Decker Disposal, Inc.

National Labor Relations Board - Board Decisions

May 29, 1968

171 N.L.R.B. 879 (N.L.R.B. 1968)

DECKER DISPOSAL, INC. 879
Decker Disposal , Inc., and Industrial Disposal, Inc.
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 13
Decker Disposal , Inc., and Industrial Disposal, Inc.
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 13, Petitioner . Cases 27-CA-2255
and 27-RC-3170
May 29, 1968
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 23, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in certain unfair labor practices and recom-
mending that they cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent with this Decision and Order.
The Respondents except, among other things, to
the Trial Examiner 's conclusion that they violated
Section 8(a)(3) and (1) of the Act by discharging
Duane Daugherty, and by failing, for discriminatory
reasons, to make a bona fide effort to recall from
layoff status employees Andy Sandoval and Richard
Vigil.
The record shows that on February 11, 1967,
while Daugherty was operating one of the Respon-
dents' vehicles in a residential neighborhood on a
trash-collection route, he encountered, and almost
collided with, a vehicle operated by one of the
Respondents' customers . The customer lodged a
formal complaint with the Respondents , charging
that Daugherty's vehicle failed to slow down while
entering an intersection , almost hitting her car, and
that an accident was avoided only because she took
evasive action at the last minute . Daugherty admits
being questioned about the matter on February 13
by Clayton Decker , an owner and manager of both
Companies , but denies any recollection of the in-
cident.
On February 17, 1967, while Daugherty was
again operating a trash -collection vehicle on a res-
idential route , one of the crewmen assigned to his
vehicle failed to close a gate on a customer's
premises allowing a dog to escape . The dog was
later found dead by the side of a road. The
customer complained to the Respondents about the
loss of the dog, stated that he had repeatedly asked
the driver of the Respondents ' truck to see to it that
the gate was closed , and, moreover, that the Com-
pany had assured him drivers would be instructed
in this respect.
The Respondents had, in fact , instructed the
drivers with respect to this matter . Daugherty
testified : " I recall on the card of this particular
house where the dog was , it was written on the
card, `Be sure to close gate ,' and at this time, I re-
call that Butch said , ` remember to close the gate.'
Johnny had a box in one hand and a carry-out in
the other, and he couldn 't close the gate , but there
was no dog in the yard at the time ." Daugherty also
testified that, as the driver , he was responsible for
the operation of the truck and its crew.
The customer made a claim against the Respon-
dents in the amount of $ 125 as damages sustained
by the loss of the dog. Decker, in turn, told
Daugherty that unless he made good this claim he
faced discharged . Daugherty refused and ac-
cordingly was discharged by the Respondents on
February 18, 1967.
The Trial Examiner held that the Respondents
discharged Daugherty because of his union activi-
ties and that the reasons assigned by the Respon-
dents for his discharge , namely , his failure to pay
for the loss of the dog, the near accident , and his
"general attitude ," were pretextural in nature. How-
ever , insofar as his union activity is concerned, the
record shows only that in mid-January Daugherty
asked a union representative for information on
how to organize , and also compiled a list of em-
ployees who wanted representation . The record
does not show that the Respondents were made
aware of these activities but only that at a meeting
of employees on February 11 Daugherty told
Decker that the employees were unhappy with one
of their supervisors and that this fact had a great
deal to do with the employees ' interest in the
Union.
On balance, we do not believe that the General
171 NLRB No. 124
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel has sustained his burden of proving that
Daugherty was discharged because of his union ac-
tivity rather than for the reasons assigned by the
Respondents.
The Trial Examiner concluded that the Respon-
dents did not make a bona fide effort to recall San-
doval and Vigil from layoff status because of San-
doval's union activities, notwithstanding the
credited testimony of Decker that, in attempting to
recall both employees, he tried on two occassions
to reach them by telephone, visited a dump where
they were purportedly at work, and, finally,
telephoned a representative of their new employer
who informed him that they had permanent em-
ployment. The Trial Examiner reasoned that
Decker's -failure to seek answers directly from the
employees themselves after being advised by their
new employer that their jobs were permanent
"clearly indicates that he seized upon [that em-
ployer's] statement as an excuse for discontinuing
his recall efforts," especially as the Respondents
had in their possession, along with their other res-
idential customers, the home address of one of
these individuals and could have communicated
with him in writing. We do not agree.
It is clear that a substantial effort was made by
the Respondents to communicate with Sandoval
and Vigil. We are not prepared, in looking back
over the facts, to say at this time that the Respon-
dents did not go far enough. In these circum-
stances, we find that the evidenc fails to support the
conclusion that the Respondents did not in good
faith seek to recall the employees here involved.
We hold, therefore, that the Respondents did
not, by discharging Daugherty and by failing to re-
call Sandoval and Vigil, violate Section 8(a)(3) and
(1) of the Act. Accordingly, we shall dismiss the
complaint herein.' Moreover, as we do not find suf-
ficient basis for concluding that the Respondents'
conduct interfered with the conduct of the election
held herein, we shall overrule the objections
thereto and certify the results of the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
against the Respondents, Decker Disposal, Inc., and
Industrial Disposal, Inc., Denver, Colorado, be, and
it hereby is, dismissed.
CERTIFICATION AND RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election held between March 31,
1967, and June 20, 1967, has not been cast for In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 13, and that said labor organization is
not the exclusive bargaining representative in the
unit found appropriate within the meaning of Sec-
tion 9(a) of the Act as amended.
' The Trial Examiner found that the Respondents violated Section
8(a)( I) of the Act by changing the daily starting time of employees prior to
the election held herein We agree However, in view of the isolated nature
of this incident , we find that the issuance of a remedial order would not ef-
fectuate the purposes of the Act Further, in these circumstances , we find
that such conduct in and of itself would not warrant setting aside this elec-
tion
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: These
consolidated proceedings were heard at Denver,
Colorado, on August 1, 2, and 3, 1967, pursuant to
due notice. The complaint in Case 27-CA-2255, is-
sued on June 23, 1967,' alleged that Decker
Disposal, Inc., and Industrial Disposal, Inc., had
violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended. Con-
solidated therewith for hearing and decision were
certain objections, filed by the Union, to conduct
affecting the results of an election held among
Respondent's employees in Case 27-RC-3170.2
In their answer, Decker Disposal and Industrial
Disposal denied the commission of any unfair labor
practices and requested that the results of the
election be confirmed.
Upon the entire record, my observation of the
witnesses, and the briefs filed by the General Coun-
sel and the Respondents, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
A. The Evidence
On February 1, 1967,' the Union filed a petition
for certification as the majority collective-bargain-
ing representative of the employees of Decker
Disposal and Industrial Disposal, and on February
17 the Regional Director issued a notice of
representation hearing. On February 24, the Union
filed an amended petition and joined the two cor-
porations in executing a Stipulation for Certifica-
tion Upon Consent Election, which the Regional
' Based on a charge filed on April 14, 1967, by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 13, hereafter called the Union.
2 The complaint and objections to the election were consolidated by an
order issued by the Regional Director on June 23, 1967
1 All dates hereafter mentioned relate to 1967 unless otherwise stated
DECKER DISPOSAL, INC. 881
Director approved." On March 1, the Acting Re-
gional Director issued a notice of representation
hearing which withdrew approval of the said stipu-
lation and ordered a hearing. Following the hear-
ing, the Regional Director on March 14 issued a
Decision and Direction of Election in which, among
other things, he found as follows:
1. The Employer is engaged in commerce
within the meaning of the Act and it will effec-
tuate the purposes of the Act to assert jurisdic-
tion herein.'
The Regional Director further found as follows:
4. The following employees of the Employer
constitute a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act:'
' The parties are in agreement as to the composition of the bargain-
ing unit which includes employees of Decker Disposal, Inc , and Indus-
trial Disposal , Inc , herein called the Employer Both companies are
engaged in the Denver metropolitan area in the collection and disposal
of trash and refuse, apparently operate from the same facilities, and
have the same supervisors and together employ approximately four-
teen employees in classifications of driver, helper, and mechanics
The parties are in apparent agreement that the two companies con-
stitute a single employer within the meaning of the Act, and I so find.
All employees employed by Decker
Disposal, Inc. and Industrial Disposal, Inc.,
in their Denver, Colorado, operation, BUT
EXCLUDING all office clerical em-
ployees, salesmen, guards, watchmen,
professional employees and supervisors as
defined in the Act.
So far as this record shows, Board review of the Re-
gional Director's Decision and Direction of Elec-
tion was not sought.
