Aurora and East Denver Trash Disposal

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 1 (N.L.R.B. 1975)

AURORA AND EAST DENVER TRASH DISPOSAL 1
Jake Schlagel, Jr., d/b/a Aurora and East Denver
Trash Disposal and International Union of Operat-
ing Engineers, Local No. 1, AFL-CIO and
Michael Stangl . Cases 27-CA-4026, 27-CA-4160,
and 27-CA-4215
May 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On December 31, 1974, Administrative Law Judge
William J. Pannier, III, issued the attached Decision
in this proceeding. Thereafter, Respondent 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Jake Schlagel,
Jr., an Individual, d/b/a Aurora and East Denver
Trash Disposal, Aurora, Colorado, his agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
1 In the absence of exceptions thereto, we adopt, pro forma, the
Administrative Law Judge's dismissal of the complaint in Case 27-CA-
4215, relating to Stangl's discharge, and his findings that Respondent
violated Sec 8(a)(1) of the Act by the various conduct set forth in par 4 of
the Administrative Law Judge's Conclusions of Law
On July 31, the said Regional Director issued an order
consolidating the cases, order setting aside the settlement,
consolidated complaint, and notice of hearing, alleging
violations of Section 8(a)(1) and (3) of the Act, based upon
the unfair labor practice charge and amended charge filed
in Case 27-CA-4026 and upon an additional unfair labor
practice charge filed on June 13 in Case 27-CA-4160.
Thereafter, on August 20, an order consolidating the
additional case, amendment to the consolidated complaint,
and order rescheduling hearing and order referring part of
motion to the Administrative Law Judge's Division was
issued, alleging an additional violation of Section 8(a)(1)
and (3) of the Act, based upon an unfair labor practice
charge filed on July 25 in Case 27-CA-4215.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-
examine witnesses, and to file briefs. Based upon the entire
record, the briefs filed on behalf of the General Counsel
and on behalf of the Respondent, and upon my observa-
tion of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Jake Schlagel, Jr., an Individual, d/b/a Aurora and East
Denver Trash Disposal, herein called Respondent, is an
individual doing business under the trade name Aurora
and East Denver Trash Disposal and has been at all times
material engaged in the collection and removal of trash
with a principal place of business at 11748 East 14th
Avenue, Aurora, Colorado. In the course and conduct of
its business operations during the calendar year 1973,
Respondent received revenues in excess of $50,000 for
services performed for firms over which the Board would
assert jurisdiction on the basis of standards other than the
indirect inflow or indirect outflow standards.
Therefore, I find, as admitted in the answer, that
Respondent is, and has been at all times material, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER, III, Administrative Law Judge:
This matter was heard by me in Denver, Colorado, on
October 15, 1974.1 On April 23, the Regional Director for
Region 27 of the National Labor Relations Board issued a
complaint and notice of hearing, alleging violations of
Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., herein called the Act,
on the basis of an unfair labor practice charge and an
amended unfair labor practice charge filed in Case 27-CA-
4026 on January 29 and March 11, respectively. On May
28, a settlement agreement in this case was approved.
International Union of Operating Engineers , Local No.
1, AFL-CIO, herein called the Union, is and has been at
all times material a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
As framed by the pleadings, the following issues are
presented in this matter:
1. Whether Frank W. Smothers is a supervisor within
the meaning of Section 2(11) of the Act.
2. Whether Respondent discharged employee Law-
rence Haywood and thereafter failed and refused to
1 Unless otherwise stated, all dates occurred in 1974
218 NLRB No. 4
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate him, and, if so, whether Respondent thereby
violated Section 8(a)(3)' and (1) of the Act.
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging and by failing and refusing to
reinstate Michael Stangl'.
4. Whether the Regional Director for Region 27 of the
National Labor Relations Board was justified in setting
aside the settlement agreement in Case 27-CA-4026.
5. If the settlement agreement in Case 27-CA-4026 was
properly set aside, then whether Respondent , through Jake
Schlagel, Jr., engaged in the following acts and conduct
and, if so, whether it thereby violated Section 8(a)(1) of the
Act:
(a) On or about January 25, interrogating employees
regarding their union sympathies.
(b) On or about January 25, threatening employees that
Respondent might close its plant if the Union were selected
to represent its employees.
(c) On or about January 25 , seeking employees' signa-
tures on an antiunion petition.
(d) On or about January 25 to 29, making promises of
benefits and threats of reprisal to employees should they
select the Union as their collective -bargaining representa-
tive.
6. If Frank W. Smothers is a supervisor within the
meaning of Section 2 ( 11) of the Act and if the settlement
agreement in Case 27-CA-4026 was properly set aside,
then whether Respondent, through Smothers , engaged in
the following acts and conduct and , if so, whether it
thereby violated Section 8(a)(1) of the Act:
(a) During the last week of April, interrogating an
employee about his union sympathies.
(b) On or about May 1, threatening employees with
termination if they voted for the Union.
(c) On or about May 1, promising employees increased
benefits if they voted against representation by the Union.
(d) On or about May 2, interrogating an employee about
his vote in the representation election conducted by the
National Labor Relations Board.
(e) During the second week in May, directing an
employee to give false information to a National Labor
Relations Board investigator concerning the employee's
vote in the representation election conducted by the
National Labor Relations Board.
B. Commencement of the Organizing Drive
Although the record is not clear regarding precisely
when Respondent's employees commenced their activities
to obtain representation, it does disclose that these
activities were initiated by discussions among then Fore-
man Wayne Trimm2 and employees Ray Wolford and
Darrell Pell, who had been dissatisfied with their wages
and with the nonexistence of benefits which they desired.
Trimm testified that these discussions led him to approach
2 There is apparently no dispute that at this point in time Trumn was a
supervisor.
3 Although in its answer Respondent demed that Schiagel was a
supervisor and an agent of Respondent, he is Respondent's owner and,
consequently, I find that he is both a supervisor within the meaning of Sec.
2(11) of the Act and an agent of Respondent.
4 During cross-examination of some of the witnesses called by the
General Counsel, the subject of discussions between Schiagel and the
owner Jake Schlagel, Jr.,3 regarding the matter of unioniza-
tion and that Schlagel directed him,to check with some of
the other people to ascertain their ideas and attitudes
concerning the matter. Trimm further testified that he
believed that at the time of this conversation Schlagel had
been speaking with other employers, presumably also in
the trash business, to find out if they would accept
unionization of their employees. Acting upon Schlagel's
suggestion, Trimm testified, contact was made with Union
Representative Louis Florez to discover what steps had to
be pursued to commence organizational activities and the
matter was also discussed with Respondent's other employ-
ees. Ultimately a meeting was conducted at the Union's
hall at which approximately seven individuals employed by
Respondent signed authorization cards and at which
Florez instructed them to make an outline of the items they
wanted so that he would have some idea as to the areas in
which he should concentrate in negotiating with Respon-
dent.4
Schlagel, however, experienced a change in attitude
following his conversation with Trimm, for Darrell
Erickson, who was at that time a helper, testified that on
approximately January 17 he was summoned from his
home to Respondent's facility where Schlagel informed
him that Trimm and Pell wanted a union, expressed
opposition to unionization of the employees, and stated
that he could give Erickson more insurance, fewer hours,
and a raise starting the following Monday, adding, "You
are a truck driver now." Schlagel continued, according to
Erickson, by saying that he would give Erickson a $20 raise
right after a hearing scheduled for the following Tuesday
and, in fact, Erickson subsequently did receive a raise
although it amounted to but $10. Moreover, his status was
changed utimately to that of truckdriver and he performed
the duties of a truckdriver until his discharge on March 9.
There then took place a series of meetings between
Schiagel and the individuals who worked for Respondent,
both on individual and group bases. Thus, on January 25,
Schlagel held a meeting with his employees and Trimm.
Darrell Pell testified that this meeting arose when he and
Trimm were asked by Schlagel what their motives were in
trying to loin the Union and that Schlagel then stated that
he wanted to get the Union "squashed," that he could
grant the things that were desired by his employees without
going through a union, that the Union chd not know a
thing about the trash business, and that he (Schlagel) had
been in business for 25 years and did not intend to have
somebody come in and tell him how to run his business.
Then, testified Pell, Schlagel summoned all of the other
employees, with the exception of Erickson, and there
followed a discussion of company policies during which
Schlagel stated that the employees did not need a mediator
and that if he could not mediate between his men and
himself, then he should go out of business or sell the
employees concerning these proposals was developed. However, these
discussions were not raised during the case-in-chief by the General Counsel,
were not relied on by General Counsel in his pleadings or brief to establish a
violation, were not retied on to establish animus or unlawful motivation in
General Counsel 's brief, and were not used as a basis for setting aside the
settlement agreement in Case 27-CA-4026. Thus , I am disregarding the
testimony concerning such discussions in arriving at my conclusions.
AURORA AND EAST DENVER TRASH DISPOSAL
business and go on home, since he didn't need to be in
business . The meeting concluded, according to Pell, with
the men either agreeing or giving the impression that they
were agreeing to revoke their authorizations to the Union
to act as their representative. Trimm, the other witness
called by the General Counsel to testify about this meeting,
testified that Pell and he were asked by Schlagel what their
motives had been in trying to organize a union and that
Schlagel told the employees that if they could not negotiate
with him as individuals then he might as well close his
doors and 'go out of business, that the Union's personnel
did not know what the trash business was all about, and
that all the Union wanted to do was to run his business.
The meeting concluded, Trimm testified, with a discussion
of revocation of the Union and with Schlagel saying that
he wanted to get a revocation petition signed by the men
because he was afraid that the Union was going to ruin his
business.
