AAA Disposal Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1978

237 N.L.R.B. 391 (N.L.R.B. 1978)

AAA DISPOSAL SYSTEMS, INC
AAA Disposal Systems, Inc. and General Chauffeurs,
Helpers and Salesdrivers Local Union No. 325, affi-
liated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 38 CA-3271
August 10, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MtURPHY. AND TRt ESDAI.F
On MaN 30. 1978, Administrative Law Judge John
C. Miller issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(hb) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conculsions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, AAA
Disposal Systems, Inc.. Roscoe, Illinois, its officers.
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the
Act."
2. Substitute the following for paragraph 2(b):
"(b) Notify the Regional Director for Region 38.
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with."
Respondent has excepted to certain credibilits findings made bs the
Administrative Law Judge It is the Board's established porlic nfot I oser-
rule an Administrative lIaw Judge's resolutions with respect to) credibilits
unless the clear preponderance of all of the relesant evidence convinces us
that the resolutions are incorrect. Siandard DI)i Hill Pr,dlcr In. . 91
NLRB 544 (1950)., enfd. 188 F 2d 3i2 ( A 3. 1951) WVe have carefiull
examined the record and find no basis for resersing his findings
The Administrative liaw Judge inadvertentls ormited from his recim-
mended Order a provision requiring Respondent to cease and desist from
"in ant like or related manner" Infringing upon emplosee rights guaranteed
In Sec 7 of the A.ct Accordingl\. we shall modify his recommended Order
DECISION
SSATEMFNI OF THE CASE
JOHN C MIL. R. Administrative Law Judge: This case
was heard in Rockford. Illinois. on December 15, 1977, on
the basis of a complaint issued August 18, 1977, alleging
that Respondent engaged in threats to discharge employees
and to close its business and, further, that it interrogated
employees and promised benefits if employees would not
support the Union. in violation of Section 8(a)(1) of the
Act.
Upon the entire record in this case, including my obser-
vations of the witness and their demeanor, I make the fol-
lowing findings:'
FINDIN;GS OF FACT
I JL RISDICTION
The complaint alleges and Respondent admits that it is
an Illinois corporation with an office and place of business
located at Roscoe. Illinois, where it is engaged in the busi-
ness of waste removal. During the past 12 months Respon-
dent performed services valued in excess of $500,000, of
which services valued in excess of $50,000 were performed
for customers located outside the State of Illinois. On the
basis of the above-cited facts, I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
that General Chauffeurs. Helpers and Salesdrivers Local
Union No. 325 is a labor organization within the meaning
of Section 2(5) of the Act.
11 THE ALL EGED I NFAIR LABOR PRACTICES
A. Background Facts
On or about January I11, 1977, the Union (Teamsters
Local 325) filed a petition for an election and that same
day employees went on strike. The strike lasted until the
end of January and employees returned to work. Subse-
quently. on June 14. 1977. an election was conducted in
Case 38 RC 2051 in which the Union prevailed by a five-
O(n Januars 23. 1978, counsel for the (General ( ounsel filed a motion to
strike portion of Respondentl' brief on grounds that Exhs. A and B cited In
such brief were not In fact attached thereto. nor were copies thereof fur-
nished toi the General Co(unsel In addition General Counsel contends that
the nmatters referred to In the brief were not the result of any testimons at
the hearing and should not be considered in rendering a decision In re-
sponse thereto, counsel for Respondent. on Januar 31. 1978. furnished the
exhibits which were Inadsertentil not attached to the brief and argues fur-
ther that the matters therein are properl, considered by me.
In 1iesc of the subsequenl furnishing of the exhibits and the fact that
niatters otherwise contained in Respondentl' brief. while of marginal rele-
,aneli. are deemed to be admissible to present a fuller picture of this case.
the (Gener.al ( ouunsel' moton to strike is denied
237 NLRB No. 62
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to-three vote. Objections to the conduct of the election
were filed on behalf of Respondent, sometimes referred to
herein as AAA.
On July 18, 1977, charges alleging violation of Section
8(a)(3) and (1) were filed and ultimately a complaint issued
alleging the 8(a)(l) allegations discussed hereafter.
B. The 8(a)(1) Allegation. 2
The unfair labor practice allegations involved two repre-
sentatives of Respondent, Joe Higgins, a route foreman
who became operations manager, and Richard TerMaat,
president of AAA.
I. Allegations involving Joe Higgins
Paragraph 5(b) of the complaint alleges that Higgins
threatened an employer in early February 1977, by stating
that Respondent would get rid of employees voting for the
Union.