On March 31 ballots were mailed by the Re-
gional Office to the employees and on April 10 the
ballots were opened and counted. The tally of bal-
lots shows that six votes were cast against the
Union, four votes were cast for the Union, and
three ballots were challenged. On April 13 the
Union filed objections to conduct affecting the
results of the election. In a supplemental decision
on challenged ballots, issued on June 9, the Re-
gional Director overruled the challenges to the bal-
lots, , which were then counted, and the results
showed seven votes against the Union and six votes
for. On June 23 the Regional Director issued the
complaint herein and a document entitled supple-
mental decision on objections, order of consolida-
tion of the objections and the complaint herein, and
notice of hearing on the issues raised by the con-
solidated proceeding herein.
The complaint alleged and the answer of Decker
Disposal and Industrial Disposal admitted that they
are Colorado corporations with an office and place
of business in Denver, Colorado; that they are en-
gaged in the business of collecting and disposing
trash and refuse; that they have some corporate of-
ficers in common; that they have common owners
and boards of directors; and that the said directors
formulate and administer common labor policies af-
fecting the employees of Decker Disposal and of In-
dustrial Disposal. The answer, however, denied the
allegations of the complaint that they are affiliated
businesses , that they have common operators, that
they constitute a single integrated business enter-
prise, and that they jointly constitute a single em-
ployer under the Act.
Clayton O. Decker testified as follows. He and
Robert P. Kinsley are the stockholders of the two
corporations, with Kinsley holding a slightly larger
proportion of the shares. He, Robert Kinsley, and
Marlene Kinsley are the officers and directors of
both corporations . He is the active day-to-day
manager of both corporations. They have separate
offices at different locations , but he works out of
both. Decker Disposal's location also includes a
garage which houses the trucks of both corpora-
tions . Foreman Richard F. Ballou is paid by, and
performs identical services for, both corporations.
Paragraph 11(e) of the complaint alleged, and the
answer admitted , that Public Service Company of
Colorado, a Colorado corporation, is a public utili-
ty engaged in the business of providing electrical
power in Denver; that it receives gross revenues ex-
ceeding $250,000 annually; and that it annually
purchases goods and materials valued in excess of
$10,000 which are shipped directly to its Denver
place of business from outside of Colorado. Para-
graph 11 (f) of the complaint prior to its amendment
at the hearing alleged that Decker Disposal and In-
dustrial Disposal annually perform services valued
in excess of $50,000 for Public Service, and that
the two corporations constitute a single employer
engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The answer of
the two corporations alleged that Industrial
Disposal performs no services for Public Service,
and denied that Decker annually performs services
valued at or in excess of $50,000 for Public Ser-
' Paragraph 8 of the stipulation recited the following - " Decker Disposal,
Inc and Industrial Disposal , Inc., are Colorado corporations doing business
in Denver , Colorado, engaged in the collection of trash and refuse, they
regularly perform such services , valued at more than $50,000 per annum,
for customers who themselves meet the Board 's jurisdictional standards on
a basis other than indirect inflow of indirect outflow "
' At the hearing in the instant proceeding , the General Counsel, by way
of explanation and in support of a motion to amend the complaint,
discussed below , read the following excerpt from the record in the
representation proceeding.
HEARING OFFICER . On the record . Decker Disposal , Inc., and Indus-
trial Disposal , Inc , are Colorado corporations doing business in
Denver , Colorado, engaged in the collection of trash and refuse They
regularly perform such services valued at more than $50,000 per
annum for companies who themselves meet the Board 's jurisdictional
standards on a basis other than indirect inflow of indirect outflow Mr
Wagner, is that a fair statement of the business and operation of the
companies?
MR WAGNER Yes, this is correct for the purposes of the Board's ju-
risdiction
HEARING OFFICER Will you stipulate that those facts do establish
the Board's jurisdiction9
MR. WAGNER Yes, the employer so stipulates
MR TOLLIVER- The petitioner so stipulates
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice, and denied that either Decker Disposal or In-
dustrial Disposal is now or at any time material
herein has been an employer engaged in commerce
within the meaning of the said sections of the Act.
Short) after the commencement of the hearing
herein, N ranted the General Counsel's motion to
amend paragraph II(f) of the complaint so as to al-
lege that Decker Disposal and Industrial Disposal
annually perform services valued in excess of
$50,000 for Public Service and a number of other
companies, all of which meet the Board's jurisdic-
tional standards, including certain Denver stores
owned by Safeway Stores, Inc., by F. W. Wool-
worth Co., and by Miller's Super Markets. Later in
the hearing, the parties stipulated that during the
calendar year 1966, each of the three last-men-
tioned companies had a gross volume of business in
excess of $500,000, and that during that year
Decker Disposal and Industrial Disposal did busi-
ness with and received payments from the aforesaid
companies in the following amounts:
Decker
Disposal
Industrial
Disposal
Miller ' s $1,560.00 $1,560.00
Woolworth 390.00 540.00
Safeway 1 , 380.00 810.00
Totals $3,330.00 $2,910.00
Because of the refusal of Decker Disposal and In-
dustrial Disposal , without further investigation, to
enter into any stipulations relating to an y of the
other companies named in paragraph 11(f) of the
complaint , as amended , the General Counsel again
moved to amend that paragraph so as, in effect, to
eliminate reference to such other companies. I
granted the motion , and the complaint as so
amended then alleged that the two corporations an-
nually perform services valued in excess of $ 50,000
for Public Service , Safeway, Miller's, and Wool-
worth . Decker Disposal and Industrial Disposal ad-
hered to the denial in their answer that they are en-
gaged in commerce.
The General Counsel then called as a witness
Robert Bader, a supervisor in Public Service's ac-
counting department . The parties stipulated that if
asked Bader would testify that certain checks total-
ing $59 ,298.82 were paid by Public Service to
Decker Disposal between January 7 and December
14, 1966 , for services rendered . Bader testified,
however , that he had no information as to when
such services were rendered . Decker testified that
on January 1, 1967, Decker Disposal and Public
Service executed a new contract providing for
removal of ash from two ponds owned by the latter;
that the price established therein for each unit of
work , i.e., presumably for emptying each pond, was
35 percent less than the price paid by Public Ser-
vice for each such unit in 1965 and 1966 ; and that
during 1967, up to the time of the hearing herein,
the total number of units of work had been "about
the same" as in 1966.
B. Concluding Findings
1. General Counsel contends that Decker
Disposal and Industrial Disposal constitute a singe
employer for jurisdictional purposes. I agree. It is
undisputed that Decker and Robert P. Kinsley own
all the stock of the two corporations; that Decker,
Robert Kinsley, and Marlene Kinsley are the
directors and officers of both corporations; that the
said directors formulate and administer common
labor policies affecting the employees of both cor-
porations; that Decker is the manager of both; and
that the two corporations use some employees and
facilities in common. I find that Decker Disposal
and Industrial Disposal (both of which are hereafter
referred to as the Respondent) are integrated enter-
prises constituting a single employer for jurisdic-
tional purposes. Drapery Manufacturing Co., Inc.,
166 NLRB 865; M. P. Building Corporation, d/b/a
Kent Constr. Co., 165 NLRB 829.
The cases cited by the Respondent do not require
a contrary conclusion. In Gifford-Hill & Co., 90
NLRB 428, the Board found that separate cor-
porations constituted an integrated enterprise forju-
risdictional purposes in view of their interlocking
directorates, common executive officers, common
stock ownership, and other indicia of coordinate
activity. This decision refutes rather than supports
Respondent's position. In American Furniture Com-
pany, Inc., 116 NLRB 1496, and in Jefferson Co.,
Inc., 105 NLRB 202, the Board refused to treat
separate corporations as a single employer for ju-
risdictional purposes because, unlike the instant
case, there was no centralized management and no
common control over labor relations policies. In
N.L.R.B. v. Shawnee Milling Co., 184 F.2d 57
(C.A. 10), and in Clark Thread Company, 79 NLRB
542 (which involved a unit question), the Board
refused to find that separate corporations con-
stituted a single employer because, unlike the in-
stant case, there was no evidence of common con-
trol of labor relations policies.
2. The General Counsel next points out that a
finding was made in the representation proceeding
that the Respondent is an employer engaged in
commerce within the meaning of the Act, and con-
tends that this issue may not be relitigated in the in-
stant proceeding, an unfair labor practice proceed-
ing, in the absence of newly discovered or previ-
ously unavailable evidence. Although the General
Counsel does not expressly so state, he implies that
no such evidence has been presented.
Section 102.67(f) of the Board's Rules and Regu-
lations, relating to requests for Board review of
preelection determinations by the Regional
Director in representation proceedings, provides:
Failure [of the parties to a representation
proceeding] to request review shall preclude
DECKER DISPOSAL, INC. 883
such parties from relitigating, in any related
subsequent unfair labor practice proceeding,
any issue which was, or could have been,
raised in the representation proceeding.
