Kephart Trucking

National Labor Relations Board - Administrative Judge Opinions

Jul 18, 2011

22-CA-029531 (N.L.R.B. Jul. 18, 2011)

JD(NY)–23–11
Kearney, NJ
Delaware, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KEPHART TRUCKING COMPANY, INC.
and Case Nos. 22-CA-29531
22-CA-29733
TEAMSTERS LOCAL NO. 125, IBT
Benjamin Green, Esq., Newark, New Jersey,
for the Acting General Counsel
Mark S. Ruderman, Esq., Ruderman & Glickman P.C.,
Springfield, New Jersey, for the Respondent
Michael McLaughlin, Esq., Cohen, Leder, Montalbano &
Grossman, Kenilworth, New Jersey, for the Charging
Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon charges filed on July 13,
2010 and December 7, 2010, a First Amended Consolidated Complaint and Notice of Hearing
(the “complaint”) issued on February 8, 2011 alleging that Kephart Trucking Company, Inc.
(“Employer” or “Respondent”) violated Sections 8(a)(1) and (3) of the Act by discharging
Kathleen Falzarano in retaliation for her support for and activities on behalf of Teamsters Local
No. 125, IBT (the “Union”). The complaint further alleges that Respondent violated Section
8(a)(1) of the Act by soliciting employee grievances, promising employees higher wages and
improved terms and conditions of employment if they abandoned their support for the Union,
informing employees that uniforms could not be provided because of the Union, and
interrogating employees regarding their union sympathies. Respondent filed an answer denying
the material allegations of the complaint. This case was tried before me on February 23 and 24,
2011, and on March 21, 2011, in Newark, New Jersey.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel (the “General Counsel”) and
Respondent, I make the following
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Findings of Fact
I. Jurisdiction
Respondent is a Pennsylvania corporation engaged in the interstate transportation and
freight management of solid waste. Respondent operates four facilities in New York, New
Jersey, and Pennsylvania. Its overall operations are coordinated through its facility and offices
in Bigler, Pennsylvania, and the other facilities at issue in this case are located at 23 Second
Street, Kearney, New Jersey, and at 56 Route 46, Delaware, New Jersey. Annually,
Respondent in the course and conduct of its business operations purchased and received at its
Delaware, New Jersey facility goods and materials valued in excess of $50,000 directly from
suppliers located outside the State of New Jersey. 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.
Respondent admits and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Timothy and David Kephart are Respondent’s co-owners. Timothy Kephart is
responsible for the operational aspects of the business, customer service, sales and marketing,
and safety and compliance issues. David is responsible for overseeing maintenance and
hardware of the company’s vehicles and equipment, and driver recruitment. The parties
stipulated, and I find, that Timothy and David Kephart are supervisors of Respondent within the
meaning of Section 2(11) of the Act. David Keith is the company’s operations manager. Pat
Kane works in safety and compliance as a log analyst, reviewing drivers’ logs on a daily basis,
performing field inspections on drivers and equipment, and monitoring compliance with
Department of Transportation (“DOT”) regulations as they pertain to the drivers’ work. Keith and
Kane work at the Bigler facility.
Thomas Nicole is the terminal manager at Respondent’s Delaware, New Jersey facility,
and is responsible for the facility’s overall day-to-day operations. The parties stipulated, and I
find, that Thomas Nicole is a supervisor within the meaning of Section 2(11) of the Act. Nicole’s
assistant is Nicole Morrissey, who, according to Nicole, performs dispatching functions with him,
and could be considered a “driver manager” at the Delaware facility. John Evans is the terminal
manager at the Kearney facility, and Zane Barenzeco was the driver manager there until some
time in May 2010.
Approximately fifty drivers work out of the Kearney facility. Thirty drivers work out of the
Delaware facility, and sixty work out of the facility in Bigler. The drivers’ terms and conditions of
employment, and company policies affecting their work, are established from the Bigler facility.
Hiring, firing, and disciplinary determinations are made at the Bigler facility as well.
B. The organizing campaign at the Kearney facility, and the employer’s response
In the spring of 2010, the Union filed a petition in Case No. 22-RC-13102 for a
representation election in a bargaining unit of drivers working out of the Kearney facility. A
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hearing took place on May 5, 2010,1 and on June 2 the Region Director, Region 22, issued a
Decision and Direction of Election.2 An election was conducted on July 1, and the Union
prevailed.
Respondent retained the Labor Relations Institute a few weeks after the Union filed its
petition in order to provide advice and assistance in convincing the employees at the Kearney
facility to vote against Union representation. Consultants David Acosta and Eric Funston of the
Institute met with employees at the Kearney facility on several occasions in May or June. The
parties stipulated, and I find, that Acosta and Funston were agents of Respondent within the
meaning of Section 2(13) of the Act. Timothy Kephart testified that these meetings were
conducted in part in order to obtain information from the employees regarding their issues and
concerns.
Brian Cole, Esau Valencia, and Robert Massaline, all drivers currently working out of the
Kearney facility, testified regarding meetings they attended with Acosta or Funston and several
other drivers, which occurred in a trailer at the Kearney facility prior to the election.3 Cole and
Valencia testified that the consultant at these meetings showed the employees a video critical of
unions. Cole testified that the consultant then asked the employees for a list of their complaints,
and the employees mentioned pay, hours of work, equipment, and the number of loads the
company expected the drivers to haul. Cole himself complained that the company had verbally
reprimanded him when he declined to come in to work because he was approaching the limit on
his total weekly work hours established by DOT regulations. The consultant told the employees
that they had legitimate complaints which he would discuss with the Kepharts. The consultant
then stated that usually when he related employee concerns to management, some manager
might be discharged. He proceeded to ask Cole whether Cole had experienced any problems
with Zane Barenzeco and another employee.4 However, the consultant’s comments in this
regard were speculative, and not a definite promise.
Valencia testified that he attended a meeting with a labor consultant and three other
employees. After the video, the consultant asked the employees whether they had complaints
about the company, and Valencia stated that the employees needed uniforms, that there were
ongoing safety concerns with broken equipment which was not promptly repaired, and that the
wages and benefits were inadequate. According to Valencia, the consultant stated that the
uniforms were on their way, but were on hold because the Union was involved.5 The consultant
also stated that, based on a conversation with Timothy Kephart, the employees would receive a
“bump up” in pay if they did not vote for the Union.

1 All subsequent dates are in 2010 unless otherwise indicated.
2 Respondent contended at the representation proceeding that the appropriate bargaining
unit consisted of all drivers employed out of its Kearney, Delaware, Bigler, and Queens, New
York facilities, but the Regional Director found the evidence insufficient to overcome the
presumption that a single location unit was appropriate.
3 Neither Acosta nor Funston testified at the hearing.
4 Barenzeco was discharged by the company in May, ostensibly after this meeting took
place.
5 Valencia noted that at the time of this meeting he had seen the Delaware drivers wearing
company uniforms when he encountered them at the Tullytown landfill.
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Massaline testified that he attended a meeting with a labor consultant and about five
other employees. Massaline stated that the consultant told the employees that the Kepharts
were aware that there were problems with the wages and medical benefits. The consultant
asked the employees to give the Kepharts a chance, and if they did not fix these problems the
employees could vote in another union election after a year.
