Refuse Compactor Service

National Labor Relations Board - Board Decisions

May 13, 1993

311 N.L.R.B. 12 (N.L.R.B. 1993)

12
311 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On October 28, 1992, Administrative Law Judge Frederick C.
Herzog issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel filed limited ex-
ceptions, a supporting brief, and a brief in support of the judge’s
other findings and conclusions. The Charging Party and the General
Counsel filed answering briefs to the Respondent’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 We note that there are no exceptions, inter alia, to the judge’s
findings that the Respondent violated Sec. 8(a)(5) by unilaterally im-
plementing a merit pay plan and granting individual wage increases.
3 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance 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.
4 The Respondent has excepted to the judge’s failure to find that
it lawfully refused to reinstate former unfair labor practice strikers.
It alleges that changes in the volume and nature of its business re-
sulted in the elimination of jobs prior to the date of the former strik-
ers’ offer to return to work. The Respondent has failed, however, to
prove this defense. Accordingly, we affirm the judge’s finding of an
8(a)(3) violation and we adopt his remedial recommendation that the
Respondent reinstate and give backpay to the former strikers. The
Respondent may seek to prove in compliance proceedings that eco-
nomic events subsequent to the date of violation justify limitation of
its reinstatement and make-whole liability. 5 E.g., Ford Bros., Inc., 294 NLRB 107 (1989).
Refuse Compactor Service, Inc. and The United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, Local 179. Cases
31–CA–18073, 31–CA–18175, 31–CA–18245,
31–CA–18287, 31–CA–18385, and 31–CA–18497
May 13, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Questions presented to the Board in this case in-
clude: whether the judge correctly found that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing to reinstate unfair labor practice strikers who
unconditionally offered to return to work; whether one
such striker abandoned his employment prior to the
Union’s request for reinstatement; and whether the
judge correctly found that certain conduct by the Re-
spondent’s president, Art Nevill, did not violate Sec-
tion 8(a)(1) of the Act.1
The Board has considered the decision and the
record in light of the exceptions2 and briefs and has
decided to affirm the judge’s rulings, findings,3 and
conclusions, except as set forth below, and to adopt his
recommended Order,4 as modified.
1. In exceptions, the General Counsel contends that
the judge erred by failing to find that the Respondent’s
president, Nevill, violated Section 8(a)(1) by threaten-
ing violence against the families of picketers and by
burning a picket sign in the presence of picketers. We
agree with the General Counsel.
Certain of the Respondent’s employees in a bargain-
ing unit represented by the Union engaged in a lawful
strike from November 17, 1989, until August 17, 1990.
Nevill was involved in several confrontations with em-
ployees on the picket line during this period. Two
times on a single mid-January day, he deliberately or
recklessly drove a forklift into a peacefully picketing
employee. On March 13, Nevill and the Respondent’s
vice president, Gene Butterfield, closed a gate with
such uncharacteristic speed or force that it struck a
picketer. Sometime after the gate incident, Nevill ac-
cused a group of picketers of whistling at his wife. In
a statement laced with expletives, he told the picketers,
‘‘If you come and bring your . . . families, I’ll run
over them.’’ Finally, in July, Nevill burned a picket
sign while yelling expletives at picketers.
The judge found, and it is not further contested here,
that Nevill violated Section 8(a)(1) by his conduct in
the forklift and gate-closing incidents. On the other
hand, he found that the threat to run over the families
of picketers lacked ‘‘sufficient immediacy to rise to the
level of a violation.’’ He also found that Nevill’s sign-
burning was part of the routine exchange of profanity
on the picket line and would not therefore tend to
interfere with, restrain, or coerce employees engaged in
protected activities.
Contrary to the judge, we find that both the threat
of violence to picketers’ families and the sign-burning
were unlawful. The proper test of such conduct entails
an objective assessment of its reasonable effects on
employees.5 In this case, such an assessment must in-
clude consideration of Nevill’s notorious prior willing-
ness to interfere physically with picketing activities.
In the context of such prior unlawful conduct, pick-
eters would not likely view the threat to run over their
families as lacking immediacy. On the contrary, these
employees would reasonably consider Nevill’s state-
ment as a threat of continued unlawful physical retalia-
tion against them, and they would reasonably be de-
terred from continuing those activities or from enlist-
ing relatives to support them on the picket lines. Simi-
larly, Nevill’s sign-burning was not just part of the
routine adversarial exchange of picket line profanities.
It signaled his predeliction to go beyond mere speech
in response to protected picketing activities. Regardless
of whether an employer’s burning of a picket sign
might be noncoercive ‘‘street theatre’’ in some other
circumstances, the Respondent’s employees would not
likely mistake Nevill’s conduct as such in this case. In-
stead, in light of Nevill’s prior unfair labor practices,
employees would reasonably tend to perceive an im-
plicit threat of physical violence in the sign-burning. In
addition, at the very least, a sign-burning literally inter-
feres with the right to picket.
13REFUSE COMPACTOR SERVICE
6 We note, however, that the judge failed to include appropriate
references in the conclusions of law and in the recommended notice
to several 8(a)(1) findings. We shall amend the conclusions of law
and substitute a new notice to correct this oversight.
Based on the foregoing, we find that the Respondent
violated Section 8(a)(1) of the Act by Nevill’s threat
to run over the families of employees engaged in pro-
tected picketing activities and by his act of burning a
picket sign in the presence of picketers.
2. The General Counsel has also excepted to the
judge’s failure to find that Nevill violated Section
8(a)(1) by specifically promising employees a 25-cent
wage increase during a series of meetings held on No-
vember 17, 1989. The exceptions are based on the tes-
timony of employee Genaro Hernandez, whom the
judge found to be generally credible, but unreliable
‘‘for details of a technical nature.’’ We find it unnec-
essary to resolve this issue. Based on a composite of
the testimony of Hernandez and fellow employee
Regulo Catalan, the judge found that Nevill violated
Section 8(a)(1) by promising to ‘‘help’’ employees.
(See JD sec. III,D,2.) The promise was made in the
context of a discussion of wage increases and was part
of a speech aimed at deterring unionization. The Re-
spondent does not except to this 8(a)(1) finding. Ac-
cordingly, a finding of an express unlawful promise of
a specific wage increase would be cumulative and
would not affect the remedy recommended by the
judge.
Similarly, there is no need to find a separate 8(a)(1)
violation, as urged in the General Counsel’s excep-
tions, based on credited testimony that Nevill told em-
ployees on November 17 that supporting the Union is
‘‘like being in Russia.’’ The judge appropriately treat-
ed this and similar statements by Nevill on that day as
collectively violating Section 8(a)(1) by threatening the
futility of unionization.6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6.
