TK Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2007

25-CA-029863 (N.L.R.B. Sep. 28, 2007)

JD–64–07
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KR DRENTH TRUCKING, INC.
d/b/a TK SERVICES, INC.
and Cases 25–CA–29863 Amended
25–CA–29864 Amended
LOCAL UNION NO. 135, CHAUFFEURS, 25–CA–29921
TEAMSTERS, WAREHOUSEMEN AND 25–CA–29922 Amended
HELPERS, INDIANAPOLIS, INDIANA AND 25–CA–29930
AIRLINE EMPLOYEES IN THE STATE 25–CA–29974
OF INDIANA, a/w INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Kimberly R. Sorg-Graves, Esq., for the
General Counsel.
Bruce F. Mills, Esq. (Wessels and Pautsch, P.C.),
of Indianapolis, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL, JR., Administrative Law Judge. This case was heard by me on
September 25–27, 2006, and April 17–18, 2007, in Indianapolis, Indiana, pursuant to an original
charge field by Local Union No. 135, Chauffeurs, Teamsters, Warehousemen and Helpers,
Indianapolis, Indiana and Airline employees in the State of Indiana, a/w International
Brotherhood of Teamsters (the Union) on February 8, 2006, against KR Drenth Trucking, Inc.
d/b/a TK Services, Inc. (the Respondent) in Case 25–CA–29863; the Union amended charge on
May 31, 2006.
On February 8, 2006, the Union filed an original charge against the Respondent in Case
25–CA–29864; this charge was amended by the Union on May 31, 2006. On April 6, 2006, the
Union filed an original charge against the Respondent in Case 25–CA–29922 against the
Respondent and filed a first amended charge in this case on May 31, 2006, and a second
amended charge on June 8, 2006. On April 10, 2006, the Union filed an original charge in Case
25–CA–29930 against the Respondent. On May 31, 2006, the Union filed an original charge
against the Respondent in Case 25–CA–29974.
On July 31, 2006, the (Acting) Regional Director for Region 25 of the National Labor
Relations Board (the Board) issued a complaint against the Respondent alleging that the
Respondent violated on numerous occasions Section 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (the Act).1 On August 8, 2006, the Respondent timely filed its answer to the

1 On September 26, 2006, the General Counsel made a motion to amend the complaint to
Continued
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complaint essentially denying the commission of any unfair labor practices and asserting certain
affirmative defenses.
At the hearing, the parties were represented by counsel and were afforded full
opportunity to be heard, examine, and cross-examine witnesses, and introduce evidence. On
the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent, I make the following
findings of fact, conclusions of law, and order.
I. JURISDICTION—THE BUSINESS OF THE RESPONDENT
The Respondent, in conducting its business, waste hauling, maintains offices and places
of business in various cities in Indiana. The Respondent admits that during the past 12 months
in conducting its business, it purchased and received, at its various facilities in Indiana, goods
valued in excess of $50,000 directly from points outside the state of Indiana. Accordingly, I
would find and conclude that the Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted by the parties, and I would so find and conclude, that at all material times
herein, Local Union No. 135, Chauffeurs, Teamsters, Warehousemen and Helpers,
Indianapolis, Indiana and Airline Employees in the State of Indiana, a/w International
Brotherhood of Teamsters has been a labor organization within the meaning of Section 2(5) of
the Act.
III. BACKGROUND MATTERS NOT IN DISPUTE OR CONTROVERSY
A. The Respondent’s Business Operations
The Respondent, KR Drenth Trucking, Inc., which conducts its business under the trade
name TK Services, Inc., engages in basically the garbage or refuse collection and hauling
business.
_________________________
include additional charges alleging violations by the Respondent of Sec. 8(a)(1) of the Act. At
that time, I took the motion under advisement but was inclined to deny it on grounds of
timeliness and due process, the proposed amendment’s being made on the second day of the
hearing and the General Counsel’s not having adequately apprised the Respondent’s counsel of
her intentions. The Respondent opposed the amendment, citing generally his concerns for due
process and prejudice to his client. On April 17, 2007, the General Counsel renewed her
motion to amend the complaint. I will grant this motion consistent with the General Counsel’s
proposed amendments as contained in G.C. Exh. 1(xx) because my earlier concerns of
timeliness and due process (fairness) have been obviated by the passage of an extensive
period of time between the General Counsel’s original motion in September 2006 and the
resumption of the hearing in April 2007 as well as the Respondent’s being placed on notice of
the proposed amendment in September 2006. The Respondent, I note, again opposed the
renewed amendment on April 17, but interposed a denial of the allegations associated with the
amendments. The amended charges will be considered and resolved by me later herein in an
appropriate section.
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During all times material here, the Respondent was under contract with Republic
Services, Inc. (Republic) to haul trash and garbage that Republic picked up at curbside from
local businesses and residences and dumped at about ten transfer stations throughout central
and southwestern Indiana. The refuse was then hauled for disposal to various landfills.
The Respondent operated out of Republic’s aforementioned transfer stations which were
located at Kokomo, Anderson, Bloomington, Bedford, Green Castle, Washington, Vincennes,
and Jasper, Indiana. The Respondent also operated two transfer stations in Indianapolis,
namely 96th Street Station and Circle Center Recycling (CCR). The Respondent’s semi/tractor-
trailer trucks are loaded with refuse at the transfer stations and weighed by employees called
loader/operators and then driven to either of two landfills, the Sycamore Ridge Landfill in Terre
Haute, Indiana, or the Washbash, Indiana Landfill where the garbage is dumped; most of the
Respondent’s trucks haul to the Sycamore Ridge Landfill. The Respondent maintains
mechanics shops and garages on Republic’s property at CCR and at what is called the Old
Victory Landfill in Terre Haute.
During all material times, the Respondent employed about 47 drivers who haul refuse,
9–10 loader/operators, and 7–8 mechanics, all of whom are employed at the 10 transfer
stations. All of the transfer stations, shops, offices, and the landfills out of which the
Respondent operates are owned by Republic. The Respondent, per its contract with Republic,
is allowed to use Republic’s facilities to conduct its operations.
The Respondent’s Indiana operations are primarily conducted under the management of
one person, Joe Bergeron,2 who maintains an office at Circle City Recycling. Bergeron reported
to the Respondent’s head office in Chicago, Illinois, primarily to Kenneth Drenth who acts as the
Respondent’s secretary-treasurer.3
B. The Union’s Organizing Drive
The events making for this litigation began on or about January 10, 2006, when one of
the Respondent’s drivers contacted the Union about the possibility of organizing the Company’s
driver force.
On or about January 20, 2006, union initiator Stacey Thomas, along with fellow drivers
Dennis Conner and Jason Rankin, met with representatives of the Union at the union hall to
discuss an organizing drive to represent the Respondent’s drivers.4 During the period covering
January 20–27, the Union conducted a low key organizing campaign among the Respondent’s
drivers. On January 27, the Union formally requested that the Respondent recognize it as the
drivers’ bargaining representative. On January 30, 2006, having received no reply to its request

2 Bergeron is an admitted supervisor. Bergeron testified at the hearing and stated that his
position was manager of the ten facilities operated by the Respondent. His duties include the
authority to hire, fire, discipline, assign, and transfer employees at the Respondent’s facilities. I
would find and conclude he meets the definition of supervisor under the Act.
3 Kenneth Drenth testified at the hearing as did Joe Bergeron. The evidence of record
supports a finding that Drenth’s duties, responsibilities, and actions fall within the definition of
agent under Sec. 2(11) of the Act.
4 The Union had evidently at an earlier date, sometime in 2004, attempted to organize the
Respondent’s drivers but was unsuccessful. This prior campaign was not the subject of the
instant litigation and was discussed only as a background matter.
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from the Respondent, the Union filed a petition for certification of representative with the Board,
a copy of which was faxed to the Respondent on that date.5
After the petition was filed, the Union’s organizing campaign began in earnest, as did the
Respondent’s campaign in opposition to the Union.6
IV. THE UNFAIR LABOR PRACTICE ALLEGATIONS
The complaint, as amended, essentially alleges that on various dates covering the
period January 26 through September 2006, the Respondent, acting through its supervisors
and/or agents, violated Section 8(a)(1) and (3) of the Act by interrogating employees about their
union activities and threatening employees with specified and unspecified promises, benefits,
reprisals, and withdrawing benefits from employees because of their involvement with and
support of the Union; promulgating, maintaining, and disparately enforcing a no-solicitation rule
to discourage employees from supporting the Union or engaging in activities on its behalf;
requesting that employees provide the Respondent with copies of affidavits taken by the Board
agent investigating the Union’s charges; and issuing warnings to, suspending, and discharging
employees because of their union activities.7
A. Preliminary Issue: The Supervisory/Agent Status of the Respondent’s
Employees, Brandon Meekin and Clements Clark
As noted earlier herein, the Respondent’s onsite manager, Joseph Bergeron, performed
unquestionably supervisory duties for the Respondent and is an admitted supervisor. However,
regarding two employees, Brandon Meekin and Clements Clark, there is an issue as to whether
they are employees or statutory supervisors and/or agents.
Neither Meekin nor Clark testified at the hearing.8 However, several of the drivers who
worked with Meekin, and who were familiar with Clark and the role he appeared to have played
during the organizing campaign, did testify at the hearing. Bergeron also testified but only about
the duties and responsibilities of Meekin.
The General Counsel notes (correctly) that under Board law, employers may properly be
held responsible for the conduct of an employee where, under the extant circumstances,
employees would reasonably believe that the employee was reflecting company policy and

5 See G.C. Exh. 2, a copy of the petition.
6 See G. C. Exh. 3, a copy of an undated letter sent by the Respondent through Joe
Bergeron to the employees, inter alia, acknowledging receipt by him of the petition and
informing them that the Company opposed the Union and believed that the presence of the
Union was “harmful to everyone involved.”
7 It should be noted that the incidents as alleged took place during the Union’s organizing
campaign. Sometime during the course of this litigation, an election was held at the Company,
and the Union lost the election.
8 According to the Respondent, Meekin is no longer employed by the Company. Clark was
identified by witnesses during the hearing as being in the hearing room, but he was not called
as a witness by the parties. It was not made clear whether Meekin was unavailable or his
whereabouts unknown. Bergeron testified that Meekin simply walked off the job, quietly with no
notice. Another alleged discriminatee, Conner, testified that he knew of Meekin’s whereabouts
but did not elaborate.
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acting on its behalf.9 In short, by virtue of their apparent authority, employees not fitting the
definition of supervisor under the Act may, nonetheless, satisfy the statutory definition of agent
under Section 2(13) of the Act.
The General Counsel called as witnesses two of the Respondent’s drivers who hauled
refuse out of the Vincennes transfer station where Meekin was employed by the Respondent as
an loader/operator—Dennis Conner and Stacey Thomas.10
Conner testified that he worked for the Respondent as a driver and part-time front-end
loader for about 3 years and was familiar with Meekin, who operated a front-end loader at the
Vincennes transfer station. According to Conner, Meekin interviewed new driver applicants,
provided them with the pertinent paperwork, and supervised the road tests applicants were
required to pass before being hired. On this latter point, Connor said that Meekin instructed him
to take the prospective driver out for his road test. After the training runs were completed,
Connor stated that he would report to Meekin with the results and if he (Connor) determined that
the applicant was a competent driver, Meekin would approve him for hire. Connor stated that
he also witnessed Meekin on one occasion discipline an employee for tardiness and not taking
an assigned load.
According to Conner, Meekin on occasion would assign him to pick up refuse from
transfer stations other than Vincennes. Parenthetically, Conner noted that he received different
wages for loads hauled from the various transfer stations. For example, a load hauled out of
Vincennes paid $40; out of Bloomington, $50; Greencastle, $45; and Indianapolis (CCR and
96th Street), $67. Thus, Connor implied that Meekin’s assignments to haul loads out of stations
other than Vincennes provided him additional pay opportunities.
Conner testified that whenever he needed time off, he made his request through Meekin.
Conner stated that Meekin also was the person to whom he gave the company paperwork to
receive credit for the loads he hauled at the end of every day. Any problems with his pay,
according to Conner, were handled by and through Meekin. Conner also noted that any
problems with the trucks or any other problems that arose on the job at Vincennes were handled
by Meekin.
Conner noted that while Meekin did the front-end loader work at Vincennes along with
these other duties, he recalled that Bergeron told him that Meekin was being groomed and
trained for a supervisory position with the Company and, in that vein, Conner was to see Meekin
for any job-related matter before calling him (Bergeron). Conner stated that this conversation
occurred on the occasion of his first meeting Bergeron at Vincennes some time ago.11
Stacey Thomas testified that he knew Meekin and considered him his “supervisor.”
Thomas explained that he would call Meekin with regard to any job-related problems at
Vincennes where he received his loads and would turn in his daily paperwork to Meekin.
According to Thomas, Meekin gave him his assignments for the day and if he needed time off,

9 See CNP Mechanical, Inc., 347 NLRB (No. 14, slip op. 15 (May 31, 2006); Kosher Plaza
Supermarket, 313 NLRB 74 (1993).
10 Conner and Thomas are alleged discriminatees; neither man currently was employed by
the Respondent at the time of the hearing. Both men voluntarily terminated their employment
with the Respondent.
11 Conner did not give a date for this conversation. However, in context, I am presuming
that he meant some time early in his tenure with the Respondent.
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Meekin was the person he contacted for approval of his request. Meekin also handled any
problems with pay, especially if there were errors in the amounts drivers were to receive.
According to Thomas, Meekin corrected his pay amounts on two occasions.
Bergeron testified about Meekin's employment with the Company, acknowledging that
he worked at the Vincennes transfer station at least from around January 1 until April 1, 2006,
on which date he voluntarily quit. Bergeron also acknowledged that Meekin accepted
applications for employment on behalf of the Company and even placed ads in local
newspapers when driver vacancies occurred. Bergeron stated that Meekin was the designated
company contact person for interested job applicants. Bergeron also conceded that Meekin
submitted driver payroll records to the Company’s headquarters in Chicago, at least for the
drivers hauling out of the Vincennes, Jasper, and Bloomington transfer stations.
Bergeron noted that while Meekin did not have hire/fire authority, he was charged by the
Company with hand delivery of disciplinary notices to affected employees; however, Meekin
was not authorized to discipline an employee. According to Bergeron, Meekin did not direct the
work of the drivers; that function was performed by him (Bergeron).
Bergeron steadfastly denied that Meekin held any supervisory authority at the Vincennes
station. According to Bergeron, Meekin was a loader/operator who on occasion acted as a
“conduit” for him (Bergeron).12
Regarding the matter of Clark’s role with the Company, Bergeron testified that Clark was
hired by the Company as a consultant to combat the Union’s organizing drive around January
2006.13
The General Counsel urges on the strength of the foregoing that both Meekin and Clark
be found statutory agents and that the Respondent as principal be held responsible for their
statements and conduct made or done in furtherance of the Respondent’s interest and within
the scope of their apparent authority to represent the Company with respect to all pertinent
employment-related issues and the union organization drive in particular.
The Respondent for its part denied Meekin’s supervisory authority, but did not address
the agency issue as to him in its brief or at trial. The Respondent, in likewise, did not address

12 Kenneth Drenth testified that Meekin, while carried officially on the company payroll as a
loader/operator at Vincennes, was, nonetheless, Bergeron’s eyes and ears out there. (Tr. 630.)
Drenth noted that Vincennes was about 100 miles from the Indianapolis facility where Bergeron
officed, and Meekin was a leadman who had the authority to report to Bergeron about the
employees’ behavior, conduct, and performance; he had to report to Joe as to what was
happening at Vincennes. (Tr. 631.)
13 Andrew Keck, currently employed by the Respondent as a driver and an alleged
discriminatee herein, testified that Clark—whom he identified in open court as the advisor for the
Company—asked employees at a meeting about their affidavits given to the Board and whether
they would provide a copy to the Company. Keck stated that Clark was also present with
Bergeron at various company sponsored meetings with the employees during the union
campaign. Stacey Thomas, a former driver, testified that he knew Clark as “Clem” who acted as
the Company’s attorney or a consultant. According to Thomas, on one occasion, Bergeron
called Clark to consult with him about a parking issue and the upcoming union election. This
matter is the subject of an unfair labor practice charge herein and will be discussed in a
separate section.
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the agency status of Clark, although the Respondent opposed the General Counsel’s motion to
amend on the record at the hearing.
Section 2(13) of the Act provides:
In determining whether any person is acting as an agent of another person so as
to make such other person responsible for his acts, the question of whether the specific
acts performed were actually authorized or subsequently satisfied shall not be
controlling.
The Board applies common law principles of agency to determine whether an individual
possesses actual or apparent authority to act for an employer, and the burden of proving an
agency relationship is on the party who asserts its existence. See, e.g., Pan-Oston Co., 336
NLRB 305, 305–306 (2001). “Apparent authority results from a manifestation by the principal to
a third party that creates a reasonable basis for the latter to believe that the principal has
authorized the alleged agent to perform the acts in question.” Southern Bag Corp., 315 NLRB
725 (1994). The test is whether, under the circumstances, employees would reasonably believe
that the alleged agent was reflecting company policy and speaking and acting for management.
See, e.g., Pan-Oston Co., supra, citing Waterbed World, 286 NLRB 425, 426–427 (1987), enfd.
974 F.2d 1329 (1st Cir. 1992).14
A principal is responsible for its agents’ conduct if such action is done in furtherance of
the principal’s interest and is within the general scope of authority attributed to the agent, even if
the principal did not authorize the particular act. In other words, it is enough if the principal
empowered the agent to represent the principal within the general area in which the agent has
acted.15
It seems abundantly clear on this record that the Respondent authorized Meekin to
speak and act for the Company on a variety of issues touching on the drivers’ terms and
conditions of employment.16 In agreement with the General Counsel, I would find and conclude
that Meekin was cloaked with actual and apparent authority to represent the Respondent in his
dealings with the drivers and that authority created a reasonable basis for its employees to
believe that the Company had authorized him to speak and act on its behalf in ways reflective of
company policy. I would find and conclude that Meekin was a statutory agent.
Regarding Clark, the Respondent’s labor consultant, it is equally clear—and the
Respondent seemingly concedes this point—that he also was its agent within the meaning of
the Act. Methodist Hospital of KY, 318 NLRB No. 7 (1995).
I will resolve the allegations implicating Clark and Meekin in any unfair labor practice
alleged herein based on these findings.

14 These principles are taken from Ready Mix, Inc., 337 NLRB 1189 (2002).
15 Bio-Medical Applications of Puerto Rico, Inc., 269 NLRB 827, 828 (1984).
16 I have credited the drivers who testified about Meekin’s role vis a vis the drivers at
Vincennes in this regard. Further, Bergeron and Drenth essentially corroborated the drivers’
testimony regarding Meekin’s duties and responsibilities on the job and his relationship with
them.
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B. The Substantiative Charges
1. Paragraphs 5 and 6(c), (g), (h), and (i) of the complaint allege that the Respondent
violated Section 8(a)(1) on numerous occasions covering the period January 26 through the
middle of September 2006. These charges will be discussed in the same numerical order as
they appear in the complaint.
1(a) Bergeron’s alleged interrogation of the employees on or about January 26, 2006
The General Counsel called alleged discriminatee David Oberholtzer to establish this
charge.
Oberholtzer testified that he was employed by the Respondent from around June 2004
through April 6, 2006, when he was terminated by Bergeron, his immediate supervisor during
the time he was employed. Oberholtzer stated that he was mainly a driver of a refuse hauler,
but on occasion served as a loader/operator working primarily out of the Circle City transfer
station in Indianapolis.
Oberholtzer stated that he was actively involved in the union organizing drive in that he
attended organizing meetings, hosted a party in support of the Union at his home, collected
union authorization cards, and handbilled. During the course of the union drive, Oberholtzer
said that he also contacted employees about the Union in person over his personal citizen band
(CB) radio and over the company provided walkie-talkie (Nextel) communications system.17
Oberholtzer testified that on January 26, Bergeron called him to his Circle City office
and, among other things, asked him if he had heard anything about the Union and from what
sources had he heard anything. Oberholtzer stated that he responded by telling Bergeron that
he had just heard some “grape vine stuff”, that (people) were just talking about the Union.
Oberholtzer testified that he told Bergeron that he was not going to identify the persons involved
in the conversations when Bergeron asked from what “end” the union talk was coming.
According to Oberholtzer, Bergeron then said that he knew the employees held secrets, but was
the union talk coming from the “south” end or “north” end (presumably of the Respondent’s
operations). Oberholtzer said that he simply replied to Bergeron that the talk was “local.”
1(b) Bergeron’s alleged threat of job loss if employees selected the Union
As part of the same January 26 conversation according to Oberholtzer, in response to
his (Oberholtzer’s) reply that the union talk was local, Bergeron then said,
Okay, well, if you hear anybody talking about it just say no. Tell them if you do it we lose
the contract. Think about everybody else you will put out of work. Everybody else, who
even wants to do it is put out of work.
In response, Oberholtzer asked Bergeron if he had a copy of the (Republic) contract onsite.
According to Oberholtzer, Bergeron then said (with a belligerent tone),

