Sanitation Salvage Corp

National Labor Relations Board - Board Decisions

Jun 5, 2013

359 N.L.R.B. 1129 (N.L.R.B. 2013)

SANITATION SALVAGE CORP. 1129

359 NLRB No. 130
Sanitation Salvage Corp. and Local 108, Waste Mate-
rial, Recycling and General Industrial Laborers
and Local 124, Recycling, Airport, and Industri-
al Service Employees Union. Case 02–RC–
070804
June 5, 2013
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The National Labor Relations Board has considered
objections to an election held August 16, 2012, and the
attached hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to a
Notice of Second Election.
1
The tally of ballots shows
10 votes for the Petitioner, 32 for the Intervenor, 2
against the participating labor organizations, and 5 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings
2
and recommendations only to the extent con-
sistent with this Decision and Certification of Repre-
sentative. Specifically, we adopt the hearing officer’s
findings that Charles Mahr is an agent of the Employer
and that his statements to employee Hiram Arocho that
the Employer would reduce employees’ overtime if the
Petitioner won the election constitute objectionable con-
duct. In addition, we adopt the hearing officer’s findings
that admitted Supervisor Danny Lally engaged in objec-
tionable conduct by making statements to Arocho and
employee Tarrell Sumlin that threatened employees with
discharge in retaliation for support of the Petitioner, cre-
ated the impression that employees’ union activities were
under surveillance, and conveyed the impression that
voting for the Petitioner would be futile.
Contrary to the hearing officer, however, we find that
the objectionable conduct reached too few employees to
have affected the outcome of the election. Accordingly,
we find that a certification of representative should be

1 An initial election was held on January 25, 2012, pursuant to a
Stipulated Election Agreement. After the Petitioner filed objections,
the parties agreed to set aside the results of the first election, and the
Regional Director issued a Notice of Second Election.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule Objections 1 and 3.
issued to the Intervenor, the incumbent representative
and the winner of the election.
Discussion
The Board will set aside an election when “the objec-
tionable conduct so interfered with the necessary ‘labora-
tory conditions’ as to prevent the employees’ expression
of a free choice in the election.” Dairyland USA Corp.,
347 NLRB 310, 313 (2006), enfd. sub nom. NLRB v.
Food & Commercial Workers Local 348-S, 273 Fed.
Appx. 40 (2d Cir. 2008). The Board overturns election
results if the objectionable conduct, taken as a whole,
had “the tendency to interfere with the employees’ free-
dom of choice” and “could well have affected the out-
come of the election.” NYES Corp., 343 NLRB 791, 791
fn. 2 (2004) (citing Cambridge Tool & Mfg. Co., 316
NLRB 716, 716 (1995)).
The evidence in this case shows that the Employer
made several threats to two employees. There is no evi-
dence in the record, however, that the objectionable con-
duct in this case was disseminated beyond the two em-
ployees directly affected by it. When evaluating the ex-
tent to which objectionable threats are disseminated, the
Board places the burden of proof on the objecting party,
and thus does not presume dissemination. Dairyland
USA Corp., above at 313 (citing Crown Bolt, Inc., 343
NLRB 776, 777 (2004)). The Petitioner lost the election
by 22 votes out of 49 votes cast.
The Board has declined to set aside election results in
cases in which the disparity between the vote margin and
the number of employees affected by the objectionable
conduct was similar to the disparity in this case. For
example, in Werthan Packaging, 345 NLRB 343 (2005),
the Board found that a supervisor interrogated three em-
ployees, threatened a fourth employee, and arguably in-
terrogated a fifth employee. Id. at 344. Noting that the
union lost the election by 21 votes while the objectiona-
ble conduct affected at most five employees, the Board
found that a new election was not warranted. Id. at 343.
The Petitioner here lost the election by a similarly wide
margin, and the Employer’s misconduct affected only
two employees, even fewer than the number affected in
Werthan Packaging. See also M. B. Consultants, Ltd.,
328 NLRB 1089, 1089 (1999) (finding record insuffi-
cient to establish that objectionable statement made to
two employees affected outcome of election with six-
vote margin).
3
We conclude that the Respondent’s ob-

3 Newburg Eggs, Inc., 357 2191 (2011), and Reliant Energy, 357
NLRB 2098 (2011), cited by the hearing officer, are distinguishable
from this case on their facts. In both cases, the number of employees
affected by the objectionable conduct was substantially larger than the
election margin, as all or almost all of the employees in the unit were
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

jectionable statements, heard by only two employees and
not further disseminated, were insufficient to affect the
outcome of the election. Accordingly, we shall certify
the Intervenor as the collective-bargaining representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 124, Recycling, Airport, and Indus-
trial Service Employees Union, and that it is the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:

All full-time and regular part-time CDL drivers, non-
CDL drivers, helpers, mechanics, welders, and laborers
employed by the Employer at and out of its facility lo-
cated at 421 Manida Street, Bronx, NY, but excluding
all other employees, including office clerical employ-
ees, and guards, professional employees, and supervi-
sors as defined in the Act.

