Onyx Waste Services

National Labor Relations Board - Board Decisions

Sep 29, 2004

343 N.L.R.B. 23 (N.L.R.B. 2004)

ONYX WASTE SERVICES
343 NLRB No. 3
23
Onyx Waste Services, Inc. and International Brother-
hood of Teamsters, Local 385, AFL–CIO. Cases
12–CA–22996, 12–CA–22999, 12–CA–23030, 12–
CA–23042, 12–CA–23057, and 12–CA–23058
September 29, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, WALSH, AND MEISBURG
On January 7, 2004, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding 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
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Onyx
Waste Services, Inc., Port Orange, Florida, its officers,

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.
We adopt the judge’s finding that the Respondent discharged em-
ployee James Payne in violation of Sec. 8(a)(3) and (1) of the Act. We
do not adopt the judge’s alternative finding that the Respondent dis-
criminatorily refused to hire Payne because that theory of a violation
was not alleged in the complaint or litigated at the hearing.
Member Meisburg agrees with the affirmance of the judge’s finding
that James Payne was unlawfully terminated because of his union ac-
tivities, but takes note of the special circumstances presented. Ordinar-
ily an employer would not violate the Act by deciding to terminate an
employee who had presented it with an ultimatum such as the one put
forward by Payne. Here, however, the evidence establishes that the
Respondent’s decision to terminate Payne was not based on his ultima-
tum, but rather on the Respondent’s antiunion animus. Specifically, the
Respondent’s actions, including Site Manager J. D. Smith’s misrepre-
sentations to Payne and uppermanagement’s edict that Apopka Super-
visor Charles Eduardo should not hire Payne, demonstrate that the
Respondent was determined to block Payne’s transfer efforts and
thereby force his termination. Because the record supports the conclu-
sion that this course of conduct by Respondent was fueled by antiunion
animus and would not have occurred absent Payne’s protected activity,
Member Meisburg agrees with affirming the judge’s finding of a viola-
tion.
2 We shall substitute a new notice in accordance with Ishikawa Gas-
ket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the attached notice for that of the adminis-
trative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting International Brother-
hood of Teamsters, Local 385, AFL–CIO, or any other
union.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT threaten you with discharge for talking
about union meetings on company property or for sup-
porting the Union.
WE WILL NOT interrogate you regarding your union ac-
tivities.
WE WILL NOT promise and grant wage increases to you
in order to discourage you from supporting the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Bobby Cavetti Jr., Kenneth DeMarco, and
James Payne full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Bobby Cavetti Jr., Kenneth DeMarco,
and James Payne whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Bobby Cavetti Jr., Kenneth DeMarco,
and James Payne, and WE WILL, within 3 days thereafter,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
notify each of them in writing that this has been done and
that the discharges will not be used against them in any
way.
ONYX WASTE SERVICES, INC.
Thomas W. Brudney, Esq., for the General Counsel.
Frederick D. Payne and Bruce F. Mills, Esqs., for the Respon-
dent.
Roger Allain, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in New Smyrna Beach, Florida, on October 27 and
28, 2003.1 The consolidated complaint issued on July 30.2 The
complaint alleges various violations of Section 8(a)(1) of the
National Labor Relations Act and the discharge of six employ-
ees because of their union activities in violation of Section
8(a)(3) of the Act. The Respondent’s answer denies any viola-
tion of the Act. I find that the Respondent did violate Section
8(a)(1) of the Act and that the terminations of employees
Bobby Cavetti Jr., Kenneth DeMarco, and James Payne vio-
lated Section 8(a)(3) of the Act.
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
The Respondent, Onyx Waste Services, Inc. (the Company),
is a Wisconsin corporation engaged in the business of providing
solid waste and recyclables collection services to commercial
and residential customers from its facilities at various locations
in the United States, including its facilities in Port Orange and
Apopka, Florida. The Company annually purchases and re-
ceives, at its Florida facilities, goods and materials valued in
excess of $50,000 directly from points located outside the State
of Florida. The Respondent admits, and I find and conclude,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Brotherhood of Teamsters, Local 385, AFL–CIO, the
Union, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In September 2001, the Company began operating its Port
Orange facility. The facility is supervised by Site Manager J. D.
Smith, assisted by Route Supervisor Steve Smith. The Com-

1 All dates are in 2003 unless otherwise indicated.
2 The charge in Case 12–CA–22996 was filed on May 6 and was
amended on June 30. The charge in Case 12–CA–22999 was filed on
May 8, the charge in Case 12–CA–23030 was filed on May 12, the
charge in Case 12–CA–23042 was filed on May 19, and the charges in
Cases 12–CA–23057 and 12–CA–23058 were filed on May 22.
pany employs 26 drivers and helpers at Port Orange. At all
times relevant to this proceeding, the Company also operated a
facility at Apopka, Florida. Port Orange is near Daytona Beach.
Apopka is near Orlando. Driving time between the two facili-
ties is approximately 1 hour, depending upon traffic. There is
no site manager at Apopka. Daily operations are supervised by
Route Supervisor Charles Eduardo. Eduardo reports to Central
Florida Operations Manager James Fountain.
Employees at the Port Orange facility often gathered at the
home of employee James Payne after work to play video
games. On April 10, employees, including Kenneth Demarco,
Anthony Oliva, Bobby Cavetti, Adrian Del Rio, and Shannon
Malfitano, began discussing their working conditions and the
possibility of joining a union. Payne was hesitant to do so be-
cause of the presence of employee Tom Wiley and Mike
Hunter, a supervisor with another company. DeMarco told
Payne that he had no problem with their presence, and the dis-
cussion continued. DeMarco advised employee Oliva to call an
Onyx facility in New Jersey that he knew was organized to
obtain the telephone number of the union representing the em-
ployees at that location. He correctly assumed that a representa-
tive of that union would put him in touch with a union repre-
sentative in Florida.
On April 11, Organizer Robert Allain with Teamsters Local
385 contacted Oliva. Following a conversation, a meeting was
scheduled for the following Saturday, April 19. Employees
Oliva, DeMarco, Adrian Del Rio, and Shannon Malfitano at-
tended the meeting and all signed union authorization cards.
Following the meeting, Oliva presented union authorization
cards to employees Payne and William Corrigan, and both
signed the cards. Employee Bobby Cavetti Jr., signed an au-
thorization card brought to him by DeMarco.
B. The 8(a)(1) Allegations
1. Complaint paragraphs 5, 6, 7, and 8
On the morning of April 11, following the conversation re-
garding unionization at Payne’s home on April 10, Site Man-
ager J. D. Smith waved for Payne to come into his office. Payne
did so. Smith stated that he was “hearing some bad things” and
then stated, “I’m hearing you’re holding union meetings at your
house.” He continued, noting that Payne should watch whom he
was letting into his house, that “they” were getting him in-
volved in something that he did not want to have anything to do
with. Employee Payne replied, suggesting that he could stop the
activity, he could “get those guys together.” Smith replied, “No,
We’re going to take care of it.”
Payne, who drove a recycling route, was regularly the first
employee to return to the facility, arriving “anywhere from 11
[a.m.] to 12:30.” On the following Monday, April 14, Smith
again spoke with Payne in the office. On this occasion Smith
informed Payne, “They have my bosses thinking that you are
heading up the Union.” Payne replied that he would take care
of it.