The General Counsel's contention raises a host of
questions. Does the evidence in the representation
proceeding' establish that the Board's jurisdictional
standards have been met?7 Did Respondent fully
litigate the jurisdictional facts in the representation
proceeding and, if not, did it nevertheless have the
opportunity to do so?' May I take official notice of
evidence adduced in the representation proceeding
in order to answer these questions? Does the term
"any issue " in Section 102.67(f) of the Regulations
include an issue relating to jurisdictional facts? To
what extent is the instant proceeding, which in-
volves alleged violations of Section 8(a)(1) and (3)
as well as of Section 8(a)(5), a subsequent "re-
lated" unfair labor practice proceeding? If a por-
tion of this proceeding is not "related, ' are the ju-
risdictional facts relitigable for purposes of related
portions but not for the unrelated portions?
Had the General Counsel opposed relitigation of
the jurisdictional facts at the hearing herein, the
above questions would have been squarely
presented. However, he did not interpose such op-
position. On the contrary, he adduced testimony in
support of the jurisdictional allegations of the com-
plaint, including those set forth in both the original
and amended complaint. In such circumstances, I
find that the General Counsel is now estopped from
asserting the nonlitigability of the jurisdictional
facts. I am mindful that the quoted regulation is
couched in seemingly mandatory language; i.e.,
"shall preclude" relitigatlon. I am, however, per-
suaded that application of the principle of estoppel
does not do violence to the apparent purpose be-
hind the regulation-to avoid unnecessary delay.
For here, the issue which the General Counsel now
says cannot be relitigated was in fact relitigated.
Since the delay engendered thereby cannot be un-
done, literal application of the regulation would
constitute a sterile gesture and thus would not ef-
fectuate its purpose.
3. The, General Counsel contends that in any
event the record herein establishes that Respon-
dent's operations satisfy the Board's jurisdictional
standards and hence that jurisdiction should be as-
serted. I agree.
In Siemons Mailing Service, 122 NLRB 81, which
is controlling here,' the Board stated that it would
assert jurisdiction over "nonretail enterprises which
have an outflow or inflow across State lines of at
least $50,000, whether such outflow or inflow be re-
garded as direct or indirect." The Board further
stated that indirect outflow includes "services to
users meeting any of the Board's jurisdictional stan-
dards except the indirect outflow or indirect inflow
standard." I find that during 1966 Respondent per-
formed local services valued at $59,298.82 for
Public Service; that it performed local services
valued at $6,240 during the same year for Safeway,
Miller's, and Woolworth; and that the said
purchasers of Respondent's services are all subject
to the Board's jurisdiction. Accordingly, Respon-
dent satisfied the Board's jurisdictional standard for
nonretail operations.
Respondent contends, however, that 1967 con-
stitutes a more appropriate year for determining
whether or not its operations meet the jurisdictional
standard; that, in view of the 35 percent price
reduction provided in its 1967 contract with Public
Service, its anticipated income from that source in
1967 will be only 65 percent of $59,298.82 or
$41,874.23; and that this amount, even when added
to the $6,240 received from other sources , is still
below the $50,000 requirement. Respondent
further contends that even if 1966 were the year
used the jurisdictional standard would not be met
because the record shows only that Respondent
received over $50,000 in payments in that year,
and does not establish that the services therefor
were performed in that year.
In its recent decision in District Court of the
Tenth Judicial District of the State of Idaho (Cox's
Food Center, Inc.), 164 NLRB 95, the Board reaf-
firmed its earlier holding in Jos. McSweeney & Sons,
Inc., 119 NLRB 1399, that where commerce data
for a recent annual period is available reliance
should be placed on such data, and speculation as
to future operations should be avoided. Accord,
Burton Beverage Company, 116 NLRB 634;
Aroostook Federation of Farmers, Inc., 114 NLRB
538. Respondent's assertion that its services to
Public Service will amount to only $41,874.23 in
1967 is mere speculation if for no other reason than
that it is impossible to predict the number of units
of work which Respondent will perform for that
company in that year. In addition, Respondent's
total volume of business for 1967 cannot be pre-
dicted. It is thus proper to use 1966 as the year for
determining whether jurisdiction should be as-
serted. The cases cited by Respondent do not
require a contrary conclusion. In Building and Con-
" I note that Respondent 's admission regarding jurisdictional facts made
in the representation proceeding appears in the transcript of the instant
proceeding only for explanatory purposes , and not for evidentiary pur-
poses.
, Even if the facts underlying jurisdiction may not be relitigable, the issue
as to whether such facts establish jurisdiction can be raised at any stage
N L R.B. v Peyton Fritton Stores, Inc., 336 F 2d 769 (C A 10)
" As noted more fully below, Respondent's position that the Board's ju-
risdictinonal standards are not met is predicated upon the price change
provided by the contract of January 1 with Public Service I note , however,
that the hearing in the representation proceeding was held after that date
This suggests that the issue presented by the contract change could have
been raised in that proceeding Cf Greene County Farin Bureau Coopera-
tiveAssociation ,Inc v NLRB,317F2d335(CADC )
' For a discussion of this problem, see N L R B v Security Guard Ser-
vice, Inc , 384 F 2d 143 (C A 5), and cases cited therein, Amalgamated
Clothing Workers of America [Spruce Pine Mfg I v N L R B, 365 F 2d 898
(C A D C ), and the decisions of the Trial Examiners in Ross Porta-Plant,
Inc., 166 NLRB 494 , in Wagner Industrial Products Company, Inc, 162
NLRB 1349, and in Thrifty Supply Company, 153 NLRB 370
i" N L R B v Carroll-Naslund Disposal, Inc, 359 F 2d 779 (C A 9),
Jaycock Sanitary Service of Garden Grove, Inc, 161 NLRB 544
353-177 0 - 72 - 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction Trades Council of San Bernardino (Golding
and Jones, Inc.), 139 NLRB 1370, where the Board
used projected figures, it appears that, unlike the
instant case, the record contained insufficient infor-
mation to permit reliance on the employer's past
operations. In Hamilton Photo Engraving Co., 93
NLRB 175, fn. 3, the employer contended that
1949 should not be treated as a representative year
because after the close of the year there were fluc-
tuations in the volume of business done by the em-
ployer with some customers. The Board rejected
this contention inasmuch as there was no claim that
the character of the business had changed. There is
nothing in the record to suggest, and indeed
Respondent does not claim, that the character of its
business has changed.
Finally, I find no merit to the claim that jurisdic-
tion should not be asserted even if 1966 is used.
Respondent correctly asserts that jurisdiction turns
on the volume of work performed and not on the
volume of payments received in that year. Jos. Mc-
Sweeney & Sons, Inc , supra. The Board also held in
that case, however, that absent evidence to the con-
trary it is assumed that goods paid for during a year
were shipped during that year. Since there is no
contrary evidence here, it is similarly assumed that
the $59,298.82 paid by Public Service to Respon-
dent in 1966 was for services rendered by the latter
in 1966.
For the foregoing reasons, I find that Respon-
dent's operations satisfy the Board's jurisdictional
standards.
II. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
1. The evidence
Sometime in mid-January, employees Daugherty,
Sandoval, Downing, and John Ocana, Jr., discussed
the possibility of unionizing Respondent's em-
ployees. Daugherty and Sandoval then obtained the
names of interested employees on a list which the
latter gave to the Union. On January 30 the pre-
sident of the Union, Salter, met with a number of
Respondent's employees, at which time 14 em-
ployees signed cards authorizing the Union to
represent them for purposes of collective bargain-
ing. On February I the Union sent Respondent a
letter claiming to represent a majority of its em-
ployees and requesting that Respondent meet at a
specified time and place for purposes of negotiating
a collective-bargaining agreement On the same
day, the Union filed its representation petition,
referred to above. On February 3 Respondent
wrote to the Union that it was investigating the
question whether Respondent's operations satisfied
the Board's jurisdictional standards, hoped to have
the facts in a few days, but would be glad to confer
on request.
Sometime in the afternoon of February 11
Respondent's part owner and manager, Decker,
called a meeting of the employees. The record con-
tains conflicting testimony as to what was said at
the meeting. According to Sandoval, Decker stated
that the Government was trying to take over the
rubbish business, that "if the Union was taken into
the business, he would go broke"; and that he could
not pay the men any more money but would try to
improve their hours of work by changing the start-
ing time to 6 a.m. instead of 5 or 5:30 a.m. San-
doval further testified that he and Daugherty com-
plained about Foreman Ballou 's treatment of the
employees and that Decker promised to correct the
situation . Daugherty testified that Sandoval com-
plained about the treatment received by the em-
ployees, and that he, Daugherty, stated that the
chief reason for the movement to unionize the em-
ployees was their treatment by Ballou. Daugherty
further testified that Decker stated that the Govern-
ment was trying to take over the trash industry, that
the employees did not need a union , that the Union
would not pay their wages, that he could not afford
to give them raises but could ease their hours by
changing their starting time from 5 to 6 a.m., and
that Decker in effect asked the employees to "hold
down" the Union for a time.
