County Waste of Ulster

National Labor Relations Board - Board Decisions

Feb 11, 2009

353 N.L.R.B. 842 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 89
842
County Waste of Ulster, LLC and Laborers Interna-
tional Union of North America, Laborers Local
108, AFL–CIO and Local 124, R.A.I.S.E.,
IUJAT, Party in Interest.
County Waste of Ulster, LLC and Laborers Interna-
tional Union of North America, Laborers Local
108, AFL–CIO, Petitioner, and Local 124,
R.A.I.S.E., IUJAT, Intervenor. Cases 2–CA–
37437 and 2–RC–22858
February 11, 2009
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 9, 2007, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
and the Party-in-Interest (Local 124, R.A.I.S.E., IUJAT)
filed exceptions and supporting briefs; the General
Counsel and Charging Party Laborers International Un-
ion of North America, Laborers Local 108, AFL–CIO
filed answering briefs; and the Respondent and the Party-
in-Interest filed reply briefs.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions, only to the extent consistent with
this Decision, Order, and Direction of Second Election.
The judge found that the Respondent engaged in ob-
jectionable conduct by granting a Christmas bonus to its
employees, and that it violated Section 8(a)(2) of the Act
by allowing Local 124 to distribute the bonus to employ-
ees. We adopt these findings for the reasons set forth in
the judge’s decision.
The judge also found that the Respondent’s grant of
the bonus violated Section 8(a)(1) of the Act. However,
unlike the 8(a)(2) distribution violation, the grant of bo-
nus was not alleged as a 8(a)(1) violation in the com-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
plaint; it was alleged only as an election objection. In
finding the Section 8(a)(1) violation, the judge did not
mention the absence of a complaint allegation and con-
sequently did not make the determination critical to find-
ing an unalleged violation—whether the issue was
“closely connected to the subject matter of the complaint
and [was] fully litigated [at the hearing].” Pergament
United Sales, 296 NLRB 333, 334 (1989).
Because of these omissions, we shall remand this issue
to the judge to clarify whether he intended to find an
unalleged violation and, if so, whether the finding is war-
ranted under Pergament, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, County Waste of Ulster, LLC, Montgomery,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Assisting Local 124, R.A.I.S.E., IUJAT (Local
124), by allowing Local 124 to distribute bonuses to em-
ployees on company time and premises in order to influ-
ence them to vote for Local 124 instead of Laborers In-
ternational Union of North America, Laborers Local 108,
AFL–CIO.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facilities in Montgomery and Kingston, New York,
copies of the attached notice marked “Appendix.”3 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, it
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since December
1, 2005.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
COUNTY WASTE OF ULSTER, LLC 843
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the finding in Case 2–
CA–37437 that the Respondent’s grant of a bonus vio-
lated Section 8(a)(1) of the Act is severed and remanded
to Administrative Law Judge Raymond P. Green for the
purposes described above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the applicable decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
IT IS FURTHER ORDERED that the election held in Case
2–RC–22858 is set aside and that Case 2–RC–22858 is
severed from Case 2–CA–37437 and remanded to the
Regional Director for Region 2 for the purpose of con-
ducting a new election.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT assist Local 124, R.A.I.S.E., IUJAT
(Local 124), by allowing Local 124 to distribute bonuses
to you on company time and premises in order to influ-
ence you to vote for Local 124 instead of Laborers Inter-
national Union of North America, Laborers Local 108,
AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
COUNTY WASTE OF ULSTER, LLC
Allen M. Rose, Esq., for the General Counsel.
Stuart Weinberger, Esq., for the Respondent.
Haluk Savci, Esq., for Local 108.
Stephen Goldblatt, Esq., for Local 124.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on October 31, November 21 and 22, and December 18,
2006, and March 13, 2007. The charge was filed on January 17
and amended on February 16, 2006. The complaint, which
issued on July 31, 2006, alleged as follows:
1. That in December 2005, the Respondent by Ernie Palmer,
its Operations Manager (a) created an impression that its em-
ployees’ union activities were being surveilled and (b) told
employees that it would be futile to select Local 108 as their
collective-bargaining representation.
2. That during the period from November 2005 through
January 2006, the Respondent rendered assistance to Local 124
by (a) allowing agents of Local 124 to distribute employee
bonuses, holiday turkeys, and other gifts to employees, and (b)
instructing employees to vote for Local 124.
3. That on or about January 12, 2006, the Respondent, for
discriminatory reasons, discharged Michael Schiavone.
The unfair labor practice case is consolidated with a repre-
sentation case in 2–RC–22858. The petition in that case was
filed in May 2004. A Stipulated Election Agreement was ap-
proved on November 23, 2005, and an election was held on
January 6, 2006. The unit consisted of:
All full-time and regular part-time drivers, helpers, mechanics
and mechanic helpers employed by the Employer at its Mont-
gomery and Kingston, New York facilities, excluding all
other employees, guards, professional employees and supervi-
sors as defined in the Act.
The tally of ballots showed that there were about 35 eligible
voters and that of the votes cast, 7 were for Local 108, 21 votes
for Local 124, and 1 for no union.
Objections to the Election were timely filed by the Peti-
tioner, Laborers International Union of North America, Labor-
ers Local 108, AFL–CIO. The Objections referred for hearing
are mostly the same allegations that are contained in the unfair
labor practice complaint. In substance, the objections that were
sent to hearing1 are as follows:
That the Employer engaged in the following conduct:
1. Assisted Local 124 by providing Christmas bonuses at the
end of November 2005 and allowing agents of Local 124 to
distribute those checks at the facility, accompanied by a letter
urging the employees to vote for Local 124;
2. Assisted Local 124 by allowing its representatives to dis-