Pell testified that early on the following Monday
morning there was a second meeting between Schlagel and
the individuals whom he employed which opened with
Schlagel laying a petition to revoke the Union's bargaining
authorization on the desk and with Frank W. Smothers5
immediately signing it. Pell testified that Schlagel then
asked him to sign the petition and that he refused, as did
Trimm and Singleton who were next asked by Schlagel to
sign the petition. There ensued, Pell testified, an argument
between Singleton and Schlagel regarding who was at fault
for losing' a particular account after which Schlagel
requested Darrell Erickson to sign the petition, but the
latter refused, telling Schlagel, according to Pell: "No, I am
not going to sign anything until I show it to my lawyer.
You told us Friday that we didn't know what we were
doing when we signed the union cards and I wouldn't
know what I am doing now if I was to sign that. So I would
like to take a photostatic copy to my lawyer and have him
look it over before I sign anything." Pell testified that
Schlagel refused to permit Erickson to have a copy of the
petition and, after further argument concerning the merits
of the Union and the methods used by Schlagel to operate
his business , Trimin requested permission for the men to
start their runs and Schlagel agreed to terminate the
meeting. Tnmm testified only'that there was a meeting on
January 28 attended by Jim Swope, Smothers, Pell,
Erickson, Bill Munn, and himself at which Schlagel
requested the men to sign a petition which nobody wanted
to do, but he then testified that he could not remember if it
had been on Monday or Tuesday that the petition was put
out for the men to sign. Erickson, to whom Pell attributed
a discussion with Schlagel concerning obtaining a copy of
the petition, was called as a witness by the General
Counsel and was interrogated concerning conversations
which he had had with Schlagel concerning the Union, but
made no mention of attending a meeting of employees at
any time, nor did he mention having any discussion with
Schlagel with reference to obtaining a copy of a petition to
revoke the Union's bargaining authorization.
Both Pell and Trimm, however, testified to a meeting
which they attended on the evening of January 28. Both
testified that when they returned for the day there was a
5 Smothers' status is discussed, infra
3
note on the bulletin board instructing the men to remain
after work for a meeting, but as time passed without
Schlagel calling a meeting, Pell drove Trimin to the latter's
home where the two of them were having coffee when a
telephone call was received from Schlagel who requested
them to return to the plant. Trimin testified that when they
did so, Schlagel first requested Pell to sign the petition to
revoke the Union and that when the latter refused, an
argument between them ensued, after which Schlagel
requested that Trimm sign the petition, which he likewise
refused to do. Schlagel, testified Trimm, complained about
an increase in Trimm's insurance rates and said that he was
thinking of removing Trimm as foreman and of putting
him back on the route, asking Bill Munn, who was present
for part of the conversation, what he thought and Munn
replied that he believed Trimin to be a fair foreman.
Trimm testified that Schlagel then asked Munn to sign the
petition, but Munn said that he preferred to remain
neutral, having not signed for the Union and thus
preferring not to sign to revoke the Union. At this point,
Trimm testified, Pell left and he (Trimm) followed him.
Pell testified that when he and Trimm arrived at Respon-
dent's facility, Schlagel opened their meeting by inquiring
what they wanted, to which Pell responded, ultimately, old
age security and a secure job, and then, following a brief
discussion of these matters, Schlagel accused Pell of 'lying
about signing -the petition to revoke the Union, just as Pell
had assertedly lied concerning an incident involving the
disappearance of three trash cans. The latter subject,
according to Pell, evolved into a heated dispute with
Schlagel finally producing a Bible on which Pell swore that
he was telling the truth about the missing trash cans. Then,
Pell testified, Schlagel asked Tnmm why he was pushing
the Union so much and the latter responded, in essence,
because the men were not getting the benefits which they
should be receiving, listing a few items. Pell testified that
Schlagel then asked him (Pell) how long it was taking him
to run his route and that when he replied sometimes longer
than 8 hours, Schlagel said that he had been thinking of
giving Pell a $5 or $10 raise, but that he could not do it
until the Union was gotten out of the way and that he
would like to do a lot of things for the employees, but was
unable to do so until the Union was gotten out of the way.
Then, according to Pell, Schlagel said that he would write
up an agreement embodying those items which the
employees wanted and which Respondent could afford,
Respondent's bookkeeper would notarize it, and copies
would be distributed to each party so that disputes could
be worked out among them. Pell testified that Schlagel
pointed out that with a union such a procedure could not
be followed because a union did no negotiating - it
merely got its way or went on strike. Trimni, testified Pell,
disputed this assertion and, when Schlagel called in Munn,
Trimm and he left without overhearing What was said
between Munn and Schlagel.
Pell further testified that on Thursday of that same week,
Schlagel told him that if the employees did not "get the
Union out" then his (Pell's) job would not be very secure
and that, when he asked if this meant that he would be
fired, Schlagel responded that be would not be fired but, in
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response to Pell's further query, that he would have to
worry about his job.
Erickson testified that around the month of February, he
did not recall the date, he was summoned to Respondent's
facility from his home and that when he went in, Schlagel,
who was in a meeting with Trimm, Fell, Smothers, and
Swope, told him to go to the back room and wait until
called. After he had waited there for approximately 30
minutes, he testified, Schlagel called him to the office and
told him to sign a paper waiving representation by the
Union, adding that he should have been at a meeting the
prior evening where everybody else agreed not to join the
Union. Erickson testified that he refused to sign, pleading
that as a heavy equipment operator and machinist he
would be blackballed if he signed, and that Schlagel then
said that he would grant Erickson a $10 raise. When
Erickson persisted in his refusal, Schlagel then offered him
$20 if he would sign the petition, pointing out that
Erickson was now a truckdriver.
C. Demotion of Trimm
Trimm testified that on the Monday following the
evening meeting which he and Pell had with Schlagel, the
latter again approached him to sign a petition revoking the
Union as his representative. When he again refused,
Trimm testified, Schlagel said, "I don't need a foreman like
you, I need a foreman that is for the company." Tnmm
testified that he protested, saying that a foreman also
needed to back his men, and that Schlagel replied: "Well, I
don't need a damn Foreman like you. Take and turn in all
your keys." After laying his keys on the desk, Trimm
testified that he asked if he was fired, and Schlagel
responded: "No, you are not fired but our relationship will
definitely be severed over this, because there is no way that
we could ever get along with each other after participating
in activities like this." Trimm further testified that later
that same day Schlagel again approached him and
requested that he sign the petition, but that he again
refused to do so. For the next week and a half, Trimm was
assigned to work in the shop, cleaning garbage out of
containers and steam cleaning and painting the containers,
after which period he was assigned to the run on which
Smothers had been operating prior to the demotion.
As listed, supra, section III, A, Respondent denied the
allegation in the complaint that Smothers was a supervisor
within the meaning of Section 2(11) of the Act, but the
dispute appears actually to be confined to the period
between Trimm's demotion and,mid-May, for both
Smothers and Schlagel acknowledged that following the
election, Smothers was officially appointed foreman, with
the former testifying that this occurred on May 12 and the
latter testifying that this appointment was made sometime
in the middle part of May. However, certain incidents
demonstrate that Smothers achieved supervisory status
much earlier. Thus, it is uncontested that the keys which
Trimm had laid on the desk at Schlagel's direction on
Monday were in Smothers' possession on the following day
and, further, that Smothers was then the individual who
was ,assigned to oversee the men, to see that the routes got
done, and to give the daily orders for specials that had to
be serviced. Moreover, Erickson testified that Schlagel told
him: "Frank is the Foreman from now on. Wayne Trimm
is out because he wants the Union in here." Erickson and
Pell both testified that Smothers, himself, told them that he
had been made foreman, with Erickson testifying that
Smothers made this comment to him on January 28 and
with Pell testifying that Smothers made the comment' to
him during the first week of February. Moreover, Smoth-
ers, himself, admitted that in January or February he was
put in the shop doing the job that Trimm had performed
previously and that Trimm had taken over his route. He
contended, however, that this had been a temporary
assignment, that any orders which he gave originated with
Schlagel, and that it was the men's own misconception if
they believed that he was a supervisor, although he
volunteered that he may have led them to believe this,
because "it is my nature."
As foreman, Smothers' principal duties are to make route
assignments and to be certain that someone takes care of
each route. This, however, does not appear to involve the
exercise of much independent judgment, since Pell testified
that for the most part so long as a man ran his route, he
was never told to do anything other than to handle specials
or to run part of another man's route, with the result that
there usually were not any orders to be issued unless there
was a route change or a special during the day. Smothers
testified that although he has interviewed applicants for
positions with Respondent, he does not possess authority
to hire them and that his role in the interview processing is
merely to be certain that the applicant has completed the
application forms properly and to answer any questions
which the applicant poses regarding the job. Thus,
Smothers testified, only when Schlagel asks his opinion of
an applicant does he make any recommendation and, he
further testified, of the two interviews which he has
conducted since becoming foreman, his opinion has been
sought by Schlagel, who had also spoken with the
applicants, only once. There is no evidence to controvert
Smothers' testimony in this regard and, indeed, some
which tends to corroborate it. Thus, Dennis Lingaas
testified that it was Schlagel who hired him and Michael
Stangl testified that while it was Smothers who assigned
him to work on the morning that he applied for a job,
matters appeared to be in a state of confusion at the time
and that it was to Schlagel he went later that day to
ascertain if he actually had a job.
With respect to his authority to terminate employees,
Smothers testified that while he is the individual who
actually effects the termination, he does this only when so
directed by Schlagel.; However, a detailed account of his
role in the termination process is presented below with
respect to the terminations of Haywood and Stang]. and
this tends to show that Smothers was quite instrumental in
the termination process.
Finally, Smothers testified that he is responsible for
opening the shop in the morning, that he drives trucks only
when a driver fails to show up for work, and that he is paid
$200 whereas drivers receive $139 to $150 and helpers are
paid approximately $130.
AURORA AND EAST DENVER TRASH DISPOSAL 5
D. Events Surrounding the Election
Erickson testified that, - soon after becoming foreman,
Smothers promised him better benefits and a better route
with another truck, as well as a raise, if Erickson would
sign the petition revoking the Union 's authorization to
represent Respondent 's employees and that , based upon
those promises, Erickson did sign the petition.
