Nortech Waste

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 554 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
Nortech Waste and Operating Engineers Local Union
No. 3 of the International Union of Operating
Engineers, AFL–CIO. Cases 20–CA–28057, 20–
CA–28378, and 20–CA–28432
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
On, May 14, 1999, Administrative Law Judge James M.
Kennedy issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a brief in reply to
the cross-exceptions. The General Counsel, joined by the
Charging Party, filed cross-exceptions, a supporting brief,
and an answering brief.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs, and has decided to af-
firm the judge’s rulings, findings,1 and conclusions,2 and
to adopt the recommended Order as modified below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions have been filed to the judge’s dismissal of allegations
that the Respondent violated Sec. 8(a)(1) by barring union employees
from a nonpublic area of its plant, Sec. 8(a)(3) by changing employee
Alice Keyes’ hours to accommodate “tailgate meetings,” and Sec.
8(a)(5) by failing to bargain with the Union over its IRCA compliance
policies. No exceptions were filed to the administrative law judge’s
findings that the Respondent violated Sec. 8(a)(1) by soliciting em-
ployee grievances through its mandatory “tailgate meetings,” Sec.
8(a)(3) by warning employee Alice Keyes, and Sec. 8(a)(5) by dealing
directly with employees by soliciting grievances at “tailgate meeting,”
and by unilaterally changing its safety equipment replacement and sick
leave policies.
2 We agree with the judge that the Respondent violated Sec. 8(a)(3)
and (1) by failing to reinstate unfair labor practice strikers promptly
after an unconditional offer to return to work. Contrary to the judge’s
finding, the Respondent’s assistant general manager, Larry Buckle,
called an employment agency seeking replacement workers, not its
general manager, Jerry Jackson. The Respondent concedes in its brief
that it was willing to permit the strikers, upon the offer to return, to
begin work immediately, if, inter alia, they and the Union would aban-
don the claim that Keyes and Jara had been unlawfully suspended.
Thus, we agree with the judge that the Respondent attached unlawful
conditions—relinquishing the vindication of Sec. 7 rights—to the rein-
statement of the strikers. The Respondent thereby lost the accommoda-
tion of the “grace period” described by the judge.
We modify the judge’s Conclusion of Law 9 to reflect that the Re-
spondent violated Sec. 8(a)(3) and (1) by reassigning Alice Keyes from
her position as a garbage sorter to the green line and cleanup duties on
January 5, 1998, and Conclusion of Law 10 to reflect that the Respon-
dent assigned Keyes to pull nails from boards on January 20, 1998.
1. The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(3) and (1) by discharging 11
employees. The Respondent argues, inter alia, that it re-
viewed these employees’ immigration status in order to
abide by the Immigration Reform and Control Act
(IRCA), in strict accord with the instructions of the Immi-

With regard to these conclusions of law, we find merit in the Gen-
eral Counsel’s exception to the judge’s failure to order that the Respon-
dent offer Alice Keyes reinstatement to her former position on the main
sorting line, in accordance with the Americans with Disabilities Act
and other applicable laws, if and when she recovers from her injuries
and is released by her doctor to perform the required duties, and that
she be made whole for any loss of pay and benefits as a result of the
unlawful reassignment. We shall modify the remedy, recommended
Order, and notice accordingly.
The judge recommended that the Respondent be ordered to make
Keyes whole for any medical expenses she incurred as a result of her
unlawful reassignment. We shall leave the question of whether Keyes
should be made whole for medical expenses to the compliance stage of
this proceeding.
The Respondent has excepted to the award of medical expenses.
The Board has previously been reluctant to award reimbursement for
consequential medical expenses, stating that medical expenses “are
better sought through private remedies traditionally used for the recov-
ery of such damages.” Service Employees Local 87 (Pacific Tele-
phone), 279 NLRB 168 fn. 5 (1986). The Board has acknowledged that
state courts “have more experience and are better equipped than the
Board to measure the impact of tortious conduct.” Id. Operating Engi-
neers Local 513 (Long Construction), 145 NLRB 554 (1963). How-
ever, in Pilliod of Mississippi, 275 NLRB 799 fn. 3 (1985); and Lee
Brass, 316 NLRB 1122 fn. 4 (1995), enfd. mem. 105 F.3d 671 (11th
Cir. 1996), the Board did not deny the requested reimbursement of
medical expenses, but instead provided for the customary make-whole
remedy, specifically leaving to the compliance stage of the proceeding
the question of whether the employees incurred medical expenses at-
tributable to the respondents’ unlawful conduct. In the exercise of our
remedial authority, we find it appropriate to follow the same procedure
here.
The policy behind our prior reluctance to award medical expenses is
rooted in the recognition that state tort remedies are available for per-
sonal injuries, and that “such items as medical expenses and pain and
suffering, could be more readily and comprehensively remedied in state
tort actions than in Board proceedings.” Iron Workers Local 111
(Northern States), 298 NLRB 930, 932 (1990), enfd. 946 F.2d 1264
(7th Cir. 1991). See also Long Construction, supra, 145 NLRB at 556.
Here, however, those concerns are not implicated. Unlike nonspecific
damages such as pain and suffering, the medical expenses sought to be
reimbursed here are not speculative. Rather, they are specific and
easily ascertained. Thus, the special expertise of the State courts in
determining speculative tort damages is not required in this case. We
therefore find under these limited circumstances that it would better
effectuate the policies of the Act to leave to the compliance stage, as we
did in Pilliod of Mississippi, supra, and Lee Brass, supra, the question
of whether Keyes incurred medical expenses (as defined herein), and if
she did, whether they should be reimbursed.
We note that in Graves Trucking, Inc., 246 NLRB 344 (1979), modi-
fied 692 F.2d 470 (7th Cir. 1982), cited by the judge, the issue of reim-
bursement of medical expenses was not before the Board.
3 We will modify the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001).
336 NLRB No. 79
NORTECH WASTE 555
gration and Naturalization Service (INS), and based
thereon terminated the employees. The record provides no
support for the Respondent’s exceptions. In rejecting
them, we do not minimize the importance of employer
compliance with IRCA, but we agree with the judge that
the Respondent used IRCA as a smokescreen to retaliate
for and to undermine the Union’s election victory. In
agreeing with the judge, we find that the Respondent’s
response to questions about employees’ eligibility to work
in the aftermath of the election significantly departed from
its ordinary course of business as it pertained to IRCA
matters. This deviation from usual practice further sup-
ports the finding that the Respondent discharged the em-
ployees in violation of Section 8(a)(3) and (1).
The relevant evidence, set out briefly, is as follows. The
Respondent assigned responsibility for IRCA matters to
human resources officer Sally Punkar. She testified that
the Respondent always includes documents verifying eli-
gibility to work in the employment packages for prospec-
tive hires, requires every new hire to execute an INS I–9
form and supporting documentation, and assumes, in keep-
ing with IRCA requirements, that facially accurate docu-
ments are valid. Punkar testified that the Respondent’s
records respecting eligibility to work were in order when
the events at issue occurred. The Respondent’s general
manager, Jerry Jackson, had, before the election, limited
his involvement with immigration matters to occasional
inquiries about the Respondent’s files and the assumption
that if serious problems arose, Punkar would inform him.
Jackson testified that several times before the election on
September 24, 1997, individuals had suggested to Jackson
that the Respondent employed undocumented workers.
He had never taken these rumors further than mentioning
them to Punkar, who had assured him that the Respon-
dent’s files were in order.
Jackson testified that after the election he was again ap-
proached with the suggestion that the Respondent em-
ployed ineligible workers, and that the Union’s victory in
the election was unfair because these individuals had
voted. A few days after the election, Jackson found on his
desk an unsigned, handwritten list of Hispanic names,
without notation.4 He purportedly concluded that the
listed employees were working illegally, that the list had
been supplied by an unknown individual dissatisfied with
the union victory, and that “he had to do something.” He
began an immediate and unprecedented personal review of
the employees’ files. He testified that when the first file he
examined appeared “suspicious,” he called the local INS
office, and an agent told him that one option available to

4 No other witness testified to having seen the list, and the Respon-
dent could not produce it for the hearing.
the Respondent would be to ask employees about their
eligibility and tell them to check with the INS. On Octo-
ber 1, the Respondent filed objections to the election, as-
serting that 19 employees (actually 11) eligible to vote in
the election “have, this date, terminated their employment
from the employer, because of their inability to prove . . .
that they are legal and qualified to work in this country,”
leaving the “true results” of the election in doubt. The
same day, Punkar, at Jackson’s direction, told 11 employ-
ees that their eligibility to work was in doubt, that the INS
had been contacted, and that they had 3 days to straighten
their paperwork out, and issued them final checks.5 The
employees returned to work on October 14, although they
did not further verify their status.
These facts demonstrate Jackson’s complete departure
from the Respondent’s customary manner of doing busi-
ness and the implausibility of the Respondent’s argument
that it was merely trying to comply with the immigration
laws. The record shows that the Respondent had dele-
gated immigration matters to Sally Punkar and her staff,
who maintained an orderly system of fulfilling the Re-
spondent’s duties under IRCA. There is no evidence that
Jackson had ever criticized or found fault with Punkar’s
execution of her duties. After the election, however, Jack-
son bypassed usual procedures and his personal past prac-
tice and delved into a complex area of law in which he
lacked any experience, in a manner that does not appear to
be consistent with a good-faith effort to comply with the
law. In this regard, there is no evidence that Jackson’s
conduct revealed problems with the Respondent’s IRCA
procedures or led to any review or alteration of them. Fur-
ther, Jackson’s account of his conversation with the INS
agent belies the argument that the Respondent was just
trying to follow INS directives. His testimony does not
indicate that the agent provided a mandate, or indeed any
basis at all, for discharging suspected employees.6 Thus,
these facts, in addition to the facts set out in the judge’s
decision, strongly supports the judge’s finding that under-
mining the Union’s victory was the real reason for the
discharges. For these reasons, as well as those stated by
the judge, we find that the discharges violated Section
8(a)(3) and (1) of the Act.7
5 A second list of Hispanic names, also handwritten, anonymous, and
unlabeled, appeared a few days later, but questions about the status of
employees on the second list were dropped.
6 Wendy Swinford, an accounts receivable clerk, also spoke to the
INS office. She did not testify.
7 Our dissenting colleague asserts that the Respondent did not dis-
charge these 11 employees. The evidence shows that the Respondent
put these employees out of work. The test for determining whether an
employee has been discharged does not depend on the use of formal
words but on the reasonable inference that the employees could draw
from the language used and the action taken by the employer. NLRB v.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
2. In its exceptions to the judge’s finding that it violated
Section 8(a)(3) and (1) by suspending employees Olga
Jara and Alice Keyes, the Respondent asserts, inter alia,
that General Manager Jackson acted in a good-faith belief
that Olga Jara had punched Alice Keyes’ timecard, and
that the judge ignored its argument that it suspended the
employees in part because they were “dishonest” during
the investigation of the purported violation of its rules
governing employees’ timecards. We find no merit in the
Respondent’s exceptions.
Keyes and Jara were known union supporters and activ-
ists, and Keyes served on the negotiating committee.
Keyes had previously been warned, in violation of Section
8(a)(3) and (1), for her protected concerted activity at em-
ployee meetings held by the Respondent.8 Keyes and Jara
were informed that their conduct was under investigation
on November 24, 1997, the first workday after November
21, on which date negotiations with the Union had begun
and on which date Keyes and Jara had engaged in pro-
tected concerted activity at an employee meeting. Thus,
the General Counsel has established a strong prima facie
case that the discipline of the two employees was based on
their union and protected activities. Further, the Respon-
dent has failed to rebut the General Counsel’s case by
showing that it would have suspended the employees even
in the absence of their protected conduct. In this regard,
we find that even if Jara had punched Keyes’ timecard and
thereby disobeyed a work rule, as the Respondent con-
tends, the Respondent has failed to demonstrate that it
enforced the rule consistently, and the judge credited tes-
timony that reports of possible violations were ignored.
Further, in its brief the Respondent tacitly concedes the
judge’s finding that even if Jara punched her coworker’s
timecard, the policy was not violated. The Respondent
quotes the policy’s relevant language as follows: “[this
system] can’t prevent an employee from clocking in an-
other who is either late for work or absent for the day.”
[Emphasis added]. Keyes was neither “late for work” nor
“absent for the day.” Thus, the judge correctly found that
no violation of the policy occurred. The record further
shows that the Respondent’s investigation into Jara and
Keyes’ conduct lacked the marks of a fair-minded effort to
arrive at the truth. The Respondent was unable to name
any witness who saw Jara punch both cards, and its wit-
nesses at the hearing were unable to testify that Keyes was

Hale Mfg. Co., 570 F.2d 705, 708 (8th Cir. 1978). Here, the Respon-
dent told the employees that they had to contact the IRS and that they
could not work in the meantime. At least some of the employees’
paychecks were marked “final check.” In light of these facts, we find
that the only reasonable conclusion these employees could draw is that
they had been discharged.
8 The Respondent has not excepted to this finding.
not in the area at the time the card was punched. Although
Buckle testified that he thoroughly investigated the state-
ments against Jara and Keyes, the record strongly indicates
that the investigation’s goal was to provide a plausible
basis for imposing adverse action.
These facts belie the Respondent’s assertion that the in-
vestigation and suspension were based on a good-faith
belief that Jara and Keyes broke its timecard rule. They
indicate instead that, as the judge found, the real purpose
for the investigation and discipline was to retaliate against
the employees for their union and protected conduct, and
that the reasons for the suspension advanced by the Re-
spondent were pretextual.
We also reject the Respondent’s contention that its be-
lief that Jara and Keyes had been dishonest in denying that
they broke the rule was a second basis for the suspensions.
The record contains no evidence that the Respondent had
previously disciplined any employees because they had
wrongly denied engaging in misconduct. Thus, in light of
the retaliatory and discriminatory purpose of the underly-
ing investigation, this additional justification for suspend-
ing Jara and Keyes provides an insufficient basis for find-
ing that the Respondent has rebutted the General Coun-
sel’s prima facie case.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders the Respondent, Nortech Waste, Rose-
ville, California, its officers, agents, successors, and as-
signs, shall take the action in the recommended Order as
modified.
1. Insert the following paragraph 2(e) and reletter the
following paragraphs.
“(e) Offer Alice Keyes, at her request, reinstatement to
her former position on the main sorting line, if and when
she recovers from her injuries and her doctor releases her
to perform her sorting duties, consistent with the require-
ments of the Americans with Disabilities Act and other
applicable statutes.”
2. Insert the following paragraph 2(f) and reletter the
following paragraphs.
“(f) Make Alice Keyes whole, with interest, for any
other loss of pay and benefits she may have suffered as a
result of the unlawful reassignment.”
3. Substitute the following for paragraph 2(i).
“(i) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payments records, timecards, personnel re-
cords, and reports, and all other records, including an
electronic copy of such records if stored in electronic
NORTECH WASTE 557
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
4. Substitute the attached notice for that of the adminis-
trative law judge.