Employee Downing testified that at the meeting
Daugherty identified himself as one of the instiga-
tors of the Union; that he did not hear Decker use
the word " union " but that the latter did say that "if
it came in , it would hurt him"; that Decker further
stated that if the employees waited a while he
would try to get them a raise and a week's vacation;
but that he recalled no mention of any change in
working hours. Employee Hamilton testified that
either Sandoval or Ocana said that the men would
get things straightened out by the union they in-
tended to bring in, that Decker said he had never
seen a union that made up the payroll; but that
neither Decker nor anyone else said anything about
a wage increase or paid vacations. Employee Mills
testified that he had some recollection that San-
doval said something about the Union; that Decker
stated that he understood that the Union was at-
tempting to organize Respondent but did not know
whether Respondent would be helped or hurt by
unionization ; and that he had no recollection of any
mention by Decker of a wage increase or of paid
vacations. Employee Piefer testified that Decker
said that "if this union did go in, he wouldn't say
one way or the other what would happen financial-
ly"; but that he did not remember Decker mention-
ing anything about a wage increase or paid vaca-
tions.
Thereafter, the starting hour for work was admit-
tedly changed. Daugherty testified without con-
tradiction that the change was made on February
13 and that Decker never furnished any explana-
tion for the change. Decker testified that he
changed the starting hour from 5 to 6 a.m. because
DECKER DISPOSAL, INC.
of complaints from residential customers that trash
was being picked up before 7 a.m.; that the men
had theretofore had about an hour and a half of
trash collection beginning at 5 a.m. at commercial
establishments, where no one would be disturbed,
and at which hour delivery trucks would not be
present; that contrary to his instructions the em-
ployees would begin their commercial pickups prior
to 5 a.m. in order to complete their routes earlier,
and would thus arrive at residences as early as 6:30
a.m.; and that he postponed their starting hour so
that they could not reach the residences before
7:30 a.m. even if they began early.
2. Concluding findings
The General Counsel contends that Respondent
violated Section 8(a)(1) of the Act through
Decker's "threat" that Respondent would "go
broke" if the Union was chosen to represent the
employees, his promise to give them a wage in-
crease and paid vacations if they rejected the
Union, and his subsequent change in working
hours. Respondent contends that the record fails to
establish that the alleged "threat" was made, and
that in any event it was not coercive and con-
stituted protected free speech; that the record fails
to establish the alleged promises; and that the
change in hours had no relationship to union mem-
bership or activity, and was dictated solely by busi-
ness considerations.
I am not persuaded that the General Counsel has
established by a preponderance of the credible
evidence that Decker made the "go broke" state-
ment . Contrary to the contention in the General
Counsel's brief, Downing did not testify that
Decker made such statement. Moreover, Daugherty
did not corroborate Sandoval's testimony. My
evaluation of the evidence leads me to believe that
Decker merely stated that he could not afford to in-
crease wages and that Sandoval interpreted the
statement as connoting that he would go out of
business. But even if Decker had made the alleged
statement, I do not agree that it would have con-
stituted an unlawful threat. Where an employer
directly or indirectly tells his employees that he will
or may voluntarily go out of business and that they
will lose their jobs if they should unionize, he is
guilty of an unlawful threat. But where he advises
them that unionization will financially force him to
close down, this is nothing more than a prediction
of financial consequences and does not imply that
he will use his economic power to make his predic-
tion come true. I therefore find that the alleged
statement , even if it had been made, constituted
privileged persuasion . Bilton Insulation , Inc., 129
NLRB 1296, enfd. 297 F.2d 141 (C.A. 4).
I further find that the record is insufficient to
establish the alleged promises of a wage increase
885
and paid vacations. Downing's testimony that such
promises were made was contradicted by one of
Respondent's witnesses and, what is more impor-
tant, was not corroborated by any of the General
Counsel's witnesses. Had such promises been made,
it is hardly likely that the latter witnesses would
have failed to testify thereto. Accordingly, although
Downing appeared to be sincere, I conclude that he
was under a misapprehension and reject his
testimony regarding the said promises.
However, I find that on February 13 Decker
changed the employees' starting hour from 5 to 6
a.m. to induce them to reject the Union. Although
Decker testified that he made the change in order
to eliminate complaints from residential customers,
the fact remains that he did not adopt the change
until shortly after the Union appeared on the scene.
Absent an explanation for such timing, it is
reasonable to infer that the change was related to
the union movement, which he admittedly opposed.
This conclusion is fortified by the uncontradicted
testimony, which I credit, that during discussion of
the Union at the February 11 meeting Decker
promised to change the starting time." Ac-
cordingly, I find that by such promised change in
starting time, Respondent interfered with,
restrained, and coerced its employees in violation
of Section 8(a)(I) of the Act.
B. The Discharge of Daugherty
1. The evidence
Duane M. Daugherty worked for Respondent as
a driver of a trash truck from April 1966 until
February 18, 1967, when Decker discharged him.
Decker testified that Daugherty was discharged
because his negligence caused both a near accident
with a customer's car and the loss of another
customer's dog for which Daugherty refused to pay.
According to Decker, the facts relating to the near
accident were as follows. In mid-February a
customer, Mrs. Swihart, telephoned Decker to
complain that one of his trucks failed to stop or
slow down at a stop sign and almost hit her car. At
Decker's request, she agreed to refrain from report-
ing the incident to the police in return for his agree-
ment to reprimand the driver. After ascertaining
that the driver was Daugherty, Decker asked him
about the incident on February 13. Daugherty ad-
mitted it, and nothing more was said about it at the
time. On February 17, at Decker's request, Mrs.
Swihart signed a statement describing the incident
and fixing its time as February 11 about 9:20 a.m.
Decker requested the statement because he had
agreed to do something about the matter if Mrs.
Swihart refrained from reporting it to the police.
Daugherty testified that he was at alleged inter-
section on the day in question; that he had stopped
" None of Respondent 's witnesses denied that such promise was made,
and Downing merely could not recall any mention of a change in hours
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the left hand side of Leroy Drive while his help-
ers made a trash pickup at a corner house on the
right hand side of that street and Larson, where a
stop sign was situated ; that he then drove to the
right side of Leroy, turned right onto Larson and
stopped to permit his two helpers to make other
pickups; and that "then a car came around" him.
According to Daugherty, on February 13, in the
presence of employees Downing and John Ocana,
Decker told him of the Swihard complaint and
asked whether he recalled the incident; he an-
swered that he did not remember it, and if it oc-
curred he was not aware of it; and Decker merely
replied "okay."
Decker's testimony regarding the matter of the
lost dog was as follows. On February 17 he received
a telephone call from another customer, Mrs.
Koretko, who complained that one of his trucks
had left her house less than a half hour earlier; that
her dog was missing; that a similar incident had oc-
curred during the preceding week, and that she had
requested the truckdriver to be sure that the house
gate was closed after the trash was removed. On
checking the customer's route card, Decker found
that it contained instructions to close the gate.
Later that day, he asked Daugherty whether the
gate had been left open. Daugherty stammered and
called one of his helpers; Decker asked about the
dog, and the helper stated that when he opened the
gate the dog ran out. Decker and others made a
search but the dog could not be located, and Mr.
Koretko then told Decker that he wanted either the
return of the dog or $125. On the same day,
Decker prepared a statement describing the
events12 and asserting a claim of $125, and ob-
tained Koretko's signature thereon because he
could not spend "money of this kind" without con-
sulting Respondent's board of directors. On
February 18 Decker told Daugherty that if he could
furnish Koretko with a dog valued at $125,
everything would be fine; but that if he could not do
so, Decker would be compelled to let Daugherty
go. He then gave Daugherty the choice of produc-
ing the dog or the money. When Daugherty refused
and inquired if there was any other reason for
letting him go, Decker replied that the near ac-
cident was also a contributing factor.
According to Daugherty, the facts were as fol-
lows. He drove the truck on February 17, at which
time Downing and Ocana were his helpers. The
route card contained instructions that the Koretko
gate should be closed. He did not check to see that
the gate was closed at or immediately after the time
the trash was removed. He was responsible for driv-
ing the truck and for removing trash situated at the
curb, his helpers were responsible for removing
trash at the residence, but since the Koretko house
was their last stop on that street he did not leave
the truck to make a curb pickup there. Ocana had
trash in both hands and could not close the Koretko
gate. Later that day, Decker drove to another place
where Daugherty and his helpers were picking up
trash, and asked Ocana whether he remembered
leaving the Koretko gate open and whether the dog
ran between his legs. Ocana denied both leaving the
gate open and knowledge about the dog's disap-
pearance. On February 18 Decker asked Daugherty
to pay for the dog. Upon the latter's refusal, Decker
said that he would have to let him go, that he could
not afford to pay "for all these accidents," and that
the dog cost $125 or $200 " Daugherty accused
Decker of firing him because of the Union rather
than because of the dog incident, but Decker de-
nied the accusation. He made no reference to the
near accident. However, Daugherty admitted that
he probably told a Board agent, as stated in his
prehearing affidavit of February 20, that Decker
had referred to the near accident, and that his
memory of the events was better on the latter date
than at the time of the hearing. After discharging
Daugherty, Decker turned to Ocana and asked him
whether he would pay for the dog. Ocana refused.