Smothers did not confine his antiunion activities to
soliciting employee signatures on the petition , for Trimm
testified that, during the second week after he had been
demoted, Smothers asked what he (Trimm) thought about
the Union and asked if Trimm intended to vote for the
Union . During the following week, Trimm testified,
Smothers said that it looked as though everybody who was
involved in union activities was going to lose their jobs and
that Schlagel was thinking very seriously about replacing
everybody with new help.
Dennis Lingaas testified that approximately 1 week prior
to the representation election , which was conducted on
May 1, Smothers inquired how Lingaas intended to vote in
the election and then threatened that if Lmgaas intended to
vote for the Union then Schlagel would be very upset, with
the results that Lingaas ' job would not be very secure and
he could wind up with the '64 truck, Respondent's oldest
and most difficult, assigned on his route. Lingaas was not
the only employee approached prior to the election by
Smothers , for Larry Haywood and Michael Stangl testified
that a few days prior to the election, as they were leaving
the plant, Smothers inquired how they intended to vote in
the election and Stangl replied that he intended to vote in
favor of the Union . Haywood testified that Smothers then
said that they could get the benefits of the Union without
having it in the shop and that if they persisted in their
intent to vote iii favor of the Union then they would lose
their jobs . Haywood further testified that on numerous
occasions prior to the election, whenever their paths
crossed, Smothers would remind them (Haywood and
Stangl) that the election was coming up and would
encourage specifically Haywood to vote against the Union
if he intended to continue working for Respondent.
Similarly, Stangl testified that on a few different occasions
Smothers asked him how he intended to vote in the
election.
Following the election on May 1, Stangl testified that
Schlagel told him that he (Schlagel) thought that he had
always treated Stangl and Lingaas right, that evidently he
had not done so, that all the salvage had been stopped, and
that they would lose and things would go hard for them.
On the following day, Haywood and Stangl were working
in the telephone company yard, which adjoins Respon-
dent's facility . Haywood testified that Schlagel pulled in
and told Haywood to get into the car , after which Schlagel
said that someone had doublecrossed him on the vote and
inquired if it had been Haywood and if Haywood would
swear that it had not been him . Haywood testified that he
said that he would swear that he had not done so and that
the new kid, Jack, must have been the one who had done
sp. Schlagel then said , according to Haywood, that he was
going to find out who it was and that the man who had
done it by voting for the Union was going to be gotten rid
of one , way or the other. Then, testified Haywood , Schlagel
said that Stangl was not to drive the truck any longer and
he called Stangl over and repeated the instruction directly
to him. Both Haywood and Stangl, who to that point had
been alternating driving the truck, testified that when
Stangl asked Schlagel for a reason the latter retorted
because he had said so.
Apparently objections to the conduct of the election
were filed by Respondent , for Haywood testified that one
evening Smothers came to , his home and , after pointing out
that an investigation was being conducted concerning the
election, asked Haywood to tell the investigator that he
(Haywood) had been threatened by Trimm or Singleton so
that the election would be nullified, thereby affording
Respondent an opportunity to get rid of the prounion men,
replace them with nonumon employees , and have another
election that would come out differently . Haywood
testified that thereafter, on the day that the Board's
investigator was at Respondent's plant, Schlagel ap-
proached him (Haywood) as he and Stangl arrived at noon
to be interviewed by the investigator and said: "It's not too
late to make it up to me." Haywood testified that when he
replied that he had no idea what Schlagel was talking
about the latter responded that they were going to lose and
then commenced a conversation with Stangl at which point
Haywood returned to his truck. The only denials entered
by either Smothers or Schlagel regarding the comments
attributed to them by the employees who testified
concerned Haywood's testimony with respect to these
appeals to give false testimony to the Board's investigator.
Schlagel denied ever suggesting to any of his employees
that they make any untrue statements to an agent of the
Board. Smothers , likewise , denied suggesting such conduct
to any employee, but he did admit that he questioned
everybody to learn who had lied to him, since four
employees had told him that they intended to vote against
representation, but only three votes had been cast against
the Union. Furthermore , in a manner which he never
clearly explicated, Smothers testified that he had come to
the belief that Haywood , who Smothers testified had had
an accident , might have been led to feel that if the Union
were successful he (Haywood) would not have to pay the
first $50 of the total claim for his accident. This, testified
Smothers , led him to Haywood's house where , according to
Smothers, Haywood acknowledged that somebody had
talked' to him about the accident or the possible $50
damage . Smothers testified that Haywood identified the
individuals who had spoken to him concerning the matter
as Trimm and Singleton and, consequently, he testified, he
instructed Haywood to tell the Board's investigator when
the latter was at Respondent's plant on the following day,
because, claimed Smothers , such statements would "have a
bearing on the whole factualness, of it , because if they had
coerced him with that, then this would have been a fraud
election, it would have been wiped out." Haywood denied
that he had been asked whether he had been threatened
and then pointed out, in response to the question that
elicited that denial, that he " had not been asked anything,
but had been told by Smothers that it would nullify the
election if he told the Board's investigator that he had been
threatened.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As pointed out in the "Statement of the Case," supra, on
April 23, the Regional Director for Region 27 issued a
complaint and notice of hearing in Case 27-CA-4026,
alleging that Respondent had violated Section 8(a)(1) of
the Act. That complaint alleged as unlawful only that
conduct of Schlagel which is listed in section III,A,6, supra.
On May 28, the Regional Director approved a settlement
agreement in that case in which Respondent agreed to post
a notice which stated that it would not interrogate
employees concerning their union activities, would not
threaten to close its business if its employees selected the
Union or any other labor organization as their bargaining
representative, would not seek the signatures of employees
on an antiunion petition, would not promise benefits or
threaten reprisals should its employees select the Union or
any labor organization as their bargaining representative,
and would not "in any manner interfere with, restrain, or
coerce" its employees in the exercise of their rights under
Section 7 of the Act. The settlement agreement provides
that "Contingent upon compliance with the terms and
provisions hereof, no further action shall be taken in the
above case."
On July 22, Compliance Officer Jerry C. Legler notified
the Union that Case 27-CA-4026 would be closed "subject
to continued compliance" on August 5.
E. Lawrence Haywood
Haywood had commenced working for Respondent as a
driver in March and his only activity in connection with
the Union's organizational drive had been to cast a ballot
in the representation election on May 1. However, as set
forth above, this particular activity had been both preceded
and succeeded by conversations with Smothers and
Schlagel concerning the election. Thus, prior to the
election , Haywood testified, Smothers had interrogated
him regarding how he intended to vote and had warned
him to vote against the Union if he intended to continue
working for Respondent. Following the election, testified
Haywood, Schlagel had asked if he had "doublecrossed"
him (Schlagel) and had requested that Haywood take an
oath that he had not done so, and Smothers had appealed
to him to tell the Board's investigator that he had been
threatened so that a new election could be held in which
Respondent would have an opportunity to obtain a
different result. Moreover, on the day that he spoke with
the Board's investigator, Haywood testified, Schlagel
reminded him, "It's not too late to make it up to me."
Haywood testified that on June 10 he had returned to
Respondent's facility about 5 p.m., with his truck disabled
to the extent that it could not lift or dump a container.
There he was met by Smothers who asked him to pick up
the telephone company container next door. Haywood
testified that he told Smothers that he could not do so
because his truck was inoperative and, apparently, Smoth-
ers then asked if Haywood would go out on another truck,
but the latter declined, because he had already put in 12
hours that day. According to Haywood, Smothers then
said, "Well, I am going to have to let you go," producing
an already-prepared check with the words "Paid in full"
written on the back, and when Haywood asked for a
reason, Smothers replied, "Well, a couple of the drivers
had told me that you are a dope head . In fact , I have seen
you myself," specifying Friday morning as the occasion
when he had assertedly seen ' Haywood coming to work
with glassy eyes.
Haywood testified that after his conversation with
Smothers , he left with the check , but then returned to
Smothers saying that he had to protest the matter because
he could not permit the accusation to stand , to which
Smothers replied that he would be happy to bring forward
the people that had told him that Haywood was a dope
head . Then, Haywood testified , he called Schlagel and
asked if he had been fired , but Schlagel said that he did not
want to commit himself, would have to speak with his
foreman to determine if Haywood had been laid off or
fired, and would do so and then meet with Haywood at 10
the following morning . However, Haywood testified that,
when he met Schlagel the next morning , the latter said that
he had not yet had an opportunity to discuss the matter
with Smothers and requested that Haywood return at 2
that afternoon. Haywood did so, but Schlagel said that he
had still not had an opportunity to speak with Smothers,
who was running Haywood's route, and, after waiting until
2:30 or 3 p .m., Haywood left Respondent's facility. On
Thursday, June 13 , the unfair labor practice charge in Case
27-CA-4160 was filed by the ,Union, alleging that
Haywood was discharged because of his activities on
behalf of the Union and on July 17, during the investiga-
tion of that charge, Smothers gave an affidavit which, in
part, states: "Lawrence Haywood was laid off , not fired for
lack of work."
Schlagel testified , in general terms and without specify-
ing particular examples , that after Haywood had, been
hired he had failed to perform as Respondent had desired,
that Haywood had problems with the equipment which
had led to the belief that he was abusing, it, and that
Haywood had failed to carry out orders of both Smothers
and himself. Schlagel further testified that it had been
Respondent's practice to lay off a man for the summer at
the end of each school year and that, since he had many
other things to do to run the business with the result that he
was not at the Aurora facility all the time , he left the
decision as to who to select for the layoff to Smothers
whose relationship with the employees Schlagel believed to
be far better than his own. Accordingly , Schlagel testified,
he told Smothers : "Now, Frank, we are going to have to
lay a man off and I am going to leave it at your-discretion
as to who you choose to lay off by the performance that a
man shows." Schlagel testified that , ultimately Smothers
came to him and said that he had selected Haywood to be
laid off temporarily and that he had told Haywood that he
would be rehired in the fall. Schlagel characterized this
decision as one that he and Smothers "probably made
together."