1 Local 108 withdrew Objections 5, 7; and 8(a) through (c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
tribute free turkeys, T-shirts and sweatshirts that contained
stickers urging employees to vote for Local 124;
3. Assisted Local 124 by allowing its observer to distribute
free coffee and donuts at the election;
4. Assisted Local 124 by allowing its representatives to dis-
tribute health insurance cards on its premises;
5. Assisted Local 124 by continuing to deduct union dues for
Local 124 from employees’ paychecks during the month of
December 2005;
6. Assisted Local 124 by (a) failing to notify employees that
it had withdrawn recognition from Local 124 as called for in a
settlement agreement; (b) by informing employees that Local
124 was the incumbent union; by maintaining notices that em-
ployees should consult with the Local 124 shop steward regard-
ing work place issues; and (c) by continuing to maintain health
insurance for employees through the Local 124 health plan and
not providing notice to the employees that they had the option
of choosing alternatives as detailed in the settlement agree-
ment;2
7. Interrogated employees about their union preferences;
8. That the Employer and Local 124 agents coerced and in-
timidated employees by creating a gauntlet for employees to
pass through on the way to the poling area;
That Local 124 by its agents engaged in the following objec-
tionable conduct:
1. Mailing to each employee’s home a gift food basket with
accompanying correspondence thanking employees for “their
support;”
2. Distributing free sweatshirts and turkeys to employees at
the employer’s facility;
3. Inviting employees to a meeting where free food, alcohol,
and entertainment were provided;
4. Distributing health insurance cards to the employees;
5. Distributing free coffee and donuts at the election;
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
Briefs filed, I hereby make the following findings and conclu-
sions.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. It also is admitted that the Unions are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
a. Background
County Waste is a company that is engaged in removing
waste from residences. The Company maintains its main office

2 As to item f, the General Counsel amended the complaint at the
hearing on December 18, 2006. As I understand it, the GC is not alleg-
ing anymore that the Company violated Sec. 8(a)(2) of the Act by con-
tinuing to maintain health insurance for its employees through the
Local 124 Health plan and by not providing notice to the employees
that they had the option of choosing alternatives.
in Clifton Park, New York, and operates one facility in Mont-
gomery, New York, and another facility in Kingston, New
York.
At the Montgomery facility, the Company employs about 20
to 30 drivers and helpers. At the Kingston facility, the Com-
pany employs about 10 drivers and helpers. At Clifton Park,
the Company employs about another 100 employees, but those
employees are not part of the unit involved in the present case.
The president of the Company is Scott Earl and he has a
partner named David Fusca. The Company’s manager is Ernest
Palmer Jr. At the time of many of the events in this case, Car-
son Lyons was the assistant manager who directly supervised
the employees at the Montgomery facility.
It should be noted that Carson Lyons, who was called as a
witness by the General Counsel and who was hired as a driver
in 2003 had been promoted to assistant manager in or about
January or February 2005. He remained in that position until
he quit in December 2005. In January 2006, and after the elec-
tion, he returned to work as an ordinary driver. He therefore
was not present during most of the election campaign and
missed some of the events that are discussed here. I should also
note that I thought that Mr. Lyons was a credible witness whose
testimony was impartial.
The Montgomery facility opens at about 3 a.m. and the driv-
ers, including Lyons who also takes a route, are out on the road
throughout the day. The only person who remains in the facil-
ity is the woman who acts as a dispatcher and who is the con-
duit between customers, drivers, and the supervisor of the facil-
ity. For most of the day, there is no supervisory person present
at the facility.
According to Michael Hellstrom, the business manager of
Local 108, his union began organizing in the winter or early
spring of 2004. In this effort, he testified that union representa-
tives spoke to employees at the Company’s parking lot.
After filing a representation petition on June 4, 2004, Local
108 was notified that the Company had extended recognition to
Local 124 and that a contract executed between the Company
and Local 124 was being raised as a bar to an election. Conse-
quently, on June 17, 2004, Local 108 filed an unfair labor prac-
tice charge in Case 2–CA–36340 alleging that the recognition
of Local 124 was a violation of Section 8(a)(2) of the Act. The
Region issued a complaint based on that charge on June 28,
2005.
In the latter respect, the evidence shows that in 2004 the
Company recognized and entered into a collective-bargaining
agreement with Local 124 covering its drivers and helpers at
two of its facilities. That contract ran from June 1, 2004, to
May 31, 2007.
According to Hellstrom, Local 108 resumed organizing ac-
tivity in the spring of 2005. He testified that they went out to
transfer stations where the drivers of the Company went to
dump their loads.
Hellstrom testified that between July and September 2005,
Local 108 conducted demonstrations in front of the Company’s
facility in Montgomery, New York. However, these demon-
strations were not, as far as I know, participated in by the Com-
pany’s employees. They were carried out by union members
COUNTY WASTE OF ULSTER, LLC 845
employed at other companies. 3
The allegations of the aforesaid complaint were settled and
as part of the settlement, a Stipulated Election Agreement was
agreed to in the representation case. The terms of a settlement
were agreed to on or about November 21, 2005, and the settle-
ment documents were signed on November 23.
Hellstrom testified that once the settlement was reached, he
went out to the Montgomery facility on the following Monday
at 3 a.m. to hand out leaflets to drivers as they were coming to
work. He states that after that, he went to the Company facility
about five times after the settlement and before the election.
According to Hellstrom, he and another organizer, Manuel
Escobar, visited many of the employees’ homes during the
period before the election, but did not hold any group meetings
with employees. During these one-on-one visits, they were told
that one of the employees’ major concerns was health insurance
and that he (Hellstrom), talked about the advantages of the
Local 108 health plan. Escobar talked to the Spanish-speaking
employees.
Based on the testimony of Hellstrom, it appears that the em-
ployees of County Waste although solicited to join or vote for
Local 108, played virtually no role as active participants in
Local 108’s campaign. In this regard, Hellstrom and Escobar
tried to talk fleetingly to employees as they came into work in
the early hours of the morning or when they arrived at transfer
stations. They mailed out literature to employees and also vis-
ited employees individually at their homes. 4
b. Alleged preelection assistance in favor of Local 124
The General Counsel alleges that the Respondent gave ille-
gal assistance to Local 124 shortly after the parties had settled
the previous unfair labor practice case and had set up the elec-
tion for January 2006. In particular, the General Counsel al-
leges that the Respondent violated Section 8(a)(1) and (2) by
allowing Local 124 to distribute turkeys, bonuses, and insur-
ance cards on its premises.
In prior years, the Company had given out turkeys at
Thanksgiving and Christmas bonuses at the end of the year.
However, when it entered into a collective-bargaining agree-
ment with Local 124, it did not pay the bonus in 2004. Nor did
it distribute turkeys in 2004.
The evidence shows that in late November 2005, representa-
tives of Local 124 came to the Montgomery facility and dis-
tributed turkeys. (Thanksgiving was on November 24, 2005,
and it appears that the turkeys were paid for by Local 124.)
The evidence shows that there were no supervisory people at
the premises when this was done. When Palmer arrived later in
the day, he told the Local 124 representatives to leave.5

