Southern Alleghenies Disposal Services

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 852 (N.L.R.B. 1981)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Alleghenies Disposal Services, Inc. and
Donald G. Evans, Sr. and Chester Hiltabidel.
Cases 6-CA-13268 and 6-CA-13275
June 23, 1981
DECISION AND ORDER
On January 21, 1981, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. The Administrative Law Judge found that Re-
spondent was not engaged in commerce within the
meaning of the Act, and he consequently dismissed
the complaint here on jurisdictional grounds. The
General Counsel excepts to this finding and con-
tends that Respondent is subject to the Board's ju-
risdiction. We agree with the General Counsel.
The record evidence shows that Respondent is
engaged in the business of collecting and disposing
of garbage and in the operation of sanitary land-
fills. Respondent entered a contract, effective Janu-
ary 1 to December 31, 1980,2 with the city of
Johnstown, Pennsylvania, whereby the city ob-
tained the right to dispose of its refuse at Respond-
ent's landfill in Hollsopple, Pennsylvania. For this
service the city agreed to pay Respondent $58,000
in equal monthly installments. The parties stipulat-
ed that in calendar year 1980 the city of Johnstown
purchased goods and services outside the Com-
monwealth of Pennsylvania in excess of $500,000. 3
It is well established that the Board will assert
jurisdiction over a nonretail enterprise which has
an annual outflow or inflow, direct or indirect,
across state lines of at least $50,000. Siemons Mail-
ing Service, 122 NLRB 81, 85 (1958). As enunciated
by the Board in Siemons, indirect outflow refers to
sales of goods or services within the State to
"users" meeting any standard except solely an indi-
rect inflow or indirect outflow standard. Further,
the Board stated that it would continue to define as
"users" enterprises which themselves were exempt-
The Administrative Law Judge ailed to rule on the General Coulln-
sel's post-hearing motion to correct the transcript as to a single word
The General Counsel renewed this motion to the Board, and, in the ab-
sence of express opposition by Respondent or any apparent prejudice to
the position of the parties. we hereby grant the motion.
2 All dates hereafter are in 1980 unless otherwise noted.
3 The stipulations provided that the city of Johnstown purchased insur-
ance and pension policies from out-of-state companies in the amount of
$383,329 and two firetrucks from an out-of-state company in the amount
of $145,504.
256 NLRB No. 135
ed from the Board's jurisdiction but whose oper-
ations were of a magnitude that the Board would
assert jurisdiction if they were nonexempt.
Here, although the city of Johnstown is exempt
from the Board's jurisdiction under Section 2(2) of
the Act, the magnitude of its operations would
clearly warrant our assertion of jurisdiction over it
if it were nonexempt. Accordingly, because Re-
spondent's sales of services to the city of Johns-
town are in excess of $50,000, the indirect outflow
standard has been met.4 We therefore find that it
will effectuate the purposes of the Act to assert ju-
risdiction herein. 5
2. Assuming, arguendo, that the Board did have
jurisdiction over Respondent, the Administrative
Law Judge alternatively dismissed the complaint
on its merits, finding that Respondent did not vio-
late Section 8(a)(3) and (1) of the Act by laying off
Donald G. Evans, Sr., and Chester Hiltabidel on
February 7. The General Counsel excepts to this
finding and contends that Respondent laid off
Evans and Hiltabidel because of their union activi-
ties in violation of Section 8(a)(3) and (1) of the
Act. We again agree with the General Counsel.
The record evidence discloses that at the time of
the events in question Respondent employed six
employees: Evans and Hiltabidel as bulldozer oper-
ators; Gary Fetzer and Lanny Fetzer6 as truck-
drivers; Darwin Fetzer as mechanic; and John
Hudson as clerk. All worked under the supervision
of Terry Stine.
Around the end of January, Gary Fetzer initiat-
ed discussions at work with other employees, in-
cluding Evans and Hiltabidel, regarding the desir-
ability of union representation, and Hiltabidel vol-
unteered to contact Teamsters Local Union No.