CHAIRMAN HURTGEN, dissenting in part.
My colleagues find that the Respondent violated Section
8(a)(3) and (1) by discharging 11 employees on October 1.
I disagree.
First, I find no discharge on October 1. The judge found
that on October 1, 1997, the Respondent informed the em-
ployees at issue that the INS had been contacted, and that
they had 3 days to straighten out their paperwork with the
INS. In the meantime, they could not work. No affected
employee testified that he had been discharged. Respon-
dent agents Jackson and Punkar testified that no one was
discharged.
I recognize that on October 1 the Respondent filed ob-
jections to the September 24 election, stating that it had
terminated the employees because it had discovered that
their claim of eligibility to work in the United States was
flawed. However, on October 9, the Respondent withdrew
its objection. The employees returned to work on October
14.
I find these facts insufficient to establish that the em-
ployees at issue were discharged on October 1. Indeed,
the judge admitted that it was unclear whether any em-
ployee was discharged. The Respondent told the employ-
ees on October 1 that they had to straighten out their status
with the INS. The clear implication was that, absent a
satisfactory resolution with INS, they would be dis-
charged. But, this is not to say that they were discharged
on October 1.
I also note that the Respondent, on October 8 and 10,
sent letters to the affected employees stating, inter alia,
that they should advise the Respondent as to whether they
would return to work on October 14 and that if they
needed more time (i.e., beyond October 14) the Respon-
dent would accommodate them.
Concededly, the employees were not allowed to work in
the interim period. But, this is not to say that they were
discharged at the outset of the interim period, i.e., on Oc-
tober 1. Indeed, as noted, they returned to work on Octo-
ber 14.
As noted, the Respondent filed an objection on October
1, stating that the employees were terminated on that day.
However, the objection was withdrawn on October 9. In
these circumstances, I would look to the facts, rather than
to an assertion in a withdrawn objection. In my view, the
facts do not establish a termination. At most, they show
an ambiguity on the issue.
I agree with my colleagues that whether an employee
has been discharged does not depend on the use of formal
words. For the reasons stated, above, I find that the em-
ployees here would not reasonably have inferred that they
were discharged. Further, contrary to my colleagues, an
employee who is put “out of work” is not necessarily dis-
charged. Suspension and layoff, for example, are not dis-
charges.
In the alternative, even if the employees were dis-
charged on October 1, I conclude that the Respondent
acted lawfully. In my view, the Respondent was caught
between a rock and a hard place. The Respondent was
confronted with an anonymous note, left on Jackson’s
desk, suggesting that certain employees were not legally in
the U.S. There is no evidence that this had happened be-
fore. In the face of this information, the Respondent
would risk violating immigration laws if it did nothing.
Thus, the Respondent did the prudent thing. It called INS
and asked what to do. The INS agent suggested that the
Respondent tell the employees to check with INS. That is
precisely what the Respondent did.
My colleagues minimize the dilemma in part by finding
that the INS did not mandate the alleged discharges. But
the Respondent does not contend that the INS mandated
any discharges. The Respondent contends only that the
INS made suggestions and that the Respondent followed
these suggestions.
My colleagues emphasize that the Respondent handled
this particular immigration matter differently from the way
it had handled previous ones (i.e., Jackson, not Punkar,
took the lead). But, as noted above, that is because the
situation was without precedent. Further, the letters sent
by the Respondent to the employees at issue name Punkar
as the person the employees should contact, and state that
if an employee needed additional time, beyond October
14, he should report to work, and Punkar would be able to
accommodate him.
Sure-Tan v. NLRB, 467 U.S. 883 (1984), is distinguish-
able. In that case, the employer, for antiunion reasons,
called the INS and caused the termination of the employ-
ees. In the instant case, in order to avoid INS sanctions,
the Respondent called the INS and asked the agency what
to do. In this regard, I note that the Immigration Reform
and Control Act (IRCA), which postdates Sure-Tan, pro-
hibits an employer from hiring an illegal alien or from
continuing to employ someone it has learned is an illegal
alien. The Respondent, confronted with the claim that its
work force included illegal aliens, reasonably and appro-
priately contacted the INS, and followed that agency’s
advice. Had it ignored the matter, it would have risked
huge fines.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
In these circumstances, and for all of the reasons men-
tioned above, I would dismiss this allegation.1
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 the National Labor Relations Act and has ordered
us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT solicit grievances, during “tailgate” or
other meetings, from our employees in order to interfere
with their desire for union representation.
WE WILL NOT give warnings to our employees in-
tended to interfere with their activity for and on behalf of
fellow employees or because the employee is believed to
be a union activist.
WE WILL NOT terminate employees to retaliate
against them because of the outcome of a representation
election or to undermine the validity of that election.
WE WILL NOT suspend employees because of their
union activities.
WE WILL NOT refuse to accept the unconditional offer
of unfair labor practice strikers to return to work.
WE WILL NOT ask the International Union of Operat-
ing Engineers, Local Union No. 3, AFL–CIO to withdraw
any unfair labor practice charges it filed on behalf of em-
ployees as a condition of discussing the return of unfair
labor practice strikers.

1 I agree with the judge and my colleagues that the Respondent
unlawfully reassigned Alice Keyes. I do so only because I find that the
General Counsel established a prima facie case and Respondent failed
to show that the reassignment comported with the business reasons
cited by Respondent. Although Respondent had a valid business reason
for removing her from the position, which she held, it had no such
reason for assigning her where it did. I find that the Respondent chose
to isolate Keyes from other employees without establishing a valid
business reason for placing her where it did. In view of the above, I
would not require the Respondent to restore her to her former position.
In my view, she could lawfully be placed elsewhere if that were done
for valid business reasons.
WE WILL NOT isolate any employees so that they can-
not engage in activity protected by Section 7 of the Act.
WE WILL NOT assign union activists to unnecessary
tasks or tasks which unreasonably risk injury, such as
manually pulling nails from used lumber, as a device for
getting rid of such employees.
WE WILL NOT breach our duty to bargain in good
faith with the certified union, the International Union of
Operating Engineers, Local Union No. 3, AFL–CIO, by
making unilateral changes which affect our employees’
wages, hours, or terms and conditions of employment.
WE WILL NOT bypass the International Union of Op-
erating Engineers, Local Union No. 3, AFL–CIO, the cer-
tified Union, or deal directly with our employees concern-
ing wages, hours, or terms and conditions of employment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the warning given to Alice Keyes on
August 29, 1997.
WE WILL make whole Juan Campos, Luis Cassillas,
Rigoberto Contreras, Lazaro Gomez, Imelda Gonzalez,
Carlos Guzman, Martha Herrejon, Ricardo Ramirez, Luis
Rodriguez, Veronica Rodriguez, and Beatriz Saavedra,
with interest, for their illegal discharge on October 1,
1997.
WE WILL make whole Olga Jara and Alice Keyes for
their illegal suspension, which began November 28, 1997,
with interest.
WE WILL offer Alice Keyes, at her request, reinstate-
ment to her former position on the main sorting line, if and
when she is released by her doctor to return to her sorting
duties, consistent with the requirements of the Americans
with Disabilities Act and other applicable statutes and WE
WILL make Alice Keyes whole for any loss of pay and
benefits she may have suffered as a result of the unlawful
reassignment.
WE WILL make whole the unfair labor practice strik-
ers, with interest, for work lost as a result of our failure to
reinstate them promptly on December 4, 1997.
WE WILL rescind the changes in working conditions
we made unilaterally and without notifying the Interna-
tional Union of Operating Engineers, Local Union No. 3,
AFL–CIO.
WE WILL make whole any employee for benefits lost
as a result of the unlawful unilateral changes.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the unlawful warn-
ings of Alice Keyes, suspensions of Alice Keyes and Olga
Jara, and illegal discharges of Juan Campos, Luis Cassil-
las, Rigoberto Contreras, Lazaro Gomez, Imelda Gon-
NORTECH WASTE 559
zalez, Carlos Guzman, Martha Herrejon, Ricardo Ramirez,
Luis Rodriguez, Veronica Rodriguez, and Beatriz
Saavedra, and notify the affected employees in writing that
this has been done and that the discipline will not be used
against them in any way.
NORTECH WASTE

Shelley Brenner, Esq., for the General Counsel.
Mark D. Jordan, Esq. (Bernheim & Hicks), of Santa Rosa, Cali-
fornia, for Respondent.
David A. Rosenfeld and Matthew J. Gaugher, Esqs. (Van Bourg,
Weinberg, Roger & Rosenfeld), of Oakland, California, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Sacramento, California, on June 16–19, 1998, pursu-
ant to a consolidated complaint issued by the Regional Director
for Region 20 of the National Labor Relations Board on January
30, 1998. The consolidated complaint is based on unfair labor
practice charges originally filed by Operating Engineers Local 3,
International Union of Operating Engineers, AFL–CIO on Octo-
ber 3, 1997, March 24 and April 22, 1998, although some were
subsequently amended. The consolidated complaint alleges that
Respondent Nortech Waste has violated Section 8(a)(1), (2),1 (3),
(4), and (5) of the National Labor Relations Act (NLRA) in a
variety of ways. Moreover, paragraphs 11 and 14 of the com-
plaint underwent some amendment at the hearing. Respondent
denies the commission of any unfair labor practices.
Issues
The case is concerned with the conduct of this Respondent as
it reacted to a successful union organizing campaign in the fall of
1997 through March 1998. On September 24, 1997, a represen-
tation election was conducted which the Union won; it was sub-
sequently certified as the Section 9(a) exclusive collective-
bargaining representative of the unit employees. Prior to the
election it is alleged to have violated the employees’ Section 7
rights, by instituting weekly meetings where it solicited griev-
ances and made implied promises designed to dissuade employ-
ees from union representation. After the election it is alleged to
have committed large numbers of violations, all seeming to the
General Counsel to be reprisals for having selected the Union as
their representative.
These unfair labor practices include allegations that organizing
leaders Alice Keyes and Olga Jara were suspended, that Keyes
was unlawfully given a warning and subsequently given more
onerous duties, that breaches of the bargaining obligation oc-
curred such as direct dealing (grievance solicitation) and unilat-
eral changes, including layoffs (also separately alleged as an
8(a)(3) violation), failing to bargain over layoff procedures, an
allegedly unlawful refusal to promptly reinstate putative unfair
labor practice strikers, and making a proposal to bring back the
strikers which the General Counsel asserts, in violation of Section
8(a)(4), required the Union to withdraw its unfair labor practice
charges as a condition for their return.2

