A. J. Librera Disposal Service, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 829 (N.L.R.B. 1980)

A. J. LIBRERA DISPOSAL SERVICE, INC.
A. J. Librera Disposal Cartage and Trucking, Inc.
d/b/a A. J. Librera Disposal Service, Inc. and
Danny W. Bennett
Metro Disposal Service, Inc. and Danny W. Bennett.
Cases 30-CA-5090 and 30-CA-5131
February 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 21, 1979, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent A. J.
Librera Disposal Cartage and Trucking, Inc. d/b/a
A. J. Librera Disposal Service, Inc., filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his 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 recommended
Order of the Administrative Law Judge and hereby
orders that Respondent A. J. Librera Disposal Cart-
age and Trucking, Inc. d/b/a A. J. Librera Disposal
Service, Inc., Milwaukee, Wisconsin, and Respondent
Metro Disposal Service, Inc., Milwaukee, Wisconsin,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached Appendixes A and B
are substituted for those of the Administrative Law
Judge.
' In the absence of exceptions thereto, we affirm the rulings, findings, and
conclusions of the Administrative Law Judge and adopt his recommended
Order in regard to Respondent Metro Disposal Service. Inc.. proforma.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an
opportunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this
notice. We intend to abide by the following:
WE WILL NOT discharge employees because
they have engaged in a strike or in other
concerted protected activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations Act. These rights
include the right to engage in self-organization; to
form, join, or assist any labor organization; to
bargain collectively through representatives of
their own choosing; and to engaged in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or
to refrain from the exercise of any or all such
activity.
WE WILL make whole Danny W. Bennett and
Leon Lopetkiewicz for any loss of pay or benefits
which they have suffered up to February 28,
1979, by reason of their unlawful discharge, with
interest.
A. J. LIBRERA DISPOSAL CARTAGE AND
TRUCKING, INC. D/B/A A. . LIBRERA
DISPOSAL SERVICE, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an
opportunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this
notice. We intend to abide by the following:
WE WILL NOT refuse to hire applicants for
employment because they have engaged in strike
activity or because they have demonstrated sym-
pathy with individuals who have engaged in
strike activity.
247 NLRB No. 118
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILt. NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act. These rights
include the right to engage in self-organization; to
form, join, or assist any labor organization; to
bargain collectively through representatives of
their own choosing; and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or
to refrain from the exercise of any or all such
activity.
WE WILL offer Danny W. Bennett, Leon
Lopetkiewicz and Thomas R. Wetzel, Jr., imme-
diate employment in positions similar to the ones
which they held with A. J. Librera Disposal
Service, Inc., and WE WILL make them whole for
any loss of pay suffered by them by reason of our
failure to hire them, with interest.
METRO DISPOSAl. SERVICE, INC.
DECISION
FINDINGS OF FACT
I. STATEMENT OF THE CASE
WALTER H. MALONEY, Jr., Administrative Law Judge:
This case came on for hearing before me in Milwaukee,
Wisconsin, upon a consolidated unfair labor practice com-
plaint,' issued by the Regional Director for Region 30 and
later amended,' which alleges that both Respondents were
joint employers and that they violated Section 8(a)(1) of the
National Labor Relations Act, as amended. More particular-
ly, the consolidated complaint alleges that Respondents
discharged Librera employees Danny W. Bennett, Leon
Lopetkiewicz, and Fred Rushing because they had engaged
in a strike to protest alleged shortages in their paychecks and
that Respondent Metro thereafter refused to hire Bennett,
Lopetkiewicz, and Wetzel either because they had struck
Librera or had sympathized with Librera strikers. Respon-
dents deny that they were or are joint employers. They claim
that the individuals named in the consolidated complaint
were laid off on February 20, 1979, for lack of work and that
I The principal docket entries herein are as follows:
Charge in Case 30-CA-5090 filed by Danny W. Bennett. an individual.
against Respondent A. J. Librera Disposal Cartage and Trucking, Inc. (herein
sometimes called Librera) on February 21. 1979;: charge in Case 30-CA- 131
filed by Bennett against Respondent Metro Disposal Service. Inc. (herein
sometimes called Metro). on March 16, 1979; consolidated complaint issued
against both Respondents by Regional Director for Region 30, on April 27.