Orville Axelson credibly testified that sometime in Feb-
ruary 1977, after the strike had ended, Higgins told him
that he was a fool for following Frank (Olszta) and going
on strike and that he was going to get in trouble. Higgins
stated that it did not matter, anyway, "because if the
Union gets in here, Rick [TerMaat] will still get rid of any-
body he don't want here." When Axelson disputed this,
Higgins stated that all TerMaat "has to do is say that you
ruined a clutch, the clutch could be worn out, if you ruin a
clutch or anything, he could fire you for it and it would
stick." Axelson's testimony had a ring of authenticity, and
I do not credit Higgins' denial that he made such state-
ments. I find that the above comments clearly conveyed
that employees could be terminated at will and on a pre-
text, if necessary, even if employees supported the Union
and it came in. Since such statement was made in a discus-
sion where Higgins warned Axelson that he was getting in
trouble because of his union and strike activities, I find
such statements were coercive and violative of Section
8(a)(l). Higgins is also alleged to have threatened employ-
ees that Respondent would close its business if the Union
won the election and that such statement occurred on June
14, 1977, the day of the election. Frank Olszta credibly
testified that in a conversation with Higgins on June 14,
1977, after he had voted, Higgins stated that TerMaat said
that if the Union won the election he would sell the busi-
ness. I find Higgins' statement a threat violative of Section
8(a)(l).
2. Allegations involving Richard TerMaat, president of
AAA
He is alleged to have: (a) On or about May 14, 1977.
threatened an employee that Respondent would reduce its
business volume and employ fewer employees if employees
continued to support the Union.
2 In reaching the credibility resolutions herein. I have not onl) considered
the probability and logic of such testimony in these circumstances but am
aware that both Olszta and Axelson were discharged N Respondent I Aas
impressed by their demeanor and accurate recollection, and I credil Iheir
testimony.
Frank Olszta credibly testified that he had a conversa-
tion with Richard TerMaat on or about May 14 in the
truck park area. TerMaat stated that if the employees
wanted a union he would get rid of the bad customers and
keep a few employees around. It is clear, and I find, that
TerMaat was threatening to reduce his volume of business,
as well as the number of employees, if the employees se-
lected the Union. Such a threat is violative of Section
8(a)(l) of the Act.
(b) Paragraph 5(d) of the complaint alleged that Ter-
Maat interrogated employees about their own and other
employees' union activities at Respondent's Roscoe, Illi-
nois, facility on May 14, 1977, and at Beloit, Wisconsin, on
June 6, 1977.
A review of the record discloses credible testimony es-
tablishing violations on the dates noted but at different
locations. In effect, the proof establishes violations at Be-
loit. Wisconsin, on May 14, 1977, and at Roscoe, Illinois,
on June 6, 1977. In view of my findings subsequently, I
deem the variances of proof from the allegation to be mi-
nor; in view of Respondent being on notice that such viola-
tions occurred and in view of the testimony adduced by the
General Counsel, the issues were litigated and Respondent
was not, therefore, denied any due process.
Olszta credibly testified that on May 14, 1977. he was at
the Turtle Tap tavern in Beloit. Wisconsin, at about 9 p.m.
when, during a discussion about the Union, Richard Ter-
Maat, who was there along with Jack TerMaat, Whitey
Forster, and Joe Higgins. asked him how he was going to
vote in the election. Olszta responded that he was "going to
vote for myself." Richard TerMaat, after counting on his
fingers and naming certain employees, stated, "Don't wor-
ry, we got them whipped."
Olszta credibly testified that Richard TerMaat made a
similar inquiry as to how he was going to vote on June 6,
1977. when TerMaat was posting a notice about the elec-
tion on the board. This second inquiry as to how he intend-
ed to vote is also violative of Section 8(a)( ) of the Act.
(c) Paragraph 5(e) alleges that TerMaat in Beloit, Wis-
consin, interrogated the wife of one of the employees on or
about June 13.
Axelson credibly testified that at the Turtle Tap bar on
June 13, 1977, TerMaat discussed the Union and, during a
conversation with Axelson, asked Axelson's wife how Axel-
son was going to vote in the election. Such inquiry I find
violative of Section 8(a)(1) of the Act.
(d) Paragraph 5(b) alleges that TerMaat promised bene-
fits to an employee if he would refuse to support the
Union.