3 I suspect that these activities prompted the Company and Local 124
to seriously consider settling.
4 Because the employees take their trucks out soon after arriving at
the facility at around 3 a.m. and return from their routes on a staggered
basis during the course of the day, they do not get much of a chance to
see each other.
5 The Respondent points out that in accordance with the collective-
bargaining agreement that was still in effect at the time, Local 124 had
the right to visit the shop. Under the terms of the previous unfair labor
Company President Scott Earl testified that in December
2004, he received a phone call from Ernie Palmer who said that
the men were up in arms because they hadn’t received a
Christmas bonus. Earl states that he told Palmer to tell the
employees that they should take the matter up with Local 124
because they had chosen to be represented by that Union and
Christmas bonuses were not included in the contract.
Earl testified that in April, May, and June, he sat down with
Local 124 to talk about that Union’s request that the Company
join the Union’s Health Insurance Plan. (At that time, the em-
ployees were covered by a Blue Cross/Blue Shield plan.) Earl
also testified that during these mid-term contract negotiations,
the Union also pressed him to restore the Christmas bonuses.
According to Earl, the result of these negotiations was that
he agreed to substitute the Union’s health insurance plan and he
also agreed to pay a Christmas bonus in 2005 in the amount of
1 week’s pay. The agreement regarding the health insurance is
evidenced by a written modification to the collective-
bargaining agreement. The purported agreement regarding the
bonuses is not. Nor were the employees notified, at the time
that this alleged agreement was made, that they were going to
receive the bonuses. It was not until the bonuses were distrib-
uted in late November 2005 that the employees realized that
they were going to receive a Christmas bonus.
I strongly suspect and would conclude based on the circum-
stances, that the Company and Local 124 made an agreement to
pay the Christmas bonuses at or after they had decided to settle
the pending 8(a)(2) allegations, which thereby resulted in the
withdrawal of recognition of Local 124. The concomitant con-
sequence of that withdrawal of recognition was that Local 124
would, pending the outcome of the election, no longer have the
status of an incumbent union. Moreover, I would also conclude
that the agreement to pay the bonuses that were equivalent to a
pay raise of about 2 percent for the year was motivated by the
desire to influence the outcome of the election in favor of Local
124.
Some of the employees may have received these bonuses by
direct deposit. But others received them in envelopes distrib-
uted at the Company’s facility by Local 124 agents. Enclosed
with the checks was a written notice dated November 30, 2005,
stating:
Enclosed please find your 2005 Holiday Bonus Check . . . .
As some of you know, Local 124 IUJAT had been negotiat-
ing for a bonus with the Employer for several months and fi-
nally obtained this benefit for you and your families. Several
of you expressed concern that the bonus would be cancelled
due to the coming election with Local 108; however, we have
convinced the Company to honor the commitments it made to
our members prior to Local 108’s interference. We hope the
coming campaign and election will not be too disruptive and
we wish you all a happy and health holiday.
In addition to the turkey and bonus issues, the General Coun-
sel also contends that the Respondent gave unlawful assistance
to Local 124 when in December 2005, it allowed representa-