17 Oberholtzer also stated that beginning around the middle of February 2006, he also
started wearing a ball cap that was inscribed with “Vote Union,” and also festooned his hardhat
with Teamsters Local 135 decals or logos.
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You know what, I don’t have to give you guys nothing, you don’t want to give me
information; I don’t have to give you guys nothing.
Oberholtzer said the meeting basically ended on this note, although he informed Bergeron in
parting that it was a federal offense for Bergeron to ask him about his (or others’) union activities
and involvement. According to Oberholtzer, Bergeron, with a profane remark, invited
Oberholtzer to sue him if he so desired.
Bergeron testified at the hearing and was queried by the General Counsel about his
encounter with Oberholtzer on January 26. Bergeron admitted to meeting with Oberholtzer and
asking him if he (Oberholtzer) had heard anything about the Union. According to Bergeron, he
merely asked Oberholtzer whether he had heard any scuttlebutt about the Union. Bergeron
denied that he mentioned to Oberholtzer that he (Bergeron) had heard talk about the Union in
this conversation. Rather, Bergeron stated that he asked Oberholtzer what he had heard about
the Union. Bergeron also denied asking Oberholtzer where he (Oberholtzer) had heard about
the Union, that he did not ask from what “end” he had heard it. Bergeron also denied telling
Oberholtzer in this conversation that if the employees pursued unionization, they would lose the
(Republic) contract and be out of work.
A preliminary issue is whether Bergeron made the allegedly unlawful statements
attributed to him by Oberholtzer in an admittedly one-on-one situation. I would find and
conclude that Bergeron indeed engaged in the conversation with Oberholtzer on January 26
and made the statements alleged to be violative of the Act.
It should be noted that Oberholtzer secretly recorded his encounter with Bergeron, and
the statements set out in the discussion above reflect a verbatim transcript of the conversation
between the two men.18 Accordingly, the pertinent statements of Bergeron quoted herein reflect
Bergeron’s own words in the conversation. Notably, Bergeron denied making these statements
but, once confronted with the tape recording, did not deny that his voice was recorded on the
tape.19 Therefore, I would credit Oberholtzer’s version of the meeting on January 26 with his
supervisor, Bergeron. The legal effect, if any, of these statements will be discussed in a
separate section of this decision.
1(c) Brandon Meekin’s alleged interrogation and threats of unspecified
reprisals on January 27, 2006
The General Counsel called former Drenth driver (and sometimes loader/operator)
Dennis Conner as her witness to establish this charge. Conner said he began working for the
Respondent around July 15, 2003.20

18 See G.C. Exh. 11, a transcript of a tape made by David Oberholtzer. This tape recording
was the subject of the General Counsel's appeal from one of my evidentiary rulings concerning
the tape recording. (See G.C. Exh. 1(mm) dated October 12, 2006.) Based on the Board’s
Order, I audited the tapes and certified the accuracy of the transcript.
19 Pursuant to the Board’s Order in the special appeal, the Respondent’s counsel was given
a copy of the tape recording in question in order to cross-examine Oberholtzer.
20 As noted earlier, Conner at the time of his appearance at the hearing was no longer
employed by the Respondent as of May 23, 2006. He has been employed at another trucking
concern since May 25, 2006. Conner testified that he voluntarily quit his job with Drenth.
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Conner stated that he knew Meekin as the loader/operator assigned by the Respondent
to the Vincennes transfer station, and worked with him daily regarding the loading of his truck
and other matters previously discussed in the discussion about Meekin’s agency status.
By way of background, Conner testified that he was familiar with the Union, having been
contacted in January 2006 by fellow drivers Jason Rankin and Stacey Thomas who sought his
opinion about forming a union at Drenth.21 Conner stated he subsequently became involved in
the organizing drive and his activities included speaking with fellow drivers to ascertain their
feelings about the Union and handing out and collecting union authorization cards for the
Union.22 Conner stated that he spoke to the drivers—in his words, very carefully—in person at
the Sycamore Ridge Landfill and on his personal Nextel (walkie-talkie) telephone; Conner stated
that some drivers were issued company Nextels with which he could communicate; other drivers
had personal Nextels and would likewise communicate with him during the workday.
Conner said that he had two separate discussions with Meekin in which the Union was
discussed.
Conner said the first occasion took place on January 27, 2006, in the early afternoon at
the Vincennes transfer station as he and Meekin were purchasing a soda. According to Conner,
Meekin said he would like the two of them to talk privately. Conner said that he and Meekin left
the job in Meekin’s truck and Meekin asked him during the trip whether he was involved in any
union activity. Conner said he told Meekin that he should not be asking him about the Union as
this was unlawful. Conner said that, nonetheless, he told Meekin that he was up to his neck in it
(union activity). According to Conner, Meekin then asked who else was involved. Conner said
he told Meekin that he would not divulge the names and further remonstrated Meekin, telling
him again these questions were unlawful, that he should not be asking about these matters.
According to Conner, Meekin then suggested that they converse as friends, off the
record. Conner said he did not immediately respond to this request, whereupon Meekin related
a call he had received from Mr. Drenth in Chicago. According to Conner, Meekin said that
Drenth was very upset about a fax from the Union informing him that the Union was filing a
representation petition, but that he had received no information about it from Bergeron; Drenth
wanted to know what was going on.
Conner said that he told Meekin that he (Conner) was pleased with this because the
union supporters had tried to keep their drive very quiet, although the union supporters had
been notified of the filing.
According to Conner, Meekin responded, saying that he hoped that Conner had not
stuck his neck out too far to where it gets chopped off. Conner said he merely responded that
he was looking for a job when he took the job at Drenth, so be it (if he were fired).
Conner said the second conversation with Meekin took place on Saturday, February 18,
2006, at a Denny’s Restaurant in Vincennes; again, just the two of them were present.

21 On cross-examination, Conner stated that the Union had also attempted to organize the
Company in the summer of 2004 and mailed union materials to him.
22 Conner identified G.C. Exh. 45 as a copy of his own signed authorization card dated
January 20, 2006.
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Conner explained that on that very cold day, the brakes on a trailer had frozen, making
the conveyance immovable. Conner said that he informed Meekin of the situation, and Meekin
and he decided to get something to eat. Meekin offered to buy the meal, so off they went in
Meekin’s vehicle to Denny’s.
Once they were seated at the restaurant, Conner said that after some small talk, Meekin
stated that he hated the union “stuff” then ongoing because he had never seen the Company in
such bad shape. Meekin said that he wished the union stuff had never taken place. According
to Conner, Meekin told him that he had heard from a pretty reliable source that no matter what
the outcome of the union organizing effort—voted in or out—his (Conner’s) days with the
Company were numbered.23
As I have noted earlier, Meekin did not testify at the hearing. I further note on this point
that Conner testified that he knew of Meekin’s whereabouts but did not say where.
I found Conner to be a highly credible witness. He answered all questions posed to him
with equanimity and confidence. He was very candid and even admitted that he would at some
point have liked to return to work for the Company which suggests that he bore no ill will to it in
spite of his evident dissatisfaction with working conditions there. Then, too, his testimony is
unrebutted. Accordingly, I would credit his testimony regarding his conversations with Meekin,
whom I have previously determined is a statutory agent. The legal effect of Meekin’s
statements will be discussed later herein.
1(d) The Respondent’s alleged posting, promulgation, maintenance, and selective and
disparate enforcement of a no-solicitation rule on about February 27, 2006
Bergeron, who was called by the General Counsel, admitted that on about February 27,
he posted two policy announcements—one at the Circle City transfer station and another at the
Terre Haute Landfill—advising his employees as follows: NO SOLICITATION ON WORK
TIME,24 and NO SOLICITATION OR DIST[R]IBUTION [sic] OF MATERIALS ON REPUBLIC
SERVICES PROPERTY AT ANY TIME.25
Bergeron stated further that a no-solicitation/ no-distribution policy sign was or had been
posted at all Republic locations right outside the gate; however, the no-solicitation sign he put
up had not been posted in this form prior to February 27. Bergeron admitted that he posted the
no-solicitation/no distribution sign on his own volition.26 Bergeron noted that the no-

23 On cross-examination, Conner admitted that he had quit working with the Respondent
without giving notice to Bergeron, although he told Meekin that he was going to quit. Conner
said that he left in this fashion because he was tired of not just “everything going on in regard to
the union battle, just everything in general.” Conner admitted that on one occasion after leaving
the Respondent, he called Jason Rankin to inquire about getting his job back. Conner also
admitted that on the day he testified at the hearing, he told Bergeron that he guessed that
Bergeron could not convince Mr. Drenth to let him come back.
24 See G.C. Exh. 6, a copy of the posting.
25 See G.C. Exh. 5, a copy of the posting. Bergeron testified that he copied this word for
word from Republic signs but misspelled distribution leaving out the “r.” Bergeron admitted that
he posted this sign for the first time on February 27.
26 Bergeron conceded that the Company’s employee handbook did not contain any
prohibitions or restrictions on employee solicitation or distribution. (Tr. 50.)
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solicitation/no-distribution sign reflected a standing rule of Republic Services, and one could
observe similar notices posted on buildings as well as the fences surrounding their property.
Bergeron admitted that there were no other rules of Drenth in effect that in any way restricted
employee solicitations or distribution of materials at facilities operated by the Respondent.
Oberholtzer testified that on about February 27, he was standing inside the mechanics
bay at CCR around 5 p.m. and casually asked one of the mechanics, Mark (last name
unknown), a new hire, how he was getting along, how the repairs to his (Oberholtzer’s) truck
were proceeding, and whether he was getting used to the shop. Oberholtzer said that he then
mentioned that things around the shop would return to normal after the unionization effort (stuff)
was over. According to Oberholtzer, the mechanic, Mark, said that he did not care for unions
because based on his experience he thought unions were a hassle. Oberholtzer stated that the
other mechanic nearby—an older man named Cecil—was a little more pointed and gruff and
expressed his displeasure with unions. According to Oberholtzer, both employees had asked
him about unions and sought his opinion previously about unions in general.
In this February 27 conversation, Oberholtzer said that he told the two that if a company
treats its employees properly there is no need for unions, but that if a company takes advantage
of the employees then a union is the employees’ only resource. Oberholtzer stated that he did
not offer an authorization card to the mechanics nor in any other way query them about their
willingness to sign a card. On this point, Oberholtzer noted that there had been a Board hearing
several days before this conversation regarding the composition of the bargaining unit and the
mechanics were not to be included. Oberholtzer also noted that prior to this February
conversation, he had on a daily basis engaged in casual nonwork-related conversations with the
mechanics, usually at the end of the day when he was turning in his paperwork for the loads he
had hauled that day.
Oberholtzer conceded that the mechanics usually were on worktime during these
conversations but the conversations were brief. He also noted that to his knowledge there was
no prohibition against employees speaking to one another while on the clock.
Oberholtzer testified that on the next day (February 28), he was in Bergeron’s office,
around 8:30 a.m. and Bergeron told him that he was talking about union stuff with the
mechanics, that this was forbidden. Oberholtzer stated that he responded to Bergeron with an
“okay.” Bergeron then said that this was a verbal warning for engaging in (impermissible)
solicitation. Oberholtzer stated that he accepted the warning and left the area.27
Oberholtzer identified copies of the no-solicitation on worktime notice and the no-
solicitation/no-distribution notice at the hearing and stated that he saw them posted on the
bulletin board on the same day he received his verbal warning. Oberholtzer recalled that he
saw them for the first time around 5:30 to 6:30 p.m. when he returned from making his runs on
the 28th. According to Oberholtzer, he was not aware of any solicitation or distribution policy in
effect at the Company prior to seeing the notices posted. In fact, Oberholtzer recalled that
around August or September 2005, he solicited Bergeron to buy a coupon booklet offered as

27 Bergeron testified that a mechanic had approached him complaining about being
bothered with all of this union b---s---. Bergeron admitted that on the same day, or perhaps the
next day, he told Oberholtzer that he could not solicit on company property during working hours
and while the mechanics were on duty.
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part of a fundraiser for his son’s football team; Bergeron bought a book from him on company
property (in Bergeron’s office).28
Oberholtzer also recalled that some time in mid-2005, an employee kept a motorcycle he
was selling in the mechanics’ area for 3 months until it was sold. Oberholtzer said that the
motorcycle was observable from Bergeron's office, and there was no attempt to conceal the
bike’s being for sale.
Andrew Keck,29 currently employed by the Respondent, testified that in January and
February 2006, employees were not allowed to talk about the Union on company property or on
company time. He noted, however, there were no prohibitions or restrictions on talking about
other matters, including personal, family, or joking with other employees; employees could talk
to each other in passing.
Keck stated that there was a sign posted at Circle City to inform what he viewed as the
rule against not talking about the Union. Keck said that it was his view that this meant no talking
about the Union whatsoever, but that employees were allowed to engage in casual conversation
about other matters.
Keck noted that he had conversations with the mechanics but these were limited to
casual greetings, as it was understood by the drivers not to interrupt them in their work. Keck
said drivers understood that they were to keep their conversations with the mechanics “short”;
but the conversations were both work-related and personal in nature.
Stacey Thomas30 also testified that during the time he was employed by the Respondent
there never was any rule or prohibition against employees speaking to each other, and they
were free to converse with the mechanics (or other employees) at any time during the day.
Thomas conceded that he only saw solicitation and sale of products—candy bars and cookies—
by persons (family members) associated with Republic Services, but not at Drenth.
Jason Rankin31 testified that there was no prohibition against employees engaging in
casual in-passing conversations among themselves, and that he spoke daily with the mechanics
covering topics concerning the trucks and their problems but also nonwork-related matters.
According to Rankin, these conversations usually occurred as he was parking his truck to go
home for the day while the mechanics were still working. Rankin said that he had never been
told by management that such conversations were prohibited during worktime

28 Bergeron admitted that Oberholtzer asked him to buy some discount coupons one of his
children was selling and he did later buy a booklet for $25. Bergeron believed that Oberholtzer
either called him from his home but perhaps while at work, but stated that he told Oberholtzer to
bring the coupons to work.
29 It may be recalled Keck was one of the three drivers who contacted the Union in January
2006. Keck testified that he has been employed as a driver by the Respondent since August 4,
2003. Keck stated that he was “just a little bit” concerned about testifying at the hearing
because of job issues that may arise, and was not looking forward (to testifying) because he is
still working there. (Tr. 264.)
30 Thomas, another of the drivers who was one of the original union supporters, no longer
works for the Respondent. Thomas worked for the Company from March 6, 2005, until June 7,
2006, when he voluntarily quit; Thomas said he gave 2 weeks’ notice and left on good terms.
31 Rankin is currently employed by the Respondent as a driver. Rankin was one of the
original union supporters, as noted earlier.
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Rankin noted that these casual conversations never included his or the mechanics’
soliciting for items such as Girl Scout cookies or Tupperware; basically, Rankin said that the
conversations were of the “chit chat” variety.
Rankin also noted that he had seen—he was not specific as to when—signs on a
Republic property that prohibited solicitation on its property and the signs were clearly posted
and their meaning clear to him.
1(e) Bergeron’s alleged promise of unspecified benefits to employees in
April 2006 to discourage support for the Union
The General Counsel called current employee David Wilbur, who testified that he was
hired on September 1, 2003, as a driver and generally hauled refuse from Circle City to the
Sycamore Ridge Landfill in Terre Haute; his direct supervisor was and is Bergeron, who offices
at Circle City.
Wilbur stated that he was familiar with the Union and its organizing efforts in late
January 2006 and, in fact, attended one union meeting; Wilbur said he did not become further
involved in the campaign.
Wilbur recalled that he spoke to Bergeron about the ongoing union campaign on about
six occasions, on dates he could not specifically recall in April 2006. According to Wilbur, these
various conversations took place in Bergeron’s office, and by telephone. Wilbur initially could
not recall any particular conversation with Bergeron about what would happen after the union
campaign ended. However (with some prompting by the General Counsel), he did recall a
conversation with Bergeron that included perhaps a couple of other drivers present.
According to Wilbur, he, Bergeron, and the other drivers were in Bergeron’s outer office
in the late afternoon and Bergeron said that he would be glad when things got back to normal.
Wilbur said that Bergeron was talking about the union organizing effort. Wilbur said that he
responded, saying that normal is what got us in this position in the first place. According to
Wilbur, Bergeron agreed and said he was going to make it better than normal. Wilbur said he
told Bergeron that he would not be holding his breath.
I note that although Bergeron testified after Wilbur, he did not address this meeting or
the alleged conversation(s) with Wilbur. Wilbur impressed me as a credible witness, although
he admitted his memory for dates was not good. However, the Respondent’s counsel did not
cross-examine Wilbur on this aspect of his testimony, leaving his testimony on the matter
essentially unrebutted. I would find and conclude that Wilbur’s testimony regarding the alleged
conversation with Bergeron occurred, and I would accept his version of the encounter as
established fact.
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1(f) Clements Clark’s alleged request that employees give copies of their Board
affidavits to the Respondent in August and September 2006 during
the investigation of the charges in question32
Keck testified that around 3 to 4 weeks before the hearing at the CCR shop in the parts
room, Clark—whom Keck identified in the hearing room and described as the “advisor”—said
that if he (Keck) had a copy of his affidavit would he provide it to the Company. According to
Keck, Clark, however, said that he was not required to do so. On this occasion, Keck stated
that Clark did not inform him that he would not suffer any reprisals on the job if he decided not to
provide a copy of his affidavit. Keck acknowledged that he had given an affidavit to the Board
agent and actually asked for and received a copy of it about a week before he testified.
Keck also recalled that about 4 weeks before the parts room conversation at a meeting
convened by the Company and over which Clark and Bergeron presided, Clark said to the
assembled employees that if we (the employees) were willing, we could provide a copy of their
affidavit, but we did not have to do so.
Keck said that in the meeting Clark was clearly referring to Board affidavits but Clark
never directly asked him for a copy of his affidavit. Keck testified that Clark said that he could if
he wanted.33
Jason Rankin testified that he gave two affidavits to the Board agent investigating the
charges in this case. Rankin said that he could not be precise about the date but recalled in
about mid-September 2006—about 2 days before the election and ballots were mailed out—that
he attended a meeting of the drivers; Bergeron and “Clem”34 made a presentation to the
employees on behalf of the Company.
Rankin said that Clark mentioned the Board affidavits in this meeting. According to
Rankin, Clark said that the Company was going to court; some employees were going to be
subpoenaed and that some employees had already provided affidavits to the Board; and that
some employees had already given their affidavits to the Company and that was “okay” (to
do).35 Rankin stated that he later voluntarily provided Bergeron with a copy of his affidavit.
As noted earlier herein, Clark did not testify at the hearing, and Bergeron did not address
this matter in his testimony. I have credited the testimony of Keck and Rankin in terms of the

32 These allegations are contained in paragraph 5(i) and 5(j) of the complaint as amended at
the hearing. See G.C. 1(xx).
33 Keck’s testimony on this topic came in seemingly out of chronological order. It seems the
parts room conversation happened in perhaps September 2006 and the employee meeting
request took place in August 2006. I would note that he appeared nervous or ill at ease in
testifying about this and other topics concerning the charges. On cross-examination, Keck
admitted that during the campaign he asked Bergeron if he should worry about his (Keck’s) job.
Keck said that Bergeron told him not to worry. (Tr. 306.)
34 Rankin identified Clark in open court while testifying about this matter. (Tr. 351.)
35 Rankin stated that he provided affidavits to the Board, the first one at the Board’s
Regional Office and another at CCR. The Board agent gave him a copy of his affidavit on the
first occasion, but not on the second. Rankin said he asked Bergeron how to get a copy and
Bergeron suggested that he contact Pat McGruder, the Board agent. McGruder told Rankin that
his affidavit was confidential, but that he could disclose it or it may be disclosed at a Board
hearing.
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statements made by Clark requesting employees to provide the Company with copies of their
affidavits given to the Board’s investigator.
2. Paragraphs 6(a)–(e), (g), and (j) of the complaint essentially allege that the
Respondent violated Section 8(a)(3) of the Act by engaging in certain conduct purporting to be
unlawfully discriminatory in regard to the drivers’ hire, tenure, and terms and conditions of their
employment. Paragraphs 6(c), (g), (h), and (i) allege essentially that the Respondent also
violated Section 8(a)(1) of the Act by engaging in certain conduct to discourage employees from
engaging in concerted activities protected by the Act. The allegations will generally be
discussed in the order in which they appear in the complaint.
2(a) The Respondent’s alleged withdrawal of benefits on or about January 27, 2006; the
Respondent’s refusal to allow certain employees to park at the Terre Haute Landfill facility
Dennis Connor, Jason Rankin, and Stacey Thomas were called by the General Counsel
to establish this charge.
Conner testified that he was familiar with the Union and early on became involved in the
organizing drive. Conner stated that he spoke to other drivers to solicit their interest in the
Union and distributed and collected union authorization cards. Conner said that he signed one
such card on January 20, 2006,36 Conner said that he proceeded very carefully, as he put it, in
approaching the employees at Vincennes out of which he hauled refuse, as well as at the
Sycamore Ridge Landfill.37 Conner said he communicated with the drivers via his personal
Nextel (walkie-talkie) and the drivers’ personal and company-issued Nextel phones.38
Conner stated that on January 27, he was called on the Nextel by Jason Rankin who
asked him whether he had been called by management and told to park his tractor at a location
other than the Terre Haute Landfill. Conner responded that he had not been so told at the time
of this call. However, later that afternoon, he was notified by management—Brandon Meekin—
to park his tractor at Vincennes.39
By way of background, Conner explained that when he first started working for Drenth,
he was living near the Vincennes transfer station, so he parked his personal vehicle there. In
October 2004, he was considering purchasing a home near the Terre Haute Landfill. So
Conner said that he spoke to then-supervisor Duane Potter about parking his tractor at the
Terre Haute Landfill because he was considering the home purchase near the facility.
According to Conner, Potter approved his request, so he purchased the home and was allowed
from October 2004 to park his tractor at Terre Haute.
Conner noted that the Terre Haute (Sycamore Ridge) Landfill was about 40 miles each
way from his residence; Vincennes was 90 miles each way from his residence.