On Thursday, April 17, at the monthly safety meeting, Site
Manager Smith gave his regular safety presentation and then
addressed the matter of the Union. Payne recalled that Smith
stated that employees should not “talk bad about the Com-
pany.” He continued, directing his comments to “you guys
ONYX WASTE SERVICES 25
that’s trying to head up the Union,” and stated that anybody
“discussing the Union on [company] property will be fired
immediately, terminated out the gate.” Lest any employee con-
sider the foregoing to be an idle threat, Smith noted that he had
had to fire his wife and rhetorically asked the employees
“where the hell” they thought they stood.
Smith denied being aware of any union activity at the facility
until May 9, when Organizer Allain sent a letter to the Com-
pany advising that employees were seeking to organize. He
testified that he only informed employees that they could not
have union meetings on company property, and he asserted that
he regularly made that comment during safety meetings. He
denied making any comment regarding terminating employees
for discussing the Union. On cross-examination, after a re-
cording that an employee had made of the April 17 safety meet-
ing was played, Smith admitted that he had told employees that
“[a]nybody caught talking about union meetings on company
property” would be fired. Smith’s assertion that he regularly
advised employees that they could not hold union meetings on
company property was incredible. His general denials of his
conversations with employee Payne were unconvincing. The
contradiction established by his admission of threatening to fire
employees who discussed union meetings on company property
undermines his assertion that he was unaware of employee
union activity as early as April 11. I do not credit Site Manager
J. D. Smith.
Following the safety meeting, as the drivers were “pre-
tripping” (checking over) their trucks, a group of helpers, An-
thony Oliva, Shannon Malfitano, Adrian Del Rio, Billy Corri-
gan, and Jared Doyle, gathered near the truck of driver Payne.
As Payne was checking the oil, Site Manager Smith approached
the group of helpers and stated, “What is this? What are you
having? A union meeting? Are you guys going to stab me in
the back?” The employees responded, “No. This is not that.”
The complaint, in paragraphs 5 and 6, alleges that the Re-
spondent, on April 11 and 14, created the impression that em-
ployees’ union activities were under surveillance and interro-
gated employees regarding their union activities. The Respon-
dent, in its brief, argues that the foregoing and subsequent
8(a)(1) allegations of the complaint are unsupported by any
timely filed charge. The Respondent appears to have over-
looked the amended charge filed in Case 12–CA–22996, filed
on June 30, that alleges instances of interrogation, various
threats, creation of the impression of surveillance, and the
promise of a wage increase. The Respondent’s answer admits
the receipt of that amended charge.
Payne credibly testified that Site Manager Smith approached
him on April 11 regarding “hearing” that he was “holding un-
ion meetings” at his house and, without waiting for a reply,
cautioned Payne regarding whom he let into his house. The
cases cited by the Respondent, including SKD Jonesville Divi-
sion L.P., 340 NLRB 101 (2003), are inapposite. In those cases,
the comments referred to open discussions relating to union
activity or were directed to known union adherents who had
engaged in union activity on company property. Smith’s refer-
ence to Payne holding union meetings at his house, without
identifying the source of his information, coupled with the ad-
monition that Payne should “watch” who he was letting into his
home, “reasonably suggested . . . that the Respondent was
closely monitoring the degree and extent of their organizing
efforts and activities.” United Charter Service, 306 NLRB 150,
151 (1992). The foregoing statement created the impression
that the employees’ union activities were under surveillance
and violated Section 8(a)(1) of the Act as alleged in complaint
subparagraph 5(b).
A few days later, Smith again spoke to Payne and noted that
“they” had his superiors believing that Payne was “heading up
the Union.” The import of the foregoing statement could not
have been other than a reconfirmation that Payne’s union ac-
tivities continued to be monitored by the Respondent. In con-
tinuing to create the impression that employee union activities
were under surveillance, the Respondent violated Section
8(a)(1) of the Act as alleged in subparagraph 6(b).
There is no evidence of any interrogation in either of the
foregoing conversations, and I shall recommend that complaint
subparagraphs 5(a) and 6(a) be dismissed.
There is no evidence of interrogation of any employee on
April 15 as alleged in paragraph 7 of the complaint. The Gen-
eral Counsel argues that this allegation is established by
Smith’s asking the helpers if they were holding a union meet-
ing; however, that incident occurred following the safety meet-
ing of April 17. The alleged violations of the Act that occurred
on April 17 are set out in paragraph 8 of the complaint.
Paragraph 8 of the complaint alleges that, on April 17, the
Respondent threatened employees with discharge for engaging
in union activities and informed them that they had to have the
Respondent’s permission to hold union meetings. Smith admit-
ted that he stated that any employees who discussed union
meetings on company property would be terminated. That pro-
hibition, encompassing all company property at any time,
threatened termination for engaging in that union activity and,
as alleged in subparagraph 8(a), violated the Act.
The encounter shortly after the safety meeting in which
Smith inquired whether the helpers were having a union meet-
ing does not establish a requirement that employees obtain
permission before holding union meetings. The General Coun-
sel argues that this constituted the incident of interrogation
alleged in paragraph 7 to have occurred on April 15. I do not
agree. Paragraph 8 of the complaint alleges the violations oc-
curring on April 17. No incident of interrogation is alleged and
no amendment was offered regarding April 17. The Respondent
was never placed on notice that the evidence adduced in sup-
port of paragraph 8, conduct on April 17, would be argued as
establishing the violation alleged in paragraph 7 as occurring on
April 15. Smith was not questioned regarding the foregoing
encounter, thus it was not fully litigated. Although discrepan-
cies regarding dates are generally not sufficient to justify the
dismissal of allegations, the foregoing circumstances cause me
to agree with the Respondent’s assertion in its brief that no
evidence was offered establishing interrogation occurring on
April 15. See Siracusa Moving & Storage, 290 NLRB 143
(1988). I shall recommend that paragraph 7 be dismissed. I
shall also recommend that subparagraph 8(b) of the complaint
regarding an alleged requirement for permission to hold union
meetings be dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
2. Complaint paragraphs 9, 10, and 11
On Tuesday, April 22, Smith asked employee Kenneth
DeMarco if he was “trying to start a union.” DeMarco replied
that the only thing that he had done was to “show those guys
how to get in touch with a union rep[resentative].” Smith told
DeMarco “to get the hell out of his office.”
The angry dismissal of DeMarco, after he truthfully replied
to Site Manager Smith, followed Smith’s reference on April 17
to “you guys that’s trying to head up the Union” and his threat
of termination for engaging in union activity on company prop-
erty. The foregoing circumstances establish the coercive nature
of Smith’s interrogation of DeMarco. I find, as alleged in com-
plaint paragraph 9, that the interrogation violated Section
8(a)(1) of the Act.
Employee Bobby Cavetti Jr. was terminated on Monday,
April 28. The Company asserted that Cavetti was terminated
for refusing to ride with driver Steve Pratt who had left Cavetti
standing in the street. Following Cavetti’s discharge, employee
Oliva, the employee who had contacted the Union, had two
conversations with Site Manager Smith. In the first, Cavetti
requested a transfer to Apopka, explaining that he did not want
“anymore of the problems” and that he did not want to be ter-
minated. Smith replied that he could not transfer him “when the
yard was having problems like the ones we were having.” In a
separate second conversation, Oliva approached Smith and
stated that if Smith “wouldn’t fire anyone else that I would drop
the Union, that I would make sure that it would go away.”
Smith replied that “there was nothing he could do about it,
[t]hat [Area Manager] Ron Tudor was already there Monday,
and that he [Smith] was told to fire everyone involved.” Smith
did not deny either of the foregoing conversations.