Daugherty and Ocana then sought out Sandoval,
and Daugherty informed the latter that he had been
allegedly discharged because of the missing dog."
They then joined other employees at a bar, San-
doval agreed to communicate with the Union, and
at his suggestion the men agreed to meet again on
the following Monday, February 20. When they
met at a cafe that day, Decker appeared, told them
not to return if they did not begin driving the trucks
within 10 minutes, and left. The men then went to
Respondent's premises and Sandoval requested
Decker to reconsider the discharge. When Decker
refused, Sandoval accused Decker of firing
Daugherty for union activities and not because of
the dog incident. Decker's reply was: "I did not
only that-I fired Duane [Daugherty] for his at-
titude."" Daugherty and Sandoval then conferred
briefly in another room. At Daugherty's suggestion
that the men return to work rather than jeopardize
their jobs, Sandoval returned to the other em-
ployees and, in response to their inquiry as to what
they should do, told them to return to work.
Because Decker had told him that the Koretkos had
"served papers on him," Daugherty then went to
see them and was told that Decker had taken the
papers to them for signature.
Decker testified that about 3 weeks later Respon-
dent's directors held a meeting at which they de-
'Z The statement referred to repeated prior requests that the gate be kept
close
" Daugherty could not recall which figure Decker used
Sandoval testified that Daugherty told him he was fired because Ocana
had left the gate open and the dog ran out11
According to Sandoval, Decker replied ' That's not all It's also
his attitude " Sandoval admitted that in a preheating affidavit he had stated
that Decker 's reply was "that he had not fired Daugherty only because of
the dog incident, but also because of Daugherty's attitude " His explana-
tion for the inconsistency was that the exact conversation had slipped his
mind when he signed the affidavit
DECKER DISPOSAL, INC. 887
cided to satisfy the Koretko claim. According to
Decker, minutes are taken at each board meeting,
and he was requested by the General Counsel to
produce the minutes of the above-mentioned meet-
ing. He later testified that minutes are not taken at
every meeting, that the meeting in question was a
"paper board meeting " which took place at a barn
while Kinsley was feeding his horses, that Mrs. Kin-
sley was not present but her husband sometimes
acted on her behalf, that he did not take minutes,
that he did not know whether Kinsley had taken
minutes and could not ask him because he was out
of town at the time of the hearing, but that Respon-
dent's attorney had advised that such a meeting was
proper. Finally, Decker testified that subsequent to
the meeting, he purchased another dog for the
Koretkos at a wholesale price of $115.
2. Concluding findings
The General Counsel contends that Respondent
discharged Daugherty because of his prounion ac-
tivity. Respondent insists it did not know of his
union activity until after the discharge, and that it
fired Daugherty because of his carelessness in con-
nection with the near accident and the Koretko
dog, and his hostile and arrogant attitude.
Daugherty's union activity is clearly established.
He and Sandoval circulated a petition for signature
of employees interested in unionization . He also at-
tended the January 30 employee meeting with
Union President Salter and signed an authorization
card. The small size of the plant'" affords some
basis for inferring that, after the Union requested
recognition and filed its representation petition,
Respondent was able to learn about Daugherty's
activity. In addition, at the employee meeting called
by Decker on February 11, Daugherty was one of
the principal prounion spokesmen. And according
to Downing's uncontradicted testimony, which I
credit, Daugherty identified himself at the meeting
as one of the instigators of unionization. I find that
at the time Daugherty was discharged Respondent
knew or had reason to believe that Daugherty was
one of the leading proponents of the union move-
ment among Respondent's employees.
I further find that on February 11 Daugherty was
involved in an incident which gave rise to Mrs.
Swihart's complaint, that the Koretko dog was lost
on February 17 because the house gate was left
open- by employee Ocana, and that Decker was in-
formed of these facts. Admittedly, Daugherty was
present at the time and place of the Swihart in-
cident, parked on the wrong side of the street,
drove to the right side of the street, made a right
turn, and recalled the presence of another car.
Moreover, he did not deny that the incident oc-
curred either to Decker or during his testimony. As
for the Koretko dog, although there is no direct
evidence that it was lost, the record supports the
conclusion that it was.
It thus appears that at the time it discharged
Daugherty Respondent had both knowledge of his
union activity and good cause for the discharge.
The crucial problem is the motivation for the
discharge. For if such activity was the reason or
even a reason therefor, the discharging was unlaw-
ful. In my opinion, Respondent's asserted reasons
for the discharge are unconvincing. Decker does
not appear to have been greatly concerned by the
Swihart complaint or the incident which gave rise
to the complaint. Employee Vigil testified without
contradiction that in November 1966 he was in-
volved in an accident while driving one of Respon-
dent's dump trucks; and that although he was con-
victed of a driving offense Respondent repaired the
damage to the truck, paid his fine and attorney's
fees, but did not fire him. Moreover, if Decker had
been troubled by the fear of losing a customer, it is
reasonable to expect that he would have sought to
pacify Mrs. Swihart by the prompt preparation of a
written statement. Instead, he delayed obtaining her
signature thereon from February 11 to 17; i.e., for
almost a week. Finally, and more significantly,
despite the incident and complaint, he admittedly
would have retained Daugherty if the latter had
made payment for the dog, and he admittedly
referred to the incident only after Daugherty
refused to make such payment.'
It is my further opinion that Respondent utilized
Daugherty's refusal to pay for the dog as an excuse
for ridding itself of Daugherty. For even assuming,
arguendo, that it was reasonable for Decker to hold
him responsible for Ocana's admitted negligence,
he failed to explain why he held Daugherty solely
responsible. Like the latter, Ocana refused to pay
for the dog; but unlike the latter, he was not
discharged. Absent an explanation for this disparate
treatment, the dog incident becomes a very weak
and implausible explanation for the discharge.
Finally, Respondent's reference to Daugherty's
arrogant and hostile attitude is equally unpersua-
sive. It is not clear in what manner the arrogance
and hostility manifested itself. In any event, it ap-
pears that these traits did not become intolerable to
Respondent until Daugherty became active in
promoting unionization of the employees and the
Union sought recognition.
I find that the discharge of Daugherty was
motivated by antiunion considerations and thus vio-
lated Section 8(a)(3) and (1) of the Act.'g
C. The Layoffs of Sandoval and Vigil
Andy Sandoval and Richard Vigil were employed
by Respondent in February and August 1966,
'" The parties stipulated that Respondent had a total of 20 employees in
the unit as of February I
", I do not credit Daugherty 's testimony that Decker made no reference
to the near accident at the time of discharge
" It is unnecessary to resolve the conflict as to what Decker said when
asked by Sandoval to reconsider the discharge For even if the conflict
were resolved favorably to Respondent, I would reach the same conclusion
about the discharge
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respectively. Their chief duties consisted of driving
trucks which hauled ash from two ponds owned by
Public Service, Respondent's principal customer.
Sandoval was admittedly Respondent's best driver.
Decker testified that Sandoval and Vigil were
laid off on Friday, March 17, because the ash in the
pond being emptied had become too wet to haul
and it was necessary to permit the pond to dry over
the weekend. Sandoval testified that on Thursday
Foreman Ballou told them that Decker was laying
them off March 17 and 18, and that leased trucks
would take care of the hauling. According to San-
doval, the ash was wet at the time of the layoff, but
wet ash had been hauled before, and he observed
trucks leased from Jim Chelf Company working at
Public Service on Friday or Saturday. Vigil testified
that Ballou told them they would be laid off until
Monday Because the ponds were too wet for haul-
ing.
andoval and Vigil worked Monday through
Friday, March 20 through 24, on which day Vigil
asked and received permission to be absent on
Saturday, March 25. Sandoval testified that he did
not work on the 25th because on the 24th Don
Hamilton, a relative of Decker, had informed him
that Decker had said that there would be no work
for Sandoval on the 25th " since Richard Vigil
wasn 't going to be there anyhow." Decker testified
that ash was not hauled on the 25th because of its
sloppy condition.