1 In her brief, counsel for the General Counsel has moved to with-
draw the 8(a)(2) allegation. That motion is granted as the alleged ille-
gal assistance to the Nortech Employees Association occurred with
concurrence of the Charging Party.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and Respondent I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation, which operates a waste recycling
facility in Roseville, California. In the course of that business, it
annually provides services valued in excess of $50,000 directly to
other business entities each of which meet the applicable Board
standards for the assertion of jurisdiction on a direct basis. Re-
spondent therefore admits, and I find it to be, an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It also admits the Union is a labor organization
within the meaning of Section 2(5) of the Act and I so find.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Western Placer County Waste Management Authority
owns a landfill near Roseville. Respondent has leased from the
Authority a recently built recycling plant, which is contiguous to
the landfill. The purpose of the plant is to extract recyclable
material and sell it on the open market. To accomplish this pur-
pose it runs two types of sorting lines. The one that requires the
most workers is the garbage line in which all types of refuse may
be found. The second, much smaller, is “green waste” line,
which consists of yard and landscape clippings, including logs
and used lumber.
The waste is brought into the facility and placed on the dump
floor. From there it is placed on the sorting lines, which are con-
veyor belts. Sorters then manually pick recyclable items off the
lines and place them in the appropriate bin or “hole.” Waste not
deemed appropriate for recycling is sent to the landfill. There are
roughly 45–55 sorters in the main operation, while the green
waste line normally has only four. The green waste sorters re-
move material, which cannot be chipped or composted.
In addition to the sorters, Respondent employs at least two
drivers; about six fork lift drivers; around six mechanics, some of
whom are helpers and others of whom are welders; office cleri-
cals; and a management staff of supervisors and team leaders.
The managers include Jerry Jackson, the general manager; an
assistant general manager, Larry Buckle (whose first day of work
was September 22, 1997, only 2 days before the NLRB election);
Supervisor Bill Thornbirg; Lilia Clement, a sorter team leader;
and Carl Speaker, an assistant sorter team leader. Stan Nader is
the supervisor of the green waste line. The Company operates
the sorting lines during the day from 7 a.m. to 3:30 p.m. It also
2 The incidents occurred during a period covering the summer of
1997 through the spring of 1998. Par. 12 of the complaint erroneously
refers to dates in 1998, an obvious typographical error. It should have
been 1997. No party claims prejudice from the error and the matter
was properly litigated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
operates a swing shift in the afternoon and evening where main-
tenance work is performed.
The Union had attempted to organize the facility in 1996 but
had failed. In July 1997, Keyes, Jara, and other sorters began
soliciting union authorization cards to support a second organiz-
ing effort. Signs were posted on the employee bulletin board
about having union organizing meetings at her home. Union
officials came to her home, where they met twice with as many
as 30 employees. Keyes did no soliciting at the plant because she
had recently undergone some surgery and was off work during
this phase. As a result, Jara and fellow employee Angela Chavez
were the principal solicitors. The cards were given to Keyes who
turned them in to the Union. According to Keyes, the main issue
was safety on the job.
Election Petition; March on the Boss
According to Thomas R. “Bob” Miller, the Union’s director of
organizing, in late July or early August, the Union both filed an
election petition with the Board as well as a demand for recogni-
tion. When Respondent did not reply, on August 5, it held its
first demonstration, known as the “March on the Boss.” At 11
a.m. that day, lunch hour, Miller, together with two other union
representatives and approximately 50 employees, including Jara
and Keyes,3 gathered in front of the main office and went into the
foyer demanding to see Jackson. Eventually Jackson appeared
and Frank Herrera, a union district representative from Marys-
ville, asked Jackson for recognition. Jackson at first refused to
meet with anybody but the union officials. Miller describes what
happened next:

He [Jackson] refused to speak with us in front of all the
employees. He threatened to call the police, which he did,
he threatened to have us forcibly removed from the prem-
ises. We asked him if he would give us recognition and he
refused. And we asked him why and he did not answer that
question. And Frank Herrera presented him with a list of
safety demands which he refused to address. He also said,
“I don’t need you guys. We don’t need you guys. Nobody
needs you guys.” And he also said, “Let me inform you we
already have an internal union started.”

Herrera testified that he tried to read the list of safety issues to
Jackson, but Jackson walked away. He also tried to deliver it to
another company official, but had no luck. There were about 30
copies of the list of safety demands and many were given out that
day. Eventually, the police arrived, and the union officials issued
the employees union pins and stickers which many of the em-
ployees put on.
B. Jackson’s Response
On August 6, the day after the March on the Boss, Jackson
called for a meeting of the entire staff, except that it was to be
broken into four small meetings. Keyes, now the recognized
leader of the employees, told Clement that the employees wanted
one big meeting. Clement agreed to transmit that to Jackson, and
returned a short while later saying that the meetings had been
canceled. Three days later, on August 8, Respondent initiated

3 Keyes had come back to work on July 28, even though not at full
strength.
what it calls “tailgate” meetings that were thereafter held every
Friday. The General Counsel asserts that these types of meetings
are “new.” Jackson asserts they are not, saying they had the
same purpose as the safety meetings that had been held monthly
from September 1996 until February 1997.
At the first “tailgate” meeting the speakers were team leader
Lilia Clement and her assistant, Carl Speaker, rather than the
safety officer, Tim Willette, who had conducted the safety meet-
ings. Respondent concedes both Clement and Speaker are 2(11)
supervisors and Respondent’s agents within the meaning of Sec-
tion 2(13) of the Act. Keyes reports that Speaker advised that the
purpose of the meeting was to talk about problems, safety or any
other issues which employees wanted to bring up. Both Clement
and Speaker took notes.
Keyes recalls that one complaint was that the pallets on which
the employees were obliged to stand on were broken and danger-
ous. A few days later new pallets were brought in. At least one
of the women complained that there was insufficient notice given
for mandatory Saturday work. Apparently notice was given so
late on Fridays that it was difficult to make child care arrange-
ments. The practice was modified a few days later. One com-
plained about being whistled at by Clement as if he were a dog.
She apologized and said she wouldn’t do it any more.
Subsequent tailgate meetings were also conducted in this vein.
It is clear that they are quite unlike the safety meetings. They
were held four times more frequently and were not focused solely
on safety as Jackson says Willette had. Clearly Jackson is incor-
rect in his assertion that the “tailgate” meetings served no differ-
ent function than the monthly safety meetings conducted by the
safety officer. I think it is clear that the format of these meetings
was designed, instead, to address those problems, which had
caused the employees to go to the Union. Their purpose was to
try to deter employees from seeking union representation by
soliciting complaints so they could be resolved. Such an effort
clearly violates Section 8(a)(1) of the Act. Heartland of Lansing
Nursing Home, 307 NLRB 152, 156 (1992); Varco, Inc., 216
NLRB 1 (1974); and Reliance Electric, 191 NLRB 44, 46 (1971).
C. August 29 Warning to Keyes
Keyes, as previously noted, had returned to work on July 28
after her surgery. The doctor’s slip limited her to 8 hours work
per day. Although, as noted above, the sorters’ normal hours are
from 7 a.m. to 3:30 p.m., for reasons not clear in the record,
Keyes was initially assigned to a slightly earlier shift, 6:30 a.m.
to 3 p.m. Thus, when the tailgate meetings began at 3 p.m.,
unlike most of the sorters, she had completed an 8-hour day.
Under Respondent’s policy, and perhaps State law in effect when
Respondent commenced business, employees who worked more
than an 8-hour day were entitled to the overtime rate, time and a
half.
On August 27 Clement advised Keyes that supervisor Thorn-
birg had directed her to change Keyes’s hours to be the same as
the other sorters, 7 a.m. to 6:30 p.m. Clement’s explanation re-
garding overtime made no sense to Keyes, and I think it is likely
that Clement did not understand it very well herself, at least if
one accepts Keyes’s version. Keyes later asked Speaker about it,
but he knew even less. As a result, she continued to complain,
NORTECH WASTE 561
asserting that it was a retaliation for her union activities.4 This
led to a meeting on August 29 with Thornbirg, Clement, and
Speaker. Keyes acknowledges that she approached the meeting
with less than an equable manner. She admits sarcastically say-
ing to Thornbirg, “Well, it’s nice to meet my supervisor after
being back a month.” (Thornbirg had been a mechanic when she
went on medical leave, and had been appointed supervisor during
her absence.)
During the meeting Thornbirg not only explained his reasons
for the change, he first referred to her doctor’s note limiting her
to an 8-hour day and then gave her a written memo. (GC Exh.
11). In its entirety the memo says:

Nortech Waste’s regular working hours for the Process-
ing Department are Monday through Friday 7:00 a.m. to
3:30 p.m.
Since you are limited to working only 8 hours per day
because of your medical condition, I would prefer you work
the above hours so you may attend any meeting that we
schedule at 3:00 p.m.

After that occurred, according to Keyes, both Clement and
Speaker suddenly accused her of intimidating them and being
insubordinate. Keyes asserted that she’d never been disrespectful
to them, explaining that if she sometimes used a loud voice it was
because she was partially deaf and thought she wasn’t being
heard. She says Thornbirg “ordered” Speaker to write Keyes up
for insubordination. She also says that as they left Thornbirg’s
office, either Clement or Speaker told her, “We’d appreciate it if
you kept your comments to yourself at the tailgate meetings and
let other people speak. Keep your opinions to yourself.” That
afternoon Keyes, subdued, said nothing at that day’s tailgate
meeting.
After the meeting, Speaker gave her a warning (GC Exh. 16)
citing rudeness and insubordination. Attached to it was a memo
better explaining the overtime issue, but nothing in the warning
cited any instance of rudeness or insubordination, only referring
to the fact that Keyes had argued and disagreed with the change
in hours and in frustration said she would have her lawyer take
care of it from there.
Neither Thornbirg nor Speaker testified at the hearing and
Clement’s testimony was limited to another issue. Even so, I am
able to agree with the General Counsel’s allegations only in part.
I find no warrant to conclude that Respondent changed Keyes’s
hours for any reason but a desire to comply with the 8 hour doc-
tor-imposed limit and at the same time avoid paying half an
hour’s overtime on Friday for attending a meeting, where that
cost could be avoided simply by moving Keyes’ starting time to
the same time as everyone else. There is no evidence, except
Keyes’ suspicion, that Thornbirg’s motive here was unlawful.
This allegation should be dismissed.
However, with respect to the warning which Keyes says was
“ordered” by Thornbirg, I do find a violation. If Thornbirg did

4 In her Board affidavit, however, Keyes seems to show a clear un-
derstanding of the reasons given: “Around August 27th, 1997, Lily
informed me that the company was changing my hours from 7 [a.m.]—
to 3:30 p.m. beginning the next day so I could attend any staff meetings
without being paid overtime.”
authorize it, however, it was probably after having heard her
introductory sarcasm. In that sense, he was undoubtedly less
inclined to accept her denial of the Clement-Speaker allegations.
He certainly was inclined to back them up in any event. The
problem is, however, that the only evidence to support the issu-
ance of such a warning is nonexistent. Nothing in the warning
slip describes what Keyes did to warrant it. A mere claim that
someone is rude or insubordinate does not make it so. In the
space on the form for the description of the incident, Speaker
only referred to the attached statement. Nothing in that statement
details what about the arguing, if anything, was regarded as in-
subordinate. There is no proof that the argument exceeded the
bounds of proper behavior. Therefore, I must find that there were
no grounds to reach such a conclusion.
The only remaining reason for the warning is the undenied
one, that both Clement and Speaker wanted her to stop express-
ing her opinions in the tailgate meetings. At those meetings, of
course, everyone, Clement and Speaker included, knew she was
the employee leader, knew she was the chief union organizer and
knew that her opinions carried weight with the employees. In
fact she was often asked by some of the Spanish speakers to pre-
sent their views on matters. Those employees had difficulty
understanding the call-in rule for illnesses as well as the vacation
pay rules; at least one complained about the way Clement ad-
dressed him. Keyes had spoken up on most of these issues.
Rather obviously, Clement and Speaker wanted her to cease
playing that role so they could get on with their (unlawful) job of
soliciting employee grievances to undermine the Union’s orga-
nizing effort. Keyes was perceived as a threat to that purpose and
the warning went hand-in-hand with the demand that she keep
quiet during the tailgate meetings. It was a coordinated effort to
shut her up.
Since Keyes was clearly acting on behalf of the entire group
when she spoke at the tailgate meetings, the attempt to silence her
violated Section 8(a)(1) as it interfered with, restrained, and co-
erced her and others in their attempt to concertedly mutually aid
and protect one another. Jennie-O Foods, 301 NLRB 305
(1991). The warning also violated Section 8(a)(3) as it affected
her tenure of employment. Litton Microwave Cooking Products,
300 NLRB 324, 325 (1990).
D. The Representation Election; Aftermath
On September 24, 1997, the Board conducted a representation
election pursuant to the petition, which had been filed in July.
The Union won the election, but on October 1, Respondent filed
objections. Specifically, one of those objections asserted that the
election had been unfair because 19 of the employees who had
voted who were ineligible to work in the United States due to
their immigration status. According to Respondent the election
outcome had been distorted and did not reflect the true senti-
ments of a majority of the bargaining unit. On that day, it said, it
had terminated those 19 employees (actually only 11 employees)
because it had discovered that their claim of eligibility to work in
the United States was flawed.
Eight days later, on October 9, Respondent reversed its field
and withdrew the objections. That same day, the Board certified
the Union as the Section 9(a) exclusive collective-bargaining
representative of Respondent’s employees in the voting unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
While the certification itself is not under challenge, two types
of complaint allegations are presented resulting from the Union’s
majority status. The first type is the apparent layoff or discharge
of the employees on October 1. The second involves breaches of
the obligation to collectively bargain, such as bypassing the bar-
gaining representative or making unilateral changes without first
bargaining with the Union.
Respondent’s Invocation of Immigration Duties as an Excuse to
Invalidate the Election
Respondent’s general manager, Jackson, testified that shortly
after the Union had won the election, some displeased employees
told him the election had been unfair because of the number of
“illegal aliens” who had vote.5 He advised the employees that he
was unaware of any illegals and even if there were any, he could
take no steps until he found out who they were. He would not go
on a fishing expedition. Shortly thereafter, he says, he found on
his desk a paper with a handwritten list of employees with His-
panic surnames. He concluded that the paper named the illegal
aliens in Respondent’s employ. The list has since disappeared.
He immediately spoke to Wendy Swinson, an accounts pay-
able clerk who normally helped with the I–9 documentation. He
showed her the list and asked her to pull some of the files. He
says he determined that the very first one he pulled had a suspi-
cious social security number. Later, according to Sally Punkar,
the human resources director (who never saw the list), she and
Jackson went over some of the files to demonstrate that the pa-
perwork was entirely in order. Whatever their concerns may or
may not have been, Jackson directed Swinford to contact the
Immigration and Naturalization Service to find out the appropri-
ate procedures to follow. The INS official advised them of cer-
tain number sequence ranges on alien registration forms, which
were presumptively valid. A review of the I–9 forms with those
ranges in mind, led Jackson to the conclusion that eleven em-
ployees were likely to have been aliens not authorized to be em-
ployed in the United States.6 Jackson says the INS advice was to
confront the employees with this information and tell them to go
to the INS office and get their paperwork “squared away.”
On Wednesday, October 1, Punkar called the 11 employees to
a meeting and told them, through a translator, that they had to
contact the INS immediately and that on Friday, October 3, they
should let her know what process was taking place. In the mean-
time, they could not work.
Respondent, of course, had not discussed with the Union what
it was doing nor what its procedures might be in the event that
employees might need assistance with the INS. The next day,
some of those 11 employees came to pick up their paychecks,
accompanied by the Union’s Bob Miller and a union staff attor-
ney named Mark Kyle. They attempted in vain to try to work out
the problem and the matter became heated. They left when Re-
spondent called the police.