The complaint alleges, in paragraph 10, that the Respondent,
on April 23, threatened employees with discharge and in para-
graph 11 alleges a threat on April 28 to deny a transfer. Oliva’s
testimony places both of his conversations after Cavetti’s dis-
charge. Although no amendment to the April 23 date relating to
a threat of discharge was offered, in this instance, unlike the
discrepancies regarding April 15 and 17, there is no basis for an
assertion of confusion on the part of the Respondent. “[A] dis-
crepancy in dates, without more, [is] insufficient to find that a
respondent has been prejudiced.” Parts Depot, Inc., 332 NLRB
733, 734 fn. 6 (2000), citing Siracusa Moving & Storage, supra.
Oliva’s testimony that Smith stated that he had been directed to
“fire everyone involved” threatened employees with discharge
for engaging in union activity in violation of Section 8(a)(1) of
the Act.
Paragraph 11 alleges a threat to deny a transfer request on
April 28. The evidence establishes that Oliva’s request for a
transfer was denied. There was no threat. The denial of a trans-
fer to Oliva is not alleged in the complaint. As the General
Counsel notes, an employer’s reference to “problems” may be a
“veiled reference to union activities,” but it was Oliva who first
used the word “problems.” Oliva did not specify that the “prob-
lems” to which he was referring related to union activities or
some other matter such as undesirable job assignments, i.e.,
working with Pratt. Smith, using the same term that Oliva used,
stated that he could not transfer him when the yard was having
“problems.” The inherent ambiguities regarding the “problems”
to which Oliva referred and the “problems” to which Smith’s
response referred fail to establish that the Respondent either
refused or threatened to refuse to transfer employees because of
their union activities. I shall recommend that this allegation be
dismissed.
3. Paragraphs 13, 14, and 15
On May 5, several employees were absent from work. When
employee James Payne reported to work, Site Manager Smith
commented that he thought that Payne would have “been with
your boys.” I do not credit Smith’s denial that he made the
foregoing comment. The record does not reflect what reply, if
any, Payne made.
On May 7, Payne complained to Site Manager Smith regard-
ing a newly hired employee being paid at a higher rate that
Payne was receiving. Smith attributed the new employee’s rate
to the specific job assignment that he had been given. Smith
told Payne “let’s walk,” and they went to the back of the facil-
ity. Payne noted that Smith had been saying that the new em-
ployee would be transferred “for the last two or three weeks”
but that Payne was “still seeing him in the same position.”
Smith told Payne to “hold on, . . . [t]here are pay scales coming
for you guys that hung around.” Payne testified that he under-
stood the reference to the guys that “hung around” to refer to
the remaining employees. In this same conversation, Smith
advised Payne to “clean up” his tardiness, explaining that he
did not want uppermanagement to have a reason to fire him.
Payne stated that he “thought all of that was resolved.” Smith
replied, “I told you I was going to take care of it . . . but just
clean your time [tardiness] up . . . . [T]hey are still looking at
you, don’t give them no reason.” Smith did not deny the fore-
going conversation.
On May 9, drivers at Port Orange were granted a $3 per day
wage increase retroactive to April 28 and most helpers received
increases ranging from $1.50 to $2. Eastern Regional Vice
President Richard Burke testified that the funds to provide a
wage increase for employees in 2003 were approved in No-
vember 2002.3 Notwithstanding the inclusion of these funds in
the budget, Burke testified that he instructed Ron Tudor, who
had been appointed area manager for Central Florida on Janu-
ary 27, “to hold off on wage increases until he could get his
hands around the operation and the understanding of whether
they were warranted or not.” When asked whether he knew if
raises were implemented at the same time in all Florida loca-
tions, Burke testified that he did not know. Area Manager Tu-
dor acknowledged that raises were given at all facilities he
managed. When asked if he recalled when they were given, he
answered, “No. Because they were given at various times. They
weren’t all given at the same time.”
Smith testified that he asked Tudor to grant the Port Orange
employees a wage increase on March 18. Upon receiving this
request, Tudor testified that he told Smith to “get some stuff
together and we’d sit down and talk about it.” Despite testifying
that he was aware that a pay increase had been budgeted, Tudor
testified that he called “to see if it was budgeted.” Tudor testi-

3 The transcript incorrectly spells Burke’s name as “Birt.” It is
hereby corrected.
ONYX WASTE SERVICES 27
fied that he approved the wage increase, but could not recall
when. He did not testify that he actually met with Smith and
went through any “stuff” that Smith had gathered. Smith did
not testify to gathering any “stuff.” No documents reflecting the
date of approval of the wage increase were produced. Neither
Smith nor Tudor addressed the manner in which the amounts of
the wage increases were determined. Smith acknowledged that
he had sought wage increases from previous area managers, but
no increases had been granted.
Paragraph 13 of the complaint alleges that the Respondent
promised employees a wage increase in order to induce them to
abandon their activities on behalf of the Union and threatened
employees with discharge for engaging in union activities.
Paragraph 14 alleges the granting of the wage increase on May
9 in order to induce employees to abandon the Union. The Re-
spondent’s brief, having overlooked the amended charge in
Case 12–CA–22996, argues that none of the foregoing allega-
tions are supported by a timely filed charge. The amended
charge alleges the threat of discharge and promise of a wage
increase. Although it does not allege the grant of the wage in-
crease, I find that the allegation of the grant is predicated upon
the same legal theory, to induce employees to abandon the Un-
ion, as the promise to grant the increase. The granting of the
promised increase arises from the same factual circumstances
and events as those alleged in the amended charge and is intri-
cately related to the promise. Redd-I Inc., 290 NLRB 1115,
1116 (1988). The issue of the wage increase was fully litigated.
Smith’s admonition that Payne “clean up his tardiness,” al-
though couched in terms that suggested that Smith did not want
Payne to give uppermanagement a reason to fire him, noted that
upper management was “still looking” at him and threatened
that uppermanagement would seize upon whatever reason it
could to discharge him because of his union activities. Smith’s
comments to Payne clearly promised a wage increase. The
foregoing comments of Smith threatened termination because
of Payne’s union activities and promised a wage increase in an
effort to induce employees from supporting the Union in viola-
tion of Section 8(a)(1).
The grant of benefits to employee in the midst of union or-
ganizational activity is not per se unlawful. The burden is upon
the General Counsel to establish “by a preponderance of the
evidence that employees would reasonably view the grant of
benefits as an attempt to interfere with or coerce them in their
choice on union representation.” Southgate Village, 319 NLRB
916 (1995). In meeting that burden, the General Counsel may
rely on an inference of improper motivation based on all the
evidence and the failure of the Respondent to “establish a le-
gitimate reason for the timing of the increase.” Holly Farms
Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d 1362 (4th Cir.
1995). Employee Payne had, prior to May 7, spoken with Site
Manager Smith regarding raises, but prior to the employee
organization activity no raise had occurred, the employees
“would never see it.” In mid-April, Site Manager Smith threat-
ened employees with termination for engaging in union activ-
ity. Following the termination of employee Cavetti on April 28,
when employee Oliva spoke with Smith on April 30 regarding
ceasing the organizational activity, Smith informed him that he
had been directed “to fire everyone involved” with the Union.
Thereafter, DeMarco was fired on May 2. On May 9, employ-
ees received a previously unannounced wage increase retroac-
tive to April 28. Consistent with the reasoning of the Supreme
Court, I find that the Respondent, having shown its fist, ex-
tended a “velvet glove” to its remaining employees, and they
were “not likely to miss the inference that the source of benefits
now conferred is also the source from which future benefits
must flow and which may dry up if it is not obliged.” NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964).