1979: answer filed by Respondent Librera on May 7. 1979; answer filed by
Respondent Metro on June 6. 1979; amendment to consolidated complaint
issued by Acting Director, Region 30. on July 13. 1979; answer to
Amendment to consolidated complaint filed on July 25, 1979; hearing held in
Milwaukee, wisconsin, on August 1, 1979.
: Respondents, and each o them, admit. and I find, that Respondent
Librera is a Wisconsin corporation which maintained its principal place of
business in Glendale, Wisconsin, where it was engaged in the business of
providing refuse disposal services in the metropolitan Milwaukee area.
Respondent Metro is a Wisconsin corporation which maintains its principal
on February 28, 1979, Librera discontinued its business by
selling its assets to Metro. They also assert that the three
individuals whom Metro declined to hire after it took over
the Librera trash collection routes were not hired either
because they did not apply for work or for reasons of
unsuitability and inability to perform the work. Upon these
contentions the issues herein were drawn.
II. THE UNFAIR LABOR PRACTICES ALIEGED
Librera is small family-owned and operated business
which was founded in 1946 by A. J. Librera.' Late in
February 1979, when the events in this case took place,
Librera operated trash collection routes in the northern
portion of Milwaukee County. It had approximately 585
customers and employed 5 drivers. The parties agree that
one of the drivers, Thomas R. Wetzel, Jr., was a foreman,
although the work performed by Wetzel was about the same
as the duties of the other drivers.
In the summer of 1978, to head off an organizing drive by
Teamsters Local 200, Librera entered into a written con-
tract, signed by Bennett and former driver Robert Burbey,
which covered certain terms and conditions of employment
of its drivers. Under one provision of the contract, Librera
was obligated to pay a "snow bonus," namely, a premium of
$10 per day whenever the snow was deep enough to require
street plowing by public authorities.
In January 1979, Librera entered into negotiations for the
sale of the business to Respondent Metro, a much larger
trash removal concern which operated in the southwestern
section of Milwaukee County. Negotiations were conducted
on behalf of Metro by its president and sole stockholder,
Peter Vanderveld. Coincidentally, these negotiations came to
a head just at the time Librera employees got into a dispute
with their employer over Librera's alleged failure to make
certain "snow" bonus payments and its alleged failure to pay
Bennett the full amount he felt was due and owing for week's
work.
In the late afternoon of Friday, February 16, Bennett
returned to the Librera garage, parked his truck, and
received his paycheck. After examining the check, Bennett
felt he had been shorted by about $40 and that his helper had
also been shorted. He ran over to see A. J., who was just
about to drive away, and voiced a complaint. A. J. simply
said that he had to leave and drove off. Thereafter, Bennett
complained bitterly about his check to driver Fred Rushing,
place of business at Franklin, Wisconsin, where it is engaged in providing
refuse disposal services in the metropolitan Milwaukee area. During the past
calendar year both Metro and Librera individually derived in excess of
$50.000 from services performed within the State of Wisconsin for customers
who purchased directly from points and places outside the State of Wisconsin
goods and services valued in excess of $50.000. Accordingly. Metro and
Librera are, respectively, employers engaged in commerce within the meaning
of Sec. 2(2). (6), and (7) of the Act.
' The president of the Librera corporation is A. J. Librera. husband of
Carmela Librera and father of Thomas Librera. Carmela Librera is the
secretary of the corporation and performed clerical chores in the company
office. Thomas Librera is vice president and was the principal operating
manager of the business. For convenience, where any of the Libreras are
referred to individually in this Decision, I will use their first names or initials.
They were generally addressed by employees in this manner and are so
described in the record.