110 (hereafter referred to as the Union). On Febru-
ary 4, Hiltabidel met with Union President Berti-
lino, who gave him some blank authorization cards
to be signed by Respondent's employees. Also that
day, Hiltabidel requested and was granted a $1-per-
hour raise by Respondent.
At 8 a.m. the next morning, February 5, Hiltabi-
del met with Evans and Gary Fetzer in Respond-
ent's trailer and told them he had obtained authori-
zation cards. 7 Evans stated he wanted the Union,
We thus find it unnecessar) to address the General Counsel's alterna-
tivc argumrent for assertion of jurisdiction over Respondent based on Re-
sponldent's services to other enterprises which are directly engaged in in-
terstate commerce.
' We expressly disavow the Administratise aw Judge's characteriza-
tion oIf Respondent's operation as a purely local function which does not
affect iterstate commerce. See Currol/-NVailund Dispoual. Inc.. 152 NLRB
861 (1965); A'iehol Sunitation. Inc., 230 NIRB 834 (1977).
L; anlly Fetzer began employment or February 4
Hiltabidel left the authi)rization cards in his truck to avoid detection
by Respondent
SOUTHERN ALLEGHENIES DISPOSAL SERVICES 853
and Gary Fetzer said he would sign a card. At this
time Darwin Fetzer entered the trailer, and Gary
Fetzer told him that they were going to "get the
Union." Darwin Fetzer responded that he did not
care about the Union because he was going to get
another job. The meeting lasted approximately 5
minutes.
Two days later, on February 7, when Hiltabidel
and Evans arrived at work, they were met by Su-
pervisor Stine and an unidentified individual from
Respondent's home office in Monroeville, Pennsyl-
vania. Stine informed the two employees that they
were laid off and handed them their paychecks.
Neither employee had received any prior notice of
a layoff. The individual from Monroeville stated
that the reason for the layoff was a lack of "roll-
off" business. 8 Stine stated that Gary Fetzer would
be laid off the next day. In response to a question,
both of Respondent's officials made clear that the
layoffs were not due to anything the employees
had done wrong. Evans asked if he and Hiltabidel
would be recalled, and Stine indicated that they
might be recalled in April or May. Hiltabidel asked
if he and Evans should go to work since their pay-
checks included a full day's pay for that day. Stine
replied that they should go home without working.
Stine testified that he had heard rumors of union
activity at Respondent's facility prior to the Febru-
ary 7 layoffs. In addition, Gary Fetzer testified
that, before he was laid off at his own request on
February 8, Stine asked him if he "had intended to
go union." Fetzer answered, "I had intended to go
union also." On February 27, Respondent hired a
new employee, Rick Marsh, as a driver. Respond-
ent did not offer Hiltabidel or Evans that job, nor
has it made any offers of recall to them.
Upon this record the Administrative Law Judge
concluded that the General Counsel had not made
a prima facie showing that Hiltabidel's and Evans'
union activities were a motivating factor in Re-
spondent's decision to lay them off. We disagree.
The General Counsel clearly demonstrated that
Hiltabidel and Evans were strong union advocates.
Furthermore, we find, contrary to the Administra-
tive Law Judge, that Respondent knew of their
union activities. Indeed, Stine admitted that he had
heard rumors of union activities prior to the lay-
offs. Hiltabidel, Evans, and Gary Fetzer were the
only union activists in Respondent's small comple-
ment of six employees. Stine's brief discussion with
Gary Fetzer on the day after the layoffs simulta-
neously demonstrated his animadversion to union-
H The Administrative Law Judge incorrectly defined roll-off business
as the dumping of refuse at Respondent's landfill by trucks of other com-
panies. To the contrary, the record evidence reveals that roll-off business
refers to the dumping of refuse at Respondent's landfill by Respondent's
own trucks.
ism and his ignorance of Fetzer's involvement with
the Union.9 It is reasonable to infer from this evi-
dence that Stine must have identified Hiltabidel
and Evans as union adherents prior to their layoffs.