The Respondent presented no basis for the amounts of the
raises. Tudor supposedly requested Smith to “get some stuff
together and we’d sit down and talk about it.” Smith did not
testify to doing so, and Tudor did not testify to any subsequent
conversation with Smith. Although employees at the Respon-
dent’s other Florida locations received raises, Regional Man-
ager Tudor could not recall when those raises were imple-
mented. Whether Smith did request Tudor to grant raises on
March 18 is immaterial. There is no probative evidence that
Tudor took any action until late April, after organizational ac-
tivity had begun. No documentation establishing the specific
date that the increases for the employees at Port Orange were
approved was presented. In short, the Respondent presented no
probative evidence establishing any business justification for its
action. In the absence of any evidence establishing a business
justification for the Respondent’s action, I find, as alleged in
the complaint, that the justification for the wage increase was to
dissuade the Respondent’s remaining employees from support-
ing the Union in violation of Section 8(a)(1) of the Act.
4. Complaint paragraphs 12 and 16
Employee Anthony Oliva did not work on May 5 or thereaf-
ter. In early May, he called Eastern Regional Vice President
Richard Burke explaining that the employees were trying to
start a union and that a few employees had been fired. Burke
advised Oliva that he would look into it and see what he could
do. In a subsequent conversation, several days later, Oliva testi-
fied that Burke asked him what would it take to end the Union.
Oliva told him “if he would just reinstate the employees . . . we
would leave it alone.” There was no further contact between
Oliva and Burke. The General Counsel acknowledges that
Oliva was not an employee, but argues that his testimony cor-
roborates that of Kenneth DeMarco who, as an alleged dis-
criminatee, was an employee.
Employee Kenneth DeMarco was discharged on May 2. Fol-
lowing his termination, DeMarco called Burke telling him that
he did not understand why he got fired for hitting a tree limb
when other employees back trucks into cars and did not get
fired and that he believed he was fired for trying to organize.
DeMarco sent to Burke a copy of a compact disk recording of
the April 17 safety meeting. Thereafter they spoke three or four
times. On one occasion, Burke asked DeMarco “what would it
take for us to make the union go away,” whether the employees
would settle for getting their jobs back. DeMarco answered that
he could not answer for the other employees.
Burke acknowledged that he spoke with Oliva on more than
one occasion, but denied that he mentioned the Union in any
conversation, and he acknowledged that DeMarco sent him a
letter and recording of the safety meeting which he forwarded
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
to the corporate office in Wisconsin. He admitted that DeMarco
“brought up issues” regarding union activity but that the com-
pany does not “normally have union activity in Florida,” and
that he “didn’t take it serious[ly].” He denied asking what it
would take to make the Union go away.
The complaint, in paragraphs 12 and 16, alleges that the Re-
spondent solicited grievances from employees and impliedly
promised to remedy them. Oliva was not an employee.
DeMarco testified that Burke asked what it would take to end
the union organizational campaign, but he reported no promise
made by Burke. He acknowledged that, in a subsequent conver-
sation, Burke informed him that his [DeMarco’s] “firing was
alright.” There was no promise. I shall recommend that the
foregoing allegations be dismissed.
C. The 8(a)(3) Allegations
1. Facts
(a) Bobby Cavetti Jr.
Employee Bobby Cavetti Jr. was terminated on April 28. As
discussed above, Cavetti was in the group of helpers that Site
Manager Smith had accused of engaging in a union meeting
when they were talking together after the safety meeting on
April 17 as the drivers were pre-tripping their trucks. On April
28, Cavetti was assigned to assist driver Stephen Pratt. There is
no question that Pratt was the Company’s slowest driver. Driv-
ers are paid by the day; thus, timely completion of the route
permits the driver and his assigned helper to leave work sooner.
Testimony reveals that several drivers, including Adrian Del
Rio and Grady Wallace, were also concerned about Pratt’s
safety. Cavetti’s unrebutted testimony that Pratt put cotton in
his ears underscores this concern.
On April 28, when making a residential pickup, a bag of gar-
bage fell out of the truck driven by Pratt. As helper Cavetti,
who rode on the rear of the truck, was bending down to pick up
the bag, Pratt began to drive off. Cavetti pressed the buzzer to
alert Pratt that there was a problem. Pratt, who had cotton in his
ears, did not stop. Nor did he check his rear view mirrors,
which would have revealed that Cavetti was not on the truck,
but was standing in the street. Cavetti yelled, but Pratt did not
stop. The customer at whose residence this occurred permitted
Cavetti to use her cell telephone. He called the facility and
explained to Route Supervisor Steve Smith what had occurred.
Approximately a half hour later, presumably as Pratt was con-
tinuing his route, Route Supervisor Steve Smith picked up Ca-
vetti.
Cavetti told Smith that he considered Pratt to be unsafe since
he “left me there when I was loading the truck and that I cannot
work with the man no more because I felt like he wasn’t paying
attention to me.” He added that he did not “want to get hurt or
anything.” He asked if he could be moved to a different truck.
Route Supervisor Smith took Cavetti back to the facility where
he met with Site Manager J. D. Smith. Cavetti repeated to Site
Manager Smith that he “didn’t want to work with the man
[Pratt] because he was unsafe” and asked to be transferred to a
different truck. Smith informed Cavetti that he was directing
him to go back onto the truck to which he was assigned or he
would be terminated. Cavetti refused, and Smith discharged
him.
So far as the record shows, Pratt never reported that he had
somehow lost his helper. Nor did he assert any problem in ser-
vicing his route without a helper. There is no evidence that he
was disciplined in any manner for having left his helper. Pratt
did not testify, thus I have no evidence regarding the manner in
which he reacted when, at the stop he made after leaving Ca-
vetti, he discovered that his helper was missing. So far as the
record shows, he did not call in or make any attempt to return
to his prior stop in order to retrieve Cavetti.
Site Manager Smith testified that he had no conversations
with Cavetti relating to the Union and denied that he was aware
that Cavetti supported the Union. He testified that he dis-
charged Cavetti for refusing to ride as a helper on the truck
with Stephen Pratt.
Employee Adrian Del Rio testified that he, like employee
Cavetti, considered Pratt to be “an unsafe driver.” He requested
not to be assigned with him. After several months, this request
was granted. Del Rio acknowledged that he never specifically
refused a direct order to get on the truck with Pratt. Employee
Grady Wallace also expressed that he did not want to work with
Pratt, that he was “not a very good driver.” He testified that, on
one specific morning upon which he had been assigned to work
with Pratt, he immediately went to Site Manager Smith and
stated that he would not go with Pratt. “Before we started the
route I told him I was not going with Steve Pratt.” He was reas-
signed to a different truck. He was not disciplined.
Smith acknowledged that, on September 10, 2002, employee
Thomas Wiley, in direct contradiction to Route Supervisor
Steve Smith’s instruction, waited for an hour for a cement truck
to move so that he could make a specific pickup before continu-
ing with his route. Wiley received a written warning for insub-
ordination. On February 10, employee Jarad Doyle simply went
home after working for one and a half hours. He received a
written warning.