‘‘6. By threatening automatically to fire all employ-
ees who chose to participate in an economic strike, by
threatening employees that their unionization efforts
will be futile, by implicitly promising a wage increase
to discourage employees from supporting the Union,
by running a forklift into an employee peacefully pick-
eting Respondent’s premises, by closing a gate in such
a way as to cause it to strike an employee while the
employee was peacefully picketing Respondent’s
premises, by threatening violence against picketing em-
ployees’ families, and by burning a picket sign in the
presence of picketing employees, the Respondent has
violated Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Refuse
Compactor Service, Inc., Sylmar, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraphs 1(b) and
(c).
‘‘(b) Threatening employees that their unionization
efforts will be futile, or implicitly promising wage in-
creases to employees in order to discourage their sup-
port for a union.
‘‘(c) Running forklifts into or closing a gate on em-
ployees engaged in protected picketing, threatening vi-
olence against picketing employees’ families, and
burning picket signs in the presence of picketing em-
ployees.’’
2. Substitute the attached notice for that of the ad-
ministrative 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 the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively in good
faith concerning rates of pay, wages, hours, and other
terms and conditions of employment with the United
Automobile, Aerospace and Agricultural Implement
Workers of America, Local 179, as the exclusive col-
lective-bargaining representative for our employees in
the following appropriate unit:
Included:
All full-time and regular part-time production
and maintenance employees, including truck-driv-
ers, welders, machine operators, painters, forklift
drivers and fabrication employees employed by
Refuse Compactor Service, Inc., at its location at
12776 Foothill Blvd., Sylmar, California.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 8(a)(1) of the Act provides that
It shall be an unfair labor practice for an employer—
. . . to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed in section 7;
Sec. 7 of the Act provides that
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).
2 Sec. 8(a)(3) of the Act provides that
It shall be an unfair labor practice for an employer—
. . . by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage
or discourage membership in any labor organization:
3 Sec. 8(a)(5) of the Act provides that
It shall be an unfair labor practice for an employer—
. . . to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 9(a).
Sec. 8(d) of the Act provides that
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
agreement or any question arising thereunder, and the execution
of a written contract incorporating any agreement reached if re-
quested by either party, . . . .
4 Each of which was either withdrawn or stricken at trial.
5 Respondent was represented on brief by different counsel than
those representing it at trial.
Excluded:
Office clerical employees, sales employees,
confidential employees, managerial employees,
professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT unilaterally alter any of the terms and
conditions of employment of our employees in the
above-described bargaining unit.
WE WILL NOT discourage membership in or activi-
ties on behalf of the Union or any other labor organi-
zation by discharging employees or by refusing to rein-
state unfair labor practice strikers who have uncondi-
tionally offered to return to work.
WE WILL NOT threaten employees with loss of em-
ployment as a result of union activities or advise em-
ployees of the futility of unionization efforts.
WE WILL NOT implicitly promise increases in wages
to discourage employees from supporting the Union.
WE WILL NOT run forklifts into employees engaged
in protected picketing activities, strike employees with
plant gates, threaten employees’ families, or burn
union picket signs in front of employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL offer Augustin Godoy Lopez and all
former unfair labor practice strikers immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from our discrimination against them, less any
net interim earnings, plus interest.
WE WILL notify Lopez and all unreinstated unfair
labor practice strikers that we have removed from our
files any reference to discharge or to the refusal to re-
instate and that such prior unlawful actions will not be
used against them in any way.
REFUSE COMPACTOR SERVICE, INC.
Ann L. Weinman, Esq., for the General Counsel.
Reed E. Schaper, Esq. (Pepper, Hamilton & Scheetz), of Los
Angeles, California, for the Respondent.
D. William Heine, Esq. (Schwartz, Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, for the Charging
Party.
DECISION
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Los Angeles, California, on June
13, 14, 18, and 19, 1991, and is based on charges filed by
The United Automobile, Aerospace and Agricultrual Imple-
ment Workers of America, Local 179 (the Union) on various
dates between January 23 and October 29, 1990, alleging
generally that Refuse Compactor Service, Inc. (Respondent)
committed certain violations of Section 8(a)(1),1 (3),2 and
(5)3 of the National Labor Relations Act (the Act). On June
28, 1990, the Regional Director for Region 31 of the Na-
tional Labor Relations Board (the Board) issued a consoli-
dated complaint and notice of hearing in certain of the cases
set forth above, and subsequently, on March 29, 1991, the
Regional Director issued an order consolidating cases, third
amended consolidated complaint and notice of hearing, alleg-
ing violations of Section 8(a)(1), (3), and (5) of the Act. Re-
spondent thereafter filed a timely answer to the allegations
contained within the complaint, denying all wrongdoing, and
alleging certain affirmative defenses.4
All parties appeared at the hearing, and were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
file briefs. Based on the record, my consideration of the
briefs filed by all parties,5 and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a California corporation, with an office and
place of business in Sylmar, California, where at all times
15REFUSE COMPACTOR SERVICE
6 Hernandez testimony proved difficult to evaluate. Much of his
difficulty may have been due to the problems of interpretation, how-
ever. While I would not rely on his testimony for details of a tech-
nical nature, I am confident that he was a truthful witness, and that
his testimony, which was generally consistent with that of Soriano,
is sufficiently credible.
material it has been engaged in the business of manufactur-
ing, selling, and servicing commercial refuse compactors, and
that, in the course and conduct of its business operations, Re-
spondent annually purchases and receives, at its facility men-
tioned above, goods or services valued in excess of $50,000
from sellers or suppliers located within the State of Califor-
nia, which sellers or suppliers receive such goods in substan-
tially the same form directly from outside the State of Cali-
fornia.
Accordingly, I find and conclude that Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
Respondent has operated in the business described above
for a number of years from its facility in Sylmar, California.
In its business of manufacturing, selling, and servicing com-
mercial refuse compactors, it employs a variety of crafts, in-
cluding welders, machine operators, mechanics, installers,
drivers, and helpers.
Its president and half owner is, and has been, Art Nevill.
Its vice president is, and has been, Gene Butterfield.
The Union, through secret-ballot election, on or about June
23, 1989, was designated and selected by a majority of Re-
spondent’s employees as the exclusive representative, for
purposes of collective bargaining, of all employees in an ap-
propriate unit described as:
Included:
All full-time and regular part-time production and
maintenance employees, including truck-drivers, weld-
ers, machine operators, painters, forklift drivers and
fabrication employees employed by Respondent at its
location at 12776 Foothill Blvd., Sylmar, California,
Excluded:
Office clerical employees, sales employees, confiden-
tial employees, managerial employees, professional em-
ployees, guards and supervisors as defined in Act.
Following the Union’s certification on August 3, 1989, the
parties commenced negotiations toward a first collective-bar-
gaining agreement.
Negotiations continued until on or about November 15,
1989. Respondent then declared impasse, contrary to the
Union’s view that no impasse then existed.