Smothers' testimony regarding how the decision' was
reached to lay off Haywood, what the reasons had been fbr
selecting Haywood , and what he had told Haywood was
extremely evasive and contradictory . With respect to the
manner in which the decision had been reached, Smothers,
when called by the General Counsel , testified that Schlagel
had told him that Respondent needed to 'terminate one
man and had asked him to make the decision between
AURORA AND EAST DENVER TRASH DISPOSAL
Haywood and Jack Nollett, after which he selected
Haywood and discussed that selection with Schlagel prior
to notifying Haywood. Then he testified that it had not
actually been his decision to select Haywood for layoff
because during the day Schlagel had observed Stangl,
Haywood's helper, driving the truck in contravention of
prior orders and that Schlagel, whom Smothers character-
ized as "pretty mad" about the incident , had told Smothers
what he had observed which, according to Smothers,
"made it a cinch which one" would be selected for layoff,
for, according to Smothers , Schlagel said , "That makes our
decision final ." Later, after Smothers had been called as a
witness by Respondent , he testified on cross-examination
that Schlagel had said that Respondent had to lay off a
man that day and subsequently he testified that Schlagel
had said that the man had to be laid off on Friday of that
week. He further testified that the decision to let Haywood
go had been made at one or two that afternoon, that
Schlagel and he had discussed the pros and cons of Nollett
and Haywood , and that Schlagel had made the decision as
to which one would be laid off, although he testified in
response to a question as to who had made the decision to
let Haywood go that day:
Like I told Jake, it may have been my suggestion. Like
I told him , no sense in carrying a man the rest of the
week when he is not going to obey you like he has
already done on two different occasions today, and
Jake agreed that was right. Why carry dead weight
when a man wasn 't going to do it, and one man could
run the route.
Smothers' testimony was also contradicted insofar as the
reasons which he advanced for selecting Haywood for
layoff. When called by the General Counsel, he testified
that when the matter of selecting an employee for layoff
was discussed initially, a decision was made to select a
driver. Yet, it is clear, by Smothers' own admission, that
following the layoff of driver Haywood, helper Stangl was
reclassified to driver status and was then assigned to run
the route that Haywood had been running. This, of course,
poses a question as to why Respondent simply did not lay
off Stangl and while Smothers did testify that Stangl took
less time to make the run , there is no showing that
Respondent derived any particular advantage from the
length of time that it took to make the run. Further, while
Smothers also testified that Haywood's termination was
"mainly due to the fact that the man just wouldn't obey
orders," he also testified that one of the reasons for this
conclusion was that Haywood had permitted Stangl to
drive the truck after Schlagel had prohibited Stangl from
doing so . But this does not really advance Respondent's
cause, for while it might be true that Haywood had
disobeyed orders in this regard, it is equally true that
Stangl also had been disobedient . With the matter in this
posture, the question still remains as to why select
Haywood, the driver, for layoff rather than Stangl, the
helper. Finally, the matter becomes even more baffling
when considered in the context of Stargl's driving record
which included apparently five or six court appearances for
such offenses as driving under the influence, careless
driving, and resistance. So far as the record discloses,
7
Haywood's record was not similarly tainted - yet,
Respondent chose to replace him with Stangl.
With further regard to the reasons for selecting Haywood
for termination, additional controversies arose as a result
of incidents which Respondent attributed to Haywood.
Thus, Stangl acknowledged that Schlagel had seen him
driving the truck on one occasion after he had been told
not to do so and that Schlagel had reprimanded both
Haywood and him . However, Stangl further testified that
this occurred because Haywood had had an upset stomach
and that thereafter Haywood exclusively had driven the
truck. Though called as a witness by Respondent, Schlagel
did not controvert Stangl 's testimony in this regard and did
not corroborate Smothers ' testimony concerning the
asserted incident of June 10 when Schlagel became "pretty
mad" because he discovered Haywood permitting Stangl to
drive the truck . As an apparently additional illustration of
Haywood's purported unwillingness to follow orders,
Smothers raised the fact that Haywood had declined to
pick up the trash at the telephone company on the evening
of June 10. Yet, by the time that this occurred , Smothers
already possessed Haywood 's final check and, accordingly,
it is evident that this event played no part in the decision to
terminate Haywood.
Schlagel testified that an additional reason for terminat-
ing Haywood had been problems which had arisen
concerning the equipment that Haywood had been using
and Schlagel asserted that he believed that Haywood had
been "abusing" equipment . Smothers, similarly, testified
that Haywood had had "several little odd-ball accidents"
and cited one where Haywood had "backed the truck out
of the garage and tore a nice little hole in the truck in
backing it up," a second where Haywood "backed into a
City of Aurora trash truck," and a third where Haywood
had "wiped out a barbed wire fence or ran into it."
However, other than these generalized characterizations of
these events , Smothers did not provide any details as to
what had taken place whereas, by contrast , Haywood
testified that he had had no reportable accidents and
testified specifically as to what had taken place during each
of the incidents to which Smothers had referred. Thus,
regarding the incident where he had backed out of the
garage, Haywood testified that there had been an incident
where, while leaving the garage , a piece of metal extending
from the side of the truck had bent because it snagged on
the door . He further testified that Smothers had witnessed
this event and had told him to forget it as it was nothing.
He denied unequivocally that he had ever backed a truck
out of the garage with sufficient force to put a hole in the
truck box . Similarly, he testified that there had been an
occasion where, while backing his trash truck on the entry
road to the city of Aurora landfill, he had stopped
immediately in front of a city pickup truck which had
stalled behind him in the road . However, he testified, while
the space between the two vehicles was so small that a
hand could not be fitted between them , the police had'told
him to forget the matter because there had been no
damage . Finally, he testified that while driving on a black-
topped road one of a group of oncoming children on
bicycles crossed into the path of his truck and, when he
discovered that his horn was inoperative , he was forced to
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
swing to the side to avoid striking the child. Nevertheless,
he testified, although the right front wheel of the truck did
go off of the road and while there was a barbed wire fence
at the side which scratched the paint on the right front
fender, the truck was not disabled nor was the fence
damaged.
The final area of Smothers' testimony disclosing internal
inconsistencies involves what he said to Haywood on June
10, at the time of the termination. When called initially as a
witness by the General Counsel, Smothers testified that on
June 10 he had told Haywood simply that he would be
hired back as soon `as the schools went back into session.
Similarly, on cross-examination after having been called as
Respondent's witness, he testified that he had explained to,
Haywood that he would be hired back somewhere in
August and that he was being laid off because Respondent
had just lost 26 schools and could not keep carrying a man
because it was "overcrewed as it was." Then he testified
that he believed that he had made the statement "And Jake
would consider hiring you back provided you could do as
you are told when you come back," but when asked if he
had specifically spoken to Haywood at that time about his
purported previous working conditions, Smothers replied,
"No, we talked every time he came in on an accident."
When then asked if during the termination conversation he
had spoken to Haywood regarding his asserted attitude
toward work, Smothers first denied discussing this, then
said that he had mentioned a few of the things, and finally
testified that on the day of the termination he had, told
Haywood that he was being laid off mainly because of the
school layoff and did not give any other reasons, to his
knowledge.
As admitted in the answer, Haywood was rehired on July
29, but only as a helper and not as a driver. Schlagel
admitted that the schools were not reopened at the time
that Haywood was rehired and Smothers acknowledged
that Respondent had hired another driver prior to rehiring
Haywood. Apparently, it was the hiring of the other driver
which precipitated Haywood's rehire, for on cross-exami-
nation Haywood testified that when Respondent hired that
individual Union Representative Florez telephoned Schla-
gel, in Haywood's presence, and told Schlagel that
Respondent had just hired another man, that Haywood
was only supposed to have been laid off, and that this was
unfair and improper for Respondent to do. Within a short
time thereafter, Smothers came to Haywood's apartment
and offered him Dennis Lingaas' route, but before
accepting Haywood first contacted Lingaas, who said he
had no idea what was going on, and the two of them
journeyed to Respondent's facility, where Lingaas met with
Schlagel while Haywood waited in the car. Haywood
testified that when Lingaas returned to the car he said that
he had his route back and that Haywood was to come to
work the following Monday morning. When Haywood did
report on Monday, he testified that Smothers simply
assigned him to work as a helper without explanation as to
why he was no longer to be employed as a driver and he
continued in that capacity until the commencement of a
strike on August 9.
F. Discharge of Michael Stangl
Stangl had been employed by Respondent as a helper
,from February 2 until he was reclassified as a driver
following Haywood's termination. His union activities
were confined to attending a union meeting and voting in
the representation election. Additionally, he had told
Smothers, as set forth above, that he intended to vote in
favor of representation when questioned by Smothers prior
to the election and after the election was told by Schlagel
that things would go hard "for them."
On July 16, Stangl remained at home because he was sick
and that evening was told by Lingaas that Smothers had
said that he was fired. Stangl went to Respondent's facility
on the following day where, he testified, Schlagel said that
he would have to check with Smothers to ascertain the
reason for the discharge, adding that Stangl had been too
rough on the trucks. Stangl further testified that Lingaas
had told him that Smothers had said that the discharge was
because Stangl had been missing stops, but, Stangl never
personally talked with Smothers concerning the discharge.