5 The employees Jackson listed were Luis Vasquez, Bill Heidbreder,
Gary Allen, and perhaps Chris Mann.
6 Those individuals were: Juan Campos, Luis Casillas, Rigoberto
Contreras, Lazaro Gomez, Imelda Gonzalez, Carlos Guzman, Martha
Herrejon, Ricardo Ramirez, Luis Rodriguez, Veronica Rodriguez, and
Beatriz Saavedra.
On October 7, Miller met with Jackson again. According to
Miller, this meeting was much calmer. They had a discussion
about the matter and Miller suggested that if the 11 employees
were reinstated with backpay that the Union would withdraw its
unfair labor practice charges on the subject. Miller says Jackson
opined that perhaps he had been given some erroneous legal
advice about the entire INS matter and said he would get back to
Miller about his proposal. Miller recalls Jackson saying that the
only reason the Union had won the election was because Re-
spondent hadn’t fought and what had really angered him was the
“ungentlemanly” way the Union had conducted itself during the
March on the Boss.
Two days later, Respondent withdrew its objections to the
election. It is unclear whether any employee was actually dis-
charged during this incident. No affected employee testified, yet
some of the employees’ October 7 paychecks were marked “final
check,” with the last day of work being shown as October 1.
Even so, both Jackson and Punkar testified nobody was dis-
charged. However, on October 8 and 10, Respondent wrote let-
ters, first in English, then in Spanish, to the 11 employees notify-
ing them that they could return to work on October 14. The let-
ters asserted that they were doing so because of unclear INS rules
and advised them to notify Punkar by October 13, whether they
planned to return. It appears to me that the letters qualify as an
admission of party opponent that the employees were “dis-
charged.”
Moreover, those discharges would appear to rather easily fall
into the category of a violation of Section 8(a)(3). Respondent
was clearly looking for a way to undermine the validity of the
NLRB election and chose an Immigration route to do it. Thus,
even though Respondent has an obligation imposed on it by law
to maintain a work force which is eligible to work in the United
States, as mandated by the Immigration Reform and Control Act
of 1986, it may not use that law, or any law to shield activity
which is discriminatory under another statute such as the NLRA.
The real reason for its invocation of IRCA here was to look for a
way to set aside the election and thereby avoid dealing with the
Union. Thus Respondent’s treatment of these eleven employees
violated Section 8(a)(3).
Respondent nonetheless argues that the individuals were not
discharged despite the notes on the timecards and the subsequent
letters. Section 8(a)(3) of the Act, quoted below in pertinent
part,7 prohibits discrimination relating to the “tenure” of an em-
ployee and is not limited to discharges. Rather clearly Respon-
dent’s treatment of these 11 employees raises a “tenure” issue. If
employees lost pay during this time, it was for a reason prohib-
ited by the Act, thereby calling for the invocation of Section
8(a)(3). It is certainly sufficient to warrant the remedial authority
of Section 10(c). If, during the compliance stage it is determined
that no employee lost any pay, then so be it, but such a finding
would not affect the conclusion that that their “tenure” had been
affected by the conduct. It seems to me, however, based on the
language of the recall letters, that these individuals did lose time
7 Sec. 8(a)(3): “It shall be an unfair labor practice for an employer
—by discrimination in regard to hire or tenure of employment or any
term and condition of employment to encourage or discourage union
membership in any labor organization.”
NORTECH WASTE 563
and connected wages; otherwise there would have been no reason
to call them back to work.
What actually happened seems rather clear. Respondent, na-
ively I think, believed it could avoid the consequences of the
Union’s winning the election by proving it had unwittingly em-
ployed persons ineligible to work in the United States. Jackson
thought that if persons were not permitted employment, they
would not be permitted to vote even if they had become em-
ployed contrary to law. That naiveté did not take into account the
fact that the NLRA’s definition of “employee” does not concern
itself with matters under the Immigration and Nationality Act and
its amendments. If a person is an employee under the NLRA, he
or she is entitled to its protections and to exercise the rights it
grants, including the right to vote in a representation election.
Sure Tan, Inc. v. NLRB, 467 U.S. 883 (1984).
At some point that logic was presented to Jackson and he real-
ized Respondent could not sustain its initial effort. As a result he
attempted to backtrack. But the damage was done.
E. Keyes and Jara’s Suspensions
A few weeks after the certification of representative was is-
sued in favor of the Union, the collective-bargaining process
began. The first meeting was on November 20. Although the
union team was led by the union officials themselves, they were
assisted by a committee of employees, including Alice Keyes,
Antonio Mendez, and John Heneghan. The Union’s policy is to
reimburse employees for lost pay for time spent in negotiations,
and to document such expenditures it asks employees to fill out a
“timecard” to demonstrate the time spent and the purpose of the
payment. In the early morning of November 21, Union Business
Agent and Organizer Francis “Scooter” Gentry went to the com-
pany parking lot to obtain the signatures of the three committee
members on such cards. He successfully obtained signatures
from Keyes, Mendez, and Heneghan. That incident became part
of a later scenario involving an accusation that Jara had punched
Keyes’ company timecard, contrary to a company rule.
Later, at the end of the day on November 21, Respondent con-
ducted a tailgate meeting. A few days before that meeting was
conducted, Keyes, in her role as spokesperson for the Spanish
speaking employees, had been asked to by two female employees
(Ubias and Gonzalez) to look into why their requests to be seen
by the company doctor were being ignored while male employ-
ees were promptly seen. At the meeting she raised that com-
plaint. Both Clement and Speaker claimed ignorance; Jara
pointed out that it was Clement’s responsibility to track the injury
reports and Gonzalez reminded Clement that a report had been
made which had been deflected by a claim of a lack of
transportation. In addition, Speaker, to whom at least one of the
incidents had been reported, had neglected to follow through. As
a result both he and Clement found themselves embarrassed and
on the defensive. The meeting was heated and finally ended with
Speaker agreeing to take the two employees to the doctor the next
day, a Saturday.
On the following Monday, Human Resources Manager Punkar
called Keyes and Jara individually to the office and told them that
they were under investigation for timecard abuse. She told them
that the previous Friday, November 21, Jara had been seen
punching Keyes’ timecard and putting it into the rack. She gave
them a copy of the policy (R. Exh. 4) and advised that an investi-
gation was underway.” She asked each of them to submit a writ-
ten version of what had happened.
The policy, found in a welcome letter to new employees, de-
scribes the computerized KRONOS time tracking system, but
counsels new hires that “it can’t prevent an employee from clock-
ing in for another who is either late for work or absent for the
day. In this regard, it is necessary that you understand the seri-
ousness of such an action. The consequence for anyone found
falsifying company records will be termination of employment.
. . . There will be no exceptions to this company policy.”
A great deal of evidence was presented regarding the incident:
who saw what, where people were at the time, whether the wit-
nesses held an antiunion bias against Keyes or Jara, whether the
investigation conducted by Assistant Manager Buckle was prede-
termined and whether union official Gentry’s inability to cor-
roborate Keyes was meaningful. The upshot of the Company’s
investigation was its conclusion, first (on November 28) to sus-
pend the two pending further investigation and finally culminat-
ing in converting it to a 2-week suspension without pay.
I find it unnecessary to address the various versions of the
facts surrounding the incident. They are confused and subject to
a wide range of possible credibility findings, none of which is
entirely satisfactory. Instead, I shall accept the findings of fact
most favorable to Respondent but conclude that the rule was not,
and could not reasonably have been interpreted to have been
violated. Since the rule was not violated, it follows that the only
reason for the suspensions which were levied on Keyes and Jara
were their union activities and/or their concerted protected activi-
ties during the November 21 tailgate meeting.
The version of the facts accepted by General Manager Jackson
when he determined to suspend Keyes and Jara for supposedly
violating the rule is: Employee Heidbreder observed Jara placing
two punched timecards in the rack, her own and that belonging to
Keyes. According to Heidbreder, Keyes was still out in the park-
ing lot talking with Gentry at the time the cards were simultane-
ously punched at 6:53 a.m. That distance was such that Keyes
could not have walked to the timeclock in the same minute.
Even so, work did not start until 7 a.m., and the evidence shows
that both women were on the floor at that time and worked as
scheduled. Respondent acknowledges that no time was stolen;
indeed that is the explanation for not firing the employees; it was
considered a mitigating circumstance.
Now, while common sense may tell us that employees are not
supposed to punch in for one another and that an employee may
not help another employee steal time, the rule these employees
supposedly violated here does not bar what Respondent says they
did. First, it only bars an employee from punching in for another
employee who is late or absent. It does not bar an employee
from punching in for an employee who is not stealing time
through falsely claiming to be present. This card was punched 7
minutes before starting time and both were on the floor at starting
time. Indeed, it would have been easy for Keyes to get to the
sorting floor in that amount of time whether she was in the lobby
next to the timeclock or whether she was in the parking lot at
6:53 a.m.
Second, the rule prohibits falsifying company records. Even if
Jara punched Keyes’s card, I am at a loss as to what company
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
record was falsified. The only record that mattered was whether
an employee began work at 7 a.m. or not. Assuming Jara did
punch Keyes’ card, the record is nonetheless accurate. Both
began work when they should have.
Furthermore, it is not as if my analysis is in the face of a com-
pany enforcement policy to the contrary. There is evidence in the
record that other employees have done the same thing with man-
agement’s knowledge without any punishment having been ren-
dered. Both Clement and Willette had reported similar, and re-
peated, circumstances involving employees Dwinger and Tapia
in the past. Clement once told both Keyes and Jara that she was
tired of reporting the frequency that such incidents occurred be-
cause nothing was ever done about it. It is my conclusion that
nothing was done about those incidents because they were
deemed to be unimportant and not a violation of the rule, for it is
likely that no time was stolen there either. Both these individuals
later became supervisors.
Thus, I am left with the fact that the rule did not prohibit what
Jara and Keyes are accused of doing and that Respondent had not
interpreted the rule in that fashion until Jara was reported by
Heidbreder. That circumstance raises the question of why Re-
spondent would treat Jara and Keyes as they did. If they had
committed no breach of the rule, why were they punished?
There is, it seems to me, only one possible answer—they were
singled out because of their union organizing, Keyes’ being on
the negotiating committee and because they engaged in protected
activity in support of their fellows during the tailgate meetings,
particularly the previous Friday. That being the case, the General
Counsel has made out violations of both Section 8(a)(1) and
Section 8(a)(3) with respect to the suspensions of Keyes and Jara.
F. The Union Protests the Keyes/Jara Suspensions
By letter faxed to Jackson on December 1, the Union’s Bob
Miller asserted that the suspensions of Keyes and Jara was a
retaliation for their union activities and was an unfair labor prac-
tice. He demanded their immediate reinstatement. Shortly there-
after, the union committee decided to hold a meeting with the
employees to decide what to do. A meeting was arranged for
6:30 a.m. before work on December 4. Four union officials at-
tended, including District Representative Frank Herrera, who led
the meeting. The employees decided that they would not go to
work until they could speak to Jackson about reinstating the two.
They immediately began picketing the facility with signs de-
manding “Reinstate Alice and Olga.”
The first manager on the scene was Buckle. He advised that
Jackson would not be in until later and professed to have no
knowledge of how Respondent was treating the two. When Jack-
son finally arrived, both Miller and Herrera attempted to speak to
him. Jackson put them off for a while. During that delay, he
called a temporary employment agency called Labor Ready and
asked for 20 people. He learned that they could supply him with
only 15.
Jackson finally met with the union officials who asserted that
the suspensions were unlawful and demanded that Jackson rein-
state the two. Jackson replied that he would not do so, “they had
committed serious violations company rules and were lucky they
hadn’t been fired.”
Herrera describes what happened after Miller asked Jackson to
reinstate Keyes and Jara:

[HERRERA] And he [JACKSON] said, “Absolutely
not.”
Q. [By MS. BRENNER]. Okay. Did you respond to
that?
A. Yeah. And I says, “Okay. If that’s your final word
we’ll go back to work right now. We’ll pull the pickets and
we’ll go back to work today.”
Q. All right. And did Jackson reply to that, Mr. Jack-
son?
A. He said, “Absolutely not.” He says, “You folks think
you can pull the—pull these job actions on us anytime you
want? You’re going to have to pay the consequences and
there’s no way they’re going back to work today.”
Q. Okay. And then—so, what did—did Jackson re-
spond to that?
A. Then Bob—then Bob said, you know, “Let me get
this straight now. We’ve indicated to you that we’re here to
protest the suspension of Alice and Olga. And you’ve indi-
cated to us—you’ve indicated to us that you are refusing to
put them back to work today.”
Q. Okay. Then what happened?
A. He kind of looked up in the air, hesitated for a while,
then he said—he stated, “If you,” he says, “If you can guar-
antee to me that you won’t pull anymore of these shenani-
gans and drop all the NLRB charges I might consider put-
ting them back to work today.”
Q. All right.
JUDGE KENNEDY: I might consider it?
THE WITNESS: I might consider it.
Q. By Ms. BRENNER: And was there any response
from the Union on this?
A. Well, he excused us.
Q. Well, did the Union accept that? He made the pro-
posal. What did the Union say?
A. Oh, that’s right. And then Bob stated—Bob stated,
“There’s no way we can guarantee that we’re no more—that
we’re not going to do anymore job actions and we’re not
about to drop the NLRB charge.”
Q. So, did Mr. Jackson—what did he say to that?
A. That’s when he excused us and he says, “Will you
gentlemen step out? I’ve got to make some phone calls. I’ll
get back to you.”
Q. All right. And then what happened?
A. We went back out to the lobby. The picketers were
still in the lobby. And Bib [sic] had told them everything
that had transpired in that meeting, the picketers and the
workers.
Q. Okay. And then what happened?
A. Well, we waited and we waited for them to come
back out and he told us to wait out in the lobby, so that’s
what we did.
Q. All right. And then what happened?
A. I don’t know. Ten minutes, 15 minutes, Jerry Jack-
son came back outside and invited us back in the office.
Q. Okay. And what happened then?
NORTECH WASTE 565
A. He told us, he said, “Hey, they’re not going back to
work today. No way.” He says, “If they’re here on time,
ready tomorrow, 7:00 a.m., they can go back to work.”