practice settlement that contract was not nullified until December 2,
2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD846
tives of that union to come into its premises to distribute insur-
ance cards.
Unlike the Christmas bonuses, no one disputes that the
Company and Local 124 had entered into a mid-term modifica-
tion of the contract some time in the spring of 2005, whereby
the employees would be covered by that Union’s insurance
program.6 Moreover, under the terms of the previous settle-
ment, although Local 124’s contract was required to end on
December 2, 2005, the employees were covered by that Un-
ion’s health plan until January 1, 2006. As such, I cannot see
how there can be anything unlawful in allowing Local 124
representatives to come to the facility to distribute insurance
cards. I also see nothing particularly troublesome about the
assertion that they handed out union T-shirts or sweatshirts at
the same time.
c. Other preelection conduct
Schiavone testified that about 2 or 3 weeks before the elec-
tion, Ernie Palmer told him that he heard that Schiavone was
leaning towards Local 108 and asked if he was “steering to-
wards Local 108.” He asserts that Palmer stated that Local 108
would not get a contract through County Waste and that “they”
would kill us on dues and initiations. According to Schiavone,
Palmer said that they should keep this conversation between
themselves and that he asserted that they, (presumably Local
108), would make promises but give you nothing. Finally,
Schiavone states that Palmer told him “to go the right way; that
124 is a better union.”
This alleged conversation between Palmer and Schiavone
was not corroborated by anyone else as there was no-one else
present. But additionally, there is no evidence that any other
employees had any similar conversations with Palmer or any
other supervisors of the Respondent. Given the lack of evi-
dence showing at least one other similar transaction with other
employees and given the fact that Schiavone did not, in fact,
engage in any union activities that might have been noticed by
or reported to management, this entire alleged transaction
seems to me to be highly improbable and is not credited. Thus,
although it would make sense for Palmer to talk to the employ-
ees and make a legally permitted expression of preference for
one union over another, it seems to me that it is completely
implausible that Palmer would have said that he heard that
Schiavone was steering towards Local 108 when there was no
way that he could have known this.7
d. The discharge of Schiavone
Michael Schiavone was hired by Carson Lyons on March 25,

