Covanta Bristol, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2010

34-CA-012339 (N.L.R.B. Jun. 16, 2010)

JD(ATL)–-13—10
Bristol, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
COVANTA BRISTOL, INC.
and Cases 34—CA—12339
34—CA—12378
LUIS MOTA, An Individual
Thomas E. Quigley, Esq., for the General Counsel.
Raymond J. Carey, Esq., of Foley & Lardner LLP,
for the Respondent.
DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Hartford,
Connecticut, on November 3 and 4, 2009. Luis Mota, an Individual, filed the charge in Case No.
34-CA-12339 on May 6, 2009 and a complaint issued on July 31, 2009 alleging that Covanta
Bristol, Inc., the Respondent, discharged him in violation of Sections 8(a)(1) and (3) of the Act
on April 29, 2009. 1 On June 24, Mota filed the charge in Case No. 34-CA-12378 and a
complaint issued in that case on August 24, alleging that the Respondent violated Section
8(a)(1) of the Act on April 1 by threatening employees with unspecified reprisals for engaging in
union and other protected concerted activity. The cases were consolidated for hearing by order
dated August 24.
The Respondent filed answers to the complaints on August 13 and September 4,
respectively, denying the commision of any unfair labor practices and asserting, inter alia, that
Mota was, at all times, an “at will” employee, that the Respondent had cause for termination and
that any statements by supervisors were protected by Section 8(c) of the Act.
As framed by the pleadings, the issues presented in this case are: (1) whether the
Respondent terminated Mota during his probationary period because he had made safety
complaints, thereby invoking rights under a collective bargaining agreement between the
Respondent and the union representing its employees and/or because he supported the union
and its steward, Kerry Hils; and (2) whether statements made by the Respondent’s Facility
Manager Leon Plumer during a grievance meeting on April 1 constituted a threat of unspecified
reprisals in violation of Section 8(a)(1) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

1 All dates are in 2009 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent, a corporation, operates a waste-to-energy processing plant at its
facility in Bristol, Connecticut, where it annually purchases and receives goods valued in excess
of $50,000 directly from points located outside the State of Connecticut. The Respondent admits
and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that Local 30, International Union of Operating Engineers, the Union
involved in this proceeding, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
The Respondent is part of Covanta Energy, a corporation involved nationwide in the
process of converting municipal waste to energy. The facility in Bristol, Connecticut involved in
this proceeding is one of several in that state but the only one with a union representing its
employees. Local 30, the Union, represents about 20 employees in the operations and
maintenance department. Kerry Hils, an electrician employed by the Respondent for 18 years, is
the Union’s chief steward. Plumer, the Facility Manager, is the Respondent’s highest ranking
officer at the facility. Dana Andrews, the Chief Engineer, and Scott Gerrard, the Safety
Coordinator, report directly to him. The Respondent has admitted that Plumer, Andrews and
Gerrard are statutory supervisors and its agents.
At this and other similar facilities, waste is hauled to the facility from surrounding
municipalities and dumped into large boilers. The waste is then combusted to generate steam
which powers turbines creating electricity that is returned to the local power grid. This process
creates ash and other debris that collects on the sides and tubing within the boilers. The
Respondent shuts down its two boilers at the facility twice a year to perform a thorough cleaning
and maintenance operation. The Respondent’s regular employees customarily work 12-hour
days during these shutdowns. In order to accomplish this work in as short a time as possible,
the Respondent will also hire temporary employees to supplement its regular crew.
As noted above, the Respondent’s operations and maintenance employees are
represented by Local 30. The collective bargaining agreement in effect at the time involved here
was effective for the period May 1, 2006 through April 30, 2009. The collective bargaining
agreement contained, at Article 34, the following provision regarding health and safety:
The Company shall maintain safe, sanitary and healthful conditions and shall
provide first aid equipment to take care of employees in case of accident or illness.
The Company and the Union shall cooperate to promote employee safety and
accident prevention in and around all operations and premises.
It shall be the responsibility of each employee to maintain his place of work in a
clean and orderly condition. Employees shall be required to observe safety rules
and regulations established by the Company, including the use of prescribed safety
equipment or clothing. Employees are to report any safety or health problem to the
company whenever such a problem is observed.
As a condition of employment all employees shall be required to conform to all
reasonable work rules and regulations that may be issued by the Company from
time to time pertaining to the operations, health and safety. Before implementation
of work rules the Company shall provide notice to the Union.
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Under this provision, a joint labor/management health and safety committee was established to
meet regularly and review operation, accidents and injuries, etc.
As part of its safety program, the Respondent utilized a form known as a “Facility Near
Miss/Communication Report” which employees were expected to use to report any accidents or
safety issues they observed. The Respondent’s witnesses testified that the Respondent
encouraged employees to file such reports, rewarding those who did, and using the reports as a
basis for discussion at regular safety meetings. In fact, the Respondent expects its hourly and/or
management employees to submit a minimum of five near miss reports a week. The
Respondent also offered evidence showing that hundreds of such reports are filed annually.
Mota and Hils, the chief steward, acknowledged that this is the Respondent’s stated policy and
practice. The General Counsel offered no evidence, other than that related to Mota, to establish
that the Respondent had ever disciplined an employee for filing a near miss/communication
report.