Jackson’s testimony varies only slightly. He says that he told
the Union that if it would “consider” dropping the unfair labor
practice charge he would “consider” taking a payroll hit from
Labor Ready and let the employees go to work. His use of the
word “consider” in that context seems equivocal at best. As
quoted above, Herrera puts Jackson’s use of the word in a differ-
ent context: “If you can guarantee to me that you won’t pull
anymore of these shenanigans and drop all the NLRB charges.[8]
I might consider putting them back to work today.”
Jackson’s phraseology suggests an attempt to negotiate a set-
tlement—under his view it was an opening gambit. (I’ll consider
this, if you’ll consider that.) Herrera’s recollection describes a
demand for capitulation in exchange for even “considering” al-
lowing the employees to go back to work.
Of the two versions, I think the more probable, based on de-
meanor and overall circumstance, is Herrera’s. Jackson refused
to meet with the union officials when he arrived at work, instead
immediately trying to obtain replacement workers. He was more
concerned with responding to the job action with power than he
was with determining what the Union’s intentions were. Had he
had the conversation before ordering the temps, and had it gone
the same way as it no doubt would have, the Union would have
requested that they all return in circumstances where the temps
had not been called. Thus, I believe Jackson was more interested
in exacerbating the circumstances than with trying to resolve
them. He wanted to put temporary replacements into play in
order to make the employees “pay the consequences” for their
action.
In general, of course, it is not unlawful to operate a business in
the face of a strike, even a strike to protest unfair labor practices.
Nevertheless, unfair labor practice strikers have greater rights to
reinstatement than do ordinary economic strikers. Mastro Plas-
tics Corp. v NLRB, 350 U.S. 270 (1956). The employer must
reinstate them promptly upon their having made an unconditional
offer to return and if it does not do so, backpay commences im-
mediately, allowing for a 5-day grace period unless there are
circumstances, which warrant the grace period being rendered
inapplicable. The grace period is longstanding, dating back to
1938. See Drug Package Co., 228 NLRB 108, 113–114 and
121–122 (1977),9 for a thoughtful discussion between a Board
majority favoring maintaining the grace period and a dissent
which wished to eliminate it. The colloquy recites the historical
development and need for the grace period, recognizing that
employers who have hired replacements in unfair labor practice
strikes need a reasonable amount of time to carry out administra-
tive details in the recall process.
In this case, the General Counsel relies on Herrera’s testimony
to argue that Respondent has forfeited its right to wait until the
next day (the grace period) before allowing the unfair labor prac-
tice strikers to return.

8 The original charge in Case 20–CA–28057 had been filed on Octo-
ber 2.
9 Enfd. in relevant part 570 F.2d 1340 (8th Cir. 1978).
The Board’s standard order regarding the reinstatement of un-
fair labor practice strikers includes: “The Board has found that
the 5-day period is a reasonable accommodation between the
interests of the employees in returning to work as quickly as
possible and the employer’s need to effectuate that return in an
orderly manner. Accordingly, if Respondent . . . has already
rejected, or hereafter rejects, unduly delays, or ignores any un-
conditional offer to return to work, or attaches unlawful condi-
tions to its offer of reinstatement, the 5-day period serves no
useful purpose and backpay will commence as of the uncondi-
tional offer to return to work.” Modern cases applying this rule
include, Drug Package, supra; Newport News Shipbuilding, 236
NLRB 1637 (1978), enfd. denied on other grounds 594 F.2d
1203 (8th Cir. 1979); National Car Rental Systems, 237 NLRB
172 (1978); Canterbury Villa, 273 NLRB 1196 (1984); McCor-
mick-Shires Millwork, 286 NLRB 754 (1987); National Football
League, 309 NLRB 78, 83 (1992); Grondorf, Black, Field & Co.,
318 NLRB 996 (1995); and La Corte ECM, Inc., 322 NLRB 137
(1996).
Counsel for the General Counsel argues that there are two rea-
sons why the grace period should be disallowed. First, she as-
serts that the proposal to withdraw the unfair labor practice
charge was an unlawful proposal under Section 8(a)(4) of the
Act, citing Amsterdam Wrecking & Salvage Co., 196 NLRB 113
(1972), enfd. 472 F.2d 153 (2d Cir. 1973). Second, she asserts
that putting conditions on returning unfair labor practice strikers
is also a ground for disallowing the grace period. Again, she
looks to the request that the charge be dropped. In addition,
Jackson added a second condition; he said he wanted a guarantee
that there would be no more job actions.
I start first with an observation made by the Supreme Court in
Mastro Plastics Corp. v. NLRB, supra. The Court rejected an
employer’s argument that a narrow reading of Section 13 of the
Act was appropriate.
Justice Burton, speaking for the Court, in looking at that provi-
sion said:

It is suggested that 13 of the Act, as amended, precludes
reliance by the Board upon the Act for support of its inter-
pretation of the strike-waiver clause. That section provides
that “Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or
impede or diminish in any way the right to strike, or to af-
fect the limitations or qualifications on that right.” 61 Stat.
151, 29 U.S.C. 163. On the basis of the above language, pe-
titioners claim that because the contract-waiver clause pro-
hibits all strikes of every nature, nothing in the Act may be
construed to affect the “limitations or qualifications” which
the contract thus places on that right. Such a claim assumes
the point at issue. The Board relies upon the context of the
contract and upon the language of the clause itself, rather
than upon the statute, to define the kind of strike that is
waived.
As a matter of fact, the initial provision in 13 that noth-
ing in the Act “shall be construed so as either to interfere
with or impede or diminish in any way the right to strike”
adds emphasis to the Board’s insistence upon preserving the
employees’ right to strike to protect their freedom of con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
certed action. Inasmuch as strikes against unfair labor prac-
tices are not anywhere specifically excepted from lawful
strikes, 13 adds emphasis to the congressional recognition of
their propriety. [350 U.S. 270, 283–284.]

Thus, the Court has expressly stated that the right to strike in
protest of an employer’s unfair labor practice is so strong that it
may not easily be considered waived, even in the face of a no-
strike clause. Indeed, it is one of the paramount rights employees
have to protect themselves and their rights under the Act. Section
13, in Justice Burton’s words, “adds emphasis” to the Congress’
recognition of the right.
If the right to strike is so strong then, and unfair labor practice
strikers have the right to return to work immediately on their
unconditional request to do so, what impact did Jackson’s words
have on that right? He put the employees’ very right to protec-
tion under the Act in play. He said, “in effect, if you give up
your right to have your unfair labor practice charges vindicated,
I’ll consider letting you come back to work.” He also said, in
effect, that they had to give up the right to strike in the future for
him to consider allowing them back.
These strikers had the right to be immediately reinstated.
When Jackson imposed these conditions on their right to rein-
statement, he was stripping them of rights guaranteed them by the
statute. See Brooks, Inc., 228 NLRB 1365 (1977), enfd. in rele-
vant part 593 F.2d 936 (10th Cir. 1979); Caterpillar, Inc., 322
NLRB 690 (1997), unrelated issue clarified 322 NLRB 920
(1997). In addition, if that condition deprived employees of their
right to access to the Board, it violated Section 8(a)(4) of the Act.
That section, of course, makes it unlawful “to discharge or oth-
erwise discriminate against an employee because he has filed
charges or given testimony under the Act.” See Trial Examiner
Josephine Klein’s remarks and holding in Amsterdam Wrecking
& Salvage, 196 NLRB 113, 115 (1972), and the cases cited
therein where the point was saliently made.
Rather clearly, then, Jackson did not give proper deference to
the employees when the Union unconditionally sought to put
them back to work. The conditions which he imposed, including
the unlawful one, leads only to the conclusion that Respondent is
entitled to no grace period. Instead these employees are entitled
to backpay from the time Miller asked that they be reinstated
until they returned to work the next day. That Jackson did not
recognize them as unfair labor practice strikers is simply irrele-
vant. His obligation was to accept them back on the spot without
conditions or make a truthful showing that administrative consid-
erations justified the need for the grace period. He did neither,
instead seeking to impose conditions, which would delay their
return.
G. Keyes’ Reassignment of January 28, 1998
Three weeks after she returned to work after having been
(unlawfully) suspended, Keyes’ assistant team leader, Carl
Speaker, told her that Assistant General Manager Larry Buckle
had given him instructions to tell her to speed up her work. She
reminded him that she was awaiting surgery and wouldn’t be able
to improve her speed until after she recovered from that proce-
dure. He seemed to remember her circumstances and apologized.
He later advised Buckle who was relatively new to the Company,
having arrived in late September 1997, of her situation.
Keyes’ health circumstances did present a problem to Respon-
dent. In October 1996 she had suffered an industrial injury to her
shoulder while on the sorting line. It was diagnosed as a shoulder
strain, elbow tendonitis, and left neck strain. She also developed
carpal tunnel syndrome in both hands and the consequent diffi-
culty of grabbing items from the line. She had been advised to
have surgery on both hands. In May 1997 she had surgery on her
left hand and shoulder, but decided to wait until her left side had
healed before undergoing surgery on the right side. When she
returned to work in late July, she was not at full strength both
because she still had not recovered from the surgery but also
because the right hand remained untreated. She returned some-
what against doctor’s orders, but with a medical restriction of no
more than 8 hours’ work. As of the time of the hearing, the sec-
ond procedure had yet to be approved by the industrial injury
insurance carrier.
From the time of her return until her reassignment in January
1998, a period of about 5 months, she was sometimes able to use
both hands, but was able to perform at only about 50 percent of
her preinjury production rate. She also wore removable splints to
prevent further aggravation of the conditions. Her physical limi-
tations were well known to her supervision, even if Buckle was
not initially familiar with it. After being advised of her circum-
stances, on January 5 Buckle called her to the office. He advised
that that she wasn’t meeting the daily quotas, and with her medi-
cal restrictions he had decided to move her off the sorting line.
She was to work the green waste line and when that line wasn’t
running to do outside cleanup. Keyes asserted that she was just
as fast with one hand as with two, but Buckle replied that wasn’t
the issue, that it would be best to assign her to work which she
could do at her own pace.
She protested that the green waste line was a problem because
she had asthma and was allergic to grass and that outside cleanup
involved a push broom, which could aggravate her hands and
wrists. He told her she would not have use the broom, only her
hands. This duty required the employee to work outside with a
wheeled trash container and to pick up wind-blown papers and
other debris, which collected in the parking lot, along the fence
line and other areas.
This combination of assignments produced some truly anoma-
lous results. In the winter the green waste line did not work fre-
quently so she was often outside in inclement weather working
with the wheeled cart on muddy grounds using her hands, fre-
quently bending to the ground to pick up items. She found that
difficult and obtained a broom, but was told not to use it. She
went for several months without a pickup device. She also says
that for about 3 months, ranging from 3 to 6 hours per day, Stan
Nader assigned her to manually pull nails (using two claw ham-
mers) from used lumber and to stack it. At some point she was
taken off the green waste line without explanation. At that point
another supervisor, Eddie Tapia, told her that when she wasn’t
pulling nails, he wanted her cleaning the vicinity. On one occa-
sion, others who were assigned to that task simply bent the nails
over; later she was told to remove the bent nails.
At the hearing, Buckle said that it was all a big mistake that the
customer who was buying the lumber didn’t care about the nails
because his equipment cut through the nails. He also asserted
that neither he nor the Company had assigned her or any em-
NORTECH WASTE 567
ployee to pull nails.10 Buckle’s testimony on the point borders on
the absurd. He claimed it all happened because someone was just
showing “initiative.” Eventually, the nail pulling became too
much for Keyes. She suffered a “bubble” in her elbow and, after
being seen by the occupational injury department of the Kaiser
Permanente medical center, was assigned to light duty at the
truck entrance, the job she was performing at the time of the
hearing.
The General Counsel asserts that beginning in January, when
Buckle reassigned her, Respondent violated Section 8(a)(1) by
assigning Keyes to more onerous duties. I certainly agree that the
duties were onerous, but it is a major jump to conclude that they
were “more” onerous. Respondent argues, effectively I think,
that there are no easy jobs within the plant. All are hard work,
dangerous and unpleasant. Each job has a drawback, whether it
is on one of the sorting lines or working outside doing cleanup.
I think Buckle’s initial decision to reassign her had a motive
other than to make her work more onerous. Keyes was mentally
tough and not a quitter. He knew that giving her another job
would not make her leave. He also knew she was not performing
at an efficient speed, a fact which she acknowledges. She could
have been left where she was, but she would not have met any
reasonable standard of production. The 5 months of convales-
cence had not seen any dramatic improvement in her physical
capability. Something needed to be done. The choices were not
good, but some had the advantage of isolating Keyes. Moving
her to the green waste line took her from the main sorting lines
and away from the employees she was seen as leading. Putting
her outside was even better. There she had no contact with any
employee. However, the likelihood of reinjury was just as great
at those locations as it was with leaving her where she was. Re-
spondent’s analysis of the comparative risks to her at each of the
locations was nonexistent. Thus, I do not believe the purpose of
moving her to the green waste/outside cleanup job was based on
reducing the risk of reinjury. I believe it was seen as a move to
isolate a principal union activist. In that sense the move suc-
ceeded entirely, because Keyes no longer knew what was hap-
pening and was unable to see her previous coworkers. She could
no longer claim actual knowledge of what was happening inside
the plant.
However, at some point a decision was made to take risks with
her health. She was directed for a 3-month period to pull nails,
an entirely unnecessary task. It was clearly make-work. It in-
volved hand and wrist strength, muscular usage which Respon-
dent knew full well was high risk to someone suffering from
carpal tunnel syndrome of both hands and who had had recent
shoulder surgery. Buckle’s explanation is simply unacceptable.
She was not assigned to that duty by accident. Someone ordered
her to do the work. If Buckle was as concerned about putting her