(b) Kenneth DeMarco
Employee Kenneth DeMarco has 27 years experience in
waste management. He was terminated by the Company on
August 27, 2002, when his license was suspended. Site Man-
ager Smith had, upon the suspension of DeMarco’s license,
reassigned him as a helper, with a concomitant reduction in
pay, but the area manager at that time, Douglas Miles, de-
manded that he be terminated. Thereafter, Site Manager Smith
contacted DeMarco, asking him to return. DeMarco did so on
February 26, 2003. Smith testified that he was rehired, subject
to the Company’s 90-day probationary period. DeMarco testi-
fied that he understood he had been reinstated. Notwithstanding
his belief that he had been reinstated, DeMarco acknowledged
that he was not receiving vacation benefits. He did not know
whether he was receiving medical benefits.
As already discussed, DeMarco acknowledged to Site Man-
ager Smith on April 22 that it was he who had provided the
information that put employees in touch with the Teamsters
Union. Beginning on April 28, DeMarco was assigned to the
route of employee who was on vacation. Initially he drove his
truck. That truck was leaking hydraulic fluid, so much so that
ONYX WASTE SERVICES 29
DeMarco had to have it filled on a daily basis. On Thursday,
May 1, it ran out of fluid while DeMarco was driving his route.
He returned to the facility to have the hydraulic fluid filled and
then, according to his testimony, finished the route. Smith, in
recounting the reasons that he fired Demarco, stated that he
“[r]an [the] truck out of hydraulic oil” and left nine pickups.
DeMarco was not responsible for the leak of hydraulic fluid.
DeMarco testified that, after having the hydraulic fluid refilled,
he completed his route, and I credit his testimony. In view of
the fact that DeMarco had the hydraulic fluid refilled at the
facility, I am confident that, if had he not left the facility and
completed his route, Smith would have spoken with him.
On Friday, May 2, DeMarco was assigned truck 7007, rather
than the truck that had been leaking hydraulic fluid. DeMarco
called Smith and “told him the truck was in real bad shape.”
Smith responded that the truck was “the only thing we have to
work with,” therefore, DeMarco “went on doing my route.”
The chief problem with the truck was that it did not have con-
sistent air pressure, it “kept losing air.” When attempting to
empty a dumpster at Trailwoods Apartments, the truck
DeMarco was driving lost all air pressure. DeMarco revved the
motor to bring the air pressure up. He described what occurred
next: “So I was sitting there revving up the motor to bring the
air pressure up and it kicked in and the handle . . . went flying
up. The can [dumpster] went up. It hit the branch. Broke it off.”
DeMarco testified that he called in and reported what had
occurred. Route Supervisor Steve Smith told him that he would
send the cherry picker driver to come out and pick up the
branch. Route Supervisor Smith testified that he discovered the
branch when checking the routes and that he called the cherry
picker. Regardless of how management learned of the broken
limb, there is no evidence of damage to the customer’s prop-
erty.
DeMarco returned to the facility. Site Manager J. D. Smith
arrived shortly after DeMarco. He spoke with DeMarco stating,
“You got in an accident during your 90 days.” DeMarco re-
sponded, “What 90 days?” Smith said, “Go ahead and go.”
DeMarco testified that the foregoing damage to the tree limb
was the only incident of which he was aware after returning to
work on February 26. Site Manager Smith testified that
DeMarco had failed to call in to keep the office aware of his
progress on his route on April 7, that he damaged a customer’s
pavement and lawn on April 29, and that he “[r]an [the] truck
out of hydraulic oil” and left nine pickups on May 1. All of the
foregoing incidents are written on the back of DeMarco’s At-
tendance Controller sheet. Smith initially testified that, al-
though he spoke with DeMarco regarding each of the foregoing
events, they were verbal warnings and he “put them all together
at the time of his termination.” Thereafter Smith changed his
testimony and asserted that, on each occasion he contempora-
neously recorded the dereliction in DeMarco’s presence.
DeMarco credibly denied that any of the foregoing purported
derelictions were brought to his attention or recorded in his
presence. He denied failing to call in or damaging a customer’s
property. Although Route Supervisor Steve Smith purportedly
took pictures and made a report of that alleged damage, no
documents reflecting this were contained in DeMarco’s person-
nel file or produced pursuant to subpoena. Demarco acknowl-
edges having to have the defective truck filled with hydraulic
fluid but denied failing to make any pickups. I find that the
foregoing derelictions, none of which were contemporaneously
brought to DeMarco’s attention, are fabrications.
Smith admitted that he does not terminate every employee
who has performance problems during their 90-day probation-
ary period. Documentary evidence reveals that a number of
employees have damaged the property of customers and been
cited by law enforcement authorities for accidents without be-
ing terminated. On April 8, 2003, employee Alexa Dallaire was
cited for sideswiping a Jaguar. She received a verbal warning.
On November 16, 2001, employee John Carano received a
written warning for failure to report an accident that had caused
property damage. On November 21, 2001, employee Leonard
Walsh damaged a door at a recycling center. He received a
written warning. On January 14, 2003, he was cited for making
an illegal left turn. No discipline was administered. On October
23, 2002, employee Johnny Edwards hit the awning overhead at
a Shell gasoline station. Edwards received a verbal warning and
retraining. On December 11, 2002, employee Ted Wilson dam-
aged the centerboard of an overhang at an apartment complex.
He received a written warning for a second preventable acci-
dent and retraining.
(c) Adrian Del Rio
Adrian Del Rio, a helper, received an arrest warrant from a
court in Broward County, Florida, on May 2. It appears that he
had failed to appear pursuant to a summons that he did not
receive. The record does not establish the nature of the legal
proceeding. Upon receiving the arrest warrant, Del Rio testified
that he called Site Manager Smith and asked what he should do
and that Smith told him to “go and take care of it.” Del Rio,
who does not own a car, went to Broward County by bus. After
making inquiries on Monday and Tuesday, he learned that he
needed to speak with one specific judge. He was not able to do
so until Thursday, and the matter was resolved. He returned to
Port Orange on Friday and, at the end of the day, appeared at
the facility where he spoke with Site Manager Smith. Smith
informed Del Rio that he was no longer employed, that he had
not called in and was a “no call/no show.” Del Rio, although he
had not been incarcerated, replied, “How am I supposed to call
you if I’m supposed be locked up. I called you Friday night and
I asked you what to do and you told me to go.” Smith did not
respond directly, but, according to Del Rio, replied that others
had also been fired including Shannon Malfitano “for being
sick, not coming to work,” Anthony Oliva for walking out,
Jared Doyle “for not coming to work,” and DeMarco for
“knocking the tree limb down.” Smith then noted that he was
“going to get rid of everybody before they get rid of me.”
The General Counsel introduced a payroll action form from
Del Rio’s personnel file that bears the term “walk out.” Al-
though initialed by Site Manager Smith, the document is un-
dated.
Smith testified that Del Rio had not contacted him prior to
going to Broward County, that he had no idea where he was.
He testified that the walk out entry was made by the office
clerical employee and that, although his initials appear on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
document, that Del Rio, pursuant to company policy, was ter-
minated after two consecutive “no call/no shows.”
(d) William Corrigan
On May 5, employee William (Billy) Corrigan was in Jack-
sonville, Florida, at least an hour and a half distant from Port
Orange. Corrigan testified that he called in explaining that his
hand was hurting. On cross-examination he admitted also stat-
ing that his mother was ill. Smith recalls that Corrigan only
mentioned his mother.
Site Manager Smith explained, at the hearing, that May 5
was the beginning of “spring clean up” in Port Orange. It was a
week in which attendance was mandatory, “no personal days,
no vacation.” All absences needed to be documented. He ac-
knowledged telling Corrigan, “Well, you know, it’s a manda-
tory week.” He testified that Corrigan hung up and did not call
the following 2 days.