B. The Issues
The principal issues in this case are:
1. Whether Respondent violated Section 8(a)(5) of the Act
by unilaterally granting merit wage increases to unit employ-
ees without first affording the Union an opportunity to bar-
gain.
2. Whether Respondent violated Section 8(a)(1) of the Act
by:
(a) Statements made to employees on November 17, 1989,
which were intended to reduce union support.
(b) Hitting picketing employee Regulo Catalan with a
forklift in or around January 1990.
(c) Hitting picketing employee Jazzier Soriano with a gate
on or about March 13, 1990.
(d) Threatening to run over picketing employees and their
families on or about May 17, 1990.
(e) Burning a union picket sign in front of picketing em-
ployees in or around July 1990.
3. Whether Respondent violated Section 8(a)(1) and (3) of
the Act by:
(a) Discharging picketing employee Agustin Godoy Lopez
for strikeline misconduct.
(b) Failing and refusing to offer striking employees imme-
diate reinstatement as unfair labor practice strikers or, in the
alternative, as economic strikers for whom no permanent re-
placements were hired.
4. Whether striking employee Carlos Ramirez waived his
right to reinstatement by resigning his position with Re-
spondent during the strike.
C. Factual Findings
1. The alleged violations of Section 8(a)(1) at the
meetings of November 17, 1989
Unit employees were scheduled to vote on whether or not
to engage in a strike on November 17, 1989.
On that day, prior to the vote, Respondent conducted
meetings of employees at its facility.
Employee Javier Soriano, a credible witness, testified that
Nevill told employees that
the union was like being in Russia, . . . the union
wasn’t going to tell him what to do in his shop . . .
if [employees thought] that [they] were going to go on
strike, take all [their] belongings, give [him the equip-
ment] if [they] were planning strike.
He went on to testify that Nevill thanked him and others for
their time that they would worked there, and that Nevill stat-
ed that the union was never going to come into his plant, and
that he would rather spend his last cent preventing it from
doing so.
Employee Genaro Hernandez, a generally credible wit-
ness,6 testified that, at a meeting of 18–20 employees on No-
vember 17, Nevill stated they were going to be fired and re-
placed, and that those who later wanted to come back would
have to sign a paper to keep the Union out. Hernandez also
recalled that Nevill told them that they would get a raise of
25 cents per hour if they stayed out of the Union. Further,
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I say ‘‘may’’ because I simply cannot tell what the witness
meant.
8 Nevill made a particularly unconvincing witness. He seemed in-
terested more in showing his impatience with the entire proceeding,
and in exhibiting a superior and mocking demeanor, than in speaking
truthfully and accurately. I infer that his extremely poor demeanor
may have had more than a little to do with the decision by Respond-
ent not to call him to the stand as its own witness. Because of this,
I find that in any instance where counsel for the General Counsel
has presented credible testimonial evidence, even if less than strong,
such evidence should be credited over that which came from
Nevill’s testimony. As to why Respondent chose not to put other
evidence into the record in its own defense, I draw no conclusion.
Its absence, however, is glaring, and is important to the determina-
tion of this case, since it leaves virtually all of the General Counsel’s
evidence unrefuted.
9 At trial, Respondent’s then counsel characterized Respondent’s
policy of granting merit wage increases as ‘‘unpredictable.’’
10 The majority of Respondent’s employees speak only Spanish.
Respondent asserts that it considers bilinguilism an asset.
Nevill may have told them7 that, if they did not support the
Union, they would get new and improved vacation benefits,
going from 1 week of vacation after 1 year’s work, to a pol-
icy of 2 weeks of vacation after 3 years up to their 10th
year. He recalled that Nevill said that he would not let
strangers set foot in his company. While Hernandez initially
testified that he was at the same meeting as Soriano, further
questioning showed that he was referring to another meeting.
In any event, he denied that Nevill mentioned the Russians,
or anything about a contract.
Employee Regulo Catalan, whose testimony I credit, testi-
fied that just before the vote on whether or not to strike he
attended a meeting of Respondent’s, together with about 8–
10 employees. He recalled that Nevill cautioned them to be
very careful about voting to go on strike, and that, if they
voted to go on strike, he would feel sorry, but that would
mean that they were automatically fired. He instructed them,
in that event, to pick up their things and take them away
with them. Catalan went on, with hesitation, to recall that
Nevill stated, while employees were talking of a wage in-
crease, that he would try to help employees, that Nevill said
that he was never going to allow the Union to be the one
giving orders in his company, and that the Union could fine
them unless they signed a paper he had in his office.
Nevill testified that he never told employees he would
spend his last cent to keep his plant from becoming union-
ized. He also denied ever telling employees that he would
never let anyone come into his plant and tell him how to run
his Company.
Based on their superior demeanor while testifying, I credit
the testimony of Soriano and Hernandez over that of Nevill8
on these matters.
Accordingly, I shall find and conclude that the General
Counsel’s credible evidence showed that prior to the strike’s
inception, on November 17, 1989, Respondent held a series
of employee meetings aimed at reducing allegiance to the
Union. Further, I shall find and conclude that Nevill told em-
ployee Javier Soriano, and others who attended a meeting on
that date that supporting the Union is like ‘‘being in Rus-
sia,’’ that he ‘‘was never going to [allow it to] come in his
plant,’’ and that he would ‘‘spend his last cent’’ to keep his
plant from becoming unionized. Further, I shall find and con-
clude that Nevill told employee Genaro Hernandez, and oth-
ers who attended another meeting on that date, that if they
went on strike they would be fired and immediately replaced,
and that Nevill promised ‘‘help’’ or wage increases to em-
ployees who stayed out of the Union.
2. The strike and demand for reinstatement
On or about November 17, 1989, approximately 45–50
unit employees engaged in a strike against the Respondent.
Shortly after it began, approximately 25–30 unit employees
abandoned the strike and returned to work for the Respond-
ent.
On or about August 17, 1990, picketing employees ended
their strike against the Respondent. Thereafter, the Union
sent letters to the Respondent requesting immediate and un-
conditional reinstatement of these employees to their former,
or substantially equivalent, positions of employment.
Respondent denied the Union’s requests to grant the strik-
ers immediate reinstatement. According to Nevill’s testi-
mony, the Respondent did not hire any permanent replace-
ments during the strike.
3. The alleged unilateral raises
As shown above, shortly following the Union’s certifi-
cation on August 3, 1989, the parties began negotiations to-
ward a first collective-bargaining agreement. One subject of
the bargaining concerned creation of a merit review system.
According to the testimony of Nevill, Respondent presented
the Union with a written proposal on this subject. Admit-
tedly, however, no agreement was reached on this matter.