We so find.
We further find that the precipitate circum-
stances of the February 7 layoffs warrant drawing
an inference of unlawful discriminatory treatment.
The layoffs suspiciously occurred just 2 days after
Hiltabidel, Evans, and Gary Fetzer met in Re-
spondent's trailer to finalize their decision to seek
union representation. Only 3 days before the meet-
ing, Respondent had given Hiltabidel a significant
raise, an action indicating that Respondent had no
plans to lay him off at that time. Respondent nev-
ertheless did lay off Hiltabidel and Evans on Feb-
ruary 7 with such unusual and unexplained haste
that they were sent home immediately rather than
at the end of a day's work for which they were
paid. In significant contrast, Respondent had given
affected employees 1 week's notice prior to an Oc-
tober 1979 layoff. Finally, we note that Respondent
failed to recall either Evans or Hiltabidel for the
truckdriver's position given to new employee
Marsh on February 27. Marsh's hiring belied Re-
spondent's previous indication that it would recall
the laid-off employees, who were undisputedly
qualified to perform the work in question."
Based on the foregoing evidence of union activi-
ties by Hiltabidel and Evans, Respondent's knowl-
edge of those activities, the suspicious timing and
precipitate implementation of the layoff action, and
Respondent's subsequent failure to recall either em-
ployee to a job for which he was qualified, we
conclude that the General Counsel has made a
prima facie showing of unlawful motivation. We
further find that Respondent has failed either to
rebut this showing directly or to demonstrate that
it would have taken the same action against Hilta-
bidel and Evans in the absence of their union activ-
ities. Respondent's stated reason for laying off
9 The record revealed that Gary Fetzer had requested a lay)off prior to
any union activities Thus, unlike the Administrative Lass Judge, we do
not view as "curious" the fact that Fetzer was not alleged in the com-
plaint as a discriminatee
'o The Administrative Law Judge attached no significance to the fail-
ure of recall since at some prior undisclosed time both employees had in-
formed Respondent that they did not wish to be truckdrivers and at the
time of their layoffs neither requested a job as a truckdnver. We reject
his reasoning. When both employees stated that they did not want to be
truckdrivers, they were working as bulldozer operators and were not
faced with having to choose between employment as a truckdriver or un-
employment. Moreover, their failure to request truckdriver jobs at the
time of their layoffs is readily understandable because they were told that
truckdriver Gary Fetzer was bring laid off the next day. Thus, neither
employee had reason to believe that a request for a truckdriver job
would be to any avail. The Administrative Lasw Judge's extrapolation of
this limited failure to request truckdriver jobs into a general admission by
them of Respondent's lack of all types of work is completely unsupported
by the record.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evans and Hiltabidel was a lack of roll-off busi-
ness. However, an examination of Respondent's
Exhibit 12 reveals that, whereas Respondent's roll-
off business declined by 10 percent between De-
cember 1979 and January 1980, it actually in-
creased by over 20 percent between January and
February 1980, the month of the layoffs. In addi-
tion, because of Respondent's contract with the
city of Johnstown, which became effective on Jan-
uary 1, Respondent's landfill dumping accounts l
doubled in January and tripled in February from its
previous monthly levels in 1979. Since Hiltabidel
and Evans were responsible as bulldozer operators
for burying all garbage brought to the landfill,
their work had clearly increased rather than de-
creased at the time of their layoffs. Accordingly, in
the absence of any legitimate economic reason for
the layoff action, the inference of wrongful motive
established by the General Counsel is left intact.
Because a preponderance of the evidence indicates
that Respondent laid off Hiltabidel and Evans on
February 7 in retaliation against their union activi-
ties, we find that Respondent has violated Section
8(a)(3) and (1) of the Act.