Mota, the Charging Party, was hired by the Respondent after being referred by Chief
Steward Hils and interviewed by the Respondent’s Chief Engineer Andrews. Although Mota had
ten years experience as a diesel mechanic, he had never worked in a power plant before and
had no experience in the waste-to-energy operation performed at this facility. His first day of
employment was March 16. There is no dispute that, as a new employee, Mota was subject to a
probationary period. Article 23 of the collective bargaining agreement establishes the
probationary period:
Newly hired employees shall be on probation for the first sixty (60) work days of
employment. During this period, employees shall receive the rates of pay provided
herein, but shall not be entitled to any other benefits under this Agreement. During
the probationary period, the Company may discipline or discharge any employee for
any reason without recourse to the grievance procedure. Upon completion of the
probationary period benefits shall be paid back to date of hire.
Mota also signed a document on his first day that acknowledged that he was on probation for 60
working days and explained, in detail, what that meant:
…During this time, your supervisor as well as the Facility Manager will monitor and
evaluate how well you perform your job assignments and meet the overall
requirements of your position on the plant staff.
Each employee will be fairly evaluated, promptly informed of less than satisfactory
performance and given an opportunity to correct any problem areas. However, the
employee may be discharged at any time during the Probationary Period if the
Facility Manager determines that the employee cannot adjust to the job
requirements, has furnished incorrect or false information in his application or for
any reason cannot properly perform the job in a safe manner.
Mota was hired as a utility operator, an entry-level laborer position. Because of his mechanical
experience, however, he was assigned additional duties involving inspection and maintenance
of company vehicles.
The second week of Mota’s employment coincided with one of the Respondent semi-
annual plant shutdowns for cleaning and maintenance of the boilers. Sometime between 4:00
and 4:30 pm on March 23, the first day of the shutdown, an accident occurred which resulted in
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a head injury to Sean Ryan, the employee with whom Mota was working that day. Although the
facts as to how the accident occurred and who was at fault are in dispute, it is not necessary to
resolve those issues to render a decision in this matter.
As part of the cleaning process, the Respondent conducts blasting inside the boilers to
loosen ash that has hardened and become attached to the walls and tubes. Employees and
temporary help will then remove the ash and other debris that collects at the bottom of the
boiler. In addition, employees are required to build scaffolding inside the boiler to allow
employees to reach upper levels for maintenance and cleaning. Ryan, Mota and Joe Carroll,
another of the Respondent’s employees, were working on a crew with several temporary
laborers that day. Blasting had occurred throughout the day and another blast was scheduled
for 4:00 pm. According to Ryan and Mota, after taking a break, they were assigned to enter the
boiler to begin building a “dance floor”, i.e. the foundation upon which scaffolding is built, inside
the convection room hopper. Carroll was assigned to be the “hole watch” or lookout at the entry,
a requirement whenever employees are working in confined spaces. Another requirement for
such work is that a confined space permit has to be issued by the control room operator and
posted by the entry before an employee can enter. The permit ensures that the space has been
checked and it is safe to enter. The shift supervisors on duty at the time were Mike Pastore and
Shane Soulia, who were working at a level above where Ryan and Mota were assigned.
Ryan testified that, while in the break room, Gerrard, the safety coordinator, told him and
his crew to “get going” after the 4:00 pm blast, that “they were ready.” Gerrard disputes Ryan’s
testimony, claiming that he did not know who assigned Ryan’s crew to enter the hopper at that
time. There is no dispute that at the time Ryan and his crew began entering the hopper, there
was no confined spaces permit posted at the door. According to Ryan, he spoke to the control
room operator on duty, Mike Tallon, who told him that “the holes were sniffed” and he was on
his way with the permit. Mota testified that Ryan relayed Tallon’s statement to him. Tallon did
not testify and, although the Respondent’s witnesses claimed that Tallon was interviewed as
part of its investigation of the accident and disputed Ryan’s version of their conversation, no
written statement from him was offered into evidence.
There is no dispute that, notwithstanding the absence of a permit at the door to the
convection room hopper, Ryan and his crew began to enter to lay the planks needed to build the
dance floor. The door is only 2 ‘ x 2’. As Ryan entered, he looked up and was hit in the head by
a chunk of hardened ash that fell from above. He was momentarily knocked unconscious and
was bleeding from a head wound when he was removed from the hopper. Mota was
immediately behind Ryan when he poked his head through the door and assisted him after the
accident. There is no dispute that Gerrard, who was called to the scene, took Ryan to an
occupational injury clinic frequented by the Respondent rather than to a hospital emergency
room. Gerrard and Ryan arrived as the clinic was about to close for the day. The doctor who
greeted them looked at Ryan’s injury and called for an ambulance. At Ryan’s request, the
ambulance took him to Waterbury Hospital, near his home, rather than the hospital closest to
the Respondent’s facility and the clinic. These facts are undisputed. Ryan was out of work the
following day and returned on March 25. In the meantime, the Respondent had initiated an
investigation of the accident and Mota, as an eyewitness, was interviewed on March 24.
With respect to the March 23 accident, Mota testified that, after Gerrard took Ryan away,
Tallon, the control room operator, arrived at the hopper and asked if the accident occurred
before or after the permit had arrived. Mota confirmed that they entered the hopper before the
permit was posted. According to Mota, he then retrieved another confined spaces permit that
was posted by the “barn door”, another entry point below the hopper and posted it at the
convection zone hopper. Mota testified that, at the time, he believed that “any permit was better
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than no permit.” Mota also testified that he was unaware of the proper procedures at the time.