10 Buckle’s testimony:
A. [BUCKLE] I never assigned Alice Keyes to pull nails.
Q. [MS. BRENNER] Okay. When the Company assigned
Alice Keyes to pull the nails; is that a better way of stating it?
A. I don’t believe the Company ever assigned Alice Keyes to
pull nails.
Q. I see. All right. Ms. Keyes just went over on her own and
started pulling nails?
A. That’s my belief. Yes.
in tasks where she wouldn’t aggravate her physical conditions, he
would have taken far more care to prevent what happened. There
is little available in the way of a credible innocent explanation.
The only real conclusion which can be drawn is that once she had
been isolated, she was to be assigned work which would cause
her to physically break down. Once that occurred, Respondent
would not have to discharge her, she would be forced to leave on
disability and it would be rid of her.
I find, therefore, that Respondent assigned Keyes new duties
which were intended to isolate her from fellow employees so she
would be unable to carry out her union and employee leadership
role. That reassignment violates both Section 8(a)(1) and Section
8(a)(3) of the Act. Montgomery Ward, 290 NLRB 981 (1988);
and Manno Electric, 321 NLRB 278, 281 (1996). In addition,
directing her to perform an unnecessary task, pulling nails, in an
effort to cause her physical disability also violated Section
8(a)(1). American Ambulette, 312 NLRB 1166, 1169 (1993).
H. Alleged Breaches of the Bargaining Obligation
It will be recalled that the Union won the representation elec-
tion on September 24, 1997, and after Respondent’s objections
were withdrawn it was certified as the exclusive collective bar-
gaining representative of the unit employees. In that context
several incidents occurred which the General Counsel alleges
breached the statutory duty to bargain in good faith. That duty is
set forth in Section 8(d) of the Act which says in pertinent part:
“For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours and other terms
and conditions of employment, or the negotiation of an agree-
ment or any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if requested
by either party.” The Board, supported by the Supreme Court
has held that once a labor organization has become the demon-
strated representative of the employees, Section 8(d) prohibits the
employer from either dealing directly with its employees or from
making unilateral changes in wages, hours, and other terms and
conditions of employment. In this regard, the General Counsel’s
complaint contains several allegations of this sort.
1. Direct dealing
With respect to direct dealing, the facts have previously been
discussed with respect to the tailgate meetings which began on
August 8. I have previously found that the purpose of these
meetings was to improperly influence employees with respect to
their union feelings, sentiments and desires. They were in direct
response to the Union’s demand for recognition of August 5. In
the confrontation which took place that day, general manager
Jackson told the Union’s director of organizing Miller that there
was no need for a union, that Respondent was already starting its
own union. He said: “I don’t need you guys. We don’t need you
guys. Nobody needs you guys.” And he also said, “Let me in-
form you we already have an internal union started.” Three days
later, the tailgate meetings began and shortly thereafter, the
Nortech Employees Association appeared. At the tailgate meet-
ings supervision began soliciting grievances and complaints with
the purpose of remedying those which could be remedied. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
purpose was to derail the employees’ interest in the Charging
Party. I have found that effort violative of Section 8(a)(1).
However, after the Union won the election, the tailgate meet-
ings continued with the same type of inquiries regarding em-
ployee concerns. Grievances were solicited and efforts were
made to adjust them. Moreover, no union representatives were
invited. Rather simply, by continuing with the tailgate meetings
operating in that vein, Respondent gave no deference to the Un-
ion’s newly acquired status as the employee representative. It
was ignoring the Union and attempting to operate without it,
dealing directly with the employees instead. This is a classic case
of direct dealing in violation of Section 8(a)(5) and (1) of the Act.
Medo Photo Supply Corp. v. NLRB, 321 US 678, 683–684
(1944); and Laidlaw Transit, 318 NLRB 695, 701 (1995), and
cases cited.
2. The installation of surveillance cameras
When the building was constructed by the Waste Authority, it
was prewired for surveillance cameras. The Authority did not
install them, leaving that expense to the lessee, in this case, Re-
spondent. No firm decision to install them was made until after
the election. In January 1998 Respondent installed eight cam-
eras, all of which videotaped employees while they worked. Six
are on the sorting platform, one in the buy-back area and one in
the receiving area. They are all connected to monitors in
Buckle’s office. The asserted purpose is to review accidents and
safe work practices, according to Jackson, but he acknowledges
that they could be use to scrutinize employee performance, theft,
or personal misconduct.
At no time did Respondent advise the Union that it was going
to install the cameras and of course the Union has had no oppor-
tunity to discuss the cameras’ effects on the working conditions
of the employees. There is no doubt that the installation of this
equipment without first giving the Union an opportunity to bar-
gain over its usage, violated Section 8(a)(5) of the Act. Colgate-
Palmolive Co., 323 NLRB 515 (1997); Genesee Family Restau-
rant & Coney Island, 322 NLRB 219, 225 (1996), enfd. mem
129 F.3d 1264 (6th Cir. 1997). Respondent’s argument that it
was merely carrying out a long-term plan to install the cameras is
unpersuasive.
3. Replacement of safety equipment
Employees who work on the sorting lines wear a hard hat,
safety glasses, protective vest, and heavy rubber gloves with a
protective liner. Until March 8, 1998, these had all been com-
pany supplied. This equipment, particularly gloves, were re-
placed as necessary. If an employee asked for new gloves he or
she was invariably given a new pair. At one point, early in the
history of the tailgate meetings, Respondent restricted the policy
somewhat by making employees sign for the replacement equip-
ment. That became a bone of contention during one of the early
tailgate meetings. Employees also wear steel-toed safety shoes,
but it appears that the employees supply their own.
On March 2, 1998, Buckle issued a memo advising that sign-
ing for replacement safety equipment would no longer be suffi-
cient—an exchange program was being put into effect. From
then on, he said, in order to get replacements, employees would
have to bring the worn out equipment to their supervisor who
would then provide them with replacements. If the equipment
was lost, stolen, or left at home, the Company would no longer
replace it without charge. If the old equipment was not turned in,
it said the employees would be charged for the cost which would
be deducted from the employees’ paychecks. Moreover, em-
ployees were to begin putting their name on each piece of
equipment; if equipment was turned in for replacement which
was not marked with the employee’s name, it would not be re-
placed.
A few days later a “Personal Protective Equipment Price List”
was posted at the leads’ workstation. Gloves cost from $1 to
$3.50; safety glasses $6 (lens $4); and hard hats and vests, $10.
It is undisputed, however, that at least up to the time of the hear-
ing no employee had ever actually been charged for replacement
equipment nor had any pay deductions been levied.11
Again, this occurred without notice to the Union, the employee
representative. As it affected a term and condition of employ-
ment, as well as wages, Respondent should first have bargained
with the Union over the subject. It violated the precepts of good-
faith bargaining as set forth in NLRB v. Katz, 369 U.S. 736
(1961).
4. Sick leave policy
Respondent presented a document (R. Exh. 2), which it asserts
sets forth its leave policies and which was supposedly clarified by
a memorandum issued by General Manager Jackson on February
27, 1998. Respondent’s Exhibit 2 bears no date and is actually
headed “Medical Time Policy” but includes such matters as at-
tendance policy, vacation policy, and holidays. Keyes says she
has seen it before, recalling that Clement had handed it out at
some point. Jackson says a meeting was held concerning the
policy in April 1997. Indeed, there is language found in the vaca-
tion section which references the fact that some newly hired em-
ployees had negotiated their own vacation terms at the time they
were hired. One of the provisions in Respondent’s Exhibit 2 sets
forth a plan by which those individually negotiated terms were to
be dissolved in favor of the terms set forth in the policy, on dates
when the new hire reached the next level in the schedule set forth
there. That fact certainly leads to the conclusion that the policy
set forth in Respondent’s Exhibit 2 was not in place when Re-
spondent opened for business in 1996 and also for part of 1997.
Jackson’s testimony seems accurate enough.
That would certainly explain why employees were treated dif-
ferently at different times and why the ensuing confusion needed
to be “clarified,” if that is the proper term to describe what hap-
pened here.
The problem arose from Respondent’s practice of permitting
employees to take unpaid leave. For example Keyes, on two
occasions, had taken unpaid leave of several days with her super-
visor’s permission. In May 1996 she had taken several days off
when her son was getting married and in July 1997 she says she
was allowed unpaid leave to go camping. (The latter was during
her recovery period after the surgery, and she appeared uncertain
about the year. She may have meant 1996.) She says she took a
Thursday and a Friday off without pay.

11 Such wage deductions are probably contrary to certain provisions
of the California Labor Code. See Cal. Lab. Code Sec. 221.
NORTECH WASTE 569
Similarly, in October 1997, Jara’s father had a heart attack and
she took several days off with Punkar’s permission. Later,
Speaker asked if she wanted to paid for those days off out of her
vacation time. She declined and essentially took the time off
without pay.
Sometime in early 1998, either January or February, according
to Keyes, some of the Spanish-speaking employees began to
complain about deductions from their vacation accounts. Ac-
cording to them, if they had used up their sick leave, the com-
pany was charging additional lost time against their vacation.
Keyes’ testimony is in the footnote.12 Keyes eventually collected
pay stub documentation demonstrating the practice and then one
morning in February at a safety meeting, she asked Supervisor
Dwinger about it. He said he would take it up with Supervisor
Tapia.
On February 27, 1998, Respondent issued the “clarification.”
In its second paragraph it stated: “Each employee has paid vaca-
tion and medical time. This time will be used in its entirety for
the appropriate purpose before a leave of absence without pay
will be considered. A leave of absence without pay will be con-
sidered only under extraordinary conditions.” (Emphasis in
original.) It then cited examples and announced that such leaves
had to be approved in writing at least 2 days before being taken
(allowing for the rare possibility that circumstances might require
the written request after the fact). There are other details as well.
In comparing this “clarification” with the April 1997 policy, it
is apparent that this is an entirely new rule. It does not clarify
any ambiguity in the previous rule. Nothing in that policy al-
lowed for deductions from the vacation account as Keyes de-
scribed and as supported by General Counsel Exhibits 26 and 28.
The latter is a Jara pay stub showing the practice in February,
while the former shows the practice continuing in May after the
clarification with employee Arroyo.
The April 1997 medical time policy does not discuss vacation
charges at all. It simply says that medical leave is to be used for
illness and medical appointments and that proof may be required
in some circumstances. It also describes the rate of accrual of
medical leave time (.77 hours per week, amounting to 5 days per
year). In the event that an employee with 1 year’s experience or