APPENDIX
HEARING OFFICER’S REPORT ON OBJECTIONS
Pursuant to a Notice of Second Election,1 issued on
June 22, 2012,2 an election by secret ballot was conducted
on August 16, in the following unit of employees:

Included: all full-time and regular part-time CDL drivers,
non-CDL drivers, helpers, mechanics, welders, and la-
borers employed by the Employer at and out of its fa-
cility located at 421 Manida Street, Bronx, NY

Excluded: all other employees, including office clerical
employees, and guards, professional employees, and
supervisors as defined in the Act.

Tl:te tally of ballots showed the following results:

Approximate number of eligible voters ........................ 59
Number of Void ballots ................................................. 0
Number of Votes cast for LOCAL 108,
WASTE MATERIAL, RECYCLYNG, AND
GENERAL INDUSTRIAL LABORERS .................. 10
Number of Votes cast for LOCAL 124,
RECYCLYNG, AIRPORT, INDUSTRIAL
& SERVICE EMPLOYEES UNION ........................ 32
Number of Votes cast against participating
labor organization(s) .................................................... 2
Number of Valid votes counted ................................... 44
Number of Challenged ballots........................................ 5
Number of Valid votes counted plus challenged
ballots........................................................................... 49

subjected to at least some of the misconduct. Newburg Eggs, above,
slip op. at 2; Reliant Energy, above, slip op. at 16.
1 The first election, by stipulated election agreement, was held at
the Employer’s facility on January 25, 2012.
2 All dates hereafter are in 2012, unless otherwise specified.
Challenges are (not) sufficient In number to affect the
results of the election.
A majority of the valid votes counted plus challenged bal-
lots (item 9) has been for LOCAL 124, RECYCLYNG,
AIRPORT, INDUSTRIAL & SERVICE EMPLOYEES
UNION

On April 4, the Petitioner filed timely objections to the
election.3 The objections, verbatim, are as follows:

Objection No. 1: The Employer through its supervi-
sors and/or agents, including but not
limited to Danny Lally, selectively
escorted employees to the polls to
promote I ensure the participation of
people it believed would vote in fa-
vor of Local 124 representation.

Objection No. 2: The Employer through its supervisor
and/or agents, including but not lim-
ited to Danny Lally, Chris Mahr,
Ethan Perez, and Chris McGraff,4
campaigned on behalf of Local 124,
including but not limited to, by
wearing Local 124 tee shirts and
actively lobbying employees to vote
for Local 124 representation
and/oragainst Local 108.

Objection No. 3: The Employer preferentially permitted
Local 124 campaigning on its proper-
ty and provided resources to promote
Local 124, including but not limited
to, by permitting the posting of Local
124 bumper stickers and signs on its
vehicles and property and hosting and
making a company grill available for
a Local 124 barbecue; while, in con-
trast, discouraging and/or prohibiting
employees from communicating with
Local 108 representatives, such as
Kajeem Hill.

Objection No. 4: The Employer unlawfully threatened
and coerced employees to vote
against Local 108 representation, in-
cluding but not limited to, by threat-
ening that the Employer would re-
spond to Local 108 representation by
diminishing employees’ terms and
conditions of employment and refus-
ing to sign a contract with Local 108;

3 Petitioner’s request to withdraw Objections 5 and 6 was ap-
proved by the Regional Director, Region 2 on October 5.
4 Chris Markgraf was incorrectly named as “McGraff’’ in Objec-
tion 2.
SANITATION SALVAGE CORP. 1131
the Employer similarly threateningly
identified employees it understood to
be Local 108 supporters, such as by
referring to them as “Mr. Local108”.