He signed the barn door permit and had another employee, Rick Cassese also sign it, before
posting it at the convection zone hopper. Cassese was not identified as being part of the crew
with Ryan and Carroll. Mota did not explain why he chose to have Cassese sign the permit.
On March 24, Facility Manager Plumer asked Mota to provide a written statement
regarding what happened. Mota wrote his statement in Plumer’s office with Hils present. The
statement, which is in evidence, merely recites what happened when Ryan poked his head
through the door to check out the hopper before the crew began its assigned task. He did not
mention moving the barn door permit to the convection hopper. The next day, March 25, Plumer
again interviewed Mota. Plumer testified that Mota told him “there should have been more
direction and supervision during the entire build-up to the accident.” Plumer recalled that Mota
also complained that there should have been a contingency plan in place and someone
responsible for the job to make a decision how to proceed. Plumer acknowledged interpreting
Mota’s remarks as suggesting that getting the job done quickly was more important to the
Respondent than getting the job done safely. Ryan also provided a written statement to Plumer
on March 25.2
About a week later, on March 31, Gerrard asked Mota to give another statement.
Gerrard was responsible for completing the accident investigation and apparently was under a
time constraint. According to Mota, Gerrard asked him what he had seen and, as Mota
responded, Gerrard typed the statement on his computer. Later that day, Mota asked Gerrard if
Hils, the union steward should see the statement before Mota signed it. When Gerrard told him,
“no”, Mota signed the statement. When Mota reported this to Hils, Hils told him to go back and
ask Gerrard for a copy of the statement. Mota did as Hils instructed. Although Gerrard initially
said he would get Mota a copy of the statement, he did not do so. Instead, about 10 minutes
later, Chief Engineer Andrews called Mota to his office. Gerrard was also present. Andrews
asked if Mota had asked Gerrard for a copy of his statement. When Mota confirmed that he had,
Andrews asked, with a stern look, “Why do you want a copy of it?” When Mota replied that he
wanted a copy because his name was on it, Andrews asked if Mota had any ulterior motive for
wanting a copy. Mota said he did not, he just wanted it because it had his name on it. Andrews
told Mota that he would have to get a copy from Plumer who was already gone for the day.
Mota’s testimony regarding this conversation was uncontradicted.
The same day, Gerrard also asked Ryan to give another statement. When Gerrard
asked Ryan to sign the statement he had prepared based on Ryan’s answers to his questions,
Ryan told Gerrard that he wanted the steward, Hils, to see it first. Ryan left Gerrard’s office to
get Hils. When Hils arrived at Gerrard’s office and read the statement Gerrard prepared, he
protested that this statement made it look like the accident was all Ryan’s fault. He instructed
Ryan not to sign the statement and asked Gerrard for a copy of the statement so he could show
it to the Union’s Business Agent, Tony Calendrino. According to Hils and Ryan, Gerrard became
upset when Ryan refused to sign the statement. Gerrard complained that he wasn’t feeling well,
had a bad month and just wanted to finish the report. Hils then complained about how the
Gerrard had handled the injury to Ryan, i.e. not calling an ambulance and taking him to the
clinic instead. The conversation escalated with Hils and Gerrard both becoming agitated to the
point that Gerrard began throwing chairs around the room. At one point, while Hils was out of
the room retrieving a copy of the statement from a printer down the hall, Gerrard told Ryan, “I’m
sick of that f---ing asshole.”

2 Ryan’s March 25 statement is not in evidence.
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Also on March 31, according to Mota, he filled out his first “near miss/communication
report” based on an incident that occurred while working with Cassese. Mota testified that he
was working with Cassese at the A-3 bag house when Cassese instructed him to enter a
confined space even though there was no permit posted. On the near miss report, Mota
described the incident as follows:
While working on unit A-3 baghouse, I was told to enter a confined space to start
removing bags. There was no confined space entry permit on site or even drawn at
that point. Again this was a “we have to get this done” situation, and we have
experienced employees not following protocol, making learning protocol that much
harder for newer employees.
In the section calling for a recommendation for corrective action, Mota wrote: “We need to follow
protocol. We just went through this with an injured employee as a result.” Although Mota dated
the report March 31, he admittedly did not submit it until the next day, April 1, under
circumstances to be described next.
On April 1, Mota was called to Plumer’s office again and questioned about the March 23
accident. Chief Engineer Andrews and Mota’s immediate supervisor, Richard Moll, were also
present. There is no dispute that Plumer told Mota that the Respondent had found
“inconsistencies” in the reports Plumer had received regarding the incident. He showed Mota a
copy of the barn door permit that Mota had transferred to the convection hopper. Mota admitted
making a mistake by moving the permit and explained why he had done so. Plumer thanked
Mota for his “honesty” and instructed him to go with Andrews to his office so Andrews could
express the importance of honesty at Covanta. In his testimony, Plumer acknowledged that he
thanked Mota for being honest and confirmed that he believed Mota’s conduct in this regard
was due to lack of knowledge and experience.