6 Previously, the employees had gotten individual coverage, at com-
pany expense, under the Company’s Blue Cross/Blue Shield plan but
had to pay $300 of their own money if they chose to have family cover-
age. Under the terms of the contract modification, the Company agreed
to contribute to the Union’s Health Care Plan which provided certain
health benefits to the employees completely at company cost.
7 Carson Lyons testified that in the early autumn of 2005, Ernie
Palmer told him that if Local 108 got in, he was going to shut the doors
or going to change the name of the Company. Assuming this to be true,
it would not constitute a violation of Sec. 8(a)(1) because at the time,
Lyons was a 2(11) supervisor and there is no evidence that Lyons
transmitted this statement to any of the employees.
2005. The evidence shows that Schiavone did not engage in
any kind of solicitation on behalf of Local 108. Nor is there
any evidence that he engaged in any other type of union activity
other than stopping by the gate for a few minutes on the few
occasions when union representatives were stationed there in
the predawn hours of the morning. There is no evidence that he
solicited other employees to support Local 108 or that even
talked to other employees about Local 108. I don’t even know
if he signed a Local 108 authorization card.
During the course of his employment, Schiavone had diffi-
culty arriving to work on time. (His starting time was 3 a.m.)
According to Carson Lyons, he gave a verbal warning to
Schiavone at which time Schiavone asserted that he had diffi-
culty sleeping at night because of a medication that he was
taking. Lyons testified that he told Schiavone that if that was
the problem, then he would have to get a doctor’s note.
Schiavone never did provide a doctor’s note and continued to
come in anywhere from 45 minutes to an hour late.
During the same period of time there were other drivers who
also were coming in late including Bob Pesce, Anthony Hingul,
and Kevin Zenninger. According to Lyons, during the course
of 2005 when he complained to Palmer about these people not
coming in on time, Palmer failed to approve any disciplinary
action against them. (Hingul was Local 124’s shop steward and
acted as that Union’s observer at the election).
Also during his employment, Schiavone was involved in a
couple of minor accidents. On one occasion, he hit some mail-
boxes and on another occasion, he scraped the side of a car and
caused some minor damage to the car’s fender. On a third oc-
casion, Schiavone pulled out in front of a car that ran into him.
With respect to accidents, Schiavone was not unique and there
were some other drivers who had worse accidents and who
continued to be employed. One example was Jack Gady, who
according to Lyons, had five accidents and did a lot of damage.
In September or October 2005, Lyons transferred Schiavone
to an automated truck that had an arm used to pick up garbage
pails. The Company contends that in doing his route,
Schiavone, as a general rule, took longer than what the route
required.
According to Lyons, he decided to quit in December 2005
because his job as the manager of the Montgomery facility had
become too stressful. He testified that he quit because the driv-
ers were not coming to work on time and because he had to stay
too late waiting for them to return. (In addition to being the
facility’s supervisor, Lyons also drove a route). According to
Lyons, it was not just Schiavone, “it was everyone.” From his
testimony, the implication is that many of the drivers, including
Schiavone, were not performing their jobs well and that he was
not getting any significant support from Ernie Palmer who was
unwilling to impose discipline. (Respondent’s Counsel sug-
gests that a reason for this was that the contract with Local 124
had a grievance and arbitration procedure and this would likely
make the Company overly cautious in terms of imposing disci-
pline).
In any event, when Lyons quit, Palmer took over the day-to-
day supervision of the Montgomery facility. This meant,
among other things, that he had to be there until the last truck
arrived back at night. On several Fridays in December 2005,
COUNTY WASTE OF ULSTER, LLC 847
Schiavone arrived back from his route well after 5 p.m. This
meant that Palmer, with increasing aggravation, remained at the
facility until after Schiavone returned. My impression is that
Palmer was not so tolerant of the drivers when he had to remain
at the facility for them to return.
With respect to the route driven by Schiavone (Route 66),
the Respondent offered evidence showing that Lyons took over
this route in January 2006 and took far less time than Schiavone
to do the route.
Schiavone testified that on the day before he was fired,
Palmer asked him if he could be on time. Schiavone states that
he responded that he would do the best he could. On the next
day, according to Schiavone, Palmer told him that although he
didn’t know why, he, (Schiavone), had pissed off Scott Earl and
that he wanted Palmer to let him go. According to Schiavone,
when he asked why, Palmer said that it was because of
Schiavone’s accident history and lateness’s and that Scott “just
got a hard-on for you.”
Palmer testified that he was fed up with Schiavone’s late-
ness’s and lack of productivity and found out in early January
2006, that Carson Lyons was interested in coming back as a
driver and not as a supervisor. Palmer testified that with this in
mind, he decided to let Schiavone go and replace him with
Lyons.
So what happened to some of the other drivers?
Anthony Hingul, who was the shop steward for Local 124,
was discharged in January or February 2006 when he failed to
pass a drug test. According to Lyons he made several recom-
mendations to Palmer in 2005 that Hingul be fired. He also
testified that on one occasion after recommending that Hingul
be discharged, Palmer agreed to suspend him for 3 days.
Bob Pesce was described by Lyons as having the worst tar-
diness record. He testified that on one occasion while driving
his route, Pesce refused to complete it and quit on the spot.
Lyons testified that when Pesce asked for his job back, he was
refused. I should note that Lyons testified that he had recom-
mended to Palmer that Pesce be fired before this incident but
that Palmer didn’t go along. He testified that Pesce would im-
prove after Palmer talked to him, but then revert to his practice
of coming in late. Lyons also testified that Palmer was a friend
of Pesce.
Kevin Zenniger was described by Lyons as having a bad atti-
tude, although being a good worker when he came to work.
Lyons testified that Zenninger was fired in the summer of 2005
after hitting a car in a culdesac.
Ed Hennee, a recycling driver, had an accident where he ran
off the road after which he was discovered to have sleep apnea.
As a result, Hennee was transferred to the Kingston facility
where he was made a helper instead of a driver. According to
Lyons, the Company wanted to make sure that he was a compe-
tent driver before he killed someone.8
Keith Cummings was, according to Lyons, a driver who did
route 66 before Schiavone. According to Lyons, Cummings

8 I note that if Schiavone was taking medication that made it difficult
for him to get an adequate amount of sleep, I don’t think that it would
be all that advisable for him to be operating a large truck on country
roads.
would start his route late and return late. Lyons testified that he
decided to go out to the route and discovered that Cummings
was sleeping in the truck. He fired him on the spot. This took
place in the summer of 2004.
Jack Gady, according to Lyons, had at least five accidents
and has remained on the job. According to Lyons, the Com-
pany wanted to keep him and they needed the manpower.
e. Objections to the election
To an extent, Local 108’s objections overlap with the Gen-
eral Counsel’s unfair labor practice allegations. These would
include an allegation of interrogation that would be encom-
passed by the testimony given by Schiavone regarding his al-
leged conversation with Palmer in December 2005. Other
overlapping allegations are that the Employer unlawfully as-
sisted Local 124 by (a) allowing representatives to hand out
turkeys on its premises, (b) allowing them to distribute insur-
ance cards on its premises, and (c) allowing them to distribute
bonus checks.
Local 108 made additional allegations that are noted at the
outset of this Decision. In support of those allegations I note
the following:
The evidence demonstrated that in December 2005, Local
124 sent gift baskets of food to the employees at their homes.
The value was not determined.
The evidence shows that prior to the election, Local 124 rep-
resentatives appeared at the Montgomery facility and distrib-
uted Local 124 T-shirts or sweatshirts.
The evidence shows that prior to the election, Local 124 in-
vited employees to a restaurant after working hours and paid
for food and drinks.
The evidence shows that at the election, Hingul, Local 124’s
observer, offered employees free coffee and donuts.
The evidence shows that at the beginning of December 2005,
the Employer deducted union dues for that month notwithstand-
ing that pursuant to the settlement agreement, the Employer and
Local 124 had agreed that their contract would be nullified as
of December 2, 2005. However, the evidence also indicates
that this was a bookkeeping error and the parties agree that the
money was refunded to the employees.
There is some evidence that the Employer did not affirma-
tively notify its employees that it had withdrawn recognition
from Local 124 or that the employees had a number of options
regarding health insurance coverage. The Settlement Agree-
ment required the Company to send a letter to the employees
notifying them of certain matters contained in Appendix B to
the Settlement and did not require it to make any other specific
notifications.9 As far as I know, the Respondent complied with
the requirement that it mail copies of Appendix B to its em-