Axelson credibly testified about a conversation with Ter-
Maat on May 30, 1977, in which TerMaat stated he wanted
to put a kitchen in at the facility. He told Axelson he was a
good worker and had a lot of potential and would be put in
charge of a new company Respondent was interested in
buying. When Axelson said he was not interested, TerMaat
stated that xelson could make the choice of either going with
the Union or else go with the Employer and make something
of himself.
I find TerMaat's comments constituted promises of ben-
efit if Axelson abandoned support of the Union, which
were violative of Section 8(a)(I).
392
AMOCO CHEMICALS CORPORA lION
(e) Paragraph 5(g) of the complaint alleges that at Be-
loit, Wisconsin, on June 13, 1977. TerMaat threatened em-
ployees by stating that he would close the business if the
Union won the election.
Axelson credibly testified that on June 13, 1977. at the
Turtle Tap tavern, during a conversation with TerMaat
previously discussed in paragraph Ic). above, Ter\1aat stat-
ed that if the Union won the election he figured the Com-
pany had reached its peak and. therefore. he would sell it.
Such statement is a threat to sell the business if the nion
won the election and a violation of Section 8(ai(1).
CON(IL[ SIONS OF LAA
1. Respondent AAA Disposal Systems, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. By threatening to terminate employees who voted for
or supported the Union. by threatening to reduce its vol-
ume of business and employ fewer employees. and be
threatening to sell the business if the Union were voted in
or because of employees' union activities and support for
the Union, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
3. By interrogating employees and the wife of an em-
ployee about how the employees would vote in the election
or their views about the Union and bN promising an em-
ployee a promotion and other benefits if he abandoned his
support for the Union. Respondent engaged in unfair labor
practices violative of Section 8(a)( I).
4. The violations found above are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Tilr REMFI) f
Having found that Respondent has engaged in unfair
labor practices. I shall recommend that it be ordered to
cease and desist therefrom and post a notice at its place of
business.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act. I hereby issue the following rec-
ommended:
ORDER'
The Respondent, AAA Disposal Systems, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to terminate employees who vote for or
support the Union. or threatening to sell the business, or
threatening to reduce its volume of business and employ
fewer employees if the Union were voted in or because of
employees' union activities or support for the Union.
(b) Interrogating employees or the wife of an employee
about how the employees would vote in the forthcoming
election or their views about the Union.
Ic) Promising an employee a promotion and other bene-
fits if he abandoned his support of the Union.
2. 1 ake the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its facilities in Roscoe, Illinois. copies of the
attached notice marked "Appendix." 4 Copies of said no-
tice, on forms provided byh the Regional Director for Re-
gion 13 after being duly signed by Respondent's authorized
representative. shall be posted by it immediately upon re-
ceipt thereof. and he maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(h) NotifN the Regional Director for Region 13 in writ-
ing. within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
1i ihle ciernt II< exc eptinn are filed as proi ded b;h Sec U10246 of the
Riles ailnd Rcl.tin ion, of the Na.nonal l.abor Relaiions Board. the findings.
conchlslons, .an1 recommended Order herein shall. as prosided hb Sec
Il2 48 of the Rulcs aind Regulations be adopted hb Ihe Board and hecome
Its f nildinl. i.cIcLin, and Order. and all obhections thereto shall he
cndeemed saled for .All piurpsCe.
II) thil eient lii this (rder is enforced hs a judgment of the t nited
Stelle' ( oUIi (of Appc.ls. the iords in the notice reading "Postied h, Order
Of t he Na loII. Li h r Rcl.itiIIns Board" hall read "Piosed Putrsuanl I a
Judgllient of the I Iliied Stie, ('ourl of Appeals nforctinr an Order of the
%atloT, il Iabor RedLlwtns tBoard "
APPENDIX
NOTIC( To EMPLOYEES
PosrFD BY ORDER OF TiHE
N, ii()No. LABOR RiELATIONS BOARD
An Agerncy of the United States Government
WEi ,.LL NOT threaten to terminate employees who
vote for or support General Chauffeurs, Helpers and
Salesdrivers Local 325, affiliated with the Internation-
al Brotherhood of Teamsters, or any' other union.
WE 1IA 1 'or threaten to sell the business or reduce
the business volume and reduce the number of em-
plovees if the Union wins the election or if employees
vote for or support the Union.
WE wn.l NOT interrogate employees or their wives
about how employees will vote in the union election or
about their Union views and sympathies.
WE W11 NOt promise employee promotions or in-
creased benefits if they cease to support the Union.
WI: Wilt NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act.
AAA DISPOSAL SYSTEMS. INC.
393