It was en route to Andrew’s office that Mota decided to submit the near miss report he
had prepared the day before. According to Mota, Andrews told him, in the office, that it was
good that Plumer believed him, that if Plumer thought Mota had been lying, he would not have a
job anymore. Mota testified that Andrews also discussed with him some upcoming job
opportunities at the plant for which Mota might be considered. At some point during the meeting,
Mota handed Andrews the near miss report. After reading the report, Andrews asked who had
ordered Mota into the hole. Mota told Andrews it was Cassese. Andrews told Mota not to take
direction from Cassese, but only from a shift supervisor. According to Mota, Andrews told him
he had done the right thing insisting on a permit before entering a confined space. This is also
noted in the supervisor’s response section of Mota’s near miss report. Andrews did not dispute
most of Mota’s testimony regarding this meeting. He did deny discussing any promotional
opportunities with Mota. Andrews also claimed that he told Mota that it was unfortunate he had
started “in a hole in this facility” and that he would have to gain the trust and respect of
supervisors and prove himself if he wanted to make it through his probationary period. This last
testimony was disputed by Mota.
Ryan was also called into Plumer’s office on April 1. Also present were Andrews, Moll
and the Union’s steward, Hils. Plumer told Ryan that there were inconsistencies in the reports
regarding the accident, that Tallon disputed Ryan’s claim about the permit and that Gerrard
denied telling Ryan to start work after the 4:00 blast. Plumer accused Ryan of making “false
statements.” There is no dispute that Hils was not happy with the Respondent attempting to
blame Ryan for the accident. Hils responded by criticizing management’s role in the events of
March 23, including the presence of the two supervisors in the boiler above Ryan’s crew,
knocking down ash while employees were supposed to be working below . He also chastised
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management for not calling for an ambulance to take Ryan directly to the hospital. There is no
dispute that Hils used colorful language in making his criticism, telling Plumer he had to get
control over his supervisors. According to Andrews, what Hils told Plumer was that he had to
“get his head out of his ass” and take the reins of management.
At some point in the meeting, Plumer brought up the meeting the day before in Gerrard’s
office, accusing Hils of trying to intimidate Gerrard. This made Hils angry and he admitted telling
Plumer to stop wiping the asses of his supervisors. Andrews spoke up and said he had enough
and “didn’t have to listen to this shit”. As Andrews started to leave, Plumer stood up, said
“enough!”, slapped the table and shouted at Hils: “You want to see intimidation? I’ll show you
intimidation.” Hils asked Plumer to calm down. As a result of this meeting, Ryan was suspended
indefinitely for failing to be truthful in the investigation and Hils was suspended for “holding up
the investigation.” Plumer did not contradict this testimony. Andrews, whose memory was good
in other respects, claimed he could not recall anything else Plumer said after he slammed the
desk and said “enough.”
Following the April 1 meetings, Hils prepared and filed four grievances, two regarding
the suspensions he and Ryan had received and two regarding Mota. The Mota grievances
challenged the Respondent having interviewed Mota without representation. There is no dispute
that the grievances were not filed until a meeting on April 7 that involved the Union’s Business
agent, Calendrino, and a regional Human Resources representative for Covanta, Dave
Anechiarico. All the usual suspects were also there, including Mota who was paged to come to
the meeting about a half hour after it started. Hils testified that, after submitting the grievances
to the Respondent’s representatives at the meeting, the parties discussed the March 23
accident. According to Hils, the Respondent was still attempting to blame Ryan for the accident.
Ryan responded by telling the Respondent’s officials , “everyone knows in that shop that I didn’t
jump off that chair from the lunchroom and start a job on my own.” Hils voiced his anger at the
Respondent’s attempt to shift the blame rather than taking responsibility for what he believed
was poor supervision of the job. He specifically asked why the two supervisors on duty, Pastore
and Soulia, were not being held accountable. It was during the discussion of the accident that
Mota was called to the meeting.
After reviewing the accident, John Walker, a Regional Vice President for the
Respondent, said it was clear they needed to review the permit process at the facility. The
parties then shifted focus to the events of March 31 and April 1, i.e. Hils conduct at the meeting
with Gerrard and Plumer’s alleged threat the following day. Hils testified that he re-enacted
Plumer’s “I’ll show you intimidation” outburst and asked Andrews and Moll, who had been at the
April 1 meeting, if that was how it went. According to Hils, Andrews replied, “Yep, that’s about
right.” This testimony was corroborated by Mota and Ryan. None of the Respondent’s witnesses
who were at this meeting were asked any questions about it by the Respondent’s counsel. The
testimony of General Counsel’s witnesses is thus uncontradicted.
There was also a discussion of the four grievances filed by the Union that day. As a
result of these discussions, the Respondent rescinded the suspensions of Ryan and Hils and
returned them to work with full pay for the time lost. With respect to the grievances filed on
behalf of Mota, Andrews questioned whether Mota, as a probationary employees, was entitled
to union representation. The Union’s Business Agent, Calendrino, argued that, although he was
not yet a member of the unit, he was entitled to representation during the investigation. Mota
testified that, after hearing Andrews question his right to representation, he spoke up, saying,
“[w[ait a minute, hold on here folks, I’m not the guy that got hurt and I’m not the guy that hurt
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him, and what Dana just said scared the crap out of me…” No one responded to Mota’s
comment.3
On April 16, Mota filed his second near miss/communication report for an incident that
occurred the previous day. Mota was again working with Cassese.4 Mota testified that Cassese
was trying to untangle some gantry hook chains three stories in the air, without any fall
protection. According to Mota, Cassese actions created an air leak that Mota had to repair. Mota
testified that he also noticed that a coworker had placed two of four heavy locks upside down on
a bag house cover. That same day, according to Mota, he observed that Cassese had installed
some bags in the bag house improperly. Despite all these problems Mota observed on April 15,
his near miss only addresses the upside down gantry hooks. Specifically, Mota wrote, regarding
the near miss:
Gantry chain hooks were attached to the Bag House cover upside down. Two hooks
were attached correctly and two were upside down. The hooks being upside down
can over-stress the hooks causing them to snap. This would be ugly.