12 Keyes’ testimony:
Q. [By Ms. BRENNER] Okay. And what did the workers
talk to you about?
A. [KEYES] That their check stubs—their vacation had been
taken out for sick leave.
Q. Their vacation had been taken out of sick leave, can you
explain this? I’m confused.
A. They missed the days of—a days work during the week.
Q. Okay.
A. And instead of taking eight hours for sick—the Company
taking eight hours for sick pay, the split it up four hours from va-
cation pay and four hours from sick leave.
Q. Okay. Did—were there any other complaints about how
the Company was charging their time off or that was the main
concern?
A. That was just the main complaint. That was all they com-
plained to me about.
Q. Did they explain to you why that bothered them?
A. Because at the end of the—when it came time for vacation
they weren’t going to have any vacation left.
more has used his or her allotment of medical leave, the policy
provides for an advance of up to 2 days of medical leave time to
be earned later. Nowhere does it say that earned vacation time is
to be charged when the medical leave time is exhausted. Thus
the “clarification” is actually nothing less than the imposition of a
new rule.
In fact, there are two types of 8(a)(5) unilateral changes here,
though they are closely connected. In neither case did Respon-
dent notify the Union and therefore deprived it of the opportunity
to bargain over each of them. The first is the departure from the
existing policy prior to the “clarification.” During that period
Respondent did not follow its own established medical leave
policy. At some point it began deducting vacation accrual from
the employees’ vacation accounts when they exceeded their
medical leave account. Second, it changed the leave without pay
practice in February when it attempted to codify the deduction
practice. Both changes were accomplished without notice to the
Union and as they affected wages, hours and terms and condi-
tions of employment, they violated Section 8(a)(5) of the Act.
NLRB v. Katz, supra; Our Way, Inc., 268 NLRB 394, 415 (1983).
5. Alleged failure to bargain over immigration
compliance procedures
I have previously discussed Respondent’s discriminatory deci-
sion to lay off/discharge employees whom it believed were not
entitled to work in the United States. I found that effort, which
Respondent canceled after it had begun, to have violated Section
8(a)(3). The General Counsel also argues that the implementa-
tion of this effort violated Section 8(a)(5). This theory is
grounded in Board law to the effect that layoff procedures are a
mandatory subject of bargaining and once a union has obtained
Section 9(a) status, an employer may not implement layoffs
without first bargaining with the union over those procedures.
Clearly, a layoff of employees effects a material, substantial
and significant change in the affected employees’ working condi-
tions. NLRB v. Katz, supra; Ladies Garment Workers Local 512
v. NLRB, 795 F.2d 705, 710–711 (9th Cir. 1986); Rangaire Co.,
309 NLRB 1043, 1047 (1992). Accordingly, in a layoff scenario
certain requirements must be met in order to observe the good-
faith bargaining obligation of Section 8(a)(5) and Section 8(d).
Specifically, in Clements Wire, 257 NLRB 1058, 1059 (1981),
the Board said:

Although an employer may properly decide that an eco-
nomic layoff is required, once such a decision is made the
employer must nevertheless notify the Union, and, upon re-
quest, bargain with it concerning the layoffs, including the
manner in which the layoffs and any recalls are to be ef-
fected.

See also Porta-King Building Systems v. NLRB, 14 F.3d 1258
(8th Cir. 1994), enfg. 310 NLRB 539 (1993). There an em-
ployer, which had opened a new plant on a nonunion basis, rely-
ing on a past practice in effect at its older, unionized plant, laid
off five employees without notice to the union, although the un-
ion had been recently certified at the new plant. The court ob-
served, using that fact pattern as its context, “Layoffs are a com-
pulsory subject of bargaining and therefore a unilateral layoff by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
Porta-King violates Section 8(a)(5).” Also see Ladies Garment
Workers Local 512 v. NLRB, supra.
The principal difference between the cited cases and this one is
that here Respondent is purportedly attempting to comply with a
law, IRCA, which prohibits employers from employing persons
who are not eligible to work in the United States. Therefore, it
imposes a duty on employers to determine whether applicants are
in fact eligible to work in the United States. That duty is, in its
initial form, fulfilled when the employee satisfactorily completes
an I–9 form provided by the Immigration and Naturalization
Service. The problem arises thereafter, when some fact comes to
the employer’s attention suggesting that the employee falsified
that form (or perhaps a social security number which may or may
not have been used on the form) triggering possible criminal or
civil liability under IRCA or its parent statute, the INA.
If the employees are represented by a union in that situation,
what duty, if any, does the NLRA impose on the employer? It is
certainly true that the individual in question is an employee under
the Act, Sure Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and it is
also true that there is some likelihood that the employee is actu-
ally eligible to work in the United States, despite whatever rea-
sonable suspicion may have fallen upon him or her.
It also seems to me that there is no question that the employee
can, if he wishes, obtain the assistance of the Union during this
investigation. NLRB v. J. Weingarten, 420 U.S. 251 (1975). The
real question, however, is whether there is any subject matter
over which the Employer and the Union may properly bargain.
Since a statute (IRCA) governs the question of whether the em-
ployee may be employed at all, there seems to be little which can
be done except to comply with the statute. Certainly neither the
statute nor the implementing regulations may be bargained away.
What is there which a union can really do? Its options may be
limited but may certainly assist the employee and in doing so
may convince the employer that its suspicions are not well-
founded.
Indeed, that is exactly what occurred here. When the employ-
ees sought the Union’s assistance after they had been told to get
their INS paperwork “squared away” the Union did come to their
aid and convinced Respondent that its suspicions were unwar-
ranted. It pointed out that their I–9’s were regular on their face
and that the other material which had given rise to Jackson’s
suspicions was not sufficient to give rise to a reasonable suspi-
cion. Whether or not Jackson actually accepted that argument, he
backed off and reinstated all of the suspect employees.
Thus, the Union’s representation of these 11 employees was
successful. It appears that Respondent did bargain with the Un-
ion (albeit in a naïve and unpleasant manner) to the extent that
either party reasonably could bargain on this topic—on meet and
consult basis. Indeed, that is about all one could expect would be
accomplished during a Weingarten style investigation. I suppose
a union could negotiate Weingarten style language with an em-
ployer and even insert such language into a collective-bargaining
agreement. Yet the right to such a meeting already exists by
virtue of the Supreme Court’s Weingarten decision. The remain-
ing issues in such an investigation are only whether an illegal
employee should remain employed. The answer under IRCA is
clearly “no.” There is really nothing a Union can do once the
ineligibility becomes clear, otherwise, the Union would be nego-
tiating over an illegal subject matter.
Thus, I am forced to conclude that an employer’s duty under
Section 8(a)(5) to negotiate over layoff procedures concerning
IRCA matters exists, but is severely circumscribed. I hold that an
employer must only meet and consult with the Section 9(a) union
concerning the treatment of a suspected illegal alien employee. I
also hold that Respondent did so here and met its burden of meet-
ing and consulting (however reluctantly or unwillingly). This
allegation of the complaint will be dismissed.
I. The Crane Incident
At one of the first, if not the first, negotiation meetings after
the certification of representative had been issued, perhaps the
meeting of November 20, 1997, the parties reached an oral
agreement regarding union officials’ right to gain access to the
plant. According to business agent/organizer, “Scooter” Gentry,
the agreement allowed the Union access to the employees if the
union official who was visiting first telephoned to advise he was
coming and then signed the guest book at the receptionist’s win-
dow. They were then to be permitted to visit the employees so
long as they didn’t slow or otherwise interfere with work.
On April 6, 1998, two union agents, Gentry and Union Repre-
sentative Richard Taliaferro, having first called, arrived at the
parking lot in separate vehicles sometime between 9 and 10 a.m.
for the purpose of looking that area over in preparation for con-
ducting a rally. They spoke to some employees in the parking lot
and then signed in at the desk. After that they went to the lunch-
room for a short time and spoke to some of the employees. Hav-
ing accomplished their purpose, they returned to the parking lot,
preparing to continue on to the adjacent landfill operated by
Western Placer Recovery. The Union represents employees at
that employer.
While in the parking lot, as well as when they drove by Re-
spondent’s truck entrance, they could observe that a heavy mo-
bile crane was about to begin work behind the main sorting area.
There was a sign on the crane which identified it as a piece of
equipment from Valley Crane, another company which has a
collective-bargaining contract with the Union. Both Gentry and
Taliaferro’s duties include not only organizing but also servicing
or policing the collective-bargaining contracts which the Union
has, as well as checking employees to determine if their dues are
up to date.
The two decided to check out the crane on their return from
the landfill. In addition, Gentry as a former crane operator was
curious about the “lift” which the crane was going to make. He
could see a large piece of heavy machinery awaiting the lift.
Among other things he thought a picture of the crane performing
the lift would add to his personal collection of such feats.
By way of background, the machinery is known as a baler.
The County Waste Authority after a legal dispute with Respon-
dent had determined to replace the old baler with a new one. It
had contracted with a vendor, Rose Waste Systems, to purchase
and install the equipment. Rose, in turn, had hired Valley Crane
to help install it. Thus, none of Respondent’s employees were
involved in operating the crane. These facts, of course, were not
known to Gentry or Taliaferro.
NORTECH WASTE 571
The two union officials decided to talk to the crane operator
and oiler to see if they really were Valley Crane employees, to
determine whether the job was going according to the collective
bargaining contract and to see if their dues were up to date.
They stayed at Western Placer Recovery for only a short time.
They could see the crane from that location as well. When they
left, they went straight to Respondent’s truck entrance and drove
to within 30 feet of the crane. That location is not open to the
public although it is paved and vehicles such as forklifts regularly
use it.
Assistant General Manager Buckle had stationed himself
nearby to watch the crane at work. He observed the two union
officials get out of their vehicle and saw Gentry with his camera.
Not knowing what was coming, but aware the two did not have
permission to be in that area and were not wearing safety equip-
ment such as hard hats, Buckle went straight to Gentry, asked
him what he was doing, told him he was trespassing and had to
leave. Buckle said Gentry replied something to the effect that he
was there to watch his people.
Gentry’s version: “I no more got out of my car and probably
took about 10 steps and I was approached by Larry Buckle, who
immediately got in my face and told me that I was on private
property trespassing and if I didn’t leave immediately he’d have
me arrested. . . . Buckle had stuck his hand in front of me and
would not allow me to take any pictures and continued to tell me
that I was trespassing and I was on private property and he’d
have me arrested. I asked him—I told him that I had the right to
be on the property because I had a signatory contractor in there
and I have the right to service my signatory contractors. . . . He
told me once again that I was trespassing, I was on private prop-
erty and he would have me arrested.”
Taliaferro’s testimony is similar. He said, among other things,
that Gentry told Buckle he was trying to service the contract and
he had a legal right to do so under Federal law. Instead of listen-
ing, Buckle said if they didn’t leave he’d have them arrested.
Buckle then made a call on his radio. Shortly after that five men
came from the plant and surrounded the two union officials.
Buckle had blocked Gentry’s use of the camera, so he had
handed it to Taliaferro. Threats were uttered by some of the men
and Taliaferro suggested that it would be better if they left; they
did so. They never did talk to the crane operator or the oiler.
Moreover, no party cites any provision of the collective-
bargaining contract between the Union and Valley Crane as pro-
viding a contractual right of visitation. Indeed, that contract is
not in evidence. I find, therefore, that the contract does not con-
tain a visitation clause.
The following day, a deputy from the Placer County Sheriff’s
office called Gentry to advise that charges had been filed. Later
Gentry received a notice to appear in municipal court. Neither
the nature nor the outcome of that proceeding is before me. In-
deed, I did not hear any evidence about it as the complaint here
simply asserts that barring the union officials from the premises
and threatening them with arrest in this circumstance violated
Section 8(a)(1). In that regard, at least one employee, Alice
Keyes, observed the entire incident and heard part of it.
In analyzing this matter, the first thing which should be noted
is that all parties are in agreement that the original permission
which had been granted to Gentry and Taliaferro to come on the
premises that morning ended when they left to go to the landfill.
Second, no contention is made that they ever had permission to
go into nonpublic areas such as the paved area where the crane
was working. Had they followed the agreed-upon procedure
perhaps this incident would not have occurred. On the other
hand, Buckle’s response was not exactly reasonable. He either
didn’t listen to Gentry’s explanation or didn’t care to hear one.
He was angry and perhaps a little scared of what was going on.
Gentry’s camera did not square with what Gentry was saying
regarding checking the dues cards of the crane employees and he
was aware of the confrontational style the Union had employed
earlier during the March on the Boss as well as the protest over
the Keyes and Jara suspensions. Moreover, the two union
agents’ visit that morning was to survey the area for another simi-
lar demonstration. Buckle’s suspicions must therefore be re-
garded as reasonable, even if his attitude was excessively prickly.
The General Counsel relies on Villa Avila, 253 NLRB 76, 81
(1980), enfd. as modified NLRB v. Villa Avila, 673 F.2d 281
(1982), to support the 8(a)(1) allegation. In that case, which
preceded by 10 years the Supreme Court’s decision in Lech-
mere,13 the Board approved Administrative Law Judge Gerald A.
Wacknov’s conclusion that in the construction industry a nonun-
ion general contractor has no right to bar union business agents
from entering a construction site to service the employees of a
union subcontractor. Although there were visitation rights
clauses in those contracts, neither Judge Wacknov, the Board or
the court of appeals was concerned about the contract right.
They were looking at the right of access which they believed
Section 7 granted, a statutory right. Judge Wacknov said:

Respondents, by hiring subcontractors to perform work
on the jobsites, have thereby invited these subcontractors to,
in effect, maintain a temporary place of business on the site,
at which locus the working conditions of the subcontractors’
employees are necessarily established. It may therefore be
reasonably inferred that Respondents, by hiring such sub-
contractors, thereby “necessarily submitted their own prop-
erty rights to whatever activity, lawful and protected by the
Act,” might be engaged in by union business agents in the
performance of their duties vis-a-vis these subcontractors
who have contractually granted union business agents unre-
stricted access to the site. [Citation omitted].