9 Appendix B states in pertinent part; “On January 6, 2006, an elec-
tion shall be conducted by the . . . NLRB. . . . In this election, employ-
ees will have the right to vote for either Local 124, Local 108, or nei-
ther labor organization . . . . As of December 2, 2005, the Employer has
withdrawn recognition from Local 124. This action has been taken by
the Employer in order to resolve a Complaint issued by the Board in
Case 2–CA–36340. In agreeing to have an election to resolve the
NLRB Complaint, the Employer denies that it has engaged in any
wrong doing or unlawful conduct.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
ployees. Additionally, there was nothing to prevent Local 108
from notifying the employees of the basic terms of the settle-
ment including that portion of the agreement whereby the em-
ployees could have a choice of options regarding health insur-
ance. I also presume that in accordance with normal election
practices, all parties were given an “Excelsior List” containing
the names and addresses of the eligible voters.
There was insufficient evidence to establish that Local 124
or company representatives formed a gauntlet or otherwise
impeded employees from going into the facility to cast their
ballots.
Analysis
As discussed above, I have decided that I would not credit
Schiavone’s testimony regarding his alleged conversation with
Palmer in December 2005. Therefore I shall dismiss those
aspects of the complaint that allege that the Respondent (a)
created an impression that its employees’ union activities were
under surveillance and (b) that Palmer told employees that it
would be futile to select Local 108 as their collective-
bargaining representation.
In my opinion, the General Counsel has failed to make out a
prima facie case that Schiavone was discharged because of any
union activities on his part or because the Respondent per-
ceived that he was engaged in union activity. The fact is that
Schiavone did not engage in union activities. That he, like
other drivers, may have stopped on his way in to work to talk to
Local 108 representatives, is not significant. This type of activ-
ity is hardly unusual and it is unlikely that it would have been
much noticed as it would have taken place before dawn.
The bottom line is that Schiavone did not engage in any un-
ion activity and there is no credible evidence that the Com-
pany’s supervisors or managers were aware of his nonexistent
activity or that they believed that he was engaged in such activ-
ity.
On the other hand, the Respondent presented evidence that
Schiavone was constantly late to work, that he had some acci-
dents and that he took an inordinate amount of time to complete
his route. In particular, the evidence shows that in December
2005, he often returned late to the facility and that this resulted
in Earl Palmer (who took over supervision from Lyons), having
to stay late.
The General Counsel claims that Schiavone was treated dis-
parately from other employees. But for this argument to have
weight it has to be buttressed by at least some evidence, either
direct or circumstantial, that could reasonably lead me to infer
that the Respondent’s motivation was discriminatory within the
meaning of Section 8(a)(1) and/or (3) of the Act. As I have
concluded that Schiavone did not engage in union activity and
that there is insufficient evidence to show that the Respondent
entertained a belief that he was engaged in union activity, the
question of disparate treatment has little impact.10