More attention to detail has to happen.
The Near Miss report shows that Gerrard, Andrews and Plumer all reviewed it. In the
Supervisor’s response section, Gerrard wrote: “will discuss with day shift personnel what is
proper hook placement.” Nothing in the report submitted by Mota identifies Cassese as the
employee responsible for the hooks being upside down and there is no evidence that Mota ever
told Gerrard, Andrews or any other supervisor that Cassese was responsible.
There is no dispute that Mota continued to work at the facility until April 29 without any
supervisor or representative of management criticizing his work, warning him that his
performance was not up to par, or otherwise indicating that his job was in jeopardy. On April 29,
without any warning, Mota was called into Plumer’s office and terminated. Andrews, Chip
Robertson, one of the Respondent’s supervisors, and alternate steward Mark Sausanovitch
were present with Plumer and Mota for this meeting. Conveniently, Hils was off that day, his first
day off since his return from suspension.
Plumer told Mota that he was 45 days into his 60-day probationary period and that they
had decided to terminate him. Mota asked supervisor Robertson if there was anything he had
been asked to do that he had not done, or had done wrong. Robertson replied that Mota had not
done anything wrong. Andrews told Mota, “we just decided that you are not a good fit.” Mota
signed a form acknowledging his termination. The form contains no specific reason for
termination. Andrews admitted that, despite several request from Mota for an explanation why
he was being terminated, none of the Respondent’s representatives at the meeting gave him
one.
The record contains evidence of only one employee in the previous five years who was
terminated during probation, Jason McCauley. The only record regarding this employee that

3 Although Hils recalled the discussion between Calendrino and Andrews regarding Mota’s
right to representation, he did not recall Mota’s statement.
4 There was some testimony from General Counsel’s witnesses that Cassese was a
problem employee, frequently causing accidents and damage to equipment or property.
According to these witnesses, he had acquired the nickname in the shop of “Ricky Wreck It.”
Respondent’s witnesses acknowledged that Cassese had this reputation.
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was produced by the Respondent was a termination letter, dated July 14, 2004, which stated
that McCauley was terminated “for failure to follow direction during your probationary period.”
There are no records nor other evidence indicating how long McCauley worked before he was
terminated.
Plumer testified that, as the facility manager, he made the decision to terminate Mota.
However, in doing so, he relied exclusively on a memo prepared by Chief Engineer Andrews
recommending the termination. Andrews testified regarding the circumstances and reasons for
Mota’s termination. According to Andrews, he e-mailed several supervisors in mid-April seeking
input regarding how Mota was doing. Specifically, he solicited input from Safety Coordinator
Gerrard and shift supervisors Pastore, Soulia, Sam Logsdon, and Robertson. He compiled their
responses in an undated memo he sent to Plumer. In the memo, Andrews reported receiving
the following response from Logsdon:
I think it might be best if we get rid of Lou as soon as we can. I feel he is a
troublemaker. If you look at the Near misses he fills out, they seem to be written in
the hopes of getting Rick in trouble. I just don’t trust him.
Andrews admitted that Logsdon did not directly supervise Mota. Logsdon was not called as a
witness in this proceeding. As noted above, neither of the near miss reports submitted by Mota
name Cassese.
Andrews, in his memo to Plumer, reported receiving the following input from Soulia, who
was one of the supervisors on duty at the time of the March 23 accident:
I don’t really have specific details but I don’t really have a good feeling with this one.
I think in the long run it might not be good.
The response Andrews received from Gerrard, as reported in the memo, was more detailed and
specific. Gerrard responded as follows:
In my opinion he has to go and here are the reasons why:
1. He has the I know it all attitude. You do not start a new job with the attitude
that you know everything after the first week.
2. As I was explaining how to bring up bag house cages with the simon he was
trying to tell me that I was not doing it correctly.
3. The near miss he put in regarding the removal of bags from a hopper was
aimed to point blame on a fellow worker.
4. It has been noticed that it appears that all of a sudden he has a problem with
a fellow employee.
5. On the 15th of April there were 2 incidents regarding his displeasure of a
fellow employee, the first was Rick stayed on the bag house during lunch
and finished the installation of the bags. He made it a point to inform me that
the seams were not exactly 180º from the damper. Just before that myself
and Chip looked into the baghouse and we both agreed it was fine. The
second was when he was asked if he wanted to stay overtime he said he
would if Dallas was. He mentioned nothing if Rick was staying.
Gerrard testified at the hearing to explain the points he made to Andrews. In doing so, as
pointed out by the General Counsel in his brief, Gerrard contradicted himself and embellished
his testimony with additional criticisms not previously mentioned.
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Robertson gave Andrews the following input, as reported in Andrews undated memo to
Plumer:
I have not had much interaction with Lou, however, the times that I have are
questionable at best. There are four specific instances that I should inform you
about to justify my position.