Respondent, thus, admits that it unilaterally granted merit
wage increases to unit employees during the time period in
which it was engaged in collective bargaining with the
Union. Respondent asserts, in justification, that it has had an
‘‘established past practice’’ of granting such merit increases
to its employees. It also admits, however, that it has no for-
mal written policies to demonstrate or evidence the existence
of any such practice.
Nevill testified that Respondent’s policy9 was for employ-
ees to receive annual performance reviews. But he admitted
that the reviews were often not given on the employees’ re-
spective yearly anniversaries. He also testified that employ-
ees could receive merit increases in between their yearly re-
views on the recommendation of a foreman, or himself.
As described by Nevill, discretionary increases were gen-
erally granted by Respondent based on a variety of measur-
ing criteria, such as attendance, attitude, performance, safety
and bilingualism.10 Admittedly, the criteria, like the policy,
do not exist in any written form. For its part, the Union as-
serts the Respondent’s policies fail to rise to the level of an
‘‘established past practice.’’
Nevill’s testimony about the ‘‘practice’’ showed only that
it was not anything more than an exercise of Respondent’s
discretion when employees were granted raises, or when they
were reclassified, or when they were promoted.
Following the introduction of a good deal of evidence, Re-
spondent amended its answer at trial, so as to admit the alle-
gations relating to the alleged unilateral changes.
4. The alleged assaults on employee Catalan
Regulo Catalan, a credible witness, was employed as both
a welder and a sorter prior to the strike. He testified that in
17REFUSE COMPACTOR SERVICE
11 There are two gates in the fence which surrounds the Respond-
ent’s facility. In order for the witnesses to more easily describe the
locality of events, the gates were termed North and South. At trial,
witnesses were shown a diagram of Respondent’s facility and asked
to point out their location during any events to which they testified.
12 According to Catalan, the forklift has a very high seat, which
allows the driver visibility even when carrying a tall load. Catalan
testified that Nevill’s line of vision was higher than it would be if
Nevill were standing on the ground.
13 According to the testimony, the gate is the type in which one
door, or panel, has a stake which is placed in the ground at its
closed position, and the door, when closed, acts as the support for
the other door, which latches to the staked door.
14 I also credit Soriano’s testimony to the effect that Nevill stated
that he would run over the families of strikers who were brought to
the site.
or about mid-January 1990 he was engaged in picketing at
Respondent’s North gate (the gate closest to some nearby
hills) along with three other picketers.11 Around 11 or 12
a.m., a truck arrived and parked at the curb near the gate.
Its driver went into Respondent’s office. A short time later,
Nevill came out of the office, and, with the assistance of
some workers, loaded six boxes onto a forklift. Nevill then
drove the forklift toward the gate. According to Catalan,
Nevill approached the gate and did not stop, slow down, or
give any words of warning before proceeding into the street.
Catalan credibly testified that he was just passing in front
of the gate with his picket sign as Nevill and the forklift ar-
rived. Catalan admitted he saw Nevill coming, but testified
that he did not have enough time, though he tried, after the
danger became evident, to get out of the forklift’s way. The
boxes on the forklift struck him on his left arm. He believed
the forklift was going to stop because, on prior occasions,
forklift drivers other than Nevill had stopped before exiting
the gate to insure the safety of the picketers. Catalan pro-
tested to Nevill that he had to allow people to get out of the
way before driving through, as was usual, to which Nevill
responded that he did not see Catalan.12 Catalan credibly tes-
tified that Nevill, in fact, did have good enough visibility to
see dangers ahead of him, notwithstanding the fact that the
boxes carried on the forklift were about 6-feet high. He testi-
fied that he thought that Nevill saw him as he drove through
the gate, and denied that he was in any way attempting to
impede the progress of the forklift from exiting the gate.
Catalan further credibly testified that, later that same day,
after Nevill loaded boxes onto the truck, he again boarded
the forklift. At this time, the picketers were walking between
the forklift and the fence which borders Respondent’s facil-
ity. According to Catalan, Nevill while looking backwards,
told him to move out of the way, and then, at the same mo-
ment (which he estimated to be within 3 seconds) put the
forklift in reverse gear, and ran into Catalan’s right leg be-
fore Catalan could pull out of the way. This time, Nevill
made no comment, but merely went back into the facility on
the forklift, smiling. Catalan credibly claimed that Nevill was
well aware that he would struck him with the forklift, as he
was looking directly at him when he did so. Catalan, how-
ever, admitted that he was not knocked to the ground, and,
though he claimed to have been caused pain, that he did not
recall whether or not he grabbed the spot where he claimed
to have been struck.
Benjamin Rosales, employed as a welder prior to the
strike, credibly testified that this incident was discussed
among the strikers, and that it made them conclude to ‘‘keep
staying there, and to be more united. . . . And . . . stay
longer.’’
5. The alleged assault on employee Javier Soriano
Javier Soriano credibly testified that on March 13, 1990,
he was engaged in picketing at Respondent’s North gate.
Nevill and Butterfield approached the gate to close it. Nevill
took the North door, Butterfield the South door, and they
started to walk them closed.13
According to Soriano, at that time, Butterfield said, ‘‘You
f—g p—. . . . You should go and look for a job. . . . You
got your little mustache like peach fuzz. . . . You should put
a k— around your mouth and get the f— out of here and
look for a job.’’ Soriano responded, ‘‘F— you.’’
According to Soriano’s credible testimony, during this
verbal exchange Nevill swung the gate at him. The gate
struck him in the ribs and his leg, knocked the wind out of
him, but did not knock him to the ground. As Soriano stum-
bled and grabbed his side, Nevill laughed, called him a ‘‘cry-
baby,’’ and told him to go cry to his lawyers.14
Rosales credibly testified that he was picketing at Re-
spondent’s facility at the time this incident occurred. Rosales
was picketing at the South gate, but had observed Soriano
and Butterfield talking, and Nevill get out of Butterfield’s
car, which was entering the gate. But, then Nevill and
Soriano began having an exchange with raised voices. So, he
began walking along the fence toward the North gate when
he heard the verbal exchange at the North gate increasing in
volume.
According to Rosales, as he arrived at the North gate he
saw the gate swing out and strike Soriano. Rosales admitted
that he did not see Nevill push the gate at Soriano. But he
credibly stated that Nevill was the only person, besides
Soriano, at the North gate when he arrived momentarily
afterwards, and that, there being insufficient wind to cause
the gate to swing closed, in his opinion the gate was swung
by Nevill.
Rosales went on to credibly testify that discussion of this
incident among strikers later that day led them to conclude
that they should ‘‘be more united, stronger, and stay there
fighting.’’
Although Nevill did not testify as to this incident, he did
testify that normally during the strike, Butterfield and he
would close the gates together. Nevill said the one with the
stake had to be walked to its closed position, but that the
other one could simply be ‘‘let go’’ or given a ‘‘little push’’
and it would go to the center by itself.