3. We agree with the Administrative Law
Judge's finding that Respondent violated Section
8(a)(1) of the Act by Supervisor Stine's interroga-
tion of employee Gary Fetzer on February 8. The
Administrative Law Judge, however, declined to
recommend any Board remedy for this unfair labor
practice in the perceived absence of any other vio-
lations of the Act. We shall also order Respondent
to remedy this 8(a)(l) violation.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By laying off Donald G. Evans, Sr., and Ches-
ter Hiltabidel in retaliation against their union ac-
tivities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. By interrogating Gary Fetzer about his union
activities, Respondent has engaged in an unfair
labor practice within the meaning of Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
I Landfill dumping accounts refer to the dumping of garbage at Re-
spondent's landfill by trucks belonging to companies other than Respond-
ent.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act, we shall order that
it cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies
of the Act.
Having found that Respondent unlawfully laid
off Donald G. Evans, Sr., and Chester Hiltabidel
because of their union activities, we shall order Re-
spondent to offer Donald G. Evans, Sr., and Ches-
ter Hiltabidel immediate and full reinstatement to
their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and to make
them whole for any loss of earnings or employ-
ment benefits that they may have suffered as result
of the discrimination against them by payment to
them of a sum of money equal to the amount they
would have earned from the date of their unlawful
layoffs to the date of an offer of reinstatement, less
net earnings during such period, with interest
thereon, to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651
(1977).12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Southern Alleghenies Disposal Services, Inc., Holl-
sopple, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating
against employees for engaging in activities on
behalf of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Teamsters Local Union No. 110, or any other
labor organization.
(b) Coercively interrogating employees concern-
ing their support of the above-named Union, or
any other labor organization.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
12 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In accordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
SOUTHERN ALLEGHENIES DISPOSAL SERVICES 855
(a) Offer Donald G. Evans, Sr., and Chester Hil-
tabidel immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed, and make them whole, with interest,
for any loss of earnings they may have suffered by
reason of the discrimination against them in the
manner described above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay and benefits due under the
terms of this Order.
(c) Post at its Hollsopple, Pennsylvania, facility
copies of the attached notice marked "Appen-
dix."'3 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
'3 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represent-
ed and afforded the opportunity to present evi-
dence in support of their respective positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, as
amended, in certain respects, and we have been or-
dered to post this notice and to carry out its terms.
The National Labor Relations Act gives all
employees certain rights including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from the exercise or any of all
of these things.
Accordingly, we give you these assurances:
WE WILL NOT lay off or otherwise discrimi-
nate against employees for engaging in activi-
ties on behalf of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters Local Union
No. 110, or any other labor organization.
WE WILL NOT coercively interrogate em-
ployees concerning their support of the above-
named Union, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Donald G. Evans, Sr., and
Chester Hiltabidel immediate and full reinstate-
ment to their former jobs or, if their jobs no
longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
WE WILL make them whole for any loss of
earnings they may have suffered by reason of
our unlawful layoff of them, with interest.
SOUTHERN ALLEGHENIES DISPOSAL
SERVICES, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCl, Administrative Law Judge: A hear-
ing in this proceeding was held on October 14, 1980, on
complaint of the General Counsel against Southern Alle-
ghenies Disposal Services, Inc., herein called Respondent
or the Company. The complaint was issued on May 22,
1980, upon charges filed on March 17, 1980, by Donald
G. Evans, Sr. (Case 6-CA-13268), and on March 18,
1980, by Chester Hiltabidel (Case 6-CA-13275). The
issues presented are whether both these men were dis-
charged in violation of Section 8(a)(3) of the National
Labor Relations Act, as amended. Briefs were filed after
the close of the hearing by both the General Counsel and
Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
In its answer Respondent raised an issue as to whether,
as stated in the complaint, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Teamsters Local Union No. 110, herein called
the Union, is a labor organization. The evidence, unques-
tioned at the hearing, clearly shows, and I find, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE BUSINESS OF RESPONDENT
Respondent is in the business of picking up garbage in
the streets of Johnstown, Pennsylvania, and carrying it
to a place outside of town, where it is dumped into a
hole in the ground. This is a paid service it performs for
all kinds of customers-hospitals, office buildings, fac-
tories, etc. It has, or had, two trucks with which to carry
the garbage, and two bulldozers with which to level off
the mounds of refuse. Dirt, or soil, is then poured over
the refuse and it is leveled off for use one day either for
building or for agriculture.