1. There was a near miss submitted pertaining to working within a confined
space. The near miss was written for A-2 and in fact it dealt with B-2. There
was a permit issued for B-2 that space, just in a temporary closed status. If
he did ask the question then that would have been not an issue.
2. Scott Gerrard called on April 1, 2009, inquiring about his status on staying to
crush cages from the overhauls. I was not sure of the status of the cage
demo, but did inform Scott that Lou was on site. The task assigned was not
accomplished, but rather assisted with a LOTO of another baghouse.
Granted that was a good training exercise, but not informing the current
supervisor on shift, Mike Pastore, the expected assignment lent a degree of
being misleading.
3. On April 15, 2009, upon securing the lid on B-9 baghouse for the day, he
was informed that the lid was not seated completely and was directed to
completely seat the lid. At the time I could see from the control room the gap
left, I was relieving the CRO at the time. Rick Cassese inspected the lid and
reseated as Lou watched.
There was one other specific instance, but it escapes my “grey matter” at this time,
but somewhat minor. With just the specific instances listed above, he demonstrates
a degree of all knowing, bordering on arrogance, and less that a team player. I feel
retention would not be in the best interest of the Bristol facility.
Robertson testified at the hearing. As with Gerrard, his testimony was not always consistent with
what is reported in Andrews’ memo. He also sought to embellish his criticisms of Mota by
adding things not previously reported. Moreover, on cross-examination, he was forced to admit
that he was totally mistaken regarding the confined space near miss Mota had submitted on
April 1. His mistake about this incident is probably attributed to the fact that Robertson was
working on a different shift than Mota, had very little contact with him and only second-hand
knowledge about the incident.
Finally, Pastore’s input, as reported by Andrews, was the following;
I am sure he has the ability to do a fine job but I am not sure at what the price tag is
on that ability. I did spend some time with him during the outage showing him
around and I think he will be a quick study. However, in the role we shared over the
outage it is difficult to get a feel for the guy.
Pastore did not testify.
On April 22, Andrews wrote another memo to Plumer specifically recommending Mota’s
termination. After quoting the collective bargaining agreement provision governing probationary
employees, Andrews wrote as follows:
My question is does he get Union representation or not? We should look into this
since Tony said he is entitled, but I am not just going to take his word for it.
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As far as Lou is concerned, I feel that these are the key items that the Operation’s
Management Team has come up with to terminate his employment as a failure to
complete his probationary period.
1) Has openly demonstrated discontent with a fellow employee. A near miss
that he submitted was an intentional jab at this employee.
2) Displays a “know it all” attitude, and is perceived as arrogant.
3) By no means is he a team player.
He is not a good fit for the Operations department at this facility, and we would like
to terminate his employment at the current mid-point of his probationary period.
Andrews testified at the hearing that the only reasons he recommended Mota for
termination were the three items listed in his April 22 memo. He specifically denied that Mota’s
involvement in the March 23 accident and its investigation played any role in his decision to
recommend termination. He also denied that any union activity or support on Mota’s part was a
factor in the decision. Clearly, the filing of at least one of the near miss reports was a factor as it
is the first item mentioned in the memo.5 Andrews acknowledged that Mota was correct in filing
the report in question and that in fact a safety violation had been observed and was addressed
by management as a result of this near miss report. However, Andrews claimed that it was “how
the near miss was put in, not the fact that the near miss was put in” that concerned him about
Mota. Andrews testified that he perceived this as Mota “trying to make another employee look
bad, to maybe project a good image of himself.”
B. Analysis and Conclusions
1. Alleged threat of unspecified reprisals
The complaint in Case No. 34-CA-12378 alleges that the Respondent violated Section
8(a)(1) of the Act, through Plumer, when he allegedly said “You want to see intimidation? I’ll
show you intimidation” in the heat of the April 1 meeting. The Respondent, while denying that
such a statement was made, argues initially that the Board lacks jurisdiction to decide this issue
because Mota, who filed the charge, lacked standing to make the allegation. In the
Respondent’s view, because Mota was not at the April 1 meeting and was not a witness to the
alleged threat, he could not file the charge. The Board has long held that anyone has the right to
initiate an investigation of potential unfair labor practices by filing a charge. Apex Investigation &
Security Co., 302 NLRB 815, 818 (1981); Operating Engineers Local 39 (Kaiser Foundation),
268 NLRB 115, 116 (1988). In fact, charges are routinely filed by employers or labor
organizations on behalf of employees who have been subjected to unlawful restraint and
coercion by unions and employers, respectively. Accordingly, I reject this asserted defense and
shall consider the allegation on its merits.
The General Counsel’s witnesses testified consistently in describing Plumer’s reaction to
Hils’ criticism of the Respondent’s supervisors and its handling of the accident. Both recalled
Plummer slamming his hand on the table and saying, “I’ll show you intimidation.” Respondent, in
its brief, argues that Plumer, “merely slapped his hands on his desk and said “enough”, or “I’m
not intimidated by you.” None of the Respondent’s witnesses testified in this manner. In fact,

5 Mota’s filing of near miss reports also figured prominently in some of the input received
from the supervisors, as evidenced in Andrews undated memo quoted above.
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Plumer was not even asked about the incident and Andrews recalled Plumer saying “enough”
but could not recall what else he said. The other supervisor at the meeting, Moll, did not testify.