Sandoval and Vigil worked on March 27 and 28
but at the end of that day Decker again laid them
off, stating that work on the next pond would not
begin for about 2 weeks, that he could not afford to
find work for them during the interim, and that he
would communicate with them. Sandoval testified
that ash is ordinarily available for hauling 5 or 6
days a week; that occasionally hauling was discon-
tinued because of the occurrence of a holiday, a
breakdown, or an undue wetness; but that Respon-
dent had always "managed" to have other work for
him on those occasions, such as driving a trash
truck or work at the shop. Decker testified that ash
was hauled 5 or 6 days a week; that hauling was in-
termittent in the sense that if the ash became "slop-
py wet" hauling was discontinued for a day or two
to permit it to dry; and that in the past he had
"made" other work for Sandoval when there was no
work for him at the pond. He further testified that
Respondent's new contract with Public Service, ef-
fective January 1, 1967, provided for a 35-percent
reduction in the price paid to Respondent for emp-
tying each pond.
Sandoval further testified that he and Vigil have
never been called back to work; but that "since
March 28th" he has observed individuals who were
not employees of Respondent prior to the layoffs
driving Respondent 's dump trucks on the road
between Public Service and the dump to which the
ash is hauled . Employee Downing testified that
"after Mr . Decker laid Duane [Daugherty],
Richard [Vigil ] and Andy Sandoval off," he "saw
the dump trucks coming from the Public Service.
They were hauling ash again."
Decker testified that " after Sandoval and Vigil
were laid off the last time on the 28th of March,"
he used trucks leased from Jim Chelf Company as
well as his own to haul ash from the ponds. On
cross-examination he testified that sometime after
the layoffs he was ready to resume hauling of ash;1}
that Sandoval had moved ; that although he had San-
doval 's prior address and telephone number, he
"had just a telephone number ' and "didn't know
where [Sandoval ] lived" after the move ; that Vigil,
who similarly had moved , had failed to give Decker
his new address as promised but had given him the
telephone number of a relative ; that he called each
of the two numbers twice but could not reach the
two men ; that he asked other employees how to
reach them and was told that they were then at the
dump ; and that he immediately drove there, just
missed them , but was informed that the two were
working for DeGeorge Transfer Co. On further
cross-examination Decker testified that he did not
have a current address for Sandoval "in [his] head"
or "at the shop ," that he did not know whether
such address was in his office files, that it might
possibly have been there , but that he never
checked . 20 The record contains a bill for trash haul-
ing service by Respondent addressed to Sandoval at
2851 West 65th Avenue , Westminister , Colorado,
bearing the date "2-17-67" and showing the
months of February and March circled in ink.
Sandoval testified that he has lived at that address
since February 4 and that he received the bill in the
mail.
Decker further testified that he telephoned Ace
Transfer Company , the new name of DeGeorge
Transfer, asked to speak to Sandoval or Vigil, was
told that they were out at the time by an individual
who identified himself as Mr. DeGeorge, explained
to the latter that he wanted to ascertain whether
the two men were ready to return to work, and
inquired whether they had permanent jobs . Accord-
ing to Decker , DeGeorge replied: "To the best of
my knowledge , they are on here permanently," and
Decker accordingly made no further effort to recall
the two men . Sandoval testified that one Jimmie
DeGeorge2t told him that he would use him when-
ever and wherever he could; that he in fact worked
'" At one point , Decker testified that he was not certain whether the next
pond was ready the "first part " of April or "about the middle" of that
month , but that there was "between a two and three-week lapse " between
the layoffs and the time the next pond was ready for ash removal At
another point he testified that the lapse of time was "pretty close to three
weeks."
10 Decker explained his earlier testimony by stating that the General
Counsel had not expressly asked whether he had Sandoval 's new address
"in the files."
i1 The record does not disclose whether he was the same person with
whom Decker had the telephone conversation
DECKER DISPOSAL, INC. 889
only 2 or 3 days a week, whenever DeGeorge was
able to use him, for a total of about 10 to 12 days in
April; and that he left Ace Transfer because he felt
that he would not be recalled by Respondent and
had to do something to support his family. Vigil
testified that Jimmie DeGeorge told him on April 3
that he would use his services that day, and sug-
gested that he return the following day to see
whether his services were needed; and that this was
the procedure followed throughout his employment
by Ace.
2. Concluding findings
The General Counsel argues that the layoffs of
Sandoval and Vigil on March 17 and 18, the layoff
of Sandoval on March 25, the layoff of the two men
at the end of the day on March 28, and the failure
to recall them when work on the next pond was
resumed were all discriminatorily motivated.
Respondent contends that there is no evidence that
Vigil engaged in any union activity or that it had
knowledge of any union activity on the part of San-
doval; that both were laid off on the above dates
solely for economic reasons; and that efforts to re-
call them when work became available were not
pursued because it was learned that they had per-
manent employment elsewhere.
I find that a preponderance of the credible
evidence fails to establish that either the layoff of
the two men on March 17 and 18 or the layoff of
Sandoval on March 25 was for a prohibited reason.
Vigil did not corroborate Sandoval's testimony that
they were told by Ballou on March 16 that leased
trucks would do the hauling during the ensuing 2
days. On the contrary, he testified that they were
told by Ballou that they were being laid off because
the ash was too wet to haul, thereby corroborating
Decker. As for Sandoval's testimony that he saw
leased trucks working at Public Service on March
17 and 18, I find that testimony too vague to
establish that Respondent in fact hauled ash from a
Public Service pond on either of those days. I also
find that Sandoval's hearsay testimony as to what
Decker told Hamilton, who is not shown to have
been a supervisor, has less probative weight than
Decker's uncontradicted testimony that ash was not
hauled on March 25.
I further find that the record fails to establish that
a discriminatory motive was the reason for the tem-
porary layoff on March 28 and the failure to assign
duties other than hauling ash to Sandoval and Vigil.
The evidence is insufficient to establish that
Respondent continued to haul ash and utilized new
employees for that purpose during the ensuing 2 or
3 weeks. All that the record shows is that new em-
ployees were observed hauling ash at some un-
specified time subsequent to March 28. Similarly,
there is insufficient evidence that an unlawful mo-
tive lay behind Respondent's failure to assign other
work to the two men when ash was not available for
hauling, as had been done in the case of Sandoval
in the past. In view of the reduction in the unit
price provided in the contract signed by Public Ser-
vice on January 1, it was not unreasonable for
Respondent to attempt to minimize expenses by
laying off the two men until the next pond was
ready for ash hauling.
The remaining question is whether or not
Respondent failed to make a bona fide effort to re-
call Sandoval and Vigil when work was again
available some time between approximately April
1 1 and 18; and if so whether such failure was for a
prohibited reason. I find that Respondent's efforts
to recall the two men were not bona fide. In testify-
ing regarding his efforts to locate them, Decker
gave the impression of overeagerness to demon-
strate how diligent he had been. Moreover, he was
less than candid in his testimony as to whether San-
doval's new address was available to him and, in-
deed, the record shows that the address was availa-
ble. Finally, Decker's cessation of any effort to re-
call the men after his conversation with DeGeorge
constitutes strong evidence that he did not desire
their return. DeGeorge's admitted response, when
Decker inquired whether the two men had per-
manent jobs, was equivocal. Sandoval was Respon-
dent's best driver and, if Decker had genuinely
desired his return, it is very doubtful that that
response would have satisfied him that Sandoval
was unavailable. Even if the response had been
unequivocal, Decker did not know whether
DeGeorge was misrepresenting the facts in order to
avoid losing newly acquired employees. He also did
not know whether the two men's jobs at Ace
Transfer were satisfactory to them. Decker could
obtain the answers to these questions only from
Sandoval and Vigil. His failure to seek such answers
directly from them clearly indicates that he seized
upon DeGeorge's statement as an excuse for
discontinuing his recall efforts, and I so find.
I further find that Respondent's failure to recall
the two men was motivated by antiunion considera-
tions. Like Daugherty, Sandoval helped circulate
the petition for signatures of employees interested
in unionization, signed an authorization card at the
January 30 employee meeting with the Union, and
complained to Decker at the February 11 meeting
about Foreman Ballou's treatment of the em-
ployees. In addition, it was to Sandoval that
Daugherty reported his discharge, and it was, San-
doval who took the lead in complaining of the Tat-
ter's discharge to the Union and who acted on be-
half of the employees in requesting Decker to
reconsider the discharge and in accusing him of fir-
ing Daugherty for union activity. It is thus clear,
and I find, that Sandoval took a leading role in the
union movement, that he was regarded by the em-
ployees as their spokesman, and that Decker was
aware of this. Absent a satisfactory explanation for
Decker's failure to make a bona fide effort to recall
Sandoval, I am constrained to find that he
890 DECISIONS OF NATIONAL
deliberately sought to avoid the latter's return
because of his union activity.