36 See G.C. Exh. 45, his application for membership in the Union dated January 20, 2006.
37 Conner said that he did not want his management or that of Sycamore to know about the
drivers’ involvement with the Union.
38 Conner stated that prior to the union drive, he communicated with his fellow drivers via
the Nextels as there was no policy against such use.
39 Conner said that Meekin actually called him on January 30, 2006, and said that Bergeron
had ordered the change. Conner also noted that prior to January 27—he was not sure of the
date—Rankin told him that David Oberholtzer had been ordered to turn in his company-issued
Nextel by management.
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Conner testified that he was aware of some vandalism at the Terre Haute parking area
but he had suffered no personal losses. The vandalism had occurred about 3 weeks prior to
January 30 and consisted of vehicles being broken into and some drivers having their citizen
band radios and other personal items taken.
Conner said that Bergeron called him on the Nextel and told him that he had good news
for Conner; he had had a change of heart and that Conner could that very day resume parking
his tractor at Terre Haute. Conner stated that he expressed his appreciation to Bergeron but
also told him that he might have had to quit if the parking situation had continued. Conner
stated that Bergeron allowed him to resume parking at Terre Haute around March 29, 2006.
Conner was asked by the General Counsel about changes in security at Terre Haute
and stated that he saw none. Conner noted that a tractor was stolen from the Vincennes facility
but no one to his knowledge was reassigned because of this incident.
Jason Rankin testified that he was actively involved in the union campaign and on
January 20, 2006, signed a union authorization card.40 Rankin said that he also assisted the
union effort by handing out authorization cards, speaking with his fellow drivers about the
campaign and attending not only the start up meeting but a rally. Rankin said that he spoke of
the Union to drivers at the Terre Haute Landfill occasionally and daily spoke with them over his
personal Nextel radio during the middle to end of January 2006.41 Rankin said that he spoke to
David Oberholtzer over the Nextel line.
Rankin could not recall the specific date that Oberholtzer informed him that Bergeron
made him turn in his Nextel, but Rankin believed he turned it his phone on the same day
Oberholtzer told him his phone was taken. Rankin believed that he spoke to Oberholtzer within
24 hours of the turn-in order.42 Rankin said this information was also being spread among the
drivers’ “grapevine” with one telling the other about Oberholtzer’s having to turn in his phone.
Turning to the parking issue, Rankin stated what when he started with Drenth, he was
allowed to park his personal vehicle at the Victory Landfill in Terre Haute and from there pick up
his assigned truck; the Victory Landfill was only about one-half mile from the Sycamore Ridge
Landfill.
On January 27, Rankin said that Bergeron, calling him on the Nextel around 4:30 p.m.,
told him that for security reasons, he was to park his vehicle at CCR in Indianapolis. The
following Monday (January 30), Rankin said that Meekin called him on the Nextel to tell him that
he was to park at the Bloomington facility and pick up his truck there; that he should arrange
with another driver for a ride back to Terre Haute. Rankin said that Meekin told him that he was
to start his runs and finish them at the Bloomington facility each day.

40 See G.C. Exh. 40.
41 Rankin stated he was aware that he was communicating with drivers on Nextels issued by
the Company.
42 Oberholtzer testified that Bergeron took his Nextel on January 28 or perhaps the 29th.
Oberholtzer said he asked Bergeron to allow him to remove his personal numbers from the
phone’s memory. According to Oberholtzer, Bergeron reluctantly allowed him to remove the
numbers but admonished him not to delete anything else. Oberholtzer said the Nextel phone
has memory features for stored phone numbers and recent calls. Oberholtzer said the last five
to six persons he called were Conner, Thomas, Rankin, Keck, and David Wilbur.
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Rankin said that he was able to get a ride back to Terre Haute that evening through
means of another employee driving a company truck which was parked customarily at the
Victory Landfill. Rankin noted that the Victory Landfill was 13 miles from his residence; the
Bloomington transfer station is 62 miles one way from his residence.
Rankin said that some time around March 2006, Bergeron informed him via Nextel that
he would be allowed to pick up the company truck at the Victory Landfill as before and park his
personal vehicle there. On that day, Bergeron said that he should coordinate with another
driver to park the company truck in Terre Haute and then coordinate with another driver to get to
his duty station at Bloomington and to his residence. Then he should from that day forward start
and finish at Terre Haute daily.
Rankin said that the change took place shortly after he and Bergeron had a one-on-one
conversation in his truck. Rankin said that some time in February/March 2006, Bergeron rode
along with him on one of his runs. According to Rankin, the conversation consisted of small
talk, politics, religion, their former employment, and family matters.
Thomas, one of the original union supporters as noted, said that he attended union
meetings and handed out authorization cards to fellow drivers. Thomas noted that his first
meeting with Jeff Combs and Mike Henderson of the Union took place around January 12 or 13
at the Terre Haute union hall. By January 10, Thomas stated he had already signed a union
authorization card43 and his main activities on behalf of the Union included attending meetings,
getting cards signed, and speaking to fellow employees, usually at the Terre Haute (Sycamore
Ridge Landfill) where he had the best opportunities to see the drivers, but also to a limited
extent at other transfer stations and truck stops.
Thomas said he used his personal Nextel phone during worktime for company business
but also engaged in “random” conversations with the drivers, some of whom he knew were
issued company Nextels. Thomas said he was never told by management not to contact other
employees who were issued company phones; so he spoke to them over these phones every
day.
Thomas said that he was told by another driver (Dustin Brentin) that Bergeron had taken
Oberholtzer’s phone. According to Thomas, Brentin said he had spoken to Bergeron at CCR
and Bergeron had said that this is the way you find out who started the union organizing effort,
mainly by scrolling drown the recent calls list on the phone. According to Thomas, Brentin said
Bergeron had discovered Thomas’, Rankin’s, and Andy Keck’s names on Oberholtzer's recent
call listing.44

43 See G.C. 44.
44 Brentin did not testify at the hearing. I have not considered Brentin’s alleged statement
necessarily for the truth of the matters asserted. On the other hand, I have received and
considered these admittedly hearsay statements on the issues of knowledge, motive, and
opportunity as these may pertain in this case. I note also that Conner testified that on the
occasion of an earlier organizational effort by the Union, the Respondent impounded company-
issued phones. Thus, Brentin’s alleged statements also suggest a modus operandi of the
Respondent to thwart unionism and in that regard have some probative value in the context of
this administrative hearing.
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Thomas said that he also heard that Oberholtzer’s phone had been taken from him by
management from other drivers. Thomas noted that he had spoken to Oberholtzer over the
Nextel phone the day before finding out that Oberholtzer’s phone had been turned in.
Turning to the parking issue, Thomas stated that when he started with Drenth, he parked
his personal vehicle at the Terre Haute Landfill and picked up his truck to start his workday.
On January 27, 2006, Thomas said that Bergeron called him and told him of the change
in his parking situation. According to Thomas, Bergeron said that there had been some thefts
from the company trucks in late November or early December (2005) and that he (Thomas)
should park the company trucks at the Indianapolis facility (CCR) beginning January 30.
Thomas related that the Terre Haute Landfill was about 45 minutes from his residence;
but CCR was about 1 hour and 45 minutes to 2 hours from his residence. Thomas said that
prior to the change, he would leave home at 3 a.m. and arrive at the landfill by 4 a.m. to begin
his four to five loads per day. Thomas said that he would end the day at 4–5 p.m.
After the change, Thomas said that he had to leave his home around 12:15 a.m. to drive
to CCR in Indianapolis and arrive there by 3 a.m.; then he had to pick up the company truck at
the landfill at around 4–4:30 a.m. to begin hauling refuse; then at the end of the day he had to
return the truck to CCR around 4:30–5 p.m. and then commute home at which he arrived
around 7–8 p.m.
Thomas said that this was very stressful on him and his family and his pocketbook over
the 3 months he had to endure this schedule. Thomas said were it not for Oberholtzer’s
allowing him to stay at his residence occasionally, he would have quit before he did in June.
However, in April 2006, Thomas said that Bergeron again allowed him to park at the
Terre Haute Landfill. He explained how this change came about.
Thomas testified that he knew in April 2006—he could not be exact about the date—
Bergeron had taken a ride with Jason Rankin. Thomas said that he told Rankin to inform
Bergeron that he was welcome to ride along with him (Thomas) if he so desired; the day after
Rankin’s ride-along, Bergeron accepted a ride with Thomas.
Thomas said on that day he picked up Bergeron at the Bloomington transfer station and
began a conversation with him. Thomas said that he wanted to have an honest conversation
and Bergeron responded, saying that he could speak to some but not all issues.
Thomas said he told Bergeron about several issues of concern to him, including the
unfair treatment of the African-American drivers;45 truck maintenance in general, even though
the Company had recently hired some mechanics; and perceived favoritism among the drivers
by management in terms of assignments.
On the way back to Terre Haute, Thomas said that he asked Bergeron if he had thought
that he (Thomas) and Rankin would have held out as long as they had under the changed
parking situation—forced to drive to Bloomington and Indianapolis every day. According to
Thomas, Bergeron said he thought the two had a lot of character.

45 Thomas said that he told Bergeron that he was driving a newer truck although he had less
seniority than the black drivers.
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Thomas said that he then broached the following offer to Bergeron: if he was allowed to
resume parking at Terre Haute as before, Thomas would note “No” on the ballot and in front of
him if Bergeron required this.46
According to Thomas, Joe then called “Clem” (Clark)47 and discussed for a few minutes
his (Thomas’) and Rankin’s being allowed to park again at the Terre Haute Landfill. After this
conversation, Thomas said that Bergeron then called Rankin and, according to Thomas, told
him that he (Thomas) was a better salesman and that both drivers would be allowed to park in
Terre Haute. Thomas said that when he and Bergeron returned to the landfill, he waited for
Rankin to arrive and then drove back to Bloomington with him.
Thomas related that the idea to approach Bergeron about being returned to Terre Haute
in exchange for his “No” vote emanated from a conversation with another driver at a truck stop
who suggested the gambit to him. Thomas said that he, Rankin, Conner, and Keck all believed
they were going to be terminated because the Company thought that they were the ringleaders
of the organizing effort. According to Thomas, this unnamed driver suggested that the offer to
vote “No” may be a way to save their jobs.
Thomas stated that either at the end of the day or the day after the ride-along. Bergeron
called him on his cell phone to tell him that he was allowed to park at the Terre Haute Landfill.
Thomas admitted that at one point he tried to withdraw the unfair labor practice charges
that related to him and contacted the Board agent about doing so. Thomas said that the Board
agent said that this could not be done as the Union had filed the charges. Thomas said that he
later spoke to Union Organizer Jeff Combs who asked him about his change of heart and
whether he had ridden with Bergeron. Thomas said he told Combs that he had but did not tell
him about the vote offer.48
Thomas stated that when he resumed parking at Terre Haute, he noticed that the
lighting for the parking area had been changed—there was an increase. However, there was
little else noticeably changed. Thomas volunteered that the gate to the parking area was never
a security issue as it was always locked; the side fence area was not closed, it was always
open. The north side gate had been closed and locked by Republic to keep other trash haulers
from using it as an entrance and exit area. Actually, according to Thomas, Republic not only
locked this gate but also placed a large rock or boulder in front of it to keep trucks from using it.
Thomas said that on balance, in his view, the Company had merely installed some additional
lights in the Terre Haute parking area.

46 Thomas recalled that the ballot was to be mailed in for purposes of voting in the election.
47 Thomas testified that he did not know “Clem’s” last name, but he and the other drivers
thought that he was a company-hired attorney or consultant.
48 Thomas admitted that the affidavit he provided to the Board agent also did not include the
ride-along incident. Thomas said that at the time he was still employed at the Company and he
omitted telling Combs or the other agent about this incident out of fear of being forced back to
parking at Indianapolis or being terminated outright. Thomas said that he felt that the basic
result he desired—being allowed to park at Terre Haute—was realized, so there was no need to
continue with the charges.
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Thomas admitted that the Terre Haute parking area had been the scene of some theft
and vandalism; that some CBs and tools of four or five drivers were taken and some of the
trucks were tampered with but nothing taken from them.
2(b) The Respondent’s transfer of Keck and the revocation of his use of a company truck
Keck recalled that on about January 27, 2006, Oberholtzer called him and told him that
he had been instructed to turn in the Nextel phone. Keck said that he had spoken to
Oberholtzer within 24 hours of receiving this information.
Keck related that he had been issued a Nextel phone which is basically a walkie-talkie
communications system. According to Keck, these phones did not have all the features of a
regular telephone but did have caller identification and a recent call log for incoming and
outgoing calls. Keck stated that management had never given him any instructions concerning
restrictions on his issue of the company phone. Accordingly, he made some personal calls but
these were mainly driver-to-driver calls, which he admitted were not always work-related. In
fact, Keck stated that prior to January 2006, he daily engaged in casual, nonwork-related as well
as work-related conversations with other drivers on the Nextel. As he put it, “you name it, we
talked about it.”
Keck said that on about January 31, 2006, management posted a notice to turn in the
Nextels. According to Keck, Bergeron, who had assigned him the phone in the first place,
reissued the phone to him in his office around the middle of February but said that the drivers
could only contact him, the mechanics, and the loaders (eventually) but not each other;
Bergeron had had the phones reprogrammed.
Turning to the parking issue, Keck said that when he started working for Drenth in 2003,
he was allowed to park his personal vehicle at CCR where he picked up his assigned truck to
make his runs.
Sometime in January 2005, Keck said he requested of then supervisor, Duane Potter, a
transfer to the Anderson transfer station. Then around February 2005, Bergeron was hired and
Keck said he asked Bergeron to be transferred to Indianapolis; Bergeron put in his request to
upper management. Keck said that in September 2005, Bergeron asked him if he would like to
transfer to Anderson. Keck said that he agreed to make the transfer and Bergeron allowed him
to take the company truck home each day.
Keck stated that on about January 27, 2006, Bergeron informed him that he would have
to transfer back to CCR (in Indianapolis). Keck said that he told Bergeron that he could not do
that because he did not have transportation, his wife worked, and they only had one vehicle.
According to Keck, Bergeron said that this was his personal problem and that, furthermore, he
was to leave the tractor he was permitted to take home at the Anderson facility where he was
currently assigned. Keck said that he reported to CCR the following Monday, January 30. Keck
stated that he was never given permission to take a company truck home from CCR.49
Keck stated that prior to January 27, 2006, he had never experienced changes in his
duty station or assignments unless he made a formal request. So any transfers he had

49 Keck acknowledged that he never asked Bergeron for permission to take a company truck
home from CCR.
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experienced were made either at his request or occasionally because Bergeron had asked him
and he agreed; no transfers had been forced upon him as was the case in January 2006.
Keck noted that the Anderson transfer station where he was assigned prior to January
2006 was only 20 minutes from his home. The CCR facility is 43 miles one way from his
residence. Keck said that the transfer to CCR also was financially costly for him since he had
only the one personal vehicle that he shared with his wife who had to take him back and forth to
work.50
Keck stated that he became involved in the union organizing drive and signed an
authorization card on January 20, 2006.51 Keck said that he also spoke to his fellow drivers on
behalf of the Union and attended two union meetings. Keck said his conversations with the
drivers took place over the Nextel phones as well as face to face; he spoke to some drivers
daily and some others less frequently.52
2(c) The Respondent’s collecting and reprogramming of Oberholtzer’s
(and other employees’) company-issued phones
Oberholtzer testified that on or about January 28 or perhaps 29 (he was not sure of the
exact date),53 Bergeron collected his company-issued Nextel. Oberholtzer related the
circumstances leading to his phone being taken by Bergeron.
According to Oberholtzer, Bergeron approached him in the CCR parking lot around 5–
5:30 a.m. while he was conducting an inspection of his truck. According to Oberholtzer,
Bergeron asked to see his Nextel. Oberholtzer said he complied and asked Bergeron if he
intended to keep it. According to Oberholtzer, Bergeron said that he did because someone else
needed it. Oberholtzer said that he asked Bergeron to be allowed to remove his wife’s number
from the phone’s memory. Oberholtzer stated that Bergeron then became hesitant and he and
Bergeron had a 3–5 minute conversation about this. Eventually, Bergeron returned the phone
but instructed him not to delete anything else. After deleting his wife’s number, Oberholtzer said
that he turned the phone over to Bergeron.54
Oberholtzer recalled that the last five to six people he had spoken to within the last 24
hours were Conner, Thomas, Rankin, Keck, and David Wilbur; moreover, the Union was
discussed in those conversations. Oberholtzer said he told Wilbur, Conner, Rankin, Keck, and
Thomas about Bergeron’s having confiscated his phone as soon as he could, to warn them in
case they called him and started talking about the Union without knowing who might be on the
other end.

50 Keck said that the extra money and family logistics required by the extra commute led his
wife to quit her job so that he could work.
51 Keck identified his signed card which is contained in G.C. Exh. 39.
52 Keck identified Conner, Rankin, Thomas, Oberholtzer, and David Wilbur as the drivers he
spoke to about the Union; he could not recall the names of other drivers with whom he
discussed the Union.
53 It seems clear, as later events disclose, Oberholtzer met with Bergeron on January 27.
54 Oberholtzer said the Nextel phones had essentially two memory features, one for stored
phone numbers and another for recent calls.
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Oberholtzer stated that around 2–3 days later, a notice was posted by management
instructing drivers to turn in their phones.
However, Oberholtzer said that later, on the same day his phone was taken from him, he
went to Bergeron’s office and discussed this issue among others. Oberholtzer noted that the
day before, he had met with Bergeron and again met with him with a secreted tape recorder and
taped the meeting. Among other things, Oberholtzer said that he asked Bergeron if he had
taken anyone else’s Nextel and questioned whether he (Bergeron) was harassing (not
Oberholtzer’s word) him because of the meeting they had had the day before. Bergeron
responded that he had taken drivers Mark Nuggent’s and Conner’s phones and that he was not
harassing him.55
Oberholtzer said that he was not issued another phone during the time he worked for the
Respondent.56
Oberholtzer admitted that he used the company phone to solicit fellow drivers on behalf
of the Union and did so on company time.
Bergeron testified about the decision to take Oberholtzer’s and other drivers’ phones on
about January 27. Bergeron stated that the decision came about after conversation with Ken
Drenth regarding what the Company viewed as their abuse by the drivers. Bergeron said that
the Nextel bills had been getting out of hand for some time and, moreover, he was having
trouble contacting the drivers. Accordingly, Bergeron said he and Drenth decided to reprogram
the phones so that they could only be used to contact him and the loader/operators.57 Bergeron
noted that some of the drivers were logging an excessive amount of minutes on the phones, as
much as 5000 minutes in any billing period. In his and Drenth’s view, Bergeron said that this
kind of phone usage presented a potential safety issue in terms of the drivers’ requirement to
pay full time and attention to driving the trucks safely.
Bergeron could not recall if Oberholtzer was the first or third driver to be requested to
turn in his phone. However, on January 30, Bergeron said he posted a notice informing the
employees to turn in their company-issued Nextel phones by January 31 or as soon as possible
within the week.
Bergeron said that Oberholtzer was required to turn his phone in for the same reasons
as the other employees—increased usage, associated costs, and the difficulty of reaching them.
Bergeron admitted that he reissued the phones about 2 weeks later, but the phones were
programmed to make calls to him, some of the mechanics, and (possibly) some operators (Tr.
73.). Bergeron admitted that he never reissued a phone to Oberholtzer but would communicate

55 A transcript of the taped meeting in contained in G.C. Exh. 42. Oberholtzer indicates that
the date of this meeting is January 27, the day his phone was taken from him. Bergeron and
Oberholtzer went back and forth about the Union, with Oberholtzer attempting to dissuade
Bergeron from thinking that he was a prime mover in the union effort and that Bergeron was
mistaken in that regard. Bergeron is heard to say, among other things, that he was not after
Oberholtzer. I have substituted the word harassing for the profanity used in this conversation.
56 Oberholtzer said that he did have a personal Nextel but did not have Bergeron’s number.
However, Oberholtzer said that he did not want to use his phone for company business.
57 Bergeron said that he would also call the landfill and ask Bob to look for a driver and have
him call in. Bergeron said that in this fashion, he could reach drivers who did not have phones.
Bergeron said he often contacted drivers through Republic’s employees.
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with him by fax.58 Bergeron denied examining Oberholtzer’s phone to determine whom he had
called. Bergeron stated that he allowed Oberholtzer to delete his wife’s number but there was
no way to determine what was said on a Nextel phone because it is basically a two-way radio
that had no message preservation feature.
Turning to the parking issue, Bergeron stated that as a matter of general practice but not
policy—a distinction he drew—company trucks are assigned to drivers at a facility closest to
their residences; that, in fact, the Company tries to hire drivers who live close to the transfer
station out of which they will be hauling. Bergeron denied that this was a “benefit” but stated
that he will permit a driver to park at a facility if it is closer to his residence.
Bergeron admitted that prior to January 27, 2006 , drivers Conner, Rankin, Thomas,
Jerry Ebersol, Timothy Wilson, Ron Sharpe, Darren Weddell, and Jim Reeves were allowed to
park their company trucks at the shop located at the Old Victory Landfill in Terre Haute, but as a
convenience to them as they lived in that area.
Bergeron also admitted that on January 27, he reassigned Conner to the Vincennes
transfer station effective January 30; that effective January 30, he reassigned Thomas to park at
CCR; and Rankin was reassigned to park at Bloomington. Bergeron stated that he made these
reassignments because of theft and vandalism from and to the company trucks at the Terre
Haute parking area about 2 weeks prior to the reassignment; Bergeron was “95–99” percent
sure that the thefts—three CB radios belonging to the employees—and the vandalism—a
broken truck headlight—did not occur 2 months prior to the reassignments.59
Bergeron conceded that he did not file any police reports or make any insurance claims
for the incidents. Bergeron also admitted that the other drivers who parked at the Victory
Landfill—Ebersol, Wilson, Sharpe, Weddell, and Reeves were not reassigned to other parking
locations but continued to park at the nearby—within one-half mile—Victory Landfill.
Bergeron explained that he selected Rankin, Thomas, and Conner for relocation only
because he had just started the relocation, but planned to relocate all of the drivers until he
could get new security lights installed and a security fence erected. Bergeron insisted there was
no other reason for their reassignment.60
Bergeron went on to explain that the three were not relocated to the transfer stations
from which they normally hauled but there was no space available to accommodate them at
those stations.
Bergeron acknowledged that Keck was assigned to haul from the Anderson transfer
station when his personal vehicle broke down. According to Bergeron, Keck asked him if he