I credit Hils and Ryan and find that the statement was made as they described. As noted, their
testimony was essentially uncontradicted. In addition, during the April 7 meeting, when Hils
asked Andrews if this is what happened, he confirmed Hils version of the outburst. Finally, I
agree with the General Counsel that Hils and Ryan, as current employees of Respondent
testifying against their employer’s interest, are particularly reliable. See Flexsteel Industries, 316
NLRB 745 (1995).
Having found that Plumer in fact said, during the April 1 meeting, “I’ll show you
intimidation”, does not end the inquiry. The Respondent argues that even if the statement was
made, it was not unlawful because Hils had lost the protection of the Act by his profane, abusive
and insubordinate conduct at the meeting. See Verizon Wireless, 349 NLRB 640, 646 (2007);
Atlantic Steel, 245 NLRB 814, 816 (1979). There is no dispute that the meeting became
“heated” and that Hils in fact made some insulting remarks to Plumer regarding his support of
the supervisors at the plant. In addition, Plumer called the meeting to address what he
perceived to have been Hils attempt to intimidate Gerrard the day before during Gerrard's
meeting with Ryan. 6 The Board has historically given some leeway to union stewards when
they are zealously representing the interests of the unit employees and has found what might be
considered offensive remarks in other settings to be permissible in the context of a grievance
meeting or other similar setting. Dreis & Krumpf Mfg., 221 NLRB 309, 315 (1975), enfd. 544
F.2d 320 (7th Cir. 1976).
In Atlantic Steel, supra, the Board identified four factors to consider in assessing
employee behavior under these circumstances: (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer’s unfair labor practices. Having considered these
factors, I find that Hils’ “outburst”, under either version of the meeting, did not cross the line into
unprotected conduct. I note that his allegedly profane and abusive behavior occurred in a
meeting with the Respondent’s supervisors and only one other employee present, not in an
open work area where he could be overheard by employees. Secondly, his conduct was in
response to the Respondent’s shameful effort to make Ryan the scapegoat for its own failures
in adequately supervising the work on March 23. Hils was also protesting the shoddy treatment
accorded Ryan immediately after the accident when no ambulance was called and he was
taken instead to an occupational injury clinic about to close for the day. Thus his “outburst” was
directly related to protected concerted activity. The language used by Hils, while impolite,
certainly was not outside the norm of shop talk at the facility. Finally, while not provoked by any
unfair labor practice committed by the Respondent, Hils conduct was provoked by the
Respondent‘s shameful handling of the accident and its aftermath. I conclude that Plumer’s
statement cannot be excused by any alleged inappropriate conduct by Hils.
I also note that, even assuming Hils had lost the protection of the Act, Ryan certainly had
not. Ryan engaged in no inappropriate behavior during the meeting yet was forced to witness
the facility manager, the highest ranking official at the plant, threaten the union steward that he
would “show him intimidation.” Such a statement would clearly have a tendency to interfere with,
restrain and coerce an employee like Ryan in the exercise of his right to protest unsafe working
conditions or otherwise engage in protected activities. Accordingly, I find, as alleged in the

6 I note that the testimony that Gerrard had also become agitated on March 31 and threw
some chairs around was not disputed. Thus, it is unclear who was trying to intimidate whom at
that meeting.
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complaint, that the Respondent violated Section 8(a)(1) of the Act through Plumer’s April 1
conduct.
2. Mota’s Termination
The complaint in Case No. 34-CA-12339 alleges that the Respondent terminated Mota, in
violation of Section 8(a)(1) because he engaged in protected concerted activities by filing the near
miss reports on April 1 and 16 and, in violation of Section 8(a)(3), because he assisted the Union.
The General Counsel argues that the filing of the near miss reports constituted protected concerted
activity because they raised safety concerns affecting employees generally, and because they
invoked the health and safety provisions of the collective bargaining agreement. The Board has held
that an employee who raises safety issues with his employer is engaged in concerted activity that is
protected by Section 7 of the Act. Talsol Corp., 317 NLRB 290, 316-317 (1995). See also NLRB v.
Washington Aluminum Co., 370 U.S. 9 (1962); Daniel Construction Co., 277 NLRB 795 (1987). It is
also well-established that an employee’s “reasonable and honest invocation of a right provided for in
his collective bargaining agreement” constitutes protected concerted activity, even when the
employee acts alone. NLRB v. City Disposal Systems, 465 U.S. 822 (1984). Here, the collective
bargaining agreement between the Respondent and Local 30 contained at Article 34 a provision
requiring the Respondent to “maintain safe, sanitary and healthful conditions.”
The Respondent argues that General Counsel has failed to prove either that Mota was
engaged in any union or other concerted activity protected by the Act or that such activity motivated
the Respondent’s decision to terminate him. The Respondent relies on its right under the collective
bargaining agreement to terminate a probationary employee like Mota for any reason or no reason,
while acknowledging that even a probationary employee may not be terminated for discriminatory
reasons. The Respondent also argues that General Counsel has not met his burden under Wright
Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1980), cert. denied 455 U.S. 988 (1982).
The Board has applied the Wright Line analysis in all cases that turn on employer motivation,
such as this case. Under that analysis, the General Counsel must first prove, by a preponderance of
the evidence, that employee conduct protected by the Act was a motivating factor in the employer’s
decision to terminate an employee. To meet his burden, the General Counsel must offer evidence
showing that the employee engaged in protected activity, that the employer was aware of the
activity, that the employer had animus against the activity and that there was a causal connection
between the activity and the termination. Because direct proof of unlawful motivation is seldom
available, the Board will rely on circumstantial evidence, such as shifting reasons for a termination,
disparate treatment, timing, etc., to prove the elements of General Counsel’s case. Once the
General Counsel has met his burden, the Respondent must come forward with evidence sufficient to
show that it would have terminated the employee for the reasons asserted even in the absence of
protected activity. Id.