At the hearing, Schlagel and Smothers itemized a series
of complaints regarding Stangl's work. Thus, Schlagel
testified that Stangl was not dependable, that he abused
equipment, that he did not show up for work because of a
purported alcohol problem, and that he had a habit of
missing stops. Smothers testified that Stangl failed to come
to work on the same days of each week, that Stangl had
abused at least one truck, and that there had been
complaints that Stangl had missed stops. However, it is
clear that the reason upon which Respondent rested its
defense to Stangl's discharge was predominately the fact
that the latter was absent excessively . Thus, when called as
a witness by the General Counsel , Smothers testified that
Stangl's absence was "one of the main reasons" for his
discharge , that his discharge was "mainly due to the fact
that he wasn't showing up for work was the main reason,"
and that "The man wasn't coming to work. We had to have
a man come to work." He further testified , when called as a
witness by the General Counsel , that there were other
reasons, but that he did not, at least at that point in his
testimony, recall what they were : "I couldn't even vaguely
guess right now." This , was only confirmed further when
Smothers was called as Respondent 's witness, for he
testified, "Well, Mike was terminated mainly due to the
fact that he wasn't showing up to work, and that made him
unreliable as a driver. During the time he had irritated Jake
several times due to the fact of abuse of equipment was
such , but the main reason like I said before was just he
wasn't dependable . As a worker, you couldn't beat the
man."
Regarding Stangl 's absences , Smothers testified that
Stangl had been absent three or four times within a 2-week
period and that these absences occurred on a Monday, a
Tuesday, or a heavy day. Smothers further testified that on
those occasions where Stangl had been absent due to
illness, he had failed to send in a replacement with the
result that Smothers had been forced to personally run
Stangl's route . On one of these occasions, the Tuesday of
the week preceding Stangl's discharge, Smothers testified
that he went to Stangl's apartment and while Stangl
maintained that he was ill, he agreed to come to work-and
AURORA AND EAST DENVER TRASH DISPOSAL
did come to work at Smothers' persuasion. According to
Smothers, that evening Stangl said that he was glad that
Smothers had asked him to come to work because he now
felt much better. Smothers further testified that Stangl had
said that he had never consulted a physician because of
these illnesses.
Stangl testified that he had been absent three or four
times while he had worked for Respondent, but he also
testified that only two of these absences occurred because
of sickness and that on the other two occasions, when he
had had to be absent because of court appearances, he had
sent in a replacement. He admitted that he had not
consulted a physician when he was absent and he did not
deny Smothers' testimony that on the Tuesday of the week
preceding his discharge he had only come to work after
Smothers had come to his apartment and persuaded him to
do so.
Dennis Lingaas, who was apparently rooming with
Stangl at the time, testified that on the evening of the day
that Stangl was fired Smothers had come to the apartment
inquiring about Stangl and that, when he (Lingaas)
disclosed that Stangl was not at home, Smothers had then
said that Schlagel was "very upset" about Stangl' s missing
work and could no longer keep Stangt. Stangl acknowl-
edged that he had not been home on that evening when
Smothers had visited the apartment.
Lingaas testified that he made efforts to ascertain the
reason for Stangl's termination. Thus, on the night of the
discharge or at a later time, he asked Smothers for the
reason and the latter replied that Stangl was "too hard on
the equipment." Subsequently, Lmgaas inquired of Schla-
gel as to why Stangl had been discharged and was told that
Stangl had torn up a transmission , drank too much and
was not dependable.
Like Lmgaas, Trimm also spoke with Smothers regarding
Stangl's discharge, for he testified that on the day following
the discharge Smothers stated that he had terminated
Stangl, said that charges would be filed on Stangl's behalf,
and asked Trimm for his opinion of the justness of the
discharge. Trimm testified that he replied that if the
discharge had been occasioned by the damaged transmis-
sion on the truck then it had been "definitely wrong," but
that if it had resulted from Stangl's absences then Smothers
could possibly have been right, but that he (Trimm) did not
intend to take sides. Then, testified Trimm, Smothers
attempted to persuade Tnmm to sign an affidavit stating
that the, discharge was justified, but Trimm declined even
when Smothers stated that Bill Munn had already' done so.
During the hearing, Trimm was confronted with a pretrial
affidavit and he acknowledged the truth of a statement
contained therein to the effect that Smothers had told him
that Stangl had been terminated because he was sick and
that he had been sick because he had been drinking. It is
unclear,, however, whether this statement was made during
the conyersation' between Smothers and Trimm set forth
above or whether it was made during a separate conversa-
tion.
IV. ANALYSIS
A. Introduction
9
On July 31, the Regional Director for Region 27 set aside
the informal settlement agreement which he had previously
approved on May 28 and which had been executed by
Respondent following issuance of a complaint and notice
of hearing alleging .that Respondent had violated Section
8(a)(1) of the Act through Schlagel's conduct in January.
Respondent contends that the Regional Director acted
improperly in setting aside the settlement agreement.
Section 101.9(e)(2) of the Board's Statements of Proce-
dures, Series 8, as amended, provides: "In the event the
respondent fails to comply with the terms of an informal
settlement agreement, the regional director may set the
agreement aside and institute further proceedings." The
General Counsel does not contend that Respondent failed
to post the notice to employees as required by the
settlement agreement executed by Respondent, and Com-
pliance Officer Legler's letter of July 22 appears to support
Respondent's contention that it was abiding by the terms
of the agreement. However, as part of that settlement
agreement, Respondent had agreed that it would not "in
any manner interfere with, restrain, or coerce" its employ-
ees in the exercise of their rights under Section 7 of the Act.
"It is well established that a settlement agreement may be
set aside where independent evidence of subsequent or
continuing unfair labor practices reveal a breach of the
agreement ." Tompkins Motor Lines, Inc., 142 NLRB 1, 3
(1963), enforcement denied on other grounds 337 F.2d 325
(C.A. 6, 1964). Accord: United Dairy Co., 146 NLRB 187,
189 (1964). Thus, while Respondent may well have been
complying procedurally with the terms of the settlement
agreement which it signed, if it has committed "subsequent
or continuing unfair labor practices," then it violated the
terms of that agreement and the Regional Director acted
properly in setting it aside.
The fundamental question, therefore, is whether Respon-
dent committed any unfair labor practices following
approval of the settlement agreement. In this regard, the
complaint alleges but two postsettlement unfair labor
practices: the termination of Lawrence Haywood on June
10 and the discharge of Michael Stangl on July 16. In
analyzing these matters, I shall, consistent with Board
policy, consider the presettlement conduct of Respondent
only as background evidence in appraising Respondent's
motives and objectives. Northern California District of
Hodcarriers and Common Laborers of America, AFL-CIO,
et al. (Joseph Mohamed, Sr., an Individual, d/b/a Joseph's
Landscaping Service), 154 NLRB 1384 (1965), fn. 1, enfd.
389 F.2d 721, 724-725 (C.A. 9, 1968); Steves Sash .& Door
Company v. N.L.R.B., 401 F2d 676, 678 (C.A. 5, 1968);
Globe Gear Company, 189 NLRB 422, fn. 1(1971).
B. Whether Frank W. Smothers is a Supervisor
Within the Meaning of Section 2(11) of the Act?
An initial question which must be resolved prior to
considering the alleged unfair labor practices of Respon-
dent is the issue of whether or not Frank W. Smothers is a
supervisor within the meaning of Section 2(11) of the Act
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and an agent of Respondent within the meaning of Section
2(2) and (13) of the Act. In reality, there are two issues
involved: first, whether Smothers, as foreman, is a
supervisor and agent of Respondent, and, secondly, if so,
when did he achieve that status.
Regarding the first of these issues , under Section 2(11) of
the Act, a supervisor is defined as:
... any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote , discharge , assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
Possession of any one of these powers is sufficient to confer
supervisory status upon the individual possessing that
power . N.LRB. v. Edward G. Budd Mfg. Co., 169 F.2d 571,
576 (C.A. 6, 1948), cert. denied 335 U.S. 908 (1949); Ohio
Power Co. v. N.LRB., 176 F.2d 385, 387, cert. denied 338
U.S. 899 (1950).
While Smothers attempted to minimize his role in the
discharges of Haywood and Stangl, it is quite evident that
at the very least his role in arriving at the decisions to
terminate these two employees was instrumental . Thus, on
the night of his discharge, Haywood was told by Schlagel
that he (Schlagel) would have to speak with Smothers to
ascertain if Haywood had been laid off or fired and on the
following day Schlagel continued to avoid Haywood's
queries by saying that he had not yet had an opportunity to
speak with Smothers regarding the matter. In view of the
fact that I am fording that Haywood was discharged
unlawfully, it may well be that Schlagel was merely
attempting to fend off Haywood's inquiries until he
(Schlagel) had an opportunity to ascertain what Smothers
had said to Haywood. However, it is more than clear that
when Stangl, who I am not finding to have been discharged
unlawfully, asked Schlagel the reason for his discharge,
Schlagel said that he would have to check with Smothers to
find out the reason. That it would be logical for Smothers
to be the individual who made decisions regarding the
selections of employees for layoffs and discharges is
illustrated by Schlagel's testimony that he had many other
things to do to run his business and, consequently, was not
at the Aurora facility all the time with the result that
Smothers was more familiar with the employees.
Certain other factors, moreover, tend to support the
conclusion that Smothers is a supervisor. Thus, while the
matter does not appear to require the exercise of substan-
tial independent judgment, Smothers is still the individual
who is responsible for making route assignments and, more
significantly, for being certain that the routes are serviced.
The employees believed that he was a supervisor and
although he testified that he acted merely as a conduit
from Schlagel in issuing orders, there is no evidence that
the employees were told that Smothers was acting merely
as a conduit. American Book Division, Litton Educational
Publishing, Inc., 214 NLRB No. 44 (1974). Further,
Schlagel has sought Smothers' opinion regarding whether
or not to hire one of the two applicants for employment
during the time that Smothers was admittedly the foreman
and, as Schlagel is not at the Aurora facility at all times, he
relies upon Smothers' greater familiarity with the employ-
ees when making decisions concerning personnel. Smoth-
ers drives a truck only when a driver does not report for
work and, thus, apparently does little work similar to that
performed by Respondent's employees. He is paid at least
$50 per week more than are the drivers and is responsible
for opening the shop in the morning.