58 Bergeron identified G.C. Exh. 22, faxes he sent for Oberholtzer through the scale
operator, Bob, regarding this assignment for March 28 and 29, 2006. Bergeron noted if a driver
had a Nextel, he would call him and direct him to haul out of a location different from their usual
assignment. Bergeron noted that he reissued phones to some but not all drivers. He decided to
issue phones to his “universal” drivers, those he could send to any place in the system as
opposed to those who were less flexible.
59 Bergeron later testified the theft and vandalism occurred sometime in December (the first
or second week) 2005.
60 Bergeron later testified that Thomas and Rankin had their CB radios stolen and
complained to him about the loss, implying that this was another reason to reassign them.
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could take the company truck home after wok until he could get his personal vehicle repaired;
Bergeron said he approved Keck’s request. Bergeron said that Keck drove the truck home daily
for about 1-1/2 to 3 months (not 6 months) but on January 27, 2006, he told Keck he was to
report to CCR effective January 30 and that he could no longer take the truck home, that Keck’s
wife would have to pick him up.
Bergeron said that ultimately the Company put in new security lights (bright, like a
baseball diamond) and fixed the front gate. However, Bergeron said he discontinued having the
drivers park their trucks elsewhere on advice of his attorney in light of the union petition. Acting
on this advice, Bergeron said that he then started moving drivers back to their original parking
locations.
Bergeron stated that he reassigned Keck to CCR because business had picked up there
and he needed extra help there. Bergeron said that the whole north end of the Company’s
operations was running heavier and he had to reassign drivers. Bergeron noted that this is not
uncommon and, in fact, Keck originally started working at CCR and then transferred to
Anderson; Keck then came back to CCR and then returned to Anderson and, with the latest
move, back to CCR.
Bergeron noted that he did not reassign another driver to take Keck’s loads in Anderson
because there was an employee—Bruce Most—already in place there; so he assigned Most
Keck’s truck. Bergeron said he then assigned Most’s truck to another driver. Bergeron
conceded that he could not do without a driver in Anderson at the time he reassigned Keck.
Bergeron acknowledged that he and Stacey Thomas did ride together on one occasion
and conversed. Bergeron stated that the two talked about their families—Thomas’ wife was
ailing at the time—and just general talk. Bergeron adamantly denied that either he or Thomas
discussed the Union.61
(3) Paragraph 2(6)—Between about February 27 and April 6, 2006, on which date he
was discharged by the Respondent, the complaint alleges that Oberholtzer’s rights under the
Act were violated by the Company in violation of Section 8(a)(3) of the Act
3(a) The February 27, 2006 verbal warning issued to Oberholtzer
It is undisputed that the Respondent (Bergeron) issued Oberholtzer a verbal warning on
February 27, 2006, for solicitation during company work hours and on company time and on
Republic property. Called by the General Counsel, Bergeron testified that at the time, he told
Oberholtzer that he (Bergeron) was aware of his union activity because he wore a union ball
cap and on his hardhat was affixed a union label or insignia.62

61 Bergeron did not address the ride-along with Rankin or Thomas’ testimony that he
(Bergeron) called Rankin while they were riding together and returned him to his former parking
arrangement.
62 Bergeron also identified a copy of a Board subpoena (G.C. Exh. 23) ad testificandum
which issued to Oberholtzer on February 10, 2006, pursuant to a Board proceeding on February
13 in Case 25–RC–10328. Bergeron noted that Oberholtzer presented the subpoena to him in
support of his request to take that day off. Bergeron also stated that he (Bergeron) had also
testified in a Board election proceeding and Oberholtzer was present at the time.
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Bergeron related the circumstances of his issuance of this discipline. According to
Bergeron, a CCR mechanic, Norman Mikes, using trucker language,63 complained about
“people” talking to him about the Union with which he claimed not to be involved and that he did
not want to be bothered. Bergeron said that he spoke to Oberholtzer the next day and asked
him not to bother the mechanics while they were working; told him he could not talk to them
about the Union; and that the mechanics were on Republic property which prohibited soliciting.
Bergeron went on to say that he told Oberholtzer he could not talk to the mechanics about
anything except the (mechanics’ work-related) writeups during company work hours and on
company time. Bergeron admitted that he specifically told Oberholtzer not to talk about the
Union during worktime or company time and also told him that the mechanic who made a
complaint about him (Oberholtzer) was Norman Mikes.64
As noted earlier in this decision, Oberholtzer stated at the end of his shift on the 27th, he
spoke to some of the mechanics while they were working and who, according to Oberholtzer,
expressed their views about unionization. As previously noted, Oberholtzer said he did not
solicit the mechanics regarding the union cause and, in fact, did not think at the time they would
be included in the bargaining unit.
3(b) The March 30, 2006 written warning issued to Oberholtzer
Again, it is undisputed that Bergeron issued a written warning to Oberholtzer on March
30, 2006, for allegedly violating company rules on March 28, 2006. Bergeron identified the
written warning65 he issued to Oberholtzer and explained why it was issued to him.
Bergeron testified that on March 30, he discovered from his normal review of
Oberholtzer’s weigh-out paperwork that he (Oberholtzer) had not complied with the Company’s
policy of transporting loads no less than 76,000 pounds, but not more than 80,000 pounds.
However, Oberholtzer, hauling out of Vincennes, had hauled one underweight load of 73,920
pounds and another of 80,960 pounds.
Bergeron said he decided to discipline Oberholtzer because he not only violated the
76,000–80,000 policy, but had done so without notifying management, especially of the
overweight load. Bergeron stated that at this time, he was or had been personally contacted by
the drivers where an under-over load situation presented itself.66 Bergeron conceded that at the
time, Oberholtzer did not have a company-issued Nextel. Bergeron also admitted that he kept
no records or logs of the drivers who contacted him regarding their load weight; only the scale
tickets exist for purposes of keeping track of the weight of individual loads hauled by the drivers.
Bergeron noted that the overweight load associated with the Oberholtzer discipline came
to his attention by virtue of a ticket for hauling overweight issued by Indiana’s Department of

63 It seems that truckers (at least those employed by the Respondent) use a great deal of
profanity on the job and in casual and even serious communication with one another.
64 Mikes did not testify at the hearing.
65 See G.C. Exh. 24, an employee disciplinary report issued to Oberholtzer for
insubordination and leaving without permission; boxes were checked for those violations in the
Respondent’s disciplinary system. This discipline was considered a second offense, the first
being the February 27 verbal warning.
66 Bergeron said that if a truck was not in compliance with the weight rule, drivers were
required to contact him to get permission to go ahead with the load. Bergeron said that he
could be contacted through the transfer station operator or the Nextel phones.
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Transportation (IDOT), which Oberholtzer submitted with the load-related paperwork. Bergeron
also noted that while the Company’s general policy was to pay the IDOT citations, he did not in
Oberholtzer’s case.
Bergeron conceded that the only other time he had issued a written discipline to a driver
for hauling an overweight load was also on March 30, 2006, when he issued a driver, Eugene
Wilcher, a written warning for leaving the 96th Street transfer station with a load weighing
84,540 pounds on March 29.67
Bergeron also noted that while the 76,000/80,000 weight policy had been in place at the
Company in the past—before his arrival—he reposted the policy around the middle of March
2006 because IDOT had issued a number of citations to drivers for overweight loads during the
preceding 1 to 2 weeks.
Oberholtzer testified that around March 2006, for the first time he saw a posted notice68
on the CCR bulletin board regarding the minimum and maximum weights drivers were to haul to
the landfills and that they must weigh-out at the transfer stations before embarking on their runs.
Oberholtzer said that prior to March 2006, he hauled daily over the 80,000-pound maximum and
the Company had no specific procedure in place in such situations; he never was required to
seek approval from management to run an overweight load and if IDOT issued a citation, the
Company simply paid the ticket.69
Oberholtzer identified his March 30 discipline (G.C. Exh. 24) and related the
circumstances surrounding its issuance. According to Oberholtzer, he was hauling out of
Vincennes and Meekin loaded his trailer on the day in question. Meekin and he thought that the
load might have exceeded the 86,000-pound limit, but the scales at Vincennes and those at
CCR and the transfer stations vary in accuracy from those at the landfills, perhaps a 500-pound
variance. Oberholtzer said that he personally had been relieved of his company phone so he
could not contact Bergeron for guidance. However, according to Oberholtzer, Meekin said the
possible excess weight was no big deal and gave him permission to haul the load. Oberholtzer
said that he was stopped by IDOT and cited for having excessive weight over axle and fined
$150 which he paid to protect his license. Oberholtzer said he turned the ticket in to Bergeron
along with his customary paperwork at the end of the day.

67 See G.C. Exh. 26. Wilcher’s discipline was noted to be a first-time infraction and, like
Oberholtzer’s, had boxes checked for insubordination and failure to follow instructions.
68 See G.C. Exh. 7. Oberholtzer was shown a copy of the notice posted at CCR and
identified it as a copy of the notice he observed at CCR. Bergeron testified that he posted the
notice at all the transfer stations and landfills in mid-March 2006, because IDOT at that time was
actually monitoring the trailers and began issuing a number of citations to the drivers. Bergeron
conceded that before posting the notice, there was no signage alerting the drivers to the policy.
He also acknowledged that the policy was not written in the company handbook.
69 Bergeron identified company weight tickets for March 2006 and conceded that on a
substantial number of occasions, trucks hauling out of the various transfer stations carried loads
in excess of 80,000 pounds (see G.C. Exhs. 8–21). Notably, the Respondent adduced no
evidence that such drivers hauling overweight were disciplined. Bergeron implied that all other
drivers during under and overweight called in and received his permission to proceed with the
load.
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3(c) Bergeron’s suspension of Oberholtzer on April 3, 2006
Bergeron admitted that he issued Oberholtzer a written discipline on April 3 for hauling a
load weighing 75,320 pounds out of Vincennes on March 29 without first obtaining permission,
in violation of the Company’s minimum weight limit of 76,000 pounds. Bergeron stated that he
penalized Oberholtzer with a 3-day suspension covering April 4 though 6 because this was
considered at third offense under the Company’s disciplinary scheme.70 Bergeron agreed that
the incident underlying this discipline preceded the incident for which he disciplined Oberholtzer
on March 30.
Oberholtzer, when shown the suspension discipline by the General Counsel, explained
that this load was also loaded by Meekin but the scales that day were not functioning.
Oberholtzer said that he sought Meekin's’ advice on the situation. According to Oberholtzer,
Meekin told him not to worry about the load; since the scales were down—being repaired at the
time—he should proceed with the load. Oberholtzer stated that he had no phone to call
Bergeron on that day also and relied on Meekin to approve the run below the minimum.
Oberholtzer went on to explain that once a trailer is loaded, there is actually no practical
way to adjust the load, i.e., to lighten it. Oberholtzer noted that he occasionally performed the
job of loader/operator at Vincennes, using the front-end loaders to load the trailers. Oberholtzer
stated that the front-end loader could not be used to take material out of the trailer, at least not
very easily because of the incompatibility of the angles and positions of the trailers and the front
loader. In order to take material out of a trailer, one would need a machine with a claw device to
extract the garbage. According to Oberholtzer, the Company did not have such a machine, and,
in fact, although he had made between 30 and 50 runs out of Vincennes, he had never seen
material removed from a trailer.71
Oberholtzer said that when he was ticketed by IDOT and Bergeron refused to pay it,
telling him his (Oberholtzer’s) excuses regarding adjusting the loads were not acceptable, he
resubmitted the ticket and responded, writing on the back of the ticket, that there is no way to
adjust a load at Vincennes; and if Bergeron was not going to pay tickets, he should provide a
way to adjust loads.72 Oberholtzer said that Bergeron again returned the ticket unpaid; he
ultimately paid the ticket himself.

70 See G.C. Exh. 25, a copy of the April 3 discipline which asserts that Oberholtzer was
insubordinate and failed to follow instructions regarding his failure to meet the minimum
poundage requirement.
71 Oberholtzer described how a trailer was loaded at the transfer station. Essentially, the
truck and trailer are backed into a pit next to but below the loading floor—which serves as an
elevated platform. Then the truck, being below the floor level, is loaded by a front-end loader
which scoops up refuse and drops it into the trailer. Oberholtzer said that he has never seen a
front-end loader used to extract garbage and specifically never had seen Meekin do this.
Notably, Bergeron confirmed the loading technique described by Oberholtzer but was of the
opinion a load could be adjusted (lightened) with the front loader.
72 See G.C. Exh. 43, a copy of the back of the IDOT ticket on which Oberholtzer responded
to Bergeron. Oberholtzer also said that both loads were loaded and approved by Meekin who
did not consult with him about the loads.
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3(d) The Respondent’s discharge of Oberholtzer on April 6, 2006
Bergeron admitted that he discharged Oberholtzer on April 6, 2006, and on April 12 by
letter informed him of the reasons therefor. Bergeron stated that Oberholtzer was discharged
because while on suspension, he entered private (Republic) property, disrupted traffic flow at
the Sycamore Ridge Landfill, and hindered the performance of Drenth drivers. Bergeron stated
in the letter that Oberholtzer’s action caused Republic to file a complaint.73 Bergeron admitted
that he knew that Oberholtzer was handbilling, but that he was on Republic’s property and
obstructing the flow of business. (Tr. 103.) Bergeron noted that his decision to discharge
Oberholtzer was not based on any particular company policy but because he received a call on
April 6 from Republic’s general manager at Sycamore Ridge, Mike Calleja.
Bergeron testified about his decision to terminate Oberholtzer under examination by the
General Counsel and the Respondent’s counsel.
When examined by the General Counsel, Bergeron stated that early on the morning of
April 6 while at his office at CCR, Mike Calleja, Republic’s general manager at the Sycamore
Ridge Landfill, called him complaining about one of Drenth’s employees whom he claimed was
disrupting the traffic flow in and out of the landfill and stating that he was not going to tolerate
this action; Calleja demanded to know what Bergeron was going to do about the matter.
Bergeron said he investigated the incident and determined from the reports of a couple
of drivers that Oberholtzer was standing in front of the scale house (at the landfill) inside the
gate. According to Bergeron, the drivers reported this the first thing the same morning—April
6—that Calleja called.
The General Counsel produced an affidavit Bergeron identified as one he had provided
to the Board agent investigating the charges in question. Bergeron agreed that in the affidavit
he stated that he received Calleja’s call while at the Terre Haute Landfill where Bergeron was
conducting a company-sponsored meeting with the employees in the garage.
Bergeron insisted nonetheless that Calleja called him that morning—“first thing.”
Bergeron noted that he convened two meetings at the Terre Haute Landfill, one on April 4 and
then on April 6. Bergeron said he received the initial call from Calleja at the employee meeting.
According to Bergeron, Calleja called him a second time and said that one of the Republic
supervisors had to remove Oberholtzer from inside Republic’s property. Bergeron believed he
received this second call around 7 a.m. at CCR.
Bergeron conceded that he had no personal knowledge of where Oberholtzer was
actually handbilling at the time he decided to discharge him. Bergeron stated he believed
Oberholtzer was hand billing on private (Republic) property based on Calleja’s complaint and
his decision was based on this complaint.74 Bergeron admitted that he did not personally go out
to the scene of the incident (about one-half mile) away to verify any of the complaints against
Oberholtzer.

73 See G.C. Exh. 27, a copy of Bergeron’s letter to Oberholtzer. Bergeron said that he had
decided to discharge Oberholtzer on midday April 6 after consultation with the Company’s
attorney. Bergeron stated in the letter that he was responding to Oberholtzer’s request for a
reason for his discharge.
74 Bergeron admitted that aside from terminating Oberholtzer, he took no other action
against him, and did not call the police out of any concern for safety on the roadway.
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Upon cross-examination75 by the Respondent’s counsel, Bergeron stated that at the
April 4 employee meeting, he received reports from some of the drivers that Oberholtzer was on
Republic’s property. Bergeron said that he called Calleja on his cell and reached him at his
residence and reported the incident to him. According to Bergeron, Calleja said that he would
take care of the matter.
Bergeron said that Calleja called him later that day and told him that the incident
involved a union official and one of Drenth’s drivers. According to Bergeron, Calleja said that
Republic’s management made the men move twice that morning—from one side of the street,
and then down to the crossroads.
Bergeron said that on April 6, he again received calls from drivers who informed him that
a similar activity was taking place. Bergeron stated that he again called Calleja who promised
to investigate. According to Bergeron, Calleja told him that one of the Republic employees said
that the (union) people were on the inside of Republic’s property by the scale house and one of
the “people” was a Drenth driver. Bergeron said Calleja asked him what he was going to do
about the matter later that day—that the driver was obstructing and trespassing on private
property as well as obstructing the business. Bergeron stated that he told Calleja that he would
get back to him.
Bergeron was again called by the Respondent when the hearing was resumed in April
2007. Bergeron revisited the incident involving Oberholtzer’s handbilling and his decision to
terminate him on April 6. On this occasion, Bergeron stated that he received a call from the
landfill—he could not recall whether the call came from scale operators “Bob” or “Pete”—that
Oberholtzer was obstructing the landfill’s flow of traffic. Bergeron said that he told the pertinent
scale operator that he would immediately investigate the matter. Later, according to Bergeron,
Calleja called him and said that (Republic) could not continue this “shit.” At that point after
investigating the matter, Bergeron said he decided to discharge Oberholtzer for obstructing
traffic at the landfill.
The Respondent called Calleja who testified that he was employed by Republic Services
as general manager of the Sycamore Ridge Landfill; his duties include the safe operation of the
facility and ensuring that the company is in compliance with regulations applicable to a landfill
operation.
Calleja stated that on April 4, he received a call from Bergeron early that morning.
According to Calleja, Bergeron was concerned about some people holding up or stopping trucks
at the landfill. Calleja said that he then called one of his operators at the landfill to verify what
was going on. According to Calleja, he was told by the operator that there were a few people
and a vehicle on Republic’s property—the parking lot adjacent to the front gate—and they were
stopping trucks.
Calleja said he instructed his employee politely and professionally to ask the persons to
conduct their business elsewhere but not on Republic’s property, and to cease holding up the
trucks coming to the facility. Calleja said that he was told at some point that the persons and
the vehicle had departed.