Corrigan testified to two versions of comments by Smith. He
initially testified that Smith told him, “This is the number
where I can be reached and if you don’t come in today, then
don’t come back in.” Thereafter, Corrigan testified that Smith
told him that “it was a mandatory two weeks” and that if he did
not come in that day he “might as well not come in at all.” Cor-
rigan denied knowing that the week beginning May 5 was
“spring clean up.”
Corrigan’s initial testimony that Smith gave him a telephone
number but then told him if he did not come in that day to not
come in is illogical. From Jacksonville, Corrigan could not
report on time, and he was talking to Smith on the telephone.
His later testimony, with reference to the mandatory workweek,
omitted the reference to the telephone number. I have not cred-
ited Smith’s testimony regarding when he became aware of
employee union activity, nor have I credited his various denials
regarding conversations with employees relating to the Union.
Despite this, I do credit his recollection that his spontaneous
response to Corrigan was to state, “Well, you know, it’s a man-
datory week,” and that Corrigan hung up. He did not tell Corri-
gan that he was terminated.
If, as Corrigan testified, he was unaware of the mandatory
workweek, logic suggests that he would have questioned Smith
about that. The fact that he did not do so suggests that Corrigan
was aware that it was a mandatory workweek and that he con-
cluded that Smith’s statement, “Well, you know, it’s a manda-
tory week,” meant that, if he did not come in that day that he
“might as well not come in at all.” Consistent with this conclu-
sion, Corrigan assumed that he was terminated and did not call
in or return.
The record contains two documents relating to Corrigan’s
termination. An employee reprimand form dated May 8 and
signed by Site Manager Smith reflects that Corrigan was termi-
nated for no-call/no-show on May 6 and 7. The second docu-
ment is an undated payroll action form initialed by Smith that
reflects, “walk out-ncns [no call/no show].”
(e) Shannon Malfitano
Employee Shannon Malfitano did not testify. When called as
an adverse witness, Site Manager Smith testified that Malfitano
called in sick on May 5. He testified that he did not tell Mal-
fitano that he was terminated. An undated payroll action form
initialed by Smith reflects “walk out.” Smith testified that Mal-
fitano was terminated for two consecutive days of “no call/no
show” after he failed to call in on May 6 or 7.
(f) James Payne
The Company permitted Port Orange employees who wanted
additional earnings to work at its Apopka facility, which had
routes on Saturdays, when additional employees were needed at
that location. The arrangement was quite informal. Employee
James Payne explained that, when he wanted to work additional
hours he would inform Site Manager Smith. On some occa-
sions, Smith would tell Payne to call Apopka Route Supervisor
Charles (Charley) Eduardo to see if he needed anyone. On other
occasions, it appeared that Eduardo had already called Smith
since he knew that Apopka needed drivers on Saturday. Prior to
May, Payne had spoken with Route Supervisor Eduardo infor-
mally about the possibility of transferring to Apopka, noting
that he and his girlfriend were thinking about moving to Or-
lando, which is near Apopka. On those occasions, Eduardo had
replied, “[Y]eah, anytime.”
Payne, in early May, was upset that a new employee was re-
ceiving a higher rate of pay than he was. His girlfriend was
nearing completion of school. On May 15, Payne called Edu-
ardo asking him about positions and openings there. Eduardo
told him that “he had recycling, rear-loaders, frontload and roll-
offs,” that Payne could have his “pick of any position.” Payne
asked, “Are you sure you have this for me?” Eduardo said,
“Yes.” Upon receiving that response, Payne informed Eduardo
that he was “going to go in and ask for a transfer.” Eduardo
replied, “Okay. Give me a call back when you come up.” Route
Supervisor Eduardo admitted that Payne called him and re-
quested a transfer. He places the date of the call as Tuesday,
May 13, rather than Thursday, May 15. He recalls that Payne
told him that he was moving to Orlando and asked if he had a
position open could “he work for me.” Eduardo admits that he
said yes.
On Thursday, May 15, Payne approached Route Supervisor
Steve Smith regarding a transfer. They were joined in the office
by Site Supervisor J. D. Smith. Upon hearing Payne’s request,
Smith responded, “You want a transfer? I’ll transfer your butt
right out of here.” Payne did not understand Smith’s response
to be a grant of his request, so he repeated “I need to get the
transfer” and added “or we will make Friday my last day.”
Smith recalls that Payne stated, “Either I receive a transfer to
Apopka tomorrow or tomorrow is my last day.” Smith told
Payne to talk to him in the morning.
According to Smith, he called Central Florida Operations
Manger James Fountain, who is Eduardo’s supervisor, and
asked whether he had any positions available in Apopka. Ac-
cording to Smith, Fountain replied, “None at [sic] my knowl-
edge.” Smith acknowledged that he did not talk to Route Su-
pervisor Charles Eduardo, explaining that Eduardo did not have
the authority to approve transfers.
On the morning of May 16, Payne spoke with Site Manager
Smith when he arrived at the facility. Smith told him, “We
don’t have anything over there for you.” Payne asked, “Who
did you talk to?” Smith repeated, “We don’t have anything over
ONYX WASTE SERVICES 31
there for you.” Payne asked, “Did you talk to Charley [Edu-
ardo]?” Smith replied that he had talked to Eduardo. Payne
asked, “And Charley told you there’s nothing available for me
over there?” Smith answered “Yeah.” Payne explained, “I just
talked to Charley yesterday before I came in the office and he
said he had all kinds of positions open for me.” Smith re-
sponded, “Well, they don’t have nothing for you. So maybe you
might want to try back later.” Payne said, “Okay. So do I go
clock in?” Smith said, “No.” Payne asked why not, and Smith
replied, “We are going to go ahead and make it without you.”
Smith recalls that he said, “I accept your resignation,” referring
to Payne’s comment the previous day. Payne denies that Smith
made that statement. The foregoing conflict in testimony is
immaterial. Payne was informed that he was no longer em-
ployed at Port Orange.
I find, contrary to Smith, that he called no one. He admitted
that he did not call Eduardo, although I credit Payne that Smith
told him that he had called Eduardo. Although Smith testified
that he actually called Operations Manager James Fountain on
Thursday, Eduardo credibly testified that on Friday, which
would have been May 16, Fountain informed him that he had
not been called by Smith. Furthermore, and of far more signifi-
cance, Eduardo did not deny that positions were available.
Payne left the facility at Port Orange and called Eduardo, ex-
plaining that Smith claimed to have talked to him. Eduardo
replied that no one had talked to him and that Payne could
come over at that time. Payne, aware that there was “gridlock
traffic” that time of day, asked if he could start on Monday.
Eduardo agreed that would be acceptable. Eduardo denied sug-
gesting that Payne report on Friday. According to Eduardo, he
informed Payne that he could not start him on Monday “be-
cause we got to get permission with your supervisor and con-
tact my boss before you can start work.” I do not credit that
testimony in view of their next conversation which both agree
occurred on Sunday.
On the afternoon of Friday, May 16, Payne returned to the
Port Orange facility to pick up his check. When he did so, he
was told to turn in his uniforms. Payne explained that he had
talked to Eduardo and that Eduardo had told him to keep his
uniforms. Site Manager J. D. Smith questioned Payne, saying,
“[Y]ou got ahold of Charlie?” Payne replied that he had and
was starting Monday morning. Route Supervisor Smith told
Payne that he still had to turn in his uniforms. Site Manager J.
D. Smith did not deny this conversation.
At some point during the weekend Darin Davis, Payne’s
cousin who works at Apopka, informed Payne that he had heard
that Payne would not be starting at Apopka on Monday.