In accordance with the notice of hearing on objections is-
sued by the Regional Director on October 5, a hearing con-
cerning the Petitioner’s objections was held on October 18.
At the hearing the parties were afforded a full a complete
opportunity to be heard, to examine and cross-examine wit-
nesses, and to present evidence pertinent to the issues.5 Up-
on the entire record of the case,6 including my observation
of the witnesses,7 I issue the following report:
Background8
The Employer is engaged in the business of waste dis-
posal. Steve Squitteri is the owner and president of the
Employer. The parties stipulated that Danny Lally is a su-
pervisor of the Employer within the meaning of Section
2(11) of the Act.
The Employer’s facility, the sole facility involved here, is lo-
cated at 421 Manida Street, Bronx, New York. Among other
things, the facility contains a yard where garbage trucks are
parked, a garage, and several interior offices. Drivers and help-
ers report to the facility at 5 p.m., receive their assignments,
engage in pretrip inspections, and then depart in their respective
garbage trucks. The door leading to the offices and the base-
ment is kept locked. Employees do not have keys to this door
and gain entrance by being “buzzed in” or by having someone
open the door from the inside or by key from the outside. Em-
ployees returning from their routes to the facility at night have
keys to open the gate to the yard in order to park their trucks.
The election on August 16 was held from 12:30 p.m. to
3:30 p.m. and 5:30 p.m. to 8 p.m. The polling site was locat-
ed in the reception area in the basement of the Employer’s
facility.
In support of its objections, the Petitioner presented the
testimony of four witnesses: Frederick Schneider, vice presi-
dent of Local 108; Kajeem (Q) Hill, a former helper who
was briefly hired by the Petitioner to organize employees
prior to the election in August; Tarrell Sumlin, a helper
who was terminated after the August election; and Hiram
Arocho, a driver.
Supervisor Danny Lally testified for the Employer. The
Employer also adduced testimony by Charles (Chucky)
Mahr, a driver alleged by the Petitioner to be a supervisor
and/or agent of the Employer.

5 Although the Intervenor was served with a notice of the hear-
ing, the Intervenor did not appear at the hearing.
6 Briefs were filed by the Petitioner and the Employer, and have
been duly considered.
7 On the Petitioner’s motion, a sequestration order was in effect
throughout the hearing.
8 I find that all of the events described here clearly took place
after the Notice of Second Election issued on June 12, though I
note that the critical period stems from the date of the first elec-
tion, January 25. Star Kist Caribe, 325 NLRB 304 (1998).
Objection 1
This objection alleges, in substance, that Supervisor
Danny Lally selectively escorted employees to the polls
whom he believed would vote in favor of the incumbent un-
ion, the Intervenor Local 124.
Danny Lally works Monday through Friday from 9 a.m.
to 5 p.m. or until all the drivers and helpers report to work.
Lally stated that he was “on call” other days. Lally has a
key to the office. He stated that part of his duties consists
of letting the employees into the office to get their “clip-
boards,” which sets forth their routes, and contains keys as
well as a pretrip inspection book. At that time, Lally dis-
cusses any issues pertaining to their routes.
On the day of the election, Lally testified that he went
“out of his way” to make sure the employees could vote by
letting them into the facility before he left work. Lally stated
that he told the employees to make sure they went down-
stairs to vote and then to go upstairs to pick up their pa-
perwork whereupon he would let them out. Lally explained
that he did not want to be accused of preventing employees
from voting and that he needed to tell them to pick up their
work upstairs since the election was being held in or near
his office downstairs, which was unavailable. Lally denied
going into the yard to find employees to vote.
On the day of the election, Kajeem Hill testified that he
stood on the corner of Eastbay and Manida Street during the
evening poll and saw Lally repeatedly go into the yard and
return to the office with employees. Hill stated that Lally
placed his hand on the backs of the employees and whis-
pered to them. Hill admitted that he could not hear what
was said. Hill further stated that Lally escorted all the em-
ployees in the yard that day to the office in the same man-
ner. When asked what was different about Lally’s behavior
on the day of the election, Hill stated that Lally usually
walked ahead of employees and would not place his hands
on their backs.
Hiram Arocho testified that Danny Lally told him to “do the
right thing” prior to election and on the day of the election.
On previous occasions preceding the election, Arocho stated
that after Lally saw him talking to Kajeem Hill near the
facility, Lally would make comments like “there goes 108
over there with Q . . . there goes Hiram talking to 108, or
there goes the president talking to the vice president.” Lally
denied making these remarks.
Tarrell Sumlin testified that he did not have any conversa-
tions with management on the day of the election.
Based on the evidence discussed above, I find that the Peti-
tioner has failed to show that the Employer attempted to af-
fect the outcome of the election by selectively escorting
employees to the Employer’s facility. Indeed, the testimo-
ny·of Kajeem Hill shows that Lally did not differentiate be-
tween employees who may have congregated in the yard waiting
to go into the facility and there is no evidence in the record to
show these employees were inclined to vote in any particular
manner. In that regard, the record fails to show that Lally
treated Tarrell Sumlin or Hiram Arocho, who purportedly
were known by him to be supporters of Local 108, any dif-
ferent from other employees in terms of allowing them access
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