In these circumstances, I find that Smothers is a
supervisor within the meaning of Section 2(11) of the Act.
This, however, does not end the matter, for Respondent
contends that Smothers was not appointed foreman until
mid-May, after the representation election. Yet, it is clear
that Smothers assumed Trimm's duties virtually immedi-
ately after the latter's demotion and at the hearing
Respondent appeared to acknowledge that Trimm had
been a supervisor prior to his demotion . Moreover,
Erickson, whom I credit in all respects , testified that
Schlagel had told him that "Frank is the Foreman from
now on." Moreover, Smothers admitted that he had led the
employees to believe that he was a supervisor, because "it
is my nature," and, in fact, told Erickson that he had been
made foreman. While Erickson placed this statement as
being made in late January, prior to the time that Trimm
had been demoted, I do not find that this discrepancy
affects Erickson's credibility as to the substance of
Smothers' remark, since it is no more than "confusion as to
details." See: N.LR.B. v. International Longshoremen's and
Warehousemen's Union, Local 10, et al. [Pacific Maritime
Assn.], 283 F.2d 558, 563 (C.A. 9, 1960).
Therefore, I ford that Smothers became foreman imme-
diately following the demotion of Trimm, and that
thereafter he was a supervisor within the meaning of
Section 2(11) of the Act and, accordingly, an agent of
Respondent within the meaning of Section 2(2) and (13) of
the Act.
C. Whether Respondent Discharged Employee
Lawrence Haywood and Thereafter Failed and
Refused To Reinstate Him, and, if so, Whether
Respondent Thereby Violated Section 8(a)(3) and (1)
of the Act?
Despite his initial attitude of neutrality toward unioniza-
tion of his employees, it soon became evident that Schlagel
was adamantly opposed to dealing with the Union. Thus, I
credit Erickson's testimony that on January 17, Schlagel
expressed opposition to unionization of his employees,
promised to improve Erickson's insurance, hours, and
wages, and promised to reclassify Erickson to driver status.
I credit Trimm's testimony, for reasons set forth in section
IV,F, infra, that on January 25, he and Pell were
interrogated by Schlagel concerning their reasons for
seeking representation and that Schlagel appealed to the
assembled employees to deal with him on an individual
basis, threatened to close his business if forced to deal with
the Union, and expressed the intention to promulgate a
petition whereby the employees could revoke their authori-
zations to the Union to represent them. I also credit
Trimm's testimony that on Monday or Tuesday of the
following week, Schlagel attempted to persuade Trimm
AURORA AND EAST DENVER TRASH DISPOSAL 11
and a group of five employees to sign such a petition and
that on the evening of January 28 Schlagel again attempted
to persuade Pell and Trimm to sign the petition , this time
threatening that Trimm might be replaced as foreman if he
failed to sign the petition . I credit Erickson's testimony that
thereafter Schlagel offered him a $20 raise if he would sign
the petition and I credit Trimm 's testimony that when he
persisted in his refusal to sign the petition Schlagel
demoted him for "participating in activities like this" and
replaced him with Smothers , who then conducted Respon-
dent's antiunion campaign through the spring . Thus, I
credit Erickson's -testimony that he was promised better
benefits, a better route , and a raise by Smothers if he would
sign Respondent's antiunion petition . I credit Trimm's
testimony that he was interrogated by Smothers concern-
ing his attitude toward the Union and his intentions
regarding how he would cast his ballot in the representa-
tion election, and that Smothers later threatened that
employees involved in union activities would lose their
jobs . I credit Lingaas ' testimony that he was interrogated
by Smothers as to , how he intended to vote in the
representation election and that Smothers warned that he
might be assigned Respondent's poorest truck if he
supported the Union . I credit the testimony of Haywood
and Stangl that they were interrogated by Smothers as to
how they intended to vote in the election ; and I credit the
testimony of Haywood that he was warned by Smothers to
vote against representation if he (Haywood) intended to
continue working for Respondent. Without regard to
whether or not these comments violate Section 8(a)(1) of
the Act, they demonstrate that Respondent was hostile
toward the Union , was attempting to ascertain the
identities of those who would vote for the Union in the
election, and was attempting to dissuade employees from
voting for and supporting the Union both by promises of
better benefits and working conditions and by threats of
plant closure and job loss should Respondent be forced to
deal with the Union.
Nor did the Respondent's attempts to ascertain who
supported the Union cease following the May 1 representa-
tion election, for Smothers admitted that. he questioned all
of the employees in an effort to determine which of them
had been the one who had promised to vote against
representation, but had voted instead in favor of the
Union . That Haywood was a prime suspect is illustrated by
the fact that on the day following the election Schlagel
asked if Haywood ' had "doublecrossed" him by voting in
favor of the Union and Haywood , who to this point had,
unlike Stangl, not disclosed his intentions regarding how he
would vote in the election , succeeded in allaying Schlagel's
suspicions only by promising to swear on a Bible that he
had not voted in favor of the Union. This success obviously
culminated -when Haywood disregarded the appeals of
both Smothers and Schlagel (`It's not too late to make it
up to me.") to falsely tell the Board that he had voted in
the election under threats by Trimin and Singleton. In so
doing,, Haywood not only frustrated Respondent 's plan, as
stated by Smothers, to nullify the results of the election and
afford Respondent an opportunity to obtain a new election
among nonunion employees , but his refusal also indicated
that he had, in fact, been the fourth individual whose
identity Smothers had been attempting to learn.
Schlagel and Smothers made every effort to disguise the
real reason for Haywood's termination, but their efforts
merely created conflicts and contradictions which served
only to buttress the conclusion that Haywood 's discharge
was unlawfully motivated , for as the United States Court
of Appeals for the Ninth Circuit stated in N.LR .B. v. C.
W. Radcliffe and W. W. Mancke, co-partners, d/b/a
Homedale Tractor & Equipment Company, 211 F.2d 309,
314 (1954): "Me failure to give a reason, or the giving of
evasive , inconsistent, or contradictory reasons by manage-
ment for the discharge of employees , properly, may be
considered by the Board, as it was in the instant case, in
determining the real motive which actuated the discharg-
es." As is pointed out in greater detail in section III, E,
supra, regarding the manner in which Respondent arrived
at the decision to terminate Haywood, Smothers initially'
testified that Schlagel instructed him to select either
Haywood or Nollett for layoff and that ultimately he
reported to Schlagel that he had selected Haywood.
Smothers then testified that during the day of the
termination Schlagel had observed Haywood disregarding
orders by permitting Stangl to drive the truck and had said,
"That makes our decision final." In the end, Smothers
testified that, after a discussion of the pros and cons of
Haywood and Nollett , Schlagel made the decision to lay
off Haywood . Smothers' testimony regarding the manner
in which, Haywood was selected was not corroborated to
any great extent by Schlagel who, instead, created his own
contradiction by first testifying that he had left it to
Smothers to make the decision as to whom to select and by
immediately thereafter contradicting this by testifying that
it was a "combination of decisions that we probably made
together."
Smothers was equally inconsistent and contradictory
regarding what he told Haywood on June 10 when
communicating the termination decision . He first testified
that he simply told Haywood that he was laid off and
would be called back as soon as the schools went back into
session, but he then testified that he had told Haywood
that Schlagel would only "consider" hiring him back if he
did as he was "told." He testified that he did not speak
with Haywood about his work record during the conversa-
tion, but later testified that he had mentioned a few of the
things and, finally, testified that he did not give any
reasons to Haywood other than the termination of the
school year.
Respondent 's position became yet more untenable when
it attempted to advance reasons for the selection of
Haywood for termination on June 10. Smothers testified
that one reason had been Haywood 's unwillingness to
follow orders and he illustrated what he meant by referring
to an incident where Haywood had refused to pick up trash
at the telephone company and by citing Haywood's
disregard of Schlagel's instruction not to permit Stangl to
drive the truck. Yet, the telephone company incident
occurred on the evening of June 10 after the decision had
been made to terminate Haywood ,and, accordingly, could
not have been considered when making that decision.
Further , while Smothers testified that on June 10 Schlagel
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had become "pretty mad" when he discovered Stangi
driving the truck, Schlagel did not corroborate Smothers'
testimony regarding such an incident on June 10 and,
following Haywood's termination, Respondent assigned
Stangl to replace Haywood as the driver on the routes
which Haywood had been servicing, notwithstanding the
fact that Stangl's driving record was anything but exempla-
ry. In fact, even had Stangl been driving the truck as
asserted by Smothers, that would have meant that both he
and Haywood had been guilty of disobedience and yet no
thought was apparently given to disciplining Stangl.
Rather, he was reclassified from the status of helper to that
of driver. Moreover, I credit Stangl's testimony that
following the postelection prohibition of his driving he
drove the truck only once and then only because Haywood
had become ill.
With regard to the remaining matters cited by Respon-
dent as a basis for terminating Haywood, while Stangl may
have serviced the routes faster than had Haywood,
Respondent has not established that it derives any
substantial advantage from such speed and it is difficult to
conclude that any significant advantage would accrue to
Respondent by virtue of the speed of servicing routes, since
each driver is assigned a route on each working day which
must be serviced completely. I credit Haywood with regard
to the remaining incidents raised by Smothers and,
consequently, find Haywood did not tear a hole in the
truck while backing it out of the garage, did not "back
into" a city of Aurora truck, and did not "wipe out" a
barbed wire fence.