830
A. J. LIBRERA DISPOSAL SERVICE, INC.
who had also just received a check. Rushing also felt that he
had been shorted by not receiving a "snow bonus."
After commiserating with each other for a while they
decided to call the Librera home to talk with A. J Rushing
placed the call and reached Tom. He asked to speak with A.
J., but the latter had not yet arrived home. Rushing
complained to Tom that his paycheck and Bennett's pay-
check were short. Tom told Rushing that he would have to
take up the complaint with A. J. While the two were talking,
Bennett was shouting into the phone loud and obscene terms
to the effect that he was tired of being shorted and being
given the runaround, and that, if the matter were not settled,
the men would not show up for work on Monday. Rushing
did not repeat this latter threat. It is not certain whether
Tom heard Bennett over the phone. In any event, Tom
assured Rushing that the matter would be straightened out
on Monday.
Shortly thereafter A. . returned to the garage. Rushing
and Bennett complained directly to him. A. J. told him that
they would have to take up their complaint with Tom.
Bennett argued with him, saying it was A. J. and not Tom
who had made out the checks. A. J. irritated Bennett was
telling him that he had not worked all the hours for which
Bennett was claiming credit. At this point, the phone rang
and Bennett answered it. The call was placed by Tom, who
asked to speak with his father. Bennett took advantage of the
opportunity by shouting into the phone more complaints
about his check and Rushing's check. Tom told Bennett that
the matter would be straightened out on Monday. When
Tom asked again to speak with his father, Bennett told him
that A. J. had left.
Shortly thereafter, both of the Libreras came into the
garage. Tom went directly into the bathroom and Bennett
started hollering at him while he was detained in that
location. When Tom emerged, he told Bennett that he was
very busy and was on his way to his sister's birthday party
but that he would straighten out Bennett's complaint on
Monday. 1 credit the corroborated statement of Bennett that
there "might not be a Monday." Tom testified that he did
not hear Bennett make that remark but he had a clear
recollection of everything else that Bennett was shouting at
him.
In fact, Tom and A. J. were not going to a birthday party
but were having dinner with Vanderveld and Vanderveld's
lawyer to discuss the sale of the assets and goodwill of the
Librera company to Metro. The parties came to a tentative
agreement concerning the sale of the routes and the goodwill
of the firm, and both had an oral understanding that the
trucks would be submitted to various individuals for
appraisal and sold for a value derived from the appraisals.
Over the weekend, Bennett tried unsuccessfully on several
occasions to reach the Libreras to discuss the question of
shortages in checks. While rumors of a sale of the firm had
arisen from time to time, neither Bennett nor any of the
other drivers had any knowledge over that weekend that a
sale was imminent, nor were they aware that Metro was
dickering to buy the Company.
' In fact. Bennett had been off for about 2 months with a back injury. He
was eligible for workmen's compensation but had not received any weekly
benefits as of February 19. He had returned to work the previous week at the
On Monday morning, Bennett, Wetzel, Lopetkiewicz, and
Rushing did not report for work, By common agreement
they met at a cafe to discuss their situation. Only one driver,
James Jenders, actually reported for work. None of the four
absentee drivers went near the garage throughout the day
and none of them contacted any of the Libreras until about 5
p.m.
As the day wore on, Tom became quite upset by the
failure of the drivers to report and his inability to service his
customers. He attempted to contact drivers without success.
About 11:30 a.m. Tom called Vanderveld and told him what
had happened. He asked Vanderveld if Metro could lend
him some drivers to man his routes. At first Vanderveld
declined and asked if Metro could lend him some drivers.
Eventually, Vanderveld was able to pull about three of his
men from other duties and dispatch them to the Librera
garage, from whence they began to drive Librera trucks on
the Librera trash collection routes.