to the facility during the election.9 Accordingly, I recommend
that Objection 1 be overruled.
Objection 2
This objection alleges that the Employer, by Danny Lally
and Chris Mahr,10 campaigned on behalf of Local 124 by wear-
ing Local 124 tee shirts and by lobbying employees to vote for
Local 124 and/or against Local 108.11
Days before the election, Arocho testified that he had
several conversations with Mahr concerning the upcoming
election. Mahr urged Arocho to “do the right thing” or they
would lose their overtime. More specifically, Arocho testified
that Mahr told Arocho that he supported Local 124 and that if
Local 108 won the election, the Employer would take away
their overtime by putting two more garbage trucks on the
routes.12
On August 14, 2 days before the election, Kajeem Hill pho-
tographed Charles Mahr wearing a Local 124 tee shirt outside
the Employer’s premises. (Petitioner Exh. 4.) Standing next to
Mahr in the picture was a driver identified by Hill as “John.”13
The Employer did not question Mahr about his alleged
statements to Arocho and therefore Arocho’s testimony in that
regard is unrefuted. The Employer contends, however, that
Mahr is not a supervisor, or presumably an agent, of the Em-
ployer.
Mahr, a former shop steward for Local 124, testified that he
is a “senior” truckdriver. Mahr works Sunday through Thurs-
day from midnight to 10 a.m.14 and drives a truck each
night. The Employer’s facility is closed after midnight and he
is the only one with a key to the facility and the garage. Em-
ployees are instructed to call Lally before midnight and Mahr
on his cell phone after midnight if they encounter problems
completing their routes, such as flat tires, brake problems,
accidents, police incidents or anything that would cause a
truck to break down. Mahr denied he had the power to hire,
fire, or discipline employees. Mahr stated that he instructed
employees seeking leave to call Danny Lally and that Lally
was responsible for finding relief employees.15 Mahr testified

9 The testimony of Arocho as to the remarks allegedly made to
him by Lally during their walk to the facility that day will be
discussed infra with respect to Objection 4.
10 At the hearing, counsel for the Petitioner indicated that the al-
leged objectionable conduct set forth in the objections were limited
to the actions of Lally and Mahr.
11 For the purposes of clarity, the evidence purporting to show
the Employer campaigned on behalf of Local 124 is discussed
primarily with respect to Objection 2 while the Petitioner’s related
allegations that the Employer actively discouraged employees from
voting for Local 108 is discussed in detail infra with regard to Ob-
jection 4.
12 On cross-examination, Arocho admitted that he and Mahr had a
physical altercation at some point, adding, “Nobody gets along with
Chucky.”
13 Sumlin testified that he did not speak to Mahr about the election.
14 The uncontroverted testimony of Hiram Arocho further establish-
es that Mahr works “as a supervisor” at the facility on Sunday at 5
p.m. when Arocho reports to work. Indeed, Mahr admitted that he
took over for Lally on Sundays.
15 Lally did not testify in detail about his job duties.
that he reported to Lally and that Lally prepared the route
assignments. Mahr stated he would open the garage to
change tires if there were spares available. If a problem in-
volved a possible expenditure of money, such as for towing or
tire services, Mahr testified that he called the owner, John Squit-
teri, for approval. Mahr stated that he conducted road tests
of applicants and that he made recommendations directly to
the owners of the company regarding their fitness to drive.
Mahr stated that sometimes his recommendations were reject-
ed.
Mahr stated that he notified Kajeem Hill that he had been
fired. Mahr stated that Dave Bryant instructed him to inform
Hill that he had been fired for driving a truck without a COL
license “because it was Sunday and I was the only one there.”
Tarrell Sumlin and Hiram Arocho identified Mahr as a
night supervisor and the supervisor on Sundays. Indeed,
Arocho stated that Mahr told Arocho that he was a super-
visor and that Arocho was to report to him. On one occa-
sion, Arocho testified that Mahr said that he had hired some-
one. Arocho stated he witnessed Mahr write up and fire em-
ployees. Arocho said that Mahr bragged that he had fired
Jose (Lulu) Bonilla “on the spot” after an accident near the
garage and that Mahr called “the company” afterwards.
Mahr, for his part, denied informing Bonilla that he had been
fired and claimed that he did not know who made the decision
to fire Bonilla.
Citing Mid-South Drywall, 339 NLRB 480 (2003), the Peti-
tioner contends that Mahr is an agent of the Employer because
Mahr performed essentially the same duties as Lally after mid-
night and on Sundays. Thus, the Employer deliberately in-
vested Maher with apparent authority in the same manner as
the lead man in Mid-South Drywall. The Petitioner further
argues that the evidence shows that the Employer conferred
actual authority upon Mahr to speak on its behalf by designat-
ing him to inform Kajeem Hill that he had been fired, adding
that the record clearly shows the employees believed Mahr to be
a supervisor.
The Employer asserts that the record is devoid of any evi-
dence that Mahr had the authority to hire, fire, discipline,
promote, or reward employees or that he could approve
leave requests or even order supplies. Therefore, the Em-
ployer argues that Mahr is not a supervisor and his remarks
cannot be attributed to the Employer.
In Mid-South Drywall Co., the Board declared:

It is well established that where an employer places a
rank-and-file employee in a position in which employees
would reasonably believe that the employee speaks on behalf
of management, the Respondent has vested that employee
with apparent authority to act as the Respondent’s agent,
and the employee’s actions are attributable to the employer.
See Panaston Co., 336 NLRB, 305, 305–306 (2001). In
determining whether statements made by individuals to em-
ployees are attributable to the employer, the test is wheth-
er, under all the circumstances, the employees “would rea-
sonably believe that the employee in question [alleged
agent] was reflecting company policy and speaking and
acting for management.” Zimmerman Plumbing & Heating
SANITATION SALVAGE CORP. 1133
Co., 325 NLRB 106 (1997), enfd. in relevant part 188
F.3d 508 (6th Cir. 1999), quoting Waterbed World, 286
NLRB 425, 426–427 (1987), enfd. 974 F.2d 1329 (1st Cir.
1992).

339 NLRB at 480. The Board found that the “lead man” was an
agent of the employer, citing, inter alia, the fact that he: (1)
was often the highest-ranking employee on the jobsite; (2)
directed the daily job activities of the employees; (3) regularly
answered their questions concerning their work duties; (4)
communicated management decisions to employees; and (5)
was perceived by employees to be a supervisor. Id.
In the case at bar, there is no question that Mahr acted as an
agent for the Employer. Employees took directions from
Mahr and no one else for a significant a portion of each
weekday and during his full shift in place of the admitted su-
pervisor, Lally, on Sundays. The unrefuted testimony of
Arocho further shows that Mahr identified himself as a super-
visor to employees and the record shows that employees re-
garded him as such. Furthermore, the evidence shows that
Mahr, the highest-ranking official on duty at the time, was
used by the Employer to inform Kajeem Hill that he had
been terminated even though it appears this could have been
done by the owner by phone instead. At a minimum, it is clear
that Mahr was regularly used as a “conduit” by manage-
ment to convey work-related messages of importance to
drivers and helpers during their shifts. See Mid-South Dry-
wall, 339 NLRB at 480–481; J.J. Cassone Bakery, 350
NLRB 86, 95 (2007); Poly-America, Inc., 328 NLRB 667
(1999); Waste Stream Management, 315 NLRB 1099,
1122 (1994); Spirit Construction Services, 351 NLRB 1042,
1043 (2007).
Based on the record, I find Charles Mahr to be an agent of
the Employer. Accordingly, I am bound to determine whether
Mahr’s conduct, as alleged, has “the tendency to interfere with
the employees’ freedom of choice.” Cambridge Tool Mfg.,
316 NLRB 716 (1995). In determining whether a party’s
misconduct has the tendency to interfere with employees’
freedom of choice, the Board considers:
(1) the number of incidents; (2) the severity of the incidents
and whether they were likely to cause fear among the em-
ployees in the bargaining unit; (3) the number of employees in
the bargaining unit subjected to the misconduct; (4) the prox-
imity of the misconduct to the election; (5) the degree to
which the misconduct persists in the minds of the bargaining
unit employees; (6) the extent of dissemination of the mis-
conduct among the bargaining unit employees; (7) the effect,
if any, of misconduct by the opposing party to cancel out the
effects of the original misconduct; (8) the closeness of the fi-
nal vote; and (9) the degree to which the misconduct can be
attributed to the party.
Taylor Wharton Division Harsco Co., 336 NLRB 157, 158
(2001). The test is an objective one—whether the conduct
has a tendency to interfere with employee free choice. Hop-
kins Nursing Care Center, 309 NLRB 958 (1992). Objec-
tionable conduct—conduct which may interfere with the
“laboratory conditions” for an election— need not amount to the
standard of interference, restraint commonly violative of
Section 8(a)(1). Stabilus, Inc., 355 NLRB 836 (2010). Con-
duct that creates an atmosphere making the exercise of free
choice improbable warrants overturning the election even
where the voting margins are substantial. Newburg Eggs, 357
NLRB 2191 (2011); Reliant Energy, 357 NLRB 2098 (2011).
The burden of proof is upon the party “seeking to have a
Board-supervised election set aside,” and that burden is a
“heavy one.” Crown Bolt, 343 NLRB 776, 779 (2004).
The uncontroverted evidence shows that on several occa-
sions prior to the August 16 election Mahr told driver Hiram
Arocho to “do the right thing” or they would lose their
overtime. The record further shows that Mahr stated to Arocho
that he supported Local 124 and that if Local 108 won the
election, the Employer would take away their overtime by
putting two more garbage trucks on the routes. Moreover, in
these circumstances, Mahr’s exhortation to “do the right thing”
took on added meaning when, as discussed infra, Danny Lally
said the same thing to Arocho as they walked to the facility on