As for Vigil, it is true that, unlike Sandoval, he
engaged in no significant union activity. It does not
follow, however, that Respondent's failure to recall
him was lawful. Decker had work for both Sandoval
and Vigil when he telephoned Ace Transfer. Had
he recalled only Vigil, he would have been hard put
to explain his failure to recall Sandoval. It is thus
reasonable to conclude, and I find, that Respondent
deliberately avoided recalling Vigil in order to
avoid recalling Sandoval and thereby to frustrate
the latter 's union activities. Such conduct was un-
lawful. Lamar Creamery Company, 148 NLRB 323;
Arnoldware, Inc., 129 NLRB 228
I find that the failure to recall Sandoval and
Vigil, when work which they had formerly per-
formed for Respondent became available after their
March 28 layoffs, violated Section 8(a)(3) and (1 )
of the Act.
D. The Refusal To Bargain
1. The composition of the unit
The complaint, which referred to Decker
Disposal and Industrial Disposal jointly as "the
Respondent ," alleged that the following employees
constitute an appropriate unit for purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act:
All employees employed by Respondent at
its Denver , Colorado, operation, but excluding
all office clerical employees , salesmen , guards,
watchmen , professional employees and super-
visors as defined in the Act.
In their answer , Decker Disposal and Industrial
Disposal admitted "that all employees employed by
each of them at their Denver, Colorado, opera-
tions," except for the employees excluded in the
above -quoted allegation of the complaint, con-
stituted "an appropriate unit" under the Act.
It is not clear whether the answer purports to
admit the appropriateness of the single unit alleged
in the complaint , or admits only that the employees
of Decker Disposal and those of Industrial Disposal
constitute appropriate but separate units. The use
of the singular term "unit" in the answer points in
one direction ; the denial in the answer that the two
corporations constitute a single employer points in
the other. I find that the employees of the two cor-
porations , already found to constitute a single em-
ployer , constitute a single appropriate unit.
2. The Union's majority
The parties stipulated that as of February 1
Decker Disposal had 14 employees and Industrial
Disposal had 6 employees. The record establishes
that, on January 30, 9 of the 14 employees and 5 of
the 6 employees signed cards authorizing the Union
LABOR RELATIONS BOARD
to represent them for purposes of collective bar-
gaining. Thus, 14 of Respondent's 20 employees
signed cards. The cards in question read as follows:
Authorization for
Representation Under
the National Labor
Relations Act
I, the undersigned, employee of
hereby authorize Teamsters Local Union No.
13 to represent me in negotiations for better
wages and working conditions.
My name
My address
My signature
The evidence relating to signing of the cards is as
follows. Salter , president of the Union , testified that
the 14 cards were signed in his presence and given
to him by the signers. He further testified that at
the meeting at which the cards were signed he
talked to a number of the signers , that he told them
"that the cards were for the purpose of requesting
recognition through the NLRB," that he told em-
ployee Aragon "that the purpose of signing the
card was to present it to the National Labor Rela-
tions Board so that we could request an election of
this company for representation ," that he made
similar statements to employees Daugherty and
Dole, that he told employee Ocana, Jr., that the
Union was "going to request an election with the
NLRB," and that he told employee Downing and
Grosch the " primary purpose " of signing was to
"request an NLRB election ." Downing testified
that Salter did not speak to him personally at the
time he signed a card but addressed the employees
as a group and "said that the cards were for the
authorization for the National Labor Relations
Board or something like that."
Respondent contends that the record fails to
establish that the Union represented a majority of
the employees because some of them signed the
cards in order to obtain an election and because, in
any event, the signing employees were not available
for cross -examination and hence their cards con-
stitute inadmissable hearsay.
Considering the latter contention first, I find that
it is without merit . Don the Beachcomber, 163
NLRB 275, fn. 2, in which an identical argument
was rejected. As for Respondent's first contention, I
find that it is similarly without merit. An em-
ployee 's execution of a clear and unambiguous
card , such as the one here involved, constitutes an
effective designation of the union as his bargaining
agent, unless the employer makes a clear showing
(1) that a false representation concerning the pur-
DECKER DISPOSAL, INC. 891
pose of the card was made to the employee, and
(2) either that the employee would not have signed
the card but for such representation , or that the
representation operated coercively by putting him
in fear of reprisal if he refused to sign . I.T.T. Semi-
Conductors , Inc., 165 NLRB 716. No such showing
has been made by Respondent . None of the state-
ments made to the employees was coercive. The
mere mention of an election to Ocana , Sr., was in-
sufficient to vitiate his designation of the Union as
the bargaining representative . Amalgamated
Clothing Workers of America [Sagamore Shirt Co.]
v. N.L.R . B., 365 F.2d 898 (C.A.D.C.); N.L.R.B. v.
Cumberland Shoe Corp ., 351 F.2d 917 (C.A. 6).
The statements to Aragon , Daugherty , and Dole
and "the urpose " of the cards was to obtain an
election did not constitute a representation that
that was their "only" purpose , and thus did not
constitute a misrepresentation sufficient to nullify
the clear statement of the purpose and effect of the
cards as shown on their face . American Cable
Systems , Inc., 161 NLRB 332. A fortiori , the state-
ment to Grosch-that an election was the "prima-
ry" purpose of the card-did not taint his card. For
the same reasons Downing's card is not invalidated
irrespective of whether his or Salter 's testimony as
to what was said is accepted . In any event , even if
the statements made to each of the said employees
were regarded as false representations , there is
nothing to show that any of these employees would
not have signed but for the fact that such state-
ments were made to them.22
Accordingly , I find that as of February 1, of
Respondent 's 20 employees in the above -stated ap-
ppropriate unit , 14 had designated the Union as its
bargaining representative and hence that the Union
represented a majority of such employees.
3. The bargaining requests and refusals
a. The evidence
On February 1 the Union informed Respondent
by letter that it represented a majority of Respon-
dent's employees in the above-described unit and
could prove such majority, and requested that
Respondent meet for the purpose of negotiating a
contract at a specified hour and place on February
6. By letter dated February 3, counsel for Respon-
dent advised the Union that Respondent's opera-
tions " may not meet the Board 's jurisdictional stan-
dard," and that he hoped to complete his investiga-
tion of the jurisdictional facts "within the next few
days." The letter concluded with the following:
While we are developing the jurisdictional
information, we will be glad to confer with you
on request.
No meeting was ever held. Salter testified that after
receiving Respondent's letter he made no further
request for a meeting with Respondent, and
testified in the affirmative when asked whether "he
refrained from pressing the recognition matter
because he was awaiting the results of the election
which had been asked for" in the Union's petition
filed February 1, the same day that the request for
recognition was sent.
b. Concluding findings
The General Counsel contends that Respondent
,lid not satisfy its duty to bargain in good faith with
,he Union both by failing to comply with the
Union's request for bargaining, and by unilaterally
changing the starting hour of the employees.
Respondent contends that it had no duty to bargain
for two principal reasons: (1) since the Union failed
to pursue its request for bargaining after Respon-
dent offered to meet on request, and since the
Union was admittedly awaiting the outcome of the
election which it had requested, there was no
adequate request for bargaining; and (2) Respon-
dent entertained a good-faith doubt regarding the
Union's majority. I agree with the General Counsel.
(1) Where a union's bargaining request is not in-
tended as a genuine request but is made only in
order to perfect its representation petition,23 and
that fact is communicated to the employer, the
request does not impose on the employer a duty to
bargain. Flomatic Corporation, 147 NLRB 1304. On
the other hand, the Board has held that even where
the primary purpose of the bargaining request is to
perfect a representation petition, the demand is suf-
ficient if such purpose has not been communicated
to the employer. Rural Electric Co., 130 NLRB 799.
In the instant case , the evidence does not establish
that that was the Union's sole purpose. The most
that could be said is that it was the primary pur-
pose. And since that purpose was not commu-
nicated to Respondent, I find no basis for conclud-
ing that the request was insufficient. It is true that
the Tenth Circuit refused to enforce the Board's
finding of an unlawful refusal to bargain in the
Rural Electric case (296 F.2d 523) because it was
of the view that there had been neither a fairly
clear request to bargain nor a fairly clear refusal.
However, although there are some similarities
between the facts in that case and those here
presented, there are also enough dissimilarities to
distinguish the situations. Here, unlike Rural Elec-
tric, the Union's demand was in writing, it con-
tained a specific time and place for a meeting, and
22 In the light of Bernard S. Happach v. N L.R.B , 353 F 2d 629 (C A 7),
the decision in N.L.R B. v. Koehler 's Wholesale Restaurant Supply, 328
F.2d 770 (C.A. 7), cited by Respondent , must be interpreted as supporting
Board precedent rather than Respondent 's position And to the extent that
the decision of the Second Circuit in N.L.R B v S E Nichols Co, 380
F.2d 438, also cited by Respondent , is inconsistent with Board precedent, I
must, with due deference to the court , follow such precedent
2' Paragraph 7(a) of the petition requires a petitioning union, among
other things , to set forth the date on which it made its request for recogni-
tion as bargaining representative See Section 102 61(a)(7) of the Board's
Rules and Regulations
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the response was not blurted out by an employer in-
experienced in dealing with questions relating to
union representation but was given in writing by
able counsel. In any event, even if the cases were
indistinguishable , I would be bound by the Board's
view.