There is no dispute that Respondent was aware of Mota’s conduct in filing the near miss
reports. Respondent argues however that the filing of such report was not protected activity and that,
even if it was, the Respondent exhibited no hostility toward such activity and, in fact, encouraged its
employees to file near miss reports, even rewarding them for doing so. I find that the filing of a near
miss report which reports a safety issue is protected concerted activity for the reasons advanced by
the General Counsel. Although I had my doubts whether the General Counsel had proved animus
toward employees who file such reports, I have ultimately concluded that, at least with respect to
Mota, the Respondent was hostile to such activity. What has convinced me of this is the memos
prepared by Andrews recommending Mota’s termination that list, as reasons, his filing of the near
miss reports. Regardless of how the Respondent treated other employees who filed these reports, it
admittedly did not like the way Mota submitted them, which the Respondent supervisors perceived
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to be an attack on another employee. I find that General Counsel has proved that Mota’s filing of the
near miss reports was a motivating factor in the decision to terminate him.
I also find that Mota’s perceived support for the Union was another motivating factor in his
discharge. Andrews knew when he hired Mota that he was aligned with Hils, who had referred Mota
for employment. After he began working at the Bristol facility, Mota continued to demonstrate his
allegiance to the Union when, during the Respondent’s investigation of the March 23 accident, he
asked if the union steward could review the statement prepared for him by Gerrard and then
requested a copy. The Respondent’s animus toward this request was exhibited by Andrews
questioning of Mota’s motives for seeking a copy of the statement he had been asked to sign. When
Hils, the steward who had already antagonized the Respondent by his efforts to protect employees
during the investigation, filed two grievances on Mota’s behalf, the Respondent clearly had
knowledge that Mota was a union supporter. This is evidenced by the opinions expressed by the
Respondent’s supervisors to Andrews that Mota was likely to be a troublemaker and that it would be
best to get rid of him before it was too late, i.e. before he finished his probationary period.
Having found that the General Counsel met his initial burden of showing that protected
activity was a motivating factor in Mota’s discharge, I must now consider whether the Respondent
has offered evidence sufficient to establish that it would have discharged Mota when it did even
absent his protected activity and union support. While it is true that the Respondent did not need to
have any reason for terminating a probationary employee like Mota, here the Respondent has come
forward with a litany of reasons which seemed to grow as the trial progressed. The testimony of
Andrews, Gerrard and Robertson, attempting to show that Mota was not satisfactorily completing his
probation, was not credible. As noted above, the testimony at trial was not consistent with the written
memos prepared at the time the discharge was being considered. Moreover, I note that all of these
witnesses acknowledged never raising any of these issues with Mota. This is a clear violation of the
Respondent’s own policy for dealing with probationary employees, as evidenced by the form Mota
was asked to sign when hired. Rather than provide feedback to a probationary employee so he
could try to correct any perceived problems and successfully complete his probation, the
Respondent essentially hid its objections from him until it was too late to save his job.
Based on the above and the record as a whole, I find that Respondent violated Section
8(a)(1) and (3) by discharging Mota on April 29 because he had raised safety complaints, invoked
his contractual rights and demonstrated that he would be a union supporter.
Conclusions of Law
1. By threatening employees with unspecified reprisals because they engaged in union
and other protected concerted activities, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Luis Mota on April 29, 2009 because he engaged in protected
concerted activities and supported the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent having discriminatorily discharged an
employee, it must offer him reinstatement and make him whole for any loss of earnings and
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other benefits, computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).7 The Respondent shall also be ordered to post a Notice to Employees.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
ORDER
The Respondent, Covanta Bristol, Inc., Bristol, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals because they engaged in
union and other protected concerted activities.
(b) Discharging or otherwise discriminating against any employee for engaging in
protected concerted actitivities or for supporting Local 30, International Union of Operating
Engineers or any other union.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed 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 from the date of the Board’s Order, offer Luis Mota full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Mota whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Mota in writing that this
has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,

7 In his brief, General Counsel has requested, as part of the remedy, that interest be
compounded on a quarterly basis. While I find the arguments advanced in favor of this
persuasive, I shall defer to the Board to make such a change in the Board’s standard remedial
orders. See Glen Rock Ham, 352 NLRB 516, fn. 1 (2008).
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Bristol,
Connecticut, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 34, after being signed by the Respondent’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 ensure that the
notices 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 facility
involved in these proceedings, the Respondent 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 April 1, 2009.
(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., June 16, 2010.
____________________
Michael A. Marcionese
Administrative Law Judge

9 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten you with unspecified reprisals because you engage in union and other
protected concerted activities.
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected
concerted activities or for supporting Local 30, International Union of Operating Engineers or
any other union.
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.
WE WILL, within 14 days from the date of this Order, offer Luis Mota full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Mota whole for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
Mota’s unlawful discharge, and WE WILL, within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used against him in any way.
COVANTA BRISTOL, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
450 Main Street, 4th Floor
Hartford, Connecticut 06103
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.