75 The General Counsel had requested to examine Bergeron as a 6(11)(c) hostile witness. I
granted this request.
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Calleja said that he called Bergeron and told him that the trucks subcontracted to
Republic should be hauling waste and not conducting (other) business at its facility.
Calleja related that a couple of days later, he received another call from Bergeron who
advised him that somebody was at Republic’s facility and was stopping and talking to drivers.
Calleja said that once again, he contacted one of his operators at Sycamore Ridge to verify
Bergeron’s claim.76 According to Calleja, the operator said that he had asked the individual(s)
to leave and he/they had complied. Calleja believed that on this second occasion, the
individuals were parked on the west side of the scale house and could have been parked in the
parking lot across the street from the station. Calleja said that he called Bergeron and told him
that the person holding up trucks worked for Drenth and if this were the case, the employee
should be hauling garbage during normal business hours or checked and signed in at the scale
house to obtain permission to be onsite during non-operating hours.
Calleja admitted that the action he took was based on Bergeron’s call to him; he did not
initiate the action. He was merely enforcing Republic’s parking policy. Calleja stated that he
knew some handbilling had occurred on Cottom Road (the public road servicing the landfill) but
not prior to April 4. Calleja testified that he did not know the identities of the persons reportedly
stopping the trucks and relied entirely on the information he received from his employees who
did not state where the individuals were actually engaging in any activity or how long the tucks
were stopped. Calleja said that he did not call the police because the persons involved
complied with his employee’s instructions and left. Since there was no trouble caused by
anyone, Calleja said that he made no record of the incidents.
Calleja said that Republic’s policy required visitors to register and the obvious signage
posted at the landfill so instructed. The persons involved had not registered, so were asked to
leave. Calleja stated that the activity in which the persons were engaging—stopping trucks,
congesting the entrance and exit to the landfill, and trucks even causing backups on Cottom
Road—was another concern for him. He noted that Cottom Road77 is a small two-lane county
road (in the middle of nowhere according to Calleja) that, if the trucks are not kept moving well,
becomes too congested which in his view posed safety issues. Calleja said that once he
determined—he did not actually know—that the offending person was a Drenth driver, he told
Bergeron that he (Bergeron) had to initiate some Drenth policy to deal with the matter.
Oberholtzer stated that he handbilled as part of his participation in the union organizing
effort on only two occasions, and April 6 was the first date as well as the date on which he was
terminated by Bergeron. He explained what transpired on that date.78

76 Calleja said the operator’s name was Herschell Byerly whose nickname is “Pappy” who
did not testify at the hearing.
77 The General Counsel called Jerry Netherlain to testify about the Cottom Road area.
Netherlain is the county engineer for Vigo County through which Cottom Road traverses.
Netherlain manages the County Road system and through his testimony, I would consider him
an expert on the road system of Vigo County.
Netherlain was familiar with Cottom Road and the Sycamore Ridge Landfill. It is clear from
his testimony that Cottom Road is a county road and not the property of Republic Services,
which fact would not allow the Company to control its use.
78 Oberholtzer said that the other date was April 12. He identified a handbill (G.C. Exh.
35(e)) that he distributed on that date.
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Oberholtzer noted that he was not working that day, as he was serving a 3-day
suspension which began on April 4, and decided to assist the Union by distributing union
notices along with two union representatives, Jeff Combs and Rudy Valadez, on Cottom Road
near the Sycamore Ridge Landfill.
On April 6 at about 4 a.m., Oberholtzer said that he and the two union representatives,
Jeff Combs and Rudy Valadez, handed out pamphlets79 to Drenth drivers, either as they were
entering or exiting the landfill. According to Oberholtzer, the three of them at various times
stood on the side of the road—either side—so as to be able to get a Drenth driver’s attention,
and if the driver elected to stop, give him a handbill. Oberholtzer said they gave the drivers
plenty of space to maneuver their vehicles and trucks into or out of the landfill.80 Oberholtzer
said no truck was stopped more than 30 seconds and most for much less time; there were no
traffic backups. Oberholtzer said that the three men never positioned themselves so as to block
the landfill entrance; and he wore a reflective jacket like the one he produced at the hearing so
as to make himself more visible in the darkness of the early morning. Oberholtzer stated that no
one from Republic ever said anything to him about handbilling on April 6, nor did anyone from
Drenth’s management.
Oberholtzer said that, nonetheless, that day, fellow driver Jim Lucas told him that
Bergeron was contemplating firing him for being out at the landfill. Oberholtzer said he placed a
call to Bergeron between 8 and 9 a.m. on April 6 to discuss the issue and asked Bergeron
whether he had wanted to speak to him. According to Oberholtzer, Bergeron said that he had
and went on to tell him that his (Oberholtzer’s) services were no longer needed. Oberholtzer
said he asked for a reason and Bergeron told him to put his request in writing within 7 days;
Bergeron said he would respond to that request. Oberholtzer said that he told Bergeron that
was not necessary, just tell him the reason. Bergeron refused and ended the discussion.
Oberholtzer said that he wrote his request for an explanation on a single piece of paper
on April 7 and received Bergeron’s response on April 12.
Oberholtzer related an incident that occurred on April 12, the other date he handbilled on
Cottom Road with Combs of the Union, again between 4–7 a.m. According to Oberholtzer, after
a couple of hours of passing out pamphlets, a Republic landfill employee informed him and
Combs that they were on company property. Oberholtzer stated that although he had called the
County Commissioner’s office and was told Cottom Road--where they were set up—was a
public road, he and Combs opted not to challenge the employee and moved down to the
crossroads to handbill to avoid a confrontation. Oberholtzer noted that there was no back up of
traffic or other safety-related issue, nor any disruption to the landfill operation at the time he
handbilled.
Oberholtzer admitted that he was aware that Republic had posted a no-trespassing sign
at the landfill parking lot; the sign instructed visitors to check in at the office. However,
according to Oberholtzer, in his view this sign was only posted after he handbilled on April 6; he

79 Oberholtzer identified G.C. Exh. 35(d), a copy of the handbill he distributed on April 6.
Oberholtzer said he recalls this handbill with particularity as it was an invitation to a party he
was having at his residence.
80 Oberholtzer was shown G.C. Exh. 38, a photograph purporting to be illustrative of where
he and the union representatives were standing. Oberholtzer stated that Combs and Valadez
were in the same vicinity as he on Cottom Drive, basically on either side of the road giving the
trucks ample room to turn to go in and out of the landfill.
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noticed it on April 12 as he was handbilling. Oberholtzer conceded that he did not check in with
Republic on either of the two occasions he handbilled.
The General Counsel called Combs and Valadez to testify about the handbilling on
Cottom Road in front of the entrance of the Sycamore Ridge Landfill.
Combs81 testified that pursuant to its efforts to organize the Drenth drivers, the Union
passed out handbills to the drivers bringing their loads to the Sycamore Ridge Landfill on five
occasions—January 31, February 9, March 2, April 6, and April 13, 2006.82 Combs stated that
he chose the landfill site on Cottom Road because he knew that all of the Drenth drivers drop
their loads at that location for at least 2–3 hours during the day; otherwise, the drivers are
scattered throughout the State. Combs said that he was aware that this landfill was owned by
Republic, but that when handbilling he and his supporters always stood on the side of Cottom
Road so that trucks coming or going could stop and receive a handbill, but not block traffic or
cause any disruption to the landfill’s business.83
Combs said that he personally handbilled on four of the five occasions each time on
Cottom Road and Drenth employee Oberholtzer assisted in the efforts on two occasions—April
6 and April 13. On April 6, Combs confirmed that Oberholtzer, Valadez, and he handbilled at
the landfill from about 4 a.m. to 6:30 or 7 a.m.; each man stood on the side of Cottom Road,
going back and forth on each side to give a driver the handbill announcing the meeting
scheduled for Saturday, April 8. According to Combs, each man moved around walking along
the roadway to where a driver had stopped to take a handbill. Combs said they never blocked
traffic in and out of the landfill because they never stood in front of the entrance (marked in the
photos by two huge yellow boulders). Combs said they offered handbills solely to Drenth
drivers, and no employee from Republic or Drenth spoke to him on April 6 regarding when they
had positioned themselves to hand out the notices.
Combs confirmed that he and Oberholtzer also handbilled on April 13 around 4–7 a.m.
at Sycamore Ridge on Cottom Road. Combs recalled that Drenth’s management had convened
a meeting at the Company’s nearby garage facility on April 13 and the drivers were therefore
not turning into the landfill until after the meeting. Combs said that Oberholtzer and he moved
away from the landfill, closer to the garage and handbilled only Drenth drivers.
Combs also related that on April 13,a Republic employee named “Pappy” drove by in his
truck to inform him and Oberholtzer that Republic owned that part of Cottom Road—the entire
roadway or at least a half-mile portion, including the portion on which the telephone poles
stood,84 and that they would have to move to a point about a half-mile away. Combs said that
he told “Pappy” that they were almost finished and would remove themselves down the road.

81 Combs testified that he was employed by the Union as a business representative-
organizer for about 3 years and he was one of the union representatives involved in the
attempted organization of the Drenth drivers starting January 2006.
82 Combs identified G.C. Exh. 35(a)–(e) as copies of the handbills which he said were
always distributed on a Thursday in advance of the announced meeting which was to take place
the following Saturday.
83 Combs identified G.C. Exh. 38, photos taken on his instructions by one of the union
representatives, Mike Gillespie, of the area where he and other supporters positioned
themselves to handbill.
84 Combs identified the photos in G.C. Exh. 38 and referred to telephone poles lining the
roadway near where they were standing to handbill.
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Combs stated that he observed other nontruck traffic using the roadway at the time and
questioned whether Republic actually owned the public roadway but he decided not to call the
police. Combs conceded that at the time he did not actually know where Cottom Road ended
and Republic’s property began.
Combs insisted he and Oberholtzer handbilled on the pubic roadway and never
interfered in any meaningful way with the working drivers. Combs also conceded that it was
dark at 4 a.m. but that the handbillers wore reflective gear. He also admitted that while he
parked on the public side of the road on occasion while handbilling, he also parked his vehicle in
the Republic parking lot and near its maintenance shed and in that sense he was trespassing on
Republic’s property.
Valadez testified that he was employed by the Union as an organizer and believed the
Union, as part of its organizing drive, handbilled Drenth’s drivers at the Sycamore Ridge Landfill
in Terre Haute about six times, usually at around 4 a.m. until 6:30 a.m. because the majority of
the Drenth drivers could be accessed there. Valadez said that he wore reflective gear when
handbilling.
Valadez confirmed that Oberholtzer assisted him on only one occasion, which he
believed was on April 6;85 Jeff Combs was present also on that occasion. Like Combs, Valadez
identified photos of the area where the three handbilled and stated he (and the others) stood on
both sides of the road crossing back and forth, and some time standing in the middle of the road
awaiting the trucks.
Valadez, examining the photos, noted that Oberholtzer and he never approached the
two boulders marking the entrance of the landfill, and in any case they did not block the
entrance. Valadez admitted that the Drenth drivers, who stopped to receive a handbill near the
entrance or exit where he and Oberholtzer stood, did so for about 20–30 seconds, but they had
to slow down to inter or exit the landfill regardless of the handbilling. Valadez said there was not
much chit-chatting when the drivers stopped; they greeted the Drenth drivers, handed them a
notice if they wanted one, and the drivers then moved on.
Valadez stated that no one from Republic or Drenth ever approached him, Oberholtzer,
or Combs about their handbilling prior to or on April 6.
Valadez stated that on September 7 while handbilling with Combs, as they were about to
leave the landfill, a man in a pickup truck said something in the way of complaint to Combs and
they left immediately. Valadez said that he did not hear all of what was said because he
(Valadez) was on the other side of the road when Combs and the other man were talking.
Valadez admitted that he did not know where the edge of Cottom Road ended and
Republic’s property began, but considered the telephone poles to be on an easement. Valadez
also stated that he never saw any no-trespassing signs or any signs directing all visitors to
report to Republic’s office.

85 Valadez believed that on one occasion prior to April 6, he may have handbilled at the
Sycamore Ridge Landfill on Cottom Road. He stated that since April 13, 2006, he has
handbilled there two additional times.
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C. The Applicable Law Regarding the 8(a)(1) and 8(a)(3) Allegations
Employer interference, restraint, or coercion of employees who exercise their statutory
right to form, join, or assist labor organizations are unlawful under Section 8(a)(1) of the Act.86
The test under Section 8(a)(1) does not turn on the employer’s motive or whether the coercion
succeeded or failed. The test is whether the employer engaged in conduct which it may be
reasonably said tends to interfere with the free exercise of employee rights under the Act.
Gissel Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991); American
Freightways Co., 124 NLRB 146, 147 (1999). Thus, it is violative of the Act for the employer or
its supervisor to engage in conduct, including speech, which is specifically intended to impede
or discourage union involvement. F. W. Woolworth Co., 310 NLRB 1197 (1993); Williamhouse
of California, Inc., 317 NLRB 699 (1995). The test of whether a statement or conduct would
reasonably tend to coerce is an objective one, requiring an assessment of all the circumstances
in which the statement is made as the conduct occurs. Electrical Workers local 6 (San
Francisco Electrical Contractors), 318 NLRB 109 (1995). Rossmore House, 269 NLRB 1166
(1984), enfd. sub nom. Hotel and Restaurant Employees Local 11 v. NLRB, 706 F.2d 1006 (9th
Cir. 1985). Medcare Associates, 330 NLRB 935. Greenfield Die and Manufacturing Corp., 327
NLRB 237 (1998).
It is well settled that an employer’s interrogation of employees concerning their union
activities may be violative of the Act. Hudson Neckwear, Inc., 302 NLRB 93 (1991). Among the
circumstantial factors examined are the background of the interrogation, the nature of the
information sought, the identity of the questioner, and the place and method of interrogation.
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).87 The Board has also considered
other factors such as whether the questioning was by an immediate supervisor who worked
closely with the employee, whether it was made in a joking tone, and whether the employee as
an open, active union supporter, Raytheon Co., 279 NLRB 245 (1986); Action Auto Stores, Inc.,
298 NLRB 875 (1990); Dealers Mfg. Corp., 320 NLRB 947 (1996).
The Board has found that threats of job loss may violate Section 8(a)(1) because of the
reasonable tendency to coerce employees in the exercise of their Section 7 rights. Clinton
Electronics Corp., 332 NLRB 479 (2000).
In likewise, the Board has found that Section 8(a)(1) may be violated by an employer’s
threats to employees of unspecified reprisals. St. Margaret Mercy Health Care Centers, 350
NLRB No. 20 (2007); California Gas Transport, Inc., 347 NLRB No. 118 (2006). On the other
hand, the Board has found that an employer may violate the Act by promising employees
benefits of a specific or unspecific nature. Mickey’s Linen and Towel Supply, 349 NLRB No. 76
(2007); Christopher Street Corp., 286 NLRB 253 (1987).
Regarding the issue of employee discussions about and solicitations on behalf of unions,
the Board recently held and reaffirmed that:
It is well established that employees are entitled to discuss unions and solicit for
unions on nonworking time, unless the employer can show that it needs to limit the
exercise of that right in order to maintain production or discipline. Republic Aviation

86 Sec. 29 U.S.C. §158(a)(1).
87 The Board, however, does not mechanically apply these factors in each case. Rather, it
views these criteria as useful indicia that may serve as a starting point for assessing the totality
of circumstances. Perdue Farms, Inc. v. NLRB, 144 F.3d 830 (D.C. Cir. 1998).
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Corporation v. NLRB, 324 U.S. 793, 803 (1945), and Peyton Packing Co., 49 NLRB 828,
843–844 (1943), enfd. 142 1009 (5th Cir.), cert. denied 323 U.S. 730 (1944). It is also
well settled that an employer may forbid employees from talking about a union during
periods when the employees are supposed to be actively working, if that prohibition also
extends to other subjects not associated or connected with the employees’ work tasks.
However, an employer violates the Act when employees are forbidden to discuss
unionization, but are free to discuss other subjects unrelated to work . . . . Jensen
Enterprises, 339 NLRB 877, 878 (2003).88
It is well settled in Board law that an employer is free to predict the economic
consequences it foresees from unionization, so long as the prediction is:
carefully phrased on the basis of objective fact to convey [its] control. . . . If there is any
implication that an employer may or may not take action solely on his own initiative for
reasons unrelated to economic necessities and known only to him, the statement is no
longer a reasonable prediction based on available facts but a threat of retaliation . . .
without the protection of the First Amendment. NLRB v. Gissel Packing Co., 395 U.S.
575 (1969).
Absent the necessary objective facts employer predicting adverse consequences arising from
unionization are not protected by Section 8(c), rather they constitutes threats that violate
Section 8(a)(1). Homer Bronson Co., 349 NLRB No. 50 (2007).
On this score, while Section 8(a)(1) prohibits certain speech and conduct deemed
coercive, employers are free under Section 8(c) of the Act to express their views, arguments, or
opinions about and regarding unions as long as such expressions are unaccompanied by
threats of reprisals, force, or promise of benefits. NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).89
Section 8(a)(1) of the Act also makes it an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of
the Act, including the right to engage in concerted activities . . . for the purpose of mutual aid or
protection.” 29 U.S.C. §157.

88 Sam’s Club, 349 NLRB No. 94 (2007). In Sam’s Club, the Board also in fn. 11 noted as
follows:
Conversely, it is clear that en employer may lawfully prohibit solicitation during working
time. See Our Way, 268 NLRB 394 (1983). Further, retail employers, such as the
Respondent, may lawfully prohibit employees from soliciting on the selling floor – even
during the non-work time of employees – because active solicitation in a sales area may
disrupt a retail store’s business. See, e.g., J.C. Penny Co., 266 NLRB 1223 (1983).
Marshall Field & Co., 98 NLRB 88 (1952), modified on other grounds and enfd. 200 F.2d
375 (7th Cir. 1958). The Board, however, has not allowed these restrictions on solicitation
to be extended beyond that portion of the store that is used for selling purposes. See, e.g.,
McBride’s of Naylor Road, 229 NLRB 795 (1977).
See, also, Verizon Wireless, 349 NLRB No. 62 (March 28, 2007), and Valley Central
Emergency Veterinarian Hospital, 349 NLRB No. 107 (2007).
89 See General Motors Corp., 347 NLRB No. 67 (2006), wherein the Board stated Wright
Line applies to all 8(a)(3) and (1) allegations that turn on employer motivation.
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In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court affirmed
that employees with no bargaining representative or established procedure for presenting their
grievances may nonetheless take collective and concerted action to air their grievances
regarding terms and conditions of employment.
The Board has defined concerted activity. When an employee acts with or on the
authority of other employees, the employee is engaged in concerted activity. Meyers Industry,
268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985) (Meyers II), cert. denied 487 U.S. 1205 (1968).
As noted in the recent case, Ashville School,90 in which the administrative law judge was
upheld, the following summary of the Board’s interpretation of concerted activity (taken from
Diva Ltd., 325 NLRB 822 (1998)) is instructive:
Since Meyers [Meyers Industries (Meyers I], 268 NLRB 493 (1984), and Meyers
Industries (Meyers II), 281 NLRB 882 (1986), the Board has found an individual
employee’s activities to be concerted when they grew out of prior group activity, when
the employee acts formally or informal, on behalf of the group, or when an individual
employee solicits other employees to engage in group action, even where such
solicitations are rejected. However, the Board has long held that for conversations
between employees to be found protected concerted activity, they must look toward
group actions and that mere “griping” is not protected. See Mushroom Transportation
Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), and its progeny. Id. at 830.
As the Board stated in Holling Press, Inc., 343 NLRB 301 (2004):
In order for employee conduct to fall within the ambit of Section 7, it must be both
concerted and engaged in for the purpose of “mutual aid or protection.” These are
related but separate elements that the General Counsel must establish in order to show
a violation of Section 8(a)(1).
Accordingly, employees who simply pursue a personal claim, even with the assistance of other
employees, may not be extended the protection of the Act under Holling Press, Inc., supra. In
short, the employee must be shown to be seeking ac collective goal and may not simply
advance his or her personal claim.
When the alleged 8(a)(1) violation turns, as in the instant case, on the employer’s motive
in taking an adverse action against an employee, the Board requires that the charge be
analyzed under the framework set out in Wright Line, 251 NLRB 1083 (1968), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line analysis is, of course, to
be applied in cases where violations of Section 8(a)(3) are alleged. The discussion to follow
applies to both Section 8(a)(1) and 8(a)(3).
Under Wright Line, the General Counsel must establish (1) that the employees engaged
in protected concerted activity; (2) the employer has knowledge of that activity; (3) animus or
hostility toward this activity was a motivating factor in the employer’s decision to take the
adverse action in question against the employee.

90 347 NLRB No. 84 (2006).
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Once the General Counsel establishes initially that the employee’s protected activity was
a motivating factor in the employer’s decision, the burden of persuasion shifts to the employer to
show that it would have taken the same action even in the absence of the protected activity.
Transportation Management Corp., 262 U.S. 393 (1983).
It is also well settled, however, that when an employer’s stated motives for its actions are
found to be false, the circumstances may warrant an inference that the true motive is one that
the employer desires to conceal. The motive may be inferred from the total circumstances
provided. Moreover, under certain circumstances, the Board will infer animus in the absence of
direct evidence. That finding may be inferred from the record as a whole. Fluor Daniel, Inc.,
304 NLRB 970 (1991).
Inferences of animus and discriminatory motivation may be warranted under all the
circumstances of a case, as noted even without direct evidence. Evidence of suspicious timing,
false reasons given in defense, failure to adequately investigate alleged misconduct,91
departures from past practices, tolerance of behavior for which the alleged discriminatee was
fired, disparate treatment of the discharged employees, and reassignments of union supporter
from former duties isolating the employee, all support inferences of animus and discriminatory
motivation. Adco Electric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993);
Electronic Data Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304
NLRB 750 (1991); Bourne Manor Extended Health Care Facility, 332 NLRB 72 (2000); Visador
Co., 303 NLRB 1039, 1044 (1991); In-Terminal Service Corp., 309 NLRB 23 (1992); Nortech
Waste, 336 NLRB 554 (2001); Bonta Catalog Group, 342 NLRB No. 132 (2004); and L.S.F.
Transportation, Inc., 330 NLRB 1054 (2000).
The employer’s burden under Wright Line requires it “to establish its Wright Line defense
only by a preponderance of evidence.” The respondent’s defense does not fail simply because
not all of the evidence supports it, or even because some evidence tends to negate it. Merillat
Industries, 307 NLRB 1301, 1303 (1992).
To establish an affirmative defense, “[a]n employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the protected activity.” W. F. Bolin Co.,
311 NLRB 1118, 1119 (1993), enfd. 99 F.3d 1139 (6th Cir. 1996).
Notably, the test applies regardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984). The Board
has held that, “[A] finding of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not, in fact, relied upon, thereby leaving intact the
inference of wrongful motive.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). In short, a finding of pretext defeats any attempt by the employer to show
that it would have discharged the discriminatee absent his union activities. Golden State Foods
Corp., 340 NLRB 382 (2003).