10 Moreover, I do not think that the evidence is particularly persua-
sive in showing disparate treatment. At various times the Respondent
was either strict or lenient. In December 2005 and January 2006, it
seems that the Respondent was a bit more fed up with its employees
and decided to crack the whip. Thus, in addition to Schiavone, Hingul
who was the shop steward for Local 124, was also discharged.
Based on the evidence I therefore conclude that the General
Counsel has not sustained his burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
I would not conclude, based on this record, that the Respon-
dent violated Section 8(a)(2) of the Act merely by evidence
showing that in late November 2005, Local 124 representatives,
apparently on their own initiative, showed up at the Montgom-
ery facility and handed out frozen turkeys. Nor would I find a
violation based on the evidence that in December 2005, Local
124 representatives arrived at the facility to hand out insurance
cards and T-shirts. These action are, in my opinion, trivial and
in the case of the insurance cards, the General Counsel essen-
tially concedes that the Respondent did not violate the Act by
continuing to pay into Local 124’s health plan at least for the
month of December 2005. Nor does he challenge the evidence
that the Company and Local 124 lawfully modified the existing
collective-bargaining agreement so that the employees in the
bargaining unit would be transferred from the Company’s
health insurance to Local 124’s health plan.
The Christmas bonuses are an altogether different story.
At the outset it should be noted that the Christmas bonuses
were worth the equivalent of a little less than a 2-percent pay
increase for 2005. This cannot be construed as a trivial or in-
substantial benefit.
Scott Earl testified that at some point in 2005, Local 124 rep-
resentatives asked to modify the collective-bargaining agree-
ment made in 2004. He states that negotiations took place
around April or May 2005 and that the main issue was health
insurance. (As noted above, Local 124 wanted the Company to
provide health insurance through Local 124’s plan). Earl testi-
fied that in addition to the health insurance issue, Local 124
insisted that the Company restore the Christmas bonuses that it
had normally given prior to the 2004 contract. According to
Earl, he entered into an agreement with Local 124 on both is-
sues and agreed that the employees would get a Christmas bo-
nus at the end of the year.
Unlike the insurance substitution, which was memorialized
as a written addendum to the collective-bargaining agreement,
the agreement on the bonuses was not reduced to writing.
Moreover, the evidence shows that at the time of the alleged
agreement, the employees were not notified that their Christmas
bonuses were being restored. Indeed they received no notice of
this until November 30, 2005, about 1 week after the parties
agreed to hold an election on January 6, 2006. Moreover, the
letter that was given out by Local 124 regarding the bonus was
clearly related to the upcoming election as it asserted that this
was a benefit obtained through Local 124’s efforts and prior to
Local 108’s “interference.”
Benefits granted upon the advent of a union organizing cam-
paign (assuming the Employer is aware of it), creates a pre-
sumption that they are granted to influence employees to with-
hold their support for unionization. Yoshi’s Japanese Restau-
rant & Jazz House, 330 NLRB 1339, 1344 (2000); B & D Plas-
tics, 302 NLRB 245 (1991); Speco Corp., 298 NLRB 439, 443
(1990). To rebut this presumption, an Employer must establish
a legitimate explanation for the timing of the grant of benefits
and this usually consists of evidence that they were part of an
COUNTY WASTE OF ULSTER, LLC 849
existing practice or that they were planned beforehand. NLRB
v. Exchange Parts Co., 375 U.S. 405 (l964); Baltimore Cater-
ing Co., 148 NLRB 970 (l964). An employer cannot grant
benefits when an election is pending without facing the pre-
sumption that it has violated the Act.
Moreover, even where benefits have been previously
planned, an employer may violate the Act, if the timing of the
announcement is designed to influence an election. Mercy Hos-
pital Mercy Southwest Hospital, 338 NLRB 545 (2002).
Another general rule is that in the absence of unlawful inter-
ference, an employer can express a preference for one union
over another. Alley Construction Co., 210 NLRB 999 (1974);
Plymouth Shoe Co., 182 NLRB 1 (1970). However, the case
law is that where there are two unions competing, an employer
may not assist one by means which are coercive or discrimina-
tory. For example, an employer will violate the Act if it dis-
criminatorily applies a no-solicitation rule against supporters of
one union as opposed to the supporters of the other. Davis
Supermarkets, 306 NLRB 426 (1992), affd. 2 F.3d 1162 (1993)
cert. denied 511 U.S. 1003 (1994), and M.K. Morse Co, 302
NLRB 924 (1991). In Windsor Castle Health Care Facilities,
310 NLRB 579 (1993), enfd. as modified 13 F.3d 619 (2d Cir.
1994), the Board held that the employer violated Section
8(a)(1) and (2) when it hired an organizer from one union to do
“sham” work in order to facilitate that Union’s organizing cam-
paign. And in Duane Reade Inc., 338 NLRB 943 (2003), the
Board held that the employer provided unlawful assistance
when it provided meeting space on company time to representa-
tives of a preferred union contrary to its own no-solicitation
policy and required employees to attend that union’s meetings
on company time and denied equal access to a rival union.11
On the other hand, where there is a legitimate incumbent un-
ion, an employer is free to negotiate with it for a new collec-
tive-bargaining agreement even after a rival union has filed a
representation petition and when an election is pending. The
Board adopted this rule even though the effect may likely favor
the incumbent union.12 Thus in RCA del Caribe, 262 NLRB
963 (1982), the Board overruled Midwest Piping, 63 NLRB
1060 (1945), and held that the mere filing of a representation
petition by an outside union does not require an employer to
withdraw from bargaining with an incumbent union. The ma-
jority stated that to prohibit negotiations until the Board ruled
on the results of an election could work an undue hardship on
employer, unions, and employees. They concluded that the
Midwest Piping doctrine did not give adequate weight to the