the date of the election.
Election campaign statements by supervisors which reason-
ably cause prounion employees to fear reprisal or to expect
a reward if they exercise their Section 7 rights in a particu-
lar manner will ordinarily be attributed to the employer and
found objectionable. Harborside Healthcare, 343 NLRB
906, 907 (2004). There is no reason to depart from such prec-
edent here. Mahr’s statement that the employees’ overtime
would be reduced if Local 108 won the election amounts to a
threat by the Employer to reduce overtime. The Board con-
siders threats to reduce wages or hours to be “hallmark
violations,” that is violations which are among “the most
flagrant forms of interference with Section 7 rights and are
more likely to destroy election conditions for a longer peri-
od of time than are other unfair labor practices because they
tend to reinforce the employees’ fear that they will lose their
employment if union activity persists.” Milium Textile Ser-
vices, 357 NLRB 2047 (2011); Armon Co., 279 NLRB 1245,
fn. 2 (1986). See NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In short, Mahr’s threat the Employer would
reduce overtime if Local 108 won the election is objectiona-
ble conduct. See, e.g., Interstate Truck Parts, 312 NLRB
661, 663 (1993), enfd. mem. 52 F.3d 316 (3d Cir. 1995)
(threat to reduce wages and benefits reasonably tended to in-
terfere with employees rights under the Act); Truss-Span Co.,
236 NLRB 50 (1978), enfd. in relevant part 606 F.2d 266 (9th
Cir. 1979) (threat to eliminate pension and profit- sharing plans
interfered with conduct of election).
It could be argued that the objection should not be sustained
because the misconduct of Mahr (and Lally) appear to be
confined to Hiram Arocho and Tarrell Sumlin while the
voting spread between the Intervenor and the Petitioner was 22
votes (32–10). Nevertheless, I find it conceivable that the
election might have turned out differently absent Employer
misconduct. The voting differential really amounts to a poten-
tial swing of 11 votes from the Intervenor to the Petitioner,
which hardly seems unlikely given the approximate size of
the unit (59). Elections are supposed to be conducted under
laboratory, not tainted, conditions.
Based on the record before me, I find that the Employer, by
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the conduct of its agent, Charles Mahr, reasonably tended to
coerce employees in the election and, as such, engaged in ob-
jectionable conduct. I recommend, therefore, that Objection 2
be sustained.16
Objection 3
In essence, this objection alleges the Employer unlawful-
ly permitted Local 124 to campaign on its property, including
the posting of Local 124 bumper stickers and signs on its vehi-
cles and property and by making a company grill available
for a Local 124 barbecue, while discouraging employees
from communicating with Local 108 representatives, such as
Kajeem Hill.
On the afternoon of August 14, the undisputed evidence
shows that Local 124 conducted a barbecue across the street
from the Employer’s facility. Employees of Employer attended
the barbecue where the following items were distributed:
a campaign-related leaflet; a description of a Local 124, pre-
paid legal plan; and the dismissal letter addressed to Kajeem
Hill from the Board’s Regional Office pertaining to his
unfair labor practice charge against Local 124. At the con-
clusion of the barbecue, the testimony of Local 108 repre-
sentative Frederick Schneider and Kajeem Hill establish
that the representatives of Local 124 rolled the barbecue grill
across the street into the yard of the Employer and left it there.
Both Schneider and Hill further testified that Danny Lally was
standing nearby at the time. Danny Lally testified, not cred-
ibly, that he did not remember seeing the grill on com-
pany property. The following day, employees Chris Markgraf,
Ethan Perez, and another employee were spotted by Schnei-
der and Hill eating from the grill on the Employer’s property.
There was no evidence that representatives of Local 124 were
present, that the food was supplied by Local 124, that the grill
was owned by Local 124 or that any type of election cam-
paigning took place. Moreover, there is no evidence the
Employer made any effort to inform employees food was
available, much less that it was being provided by Local 124.
Based on the record, there was no evidence that the use of
the grill by employees on company property on the day before
the election was intended, or could have been reasonably per-
ceived to influence employees to vote for either the Employer
or Local 124. Even assuming otherwise, the picnic activities
complained of constitute the type of de minimus conduct the
Board has found not to be objectionable. See Chicagoland
Television News, 328 NLRB 367 (1999) (12-hour party on the
day before the election not objectionable, in part, because the
cost of the event was not excessive); Jacqueline Cochran,