Upon hearing the foregoing Payne called Eduardo and asked
if he was still starting “in the morning.” Eduardo replied, “No.
Something has come up.” Eduardo asked what telephone Payne
was using and Payne replied that he was on his home tele-
phone, not a company cell telephone. Eduardo then explained
that “Whatever you got going on over there at your job site I
cannot bring you on board right now.” Payne, noting that Edu-
ardo had told him on Friday that he could come to work, asked
why “all of a sudden I can’t?” Eduardo replied, “My bosses are
coming at me and they are telling me it’s not in my best interest
to hire you.” Payne asked what he meant by that and Eduardo
replied, “Whatever it is it’s so big in upper management until
they are threatening me with my job.”
A portion of the foregoing conversation was overheard by
Payne’s mother. She recalls hearing Eduardo state to Payne, “I
was advised that it would be in my best interest not to hire
you.” The parties stipulated that the telephone bill of Payne’s
mother reflects that on May 18, at 6:19 p.m., a long distance
telephone call lasting 5 minutes was made from her number.
Eduardo acknowledges receiving the telephone call from
Payne on Sunday. According to Eduardo, Payne asked him why
they would not give him a transfer and that he replied, “James,
I don’t know nothing about it.” I credit the mutually corrobora-
tive testimony of Payne and his mother. Payne was told not to
report to work on Monday because Eduardo had been informed
that it would not be in his “best interest to hire” him.
On Monday, in order to assure that the Company did not
treat him as a “no show,” Payne went to Apopka. Eduardo in-
formed Payne that he had talked with him “last night” and told
him that he could not put him on and that he could not talk to
him at that time. Payne replied that he understood and left.
Eduardo denied that Payne reported for work on Monday morn-
ing. I do not credit that testimony.
Payne returned to Port Orange and waited until Site Manager
Smith returned to the office. Smith greeted him and asked why
he was not in Apopka learning his new routes. Payne re-
sponded, asking, “What happened? I’m getting black balled.”
Smith replied, “[T]hat’s strange.” Payne, without repeating the
Sunday telephone conversation with Eduardo, told Smith that
Eduardo had told him that he could not “bring me aboard for
some reason.” Smith suggested that Payne call Area Manager
Ron Tudor, and wrote down his telephone number. Payne then
addressed Smith asking, “You don’t know what’s going on?”
Smith replied, “Honestly? I think it’s got something to do with
that Kenny DeMarco thing,” which Payne understood to be a
reference to the employees’ union involvement.
Payne called the number Smith had given him. He asked the
woman who answered the telephone to have Tudor call him,
and left his telephone number. Thereafter, he left a message on
an answering machine. Tudor never called. Operations Man-
ager James Fountain did not testify.
2. Analysis and concluding findings
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), holds
that, to establish a violation under Section 8(a)(3), the General
Counsel is required to show by a preponderance of the evidence
that animus against protected conduct was a motivating factor
in the employer’s conduct. Once this showing has been made,
the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct. To sustain his initial burden, the General Coun-
sel must show (1) that the employee was engaged in protected
activity, (2) that the employer was aware of the activity, and (3)
that the activity was a substantial or motivating reason for the
employer’s action.
All of the alleged discriminates engaged in union activity.
All except Corrigan had been at Payne’s house on April 10. On
April 11, Site Manager J. D. Smith cautioned Payne regarding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
who he was permitting to enter his home. On April 17, Site
Manager Smith accused helpers Cavetti, Corrigan, Del Rio,
Malfitano, Oliva, and Doyle of engaging in a union meeting on
company property. On April 22, DeMarco admitted to Smith
that he had provided the information that put employees in
touch with the Union. On April 28, Cavetti was fired. On May
2, DeMarco was fired. On May 5, Corrigan, Del Rio, Mal-
fitano, Oliva, and Doyle were absent and Site Manager Smith
commented to Payne that he thought Payne would be with “the
rest of his boys.” I find that the Respondent was aware that
Payne, DeMarco, Cavetti, Corrigan, Del Rio, and Malfitano, as
well as Oliva and Doyle who are not alleged as discriminatees,
were engaging in union activities.
The statements of Site Manager Smith that threatened and
coerced employees in violation of Section 8(a)(1) of the Act
establish animus towards employee union activity. Smith’s
statement to Oliva that he had been directed “to fire everyone
involved” establishes that employee union activity was a moti-
vating factor in the termination of each of the alleged discrimi-
natees. The General Counsel having established that union
activity was a motivating factor in the Respondent’s actions,
the burden shifts to the Respondent to demonstrate that the
same action would have taken place even in the absence of the
protected conduct.
The Respondent’s employee manual states that employees
who do not call in or show up for work for two consecutive
days will be terminated. The General Counsel, in his brief,
notes that some documents reflecting such terminations reflect
3 days of no no-call/no-show and argues that this reflects in-
consistent application of the rule. Smith explained that, if the
document was not filled out until the morning the third day and
the employee had still not called in, that third failure might also
be noted. There is no evidence of inconsistent application of the
2-day no-call/no-show rule. Employee Darin Davis, noted in
the General Counsel’s brief as having tendered a doctor’s ex-
cuse on the second occasion of a single day no-call/no-show,
did not have 2 consecutive days of no-call/no-show. Of the
alleged discriminates terminated for violation of the no call/no
show rule, only Del Rio is shown to have had contact with the
Respondent and that occurred after 4 days of no contact. The
Respondent, although denying knowledge of union activity by
Corrigan, Del Rio, and Malfitano, contends that all three em-
ployees were terminated for violation of this rule.
The General Counsel, noting the entry “walk out” on the
payroll change form of each of those three employees, argues
that they were terminated because the Respondent believed that
they were engaging in protected concerted activity. The forego-
ing argument has no merit. The General Counsel presented no
evidence of a concerted walkout. Notwithstanding the entry on
the payroll change form, there is no evidence that the reference
to “walk out” related to protected concerted activity rather than
the contemporaneous quitting of employment by dissatisfied
employees. The Respondent had no reason to believe that either
Corrigan or Malfitano were engaged in a concerted walkout
since both called in sick, and employee Del Rio testified that he
had permission to be absent in order to take care of his legal
problems in Broward County. The General Counsel did not
question any employee regarding a purported concerted walk-
out. Former employees Oliva and Doyle, neither of whom ap-
peared at work on May 5, are not alleged as discriminatees.
Oliva testified, but the circumstances relating to his separation
were not addressed. There is no evidence that the Respondent
took any action whatsoever against any of the employees who
did not appear at work on May 5 until they had failed to call in
or show up for 2 consecutive days in violation of the Respon-
dent’s work rules.
Employee Malfitano did not testify, thus Smith’s testimony
that he called in sick on Monday, May 5, but did not call in or
show up for work on Tuesday and Wednesday is uncontra-
dicted. Smith testified that he did not tell Malfitano that he was
fired on Monday and that he was terminated after he failed to
call in or report pursuant to the no-call/no-show rule.
Del Rio admittedly did not call in from Broward County.
Smith denied knowing that Del Rio was in Broward County
taking care of a legal matter. Del Rio does not contend that
Smith told him that he did not have to call in. He claims only
that Smith only told him not to ignore the arrest warrant that he
had received. Even if I credit Del Rio, Smith had no idea
whether he had been incarcerated, and if so for how long, or
whether matters were swiftly resolved and Del Rio would be
returning on Tuesday. Del Rio was aware of the no-call/no-
show rule, having been disciplined for several single day in-
stances of no call/no show. Despite this, he did not call in.