During one of several phone conversations between them
on February 19, Vanderveld told Tom that he was surprised
about what had happened, inasmuch as the Libreras had
previously assured him that they had competent and reliable
employees. He reminded Tom that the sale of the business
had not been firmed up and insisted upon a $30,000
reduction in the purchase price. Tom agreed.
About 5 p.m., the four absent drivers began to call the
garage at 15-minute intervals to report that they had been or
were sick. About this same time, Vanderveld arrived at the
Librera garage and was told that the absent drivers had just
called in sick. He expressed irritation and disbelief at this
excuse and told Tom categorically that he did not want to
hire any Librera drivers when Metro took over because of
the "stunt" they had just pulled. He also told Tom that he
had the choice of firing his drivers that night or facing them
in the morning. Tom then contacted the absentee drivers by
phone and fired them. In the case of Lopetkiewicz, his
neighbor, Wetzel, relayed the message. When Tom spoke
with Bennett he stated the conversation by complaining that
the men had not come in, to which Bennett replied that he
was sick and that his back was bothering him.' Bennett
offered to come in the following morning but Tom told him
not to do so, saying that the business was being sold. Bennett
then asked whether he was supposed to go to work for the
new owner. Tom replied that the buyer would not want
employees who had pulled what the four Librera drivers had
just pulled, adding that Bennett had not called in sick until 5
p.m. and that no one was dumb enough to believe a sick
report which was not made until the end of a workday.
Bennett pleaded with Librera to be taken on by the Metro
company but Librera simply replied that Metro did not want
anyone who had done what Bennett had done. Bennett then
told Tom that he would come to the garage the following
day to pick up a termination slip.
By the time Tom had called Rushing, Rushing had
already received a telephone message from Wetzel to the
effect that the four absentee drivers had been fired. Tom
complained to Rushing that none of the drivers except Jim
Jenders had showed up for work and that he had to get
urging and insistence of Tom. who had promised to pay him partly in cash in
order not to establish a work record which would interfere with the payment
of compensation benefits.
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers from another source to take their place. He told
Rushing that he was fired but that he could check with
Terry Miller, the general manager of Metro, if he was
interested in going to work for Metro. Tom informed
Rushing that Miller would be at the Librera garage at 6 a.m.
the following morning.
When Tom called Wetzel, he told him that it was very
obvious that everyone took sick at the same time and then
informed Wetzel that he was fired. Wetzel offered to report
for work the following day but Librera declined the offer,
saying that Metro drivers would be running the routes. He
did instruct Wetzel to bring back the walkie-talkie radio that
had been issued to him.
On the following morning, Rushing came to the garage at
6 a.m. and asked Miller for a job. Miller hired him
immediately and put him to work driving a truck. Rushing
continued to drive until March 15 when he was fired.
Bennett, Lopetkiewicz, and Wetzel showed up in the middle
of the morning and asked Tom for their jobs. Tom said that
the matter was now out of his hands and informed them
that, if they wanted to go to work for Metro, they would
have to go to the Metro office, which is located at the other
end of Milwaukee County, and apply personally to Metro.
Tom told them that he would have talked with them about
the shortages in their paychecks if they had only come to
work on Monday. Bennett said that Tom knew what they
were doing right from the beginning. Tom said he could
have straightened out the matter but implied that now it was
too late. He also said he felt sorry for them because Metro
did not want them as employees. Bennett asked him why
they should drive 35 miles to the Metro office to make an
futile application. Tom replied that maybe they would hire
them. He gave out termination slips which said that the
employees in question were "fired" for lack of work.
For the next 8 days, Librera operated the business in name
only. It collected the customer service charges and used its
trucks, trash cans, and dumpsters. However, the routes were
driven by Metro employees acting under Metro supervision.
Metro then billed Librera for the labor costs incident to this
arrangement. Metro used the services of Rushing and
Librera driver James Jenders, who was permanently hired,
and used 4 or 5 other employees to make up the balance of
the labor force which serviced the Librera routes. I credit the
uncontradicted testimony of Rushing that Metro hired new
employees to drive Librera routes during this period of time.