Cole, Valencia, and Massaline also testified regarding meetings held by the consultants
with the Kepharts present during the days before the election. These meetings also involved
small groups of employees. Cole testified that the meeting began with the consultant’s stating
that the Kepharts wanted to express their concerns and opinions, and asking the employees
whether they had any questions. Cole asked whether the company would change its current
policy of employment-at-will if the Union lost the election, and the consultant responded that the
Kepharts could not answer that question. Timothy Kephart then stated that he had not been
aware of the employees’ concerns, and that if the employees did not vote for the union they
would probably see some changes. Kephart also said several times that if the employees didn’t
vote for the union it would give him the opportunity to make changes. During the meeting,
another driver asked about uniforms, and David Kephart stated that the facility had received the
uniforms, but could not distribute them to the employees because of the Union. David also said
that the company could not promise the employees additional compensation because of the
Union.
Valencia testified that the meeting he attended with the Kepharts began with the
consultant’s stating that he had informed the Keparts of the employees’ complaints. Timothy
Kephart then told the employees that the uniforms were on this way but were “held up” because
of the Union’s involvement. Timothy also stated that if the employees didn’t vote for the Union,
they would receive higher pay. Massaline testified that at the meeting he attended David
Kephart echoed the labor consultant’s comments regarding the wages and medical benefits,
and stated that if the union won the election, “everything is off the table.”
Timothy Kephart testified at the hearing, but was not questioned regarding the meetings
with employees prior to the election. David Kephart testified that employees stated at the
meetings that they wanted new uniforms, and that either he or Timothy told the employees that
the company had suspended the process of obtaining new uniforms during the Union’s
organizing campaign to avoid potential allegations of interfering with the election process.
David testified that during the meetings, the Kepharts sought to determine the employees’
concerns and issues, even though they could not be addressed directly at the time.
C. The work of respondents’ drivers and applicable DOT regulations
The drivers at Respondents’ Kearney and Delaware facilities haul trash from transfer
stations in Mount Olive and Parsippany, New Jersey, to a landfill in Tullytown, Pennsylvania, all
of which are operated by Waste Management. Although Tullytown is equidistant from the
Mount Olive and Parsippany transfer stations, the drive from the Mount Olive station is longer
because the route involves local roads with streetlights and slower traffic. The Parsippany
station opens earlier than the Mount Olive station, so drivers typically obtain their first load of the
day at Parsippany if they did not pick up a load the day before (referred to as “pre-load” or “half
load”).
When a driver arrives at the Tullytown landfill, they stop first at a scale that weighs the
waste their truck is carrying, and receive from the landfill personnel a landfill ticket or delivery
manifest recording their arrival time and the tonnage their truck contains. From the scale, the
driver proceeds to the “tipper,” where the driver removes the tarp from the top of their trailer.
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The trailer is detached from the truck and placed on the tipper, which dumps the waste
contained in the trailer. The trailer is then cleaned and reattached to the truck. The drivers then
return to the scale, where their time of departure is recorded on the landfill ticket. Respondent
is paid by Waste Management based upon the weight of the loads reflected on the landfill
tickets issued to the drivers. Timothy Kephart testified that payment is not affected by the time a
driver enters or leaves the landfill (as reflected on the ticket).
The work of Respondents’ drivers is subject to regulations promulgated and enforced by
the Department of Transportation’s Federal Motor Carrier Safety Administration. These
regulations restrict drivers to eleven hours of driving during any one consecutive fourteen hour
period, and to seventy hours of work during any eight consecutive days. Under the regulations,
the fourteen hour period begins when the driver begins performing any sort of work, not only
driving. Off-duty time does not extend the fourteen hour period, but it is also not included in the
seventy-hour weekly work maximum.
Drivers are required to maintain logs which record the specific times and the overall
amount of time spent “off-duty,” “on-duty not driving,” and “driving” during each day. At the
Delaware facility, drivers submit all of their paperwork, including their driver logs and landfill
tickets, to Nicole every day at the end of their shifts. Nicole then inputs their total hours for the
day into the company’s computer, which keeps a running total of each driver’s weekly hours.
The computer system provides color-coded totals of driver hours, as well as “alerts” when a
particular driver is approaching the seventy hour weekly limit. Nicole also reviews driver logs to
see how long a period of time drivers spend in the landfill.
Nicole testified that he questions a driver about the veracity of their logs when he
discovers a “red flag,” but that he would more likely discuss the issue with Pat Kane at Bigler.
Kane performs audits of driver logs by checking the times entered in the driver logs against
GPS records, landfill tickets, and E-Z Pass records. Kane generates written driver ratings
based upon his audits, and Nicole receives copies. If Kane discovers a violation of the hours of
service requirements, he contacts Nicole, who testified that he would discuss the problem with
the particular driver and tell them that “they need to keep a better eye on what it is they’re
doing.” Nicole also informs the driver that they might be subject to additional discipline if they
continue violating the hours of service requirements.
On June 4, Nicole posted a notice to the drivers at the Delaware facility stating as
follows:
So everyone knows I am getting questions about log time and such based on the
GPS units that are in the trucks. We (Kephart Trucking) have the ability to look
at the history of your trucks any time we want. I just got a call and was asked
about a specific driver and was told what the times should have been entered on
his logs [sic].
One thing to please keep in mind is that through the GPS the DOT is able to
question logs books based on the findings of the GPS. There are a lot of new
regulations coming into play here over the next several months that could cause
tickets to be written directly to you drivers.
Right now they are asking about start and ending times and making sure there is
a 10 hour off duty reset before restarting.
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I was told to shut a driver down that would have been able to legally log a 3rd load
on the ground because he did not have a 10 hour reset. Please keep and [sic]
eye on all details so we don’t run into a problem and I don’t have to shut anyone
down.
G.C. Ex. 5.
Respondent maintains a driver policy manual which describes the drivers’ terms and
conditions of employment, and discusses safety and compliance issues, operations, and
recordkeeping and reporting. The driver policy manual also discusses discipline and discharge
which may be imposed for various violations of company rules and policies. The driver policy
manual states that employees will receive “reprimands” for violation of the DOT hours and work
limitations, and for falsification of log books, including “Log falsification, logs do not match weigh
tickets.” The driver policy manual also establishes a policy of progressive discipline for
recurring “violation of hours of service and log falsification” violations within the same six month
period, involving reprimands and reviews of the violation (first violation), meetings with
Respondent’s Safety Director (second violation), education classes (third violation), and
potential disqualification in the event of a fourth reprimand within six months. By contrast, the
safety and compliance section of the driver policy manual explicitly states that unauthorized
passengers in company vehicles “could result in termination,” and that preventable accidents
“will be probable cause for termination.”
D. The employment and discharge of Kathleen Falzarano
Kathleen Falzarano began working as a driver for Respondent in June 2010. Prior to
her employment with Respondent, Falzarano had been a truck driver for 15 years, working for
Gary Grey Trucking for several weeks in 2007,6 and various other companies. She had
previously been a union member.
On June 9, Falzarano attended a new employee orientation for six to seven hours, in a
trailer at the Kearney facility, which was conducted by a woman named Tammy. Falzarano
testified that completing driver logs was briefly discussed, and she filled out a sample log.
Falzarano stated that she did not complete the log correctly because she had not had to
complete driver logs for a job since 1997, but her errors were not corrected. Falzarano testified
that David Kephart came into the orientation briefly. Falzarano testified that she asked him
whether she could record “off duty” and “not driving” during the time that she was in the landfill,
and he responded that he was not certain. Although the company’s ability to confirm the
whereabouts of drivers by GPS was mentioned, no one discussed DOT regulations, fines for
filling out logs incorrectly, or company and DOT audits of driver logs. A copy of the driver policy
manual discussed above was distributed.