Jesus Vela Soriano, who was not present when the inci-
dent described above occurred, credibly testified that it was
discussed among the strikers later on during the day it oc-
curred. He stated that the strikers became ‘‘more united’’ as
a result of the incident and its discussion.
6. Other general allegations
a. Javier Soriano credibly testified that sometime following
the gate incident, Nevill accused a group of picketers of
whistling at his wife. Nevill said, ‘‘You f—ing a—. . . .
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 At trial, many of the witnesses referred to Gene Butterfield as
‘‘Jim.’’ According to the interpreter, there is no literal exact trans-
lation for the English name ‘‘Gene.’’
16 The discharge, in pertinent part, read:
You are discharged for engaging in serious picket line mis-
conduct on May 30, 1990. . . . you called Gene Butterfield.
. . . m—f—er . . . . this type of behavior . . . will not be tol-
erated.
17 While Lopez stated that he did not recall any such warning, I
am satisfied that he was not being evasive, or purposely uncertain.
18 The ‘‘remarks’’ section of Ramirez’ separation notice indicates
in typeprint, ‘‘Financial purpose per Carlos.’’
19 Indeed, with the comment from Respondent’s then counsel that
his testimony was truthful.
20 In the persons of ‘‘Diana,’’ ‘‘Linda,’’ and, of significance, Gene
Butterfield.
Who is whistling at my wife. . . . Would you like me to go
whistle at your house? . . . If you come and bring your f—
families, I’ll run over them. . . . I don’t give a f—, you f—
a—.’’
b. Jesus Vela Soriano, employed as a welder prior to the
strike, further credibly testified that around July 1990, he and
others were picketing outside Respondent’s gate. Nevill,
laughing and yelling at the pickets, stood in Respondent’s
parking lot, near the North gate, and attempted to ignite a
union sign with a match. At first the sign did not ignite.
Nevill went into the building and, 5 minutes later, came back
outside with another match, and made another attempt. This
time the picket sign caught fire and Nevill yelled,
‘‘m—f—s,’’ and ‘‘f—g UAW,’’ as the sign burned.
7. The discharge of Lopez
On May 30, 1990, Agustin Godoy Lopez, employed as a
grinder prior to the strike, was discharged. The Respondent
discharged Lopez for swearing at Butterfield. Lopez admitted
swearing at Butterfield. However, Lopez credibly claimed
that he was only responding to Butterfield’s swearing at him.
According to Lopez, Butterfield swore at him on several oc-
casions, throughout the course of the strike.
Jesus Vela Soriano credibly testified that he was picketing
with Lopez at Respondent’s North gate on the day Lopez
was discharged. According to Soriano, when Butterfield ar-
rived at Respondent’s facility, he stopped his car and yelled
‘‘m—f—er’’ and ‘‘f—ers’’ at the picketers. Later that day,
Butterfield came out to close the gate and repeated his re-
marks to the picketers. The picketers responded, ‘‘f— you
Jim.’’15 Butterfield went back inside Respondent’s office, but
returned to the gate, along with Nevill, approximately 20
minutes later and handed Lopez a discharge notice.16
Respondent’s witnesses did not testify to this particular in-
cident. However, Nevill testified generally that ‘‘towards the
end of the strike . . . there was an awful lot of exchange’’
between the Respondent and the picketers. Respondent’s
questions of Lopez implied that Lopez had been previously
warned about the use of such language directed toward
Butterfield, but Lopez’ denial17 stands unrebutted. I found it
credible in this testimony, as well as in his further testimony
that Butterfield routinely provoked, or participated in, ex-
changes of gutter language with those picketing.
Jesus Vela Soriano testified that this incident was another
of the matters spoken about by the strikers. According to
him, the strikers, considering this incident together with the
discharge of Lopez, concluded that they ‘‘had to be united,
. . . [t]o go forward, to keep on going’’ with the strike.
8. The refusal to reinstate Ramirez
On August 2, 1990, Carlos Ramirez, employed as a painter
prior to the strike, and one of the picket captains and a mem-
ber of the Union’s committee, resigned his position with the
Respondent. Ramirez testified that during the strike he
sought employment because he was experiencing financial
problems.18 On his job applications Ramirez indicated he
was on strike. He believed that potential employers were
turning him away because of his on strike status.
Accordingly, on August 9, so Ramirez testified, he submit-
ted a ‘‘resignation’’ to Respondent in order to remove this
impediment to securing other work. He claimed that he in-
tended, following the strike’s settlement, to return to Re-
spondent’s employ.
Ramirez testified credibly, and without contradiction,19
that he told Respondent20 why he was resigning, i.e., that he
had some financial problems, and that he needed a job.
Moreover, Ramirez credibly testified that while he was at
Respondent’s office, submitting his ‘‘resignation,’’ he was
asked by Nevill to accept an offer of employment with Re-
spondent, and replied that, ‘‘I just said that I didn’t want to
have any problem with the company or the union.’’ Specifi-
cally, Ramirez credibly testified that he would have consid-
ered an offer of reinstatement, but not while the strike was
still in progress.
According to Ramirez, a week after his resignation he was
able to secure other employment. He began work at the new
employer on August 17, the same date that the strike was
ended.
D. Analysis and Conclusions
1. The violation of Section 8(a)(5)
The obligation to bargain collectively, though rarely satis-
fied by application of rote or formula, is defined in Section
8(d) of the Act, set forth above.
Here, however, we deal with the very sort of conduct
which is deemed so patently contrary to a genuine desire to
reach agreement that the fact of its occurrence will sustain
a finding of a per se violation.
Any action which flies in the face of the 8(d) requirements
has long been considered to be a per se violation of the Act’s
bargaining duty, regardless of any other good-faith activities.
If an employer, during negotiations, makes unilateral changes
in a merit wage policy, which is deemed to be a ‘‘manda-
tory’’ subject for bargaining, it will be held guilty of a per
se violation of Section 8(a)(5). When faced with such a situ-
ation, the Supreme Court said:
[A] refusal to negotiate in fact as to any subject which
is within Section 8(d) and about which the union seeks
to negotiate, violates Section 8(a)(5), though the em-
ployer has every desire to reach agreement with the
union upon an overall collective bargaining agreement
19REFUSE COMPACTOR SERVICE
and earnestly and in all good faith bargains to that end.
[NLRB v. Katz, 369 U.S. 736, 743 (1962).]
As a result of Respondent’s admission at trial of paragraph
10 of the third amended consolidated complaint, it is now
undisputed that, from and after September 25, 1989, Re-
spondent granted merit wage increases to employees, and
that it did so pursuant to Respondent’s merit wage increase
program, all after failing and refusing to bargain collectively
with the Union, or affording notice to the Union, about the
wage increases.