On March 1, Metro formally took over the Librera business
pursuant to written agreements which provided for the
purchase by Metro of Librera equipment, its goodwill and
customer lists, and personal covenants by A. J., Tom, and
Carmela that they would not engage in the trash removal
business in Milwaukee and adjacent counties for a period of
5 years. Metro then began to merge the former Librera
routes with some of its own. The Librera corporation still
exists with a changed name, but A. J. and Tom now confine
their activities to hauling from construction and excavation
sites as they are contractually barred from the trash hauling
business.
· Even after listening to the entire testimony found in this record Tom still
said that at no time did he ever know that his employees were on strike and
that he never learned or surmised to the day to the hearing herein why his
employees were on strike.
On February 20, Bennett, Lopetkiewicz, and Wetzel drove
together to the Metro office for the purpose of filing job
applications. Bennett did not in fact file an application but
waited in the office while Lopetkiewicz and Wetzel filled out
forms and were interviewed by Miller. Wetzel was acquaint-
ed with Linda Dostal, the receptionist at the Metro office, by
virtue of the fact that both of them had previously been
employed by another trash collection company.
During the course of Wetzel's interview with Miller,
Miller asked Wetzel what the drivers had "pulled" at
Librera. Wetzel replied that Tom was a snake and that he
never lived up to the contract he made with the drivers after
they had voted to reject the Teamsters. Miller explained to
Wetzel that Metro was going to try to merge the Librera
routes with its own routes. He also stated that they had hired
some men on a trial basis and were going to see how they
would work out. He asked Wetzel about his own work
experience. In the course of this discussion, it came out that
Wetzel and Miller had both worked for the same company
where Dostel had formerly worked. Wetzel told Miller he
had been fired by that company. When Wetzel left, Miller
told him in effect that Metro had no openings and suggested
that he call back later. Wetzel did call Miller a few weeks
later but was informed that there were still no openings.
Thereafter Wetzel never called back and was never contact-
ed by Metro.
Lopetkiewicz was also interviewed by Miller. In the
course of the interview, he told Miller that he had a broken
rib. Miller told Lopetkiewicz that Metro would contact him
in a couple of weeks when he was able to work. However,
Metro never called and Lopetkiewicz was never hired.
On February 22, Bennett went to the Librera garage and,
upon advice of his attorney, presented Tom with a handwrit-
ten note, signed by the drivers who were not working, in
which they made an unconditional application for employ-
ment. Tom told him on that occasion that the matter was
out of his hands because Metro was supplying all of his
drivers.
II. ANALYSIS AND CONCIUSIONS
While Tom may have professed ignorance of what was
happening' on February 19, it is indisputable that, on that
day four of his drivers were engaged in a strike to protest the
wages that they were being paid (or not being paid) by
Librera. Striking for such a purpose is the most fundamental
of rights protected by Sections 7 and 13 of the Act. To
discharge an employee, for engaging in such protected
concerted activity is a classic example of a violation of
Section 8(a)(1) of the Act. It is quite immaterial that the
discharges come about because the work of striking employ-
ees is contracted out to another employer. Certain gloss
upon the statute indicates that the General Counsel must
shoulder the burden of establishing that Respondents knew
that the drivers were engaged in a strike prior to the time it
discharged them in order to establish a violation. Diagnostic
Center Hospital Corp. of Texas, 228 NLRB 1215 (1977);
' In his amendment to the complaint. the General Counsel deleted an
allegation that Wetzel was discharged in violation of Sec. 8(a)(1) of the Act
because Wetzel was alleged to be a supervisor.
832
A. J. LIBRERA DISPOSAL SERVICE, INC.
Enamel Products and Plating Company, 236 NLRB 1611
(1978). The burden is an easy one in this case.