After the orientation concluded, Falzarano drove to the Delaware facility, where she
picked up a Nextel and other equipment from Thomas Nicole. Falzarano testified that she
asked Nicole whether the pay would be $80 per load, as it had been at Gary Grey, and Nicole
said that was correct. According to Falzarano, Nicole said that the drivers were required to haul
three loads of waste per day. Falzarano asked, “What about the log books?” Nicole responded
that she should not worry about the log books and the GPS, because he made special

6 Gary Grey had previously owned the Delaware facility now operated by Kephart, and
Nicole was a manager and dispatcher for the facility when Gary Grey owned it as well.
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allowances for the Delaware drivers that he did not discuss with the office at Bigler. Falzarano
testified the Morrissey was present during this conversation. Nicole remembers speaking to
Falzarano immediately after her orientation, but could not recall the substance of their
conversation.
Falzarano testified that a probationary period for new employees was not discussed
during her orientation or by Nicole, and Respondent’s driver policy manual does not mention
any probationary period. Nicole testified that he considered the first thirty days of a new driver’s
employment to be a learning period, and was typically more lenient with employees during this
time, particularly with regard to their lack of knowledge and slower work pace.
Falzarano began driving for Kephart on June 15, and for the first day and a half she
followed driver Larry Simpson. Nicole testified that he assigned Falzarano to follow Simpson
because he was a good, experienced driver whose paperwork always seemed to be in order.
Falzarano testified that on her first day following Simpson she asked him how long a period of
time he recorded in his log for the trip from Delaware to the Tullytown landfill. Simpson replied
that “you have to log at least an hour and a half,” but that he only logged 15 minutes for pre-trip
work and fueling up. Simpson also told Falzarano that time in the landfill could be logged as “off
duty – no driving” in order to conserve driving hours.
Subsequently, Falzarano would begin her day with a truck at the Delaware facility which
had been loaded the night before. She would drive to the Tullytown landfill, dump the load,
proceed to the Mt. Olive transfer station to pick up another load, and drive back to the Tullytown
landfill to dump that load. She would then drive from Tullytown to the Parsippany transfer
station to pick up another load. Finally, she would return the truck with that load to the
Delaware facility, where she left it to begin the next day of work. She completed logs on a daily
basis, which she submitted at the office trailer at the Delaware facility along with the day’s
landfill tickets, driver’s inspection, and a form describing the routes taken during the day.
On June 21, Falzarano’s truck broke down after overheating in the Tullytown landfill, and
she returned to the Delaware facility to obtain a new truck. Falzarano testified that while at the
Delaware facility she spoke to Nicole, who stated that he was going to “start to weed out the
lazy drivers” who come in a 7 a.m. and only haul two loads per day, and keep the drivers that do
three loads per day. Falzarano testified that Morrissey was present during this conversation.
Nicole testified that he encouraged drivers to do as many loads as possible, but could not recall
having this discussion with Falzarano.
Falzarano testified that at several points during a typical work day she spoke to other
drivers. This occurred in the coffee shop right outside of the Tullytown landfill, and in the landfill
while removing the tarp from the top of the trailer on the line for the tipper. She also
communicated with Nicole, Morrissey, and other drivers on her two-way radio. Falzarano stated
that the Kephart Trucking drivers she saw from the Kearney facility were always talking about
the Union. When she heard these drivers stating that the Union would take their money in dues
so that they wouldn’t have a paycheck left and that they would lose their jobs, she told them that
she had been in a union. She told them that being in the union was “great” because she had a
good pension and didn’t have to work eighty to one hundred hours a week to make money.
Falzarano told them that they shouldn’t have to work for $8.00 per hour, that they should be
able to work a 40 hour week, get overtime, and “be treated like humans.”
Falzarano also discussed the Union with a Kephart Trucking driver named Joe
Armahizer on multiple occasions, beginning when Falzarano called him during the second week
of work and asked what was going on with the Union at Kearney. Armahizer also worked out of
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the Delaware facility. During their conversations, Armahizer said that the Union was bad
because it would steal the employees’ money and the drivers would lose their jobs after the
company moved its trucks to a different facility. Falzarano testified that eventually she and
Armahizer discussed the Union on a daily basis. On the day of the election at the Kearney
facility, Armahizer called Falzarano repeatedly, telling her that the Delaware drivers needed to
have a meeting that weekend to keep the Union out, because the Union had won the election at
Kearney. Armahizer eventually told Falzarano that she needed to sign a piece of paper to keep
the Union out, and Falzarano refused. She also refused to attend the meeting that Armahizer
proposed.7 According to Falzarano, during these conversations Armahizer became personally
insulting as she repeatedly declined to sign anything opposing the union, or attend the meeting
to keep the Union out of the Delaware facility.
On July 5, while handing in paperwork at the Delaware facility, Falzarano went to the
office trailer to complain to Nicole about Armhizer. Falzarano testified that she entered the
trailer and began to tell Nicole about the argument with Armhizer, when Nicole told her to come
in and sit down.8 Nicole asked Falzarano what she thought of the Union, and Falzarano
responded that she thought the Union was great, because when she was represented by a
union she had a great pension and annuity, great medical benefits, and a great pay rate. Nicole
told Falzarano that he was a driver at Mount Hope Trucking, and he did not like the union there.
Nicole stated that he used a special green pen to mark his ballot in the Mount Hope Trucking
representation election, so that he could show the other drivers when things went bad that it
was not his fault. Falzarano testified that Nicole said that he was concerned about losing his job
the way the Gary Grey drivers did when Kephart Trucking bought the Delaware facility. Nicole
told Falzarano that it would be easier for Timothy Kephart to fly his airplane closer to Kearney,
and that if the Union came in everyone would lose their jobs.
Nicole testified that he had at least one conversation with Falzarano after the election at
the Kearney facility. Nicole stated that Falzarano did not disclose her opinion of unions, but that
at some point during the conversation Falzarano stated that she was a member of the union.
According to Nicole, he responded that he had had a bad experience with a union while
employed at a Holiday Inn. Nicole testified that he believed that the fact that he had a
withdrawal card from the Union after working at Mount Hope Trucking came up during the
conversation, but he did not recall discussing Mount Hope Trucking. Nicole also testified that
Falzarano told him that she did not intend to go to the meeting of the Delaware drivers that
Armahizer was arranging, because she was going to the beach.
The next day, July 6, after Falzarano picked up her third load from Parsippany, she
called Morrissey and told her that she intended to take the load to the Tullytown landfill.
Falzarano’s log for the day reflects that she hauled a third load from Parsippany to Tullytown,
although GPS records indicate that she returned to the Delaware facility several hours after the
time indicated on her log.
Nicole testified that prior to 7 a.m. on the morning of July 7, he reviewed Falzarano’s
paperwork from the previous day, and found it suspicious. Checking Falzarano’s log against the
landfill tickets to attempt to verify the times recorded in the log, he discovered that the times on

7 Nicole testified that after the election, Armahizer and five to six other drivers met with the
Timothy and Dave Kephart, and that as a result a bonus system was instituted to award drivers
an extra $50 for every load hauled in excess of ten per week.
8 Nicole acknowledged during his testimony that Armahizer was quite a talkative individual.
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the landfill tickets had been altered. He called Falzarano, who was on her way to the Tullytown
landfill with a load she had picked up in Parsippany, and asked her to return to the Delaware
facility. Nicole then called Kane, told him that Falzarano’s log for July 6 did not make sense,
and asked what her logs had been like in the past. Nicole testified that Kane immediately
responded, without looking at any GPS or other records, that Falzarano had had some
problems with starting times that did not appear to be accurate because they indicated that she
left the Delaware facility before the truck that she used was returned by the driver using it on the
night shift. Nicole testified that he did not speak with either of the Kepharts before meeting with
Falzarano.