16 While supervisors may engage in campaigning to present their
employer’s views or preferences there must be an “absence of su-
pervisory involvement in the distribution process or other evidence
that management pressured employees into making an observable
choice or open acknowledgement concerning their campaign posi-
tion.” Schwartz Mfg. Co., 289 NLRB 874, 879 (1988). In that regard,
I find that the mere wearing of a Local 124 T-shirt by Mahr 2
days prior to the election did not “threaten to create a sense of
obligation on the part of employees” to reveal their voting sentiments
and therefore is not objectionable conduct. Atlantic Limousine, 331
NLRB 1025, 1029 (2000).
Inc., 177 NLRB 837 (1969) (union’s distribution of Thanks-
giving turkey and Christmas party during critical period not
objectionable).
Based on the above evidence, I recommend that Objection 3
be overruled.
Objection 4
This objection essentially alleges that the Employer, by
Danny Lally, coerced employees to vote against Local 108
by disparaging employees it understood to be Local 108
supporters and by threatening that the Employer would re-
spond to Local 108 representation by diminishing employees’
terms and conditions of employment and by refusing to sign a
contract with Local 108.
As discussed above, on previous occasions preceding the
election, Hiram Arocho testified that after Danny Lally spot-
ted him talking to Kajeem Hill near the facility, Lally
would make remarks to Arocho like “there goes 108 over
there with Q . . . there goes Hiram talking to 108, or there
goes the president talking to the vice president.” Thereafter,
Hiram Arocho stated that Danny Lally urged him to “do the
right thing” prior to election and on the day of the election.
Tarrell Sumlin testified that Lally called him “Mr. 108”
frequently after Sumlin had spoken to Kajeem Hill or other
Local 108 representatives near the Employer’s facility. Sum-
lin further stated that Lally said, “I don’t know why you
were around Mr. Q and the other 108 people because you
going to end up like Q with no job.” On another occasion
in the office, Sumlin stated that Lally told him, “I don’t
know why you guys is voting for 108 because we’re not
going to sign any paperwork like nothing, you’re not going
to get no nothing for at least like two or three years.” Sum-
lin stated that these conversations took place two or three
days prior to the election.
Lally denied making any of these remarks. On direct ex-
amination, Lally stated that he did not know that Sumlin was
“part of’ the union (Local 108). Lally denied that he instructed
employees not to talk to Kajeem Hill but volunteered that
Hill “talks to them on his own, outside the business proper-
ty, every night, even recently.” Lally explained that he did
not care about the election because it did not apply to him.
On cross-examination, the following exchange took place:
Q. In the run-up to the election, did you have any
conversations about the election in general with any-
body?
A. Anything is possible. If I did, that’s whatever
they voted, they voted for.
Q. My question is did you have any—did the elec-
tion ever come up with just with employees, did they
ever say—
A. Well, that’s all they, that’s all they talked
about.
Q. And you’d never talk to them about the elec-
tion?
A. It has nothing to do with me.
Q. You never—
A. I mean I’ll talk about a lot of things. They want
to talk about the election, I have nothing to do with it,
SANITATION SALVAGE CORP. 1135
so I can’t help them out. I can’t tell them who to vote
for, because it doesn’t—my opinion means nothing to
them and vice versa.
Q. You never mentioned your opinion at any time?
A. Because I don’t vote. It doesn’t make a differ-
ence.