In that case, some construction industry unions had been en-
gaged in illegal secondary boycott activity and the primary dispu-
tants, the general contractors, feared the visiting union officials
(who were from a different union) would resume the tactic and
pull neutral employees off the job during critical times such as
concrete pours. That situation gave credence to the Employers’
claims that they needed to regulate the union officials’ conduct
while at the site.
The Court of Appeals for the Ninth Circuit agreed, and modi-
fied the order to hold that the right of access was not absolute in
this situation. It said, 673 F.2d 281 at 284, the order was subject
to the following guidelines:

13 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
(1) Any visitor can be required to report to the project
office and to state in general terms his or her business before
being allowed to proceed into the work area;
(2) Union representatives who request permission to
conduct legitimate Section 7 business in the work area are
presumed to be on . . . legitimate union business until, by
their conduct, they indicate the contrary, and
(3) In the event of vandalism, illegal work stoppage or
illegal interference with work, the owner or occupier of the
worksite may require that the visitor agree to be accompa-
nied by an escort representing the owner or occupier of the
premises until after the dispute or disorder has been re-
solved.

Judge Wacknov’s and the court’s analyses comported with
what appeared to be the law at the time. A balancing of interests
was to be applied, Section 7 employee rights vs. legitimate prop-
erty interests of the employer. In 1992, the Supreme Court in
Lechmere held that the balancing of interests test was inconsis-
tent with its decision in NLRB v. Babcock & Wilcox Co., 351
U.S. 105 (1956). In essence it noted that Section 7 confers rights
on employees, not unions or their nonemployee organizers and
that the balancing test is only to be used when the employees are
inaccessible and reasonable access infeasible. That holding re-
quired the Board to look anew at its access decisions. The Board
very recently overruled Montgomery Ward & Co., 288 NLRB
126 (1988), a case which had permitted nonemployee union or-
ganizers to visit the dining areas of restaurants and to organize
employees there so long as their behavior was consistent with
that of a customer. Nick’s, 326 NLRB 997 (1998). It concluded
in Nick’s that Lechmere required that the Montgomery Ward line
of cases to be overruled.
Thus, the question seems to be whether Lechmere likewise
implicitly requires the overruling of Villa Avila, which permits
nonemployee union officials to visit property without permission
where its members are performing work to see if the collective
bargaining contract is being followed. There is one construction
industry case post Lechmere which suggests it has not been over-
ruled. See CDK Contracting Co., 308 NLRB 1117 (1992). In
CDK, as in Villa Avila, a general contractor barred a union repre-
sentative from entering a jobsite to administer a collective-
bargaining contract with a union subcontractor. Here, too, the
collective-bargaining contract contained a visitation clause. The
Board, dealing with the Lechmere defense raised by the respon-
dent, concluded that this presented

substantially different issues and considerations. . . . At issue
here is whether a general contractor may deny access to a
jobsite to union officials who seek to communicate with
employees of a subcontractor represented by the union
where a visitation clause in the contract between the subcon-
tractor and the union permits access. As the judge reasoned,
the Respondent, by soliciting other employers to perform
work at the jobsite, “invited” subcontractors, and their re-
spective subcontractors, onto the jobsite, and thus subjected
its “property rights” to the Union’s contractual “access”
rights with those subcontractors.

This logic is essentially Villa Avila revisited, but now giving
weight to the visitation clause of the contract. The Board distin-
guished Lechmere further by observing it involved the “deni[al
of] private property access to nonemployee union agents who
sought access for the purpose of communicating an organiza-
tional message to employees.”
Our case, however, does not involve the construction industry,
although there are some similarities. Locals of the International
Union of Operating Engineers are in general construction unions
which commonly represent those employees in the construction
industry who operate heavy equipment, including mobile cranes.
They do not limit themselves to the construction industry, how-
ever. Indeed, the landfill company adjacent to Respondent where
the Union also represents employees, Western Placer Recovery,
would not appear to be in the construction business. Moreover,
Valley Crane’s contract with the Union does not authorize union
visitation. Indeed, the “invitation” argument found in both Villa
Avila and CDK would not apply because Respondent is not the
one who contracted for the installation of the baler. That entity
was Rose, a vendor contracted to public body, the Western Placer
County Waste Management Authority, the landlord. The
Authority was performing plant maintenance work, the
replacement of a piece of machinery, which required an
installation device often used in the construction industry. To be
sure, Respondent wanted the new equipment and had no
objection to the presence of the vendor and the crane operator
which he had brought to perform the task. However, it cannot be
said that it invited Valley Crane to the site or much less invited
visitors to speak to the crane employees.

Frankly, it appears that neither Gentry nor Taliaferro had given
any consideration whatsoever to the access or safety concerns
Respondent, the tenant, might have had. They just barged in
unannounced. They did so with full knowledge that they had an
agreement with Respondent which not only governed their right
to speak to Respondent’s employees but which also would have
put them onto the property with permission.
Frankly, I do not understand Gentry and Taliaferro’s haste
here. The crane was not going anywhere any time soon. Was
Gentry afraid he’d lose his photograph if he didn’t act quickly?
If the lift was actually in progress, but he nevertheless went to
check the dues cards of the crane employees, wouldn’t he have
been unnecessarily interfering with that task? In my view, they
certainly had the time to return to Respondent’s business office to
attempt to gain permission. If it had been denied at the point we
would certainly have a different case.
Whether or not Lechmere in that instance might require over-
ruling or modifying Villa Avila in some fashion must remain
theoretical. For the incident as it actually occurred, however, I
think it is clear that the Ninth Circuit’s modifications of Villa
Avila, now adopted by the Board,14 remain applicable. Clearly
Respondent’s rule that visitors to the plant, including union offi-
cials, must first report to the office for the purpose of stating their
reasons for visiting is an enforceable rule matching the Ninth
Circuit’s first guideline. Second, it already appears that Respon-
dent permits union representatives into the plant for presumed
14 C.E. Wylie Construction, 295 NLRB 1050 (1989), enf. granted in
pertinent part 934 F.2d 234 (7th Cir. 1991); Subbiondo & Assoc., 295
NLRB 1108 (1989); Mayer Group, 296 NLRB 25 (1989); and CDK
Contracting, supra.
NORTECH WASTE 573
legitimate union business. The third guideline (that if some mis-
chief is occurring or has recently occurred, the owner can require
the union official to agree to be escorted until that disorder has
been resolved) was not tested because the union officials here
never reported to the office in the first place.
In that circumstance, I conclude that Respondent did not vio-
late Section 8(a)(1) by barring the Gentry and Taliaferro from a
nonpublic area of the plant, even if their purpose was a legitimate
one, to conduct proper union business with the employees of an
employer bound by a union contract. Respondent only insisted
that the union officials abide by a reasonable requirement that
they first come to the office to get permission to conduct their
business. Safety was certainly a concern if the union officials
were to go into a work area and disruption was also a legitimate
possibility given the demonstrations which had recently occurred.
These issues could have been resolved at the office. Neither
Gentry nor Taliaferro complied. This allegation will be dis-
missed.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent having discriminatorily sus-
pended and laid off employees, it must make them whole for any
loss of earnings and other benefits, plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). In
addition, as it discriminatorily reassigned Alice Keyes to tasks
which caused new injuries or aggravated existing medical condi-
tions, Respondent shall make her whole for any medical expenses
she incurred, plus interest, as a result of that reassignment.
Graves Trucking, 246 NLRB 344, 345 (1979), modified 692 F.2d
470 (7th Cir. 1982). Furthermore, it shall be required to expunge
from the affected employees’ personnel files any reference to
their illegal treatment, whether discharge, suspension or lesser
discipline. And, it will be required to rescind any unlawful uni-
lateral changes it made which have been found to violate Section
8(a)(5). Finally, it shall be directed to post a notice to employees
advising them of their rights and describing the steps it will take
to remedy the unfair labor practices, which have been found.
Because of the serious nature of the violations and because of
Respondent’s having demonstrating a general disregard for the
employees’ fundamental rights, I find it necessary to issue a
broad order requiring the Respondent to cease and desist from
infringing in any other manner on rights guaranteed employees
by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357
(1979).
Based on these findings of fact, legal analyses, and the record
as a whole I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Charging Party is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act in August
1997 when it instituted the “tailgate” meetings whose principal
purpose was to solicit grievances from employees in order to
interfere with their desire for union representation.
4. The warning given to Keyes on August 29, 1997, violated
Section 8(a)(3) and (1) as its real purpose was to interfere with
Keyes’s activity for and on behalf of her fellow employees and
because she was perceived as a union activist.
5. The discharge of the following 11 employees violated Sec-
tion 8(a)(3) and (1) of the Act as it was an effort to retaliate
against the employees because of the outcome of a representation
election and to undermine the validity of that election. Those
employees are: Juan Campos, Luis Casillas, Rigoberto Contreras,
Lazaro Gomez, Imelda Gonzalez, Carlos Guzman, Martha Herre-
jon, Ricardo Ramirez, Luis Rodriguez, Veronica Rodriguez, and
Beatriz Saavedra.
6. Respondent violated Section 8(a)(3) and (1) when, on No-
vember 28, 1997, it suspended its employees Olga Jara and Alice
Keyes because of their union activities.
7. On December 4, 1997, Respondent violated Section 8(a)(3)
and (1) when it refused to accept the unconditional offer of unfair
labor practice strikers to return to work.
8. On December 4, 1997, Respondent violated Section 8(a)(4)
and (1) when it asked the Union to drop unfair labor practice
charges it had filed as a prerequisite to discussing the return of
unfair labor practice strikers.
9. On January 28, 1998, Respondent violated Section 8(a)(1)
by reassigning its employee Alice Keyes for the purpose of iso-
lating her from her fellow employees so she could not engage in
activity protected by Section 7 of the Act.
10. In February 1998 and for approximately 3 months thereaf-
ter, Respondent violated Section 8(a)(1) by assigning Alice
Keyes to the unnecessary task of manually pulling nails from
used lumber for the purpose of increasing the risk of her injuring
herself so that she would be forced to abandon her employment.
11. Respondent violated Section 8(a)(5) of the Act, breaching
its duty to bargain in good faith with the certified union, Interna-
tional Union of Operating Engineers, Local Union No. 3 by:

• Directly dealing with its employees instead of Local 3
by soliciting grievances at the tailgate meetings.
• Unilaterally and without notice to Local 3 installing sur-
veillance cameras in the workplace
• Unilaterally and without notice to Local 3 changing the
safety equipment replacement policy.
• Unilaterally and without notice to Local 3 changing the
sick leave practice and latter the sick leave policy.

On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended15
ORDER
The Respondent, Nortech Waste, Roseville, California, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
(a) Soliciting grievances from employees in order to interfere
with their desire for union representation during “tailgate” or
other meetings.
(b) Giving warnings to employees intended to interfere with an
employee’s activity for and on behalf of fellow employees or
because the employee is perceived as a union activist.
(c) Discharging employees to retaliate against them because of
the outcome of a representation election and to undermine the
validity of that election.
(d) Suspending employees because of their union activities.
(e) Refusing to accept the unconditional offer of unfair labor
practice strikers to return to work.
(f) Asking the Union to withdraw any unfair labor practice
charges as a prerequisite to discussing the return of unfair labor
practice strikers.
(g) Isolating any employees so they cannot engage in activity
protected by Section 7 of the Act.
(h) Assigning union activists to unnecessary tasks or tasks
which unreasonably risk injury, such as assigning an employee
with preexisting hand and shoulder injuries to manually pull nails
from used lumber, in order to get rid of such an employee.
(i) Breaching its duty to bargain in good faith with the certified
union, International Union of Operating Engineers, Local Union
No. 3 by:

• Directly dealing with its employees instead of Local 3
by soliciting grievances at the tailgate meetings.
• Unilaterally and without notice to Local 3 installing sur-
veillance cameras in the workplace
• Unilaterally and without notice to Local 3 changing the
safety equipment replacement policy.
• Unilaterally and without notice to Local 3 changing the
sick leave practice and latter the sick leave policy.

(j) In any other manner interfering with, restraining, or coerc-
ing employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the warning given to Alice Keyes on August 29,
1997.
(b) Make whole the following employees, together with inter-
est as provided in the remedy section of this decision, for their
illegal discharges of October 1, 1997: Juan Campos, Luis Casil-
las, Rigoberto Contreras, Lazaro Gomez, Imelda Gonzalez, Car-
los Guzman, Martha Herrejon, Ricardo Ramirez, Luis Rodriguez,
Veronica Rodriguez, and Beatriz Saavedra.
(c) Make whole Olga Jara and Alice Keyes for their illegal
suspension, which began on November 28, 1997, together with
interest as set forth in the remedy section of this decision.
(d) Make whole the unfair labor practice strikers, together with
interest, for work lost as a result of Respondent’s failure to
promptly reinstate them on December 4, 1997.
(e) Make whole, with interest, Alice Keyes for any medical
expenses she may have incurred as a result of her being assigned
to pull nails in February 1998 and thereafter.
(f) Rescind the changes in working conditions which it made
unilaterally without notifying the Union, including the installa-
tion of surveillance cameras in the workplace, the safety equip-
ment replacement policy imposed in early 1998, and the sick
leave policy changes made beginning in late 1997 as well as the
“clarification” of that policy made on February 27, 1998.
(g) Make whole any employee for lost benefits as a result of
the unilateral changes found unlawful here.
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warnings, suspensions, or
layoffs, and within 3 days thereafter notify the employees in
writing that this has been done and that the discipline will not be
used against them in any way.
(i) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic
copy of the records if stored in electronic form, necessary to ana-
lyze the amount of backpay due under the terms of this Order.
(j) Within 14 days after service by the Region, post at its recy-
cling plant in Roseville, California, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
Respondent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by 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, Respondent has
gone out of business or closed the facility involved in these pro-
ceedings, Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since August
8, 1997.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”