11 However, in Tecumseh Corrugated Box Co., 333 NLRB 1 (2001),
the Board held that the employer did not violate the Act even though it
permitted union agents to address employees on company time and
premises when it advised the employees that they were free to choose.
In Detroit Medical Center Corp., 331 NLRB 878 (2000), the Board
held, in the context of an Objections case, that an employer does not
have the affirmative duty to notify a rival union that it has granted
access to the other where one union has requested access and the other
has not.
12 Assuming that an employer wanted to keep its relationship with an
incumbent union, there would be a strong incentive to offer contract
terms that were more favorable to the voters than might otherwise be
the case if there was no rival union waiting in the wings.
Act’s concern for the stability of existing collective-bargaining
relationships. The Board majority also noted that in these types
of circumstances, the employer cannot maintain strict neutrality
and that a withdrawal from negotiations with an incumbent
union would signal repudiation of the incumbent and favoritism
towards the rival union. Finally, the majority asserted that
changing economic circumstances might require immediate
changes in working conditions that would be barred by preclud-
ing negotiations pending the ultimate outcome of an election.13
Under RCA del Caribe, the employer and a legitimately rec-
ognized incumbent union can enter into collective bargaining
even though a petition has been filed by a rival labor organiza-
tion, unless as described in The Maramont Corp., the employer
has actual knowledge that the incumbent no longer represents a
majority of his employees.
The Company argues, but Local 124 failed to corroborate,
that an agreement was made in the Spring of 2005 to restore the
Christmas bonuses in 2005. But that “agreement” was not re-
duced to writing and was not announced to the employees until
after the parties to this case had agreed to hold an election in
January 2006. Thus, the employees first became aware of this
“agreement” on or about November 30, 2005, when representa-
tives from Local 124 were allowed to pass these bonuses out to
employees in envelopes that also contained the message that
Local 124 was able to get these bonuses for the employees and
that they should therefore vote for Local 124 and against out-
side interference.
Even assuming that the Employer and Local 124 entered into
an agreement some months before November 2005, and even
assuming that such an agreement would have been within their
lawful authority because of the incumbent status of Local 124,
the first announcement of the bonus was made only after the
execution of an election agreement and was distributed during
the period between the signing of election agreement and the
election itself. I have no doubt that the timing of this an-
nouncement was designed to influence the employees to vote
for Local 124 and not for Local 108. If, as contended, the
agreement was made in the Spring of 2005, why weren’t the
employees notified of it at that time? And if not, why couldn’t
the bonus be paid after the election?
Nevertheless, I don’t even believe that the agreement to pay
these bonuses was made in the Spring of 2005. I think it is
highly probable that such an agreement was made when it was
becoming more and more obvious that the Employer was going
to be forced to withdraw recognition from Local 124 and go to
an election. An unfair labor practice had already been issued
alleging that the Employer’s recognition of Local 124 was
unlawful. Local 108 was putting pressure on the Employer by
engaging in demonstrations at its facilities. And by November
21, the Employer and Local 124 finally agreed to revoke Local
124’s contract and recognition in consideration for settling the

13 However in The Maramont Corp., 317 NLRB 1035 (1995), the
Board held that the Employer was required to withdraw recognition
after it receives knowledge that the incumbent union no longer repre-
sents a majority. In that case, the outside union sent a petition signed
by a majority of the employees stating that they no longer wished to be
represented by the incumbent union and demanded that the employer
cease negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
pending unfair labor practice complaint. Therefore, as of No-
vember 21, and no doubt for some time before that date, both
the Employer and Local 124 must have concluded that they
would not continue their collective-bargaining relationship. As
such, Local 124 ceased being the “incumbent” union and there-
fore no longer had the legal advantage of non-neutrality that is
permitted by RCA del Caribe. The reasons for giving Local
124 that legally recognized advantage no longer existed and
there was no legitimate public policy reason why the Employer
should be able to favor Local 124 by making a deal with it
whereby the eligible voters would receive a wage increase
shortly before the election.
I therefore conclude that by granting a bonus to the employ-
ees while the election was pending, the Respondent violated
Section 8(a)(1) of the Act because the granting of that benefit
was designed to influence the outcome of the election. More-
over, as I conclude that this bonus was the result of an agree-
ment with Local 124 and was designed to influence the em-
ployees to vote for Local 124 and against Local 108, I conclude
that the bonus and the announcement of the bonus constituted a
violation of Section 8(a)(2) of the Act.
Finally, I conclude that the granting and announcement of
this bonus constituted substantial interference with the election
and therefore I sustain Objection 1 and recommend that the
election be set aside and a new election be conducted.14

14 Having sustained Objection 1, it is not necessary to reach conclu-
sions on the other Objections. However, I note the following: In RL
White Co., 262 NLRB 575 (1982), the Board held that the distribution
of T-shirts by a party to an election as part of its campaign propaganda
is not objectionable or coercive. See also NLRB v. Coca-Cola Bottling
Co., 132 F.3d 1001, 1005 (4th Cir. 1997). In Jacqueline Cochrane Inc.,
177 NLRB 837 (1969), the Board held that it was not objectionable for
a union to distribute turkeys to employees before an election. In Chi-
CONCLUSIONS OF LAW
1. By granting bonuses to its employees while an election
was pending and by allowing Local 124 to distribute these bo-
nuses to employees on company time and premises, the Re-
spondent violated Section 8(a)(1) and (2) of the Act.
2. The conduct found to be objectionable is sufficiently seri-
ous to set aside the election and to hold a new one.15
3. The Respondent has not violated the Act in any other
manner encompassed by the complaint.
4. The aforesaid conduct interferes with commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]

cago Television News, Inc., 328 NLRB 367 (1999), the Board overruled
an objection based on the contention that the employer held a party
with food and drink before the election. The Board stated that “the
Board did not purport to overrule its long line of cases holding that it
will not set aside an election simply because the union or employer
provided free food and drink to the employees.” That case was distin-
guishable from Chicago Tribune, 326 NLRB 1057 (1998), where the
employer’s far more elaborate and costly party was held to have inter-
fered with an election.
15 See Playskool Mfg. Co., 140 NLRB 1417, 1419 (1963); Dal-Tex
Optical Co. Inc., 137 NLRB 1782, 1786–1787 (1962).