When Falzarano returned to the Delaware facility she met with Nicole, with Morrissey
present. Nicole had Falzarano’s logs and landfill tickets with him, and told Falzarano that “a red
flag had gone up” when he saw the GPS and the log book and the landfill tickets, and that he
was going to discharge her for falsifying logs. Falzarano asked whether that meant that she
was fired, and Nicole said yes. Falzarano said that she had done the same thing in the past,
and asked whether they could “just fix it.” Nicole responded that the company did not know
whether it would get paid for the loads Falzarano had hauled on July 6. Falzarano asked to be
permitted to return to her truck and finish her paperwork, so that she would get paid. In his
testimony, Nicole in essence confirmed Falzarano’s account of their conversation. He testified
that Falzarano stated that she had falsified the logs and landfill tickets because it was necessary
in order to deliver three loads a day, and that he countered that other employees were able to
do so without falsifying the documents. Nicole also denied telling Falzarano that he had seen
her GPS records.
III. Analysis and Conclusions
A. Respondent violated Section 8(a)(1) of the Act by soliciting employee grievances, promising
employees benefits if they abandoned their support for the Union, and informing employees that
new uniforms were not being distributed because of the Union
1. Credibility issues
I credit the testimony of Brian Cole, Esau Valencia, and Robert Massaline regarding the
statements made by David Acosta, Eric Funston, and the Kepharts at the Kearney meetings
prior to the representation election. As current employees, their testimony may be considered
particularly reliable in that it is potentially adverse to their own pecuniary interests, as the Board
has noted. Covanta Bristol, Inc., 356 NLRB No. 46 at p. 8 (2010); Flexsteel Industries, 316
NLRB 745 (1995).
In addition, the testimony of the employees is in large part uncontradicted. Acosta and
Funston did not testify, and no other witness addressed their statements at the meetings that
Cole, Valencia, and Massaline described. Although Timothy Kephart testified at the hearing, he
was not questioned regarding his meetings with employees, and did not address them, justifying
an adverse inference with respect to the issue. LSF Transportation, Inc., 330 NLRB 1054,
1063, n. 11 (2000); Asarco, Inc., 316 NLRB 636, 640, n. 15 (1995).
I also credit Valencia and Cole’s accounts of the Kepharts’ statements regarding new
employee uniforms to the extent that they conflict with David Kephart’s testimony. Valencia and
Cole both testified that during the meetings Timothy and David attended, the Kepharts told the
assembled employees that uniforms could not be distributed or were “held up” because of the
Union. In his testimony regarding the two meetings he attended, David Kephart admitted that
either he or Timothy told the employees that the company had suspended the process of
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obtaining new uniforms during the organizing campaign, but also claimed that he or Timothy
stated that the uniforms were being delayed so that the company would not face allegations that
it was improperly interfering in the election process.
I credit Valencia and Cole’s testimony in this regard. In addition to their status as current
employees whose testimony is considered particularly reliable, their accounts of the meetings
were more detailed and credible than David Kephart’s vaguer contention that either he or
Timothy informed the employees that the process of obtaining new uniforms had been
suspended to avoid allegations that the company was interfering with the election process. In
addition, David Kephart’s other testimony regarding the labor consultants and the employee
meetings was less than credible. His contentions that the labor consultants were not hired to
convince the Kearney employees to vote against the Union, and that the meetings were not
conducted for that purpose as well, were inherently implausible, and contradicted Timothy
Kephart’s testimony that the company opposed the Kearney organizing campaign.
For all of the foregoing reasons, I credit the testimony of Cole, Valencia, and Massaline
regarding the events of the meetings prior to the election at the Kearney facility.
2. Respondent unlawfully solicited employee grievances and promised higher wages
and other improved terms and conditions of employment if employees abandoned their
support for the Union
The evidence establishes that Respondent violated Section 8(a)(1) by soliciting
employee grievances and promising improved terms and conditions of employment at the
Kearney meetings prior to the election. Section 8(a)(1) prohibits the solicitation of employee
grievances in a manner which interferes with the exercise of Section 7 rights. While the
solicitation of grievances is not unlawful in and of itself, it “raises an inference that the employer
is promising to remedy” them. Manorcare Health Services-Easton, 356 NLRB No. 39 at p. 19
(2010), quoting Amptech, Inc., 342 NLRB 1131, 1137 (2004). It is well-settled that when the
evidence does not establish a previous history of grievance meetings, conducting meetings
where employees are encouraged to discuss grievances is unlawful when the employer also
makes express or implied promises to remedy them. Manorcare Health Services-Easton, 356
NLRB No. 39 at p. 19; Evergreen America Corp., 348 NLRB 178, 215 (2006).
I find based on the testimony of Cole, Valencia, and Massaline that Respondent
unlawfully solicited grievances and promised higher wages and other improved terms and
conditions of employment if the employees voted against the Union. First of all, there is no
evidence in the record that Respondent had any history of conducting meetings with employees
in order to solicit grievances regarding their terms and conditions of employment. In addition, it
is undisputed that, as David Kephart testified, the Kearney meetings were conducted in order to
obtain information regarding the employees’ issues and concerns pertaining to their
employment, or in other words, to solicit grievances.
The testimony of Cole, Valencia, and Massaline establishes that the labor consultants
explicitly solicited employee grievances, and that both the consultants and the Kepharts
implicitly or explicitly promised benefits to the employees. For example, Cole testified that after
soliciting the employees’ concerns, the consultant told them that they had “legitimate
complaints” which he would discuss with the Kepharts, and that typically after management
becomes aware of specific employee dissatisfactions, a manager may be discharged. Valencia
testified that the consultant told the employees that he had discussed their complaints regarding
wage rates with Timothy Kephart, and that the employees would receive increased pay if they
voted against the Union. Massaline testified that the consultant said that the Kepharts were
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aware of the wage and benefit issues raised by the employees, and that if the Kepharts did not
remedy the problems the employees could vote in another election after a year. I find that these
statements on the part of labor consultants Acosta and Funston constituted unlawful solicitation
of grievances and promises of benefit. Manorcare Health Services-Easton, 356 NLRB No. 39 at
p. 20 (company representatives unlawfully promised benefits by telling employees they would
“try to fix [problems] without a second party involved” after soliciting grievances); Evergreen
America Corp., 348 NLRB at 217 (exhortations to “give the company another chance” and that
employees who remained unsatisfied could “vote for the union next year” following solicitation of
grievances unlawful).
The evidence establishes that the statements of the Kepharts themselves at the
meetings they attended with the labor consultants also violated Section 8(a)(1), for the same
reasons. Cole, Valencia, and Massaline testified that these meetings began with the
consultant’s either soliciting grievances again from the employees or stating that the Kepharts
were aware of the complaints that the employees had previously raised. At the meeting
Valencia attended, Timothy also told the employees that if they did not vote for the Union they
would receive higher pay, a straightforward promise of benefit that violated Section 8(a)(1).
The Kephart’s statements at the meetings attended by Cole and Massaline were
couched in somewhat more equivocal terms. At the meeting that Cole attended, Timothy
Kephart followed the consultant’s remarks by stating that if the employees didn’t vote for the
Union he would have the opportunity to make changes, and would probably do so. At the
meeting with Massaline and other employees, David Kephart reiterated the consultant’s
statement that the employees should give the company a chance to fix the problems with wages
and medical benefits. David stated, however, that if the Union won the election, “everything is
off the table.” The Board has held that vague exhortations on the employer’s part for the
employees to “give us a second chance” are within the limits of permissible campaign
propaganda. Noah’s New York Bagels, 324 NLRB 266, 267 (1997). However, where, as here,
such statements are made in the context of unprecedented meetings soliciting grievances, and
address the specific problems employees have previously raised, they are unlawful. Evergreen
America Corp., 348 NLRB at 215-217 (2006); Noah’s New York Bagels, 324 NLRB at 271. I
therefore find that these statements constituted unlawful promises of benefit if the employees
abandoned their support for the Union.