91 The Board advises that the investigation should be full and fair. The Board has also
noted, however, that while an employer’s failure to conduct a full and fair investigation into
alleged misconduct of an employee may constitute evidence of discriminatory intent, such
failure will not always constitute evidence of such intent. Hewlett Packard Co., 341 NLRB No.
62 (2004).
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The Board has determined that decisions affecting an employee’s condition of
employment may be based on its exercise of business judgment and that judges should not
substitute their business judgment for that of an employer. Lamar Advertising of Hartsford, 343
NLRB No. 40 (2004); Yellow Ambulance Service, 342 NLRB No. 77 (2004).
Moreover, the Board has emphasized that the crucial factor is not whether the business
reason was good or bad, but whether it was honestly invoked and was in fact the cause of the
action. Framan Mechanical, Inc., 343 NLRB No. 53 (2004).
D. Discussion and Conclusions Regarding the Charges
1. The Respondent’s alleged interrogation of Oberholtzer; the alleged threat of job loss
The General Counsel contends that Oberholtzer’s testimony, corroborated by his
recorded conversation with Bergeron on January 26, clearly establishes that Bergeron
unlawfully interrogated him about his knowledge of the organizing campaign, including the
identities of other employees who may have been involved. She also contends that Bergeron’s
statement to Oberholtzer that the driver employees would lose their jobs—through termination
of the Republic contract—if they unionized, was under the circumstances clearly threatening to
and coercive of the employees’ Section 7 rights.
The Respondent counters, contending that the conversation between Bergeron and
Oberholtzer was merely a casual and non-intimidating conversation stemming from Bergeron’s
recently finding out about union activity at the Company and his curiosity about the matter.
Oberholtzer, the Respondent asserts, immediately cut Bergeron’s queries off, citing their
possible illegality. The Respondent contends he could not have been coerced in the total
context of the meeting because Bergeron immediately ceased his questioning. Regarding the
alleged threat of job loss, the Respondent argues that Bergeron merely cited an economic fact
of life—that Republic was Drenth’s sole customer, and if Republic terminated (pulled) the
contract, everyone would be out of work. The Respondent asserts that Bergeron was free to
express his views about the Union as long as his statements did not contain threats of reprisal
or were otherwise coercive. In short, Bergeron in a casual conversation with Oberholtzer simply
made a prediction based on objective fact, and the possible action of Republic whose business
decisions he could not control.
Oberholtzer’s taped recordings of his encounter provide in cases such as this an
infrequent opportunity for the fact finder to hear firsthand the tone and tenor of the conversation
in which the offending statements were uttered. In short, in an out of court setting, the fact
finder can make something in the way of a demeanor assessment of the participants. Having
listened to the taped conversation, I would note that contrary to the Respondent, they were not
“casual.”92 In my view, Bergeron’s queries and their tone clearly were directed both to gathering
information from Oberholtzer about the union organizing effort and then sending a message to
the employees through him about the consequences of their choosing union representation. It
seems clear that Bergeron in some unknown way had gotten wind of the union effort and also
determined that Oberholtzer had some integral part therein and pulled him aside to gather
information and deliver a dire warning based on nothing that one could describe as carefully

92 I have rejected the Respondent’s assertion that Bergeron’s conversation with Oberholtzer
was noncoercive, being casual and nonthreatening, and therefore fell without the coverage of
Sec. 8(c) as protected speech.
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phrased objective fact. Bergeron simply said in so many words, choose the union, lose your
job.
Bergeron made the statements in the very beginning of the union campaign and in my
view this reflects the Respondent’s attempt to frustrate the employees’ possible choice of the
Union as soon as possible. Employees could reasonably come to this conclusion. Oberholtzer
at the time was clearly thought by Bergeron to be a union supporter, but in point of fact,
Oberholtzer did not begin to get “active” until later because the campaign was only in a nascent
stage on January 26 and 27.
All in all, I would find and conclude that the Respondent in such circumstances, through
Bergeron, unlawfully interrogated Oberholtzer and threatened him and the other drivers with
loss of their jobs if they chose the Union to support them, all in violation of Section 8(a)(1) of the
Act.
2. The Brandon Meekin allegations
As I have previously found, Meekin, as the Respondent’s statutory agent, could and did
bind it to the legal consequences of statements he made to employees, here the sole employee,
Conner, who testified in support of the complaint allegations.
The General Counsel contends that on the same date—January 27—that the Union filed
its recognition petition, Meekin told Conner that he had been contacted by Kenneth Drenth
regarding the Union’s anticipated filing and asked him about the employees’ involvement
(efforts) in the organization. She asserts that Meekin’s follow-up questions to Conner about his
(and other employees’) possible involvement in the union drive constituted an unlawful
interrogation.
The General Counsel also contends that Meekin’s second conversation on about
February 18, wherein Meekin communicated to Conner that he had never seen the Company in
such bad shape since the organizing campaign and that no matter what the outcome of the
Union (campaign) Conner’s days with the Company were numbered, constituted an implied
threat of unspecified reprisal for his involvement with the union effort.
The Respondent placed its defense to the Meekin allegations largely on its position that
Meekin as a loader/operator was not a statutory supervisor and, therefore, any statements he
may have made could not be attributable to and binding on the Company.
I have previously concluded that while acting as a statutory agent, Meekin made the
statements attributed to him by Conner on the dates in question. The question, given the totality
of the circumstances test, is whether an employee could reasonably construe Meekin’s
statements to be threatening or coercive.
This presents a close question in my view. It would appear that Meekin and Conner
enjoyed a relationship that exceeded simply that of driver to loader/operator or vice versa. They
seemed to have a good work-related friendship; e.g., cashing their checks and eating breakfast
together. Conner and Meekin worked in tandem regarding the new driver training. Conner, it
seems, knew the whereabouts of Meekin at the time of the hearing when the company
management did not, which fact suggests something more than a work-related association.
Also, according to Conner, Meekin wanted their conversation to be between friends and
off the record. Conner, under those “ground rules” as it were, told Meekin of his involvement,
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that he had to keep the organization effort quiet. Meekin then expressed his concern to Conner
about sticking his neck out too far to avoid having it chopped off. In the second conversation,
Meekin also intimated to Conner at breakfast his hostility to the union stuff going on, wishing
that it had never taken place, and again advising that he had heard Conner’s days with
Company were numbered.
In my view, Meekin’s comments in both conversations and in a legal vacuum would
constitute unlawful statements. However, the Board instructs that the totality of the
circumstances be examined. Here, there were two employees, one a relatively low-level
management employee and the other a driver, who enjoyed a mutually friendly working
relationship and partook of a conversation. Conner told Meekin on the first occasion that his
questions were unlawful but, nonetheless, acceded to an off-the-record discussion with Conner
about the Union. In the second conversation equally amicable, Meekin volunteered his thoughts
and basically set out to warn Conner that he was being targeted by the Company.
Taken as a whole, I cannot conclude that under these circumstances, an employee
would reasonably construe Meekin’s statements to be coercive or threatening. I would
recommend dismissal of the Meekin allegations.
I note in passing, however, that Meekin’s statements, along with those previously
attributed to Bergeron in his conversations with Oberholtzer, evince early on a clear hostility on
the Respondent’s part to the Union, and to Oberholtzer and Conner for their at least perceived
involvement with the organizing campaign.
3. The no-solicitation/distribution rule allegations
The General Counsel contends that the Respondent, through Bergeron, basically posted
and promulgated its no-solicitation/no-distribution policy in response to Oberholtzer’s February
27 conversation about the Union with a couple of mechanics after his shift ended; that in this
conversation, each participant expressed his views on unionization. She notes that Bergeron
admitted that prior to posting the notices on about February 27–28, the Respondent had no
announced solicitation/distribution policy, least of all a posted notice indicating such a policy.
Essentially, she asserts that as Bergeron testified, in the context of Oberholtzer’s conversation
with the mechanics, one of whom complained about the union conversation to Bergeron,
Bergeron copied the wording of Republic’s signs and posted his signs at Drenth’s facilities. The
General Counsel argues that inasmuch as the Respondent had never, prior to February 27,
applied Republic’s (or its own) solicitation/distribution policy to its employees and as Oberholtzer
credibly testified, the Company had allowed other solicitations—coupon books and a
motorcycle—on Republic’s property at other times, the policy was clearly promulgated to
interfere with the employees’ Section 7 right as opposed to maintain production and discipline.
The General Counsel also submits that under the extant circumstances, the Respondent
promulgated the policy in response to Oberholtzer’s union activity and disparately and
selectively enforced the policy against him to discourage employees from engaging in protected
union activity in violation of the Act.
The Respondent contends that, first, the no-solicitation policy in question was not
Drenth’s policy but Republic Services’ policy; Drenth was required to follow this policy by
contract. The Respondent asserts that this was longstanding policy as attested to by
employees Thomas, and Wilbur who testified that they were not aware of any solicitation that
had taken place on either Drenth or Republic property. The Respondent further asserts that the
only other solicitation incident raised in this case related to Bergeron’s purchase of some little
league football coupons from Oberholtzer, and that as such this was a de minimus departure for
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a charitable purpose from the solicitation policy. The Respondent contends this allegation
should be dismissed.
First, it seems clear that Bergeron, by his own admission, posted the no-solicitation/no-
distribution signs in response to what he claimed was a complaint of one of the mechanics with
whom Oberholtzer spoke about unionization. Second, I note that the so-called complaining
mechanic did not testify at the hearing, nor did Bergeron make any notes of the complaint.
Bergeron stated that the mechanic did not want to be bothered with all this (expletive) about the
Union. So he posted the notices for the first time, at least in his tenure with Drenth.
I am not convinced that Bergeron’s reason—the complaint of the mechanic—for posting
and promulgating the no-solicitation policy is bona fide. As I have previously noted, Bergeron’s
truthfulness in the context of his taped conversation with Oberholtzer in January is suspect.
Accordingly, without some corroboration, I cannot credit his testimony in this regard.
Therefore, in agreement with the General Counsel, I believe that Bergeron posted the
notice and promulgated the no-solicitation rule more in response to what he believed was
Oberholtzer’s union activity as opposed to a complaint from a fellow employee, or because of
any concerns about production, discipline during working hours, or, as asserted, Republic’s
purported no-solicitation policy.
In terms of the Respondent’s claim that it was contractually obligated to follow Republic’s
policy regarding solicitation on its property, I note that the Company did not produce any such
contract incorporating this policy. Granted Calleja testified that his company had a policy that
may touch on soliciting, yet there was no specific testimony that Republic required by contract
subcontractors like Drenth to comply with its no-solicitation policy. Therefore, in my view, the
Respondent’s claim that it was enforcing Republic’s policy over which it had no control is not
established.
In agreement with the Respondent, however, I cannot conclude on this record that the
no-solicitation policy was disparately and selectively applied. It seems that there was very little
in the way of solicitation and distribution going on at the Respondent’s facilities. I would credit
Oberholtzer’s testimony that on one occasion he sold coupons to Bergeron and on some
occasion a for-sale motorcycle remained on the premises for a period of time. However, in my
view, these are de minimus incidents and cannot support a charge of selective and disparate
enforcement of the no-solicitation policy against the Respondent’s employees to discourage
membership.
Be that as it may, I would find and conclude that on February 27, the Respondent
posted, promulgated, maintained, and enforced its no-solicitation/distribution rule in response to
Oberholtzer’s perceived union activity and the possible activities of its employees in violation of
Section 8(a)(1) of the Act, and that this was done to discourage the employees’ support of the
Union.93

93 It is arguable that the Respondent’s action here redounds to selective and disparate
enforcement of the policy against Oberholtzer. However, on this record, in my view the
Respondent’s action was directed at all employees who might be of a mind to solicit on behalf of
the Union, and this poses an unlawful interference with their rights.
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4. The promise of unspecified benefits allegation
The General Counsel contends that Bergeron’s statement—that he was going to make it
better than normal—to a gathering of employees during the union campaign was unlawfully
coercive because they could reasonably infer that if they put the union campaign behind them,
he would make things better for them; that normal before the Union’s advent was better for
them. She contends that Bergeron’s statements constituted a promise of unspecified benefits to
the employees if they (by implication) did not choose the Union to represent them.
The Respondent first asserts that the complaint allegation was too vague and
ambiguous to make a reply.94 However, the Respondent, reckoning (correctly) that the
allegation in question related to employee Wilbur’s conversation with Bergeron in late April
2006, argues that Bergeron’s statement was merely a generalized expression of his desire to
make things better and constituted mere permissible campaign propaganda.
First, I would conclude that Wilbur’s testimony was credible. He presented as a matter-
of-fact witness with no axe to grind. He also was employed by the Respondent at the time he
testified, and this added to his credibility in my view. By the same token, Bergeron did not deny
making the statements attributed to him. In point of fact, the Respondent does not take issue
with this point in its brief. Accordingly, I will credit Wilbur’s version of the encounter in the
mechanics’ supply room in late April 2006.
In my view, Bergeron’s statement was unlawfully coercive. Bergeron evidently
voluntarily stopped to talk to a group of employees, including Wilbur, and without prompting
initiated the conversation, expressing his unsolicited view that he could not wait for things
(meaning the absence of a union campaign) to get back to normal. Wilbur, somewhat
sarcastically (as I heard him relate the encounter) and unenthusiastically, said that normal was
what got them (management) in this position in the first place. Bergeron could have left it at that
but evidently felt, in view of Wilbur’s doubt, a response was required for the gathered
employees.
In agreement with the General Counsel, I would find and conclude that Bergeron’s
statement that he was going to make it better than normal constituted an unlawful promise of
unspecified benefits to the employees if they elected not to choose the Union. In my view, the
employees could reasonably view Bergeron’s comments, given the context of the ongoing
organizing campaign, to mean once the union is gone, they would be better off and further that
Bergeron would see to it. Though Wilbur was evidently not convinced, the other employees
could have reasonably believed that Bergeron, their immediate supervisor, could and would
make good on his promise and thereby their votes against the Union would inure to their benefit.
In the total context of the conversation, Bergeron’s comments went far beyond mere
campaign propaganda. I would find a violation of Section 8(a)(1) in this case.
5. The Clements Clark allegation
The General Counsel asserts that Clark’s request on the two occasions, that employees
supply the Respondent with affidavits they may have given to Board investigators, poses a clear
violation of the Act. She notes that Keck and Rankin, both current employees at the time of the
hearing, testified credibly about Clark’s requests of the employees gathered at an employee

94 I would reject this defense.
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meeting at the Victory Landfill in Terre Haute around the end of August 2006, and then later
around mid-September when Clark, in the parts room alone with Keck, made a similar request.
She further notes that the Respondent failed to call Clark who was certainly available, his being
in the hearing room at various times when testimony covering his activities was adduced.
The Respondent, I would note, opposed the General Counsel’s proposed amendment of
the complaint which included the Clark allegations. However, at the hearing, the Respondent
did not in any measurable way deal with the allegations involving Clark, who I have determined
was a statutory agent. The Respondent also did not deal with these allegations in its brief. I will
treat this allegation as unrebutted by the Respondent.
In agreement with the General Counsel, I would find and conclude first that Clark made
the request of Rankin (and other gathered employees) and Keck for their affidavits during the
union campaign and during the investigation of the charges herein. I would also find and
conclude that Clark’s requests were unlawfully coercive and also posed an unlawful interference
with the employees’ free exercise of their Section 7 rights. I note that the Board has found
employer requests for affidavits inherently coercive. Inter-Disciplinary Advantage, Inc., 349
NLRB No. 49 (2007); Wire Products Mfg. Corp., 326 NLRB 625 (1998); Astro Printing, 300
NLRB 1028 (1990); Frascona Buick, Inc., 266 NLRB 636 (1983).
6. The withdrawal of benefits allegations
a. The Respondent’s collection and reprogramming of the Nextel telephones
The General Counsel submits that on the very day he was informed of the Union’s
certification petition—January 30—and a mere 4 days after he interrogated Oberholtzer about
the extent and nature of union activity among the drivers—January 26—Bergeron posted a
notice to the drivers to turn in their company-issued Nextel phones. She contends the
Respondent took this action to prevent the drivers from speaking with one and the other about
the union campaign.
She notes that as proof of this intention, the Company had the phones reprogrammed so
that upon their return to selected drivers, they were only able to communicate with the
loader/operators, mechanics, and Bergeron himself. The General Counsel further notes that the
only other occasion the Respondent collected company phones en masse was during an earlier
(2004) attempt by the Union to organize the drivers. She asserts that the Respondent’s sole
motivation in collecting and reprogramming the phones during the beginning stages of the
organizing drive was to limit employees, who it knew rarely saw each other on the job, from
communicating with each other about the Union. She contends the Respondent violated
Section 8(a)(3) in this regard.
The Respondent asserts, first, that since the organizing period has ended, and further
the Union lost the election, this charge is moot; the Respondent is now free to alter unilaterally
the terms and conditions of the drivers’ employment. I would reject this defense.
The Respondent also contends that the drivers—and not all of them—were provided
Nextels not as a benefit but as a business tool. The Respondent asserts that Bergeron and
Kenneth Drenth were concerned that the drivers were abusing the phones so much so that
Bergeron found himself having difficulty communicating for business purposes with the drivers
who evidently were using the phones excessively for nonbusiness reasons. The Respondent
also notes that Bergeron and Drenth also had a legitimate concern for the safe operation of the
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trucks and the drivers’ excessive use of the phones while driving posed a distraction from
driving issue.
The Respondent contends that it collected and reprogrammed the phones in a
nondiscriminatory way—all company phones were collected and reprogrammed—with the result
that all, not just union-related communications by the drivers, were restricted to management,
the mechanics, and the loader/operators. Accordingly, the Respondent contends that it did not
violate Section 8(a)(3) with regard to its collecting and reprogramming the company-issued
phones.
In agreement with the Respondent, an employer has the clear right to restrict the use of
its property, including the means of communicating in the workplace. Guardian Industries
Corp., 49 F.3d 317 (7th Cir. 1995). In further agreement with the Respondent, it is clear on this
record that the Company issued the Nextels to its drivers because its operations were
somewhat far flung and the drivers were on the road full time, making communications difficult.
It is clear that having a communications system in place between the drivers and management
and the mechanics and loaders was vital to the conduct of this business. In that regard, I
cannot conclude that the Nextels were benefits as asserted by the General Counsel; I would
liken the phones to tools of this particular trade. Accordingly, in my view, the drivers were not
entitled to use the phones for any but a business-related purpose, irrespective of the Company’s
knowledge that the phones were evidently being used for some time for possibly nonbusiness
purposes.
On this latter point, the Respondent satisfactorily demonstrated (through billing records)
that the phones, in terms of minutes, were being used excessively. Bergeron testified credibly
that he experienced difficulty in contacting drivers on occasions because of excessive usage. In
my view, the Company acted within its rights in collecting the phones and reprogramming them
so that they could be used in a way consistent with business purposes.
I note that in terms of timing, the Respondent’s collecting and reprogramming the
phones certainly support a finding that the Company reacted to the drivers’ (suspected) union
activity as it had in the past under similar circumstances. However, since the drivers were not
entitled to use company property as they saw fit, even for purposes of exercising their statutory
rights, they suffered no detriment regarding the terms and conditions of their employment.95
Also, it seems clear to me that the Respondent, noting the excessive use of the phones, the
expenses associated with such use as well as the potential for the unsafe operation of the
heavy trucks, would have taken the action against all drivers irrespective of the union activity of
the drivers.96
I would recommend dismissal of this charge.