In the beginning of 1980 the Company made a deal
with the township of Johnstown whereby the town
could have its own street cleaners or garbage removal
employees, with their own trucks, and also bring garbage
to the Company's property and get rid of it by just
dumping it into the hole. For this privilege the township
agreed to pay the Company $58,000 a year. The first
question raised at this hearing was: How does this local
function, if ever there was one, become interstate com-
merce such as to fall subject to the jurisdiction of this
statute?
Among the benefits enjoyed by the employees of the
town are dental insurance, life insurance, and a pension
plan. The dental insurance is handled through Confeder-
ation Life Insurance Co., whose main office is in Chica-
go, the life insurance through National Life Assurance
Company of Canada, whose main office is in Columbus,
Ohio, and the pension plan through Aetna Life and Cas-
ualty Company, whose main office is in Hartford, Con-
necticut. For these benefits the town pays annually
$62,500, $30,000, and $150,000, respectively. The town
also bought two trucks during 1980, each for $72,000;
both were made in Elmira, New York. The theory of ju-
risdiction here is that the city of Johnstown is engaged in
interstate commerce, and that, since Respondent does
business with the city, it too is engaged in interstate com-
merce-the often-stated principle of indirect outflow as it
were.
To say that the city of Johnstown is engaged in com-
merce, interstate or intrastate, is a straining of words. It
is not in business at all; its existence, in totality, is a mu-
nicipal, governmental function. Certainly there is no
profit motive involved in anything it does. Carried fur-
ther, in this case one could hardly say anything Re-
spondent does affects interstate commerce, even by the
remotest imagination; garbage is garbage, very local
stuff. While there is such a thing as being engaged in in-
terstate commerce indirectly, the person, or enterprise,
through whom the indirect commerce concept can be
said to exist must himself, or itself, exist for that purpose.
This is simply not true of the city of Johnstown.
I do not think that the case precedents cited in support
of the complaint in this case are apposite. A company
which exists to cause mail to move from one city, or
State, to another is by its very nature involved in inter-
state commerce. Siemons Mailing Service, 122 NLRB 81
(1958). Therefore, anyone who does business with it, if in
a sufficient dollar amount, becomes entangled in that
commerce, or trade, so that it can be said, albeit indirect-
ly, to itself have something to do with interstate com-
merce. The Oregon Teamsters case (Oregon Teamsters' Se-
curity Plan Office, etc., 119 NLRB 207 (1957)), the Gen-
eral Counsel's principal supporting citation, involved a
straight banking operation or business-a form of com-
merce if ever there was one from time immemorial. The
money of the enormous fund involved there was invest-
ed and had to earn interest and make a profit, and there-
fore for that purpose had occasionally crossed state lines.
This is equally true of the Seventh Day Adventists. Los
Angeles Building & Construction Trades Council (Interstate
Employers, Inc.), 140 NLRB 1249 (1963). In that case
there was a church involved, and it did not exist, in its
ideological essence, for the purpose of making a profit in
this world. But the part of its functioning which was in-
volved in the matter before the Board was a purely
money-raising operation from all over the country. What
the Board called commerce there was the nonreligious
component of the organization's raison d'etre.
In contrast, while the city of Johnstown sends the in-
surance premiums to out-of-state central offices, the teeth
of its garbage removal personnel are fixed in the city, so
that the running of the municipal government can effec-
tively be carried on. I am unable to see how business of
any kind, local or not, is in any way involved in this
case. If the city itself is not involved in commerce, it
cannot be said that the people who charge the city for
using its hole in the ground have anything to do with in-
terstate commerce.
I therefore find that Respondent is not engaged in in-
terstate commerce within the meaning of the statute, or
of the Board's established standards, and shall therefore
recommend that the complaint be dismissed for that
reason.