3. Respondent unlawfully informed employees that new uniforms would not be
distributed because of the Union
I find that Respondent violated Section 8(a)(1) by informing employees that new
uniforms were not being obtained or distributed because of the Union. In general, an employer
must provide expected wage or benefit adjustments “as if the union were not on the scene,”
unless it makes clear to the employees that the adjustment would take place regardless of
whether they select a union, and that the only reason for postponing it is “to avoid the
appearance of influencing the election’s outcome.” Grouse Mountain Lodge, 333 NLRB 1322,
1324 (2001), quoting KMST-TV, Channel 46, 302 NLRB 381, 382 (1991). In discussing a
postponement with employees, the employer must use language which does not attribute to the
union the “blame” or “onus” for its delay in providing the expected benefits. Grouse Mountain
Lodge, 333 NLRB at 1324; Atlantic Forest Products, 282 NLRB 855, 858 (1987).
Based upon the testimony of Cole and Valencia, I find that the labor consultants, and
Timothy and David Kephart, unlawfully informed employees that the new employee uniforms
they requested were not being provided because of the Union. Valencia testified that during the
meeting he attended with the labor consultant, the consultant stated in response to employee
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questions that uniforms were coming, but were “on hold” because of the Union’s involvement.
There is no evidence that this statement was qualified in any way to remove the onus for
postponing the acquisition of uniforms from the Union. See Grouse Mountain Lodge, 333 NLRB
at 1324; Atlantic Forest Products, 282 NLRB at 857-858. As a result, the labor consultant’s
statements in this regard were unlawful.
Even assuming that one of the Kepharts did in fact add the statement that the new
uniforms were being delayed solely to avoid the appearance of influencing the employees’ vote,
I would still find a violation. The credited testimony of the employees establishes that the
Kepharts and the consultants simultaneously made other statements explicitly attributing the
delay to the Union, and there was no effort made to impress upon the employees that after the
election the uniforms would be provided regardless of the outcome. Compare Sam’s Club, 349
NLRB 1007, 1008-1009 (2007) (company permissibly informed employees that merit increases
were delayed solely to avoid impression of election interference and would be granted after
election regardless of outcome), SNE Enterprises, 347 NLRB 472, 477-478 (2006) (employer
notices attributing delay in regular wage increase to a desire to avoid unfair labor practices
unlawful, where they also included statements blaming the union for the delay and misstating
applicable law). In addition, other statements made during the meetings, including the unlawful
solicitation of grievances and promises of benefit if the employees voted against union
representation, would militate against the impression that the company’s sole reason for
postponing the uniform acquisition or distribution was a desire to avoid the appearance that it
had influenced the outcome of the election.
For all of the foregoing reasons, I find that Respondent made statements impermissibly
attributing the delay in providing new uniforms to the employees to the Union and its organizing
campaign, in violation of Section 8(a)(1).
B. Respondent violated Sections 8(a)(1) and (3) of the Act by discharging Kathleen Falzarano
in retaliation for her union activities
1. General principles
Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to the
hire, tenure, or any term or condition of employment in order to encourage or discourage
membership in a labor organization. In order to determine whether an employee’s discharge
violated the Act in this manner, the Board applies the analysis articulated in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). To establish an
unlawful discharge under Wright Line, the General Counsel must first prove, by a
preponderance of the evidence, that the employee’s union sympathies or activities were a
substantial or motivating factor in the employer’s decision to take action against them. Manno
Electric, Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a showing of
discriminatory motivation by proving the employee’s union support or activity, employer
knowledge of that activity, and animus against the employee’s protected conduct. Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an employer's motive can be based upon
direct evidence or can be inferred from circumstantial evidence, based on the record as a
whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB
1183 (2004).
If the General Counsel is successful, the burden of persuasion then shifts to the
employer to show that it would have taken the same action even in the absence of the
employee’s union support or activities. Wright Line, 251 at 1089; Septix Waste, Inc., 346 NLRB
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494, 496 (2006); Williamette Industries, 341 NLRB 560, 563 (2004). Once the General Counsel
has met its initial burden under Wright Line, an employer does not satisfy its burden merely by
stating a legitimate reason for the action taken, but instead must persuade by a preponderance
of the credible evidence that it would have taken the same action in the absence of the
protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc., 321 NLRB at
280 fn. 12 (1996).
2. Respondent violated Section 8(a)(1) of the Act when Thomas Nicole coercively
interrogated Kathleen Falzarano
a. Credibility issues
I generally credit Falzarano as a witness. I found her testimony and demeanor to be
straightforward and candid. As discussed below, Falzarano never made any attempt to deny
that she falsified her driver logs or landfill tickets. I credit Falzarano’s testimony with respect to
her orientation and conversations with Larry Simpson and Joe Armahizer. Falzarano’s accounts
of these events are uncontradicted and were consistent on direct and cross-examination.
I credit Falzarano’s testimony regarding her conversation with Nicole immediately after
her orientation, wherein Nicole told her that she should not worry about the log books and GPS
because he made special arrangements with the Delaware drivers that he did not discuss with
Bigler. I also credit Falzarano’s testimony regarding their discussion on June 21, when Nicole
stated that he intended to “weed out” the “lazy drivers” who only did two loads per day. Nicole
testified that he did not have a distinct recollection of either of these conversations, and only
denied making the specific statements attributed to him. As a result, Falzarano’s testimony
regarding these incidents was more detailed and comprehensive, and in fact Nicole stated that
he did not recall either conversation. See, e.g., Precoat Metals, 341 NLRB 1137, 1150 (2004)
(lack of specific recollection, general denials, and comparative vagueness insufficient to rebut
more detailed positive testimony). Falzarano’s testimony is also more consistent with the
documentary evidence concerning the drivers’ recording of their hours and work, as discussed
below. I therefore credit Falzarano’s testimony regarding Nicole’s statements during these
conversations.
I also credit Falzarano’s testimony regarding the conversation on July 5 during which
Nicole allegedly interrogated her. Nicole admitted that he had at least one conversation with
Falzarano after the election at the Kearney facility. Beyond that, Nicole’s testimony regarding
his interaction with Falzarano, her union sympathies, and his knowledge of the Union’s
organizing campaign was contradictory and evasive, and his contention that he never discussed
the organizing campaign with the Kepharts was inherently implausible. His account of his
conversation with Falzarano during their July 5 meeting changed during the course of the
testimony to include more discussion explicitly addressing experiences with unions. Falzarano’s
testimony regarding their July 5 discussion, by contrast, was straightforward. As a result, I
credit Falzarano’s account of their July 5 conversation.