I further find that the Union's demand was a con-
tinuing one; that Respondent could not impose
upon the Union the obligation to renew the demand
by the simple expedient of advising that pending its
investigation of the jurisdictional facts, it would
confer with the Union, upon request; and, there-
fore, that the Union was under no duty to repeat its
demand. Pepsi-Cola Bottling Co. v. N.L.R.B., 312
F.2d 529 (C.A. 3). In fact, in view of my finding
below that Respondent engaged in dilatory tactics
to avoid or delay bargaining, it would have been fu-
tile, and thus unnecessary, for the Union to renew
its bargaining demand. Sewanee Coal Operators As-
sociation, 167 NLRB 172.
(2) If Respondent had a good-faith doubt as to
the Union's majority, as asserted, it was under no
obligation to recognize and bargain with the Union.
If it had no such doubt, its failure to meet and
negotiate with the Union, and the unilateral change
in the employee starting hour made to induce rejec-
tion of the Union were unlawful. N.L.R.B. v. Benne
Katz, d/bla Williamsburg Steel Products, 369 U.S.
736; Joy Silk Mills v. N.L.R.B., 185 F.2d 632
(C.A.D.C.), cert. denied 341 U.S. 914. The burden
of establishing the absence of such a doubt is upon
the General Counsel. Aaron Brothers Company of
California, 158 NLRB 1077. 1 find that the General
Counsel has sustained his burden.
Respondent's letter of February 3 expressed
doubt only as to whether its operations satisfied the
Board's jurisdictional standards.24 There is not a
shred of evidence showing that Respondent, at any
time prior to its brief, ever expressed doubt con-
cerning the Union's majority. The asserted doubt
thus appears to be an afterthought. In addition,
although its letter of February 3 expressed the hope
that its jurisdictional investigation would be
completed within a few days, Respondent sub-
sequently failed to communicate with the Union re-
garding its jurisdictional conclusions. Indeed, coun-
sel for Respondent stated at the hearing that only a
cursory investigation concerning jurisdiction was
made because Respondent was willing to proceed
to an election without raising a jurisdictional issue.
These circumstances strongly indicate that Respon-
dent's response to the request for bargaining was
nothing more than a dilatory tactic designed to
avoid or delay bargaining. Finally, Respondent's
subsequent unlawful conduct-the change in em-
ployee starting hours to induce rejection of the
Union and the discharge of Daugherty because of
"An employer 's refusal to bargain because of a doubt, even though
bona fide, that the Board would assert jurisdiction over his operations does
not constitute a valid defense where, as here , his operations satisfy the
Board's jurisdictional standards Sands Motor Hotel, 162 NLRB 863
his union activity-constitutes additional evidence
that Respondent rejected the principle of collective
bargaining and sought to gain time to dissipate the
Union's majority. Such evidence reinforces the con-
clusion that it did not have a bona fide doubt re-
garding the Union's majority status.
In sum, I find that Respondent violated Section
8(a)(5) and (1) by failing to meet and negotiate
with the Union following its February 1 request for
recognition and bargaining, and by unilaterally in-
stituting a change in the employee starting hour on
February 13.
III. THE OBJECTIONS TO THE ELECTION
The objections in Case 27-RC-3170 relate to
Respondent's unlawful interrogation of, and threats
and promises of loss or gain of benefit to, em-
ployees, the discharge of Daugherty, and the layoffs
of Sandoval and Vigil.
I have already found that Daugherty was unlaw-
fully discharged on February 18; that Respondent
unlawfully failed to recall Sandoval and Vigil some-
time between April 11 and 18; that Respondent
made no threats and did not promise either wage
increases or paid vacations; that it promised to
change the employees' starting hours; and that it
thereafter unlawfully instituted such change. I find
no evidence of any other promise of gain or loss of
benefits or of any interrogation.
The failure to recall Sandoval and Vigil occurred
after the ballots were mailed and counted on March
31 and April 10, respectively. I accordingly find
that such failure to recall did not interfere with a
free choice in the election. On the other hand, I
find that Respondent's conduct in connection with
the change in employee starting hour and the
discharge of Daugherty did tend to interfere with
such free choice. Accordingly, I find merit in the
Union's objections relating to such conduct.
IV. THE REMEDY
I shall recommend that Respondent cease and
desist from its unfair labor practices , and that it
take certain affirmative action, specified below,
which I find necessary to remedy and to remove the
effects of the unfair labor practices.
I shall recommend that Respondent offer Duane
M. Daugherty , Andy Sandoval, and Richard Vigil
immediate and full reinstatement to the positions
which they held at the time of the discrimination
against them or to a substantially equivalent posi-
tion, without prejudice to their seniority and other
rights and privileges 25 I shall further recommend
that Respondent make each of them whole for any
loss of earnings suffered because of its discrimina-
11 Employee Downing testified without contradiction that at the time
Daugherty was hired Respondent knew that he had a criminal record and
was on probation
DECKER DISPOSAL, INC. 893
tion against him by paying to each a sum of money
equal to that which he would have been paid by
Respondent from the date of the discrimination
against him as to the date on which Respondent of-
fers reinstatement as aforesaid , less his net
earnings, if any, during the said period. The loss of
earnings under the order recommended shall be
computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Since I have found that certain objections to the
election are meritorious, I shall recommend that
the election be set aside. Having also found that the
Union had a majority in an appropriate unit on the
date of its request to bargain, and that Respondent
unlawfully refused to bargain and engaged in con-
duct designed to avoid or delay bargaining and to
undermine and destroy the majority, I find it neces-
sary, in order adequately to remedy the unfair labor
practices found and to effectuate the policies of the
Act, to recommend that, upon request, Respondent
bargain collectively with the Union. For that
reason, I shall further recommend that the petition
in Case 27-RC-3170 be dismissed and that all
proceedings held in connection therewith be
vacated and set aside.
CONCLUSIONS OF LAW
1. Decker Disposal , Inc., and Industrial Disposal,
Inc. (heretofore and hereafter referred to as the
Respondent ), are employers , and constitute a single
employer, within the meaning of Section 2(2) of
the Act, and are engaged in operations affecting
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. By instituting a promised change in the start-
ing hour of its employees on February 13, 1967, to
induce them to reject unionization, Respondent en-
gaged in an unfair labor practice within the mean-
ing of Section 8(a)(1) of the Act.
3. By discharging Duane M. Daugherty on
February 18, 1967, and by failing and refusing to
recall Andy Sandoval when work became available
after March 28, 1967, because of their union activi-
ty, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By failing and refusing to recall Richard Vigil,
when work became available after March 28, 1967,
in order to avoid recalling Sandoval and thereby to
frustrate the latter's union activities, Respondent
engaged in an unfair labor practice within the
meaning of Section 8(a)(3) and (1) of the Act.
5. All employees employed by Respondent at its
Denver, Colorado, operation, excluding all office
clerical employees, salesmen, guards, watchmen,
professional employees, and supervisors as defined
in the Act, constitute a single unit appropriate for
the purpose of collective bargaining within the
meaning of Sections 8(a)(5) and 9 of the Act.
6. On February 1, 1967, and at all material times
thereafter, the Union represented a majority, and
has been the exclusive bargaining representative, of
all the employees in the aforesaid appropriate unit
for purposes of collective bargaining within the
meaning of Sections 8(a)(5) and 9 of the Act.
7. By refusing, on request, to recognize or bar-
gain with the Union as such bargaining representa-
tive on and after February 3, and by unilaterally
changing the starting hour of its employees on
February 13, 1967, Respondent engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
9. The allegations of the complaint that Respon-
dent engaged in unfair labor practices by Decker's
alleged threat that Respondent would go broke if
the Union were chosen as the employees' represen-
tative, and by Decker's alleged promises of a wage
increase and paid vacations have not been
sustained.
10. By unlawfully instituting a promised change
in the employees' starting hour on February 13,
1967, and by unlawfully discharging Daugherty on
February 18, 1967, Respondent engaged in conduct
which improperly affected the results of the elec-
tion.
[Recommended Order omitted from publica-
tion. I
'"In the case of Sandoval and Vigil, the date of the discrimination against
each is the date on which he would have been recalled by Respondent ab-
sent the discrimination against him