I fully credit the testimony of Arocho and Sumlin here.
First, their testimony about their separate conversations
with Lally was consistent. Second, in contrast to Lally,
Arocho and Sumlin testified in a straightforward manner
and appeared to be doing their best to answer the questions
put to them on direct and cross-examination. This is evi-
dent from both the record and their demeanor at trial. For
instance, Arocho candidly admitted that he had a minor
altercation with Mahr and Sumlin readily acknowledged
that he had a fight with a coworker. Third, Arocho, a
current employee, was testifying against his own interests,
that is, “against” his supervisor, Lally. Fourth, the testi-
mony of Sumlin and Arocho about the threats made to
them by Lally is similar in tone and content and echo
Arocho’s testimony concerning the threats made to him by
Charles Mahr, i.e., that Mahr urged Arocho to “do the right
thing” or they would lose their overtime.
Conversely, the testimony of Danny Lally was uncon-
vincing. His testimony that he did not see the Local 108
grill on company property did not square with his subse-
quent testimony that he did not “remember” seeing the
grill on the property. Such prevarication on a relatively
minor issue does not inspire confidence in his testimony
generally. Moreover, at times, Lally’s testimony was clear-
ly evasive. For instance, when asked on direct examination
if he had conversations with employees about the election,
Lally responded, “Anything is possible.” Lally’s brief mo-
ments of candor were revealing, however, such as his
testimony that the election was “all they [the employees]
talked about” and that Kajeem Hill, presumably in his ca-
pacity as an organizer for Local 108, talked to the em-
ployees “every night, even recently.” In short, Danny Lally’s
testimony that he did not care about the election and did not
say anything about it to employees is not credible when
compared with the forthright testimony of Hiram Arocho
and·Tarrell Sumlin concerning Lally’s separate conversations
with them.
As discussed above, I find that Danny Lally stated to
Hiram Arocho, “there goes 108 over there with Q . . . there
goes Hiram talking to 108, or there goes the president talk-
ing to the vice president.” At a minimum, an employee
would reasonably assume that Lally had placed the union
activities of Arocho and other employees under surveillance.
Furthermore, Lally made this remark repeatedly to Arocho
and also to Sumlin. Under the circumstances, I find Lally’s
conduct coercive and destructive to the employees’ freedom
of choice in the August 16 election. See Double J. Services,
347 NLRB No. 58 (2006) (not reported in Board volumes)
(creation of an impression of surveillance, and interrogation
objectionable).
I further find that Lally stated to Tarrell Sumlin, “I don’t
know why you were around Mr. Q and the other 108 people
because you going to end up like Q with no job.” This
statement unlawfully implies the Employer will retaliate
against employees by discharging them because of their sup-
port for Local 108. The Board has found that threats of dis-
charge are inherently coercive and destructive of Section 7
rights. See Allied Mechanical, 343 NLRB 631, 631–632
(2004) (Board directed a second election where Employer
discharged two overt union supporters, disciplined another
overt union supporter, and threatened employees).
I find that Lally further stated to Sumlin, “I don’t know
why you guys is voting for 108 because we’re not going to
sign any paperwork like nothing, you’re not going to get no
nothing for at least like two or three years.” This statement
by Lally has the tendency of discouraging employees from
exercising their right to choose a union of their choice by indi-
cating that it would be futile to do so and as such is objectiona-
ble. See Smithfield Foods, 347 NLRB 1225, 1235 fn. 29
(2006); Adam Wholesalers, 322 NLRB 313 (1996); Fieldcrest
Cannon, 318 NLRB 1 (1995).
For the reasons stated above, I recommend that Objection 4
be sustained.
In the instant matter, I have determined that (1) Chris Mahr
is an agent of the Employer; (2) the Employer by Mahr,
threatened employees with a reduction in overtime if Local
108 won the election; (3) the Employer, by Danny Lally,
created the impression employees’ activities on behalf of Lo-
cal 108 were under surveillance; (4) the Employer, by Danny
Lally, threatened to discharge employees because of their sup-
port for Local 108; the Employer, by Danny Lally, conveyed
the impression to employees that voting for Local 108 would
be futile; and (5) that the foregoing actions of the Employer
all took place within the critical period.
While I recognize that the Intervenor, Local 124, is not the
transgressor here, I am constrained to determine whether, un-
der all the circumstances, the employees were able to freely
exercise their collective right to vote. I find that the Em-
ployer’s conduct, as alleged, reasonably had a tendency to
interfere and coerce employees in the election. I recommend,
therefore, that the election conducted on August 16 be set aside.
Conclusions and Recommendations
As I have found Petitioner’s Objections 2 and 4 to have mer-
it, it is recommended that they be sustained. I further recom-
mend that Objections 1 and 3 be overruled. Having found that
the conduct found objectionable had a reasonable tendency to
interfere in the election, I accordingly recommend that the
election be set aside and a new election be conducted at a
date and time to be determined by the Regional Director,
Region 2.17

17 Pursuant to the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, any party may, within 14 days from the date that this
report is issued, file exceptions with the Board. In order to be timely,
exceptions must be received by the Board in Washington, D.C. by the
close of business at 5:15 EDT on December 19, 2012.