What I find, rather, is a Respondent which became
angered when its employee refused to cooperate in an
attempt to set aside an election in which a labor
organization had prevailed and when' this refusal disclosed
that that employee had in all probability "lied" by voting
in favor of a labor organization in that election. Thus, it
availed itself of the first opportunity to terminate that
employee in retaliation and, thereafter, attempted to create
a dual defense to cloak its real motivation - namely, that
the employee was a poor employee for various reasons and
that, in any event, the employee was only laid off because
of a decline in business. It was in the latter connection that
an independent 'event contributed to the collapse of
Respondent's position, for, as pointed out above, on July
17, Smothers gave'an affidavit to the Board stating, in part,
that Haywood had been "laid off, not fired for the lack of
work." On the previous evening, however, Stangl had been
terminated and, in an apparent effort to replace him,
Respondent hired another driver. When this came to the
Union's attention, Florez called Schlagel to protest, in the
process disclosing the inconsistency of Respondent's
conduct in hiring another driver with its defense that
Haywood was merely on layoff status. Respondent then
made what can best be characterized as a somewhat
frenzied effort to act consistently with the position which
Smothers had advanced to the Board by first attempting to
rehire Haywood for Lingaas' route, but when met with
objections by Lingaas, then rehired Haywood as a'helper,
asserting that this had been its intention all along - a
matter clearly refuted by its initial overture to Haywood
when it offered him the job as driver on the route that
Lingaas had been servicing. Further, if, as Respondent
asserted , it had been its intention from the beginning to
rehire Haywood as a helper when the 1974-75 school year
commenced, then why hire him back as a helper on July
29, when, as Schlagel admitted, the schools had not yet
opened?
Therefore, I find that Respondent discharged Haywood
on June 10, that it discharged him because of his support
for the Union and his declination to aid Respondent in
setting aside the election in which the Union had prevailed,
and that it did not reinstate him on July 29 when it rehired
him as a helper . Therefore, I find that Respondent violated
Section 8(a)(3) and (1) of the Act.
D. Whether Respondent Violated Section 8(a)(3)
and (1) of the Act by Discharging and by Failing
and Refining To Reinstate Michael Stangl?
While I have found that Respondent was unlawfully
motivated in discharging Haywood on June 10, I do not
believe that the evidence will support a similar conclusion
regarding the discharge of Stangl on July 19.
Stangl's activity in connection with the Union's cam-
paign was , like Haywood's, minimal and following the
election Schlagel told Stangl that the employees would lose
and that things would go hard for them. On the following
day, Schlagel prohibited Stangl from driving the truck, a
proscription that may have been occasioned by Stangl's
prior expressions of intention to vote for the Union, but
which may also have been motivated by Stangl's poor
driving record. Significantly, the General Counsel has
made no allegation that this prohibition on Stangl's driving
was an unfair labor practice.,In any event, from that day
until his discharge on July 19, Stangl, so far as the record
discloses, engaged in no protected concerted activities and,
more specifically, in no activities on behalf of the Union.
Moreover, there is no evidence that Respondent thereafter
engaged in any unlawful conduct with regard to Stangl or
that it expressed any animus either to him or about him.
Indeed, had Respondent been seeking a pretextual
reason to discharge Stangl , it would, without doubt, have
done so on June 10 when it discharged Haywood , for one
of its defenses to the latter's termination was that he had
allowed Stangl to drive the truck after both of them had
been told specifically that Stangl was not to do so. Stangl's
driving record could, likewise, have provided,a basis for
discharging him had Respondent truly been seeking a
reason to advance as a pretext for an unlawfully motivated
discharge. Yet, Respondent did not discharge Stangl
despite the existence of these circumstances . See: Jenkins
Manufacturing Company, 209, NLRB 439 (1974). Instead,
despite his driving record, Respondent promoted Stangl
from helper to driver and gave him Haywood' s; route -
hardly the act of a respondent bent on engaging in reprisals
against a prounion employee. Following this reclassifica-
tion , Stangl serviced the routes without apparent incident
other than his absences. In these circumstances, even were
I not to credit Smothers' testimony that he discharged
Stangl because of the latter's absence record , 'I do not
believe that the General Counsel has established a prima
facie showing of unlawful motivation with respect to the
discharge of Stangl, for as the Board pointed out in Shelby
AURORA AND EAST DENVER TRASH DISPOSAL 13
Liquors and Athens Distributing Company, A Division of
Shelby Liquors, 208 NLRB 858 (1974): "Thus, whether or
not Respondent's reasons for the discharge `ring true,' the
absence of affirmative evidence of . . . discriminatory
motivation compels the finding that a violation of Section
8(a)(3) has not been established." Accord: CPE Industries,
Ltd., 202 NLRB 782, 787 (1973).
In point of fact, however, there are certain factors
present in the instant case which indicate that Smothers'
reason for the discharge of Stang]. does "ring true." First,
Stangl did not deny that when he was absent on Tuesday
of the week preceding his discharge Smothers came to his
apartment and persuaded him to report for work. Surely,
Smothers would have not gone to this trouble if Stang]. s
absence was a matter of small moment. Second, Stang].
admitted that he had in fact been absent on the day of his
discharge and he further acknowledged that he was not at
the apartment that evening when Smothers, who had been
concerned about the fact that despite his illnesses Stang].
had not seen a physician, came to Stangl's apartment.
Consequently, ". . . the timing of the discharge is more
clearly consonant with its asserted cause since it follows
immediately after . . . ." this absence, rather than immedi-
ately after Stangl's expressions of support for the Union
voiced 2-1/2 months earlier. See: Redwood Construction
Co., Inc., 214 NLRB No. 76 (1974). Third, when Trimm
spoke with Smothers after the discharge, Trimm admittedly
acknowledged that Smothers may have been correct if he
had discharged Stang]. for absences .6 This would appear to
be a most valid observation, for absence by a driver
necessitates that his route be serviced either by Smothers,
who must abandon his normal duties, or by another driver,
who must then work additional time. As the Board
observed in a somewhat similar, albeit more extreme,
situation: "Even where an employee may report the
reasons for continued absence, or may have what, appear to
be justifiable excuses for such absences, an employer may
well decide that an absence-prone employee is of no value
to his business." Maryland Cup Corporation, 178 NLRB
389, 390 (1969).
It may well be that Respondent was pleased to be rid of
Stangi because he. had supported the Union in the
representation election. But, as the Board stated in Klate
Holt Co., 161 NLRB 1606, 1612 (1966):
The mere fact that an employer may desire to terminate
an employee because he engages in unwelcome
concerted activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges 'him for that reason, the circumstance that
the employer welcomed the' opportunity to discharge
does not make it' discriminatory and therefore unlaw-
ful.
6 I place no particular weight upon Smothers' request that Tnmm sign an
affidavit stating that Stangl's discharge had been justified Smothers had
pointed out to Tnmm that charges would be filed on Stangl's behalf and, on
the same day as this conversation with Trimm, Smothers gave an affidavit in
connection with the discharge of Haywood. There was no allegation and no
evidence that this request was accompanied by threatening or coercive
Therefore, I find that Respondent did not violate Section
8(a)(3) and (1) of the Act when it discharged Michael
Stangl on July 19 and when it thereafter failed and refused
to reinstate him. Accordingly , I shall recommend that this
allegation be dismissed.
E. Whether the Regional Director for Region 27 of
the National Labor Relations Board Was Justified in
Setting Aside the Settlement Agreement in Case,
27-CA-4026?
In the settlement agreement which it executed in Case
27-CA-4026 , Respondent agreed that it would not "in any
manner interfere with , restrain , or coerce" its employees in
the exercise of their rights under Section 7 of the Act. The
settlement agreement was approved on May 28 and I have
found that on June 10 Respondent discharged Lawrence
Haywood in violation of Section 8(a)(3) and (1) of the Act.
Since Haywood's unlawful discharge constitutes a subse-
quent unfair labor practice , it is a breach of the settlement
agreement.
Therefore, I find that the Regional Director for Region
27 of the National Labor Relations Board acted properly
in setting aside the settlement agreement in Case 27-CA-
4026.
F. Whether Respondent, Through Jake Schiagel,
Jr., Violated Section 8(a)(1) of the Act by Engaging
in Various Acts and Conduct?
Despite the rather extensive evidence of comments made
by Schlagel during the preelection and postelection
periods, the General Counsel has alleged only conduct
occurring in January to be an unfair labor practice insofar
as Schlagel is concerned and, then,'only certain specified
conduct occurring on or about January 25 and on or about
January 25 to 29.
With regard to the January 25 conduct, General Counsel
alleges that Schlagel interrogated employees, threatened
employees with plant closure if the Union were selected as
their bargaining representative, and sought employees'
signatures on an antiunion petition.
The record discloses that on January 25, Schlagel
conducted a meeting of employees, the substance of which
was testified to by Darrell Pell and Wayne Trimm'.
Initially, I feel that it should be noted that I credit Pell only
to the extent that his testimony is corroborated by other
witnesses . He appeared to be embellishing his testimony
and examination of the record confirms that impression.
Thus, his testimony regarding Erickson's argument with
Schlagel over not signing the petition to revoke the Union
until Erickson had had an opportunity to have his lawyer
review it was not corroborated by Erickson who would be
unlikely to forget such an event. Moreover, Pell's testimony
concerning the night meeting which, he and Trimm had
with Schlagel went well beyond the description given by
Trimm, who I believe to be thoroughly credible, and
comments by Smothers and, accordingly, I construe the request as nothing
more than an effort by Smothers to accumulate evidence in support of
Respondent's position when the charge was filed on behalf of Stangl. Surely
it is not an unfair labor practice to attempt in a noncoercive manner to
gather evidence in support of one's position.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encompassed matters, such' as Schlagel's purported insist-
ence that Pell swear on a Bible that he had not lied about
three trash cans which had disappeared and Schlagel's
asserted offer to draw up a contract between himself and
the employees, that Trimm would be unlikely to omit from
his testimony if they had taken place.