On Friday, February 16, Bennett, speaking on behalf of
himself and other employees, literally shouted his complaint
about being short changed into Tom's ear. Tom replied by
saying that he was busy but the matter would be adjusted on
Monday. I credit Bennett's corroborated testimony that he
told Tom that "there might not be a Monday," a phrase
which could indicate nothing other than the possibility of a
strike if the complaint was not satisfactorily resolved. When
Monday came, four of Librera's five drivers were nowhere to
be found. These facts alone should have demonstrated to the
most obtuse observer that Librera's disgruntled employees
were acting in concert and that the source of their unhap-
piness was alleged shortages in their paychecks. Vanderveld
had no doubt that the "sickout" was a strike. He character-
ized it as a "stunt" and insisted that Tom fire the offending
strikers immediately. Tom made essentially the same state-
ments to Bennett that Vanderveld had made to him when he
phoned Bennett to tell Bennett that he was fired. His
comments on the following morning to the three drivers who
came to the garage to get their termination slips also
indicated an acute awareness that they were acting in
concert and that they were protesting shortages in their
checks. Accordingly, I conclude that Tom was well aware
that his employees had been engaged in concerted protected
activity when he fired them and that he did so upon the
insistence of Vanderveld, whose leverage as a prospective
purchaser far outweighed any pressure which could be
applied by his employees. It is equally pointless for Metro to
contend that it did not know that the four drivers were
striking Librera. It was Metro who supplied replacements
for striking Librera employers. It was Vanderveld who told
Tom that their sick excuse was phony, and it was Vander-
veld's general manager who discussed the strike with Wetzel
at an employment interview.
On the same evening that Tom fired the four strikers,
Vanderveld not only insisted that Tom do so but also told
him pointblank that they would not be hired by Metro
because of the "stunt" they had pulled. Vanderveld did hire
nonstriker Jenders and relented with respect to Rushing, but
it appears from the record that Rushing was gone from the
Metro payroll within 3 weeks of his initial employment.
Having made up his mind that the "instigators," as
Vanderveld termed them, would not be hired, anything
which occurred thereafter in the guise or character of
employment interviews was purely a charade. Bennett
recognized the interviews to be such and refused to partici-
pate. He accompanied his coworkers to the Metro office just
for the ride. The Act does not require that he perform the
futile act of filing an application which is destined for
rejection in order to retain or perfect his standing as a
discriminatee. Accordingly, I conclude that, when Metro
refused to hire Bennett and Lopetkiewicz because they had
engaged in concerted protected activities, and when it
refused to hire Wetzel because he sympathized employees
The parties agree that Wetzel was a supervisor for Librera. Accordingly.
his discharge by Librera was not alleged in the amended complaint to be a
violation. However. Wetzel applied to Metro for a nonsupervisory position. he
stood vis-a-vis Metro as any other job applicant whose right to engage in
who were engaging in concerted protected activities, Metro
violated Section 8(a)(1) of the Act.'
The General Counsel alleges that Librera and Metro were
joint employers and that each should be held vicariously
responsible for the unfair labor practices of the other. As will
be seen hereinafter in the remedy section, it is not necessary
to address this issue in order to provide a full remedy to the
discriminatees, and I decline to do so.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent A. J. Librera Disposal Cartage and
Trucking, Inc. d/b/a A. J. Librera Disposal Service, Inc.,
and Metro Disposal Service, Inc., and each of them, are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discharging Danny W. Bennett, Leon Lopetkiewicz,
and Fred Rushing because they engaged in protected
concerted activities, the Respondent, A. J. Librera Disposal
Cartage and Trucking, Inc. d/b/a A. J. Librera Disposal
Service, Inc., violated Section 8(a)(1) of the Act.
3. By refusing to hire Danny W. Bennett and Leon
Lopetkiewicz because they had engaged in protected con-
certed activities, and by refusing to hire Thomas W. Wetzel
because he had sympathized with employees who engaged in
protected concerted activities, Respondent Metro Disposal
Service, Inc., violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on interstate commerce,
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I will recommend that they be
ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. Because the unfair labor practices found
herein demonstrate a general disregard by both Respondents
of the fundamental statutory rights of employees, I will
recommend to the Board so-called broad 8(a)(1) orders
designed to suppress any and all violations of that section of
the Act. Hickmott Foods, Inc.. 242 NLRB 1357 (1979).