I decline to draw an adverse inference from the fact that Respondent did not call Nicole
Morrissey to testify, as suggested by General Counsel, but I have taken into account the fact
that Respondent did not call her to testify in making credibility resolutions regarding the
conversations between Falzarano and Nicole. The evidence establishes that Morrissey was
present during several important conversations between Falzarano and Nicole, including the
meetings during which Falzarano was allegedly interrogated and was discharged. While an
adverse inference may be drawn from the failure of an employer to call a current manager,
supervisor, or agent, current employees cannot be considered predisposed to testify in one
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manner or another, and are equally available to both parties. Compare International Automated
Machines, Inc., 285 NLRB 1122 (1987) and Torbitt & Castleman, Inc., 320 NLRB 907, 910, fn. 6
(1996), enforced in relevant part, 123 F.3d 899, 907 (Fed. Cir. 1997).9 Nicole’s testimony that
Morrissey could be considered a driver manager at the Delaware facility, and the testimony of
Nicole and Falzarano that Morrissey performs dispatching functions, tend to establish that she is
an agent of Respondent. However, because the evidence regarding her role is somewhat
sparse, I decline to draw an adverse inference from her failure to testify. I have, however, taken
into account Respondent’s failure to call Morrissey to testify regarding some of the critical
events in this case when reaching overall credibility resolutions regarding the conversations
during which she was present. Precoat Metals, 341 NLRB at 1150.
b. Nicole’s interrogation of Falzarano
Based upon the credited testimony of Falzarano, the evidence establishes that Nicole
unlawfully interrogated her during their July 5 conversation. The Board determines whether
questioning regarding union activities is unlawfully coercive by considering any background of
employer hostility, the nature of the information, the status of the questioner in the employer’s
hierarchy, the place and method of questioning, and the truthfulness of the employee’s answer.
Manorcare Health Services-Easton, 356 NLRB No. 39 at 17; Westwood Health Care Center,
330 NLRB 935, 939 (2000). The Board also considers whether the employee who was
allegedly interrogated was an open and active union supporter. Evergreen America Corp., 348
NLRB at 208 (citing cases).
The evidence here establishes that Nicole’s questioning of Falzarano was coercive.
Falzarano was not an open and active supporter of the Union at the time that Nicole questioned
her; indeed, there was no organizing campaign in progress at the Delaware facility at the time.
Nicole as the terminal manager was the highest ranking manager at the Delaware facility, and
had already told Falzarano of his intention to “weed out” the “lazy drivers.” Although Nicole and
Falzarano had worked for the same companies in the past, there is no evidence of any
friendship or personal relationship here. The conversation took place in the trailer that Nicole
and Morrissey use as their office at the Delaware facility, which drivers typically visited solely to
drop off their paperwork. Nicole’s question – “How do you feel about the union?” – is the type of
inquiry long-held to be coercive in the appropriate circumstances. All of these aspects of the
conversation militate in favor of a finding that Nicole’s questioning was coercive. See, e.g.,
Demco New York, 337 NLRB 850, 851 (2002) (questioning of employee who had not previously
revealed his union sympathies by the highest-ranking official at employee’s facility coercive).

9 While in several cases an Administrative Law Judge has drawn an adverse inference from
an employer respondent’s failure to call a manager’s secretary as a witness, I find those cases
unpersuasive and inapplicable. In Pratt Towers, Inc., the secretary in question was the sole
person that the discriminatee informed regarding the condition for which he was allegedly
discharged, and in the case cited by the ALJ in support of drawing an adverse inference
Respondent’s owner, as opposed to an employee, was not called to testify. 338 NLRB 61, 98-
99 (2002), citing Bay Metal Cabinets, Inc., 302 NLRB 152, 157, 173 (1991) In Made 4 Film,
Inc., the ALJ relied in drawing an adverse inference on Desert Pines Golf Club, but in that case
the Board explicitly declined to rely upon the adverse inference drawn by the ALJ in affirming
the ALJ’s decision. 337 NLRB 1152, 1159 (2002), citing Desert Pines Golf Club, 334 NLRB
265, fn. 1 (2001). Finally, in AC Electric, the secretary not called to testify actually signed the
Region’s commerce questionnaire on behalf of Respondent, which contended that it was
unaware that the questionnaire existed. 333 NLRB 987, 1000 (2001).
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Although Falzarano testified that she responded to the question truthfully, as opposed to
dissembling, both her testimony and that of Nicole establishes that he did not let the matter drop
at that point. Instead, he related various negative experiences of his own with unions, attributed
the demise of Mount Hope Trucking (where he and Falzarano had both worked in the past) to
the union, and told Falzarano that he was afraid for his current job, intimating that the Kepharts
would close the Delaware facility if the employees brought the Union in. Nicole’s following his
question with arguments against union representation and raising the spectre of job loss
indicates that its effect would not be innocuous. See Evergreen America Corp., 348 NLRB at
208 (questioning accompanied by statements evincing hostility toward unions or union activities
more likely to be coercive); Demco New York Corp., 337 NLRB at 851.
In determining that Nicole’s question to Falzarano was coercive, I am mindful that the
evidence establishes that Falzarano initiated the conversation, and intended to discuss
Armahizer’s incessant Nextel calls (which involved the union). However, her credited testimony
indicates that it was Armahizer’s repeated calling, arguments, and insulting remarks that she
wished to complain about to Nicole, as opposed to discussing her own union sympathies. In
addition, as Falzarano testified, before she even began relating the substance of her complaint
to Nicole, he directed her to sit down and asked her what she thought about the Union. I
therefore find that although Falzarano initiated the conversation in order to complain about
Armahizer’s conduct, Nicole was the one who focused the discussion on unions by asking
Falzarano about her union sympathies. In other such circumstances, the Board has found an
interrogation to be coercive. See Eagle-Picher Industries, 331 NLRB 169, 174-175 (2000)
(supervisor’s questioning regarding union pin during employee-initiated discussion of overtime
hours unlawful). As a result, the evidence overall establishes that Nicole’s questioning of
Falzarano was unlawful.
For all of the foregoing reasons, I find that Respondent violated Section 8(a)(1) when
Nicole coercively interrogated Falzarano on July 5.
3. The General Counsel has established a prima facie case that Respondent
discharged Falzarano in retaliation for her union activities
I find that the General Counsel has established a prima facie case that Respondent
discharged Falzarano in retaliation for her union activities. The evidence establishes that
Falzarano engaged in union activity by speaking positively about her experiences with the Union
to both Armahizer and other Kephart Trucking drivers at the landfill. The evidence also
establishes that, in response to Nicole’s question during their July 5 conversation, Falzarano
informed Nicole that she had been in the Union, and spoke in favor of union representation.10
Nicole was therefore aware that Falzarano had been a member of the Union, and had a
favorable view of union representation, prior to her discharge.
The timing of Falzarano’s discharge, within days after the July 5 conversation during
which Nicole interrogated her and learned of her favorable opinion of unions, also supports the
conclusion that Falzarano was unlawfully terminated. See, e.g., Manorcare Health Services –
Easton, 356 NLRB No. 39 at p. 3, 25 (discipline of employee “just days” after her first public

10 I do not credit Nicole’s assertion that Falzarano told him that she was in the Union, but
never discussed her opinion of union representation. As discussed above, I credit Falzarano’s
account of this conversation.
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support for the union indicative of unlawful motivation); McClendon Electrical Services, 340
NLRB 613, fn. 6 (2003), citing La Gloria Oil, 337 NLRB 1120 (2002).
The record also establishes that Respondent exhibited animus against the Union. As
discussed above, Respondent unlawfully solicited grievances and promised benefits to drivers
at its Kearney facility if the employees abandoned their support for the Union, and told the
drivers that the new uniforms they desired were delayed as a result of the Union’s organizing
campaign. These violations are evidence of anti-union animus. See Austal USA, LLC, 356
NLRB No. 65 at p. 1-2 (2010) (Section 8(a)(1) violations constitute evidence of animus); Bally’s
Atlantic City, 355 NLRB No. 218 at p. 9 (2010). Although these violations took place at a
different facility, they involved both of the Kephart brothers, who are the company’s owners and
highest level of management. In addition, during his July 5 discussion with Falzarano, Nicole
not only unlawfully interrogated her but discussed his history of opposition to union
representation, and raised the possibility that bringing a union into the Delaware facility would
result in the loss of work. While the latter statements are not alleged as a violation, they may
appropriately be considered in making a finding regarding anti-union animus. Gencorp, 294
NLRB 717, fn. 1 (1989). For all of the foregoing reasons, I find that General Counsel has shown
that Respondent exhibited animus against the Union.