95 It should be recalled that many of the drivers had their own personal Nextels, cell phones,
and citizen band radios, and were free to have contact with each other using their own
equipment. In this light, the Respondent’s actions had no bearing on their unrestricted use of
their own communication modalities to discuss union or other nonbusiness matters.
96 I have employed the Wright Line analysis discussed earlier in this decision. I should note
that I have concluded that the drivers did not suffer an adverse action in having their phones
collected and reprogrammed. I have also concluded that even if they did suffer from such
action in having their phones collected and reprogrammed, the Respondent would have taken
the same action irrespective of the drivers’ union activity, of which it was clearly aware and to
which I have determined it was hostile during all times material to this action.
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b. The alleged refusal to allow Connor, Rankin, and Thomas to park at the Terre
Haute Landfill; Keck’s transfer and loss of allowance of use of a company truck
The General Counsel asserts, first, that Bergeron was aware early on of his drivers’
involvement in a nascent union organizing drive, as demonstrated by his interrogation of
Oberholtzer on January 26, and his confiscation of Oberholtzer’s Nextel on January 27 at which
time Bergeron directed Oberholtzer not to delete any information from the phone.
The General Counsel submits that armed with Oberholtzer’s phone, Bergeron was able
to ascertain other drivers possibly involved in the organizing effort. She notes that Bergeron’s
confiscation of the phones constituted part of his modus operandi to ascertain union supporters.
She submits that this was confirmed by Thomas who testified that a fellow driver told him that
Bergeron used the phone’s recent call list feature to determine that Oberholtzer had spoken to
Thomas, Keck, and Rankin in particular. Moreover, Oberholtzer testified that he had recently
spoken to Connor at the time and his name would have appeared on the call list associated with
his Nextel.
The General Counsel notes that at the time, Connor, Rankin and Thomas were certainly
early supporters of the Union. Bergeron, as evidenced by his January 26 encounter with
Oberholtzer, was desirous of determining who the unionists were. She argues that by
confiscating Oberholtzer’s phone, Bergeron learned that Connor, Rankin, and Thomas had
been talking to Oberholtzer whom he clearly suspected was involved with the Union. The
General Counsel submits that Bergeron deduced that the three were union supporters by virtue
of their recent communications with Oberholtzer.
The General Counsel argues that Bergeron’s transfer of parking locations for the three
came not coincidentally immediately after Bergeron obtained Oberholtzer’s phone. She asserts
this was an act of retaliation plain and simple against them for their support of the Union. She
notes that as soon as Bergeron felt these employees would vote no in the election, he returned
them to their original parking slots at the Terre Haute Landfill.
Regarding employee Keck, the General Counsel submits that Bergeron discovered his
name on Oberholtzer’s phone on January 27, and on the very same day reassigned him from
the Anderson transfer station to CCR. Ultimately, when Keck objected to the transfer, Bergeron
also told him that he could no longer drive the company truck home. Bergeron was fully aware
that Keck had transportation problems at the time.
The General Counsel notes that Bergeron admitted that there was no lack of work at
Anderson at the time and another employee was assigned immediately to replace Keck. She
submits that Bergeron, before discovering Keck’s perceived involvement with the Union, had
been very accommodating of Keck, never having transferred him against his will and allowing
him use of the company truck. Upon discovering Keck’s support of the Union, the General
Counsel contends Bergeron simply retaliated against him and sought to punish him in ways that
he knew would cause Keck the greatest hardship.
The General Counsel submits that the Respondent’s stated reasons for the transfer of
the four employees, including the disallowance of the use of the truck in Keck’s case, are
pretextual and false. She argues that the Respondent in each employee’s case withdrew
benefits conferred by the Company because of their involvement with the Union’s organizing
effort, all in violation of the Act.
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The Respondent principally97 contends that the General Counsel did not meet her
Wright Line requirements in that she did not establish that the Company knew that the four
employees had engaged or were engaging in protected activity; that the four suffered an
adverse employee action; and that there was a link between the employees’ protected activity
and any adverse employment action, that is, the protected activities, was the motivating factor in
the action taken against the employees.
The Respondent asserts that even if, arguendo, the General Counsel may have met her
initial burden, the Company established that it had a legitimate basis for changing the parking
arrangements of Conner, Rankin, and Thomas and transferring Keck as well as disallowing his
use of the company vehicle—namely the vandalism and thefts at the Terre Haute Landfill.
As to Keck, the Respondent asserts simply that it was doing him a favor in trying to
assist him with his transportation problems and acting on its business needs in transferring him
from the Anderson facility to CCR in Indianapolis, a move Keck had made in the past without
protest and in January 2006, in fact, allowed him to make more money.
The Respondent argues that the charges regarding the four employees should be
dismissed.
Wright Line, of course, requires that an employer have knowledge of the union or other
protected activity of the alleged discriminatees. The Respondent argues that to impute
knowledge on this record requires a great leap in logic. I would disagree.
First, clearly, as was evident with Bergeron’s early encounter with Oberholtzer in which
he attempted to determine who the union adherents were, the Respondent clearly was making it
its business to find out the identities of union supporters. Oberholtzer was clearly a prime
suspect to Bergeron. Based on prior experience with the Union, the Company knew that the
Nextel phones could be a good source of intelligence regarding the Union’s possible supporters.
So Bergeron, evidently suspecting that Oberholtzer was a leader, not only interrogated him
about the Union and its supporters, but also immediately confiscated his Nextel which contained
a recent call list. Within a very short time, Bergeron instituted the transfers of Conner, Rankin,
Thomas, and Keck. The timing of all of these events clearly support an inference that the

97 The Respondent contends that the allegations involving the withdrawal of benefits are
internally contradictory and untrue inasmuch as the allegations refer to its employees as a group
when in fact the allegation applies to only four employees and the benefits, if any, were
withdrawn from these four as opposed to the Company’s entire complement of employees. The
Company argues for a dismissal of these charges on this ground, but cites no authority for its
position. I would reject this defense.
The Respondent also asserts that the General Counsel, in preparing her witnesses for trial,
allegedly informed alleged discriminatees Rankin and Thomas that they could receive a
monetary award should they win at trial. The Respondent argues this “could only serve to have
some impact on their testimony and constituted a promise of award that compromises the
integrity of the Board’s judicial process.” I would also reject this defense.
Clearly, under the traditional Board remedies, 8(a)(3) discriminatees are entitled to be made
whole for violations of the Act, and a financial award is often part of the remedy. If the General
Counsel told the alleged discriminatees that they could be made whole as part of a successful
result, she merely advised them of the possible legal remedy under Board law. In any case, I
do not believe the integrity of the hearing in effect was compromised by any such
representations by the General Counsel.
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Respondent knew or certainly suspected that these individuals were involved in the organizing
effort, in spite of these employees’ efforts to keep the drive and their involvement therein below
the Company’s radar screen.
However, the Respondent is not a large company, and the record is clear that the
drivers, not just union supporters, used the Nextels and other communication devices freely and
frequently. Therefore, it was not merely an exercise in speculation that the Respondent knew of
the activities of the four workers who undisputedly were active union supporters who spoke to
fellow drivers over the airways. I note also in his conversations with Conner in February,
Meekin intimated that Conner’s involvement with the Union was known by the Company and
that his days with the Company were numbered.
Then, too, the timing of Bergeron’s confiscating Oberholtzer’s phone, his transferring the
four, and disallowing Keck’s use of the company truck support an inference of knowledge of
their involvement with the Union.
In agreement with the General Counsel, I would find and conclude that the actions taken
against the four were in retaliation for their union activity. I note that while the Respondent’s
defense to the transfer of Conner, Rankin, and Thomas, mainly the theft and vandalism at the
Terre Haute parking lot, is plausible, it is in my view nonetheless pretextual.
First, according to Bergeron, the thefts and vandalism took place about 3 or more
weeks before he decided to transfer Conner, Thomas, and Rankin because of the thefts and
vandalism. It is highly suspicious in my view that Bergeron would on practically the same day
he confiscated Oberholtzer’s phone he would suddenly become concerned about the security
issues at the Terre Haute lot and then announce the transfer of the three employees. It is
evident to me that Bergeron was more motivated to make the transfers because of the
employees’ suspected involvement with the Union, as opposed to the security issues he
claimed justified the transfers.
I note that the repairs and security measures (which were not clearly documented) were
undertaken about 3 weeks or more after the vandalism/thefts occurred, specifically on the same
day Bergeron confiscated Oberholtzer’s Nextel and learned of their involvement with the Union.
This supplies the necessary nexus between the Respondent’s actions against the employees
and, in this case, their suspected in protected activity.
Second, it would appear that the only drivers who were subject to the transfer were
Conner, Rankin, and Thomas. Yet, the Terre Haute parking lot was certainly used by other
drivers who were not transferred. Thus, in my view, the three—Conner, Rankin, and Thomas—
were clearly treated disparately.
I would also find and conclude that the transfers of Conner, Rankin, and Thomas were
tantamount to withdrawal of benefits and constituted an adverse action within the meaning of
Section 8(a)(3). I will not repeat the hardships credibly testified to by the three discriminatees.
Certainly, in the context of the employer’s type of business and the drivers’ role in the conduct
thereof, having a parking area convenient to home and where they could pick up their trucks
was indeed a perquisite of employment, a benefit, to them and the Company as well. In this
light, the Respondent’s stated concern for the security of the trucks and the drivers’ personal
items as a justification for the transfers rings hollow, considering the punishing effect the
transfers visited upon the drivers.
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Notably, it was only when Bergeron was assured that he had received “no” votes for the
Union did he relieve the three of the burden of the transfer. In my estimate, the Respondent
clearly retaliated against Rankin, Thomas, and Conner for their suspected support of and
involvement with the union cause. I would also find and conclude that the Respondent’s
defense under the circumstances is pretextual. I would find a violation of the Act in this regard.
Regarding Keck, in likewise, in my view he was chosen for unlawful retaliation.
However, his transfer to Anderson, though protested by him on January 27, was in keeping with
his prior work experience with the Company. Moreover, in my view the Company was free to
transfer him as it deemed necessary. Accordingly, I do not find his transfer to be unlawful.
On the other hand, in disallowing Keck’s use of the company truck, Bergeron, in my
view, sought to punish him for his union activities and, as Keck credibly testified indeed, cause
him much hardship given his transportation difficulties of which Bergeron was fully aware. The
Respondent offered no reason for withdrawing this accommodation freely given before
Bergeron concluded he was a union supporter.
In my mind, the Respondent’s action here was undertaken to punish a union supporter
and to discourage other drivers who might be of a similar mind. I would find and conclude that
the Respondent violated Section 8(a)(3) of the Act by retaliatorily disallowing Keck’s use of the
company truck because of his support of the Union.98
7. The Oberholtzer allegations
The General Counsel contends essentially that once the Respondent, through Bergeron,
fixed upon Oberholtzer early in the organizing campaign as a central figure therein and
unlawfully, but unsuccessfully, interrogated him about the campaign and the identities of the
drivers involved, the Company began its own campaign to retaliate against him (and other
employees). The General Counsel submits that although Oberholtzer’s early involvement with
the Union was not necessarily clearly known to Bergeron, he certainly suspected him to be
involved. She argues that Bergeron, beyond any doubt, shortly became fully aware of his union
support by virtue of Oberholtzer’s wearing a “vote yes union” ball cap and a Teamster’s sticker
in his hardhat.
She notes that from the beginning Oberholtzer requested to see a copy of the Drenth
contract with Republic Services mainly in response to Bergeron’s threat that if the drivers
selected the Union, Republic Services would terminate the contract. Furthermore, she notes
that at the first employer meeting with the drivers in March 2006, Oberholtzer repeatedly, and to
Bergeron’s chagrin, requested clarification of the contract. She argues that Oberholtzer’s

98 I would note in passing that in reaching this conclusion, by no means am I finding that
Keck or any other driver was entitled to the use of the company truck. As in the case of the
company-issued Nextels, employees are not free to use company property for their convenience
or to vindicate statutory rights. Here, however, with regard to allowing Keck to use the company
truck, Bergeron did not act solely out of benevolence. He knew Keck had transportation
problems. Also, evidently Keck was a good and reliable employee whom he wanted to
accommodate for the benefit of the Company as well as Keck. As Bergeron testified, not
everyone wants to haul garbage. Keck did not abuse the accommodation, as was the plausible
case with the Nextels, and seemingly used the vehicle solely in a manner consistent with
Bergeron’s accommodation. Bergeron, in this light, conferred upon Keck a benefit and
wrongfully withdrew it because of Keck’s involvement with the union drive.
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unyielding support of the Union, coupled with his persistent demand for the production of the
Republic contract, moved Bergeron to retaliate beyond that which had preceded this meeting.99
The General Counsel submits that the Respondent also unlawfully retaliated against
Oberholtzer for his support of and involvement with the Union cause by issuing Oberholtzer a
written warning for speaking with the mechanics about the issue of unionization on February 27
in violation of the Company’s no-solicitation/distribution policy; by issuing on March 30 a written
warning for hauling overweight loads contrary to company policy and suspending him 3 days
for violations of the weight policy on April 3; and ultimately discharging him for handbilling on
April 6.
Regarding the no-solicitation/distribution rule warning, the General Counsel notes that
there is no dispute that the two mechanics in question, as well as Oberholtzer, all were
discussing unionization and giving their respective opinions about the subject. She submits that
Bergeron admitted that Oberholtzer was disciplined for engaging in this conversation.
Therefore, by his own testimony, Bergeron issued the warning because of Oberholtzer’s
involvement with and continued support of the union campaign. However, she notes Bergeron
only posted the no-solicitation/distribution policy notice for the first time because of Oberholtzer,
while Bergeron, in fact, himself had at work participated in the solicitation of football coupons
and knew or should have known of at least another previous solicitation (the motorcycle sale).
The General Counsel essentially contends that Bergeron issued the warning against him
alone because he knew Oberholtzer supported the Union. She also submits that Bergeron
knew based on the claimed complaints of one of the mechanics that Oberholtzer was not really
soliciting for or distributing materials for the Union; he and the mechanics were merely
discussing unionization.
The General Counsel notes that there was no rule in place to prevent such discussions
among the employees who generally were at liberty to discuss any topics of their choosing as
long as work was not impeded. She argues that were it not for Bergeron’s hostility to
Oberholtzer’s continued support of the Union, he would not have issued him the warning in
question.
As to the March 30 written warning and the April 3 suspension, the General Counsel
essentially contends that the Respondent’s under-overweight policy was not consistently
followed or enforced by the Company inasmuch as the record evidence showed that the
Respondent’s trucks historically frequently hauled loads out of compliance with the minimum-
maximum load requirements. She submits that Bergeron only reposted the admittedly

99 The General Counsel contends that Bergeron unlawfully confiscated Oberholtzer’s Nextel
on January 27, along with the confiscation and reprogramming of other drivers’ phones. I have
previously concluded that the Respondent’s collecting and reprogramming of the Nextels did not
pose a violation of the Act.
I would in likewise find and conclude that Bergeron’s specific collection of Oberholtzer’s
phone was not violative of Section 8(a)(3) for the reasons I have stated earlier herein. I note
that the record strongly suggests that Bergeron wanted Oberholtzer’s phone to determine who
the union supporters were. However, while Oberholtzer used the company phone to promote
the union cause, there is no protection in my view under the Act for employees’ using company
property to advance the union cause or any of his Section 7 rights, especially where as here,
viable alternatives exist.
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longstanding policy because the transportation police had issued numerous citations during
March and April to the Company’s drivers for hauling overweight.
On March 28, the General Counsel submits that Oberholtzer received permission from
Meekin to haul loads later determined to be under- and overweight (for which Oberholtzer was
ticketed). She notes because Bergeron had confiscated Oberholtzer's phone, he had no other
means of contacting management except through Meekin. On March 29, Oberholtzer again
received permission from Meekin to haul a load without weighing out—the scales at Vincennes
were out of repair—and this load was under the minimum load weight policy.
The General Counsel contends that other drivers—Thomas and Keck in particular—
testified they hauled under- and overweight loads without first obtaining Bergeron’s permission
and were not penalized; where tickets were issued, the Company paid them. She submits
further that the Respondent in the past had similarly paid Oberholtzer’s tickets, but only during
the organizing drive and his involvement therein did the Company refuse to pay his tickets.
Essentially, other drivers (with one exception) who did not strictly comply with the weight policy
were not disciplined, as was Oberholtzer, the union supporter and, in Bergeron’s mind, the
putative ringleader of the campaign.
Turning to Oberholtzer’s discharge on Aril 6, the General Counsel notes that it cannot be
controverted that he was terminated on April 6 for handbilling at the Sycamore Ridge Landfill.
She contends that this landfill was the only location at which the Union could effectively
communicate with a majority of the Drenth drivers. More importantly, on April 6, Oberholtzer
and the union supporters distributed handbills only to Drenth’s drivers and in no way caused any
disruption to or safety concerns for Republic or Drenth’s business or the public at large, contrary
to the testimony of Calleja, whom she asserts would not be credited because he was not an
eyewitness and simply relied on the equally unreliable word of Bergeron.
On balance, the General Counsel essentially contends that Bergeron did not consult with
any eyewitnesses to Oberholtzer's handbilling on April 6 or otherwise take any honest and
sincere investigation of the matter to determine that it was Oberholtzer who was actually even
handbilling, let alone trespassing on private property, disrupting the flow of business, and
hindering the flow of traffic on Cottom Drive—a public road. She contends that Bergeron
discharged Oberholtzer for unsubstantiated reasons. Furthermore, based on the credible
testimony of Oberholtzer, Combs, and Valadez, the only witnesses who were on the scene,
along with Wilbur and Conner who saw Oberholtzer handbilling during his suspension, the
General Counsel submits that the Respondent’s claim that Oberholtzer was disrupting traffic
and trespassing is simply not made out and therefore is pretextual. The General Counsel
argues that the Respondent terminated Oberholtzer because he engaged in lawful handbilling
for the Union, a protected concerted activity, in violation of Section of Section 8(a)(1) of the Act.
The Respondent concedes that the Company issued a verbal warning to Oberholtzer on
February 27 for soliciting one of its mechanics (Norman Mikes) on behalf of the Union; issued
Oberholtzer a written warning on March 30 for driving overweight without first obtaining
Bergeron’s permission, and receiving a citation for this; suspended Oberholtzer for driving
underweight on April 3; and discharged him on April 6.
However, the Respondent asserts essentially that Oberholtzer’s conduct from the
beginning of the organizing campaign was part of a vendetta on his part to harm the Company
and that it was justified in terminating him.
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The Respondent contends that Oberholtzer’s ignoring of company rules, e.g., the no-
solicitation/distribution policy and the load weight policy; his insubordinate behavior toward
Bergeron, including locking him in his office and persistently disrupting him during the
employer’s meeting with the drivers; making specious claims to government agencies which
caused Drenth trucks to be targeted for enforcement; and finally, despite being on suspension,
his trespassing on Republic Services’ property while handbilling in a disrupting way, all combine
to support Oberholtzer’s termination.
The Respondent also contends that Oberholtzer’s post discharge conduct—his verbal
threat to physically assault Bergeron—was sufficiently egregious to bar his reinstatement and
toll any backpay as of the date of Oberholtzer’s threat.
Applying Wright Line to the Oberholtzer allegations as a whole, it is clear that the
Respondent, while at first seemingly suspicious of his involvement with and support of the union
campaign, clearly became aware of his sentiments and actions in support of the cause. The
Respondent seems to concede this point, and I would so find and conclude, that the
Respondent was aware of Oberholtzer’s union activities during all material times.
The Respondent also concedes, and the record to a certainty establishes, that
Oberholtzer suffered adverse actions regarding his employment status by dint of the warnings,
verbal and written, issued him for purported violations of company policies, his suspension, and
lastly his termination. All of these adverse actions were taken by the Respondent in the context
of Oberholtzer’s active and known involvement with and his actions taken on behalf of the
Union.
In agreement with the General Counsel, I would find and conclude that the record
evidence supports an inference that the verbal and written warnings issued to Oberholtzer,
along with his suspension and discharge, were all connected to Oberholtzer’s support of the
Union and his having engaged in statutorily protected activity.
I note that contrary to the Respondent’s view of Oberholtzer as a holder of a vendetta
against the Company, the opposite obtains—the Company, in my view, identified him early on
as a union adherent and targeted him for harassment and selective punishment. As I have
previously found, Bergeron violated the Act in unlawfully interrogating Oberholtzer in January at
the start of the union campaign, and threatening Oberholtzer and the other drivers with possible
loss of their jobs if they selected the union. These early transgressions by Bergeron clearly
demonstrate the Respondent’s animus against the Union and Oberholtzer’s connection with the
campaign. Accordingly, as I see the issues associated with Oberholtzer, the Respondent’s
actions taken against him after January 2007 were tainted by its hostility to him and his activities
on behalf of the Union.
Regarding the verbal warning on February 27, Bergeron testified that he issued the
reprimand because Oberholtzer was soliciting, talking to the mechanics about unionization. At
least this was the seeming essence of the alleged complaint by one of the two mechanics with
whom Oberholtzer was conversing. While I am not sure there was an actual complaint, I note
that Bergeron undertook no independent investigation of the complaint, which at a minimum
would have reasonably included speaking with all of the participants in the purported
conversation. Bergeron instead determined that Oberholtzer alone violated the no-solicitation
policy.
Oberholtzer, it should be noted, credibly testified that he and the mechanics were
discussing unionization conceptually, and that he was not soliciting on behalf of the Union
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because the mechanics were not to be included in the drivers’ unit. On this score, if Bergeron
were not so motivated by animus toward the Union and Oberholtzer’s known involvement
therewith, he might have discovered the true nature of the conversation which it seems would
not have posed a violation of the no-solicitation policy.100 I would find and conclude that the
Respondent’s issuance of the verbal warning on February 27 to Oberholtzer violated Section
8(a)(3) of the Act.
Regarding the Respondent’s issuance of the written warning and subsequently
suspending Oberholtzer for basically violating the company policy which required that loads
weigh a minimum of 76,000 pounds but no more than 80,000 pounds, I would agree with the
General Counsel that these disciplines were substantially motivated by the Respondent’s
hostility to Oberholtzer’s support of the Union, and that the Respondent failed to establish that it
would have taken these actions against him irrespective of his support.
First, the evidence of record both testimonial and documentary disclose that the
Respondent’s load weight policy was not rigorously let alone consistently enforced. Perhaps in
fairness, the minimum/maximum weight limits policy was very difficult to implement considering
the vicissitudes of the business, including broken scales, inaccurate on-truck measures, the
difficulty of taking excess trash off of trucks, sometimes inadequate communications, and the
like. This situation could certainly account for the Respondent’s practice of simply paying for the
tickets incurred by drivers who hauled overweight, and perhaps even allowing drivers to haul
overweight to make up for underweight loads. Thus, it would seem these factors and the
vicissitudes of the garbage hauling business account of there being only two drivers penalized
for weight load violations during the material times associated with the matter—Oberholtzer and
Wilcher.
It is this history and practice that makes the Respondent’s treatment of Oberholtzer
stand out. He received two disciplines including a suspension within about a week for violating
the weight policy, that is hauling under- and overweight. This was highly unusual.
These disciplines are in themselves suspect. Oberholtzer on both occasions was
ordered by Bergeron to haul out of Vincennes without a Nextel phone. Meekin was the only
effective management representative to advise drivers who did not have a company phone.
Oberholtzer credibly testified that Meekin gave him permission to make the hauls and explained
this to Bergeron. Again, Bergeron undertook no investigation of the situation with Meekin to
determine whether there were mitigating circumstances or whether Meekin had actually
approved the loads. Instead, Bergeron issued the written warnings which in effect conveniently
imposed two strikes on Oberholtzer under the Company’s progressive disciplinary scheme.
In agreement with the General Counsel, I would find and conclude that the March 30
written warning and the April 3 suspension were made in retaliation for Oberholtzer’s union
activity and support.101

100 The Respondent did not adduce any evidence or otherwise advance an argument that
Oberholtzer violated any company policy except the no-solicitation/distribution policy which was
posted on the same day as Oberholtzer’s alleged violation of said policy. Accordingly, it is
arguable that on the day in question neither Oberholtzer nor the mechanics violated any of the
Respondent’s company rules in conversing about unionization.
101 In so finding and concluding, I have considered what appears to be the Respondent’s
defense to these charges—that Oberholtzer simply violated the weight policy and was properly
disciplined. However, I have rejected this defense on grounds of pretext.
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Regarding Oberholtzer’s termination on August 6, I would find and conclude that the
Respondent also violated the Act in this regard. First, Bergeron’s testimony regarding his
decision to terminate Oberholtzer was inconsistent and impossibly confusing. As I listened to
him, in all candor, he seemed to be making up reasons as he went along. I find his testimony to
be highly suspect. Second, irrespective of the general inconsistency of his record testimony,
one salient point stands out—neither Bergeron himself nor any other company witness actually
saw Oberholtzer handbilling in such a manner so as to block traffic, trespass on private
property, cause safety concerns, or impede the business of Republic or the Drenth drivers
except for a very short time when drivers stopped to take a proffered handbill. Notably, Calleja,
called by the Respondent to buttress the discharge, did not personally see Oberholtzer
handbilling but evidently relied on Bergeron’s claim.
Essentially, here again, Bergeron did not undertake a reasonable investigation of the
matter and, relying on vague hearsay from some of the drivers, decided to fire Oberholtzer for
clearly unproven charges. Thus, in agreement with the General Counsel, Oberholtzer’s
discharge in my view was made in retaliation for his support of the Union and because he was
engaging in protected activity.102
I note in passing that the Respondent defends its termination of Oberholtzer on grounds
of the combination of transgressions to include interrupting the employer’s meeting, allegedly
locking Bergeron in his office, and disloyally informing government agencies about the
Company’s possible violation of transportation regulations, anyone of which arguably could be
grounds for discipline. However, I note that the Respondent did not discipline him for these
actions.
In fact, although Bergeron told Oberholtzer to submit in writing a request for the reasons
for his termination—a move to buy time in my estimate—Bergeron never indicated that these
matters influenced his decision to let him go. I would also note that these matters were raised
almost incidentally only in the hearing by the driver witnesses. Accordingly, I have rejected this
aspect of the Respondent’s defense to Oberholtzer’s discharge.
8. The reinstatement issue
The Respondent contends that Oberholtzer lost his right to backpay and reinstatement
because he threatened Bergeron with bodily harm on April 21 when he picked up his final
paycheck after his discharge.
The General Counsel counters that Oberholtzer’ conduct did not take him out of the
protection of the Act.
The Respondent called a former employee, Lacy Adaway,103 to testify about
Oberholtzer’s conduct on the occasion of his picking up his last paycheck on about April 21,
2006.