Respondent Librera quit the trash hauling business on
February 28, 1979, and is prevented by contract from
engaging in such business for a period of 5 years. According-
ly, it would be pointless to recommend an order requiring
reinstatement of employees by this firm. Metro took over the
business on March 1, 1979, and there is ample evidence that
jobs were available as of February 20, when Wetzel and
Lopetkiewicz filed their applications. Accordingly, I will
recommend that Metro be required to offer immediate
employment to Bennett, Lopetkiewicz, and Wetzel.
protected concerted activities is protected by the Act. It is clear that
Vanderveld lumped Wetzel with the other striking Librera drivers when he
labeled them as "instigators" and that his reason for not hiring Wetzel was the
same as his reason for not hiring Bennett and Lopetkiewicz.
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to backpay, Librera went out of business for
nondiscriminatory reasons on February 28. Accordingly, its
backpay liability should terminate on that date' and Metro's
backpay liability should commence on March I, when its
full responsibility for the operation of the Librera trash
collection routes began. With respect to Wetzel, who would
lose a week's pay under the strict application of this
rationale, I will recommend that his backpay period com-
mence running on February 21, when the discrimination
against him by Metro effectively began. The amounts for
which the respective Respondents are liable in order to make
these employees whole for loss of pay or benefits which they
have suffered should be computed in accordance with the
Woolworth formula," with interest thereon at the adjusted
prime rate used by the U.S. Internal Revenue Service for tax
payments. Florida Steel Corporation, 231 NLRB 651 (1977);
Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). 1 will
also recommend that Respondents be required to post a
notice informing their employees of their rights and of the
remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER"'
A. Respondent A. J. Librera Disposal Cartage and
Trucking, Inc. d/b/a A. J. Librera Disposal Service, Inc.,
Milwaukee, Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because they have engaged in a strike.
(b) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Make whole Danny W. Bennett and Leon Lopetkiew-
icz for any loss of pay or benefits suffered by them by reason
of the unfair labor practice found herein, in the manner
described above in the section entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
and other records necessary to analyze the amounts of
backpay due under the terms of this order.
(c) Post at Respondent Librera's garage and office in
Glendale, Wisconsin, copies of the attached notice marked
As Rushing suffered no interruption in his employment other than the day
he was on strike. it does not appear that any backpay is due and owing to him.
'F W Woolwnrth Company. 90 NLRB 289 (1950).
'" 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.
"Appendix A."" Copies of said notice, on forms provided by
the Regional Director for Region 30, after being duly signed
by a representative of Respondent Librera, shall be posted
immediately upon receipt thereof, and shall be maintained
by Respondent Librera 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 Librera to insure that said notices are
not altered, defaced, or covered over by any other material.
(d) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
B. Respondent Metro Disposal Service, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to employ applicants for employment be-
cause they have engaged in a strike or because they have
sympathized with employees who have engaged in a strike.
(b) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer immediately to Danny W. Bennett, Leon
Lopetkiewicz, and Thomas R. Wetzel, Jr., positions similar
to the ones which they held with Respondent Librera and
make them whole for any loss of pay suffered by them by
reason of the unfair labor practices found herein, in the
manner described above in the section entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
and other records necessary to analyze the amounts of
backpay due under the terms of this Order.
(c) Post at its Franklin, Wisconsin, office copies of the
attached notice marked "Appendix B."' Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by a representative of
Respondent Metro, shall be posted immediately upon receipt
thereof and shall be maintained by Respondent Metro 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 Metro to
insure that said notices are not altered, defaced, or covered
over by any other material.
(d) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of this Order, what steps
Respondent Metro has taken to comply herewith.
" In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
' See fn. II, supra.
834