Nonetheless, it is clear from Trimm's testimony, as
corroborated by that of Pell, that during the January 25
meeting Schlagel did ask what the motives of Trimm and
Pell had been in trying to organize a union, which I find to
substantiate the charge of unlawful interrogation, particu-
larly in light of Schlagel's subsequent comments during this
meeting; and did state that if the employees could not
negotiate with him as individuals then he might as well
close and go out of business, which I fmd to constitute a
threat to close the plant if the employees selected the
Union as their bargaining representative. I further find that
during this same meeting Schlagel stated that he wanted to
get a petition started to revoke the employees' authoriza-
tion of the Union to act as their representative and, based
upon Trimm's testimony that on Monday or Tuesday of
the following week Schlagel requested that he and five
employees sign such a petition and upon Trimm's further
testimony, as corroborated by Pell, that on the evening of
January 28, Schlagel again requested Pell (Trimm at the
time was a supervisor) to sign the petition, I fmd that on or
about January 25 Schlagel did request that the employees
sign an antiunion petition.
Finally, General Counsel alleges that on or about
January 25 to 29 Schlagel made promises of benefits and
threats of reprisal to employees should they select the
Union as their bargaining representative. Since I do not
credit Pell's uncorroborated testimony, the only evidence
of a threat made by Schlagel which has not been
encompassed by the above-mentioned threat of plant
closure is a statement made by Schlagel to Trimm during
the evening meeting which Pell and Trimm had with
Schlagel, wherein the latter said, after Trimm had refused
to sign the antiunion petition, that Trimm's insurance rates
had increased and that he was thinking of removing Trimin
as foreman. In view of the context of this comment, arising
after Trimm had refused to sign the petition and in the
presence of Pell and possibly also of Bill Munn, both of
whom are employees, I fmd that Schlagel's comments
about removing Trimm as foreman could fairly be
construed as a threat to take this action because Trimm
was refusing to sign the antiunion petition. Accordingly, I
find that Schlagel's comment did violate Section 8(a)(l).
Further, in late January or possibly early February,
Erickson, whose testimony I credit, was offered a $10 raise
and then a $20 raise by Schlagel if he would sign the
petition. Since this constitutes a promise of benefit to an
employee to forgo selection of the Union as his bargaining
representative , I find that it is also a violation of Section
8(a)(1) of the Act,
Therefore, I find that in late January, Respondent,
through Jake Schlagel, Jr., violated Section 8(a)(l) of the
Act by interrogating employees, threatening to close the
plant if the Union were selected as the employees'
bargaining representative , seeking employees' signatures
on an antiunion petition, and making promises of benefits
and threats of reprisals to induce employees to cease
supporting the Union.
G. Whether Respondent, Through Frank W.
Smothers, Violated Section 8(a)(1) of the Act by
Engaging in Various Acts and Conduct?
As was the case with the allegations regarding Schlagel's
conduct, only certain conduct engaged in by Smothers is
alleged to violate Section 8(a)(1) of the Act. Thus, the
General Counsel alleges that during the last week of April
Smothers interrogated an employee regarding his union
sympathies, and that on or about May 1 Smothers
threatened to terminate the employees if they selected the
Union as their representative and promised benefits to
employees if they voted against the Union in the
representation election. Lingaas testified, credibly, that
about 1 week before the election Smothers asked how he
intended to vote and said that if Lingaas intended to vote
for the Union his job would not be very secure and he
could wind up with Respondent's worst truck. Similarly,
prior to the election, Smothers asked both Haywood and
Stangl how they intended to vote in the election and he
told Haywood that the employees could get the benefits of
the Union without having it in the shop and that if the
employees persisted in their intent to vote in favor of the
Union they would lose their jobs. Haywood also testified
that on numerous occasions before the election Smothers
would remind him to vote against the Union if he intended
to continue working for Respondent. This testimony by
Stangl and Haywood is undenied and I credit it. Accord-
ingly, I find that Respondent did violate Section 8(a)(1) of
the Act by Smothers' interrogation , threats, and promises
of benefits in his conversations with Lingaas, Haywood,
and Stangl.
The General Counsel further alleges that Smothers
violated Section 8(a)(l) by interrogating an employee as to
how he voted in the election on or about May 2. In fact,
Smothers admitted that he had questioned all of the
employees in an effort to ascertain the identity of the
fourth individual who had voted in favor of the Union.
Accordingly, I fmd that this allegation is admitted and that
Respondent violated Section 8(a)(1) by virtue of Smothers'
interrogation.
Finally, the General Counsel alleges that Respondent
violated Section 8(a)(1) by virtue of Smothers' efforts to
persuade Haywood to tell the Board's investigator that he
(Haywood) had been threatened by Trimm or Singleton, so
that the election would be set aside and a new election
conducted after Respondent had had the opportunity to
replace the prounion employees with antiunion employees.
While Smothers denied suggesting to any employee that he
make false statements to the Board 's agent, he did admit
that there had been a conversation between Haywood and
himself during which the matter of what Haywood would
tell the Board's investigator was discussed. While Smothers
contended that the conversation was occasioned by his
belief that Haywood had been told that he would have to
pay the $50 deductible for an accident, there was no
evidence presented by Respondent to establish that such
an accident had ever occurred and, clearly, the three "odd-
ball accidents" that Smothers made reference to in
AURORA AND EAST DENVER TRASH DISPOSAL 15
connection with Haywood's discharge were not chargeable
in the sense that there was no damage to Haywood's
vehicle other than the paint scratch on the front fender
resulting when Haywood drove the truck to the right to
avoid striking an oncoming child on a bicycle. I credit
Haywood's testimony concerning what Smothers said to
him.
Therefore, I find that Respondent violated Section
8(a)(1) of the Act by virtue of Smothers' interrogations of
employees concerning how they intended to vote and how
they had voted, by Smothers' threats to employees that
they would lose their job if they selected the Union as their
representative, by Smothers' promise that the employees
could get the benefits of the Union without having it in the
shop, and by Smothers' appeal to Haywood to give a false
statement to the Board so that another election could be
obtained.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the Respondent's operations described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States, and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist • therefrom and that it take certain
aff rrnative action to effectuate the policies of the Act.
With regard to the latter, Respondent will be required to
offer Lawrence Haywood reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position without prejudice to his
seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been hired to perform the
work which he had been performing prior to the time that
he was discharged on June 10. Additionally, Respondent
will be required to make Haywood whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge with the backpay to be computed on a quarterly
basis , making deductions for interim earnings, and with
interest to be paid at the rate of six percent per annum. F.
W. Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), enforce-
ment denied on different grounds 322 F.2d 913 (C.A. 9,
1963).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
7 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.
3. By discharging and thereafter failing and refusing to
offer reinstatement to Lawrence Haywood because he
refused to assist Respondent in setting aside an election
conducted by the Board and because he supported the
Union, Respondent has discriminated in regard to hire or
tenure of Haywood's employment, in violation of Section
8(a)(3) and (1) of the Act.
4. By interrogating employees regarding how they
intended to vote and regarding how they did vote in a
representation election conducted by the Board, by
interrogating employees regarding what their motives had
been in trying to obtain representation by a labor
organization, by threatening employees with termination,
with plant closure, and with other reprisals if they selected
the Union as their bargaining representative, by promising
to increase benefits if the employees would forgo represen-
tation by the Union, by soliciting employees' signatures on
a petition withdrawing the Union's authorization to
represent them, and by attempting to persuade an
employee to give false information during an investigation
by the Board, Respondent has violated Section 8(aXl) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate Section 8(aX3) and (1) of
the Act when it discharged Michael Stangl on or about
July 19 and thereafter failed and refused to reinstate him.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER?
Respondent Jack Schlagel, Jr., an Individual, d/b/a
Aurora and East Denver Trash Disposal, Aurora, Colora-
do, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment for engaging in any
union activity protected by Section 7 of the Act.
(b) Interrogating employees regarding how they intend
to vote or how they have voted in representation elections
conducted by the Board, interrogating employees regard-
ing their motives in attempting to obtain representation by
a labor organization, threatening employees with termina-
tion, plant closure, and with other reprisals if they select a
union as their collective-bargaining representative, promis-
ing increased benefits to employees if they forgo represen-
tation by a labor organization, soliciting employees'
signatures on petitions withdrawing support from a labor
organization as their representative, and attempting to
persuade employees to give false information during an
investigation by the Board.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
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.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Lawrence Haywood immediate and full
reinstatement to his former position of employment as a
truckdriver, dismissing, if necessary, anyone who may have
been hired or retained to perform the work which he had
been performing prior to the time that he was discharged
on June 10, or, if his former position does not exist, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered as the result
of the discrimination, in the manner set forth above in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of
backpay and reinstatement rights due under the terms of
this Order.
(c) Post at its Aurora, Colorado, facility copies of the
attached notice marked "Appendix."8 Copies of the notice
on forms provided by the Regional Director for Region 27,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint
be, and it hereby is, dismissed insofar as it alleges a
violation concerning the discharge and refusal to reinstate
Michael Stangl.
8 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National LaborRelations Board."
APPENDIX
NOTICE To EMPLOYES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE wILL offer to reinstate Lawrence Haywood to his
former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to
any of his rights and privileges, and wE wiLL make him
whole for any wages which he has lost as a result of our
discrimination against him.
WE WILL NOT interrogate you concerning how you
intend to vote or how you have voted in representation
elections conducted by the National Labor Relations
Board
WE WILL NOT interrogate you concerning your
motives in attempting to obtain representation by labor
organizations.
WE WILL NOT threaten you with termination, with
closure of our Aurora facility or with any other
reprisals because you desire to be represented by a
labor organization.
WE WILL NOT promise to increase your benefits to
persuade you not to support a labor organization.
WE WILL NOT solicit you to sign petitions opposing
labor organizations.
WE WILL NOT attempt to persuade you to give false
information to the National Labor Relations Board.
WE WILL NOT in any other manner interfere with any
of your rights under the National Labor Relations Act
set forth above.
JAKE SCHLAGEL, JR., AN
INDIVIDUAL, D/B/A AURORA
AND EAST DENVER TRASH
DISPOSAL