While early indications were that Respondent would at
least claim that its policy was put in effect following an im-
passe in negotiations, that proved not to be the case. Indeed,
possibly in recognition of the effects of the testimony of
Nevill, which showed that Respondent’s ‘‘policy’’ was com-
pletely administered at Respondent’s discretion, Respondent
amended its answer at trial to admit the allegation pertaining
to this violation.
Since, as shown above, Respondent had a duty to its em-
ployees to bargain collectively with their duly designated and
selected representative before making unilateral changes in
their wages, hours, and working conditions, I find that Re-
spondent’s failure and refusal in this regard was, and is, vio-
lative of Section 8(a)(5) and (1) of the Act. See Colorado-
Ute Electric Assn., 295 NLRB 607 (1989). Respondent shall,
accordingly, be ordered to cease and desist from granting
further increases of this sort, and to bargain over the merit
pay plan, a mandatory subject of bargaining, as well as its
implementation as to amounts and timing of employee in-
creases in pay. NLRB v. Katz, 369 U.S. at 746–747 (1962),
and McClatchy Newspapers, 299 NLRB 1045 (1990). Re-
spondent, however, shall not be ordered to reduce the pay of
any employee who has received such a raise in pay, unless
requested by the Union.
2. The violations of Section 8(a)(1) at the meetings
of November 17
I have found that in the meetings of November 17, 1989,
Respondent, through Nevill, told employee Javier Soriano,
and others who attended a meeting on that date that support-
ing the Union is like ‘‘being in Russia,’’ that he ‘‘was never
going to [allow it to] come in his plant,’’ and that he would
‘‘spend his last cent’’ to keep his plant from becoming
unionized. Further, I have found that Nevill told employee
Genaro Hernandez, and others who attended another meeting
on that date, that if they went on strike they would be fired
and immediately replaced, and that Nevill promised ‘‘help,’’
inferentially referring to wage increases, to employees who
stayed out of the Union.
I find and conclude that such statements were violative of
Section 8(a)(1) of the Act. Certainly, it is so generally con-
sidered threatening as to axiomatic to state that those who
engage in activity protected by the Act will be disciplined.
And to threaten that those who peacefully support an eco-
nomic strike will be automatically fired as a result is unlaw-
ful. Cf. Overnite Transportation Co., 296 NLRB 669 (1989).
Similarly, to threaten that the employer will make the em-
ployees’ efforts to secure representation an exercise in futil-
ity is unlawful. Kona 60 Minute Photo, 277 NLRB 867
(1985).
However, given the language difficulties present through-
out the presentation of this case, and the apparent vagueness
attending the testimony that a wage increase would be given
those who did not support the Union, or that support for the
Union would be akin to being in Russia, I find and conclude
that the evidence is too ambiguous to permit a finding of a
violation in these respects.
3. The forklift incidents
With respect to the incident in mid-January 1990, my con-
sideration of the evidence as a whole leads me to conclude
that Nevill either purposefully or recklessly drove the forklift
into employee Catalan, as Catalan peacefully patrolled the
picket line. My view of this is especially true as to the sec-
ond such incident of that day. After all, when the second oc-
curred, the first such incident had been the subject of a pro-
test only a short time before, and could not have been out
of Nevill’s consciousness so quickly. Indeed, as I have ac-
cepted Catalan’s testimony that Nevill warned him out of the
way, but drove into him without affording adequate oppor-
tunity for Catalan to step aside, I find that at least the second
incident of that day was intentionally caused by Nevill. That
he would smile over the incident, apparently finding it amus-
ing, as credibly testified to by Catalan, seems entirely con-
sistent with the demeanor exhibited by Nevill at trial.
I need not characterize Nevill’s conduct as an ‘‘assault.’’
It is sufficient that it should interfere with, threaten, or co-
erce employees in the exercise of their rights under Section
7 of the Act. I find that it did so, and was, therefore, viola-
tive of Section 8(a)(1) of the Act, and not de minimis, as ar-
gued by Respondent.
4. The gate incident
Similarly, the incident of March 13, 1990, with the gate
being closed by Nevill in such a way as to swing into, and
strike, an employee as he picketed, is found by me to violate
Section 8(a)(1) of the Act. The credible evidence is that
Nevill swung the gate, not as usual, i.e., ‘‘walking it shut,’’
but with sufficient force or quickness as to cause it strike
employee Javier Soriano’s body.
While I accept Respondent’s argument that the force of
this blow was not sufficient to cause true bodily injury, I do
not conclude that the conduct, as opposed to its results, was
de mimimis.
Accordingly, as I conclude that such conduct would rea-
sonably interfere with, restrain, coerce or threaten strikers en-
gaged in lawful activity, I also find that the conduct was vio-
lative of Section 8(a)(1) of the Act.
5. Other allegations of Section 8(a)(1)
I find no violation in Nevill’s having stated to Javier
Soriano that, if strikers brought their families to the picket
line, he would run over them. I find that the ‘‘threat’’ lacks
sufficient immediacy to rise to the level of a violation.
Similarly, the burning of the picket sign by Nevill, which
I find to have occurred, as testified to by Jesus Vela Soriano,
did not rise to the level of a threat or coercion. The value
of the sign was not established, but was obviously trivial.
Given the evidence of routine, free exchange of obscenities
between Respondent’s officers and the pickets, I cannot find
that such an incident would reasonably be seen as anything
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Nor is it argued that the implementation of the merit wage in-
crease plan converted the strike to an unfair labor practice strike.
22 Though it may have little effect on the outcome of this case,
since Respondent admitted at trial that it hired no permanent replace-
ments during the course of the strike.
other than ‘‘business as usual’’ or that it would tend to co-
erce, restrain, or threaten employees.
6. The discharge of Lopez
However, I find that the routine nature of the exchange of
profane and obscene commentary between pickets and Re-
spondent’s management has just the opposite effect on my
consideration of the discharge of Augustin Godoy Lopez on
May 30, 1990. The very fact that Respondent routinely par-
ticipated in such exchanges, as has been shown to my satis-
faction, serves in my mind to insulate employees from dis-
cipline for engaging in conduct which would otherwise be
clearly privileged by an employer.
Thus, since that is the very conduct for which Lopez was
discharged, according to Respondent’s own records, and
since Lopez was at the time engaged in lawful, protected
picketing, I find that Lopez’ use of profane and obscene lan-
guage directed toward his employer did not deprive him of
the protection of the Act.
It follows that I must, as I do, find and conclude that his
discharge was discriminatory, and was violative of Section
8(a)(3) and (1) of the Act.
It should be clearly understood that I do not conclude that
an employee has a right to call his employer obscene or pro-
fane names. Here, I find only that an employee has a right
to peacefully picket, and, further, in circumstances where the
employer, not only tolerates, but also himself engages in, and
helps to create an atmosphere tolerant of, profanity and ob-
scenity, the employer cannot suddenly turn around and use
the offensive language, quite similar to that used by the em-
ployer itself, as an excuse to discipline an employee. Cf.