Employee Corrigan did not call in on May 6 or 7. Although
Smith reminded Corrigan, when he called in on May 5, that it
was a mandatory workweek, I have found that he did not tell
Corrigan, who was in Jacksonville, that if he did not come in
that day that he need not come in at all. Corrigan, who purport-
edly did not know about the mandatory workweek but did not
ask Smith what he was referring to regarding a mandatory
workweek, concluded that he was terminated, hung up, and
thereafter did not call in. The Respondent was not responsible
for Corrigan’s erroneous conclusion that he had been fired.
I find that the Respondent has rebutted the General Coun-
sel’s prima facie case and established that employees Corrigan,
Del Rio, and Malfitano would have been discharged even in the
absence of their union activity. I shall recommend that the alle-
gations relating to their terminations be dismissed.
The Respondent argues that employee Bobby Cavetti Jr.,
was terminated for his refusal to return to his assigned route
which was the truck driven by employee Steve Pratt. Uncontra-
dicted testimony by employee Grady Wallace establishes that
he, like Cavetti, refused to ride with Pratt and that he not only
was not terminated, he was not even disciplined. He was as-
signed to a different truck. The Respondent, without addressing
its treatment of Wallace, argues that Cavetti refused to return to
his assigned route. I find the foregoing argument has no weight
whatsoever since Pratt continued his route without making any
attempt to retrieve Cavetti, never reported that he had left his
helper on the street, and was not disciplined for any of the fore-
going actions. Pratt was obviously unconcerned that he had lost
his helper, thus the continued absence of Cavetti was no differ-
ent from an operational standpoint than employee Wiley, in
direct contradiction to Route Supervisor Steve Smith’s instruc-
tion, waiting for a cement truck to move or employee Doyle
going home without notice after working only one and a half
ONYX WASTE SERVICES 33
hours. Both of those employees received only written warnings.
I do not credit Smith’s testimony that he determined to dis-
charge Cavetti for insubordination after he refused to return to
the truck of a driver who had cotton in his ears, who had not
confirmed where his helper was when leaving the pickup, who
had not returned to pick him up, and who had not even reported
the incident. I find that the Respondent terminated Cavetti pur-
suant to Area Manager Tudor’s direction to “fire all that were
involved.” The Respondent has not established that Cavetti
would have been terminated in the absence of his union activ-
ity.
The Respondent contends that DeMarco was terminated for
failing to call in on April 7, damaging a customer’s pavement
and lawn on April 29, running his truck out of hydraulic fluid
and leaving nine pickups on May 1, and knocking down a tree
limb on May 2. I have found that the purported derelictions by
DeMarco prior to May 2 were fabricated and, contrary to
Smith’s revised testimony, were not contemporaneously re-
corded in DeMarco’s presence. On May 1, DeMarco did have
the defective truck that he had been assigned filled with hy-
draulic fluid, but he made all of his pickups. The only flaw in
DeMarco’s performance was the breaking of a tree limb when a
different defective truck to which he had been assigned sud-
denly regained air pressure. So far as this record shows, and as
reflected by the various incidents noted in the factual discussion
relating to DeMarco, the Respondent has never terminated an
employee for a single accident. Smith, pursuant to the direction
to “fire all that were involved,” terminated Demarco who had
admitted to him that he had provided the information regarding
how to contact a union representative. The Respondent has not
established that Demarco would have been terminated in the
absence of his union activity.
The Respondent argues that Payne resigned and that it ac-
cepted his resignation. Payne admits stating that, if he did not
receive a transfer “we will make Friday my last day.” He did so
only after assuring that there were positions available at
Apopka and that Route Supervisor Eduardo was offering him a
job. Smith, having been given a resignation from the individual
who had been conducting union meetings in his home, did
nothing. The following morning, after untruthfully informing
Payne that he had called Charley Eduardo and that no positions
were available, he accepted Payne’s resignation.
As discussed above, Payne disputed Smith’s assertion that
there were no positions available at Apopka and, after leaving
the facility, contacted Eduardo with whom he agreed that he
would report on Monday. Unfortunately for his continued em-
ployment, Payne conveyed that information to Smith when he
picked up his check on Friday afternoon. I need not speculate
regarding what telephone calls may have been made between
Smith and various managers of the Respondent. It is clear that,
as a result of that contact, Payne learned on Sunday that Edu-
ardo was not going to put him to work on Monday because it
was not “in his best interest” to do so. Site Manager Smith did
not deny speaking with Payne on Monday morning and stating
that he thought that the failure of the Respondent to hire Payne
at Apopka had “something to do with that Kenny DeMarco
thing.”
Payne, on Friday morning, requested that he be allowed to
clock in. Smith refused. Smith’s confirmation that Payne said
“tomorrow is my last day” establishes his intention to work on
Friday. The Respondent’s failure to permit Payne to work on
Friday, May 16, violated the Act.
I agree with the General Counsel, on the basis of the evi-
dence presented, that Smith, by failing to approve Payne’s
transfer, effectively discharged him. The Respondent’s brief
simply argues that Payne resigned and that the Respondent
accepted his resignation. Lest there be any contention that
Payne’s failure to have continued his employment with the
Respondent was unrelated to his union activity, I find, pursuant
to the criteria set out in FES, 331 NLRB 9, 12 (2000), that the
Respondent had positions available and had concrete plans to
hire Payne at Apopka as stated by Eduardo to Payne on either
May 13 or 15 and that Payne was fully qualified for several
positions having worked at the Apopka facility on Saturdays.
The failure to hire him was directly attributable to antiunion
animus. In their Sunday telephone conversation, Eduardo in-
formed Payne he could not put him to work because of
“[w]hatever you got going on over there at your job site.” On
Monday, Smith confirmed to Payne that his failure to have been
hired at Apopka was related to “that Kenny DeMarco thing,” in
other words, to Payne’s involvement with the Union. Whether
considered as a discharge, a refusal to transfer, or a refusal to
hire, the Respondent’s failure to continue Payne’s employment
was in retaliation for his union activity and violated the Act.
I find, as alleged in the complaint, that employees Cavetti,
DeMarco, and Payne were discharged because of their union
activities in violation of Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By creating the impression that employees’ union activi-
ties were under surveillance, threatening employees with dis-
charge for talking about the Union on company property, inter-
rogating employees regarding their union activities, threatening
employees with discharge for engaging in union activities,
promising employees a wage increase in order to dissuade them
from supporting the Union, and granting employees a wage
increase in order to dissuade them from supporting the Union,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By discharging Bobby Cavetti Jr., Kenneth DeMarco, and
James Payne because of their union activities, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Onyx Waste Services, Port Orange, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting International Brotherhood of Teamsters,
Local 385, AFL–CIO, or any other union.
(b) Creating the impression that employees’ union activities
are under surveillance.
(c) Threatening employees with discharge for talking about
union meetings on company property.
(d) Interrogating employees regarding their union activities.
(e) Threatening employees with discharge because of their
support for the Union.
(f) Promising employees a wage increase and granting a
wage increase in order to dissuade employees from supporting
the Union
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bobby
Cavetti Jr., Kenneth DeMarco, and James Payne full reinstate-
ment to their former jobs or, if those jobs no longer exists, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Bobby Cavetti Jr., Kenneth DeMarco, and James
Payne whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in the man-
ner set forth in the remedy section of the decision.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Port Orange, Florida, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 11, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

5 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.”