Ill. ALTERNATIVE FINDINGS; THE ALLEGED UNFAIR
LABOR PRACTICES
A. Section 8(a)(3)
As stated above, at the time of the events which gave
rise to this case, early in February 1980, the Company
had two bulldozer operators, two truckdrivers, and a
mechanic who serviced the equipment. Over them was
Terry Stine, the supervisor.' At the start of the day on
While admitting, in its answer, that Stine "occupies a supervisory ca-
pacity," Respondent nevertheless questioned his status as an agent of the
Company. Again, the evidence shows without question, and I find, that
Stine was a supervisor and agent of Respondent within the meaning of
the Act.
SOUTHERN ALLEGHENIES DISPOSAL SERVICES 857
Thursday, February 7, the two bulldozer operators-Hil-
tabidel and Evans-were laid off, and told the reason
therefor was the lack of roll-off business. Roll-off busi-
ness means that trucks of other companies carry garbage
to the Company's location and dump it on the ground.
The work of the dozer operators is to spread it out. The
next day, Friday, the Company laid off another employ-
ee-Gary Fetzer-one of the truckdrivers.
The complaint alleges that Hiltabidel and Evans were
discharged in retaliation for their union activities and
that thereby Respondent violated Section 8(a)(3) of the
Act. Denying any illegal motive, Respondent asserts af-
firmatively that its sole reason was a decline in business
which necessitated reducing the staff.
The first indication of union activity by any of these
employees came towards the end of the day on February
4. Hiltabidel went to the office of the Teamsters and
talked to James Bertilino, president of Local 110, who
gave him some authorization cards and told him to "get
them filled out." Earlier that day Hiltabidel had had a
run-in with Supervisor Stine. Hiltabidel testified:
He [Stine] said why wasn't I running the dozer.
And I said look what I have to put up with and
there was a mechanical problem with the dozer, it
was smoking so bad that you couldn't see when you
were running it. I said you can't even get me any
more money and he went up, he said I'll get you a
raise and he went up to the office and called and he
came back down and he told me I was going to get
a raise.
At 8 o'clock the next morning, in the company trailer,
Hiltabidel talked with three other employees about the
idea of a union. The other men were Gary Fetzer,
Evans, and Donald Fetzer. No one else was present. Hil-
tabidel testified:
I don't recall exactly what was said. I know that I
told them I had the cards and Gary said that he
wanted to set up a meeting, he wanted to talk to the
guys at the union hall and then when Darwin came
in he told him that they were going to get the union
and Darwin said he could care less because he was
going to get another job.
Hiltabidel added that one of the men-Gary Fetzer-said
that "he wanted a union," and another man-Evans-
said that "he would sign a card." However, the witness
then also said that he did not offer the authorization
cards to the men or produce them at all, testifying: "I
didn't want the Employer to know it and I never took
them out of my van."
This is the totality of the evidence on the entire sub-
ject of union activity by any of the employees before
three men were dismissed and, indeed, even as to any
time thereafter. Hiltabidel admitted that he never again
mentioned the Union to anybody-employee or boss,
and Gary Fetzer testified candidly that he never referred
to the Union when talking to any supervisor.
If ever there was a case that could be called an infer-
ence theory of illegality, this is it, both with respect to
company knowledge of the union activities of the alleged
discriminatees and with respect to claimed prohibited
motivation. The one related fact that can be called
grounds for suspicion is the timing-the discharges oc-
curred 2 days after some men talked for 5 minutes about
a union. If the volume of business was too low, why did
Respondent not reduce the staff a week earlier or a week
or two later? I do not know. However, reliance here
upon Board precedent which says pinpointed knowledge
of union activity may be inferred from the small size of
the plant, or the limited number of employees involved,
is misplaced. It is one thing where the union activity is
carried on openly, aboveboard, or unconcealed; it is
something else where the prosecution's own witnesses
prove that the few who thought of the subject at all took
pains to keep their sole conversation hidden-as Hiltabi-
del personally admitted, where they take no overt action
at all, even limited to themselves. How can I find that a
situation in fact came into being-knowledge by the em-
ployer-which the employees themselves were careful to
preclude?