Visador Co., 303 NLRB 1039 (1991); Mini-Togs, Inc., 304
NLRB 644 (1991); and United Enviro Systems, 301 NLRB
942 (1990).
7. The nature of the strike
It is unquestioned that the strike which began in November
1989 in this case was economic in nature.21 Counsel for the
General Counsel argues, however, that it was converted to an
unfair labor practice strike by virtue of the unfair labor prac-
tices of Respondent from and after the date of the forklift in-
cidents in mid-January 1990.22
The Board requires that there be a showing of more than
mere coincidence in time between unfair labor practices and
a strike in order to convert the nature of a strike. The Gen-
eral Counsel must establish that the unlawful conduct was a
factor (not necessarily the sole or predominant one) that
caused a prolongation of the work stoppage. C-Line Express,
292 NLRB 638 (1989). The Board commented that the
record will sometimes afford an opportunity to evaluate the
employees’ knowledge of, and subjective reactions to, an
employer’s unlawful conduct, in order to confirm that it
interfered with a settlement of the strike, and thus prolonged
the work stoppage.
That is the case with this record. There is credible evi-
dence of the intent of employees in continuing the strike, i.e.,
that the actions of the employer, which I have found unlaw-
ful, made them more united and determined to continue their
protected strike activity. This credible evidence was not only
unrebutted, but was even substantially unchallenged by cross-
examination at the time it was offered.
Employee Rosales testified concerning the forklift inci-
dents in mid-January 1990. As shown above, I have have ac-
cepted as credible his testimony that employees discussed
this among themselves, and that they were thereby made
more determined to carry on with the strike.
Employee Jesus Vela Soriano, similarly, testified that the
gate incident on March 13, 1990, made the employees, fol-
lowing a discussion of it among themselves, more united in
their continuation of the strike.
In the face of this evidence, despite its somewhat
conclusionary and self-serving nature, I see no warrant to ig-
nore the employees’ expressions of support for continuing
the strike, following, as they did closely on the heels of em-
ployer unfair labor practices. The evidence referred to above
clearly establishes the necessary ‘‘causal connection’’ be-
tween the unfair labor practices I have found to have been
committed and the employees’ decision to remain on strike.
Buffalo Concrete, 276 NLRB 839, 841 (1985); Tufts Bros.,
Inc., 235 NLRB 808, 811 (1978); Typoservice Corp., 203
NLRB 1180 (1973); compare Burlington Homes, 246 NLRB
1029 (1979).
Accordingly, I find and conclude that the strike was con-
verted to an unfair labor practice strike as of mid-January
1990.
8. The refusal to reinstate strikers
As found above, and as is not disputed, after striking for
approximately 9 months, the numbers of the 45–50 employ-
ees who began the strike had dwindled to 20–25 remaining
on strike.
At that time, the Union made an unconditional offer to re-
turn to work, on behalf of all strikers. However, despite the
admitted fact that it had not hired permanent replacements
for any of the strikers, Respondent failed and refused to rein-
state any of the strikers.
Such requests may be ignored by an employer at its own
peril, even if they are made collectively for all employees by
the Union’s representative, as here. Colonial Haven Nursing
Home, 218 NLRB 1007, 1011 (1975).
Here, in light of my finding that the strikers were unfair
labor practice strikers, from and after mid-January 1990, the
failure and refusal of Respondent to honor their uncondi-
tional offer to return to work from and after the Union’s sub-
mission of a demand on their behalf in mid-August 1990,
violated Section 8(a)(3) of the Act. National Tape Corp., 187
NLRB 321, 325 (1970). It shall, accordingly, be provided
that Respondent must provide an appropriate remedy for
these violations.
9. The refusal to reinstate Ramirez
One of the strikers, Ramirez, is claimed by Respondent to
have resigned, i.e., to have abandoned whatever right to rein-
statement he may have had.
I cannot agree. For, while it cannot be denied that Ramirez
did, in fact, submit a letter of resignation, the Board has stat-
ed that, in circumstances where an employer knows that an
employee ‘‘resigns’’ as a prerequisite to securing even in-
21REFUSE COMPACTOR SERVICE
terim employment elsewhere, the resignation may not be said
to establish that the employee necessarily made a decision
permanently to terminate his employment, should he subse-
quently be offered reemployment. Accordingly, the Board
has held that, in these circumstances, and absent any other
evidence of permanent employment termination, the mere
submission of a ‘‘resignation’’ does not constitute an un-
equivocal abandonment of the employee’s status as a striker,
or of his right to further employment with the employer.
S & M Mfg. Co., 165 NLRB 663 (1967).
As found above, Ramirez informed Respondent that he
was ‘‘resigning’’ in order because he had financial problems
and needed a job. Further, when solicited to abandon the
strike by Nevill at the time he submitted his ‘‘resignation,’’
Ramirez told Nevill that he ‘‘just didn’t want any problem
with the company or the union.’’
Thus, it seems clear that Respondent knew or should have
known that Ramirez had some sort of interest in the way that
the strike was continued and/or concluded. Otherwise, Rami-
rez would have had no interest in ‘‘trouble’’ from either
party to the strike, for neither would have had any power,
had he secured permanent employment elsewhere, to give
him any sort of ‘‘trouble.’’
Accordingly, I find and conclude that Ramirez has not
been shown to have evidenced an unequivocal intent to aban-
don the strike by submitting a resignation document to Re-
spondent, and should be considered to be among those em-
ployees who are entitled to reinstatement from Respondent as
a result of the unconditional offer of the Union set forth
above.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees employed by Respondent at
its facility located in Sylmar, California, constitute a unit ap-
propriate for the purposes of collective bargaining:
Included:
All full-time and regular part-time production and
maintenance employees, including truck-drivers, weld-
ers, machine operators, painters, forklift drivers and
fabrication employees employed by Refuse Compactor
Service, Inc., at its location at 12776 Foothill Blvd.,
Sylmar, California,
Excluded:
Office clerical employees, sales employees, confiden-
tial employees, managerial employees, professional em-
ployees, guards and supervisors as defined in Act.
4. At all times material herein the Union has been the ex-
clusive collective-bargaining representative of all the employ-
ees in the unit described above by virtue of Section 9(a) of
the Act.
5. By failing and refusing to engage in good-faith negotia-
tions, by unilaterally implementing changes in the wages,
hours, and working conditions of employees at a time when
no impasse existed, Respondent has violated Section 8(a)(5),
(1), and (d) of the Act.