102 In so finding and concluding, I have credited Oberholtzer’s version of how he conducted
himself while handbilling on April 6, and the testimony of Combs and Valadez as well. I note
that employees Conner and Wilbur observed Oberholtzer handbilling on Cottom Road and, on
balance, corroborate Oberholtzer, Combs, and Valadez in terms of their conducting of the
handbilling exercise.
103 The Respondent denominates Adaway as Lacy Ray. I have relied on the transcript and
Continued
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According to Adaway, he spoke to Oberholtzer on the day in question and that
Oberholtzer said he was at the CCR shop to pick up his final check. Adaway noted that he had
just completed his runs for the day and was talking to another new employee, Michael Johnson,
when Bergeron came out of his office. Oberholtzer then told Bergeron he was there to retrieve
his check and the two proceeded to Bergeron’s office, and in less than a minute both emerged.
Adaway stated that as he was leaving, Oberholtzer said, “I’ll see you in court, Joe.”
Bergeron responded, saying “Yes, I will David.” Then Oberholtzer turned around and pointed at
Bergeron and said, “If I catch you outside the gate, Joe, I’ll beat your f--king ass.”
Adaway said that he was in a state of disbelief, and recalled asking (rhetorically) of
Johnson, Did he really say that?” In any case, Adaway said that he accompanied Bergeron to
his office where Bergeron called the police. According to Adaway, the police arrived after a
time, but took no report from him.
Adaway stated that he could not hear what may have transpired between Bergeron and
Oberholtzer in the office, although the doors were open. Adaway also said he did not hear
Bergeron tell Oberholtzer to go f—k himself as they came out of the office.
Bergeron testified that Oberholtzer came to CCR to pick up his last paycheck and while
they were in his office and as he was handing Oberholtzer his check, Oberholtzer said “you
know, you are a m-----f--king liar.” Bergeron said that he told Oberholtzer that he was sorry he
felt that way but that he (Oberholtzer) had to leave. Bergeron said that he was concerned that
there was only one exit to the office so he asked Oberholtzer politely to leave.
Bergeron admitted that he responded to Oberholtzer’s statement that he would see him
in court by saying “I guess I’ll see you in court, David.” According to Bergeron, Oberholtzer then
turned around, pointing his finger, and said, “If I ever catch you out of the gate, I am going to
kick your f--king ass.”
Bergeron, noting that Oberholtzer was a “big boy” (in size), said that he decided to call
the police. According to Bergeron, when the police arrived, he filled out a report of the incident
but did not receive a copy from the officers who advised that if Oberholtzer returned to the
property to call them immediately and he would be arrested; but if he (Bergeron) left the
property, he should defend himself. Bergeron said that he did not file formal charges against
Oberholtzer.
Oberholtzer testified about his encounter within Bergeron on April 21. According to
Oberholtzer, Bergeron had given him permission personally to pick up his final check at CCR,
as opposed to having it mailed to him. Oberholtzer said that as Bergeron was handing him his
check, he said “Thank you, you lying sack of s-it,” to which Bergeron said “that wasn’t very
nice.” Oberholtzer said that he told Bergeron that he (Bergeron) was not a very nice person.
According to Oberholtzer, as they were passing through the parts bay, Bergeron said
that the Company was going to prosecute him, to which Oberholtzer said he asked for what
offense. According to Oberholtzer, Bergeron said the Company was going to prosecute him for
lost revenue. Oberholtzer said that again he called Bergeron a lying sack of s..t, and that he did
not believe a word coming out of his (Bergeron’s) mouth.
_________________________
my notes in describing him as Lacy Adaway.
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Oberholtzer stated that as he was leaving he passed Lacy Adaway104 and told him, “You
don’t know what the f--k you’re talking about either.” According to Oberholtzer, Adaway
extended his middle finger and flipped him off, at which Oberholtzer said he merely laughed.
Then Bergeron said, “I hear that ducks fart underwater, too.” Oberholtzer said that at that point
he looked at Bergeron and said, “Well coming from you, I would check those references.”
According to Oberholtzer, Bergeron told him to f--k himself. Oberholtzer testified that he
responded, telling Bergeron, “Never let me catch [you] outside of here by [your]self.” The
conversation ended on this note, and Oberholtzer said he left the premises.
The courts and the Board have long held that employees may lose the protection of the
Act, that is, loss of their entitlement to reinstatement and/or backpay, if they engage in conduct
including verbal threats deemed sufficiently flagrant or egregious, as of the date of the
misconduct. Alto-Shaam, Inc., 307 NLRB 1466 (1992); Precision Window Mfg., 303 NLRB 946
(1991).
The General Counsel argues that Oberholtzer’s conduct, including his use of profane
and vulgar language, was commonplace among the drivers and even Bergeron in the
workplace—as one of the trucker witnesses observed, “after all we are truck drivers”. She
contends that even if Oberholtzer’s comment could be interpreted to be a physical threat, it was
provoked by Bergeron’s unlawful behavior toward Oberholtzer (and the other union supporters,),
and Bergeron’s salt-in-the-wound threat to sue Oberholtzer for lost revenue.
As noted by the General Counsel, the Board traditionally looks at the nature of the
misconduct and denies reinstatement in those flagrant cases in which the misconduct is violent
or of such character as to render the employees unfit for further service. C-Town, 281 NLRB
458 (1986); and whether the misconduct was an “emotional reaction” to the employer’s own
unlawful discrimination against the employee. Blue Jeans Corp., 170 NLRB 1425 (1968), citing
NLRB v. M and B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965),
I have considered this issue, not just solely in the context of Oberholtzer and Bergeron’s
final encounter on April 21, but in the full context of the record herein. Certain observations are
in order. First, bad blood developed between Oberholtzer and Bergeron probably because of
their respective positions on the Union. I have found that Bergeron, Oberholtzer’s main if not
sole supervisor, took seriously unlawful actions against him exceeding that which he visited on
the other discriminatees named in this case.
It seems that Oberholtzer did not take this assault lying down. While not entirely proven,
but certainly not rebutted, it seems that Oberholtzer may have locked Bergeron in his office,
may have alerted the regulators to possible violations by the Company of transportation,
environmental, and workplace safety rules, and, at least in the Respondent’s view, rudely
disrupted the employer’s meeting with the drivers in March.
If Oberholtzer’s conduct—post-discharge—had simply constituted name-calling,
irrespective of the language used or the emotion evident, then the General Counsel’s argument
in support of providing him the traditional remedies would be more compelling, in my view.
However, considering the very bad feelings between Oberholtzer and Bergeron and
Oberholtzer’s threat of physical violence upon his discharge, I would, in agreement with the
Respondent, recommend that he not be reinstated to his former employment. The Respondent

104 Oberholtzer also referred to Adaway as Lacy Ray.
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rightly points out that workplace violence is regrettably a too real fact of life in the modern
American workplace.
On the other hand, Oberholtzer clearly was provoked to anger by Bergeron’s actions
against him. However, in my mind, this does not justify resorting to threats of physical harm. It
is trite but true, but it is for this reason we have the Act and the unfair labor practice adjudication
process to ensure quite literally labor peace. In my view, returning Oberholtzer to work with
Bergeron, the main supervisor of the Respondent’s drivers, would not be conductive to
promoting labor peace.
I would recommend that Oberholtzer be awarded backpay from the date of his discharge
until the matter is finally resolved by the Board or the Courts, but that the Respondent not be
ordered to make him an offer of reinstatement.
CONCLUSIONS OF LAW
1. The Respondent, KR Drenth Trucking, Inc. d/b/a TK Services, Inc. is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Local Union No. 135, Chauffeurs, Teamsters, Warehousemen and
Helpers, Indianapolis, Indiana and Airline Employees in the State of Indiana, a/w International
Brotherhood of Teamsters is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by engaging in the following
conduct.
(a) Interrogating its employees about their union membership, activities, sympathies,
and support.
(b) Threatening employees with loss of their jobs if they selected the Union as their
bargaining representative.
(c) Posting, promulgating, and maintaining a no-solicitation or no-distribution rule to
discourage its employees from forming, supporting, and assisting the Union.
(d) Promising its employees unspecified benefits to dissuade them from supporting
the Union.
(e) Requesting that employees provide copies of their affidavits given to agents of the
National Labor Relations Board investigating unfair labor practices charges made by the Union.
4. The Respondent violated Section 8(a)(3) and (1) of the Act by engaging in the
following conduct.
(a) Refusing to allow employees Dennis Conner, Jason Rankin, and Stacey Thomas
to park at the Respondent’s Terre Haute, Indiana facility because of their support and activities
on behalf of the Union.
(b) Disallowing employee Andrew Keck the use of a company truck to drive home
after completing his work duties because of his support and activities on behalf of the union.
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(c) Issuing verbal and written warnings to employee David Oberholtzer because of his
support and activities on behalf of the Union.
(d) Issuing a 3-day suspension to employee David Oberholtzer because of his support
and activities on behalf of the Union.
(e) Causing the termination of employee David Oberholtzer because of his support
and activities on behalf of the Union and his engaging in protected concerted activities.
(f) Discriminatorily issuing a verbal warning to employee David Oberholtzer for
violation of the Respondent’s no-solicitation/distribution rule because of his support and
activities on behalf of the Union.
5. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not violated the Act in any other manner or respect.105
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and take certain affirmative action designed to
effectuate the policies of the Act.
1. The Respondent having discriminatorily refused to allow employees Dennis Conner,
Jason Rankin, and Stacey Thomas to park at the Respondent’s Terre Haute, Indiana facility in
violation of Section 8(a)(3) of the Act, I shall recommend that it be ordered to make them whole
for any losses they may have suffered as a consequence of the action taken against them, in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in
accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).
2. The Respondent, having discriminatorily disallowed Andrew Keck the use of a
company truck to drive to his residence after completion of his work duties in violation of Section
8(a)(3) of the Act, I shall recommend that the Respondent be ordered to offer to reinstate this
benefit and make him whole for any losses he may have suffered as a consequence of the
action taken against him.106

105 The General Counsel in her brief argues for a finding that the Respondent also violated
Section 8(a)(1) on April 21, 2006, on the occasion of Oberholtzer’s picking up his final check
and becoming embroiled in an incident with Bergeron. She contends that Bergeron’s threat to
sue Oberholtzer for loss of revenue poses a violation of the Act because of Oberholtzer’s having
engaged in protected union activity.
I decline to make this finding because, first, the General Counsel did not alert me or the
Respondent of her intentions to amend the complaint, and did not do so at the hearing or even
in her brief. Accordingly, on due process grounds, I would decline to make this finding.
Additionally, I would decline to make this finding because in my view the matter was not fully
litigated. Clearly, the Respondent was not even on notice that this charge was forthcoming and
the matter itself was merely tangential to other issues in this dispute. Notably, the alleged threat
to sue only came up in the context of Oberholtzer’s confrontation with Bergeron after his
termination and had little to do with the main complaint allegations.
106 The make-whole remedy provided in paragraph 1 above applies to the make-whole
Continued
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3. The Respondent having discriminatorily issued verbal and written disciplinary
warnings to David Oberholtzer in violation of Section 8(a)(3) of the Act, I shall recommend that it
be ordered to rescind these disciplinary warnings and expunge all references thereto from its
records.
4. The Respondent having discriminatorily suspended and terminated Avid Oberholtzer
in violation of Section 8(a)(3) of the Act, I shall recommend that it be ordered to rescind the
suspension and termination disciplines and expunge all references thereto in its records and
make him whole for all loss he may have incurred as a result of the actions taken against
him.104
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended107
ORDER
The Respondent, KR Drenth Trucking, Inc., d/b/a TK Services Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union membership, activities, sympathies,
and support.
(b) Threatening employees with loss of their jobs if they selected the Union as their
bargaining representative.
(c) Posting, promulgating, and maintaining a no-solicitation/distribution rule to
discourage its employees from forming, supporting, and assisting the Union.
(d) Promising its employees unspecified benefits to dissuade them from supporting
the Union.
(e) Requesting that employees provide copies of their affidavits given to agents of the
National Labor Relations Board investigating unfair labor practice charges by the Union.
(f) Refusing to allow its employees to park at its facilities because of their support and
activities on behalf of the Union.
(g) Disallowing employees use of company trucks to drive to their residences because
of their support and activities on behalf of the Union.
(h) Issuing verbal and written disciplinary warnings to employees because of their
support and activities on behalf of the Union.
_________________________
provision of this paragraph also.
107 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(i) Issuing suspensions and terminations to employees because of their support and
activities on behalf of the Union.
(j) Issuing warnings to employees for violations of its no-solicitation/distribution rule
because of their support and activities on behalf of the Union.
(k) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make discriminatees Dennis Conner, Jason Rankin, and Stacey Thomas whole for
any loss of earnings and other benefits they suffered as a result of the unlawful action taken
against them, as computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
(b) Make discriminatee David Oberholtzer whole for any loss of earnings and other
benefits he suffered as a result of the unlawful action taken against him as set forth in (a)
above.
(c) Make discriminatee Andrew Keck whole for any losses of earnings and other
benefits he suffered as a result of the unlawful action taken against him, including offering within
14 days from the date of this Order to reinstate his use of a company vehicle to drive to his
residence after work duties, as set forth in (a) above.
(d) Within 14 days from the date of this Order, expunge from its records all references
to the unlawful actions taken against the discriminatees, including David Oberholtzer, and,
within 3 days thereafter, advise them and him in writing that this has been done and that these
actions shall not be used against them or him in any manner in the future.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facility in Indianapolis,
Indiana, copies of the attached notice marked “Appendix.”108 Copies of the notice, on forms
provided by the Regional Director for Region 25, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility

108 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.”
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involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 30, 2006.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. September 28, 2007
____________________________
Ear E. Shamwell Jr.
Administrative Law Judge
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Chicago, IL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf with your employer.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these protected activities.
WE WILL NOT interrogate our employees about their union membership, activities, sympathies,
and support.
WE WILL NOT threaten our employees with loss of their jobs if they selected Local Union No.
135, Chauffeurs, Teamsters, Warehousemen and Helpers, Indianapolis, Indiana and Airline
employees in the State of Indiana, a/w International Brotherhood of Teamsters as their
bargaining representative.
WE WILL NOT post, promulgate, and maintain a no-solicitation/distribution rule to discourage
our employees from forming, supporting, and assisting Teamsters Local 135.
WE WILL NOT promise our employees unspecified benefits to dissuade them from supporting
Teamsters Local 135.
WE WILL NOT request that our employees provide copies of their affidavits they gave to agents
of the National Labor Relations Board investigating unfair labor practice charges by Teamsters
Local 135.
WE WILL NOT refuse to allow our employees to park at our facilities because of their support
and activities on behalf of Teamsters Local 135.
WE WILL NOT disallow our employees the use of a company truck to drive home after
completion of their work duties, because of their support and activities on behalf of Teamsters
Local 135.
WE WILL NOT issue verbal and written disciplinary warnings to our employees because of their
support and activities on behalf of Teamsters Local 135.
WE WILL NOT issue disciplinary suspensions and terminations to our employees because of
their support and activities on behalf of Teamsters Local 135.
WE WILL NOT cause the termination of our employees because of their support and activities
on behalf of Teamsters Local 135 and their engaging in concerted protected activities.
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WE WILL NOT discriminatorily issue verbal warnings to our employees for violation of our no-
solicitation/distribution rule because of their support and activities on behalf of Teamsters Local
135.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make discriminatees Dennis Conner, Jason Rankin, and Stacey Thomas whole for
any loss of earnings and other benefits they suffered as a result of our unlawful action against
them, with interest.
WE WILL make discriminatee David Oberholtzer whole for any loss of earnings and other
benefits he suffered as a result of our unlawful action against him, with interest.
WE WILL make discriminatee Andrew Keck whole for any losses of earnings and other benefits
he suffered as a result of our unlawful action against him, with interest, including offering to
reinstate his use of a company vehicle to drive to his residence after completion of work duties.
WE WILL expunge from our records all references to the unlawful actions taken against the
discriminatees, including David Oberholtzer, and advise them and him in writing that this has
been done and that these actions shall not be used against them or him in any manner in the
future.
KR DRENTH TRUCKING, INC. d/b/a
TK SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 317-226-7413.
JD–64–07
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KR DRENTH TRUCKING, INC.
d/b/a TK SERVICES, INC.
and Cases 25–CA–29863 Amended
25–CA–29864 Amended
LOCAL UNION NO. 135, CHAUFFEURS, 25–CA–29921
TEAMSTERS, WAREHOUSEMEN AND 25–CA–29922 Amended
HELPERS, INDIANAPOLIS, INDIANA AND 25–CA–29930
AIRLINE EMPLOYEES IN THE STATE 25–CA–29974
OF INDIANA, a/w INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
TABLE OF CONTENTS
PAGE
DECISION 1
STATEMENT OF THE CASE 1
I. JURISDICTION—THE BUSINESS OF THE RESPONDENT 2
II. THE LABOR ORGANIZATION 2
III. BACKGROUND MATTERS NOT IN DISPUTE OR CONTROVERSY 2
A. The Respondent’s Business Operations 2
B. The Union’s Organizing Drive 3
IV. THE UNFAIR LABOR PRACTICE ALLEGATIONS 4
A. Preliminary Issue: The Supervisory/Agent Status of the Respondent’s
Employees, Brandon Meekin and Clements Clark 4
B. The Substantiative Charges 8
1(a) Bergeron’s alleged interrogation of the employees on or about January 26, 2006 8
1(b) Bergeron’s alleged threat of job loss if employees selected the Union 8
1(c) Brandon Meekin’s alleged interrogation and threats of unspecified
reprisals on January 27, 2006 9
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1(d) The Respondent’s alleged posting, promulgation, maintenance, and selective
and disparate enforcement of a no-solicitation rule on about February 27, 2006 11
1(e) Bergeron’s alleged promise of unspecified benefits to employees in
April 2006 to discourage support for the Union 14
1(f) Clements Clark’s alleged request that employees give copies of their Board
affidavits to the Respondent in August and September 2006 during the investigation
of the charges in question 15
2(a) The Respondent’s alleged withdrawal of benefits on or about January 27, 2006;
the Respondent’s refusal to allow certain employees to park at the Terre Haute
Landfill facility 16
2(b) The Respondent’s transfer of Keck and the revocation of his use of a
company truck 21
2(c) The Respondent’s collecting and reprogramming of Oberholtzer’s
(and other employees’) company-issued phones 22
3(a) The February 27, 2006 verbal warning issued to Oberholtzer 25
3(b) The March 30, 2006 written warning issued to Oberholtzer 26
3(c) Bergeron’s suspension of Oberholtzer on April 3, 2006 28
3(d) The Respondent’s discharge of Oberholtzer on April 6, 2006 29
C. The Applicable Law Regarding the 8(a)(1) and 8(a)(3) Allegations 35
D. Discussion and Conclusions Regarding the Charges 39
1. The Respondent’s alleged interrogation of Oberholtzer; the alleged threat of
job loss 39
2. The Brandon Meekin allegations 40
3. The no-solicitation/distribution rule allegations 41
4. The promise of unspecified benefits allegation 43
5. The Clements Clark allegation 43
6. The withdrawal of benefits allegations 44
a. The Respondent’s collection and reprogramming of the Nextel telephones 44
b. The alleged refusal to allow Connor, Rankin, and Thomas to park at the Terre
Haute Landfill; Keck’s transfer and loss of allowance of use of a company truck 46
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7. The Oberholtzer allegations 49
8. The reinstatement issue 54
CONCLUSIONS OF LAW 57
REMEDY 58
ORDER 59
NOTICE TO EMPLOYEES 62