Of the many collateral facts, some mentioned below,
the one on which the General Counsel relies most
strongly as proof of illegal action against these two men
merits special comment. Gary Fetzer was laid off on
Friday instead of on Thursday like the other two men.
While he was working that last day Supervisor Stine
asked him "If I had intended to go union, and he an-
swered I had intended to go union also." This is Fetzer's
testimony, who also said that he had never mentioned
the Union to Stine before. The manager did not contra-
dict this testimony. I find unpersuasive the conclusionary
statement in the General Counsel's brief that as to Hilta-
bidel and Evans there is "the element of knowledge nec-
essarily inherent in Stine's asking Gary Fetzer" this ques-
tion. That Stine had heard that somebody was talking
union is conceded, for he admitted that he had heard
"rumors" of union activities before the discharges. How-
ever, the question is whether it can be said, from this one
quotation, that he had knowledge of Hiltabidel's and
Evans' personal involvement. Had Stine asked Fetzer
whether he "also" had intended to go union, one might
say he already knew who else had gone union; but the
word "also" was spoken by the employee, not the man-
ager. What this means is that perhaps Stine already
knew, or believed, Fetzer had gone union; but, curiously,
Fetzer, who was discharged that very day, is not named
in the complaint as an illegal discriminatee!
Decision in any inference case is never reached with
absolute certainty, but, considering the record in its en-
tirety, I do not think it can be said that in fact Respond-
ent discharged these two men because of their prounion
sentiments. As the Board recently held in Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980), the
first question has to be: Has the General Counsel proved
a prima facie case in support of the complaint? If he has,
the burden shifts, and the second question is reached:
Has the respondent proved affirmatively that it in fact
discharged the employees only for an objective, econom-
ic, or other nonillegal reason? In this case, I do not think
the second question need be answered, for a prima facie
case to start with has not been proved. There simply is
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not enough probative evidence of either knowledge or
animus.
Before reaching the precise contentions said to support
the inference of illegal purpose, one major matter de-
serves comment. This is not a case where the clear falsi-
ty of the asserted affirmative defense of just cause
strengthens the purport of the case-in-chief. Cf. Shattuck
Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466 (1966). Respondent asserts that it had to let
three people go because there just was not enough work
to keep all of them on full time. While the evidence of-
fered by Respondent, largely certain record documents,
to prove that claim falls short of being definitively per-
suasive, the overall picture does lend some support to its
defense. Alexander Rangos, manager of another compa-
ny owned by the same parent corporation which owns
Respondent, produced extensive records of payrolls,
sales, profits, and losses. As to past hirings they are nei-
ther reliable nor understandable. In fact, the witness him-
self admitted that the documents are by no means clear.
Further, in its post-hearing brief Respondent made no at-
tempt to clarify the ambiguity, nor, indeed, to argue
from these records with any precision. Nevertheless,
turning to the other side of the coin, there is other evi-
dence-largely uncontradicted testimony-showing that
Hiltabidel and Evans, dozer operators, were not replaced
by anybody after they left. On February 17 a man named
Allen Chaplain was hired as a "laborer on the land-fill."
This means that he was neither a truckdriver nor a dozer
operator. Further, Rangos also testified, and no one con-
tradicted him, that since the February discharges all the
dozer operator work has been performed by Supervisor
Stine and D. Fetzer, one of the old truckdrivers, on a
part-time basis; i.e., these two men had time left over
from their regular duties to take care of the diminished
dozer work necessary. In addition, there is the further
undisputed fact that in October 1979, again because of a
"lack of work," the Company fired three employees in a
single day.