6. By threatening to automatically fire all employees who
chose to participate in an economic strike, by threatening to
cause the Union and protected activities of employees futile,
by running a forklift into an employees peacefully picketing
Respondent’s premises, and by closing a gate in such a way
as to cause it to strike an employee while the employee was
peacefully picketing Respondent’s premises, Respondent has
violated Section 8(a)(1) of the Act.
7. By discriminatorily discharging its employee Augustin
Godoy Lopez on or about May 30, 1990, Respondent vio-
lated Section 8(a)(3) and (1) of the Act, and by failing and
refusing to grant timely reinstatement to unfair labor practice
strikers on their unconditional request to return to work, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
8. The strike of Respondent’s employees which took place
between November 17, 1989, and August 17, 1990, was con-
verted to an unfair labor practice strike by the unfair labor
practices of Respondent from and after mid-January 1990,
and the employees who continued to participate in the strike
were unfair labor practice strikers.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that 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
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by implementing unilateral changes in the
wages, hours, and working conditions of its employees at a
time when no genuine impasse existed, it shall be required
that Respondent, on request, bargain with the Union as the
exclusive representative of the employees in the appropriate
unit concerning terms and conditions of employment, and if
an understanding is reached, embody the understanding in a
signed agreement; further, it shall be required that, on the
Union’s request, and consistent with this decision, Respond-
ent rescind any unilateral changes made effective on and
after November 17, 1989, and, consistent with this decision,
continue to give effect to those terms and conditions of em-
ployment previously in effect at its facility in Sylmar, Cali-
fornia, for the employees in the previously described unit,
until Respondent and the Union reach a good-faith impasse,
execute a new collective-bargaining contract, or the Union
refuses to bargain in good faith. Consistent herewith, Re-
spondent shall be required to make employees whole for any
losses they may have suffered by virtue of its unlawful uni-
lateral changes in their wages, hours, and working condi-
tions.
Having found that Respondent discriminatorily discharged
its employee Augustin Godoy Lopez on or about May 30,
1990, and that Respondent failed and refused from and after
August 17, 1990, on their unconditional request to return to
work, to reinstate its striking employees, it shall be required
that Respondent offer to Augustin Godoy Lopez and to all
striking employees immediate and full reinstatement to their
former positions, and make them whole for any loss of earn-
ings or benefits suffered as a result of Respondent’s discrimi-
nation, and refusal to honor their unconditional request to re-
turn to work, with interest thereon, to be computed in the
manner prescribed F. W. Woolworth Co., 90 NLRB 289
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 All outstanding motions inconsistent with the terms of this
Order, if any, are hereby overruled. If no exceptions are filed as pro-
vided by Sec. 102.46 of the Board’s Rules and Regulations, the find-
ings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
24 I provide for a broad order herein in view of the broad variety
of unfair labor practices committed by the Respondent, which, in my
opinion, demonstrate the Respondent’s disregard for the statutory
protections afforded employees by the Act. In such circumstances a
broad order is warranted. See Hickmott Foods, 242 NLRB 1357
(1979).
(1950). Interest thereon shall be computed as in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
Respondent shall also be required to expunge from its files
all references to its unlawful discharge of Augustin Godoy
Lopez, and, also, to its refusal to reinstate its striking em-
ployees on their unconditional offer to return to work on July
10, 1987, and to notify all affected employees in writing of
this expunction, and that said action or notations on their
personnel files shall not be used as a basis for future person-
nel actions concerning them. See Sterling Sugars, 261 NLRB
472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Refuse Compactor Service, Inc., Sylmar,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of employment.
(b) Advising employees that their unionization efforts will
be futile.
(c) Promising or granting benefits or improvements, such
as a new wage or compensation plan, or increases in wages,
in order to discourage employees from supporting the Union;
provided, however, that nothing contained herein shall be
construed as authorizing or requiring the us to vary or aban-
don any benefit previously conferred.
(d) Refusing to bargain collectively, on request, concern-
ing rates of pay, wages, hours, and other terms and condi-
tions of employment, in good faith, with The United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, Local 179 (the Union) which is the exclusive bar-
gaining representative for employees in the following appro-
priate unit:
Included:
All full-time and regular part-time production and
maintenance employees, including truck-drivers, weld-
ers, machine operators, painters, forklift drivers and
fabrication employees employed by Refuse Compactor
Service, Inc., at its location at 12776 Foothill Blvd.,
Sylmar, California,
Excluded:
Office clerical employees, sales employees, confiden-
tial employees, managerial employees, professional em-
ployees, guards and supervisors as defined in Act.
(e) Refusing to reinstate its unfair labor practice strikers
pursuant to their unconditional offer to return to work.
(f) Unilaterally changing terms and conditions of employ-
ment for its employees at its facilities described in the de-
scription of the unit, above, by implementing unilaterally the
terms of a merit wage increase plan, without consultation
with the Union and without affording it an opportunity to
bargain about such changes.
(g) Discriminatorily discharging employees because they
have engaged in union or other protected, concerted activi-
ties.
(h) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.24
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement. The appropriate unit is:
Included:
All full-time and regular part-time production and
maintenance employees, including truck-drivers, weld-
ers, machine operators, painters, forklift drivers and
fabrication employees employed by Refuse Compactor
Service, Inc., at its location at 12776 Foothill Blvd.,
Sylmar, California,
Excluded:
Office clerical employees, sales employees, confiden-
tial employees, managerial employees, professional em-
ployees, guards and supervisors as defined in Act.
(b) Offer Augustin Godoy Lopez, and to each of the em-
ployees who remained on strike and who were not reinstated
to their former positions on the unconditional offer of the
Union on their behalf to return to work following the strike,
if it has not already done so, immediate and full reinstate-
ment 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 en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of Respondent’s discrimi-
natory discharge, and/or failure to honor their requests to re-
turn to work from an unfair labor practice strike, in the man-
ner set forth in the remedy section of the decision, dismiss-
ing, if necessary, any employees hired on or after mid-Janu-
ary 1990 when the unfair labor practices of Respondent con-
verted the strike from an economic strike to an unfair labor
practice strike.
(c) Remove from its files any references to the unlawful
refusals to reinstate, and to the unlawful discharge, and the
unlawful refusals to reinstate, and provide the affected em-
ployees, in writing, assurance that it has done so, and that
its action against them will never be used against them in the
future in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records
and reports, and all other records necessary to analyze the
23REFUSE COMPACTOR SERVICE
25 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
amount of backpay due under the terms of this recommended
Order.
(e) Post at its referred to above, in Sylmar, California,
copies of the attached notice marked ‘‘Appendix.’’25 Copies
of the notice, which shall be written in both English and in
Spanish, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 order
to ensure that affected employees shall be provided actual
notice of this decision, copies of the notice, in both English
and in Spanish, shall be mailed by Respondent to each of the
employees who engaged in the strike referred to in this deci-
sion, and proof of such mailing shall be provided by Re-
spondent to the Regional Director.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.