For all of the foregoing reasons, I find that the General Counsel has established a prima
facie case that Falzarano was discharged in retaliation for her union activities.
4. Respondent has not met its burden to show that it would have discharged Falzarano
absent her union activities
Respondent contends that Falzarano was discharged because she falsified the landfill
tickets printed out by Waste Management at the Tullytown landfill by changing the times they
contained. Falzarano freely admitted that throughout her employment with Respondent the
information she provided on her driver logs did not accurately reflect her driving and work time.
She testified that she recorded inaccurate times in her driver log in order to be able to perform
the amount of work she believed was required by Respondent while simultaneously providing
paperwork which would comply with the DOT regulations. Falzarano also admitted that on
several occasions she altered the times on the landfill tickets provided to her by Waste
Management, so that they comported with the times on the driver logs she had completed.
However, the evidence overall does not substantiate Respondent’s contention that Falzarano’s
alteration of the times printed on the landfill tickets was the real reason for her discharge.
In reaching this conclusion, I am mindful that the record establishes that no other driver
has falsified landfill tickets, as opposed to driver logs. The record establishes, through both the
testimony and a comparison of driver logs and GPS records, that it is not uncommon for driver
logs to inaccurately reflect the work hours and locations of the drivers. Nicole in fact admitted
that it is not uncommon for drivers to violate the DOT hours of service regulations. Massaline
testified that during the period of time that he was hauling three loads per day, his driver logs
were inaccurate. Specifically, Massaline stated that Kane instructed him to log all time spent
inside the landfill as “off duty,” even though the testimony establishes that drivers are on duty
and spend time driving inside the landfill. Massaline also testified that when he complained to
Barenzeco that he could not haul three loads per day without falsifying his log book, Barenzeco
told him that he was “unproductive,” and gave his truck to another driver. Cole also testified that
Barenzeco pressured him to haul three loads per day, and that Evans once threatened to give
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him a verbal warning for failing to do so.11 Massaline’s testimony regarding Kane’s statements
is particularly significant, as Kane was the individual at the Bigler facility specifically responsible
for safety and compliance, log analysis, and compliance with DOT regulations.
The testimony of these witnesses and the other documentary evidence pertaining to the
drivers’ work, such as the driver logs, GPS records, and, indeed, the Notice posted by Nicole
reminding drivers that their whereabouts could be ascertained through the GPS system, clearly
indicates that Respondent took a “don’t ask, don’t tell” approach to the drivers’ completing their
logs in compliance with the DOT hours of service regulations. The evidence establishes that
driver logs were often inaccurate and that drivers did not incur any discipline for falsifying
information on their driver logs. The evidence also does not establish that any driver has ever
been discharged for failing to keep accurate driver logs.12 Indeed, Nicole testified that he
typically dealt with hours of service violations by telling the particular driver that “they need to
keep a better eye on what it is they’re doing,” and informing them that additional violations might
result in other discipline. However, regardless of the evidence that any number of drivers
falsified their driver logs with no disciplinary ramifications, Respondent’s contention is that
Falzarano was discharged for altering the times which appeared on her landfill ticket. I find that
the evidence overall establishes that this proffered reason for her discharge is in fact pretextual,
for the following reasons.
The evidence establishes that Respondent departed in significant ways from its own
policies and procedures when Falzarano was discharged. Respondent’s driver policy manual
contains a detailed systems of progressive discipline for violations involving the DOT regulations
and driver logs (one of which is entitled “Log falsification, logs do not match weight tickets”).
Termination of employment is not included until after a fourth reprimand for falsification of
documentation within the same six month period, whereas the policy manual explicitly states
that other violations can result in immediate discharge. Regardless of this language Falzarano
was discharged when, according to Respondent, her alteration of the driver logs and landfill
tickets was first discovered. Indeed, Nicole did not even consult the driver policy manual prior to
making the decision to discharge her. This departure from both written disciplinary policy and
Respondent’s past practices is evidence that Respondent’s asserted reason for discharging
Falzarano was pretextual. See Manorcare Health Services – Easton, 356 NLRB No. 29 at 3, 26
(“unexplained departure” from normal disciplinary practice evidence of unlawful motivation);

11 I credit the testimony of current employees Massaline and Cole regarding these
conversations. Kane and Evans, both currently employed by Respondent, did not testify. In
light of Kane’s explicit responsibility for driver log analysis and compliance with DOT
regulations, I draw an adverse inference from his failure to testify in this respect. I also credit
Massaline and Cole’s accounts of their conversations with Barenzeco. While Barenzeco is no
longer employed by Respondent, the current employees’ testimony is relatively consistent with
respect to Barenzeco’s opinion on the topic of hauling three loads per day. While it is true, as
Respondent notes, that Barenzeco was employed at the Kearney facility and not involved in
Falzarano’s employment or discharge, I find that his direction to haul three loads per day is
relevant to the prevalence of falsified driver documentation.
12 The sole “Driver Log Falsification Letter” produced by Respondent indicates that the
driver in question resigned. Respondent also produced a series of documents entitled “Driver
Phone Conference” with attached driver audit sheets and driver log excerpts, but none indicate
when the conference actually occurred in the spaces provided, and none are signed by the
manager and compliance officer.
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Regal Health & Rehab Center, Inc., 354 NLRB No. 71 at p. 16 (failure to follow progressive
disciplinary policy evidence of pretext).
In addition, the evidence establishes, through the testimony of Nicole and the Kepharts,
that Respondent makes all personnel decisions through the office at the Bigler facility.
Respondent introduced no evidence to explain why, if that was the case, Nicole, the Delaware
terminal manager, purportedly discharged Falzarano of his own volition. Respondent’s
departure from its own asserted hierarchy for making personnel decisions indicates that its
proffered reason for discharging Falzarano was pretextual. Baptist Hospital, Orange, 328 NLRB
628, 635 (1999) (failure to obtain written authorization of administrator prior to discharge, as
required by hospital policy, evidence of pretext).
The evidence also establishes that Respondent conducted no real investigation into
Falzarano’s falsification of landfill tickets and driver logs, and did not provide her with the
opportunity to explain her actions, prior to discharging her. See Manorcare Health Services –
Easton, 356 NLRB No. 39 at 3, 26 (inadequate investigation consisting of “short conversation”
regarding the incident forming the basis for discriminatee’s discharge indicates that discharge
was in fact unlawfully motivated); Rood Trucking Co., 342 NLRB 895, 900 (2004) (failure to
investigate allegations against employee “strong evidence of pretext”). Nicole testified at the
hearing that Falzarano’s alteration of the landfill tickets warranted discharge because the client
could possibly refuse to pay for the loads she had hauled. However, despite admitting that he
has no experience with customer relations or billing, he stated that he did absolutely nothing to
attempt to confirm or deny this supposition, or to learn the exact amount of money involved,
prior to discharging Falzarano. In fact, the evidence establishes that Respondent was paid for
all of the loads Falzarano hauled.
Nicole’s conversation with Kane on the day Falzarano was discharged cannot be
considered to have been a legitimate investigation of any sort. Nicole admitted that he called
Kane only after calling Falzarano back to the Delaware facility. Nicole testified that Kane
responded immediately, without reviewing GPS or other records, that Falzarano had had some
problems with starting times. Nicole did not discuss the falsified landfill tickets with Kane,
despite his contention that they formed both his reason for calling Kane (in that they confirmed
that Falzarano’s driver logs were inaccurate) and the ultimate basis for her discharge.