The coin keeps revolving. On February 27 the Compa-
ny hired a man named Rich Marsh to work as a truck-
driver. If it needed a man so soon after the discharges,
why did the Company not recall Hiltabidel and Evans,
especially after telling them on February 7 that they
would be recalled if needed? The General Counsel makes
much of this one fact, i.e., hiring an outsider instead of
recalling Hiltabidel, especially in view of the fact that
Hiltabidel had been a truckdriver for the Company
before switching to dozer operator 7 months before the
discharge. In fact, he contends that Stine's failure to
offer either Hiltabidel or Evans truckdriver jobs on the
day of the discharge is the strongest proof of animus.
However-and again the coin keeps revolving-there is
uncontradicted evidence, given in the presence of both
Hiltabidel and Evans, that they had conveyed a message
to the employer, long before the discharges, that they
did not want to do any truckdriving work. According to
Stine's uncontradicted testimony: "At one time Hiltabidel
told me he no longer had wanted to run a truck and
Evans asked me not to notify the office that he was able
to run a truck." Moreover, had either of these two men
believed Respondent was fabricating when it said they
were being sent home because there was not enough
work, both or at least one would have asked for a job as
a truckdriver. Neither one did.
The fact that neither of the men asked for another job
is not only an indication that they did not want to be
truckdrivers, but also that each realized that there was
not enough work for the entire old cadre to do. Further,
perhaps a more revealing fact is what appears to have
been Hiltabidel's reaction to the supervisor's criticism of
him for just sitting around and not working. He com-
plained about not being paid enough. Stine then said that
he would raise Hiltabidel's hourly pay by $1. Does an
employee who thinks he deserves a raise and quickly
gets it go running straight to the Union? Or could it be
that Hiltabidel knew there was too little work for every-
body, that jobs were at stake, and that he might be one
of those chosen to be sent home because of his offensive
behavior?
With the related facts on this question of the affirma-
tive defense pointing almost equally in both directions, I
cannot say either that Respondent did discharge the two
men because of the decline in business, or that it did not
dismiss them for that reason. With this, the final decision
must rest upon the fact that the General Counsel has not
proved a prima facie case. As always the test must be
whether the unfair labor practice has been proved by a
preponderance of the substantial evidence on the record
as a whole. N.L.R.B. v. Glen Raven Silk Mills Inc., 203
F.2d 946 (4th Cir. 1953) The burden of proof is a posi-
tive one, and has not been met here.
There are one or two further contentions which I do
not think suffice to satisfy this affirmative burden. Both
men were told that they did not have to work that last
day, Thursday, although they were paid for the full day.
The General Counsel sees evidence of animus in the fact
that "they were not permitted to work through Thurs-
day." The men were also paid for what vacation time
was due them, which is further proof of intent to retali-
ate, according to the General Counsel. I think it best not
to comment on such arguments. What would the argu-
ment be today had the Company refused to give these
men their earned vacation pay? Finally, Respondent did
not follow strict seniority when releasing them. In Octo-
ber 1979 there had been a similar mass layoff for eco-
nomic reasons and on that one occasion the Company
did make its selection according to seniority. Does this
mean that it deviated from an "established practice" in
this sole instance, and thereby revealed illegal intent? I
am not at all sure; the record does not show what the
circumstances of the earlier layoff were. More important-
ly, both Hiltabidel and Evans occupied the kind of job-
dozer operator-for which work was needed less and
less. This was a selective basis that could well explain
why the Company chose differently this time. Besides, I
think it takes more than one instance to establish a prac-
tice.
I shall recommend dismissal of the complaint with re-
spect to the discharge of both these men.
SOUTHERN ALLEGHENIES DISPOSAL SERVICES 859
B. Section 8(a)(1)
I find that, when Supervisor Stine inquired of employ-
ee Gary Fetzer on Friday, February 8, whether he had
intended to go union, Respondent violated Section
8(a)(1) of the Act. It matters not that Fetzer had already
been advised that February 8 was his last day of work.
See Little Rock Crate & Basket Co., 227 NLRB 1406
(1977). However, while this was an unfair labor practice,
it was such an isolated occurrence that it does not war-
rant a full Board finding and the ordering of remedial
action.
[Recommended Order for dismissal omitted from pub-
lication.]