged by the Respondent because of his announced intention to give testimony before the National Labor Relations Board. I find that the Respondent has failed to rebut this prima facie case. Accordingly, I find that the Respondent violated Section 8(a)(4) and (1) of the Act by its constructive discharge of Allen on October 9, 1981. III. THE EFFECT OF THE UNFAIR LABOR PRACTICE The unfair labor practice of the Respondent as found in section II in connection with the Respondent's oper- ations as found in section I has a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States, and tends to lead to disputes burdening and obstructing the flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Orkin Exterminating Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Georgia State Council of Carpenters is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The General Counsel has established a prima facie case of a violation of Section 8(a)(4) and (1) of the Act by the discharge of Tony G. Allen because of his inten- tion to testify before the National Labor Relations Board. The Respondent has failed to rebut the prima facie case, and I find that the Respondent violated Sec- tion 8(a)(4) and (1) of the Act by its discharge of Tony G. Allen. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 6 262 NLRB 402 (1982). THE REMEDY Having found that the Respondent violated Section 8(a)(4) and (1) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative action deemed necessary to effectuate the purposes and policies of the Act, including the posting of the appropri- ate notice. Having found that the Respondent discharged Tony G. Allen in violation of Section 8(a)(4) and (1) of the Act, it shall be recommended that the Respondent offer him immediate reinstatement and make him whole for any loss of earnings and benefits he may have sustained by reason of the unlawful discharge. It is also recom- mended that the Respondent expunge from its files any reference to the discharge of Allen and notify him in writing thereof. All loss of earnings and benefits incurred by Allen as a result of the Respondent's acts, as set out above, shall be computed with interest in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).7 On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended8 ORDER The Respondent, Orkin Exterminating Co., Inc., Gainsville, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees for giving testimony before the National Labor Relations Board or for ex- pressing their intention to do so. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act. (a) Offer Tony G. Allen immediate and full reinstate- ment to his former position at the time of his discharge or, if this position no longer exists, to a substantially equivalent position, without prejudice to any rights or privileges previously enjoyed. (b) Expunge from its files any reference to the termi- nation of Tony G. Allen and notify him in writing of this and that his termination will not be used as a basis for future personnel actions concerning him. (c) Make Tony G. Allen whole for any loss of earn- ings or other benefits he may have sustained by reason of the discrimination against him in the manner set forth in the section of this decision entitled "The Remedy." (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 7 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essary to analyze the amount of backpay due under the terms of this recommended Order. (e) Sign and post copies of the attached notice marked "Appendix,"9 immediately on receipt in conspicuous i If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." places at its facilities in Gainsville, Georgia, to which its employees report. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or cov- ered by any other mateiral. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed with respect to all allegations of violations not specifically found herein. 410