Respondent’s failure to conduct any meaningful investigation regarding the ramifications of
Falzarano’s altered landfill tickets and inaccurate driver logs constitutes evidence of pretext.
The evidence also establishes that Falzarano had altered landfill tickets to comport with
driver logs which did not accurately reflect her work several times in the past, but this did not
become an issue until after the conversation with Nicole during which she disclosed her union
sympathies. Falzarano’s landfill tickets show that she altered times by handwriting over the
printed numbers on June 22 and 25, and on July 2. The evidence establishes that drivers return
all of their paperwork, including driver logs and landfill tickets, to the office trailer at the
Delaware facility on a daily basis. The evidence also shows, as discussed above, that the
submission of driver logs which did not comport with GPS records and other documents
pertaining to the drivers’ whereabouts was a relatively regular occurrence. Kane purportedly
told Nicole that the start times contained in Falzarano’s logs appeared to be inaccurate.
However, no one ever discussed Falzarano’s driver logs or altered landfill tickets with her until
after she spoke in favor of the Union on July 5. It is well-settled that such abrupt imposition of
discipline for misconduct an employer has previously condoned or tolerated is evidence of
unlawful motivation. See, e.g., Air Flow Equipment, Inc., 340 NLRB 415, 419 (2003).
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Nicole’s attempts to explain how Falzarano’s alteration of the landfill tickets suddenly
caught his attention on July 7 are not credible. Nicole claimed that he was initially confused
because Falzarano had indicated that she was picking up a load that morning when he believed
that she was to begin the day by delivering a load she had picked up the previous afternoon.
However, Falzarano’s log for July 6 clearly indicates that she ended her shift that day by
dropping a load off in Tullytown, so that she would have returned the truck to the Delaware
facility empty. The sign-in sheet from the Parsippany transfer station for July 6 also indicates
that Falzarano had picked up a load there which she intended to take to Tullytown that day.13
Therefore, Nicole’s rationale for suddenly reviewing the landfill tickets ultimately boils down to
his belief that it was not possible for Falzarano to haul three loads from one of the transfer
stations to Tullytown in one twelve hour period – a proposition which could have applied not
only to Falzarano’s previous driver logs, but to those of a number of other drivers. Ultimately,
Nicole advanced no credible reason for focusing on Falzarano at that specific time, and there is
no other evidence to establish that any reason existed for targeting her in particular, other than
Respondent’s knowledge of her union sympathies.
In fact, Nicole provided multiple, shifting reasons for Falzarano’s discharge which
conflicted with other aspects of his own testimony. Nicole initially focused his explanation on
Falzarano’s falsification of driver logs. He claimed in his affidavit that he was particularly
disturbed by Falzarano’s falsification of driver logs given the Notice he had recently posted. The
evidence demonstrates that Nicole did not discuss the landfill tickets with Kane, or with Timothy
Kephart when he informed Kephart later that day that he had discharged Falzarano.14
Falzarano testified that when Nicole discharged her he centered on falsification of the driver
logs, and only mentioned the alteration of the landfill tickets in passing. Yet at the hearing
Nicole contended that the alteration of the landfill tickets, as opposed to the falsification of driver
logs, was the reason for Falzarano’s discharge. In addition, Nicole testified that Falzarano was
discharged in part because she was still undergoing a probationary period. However, he also
admitted, confirmed by the driver policy manual, that employees are not subject to a
probationary period, and testified that he considered the first month of employment to be a
learning period, during which he had reduced expectations for the new employee. It is well-
settled that such shifting reasons for an adverse employment action indicate that the
Respondent’s conduct was in fact unlawfully motivated. See, e.g., Bebley Enterprises, 356
NLRB No. 64 at p. 8 (2010).
For all of the foregoing reasons, I find that Respondent discharged Kathleen Falzarano
in retaliation for her union activities, in violation of Sections 8(a)(1) and (3) of the Act.
Conclusions of Law
1. The Respondent, Kephart Trucking Company, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

13 Nicole’s testimony that he reviewed this sign-in sheet before 7 a.m. on July 7 is not
plausible given the indication on the sheet itself that it was not faxed to him until 7:07 a.m.
14 In fact, Timothy Kephart testified that was not aware of the altered landfill tickets when
they were sent to the client the following week.
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3. By discharging Kathleen Falzarano in retaliation for her union activities, Respondent
has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) of the Act.
4. By soliciting employee grievances and promising to remedy them if the employees
abandoned their support for the Union, Respondent has violated Section 8(a)(1) of the Act.
5. By informing employees that new uniforms were being delayed because of the
Union’s organizing campaign, Respondent has violated Section 8(a)(1) of the Act.
6. By coercively interrogating employees regarding their union sympathies, Respondent
has violated Section 8(a)(1) of the Act.
7. The above-described unfair labor practices affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the Act’s purposes.
Having discriminatorily discharged Kathleen Falzarano in retaliation for her protected
concerted activities, Respondent must offer Falzarano full reinstatement to her former position
or to a substantially equivalent position. Respondent must also make Falzarano whole for any
loss of earnings or other benefits she may have suffered as a result of the discrimination against
her, plus interest, in the manner prescribed in F.W. Woolworth, 90 NLRB 289 (1950) and New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). Respondent shall also be required to
remove from its files all references to Falzarano’s unlawful discharge, and to notify her in writing
that this has been done and that the discharge shall not be used against her.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
Respondent Kephart Trucking Company, Inc., Delaware, New Jersey, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees because they engage in
activities on behalf of Teamsters Local 125.

15 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
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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(b) Soliciting grievances from employees and promising to remedy them if they abandon
their support for Teamsters Local 125.
(c) Informing employees that new uniforms are being delayed because of an organizing
campaign conducted by Teamsters Local 125.
(d) Coercively interrogating employees regarding their union sympathies.
(e) 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 of the date of this Order, offer Kathleen Falzarano full reinstatement
to her former position or, if that position no longer exists, to a substantially equivalent position,
without prejudice to her seniority or to any other rights and privileges previously enjoyed.
(b) Make Kathleen Falzarano whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her, in the manner set forth in the Remedy section of
this decision.
(c) Within 14 days of the date of this Order, remove from all files any reference to the
unlawful discharge, and within 3 days thereafter, notify Falzarano in writing that this has been
done and that the discharge will not be used against her 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, 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 facilities in Delaware, New
Jersey and Kearney, New Jersey, copies of the attached notice marked “Appendix.”16 Copies
of the notice, on forms provided by the Regional Director for Region 2, after being signed by
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. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by e-mail, posting on an intranet or an internet site and/or other electronic
means if Respondent customarily communicates with its employees by such means.
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

16 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.”
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to all current employees and former employees employed by the Respondent at any time since
July 9, 2010.
(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
Respondent has taken to comply.
Dated: Washington, DC
__________________________
Lauren Esposito
Administrative Law Judge
JD(NY)–23–11
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 discharge of otherwise discriminate against you because you support Teamsters
Local 125.
WE WILL NOT solicit grievances from you and promise to remedy them if you abandon your
support for Teamsters Local 125.
WE WILL NOT tell you that new uniforms are being delayed because of Teamsters Local 125.
WE WILL NOT coercively interrogate you regarding your union sympathies.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL within 14 days of the date of the Board’s Order, offer Kathleen Falzarano full
reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights and privileges previously enjoyed.
WE WILL make Kathleen Falzarano whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her, less any net interim earnings, plus interest.
JD(NY)–23–11
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Kathleen Falzarano, and within 3 days thereafter, notify
Falzarano in writing that this has been done and that the discharge will not be used against her
in any way.
KEPHART TRUCKING COMPANY, 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.
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
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, (212) 264-0346.