Tricil Environmental Management

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 669 (N.L.R.B. 1992)

669
308 NLRB No. 93
TRICIL ENVIRONMENTAL MANAGEMENT
1 On February 28, 1992, Administrative Law Judge Donald R.
Holley issued the attached decision. The Respondent and the General
Counsel filed exceptions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (195), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
Although the judge did not cite Wright Line, 251 NLRB 1083
(1980), we are satisfied that he applied the standards of that case
and did so correctly.
3 In affirming the judge’s rationale for setting aside the August 10,
1990 election, we disavow that portion of his rationale which relies
on the discharge of Cellus Perry, which, although unlawful, occurred
on September 13, 1990, after the election. We further note that fol-
lowing the resolution of four challenged ballots, the Regional Direc-
tor opened and counted these ballots, and that the resulting revised
tally indicated the Union did not receive a majority of the ballots
cast, including three nondeterminative challenged ballots.
In its exceptions the Respondent contends that because of a com-
pany reorganization and reduction in force in February and March
1991, dischargees Cellus Perry and Leon Smith should not be rein-
stated and their backpay should cease as of March 14, 1991. We
leave this determination to the compliance stage of the proceeding.
The Respondent further contends that a second election would be
‘‘ineffective and inappropriate.’’ We leave this issue for resolution
by the Regional Director in the representation case. Accordingly, we
find it unnecessary to pass on the General Counsel’s motion to strike
these portions of the Respondent’s brief. 1 All dates herein are 1990 unless otherwise indicated.
Tricil Environmental Management, Inc. and Oil,
Chemical and Atomic Workers International
Union, AFL–CIO. Cases 26–CA–13941, 26–CA–
14038, 26–CA–14066, and 26–RC–7290
August 31, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present issues regarding whether the Respondent, in
the context of a union organizing campaign, made
threats of plant closure, disciplined and discharged
union activists because of their union activities, and
disparately applied disciplinary procedures to employ-
ees in the department where the union organizing cam-
paign began.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Tricil Environmental Man-
agement, Inc., Millington, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
[Direction of Second Election omitted from publica-
tion.]
Melvin Ford, Esq., for the General Counsel.
Richard J. Morgan, Esq. and Richard D. Ries, Esq. (McNair
Law Firm, P.A.), of Columbia, South Carolina, for the Re-
spondent.
Hugh A. Jacks, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon an
original charge filed in Case 26–CA–13941 on July 13,
1990,1 (amended on October 1 and 5), an original charge
filed in Case 26–CA–14038 on August 30 (amended on Oc-
tober 1), and an original charge filed in Case 26–CA–14066
on September 17, the Regional Director for Region 26 of the
National Labor Relations Board issued a complaint on Octo-
ber 10 which consolidated the above unfair labor cases for
trial and alleged that Laidlaw Environmental Services, Inc.
and Tricil Environmental Management, Inc., co-owners, had
engaged in conduct which violated Section 8(a)(1) and (3) of
the National Labor relations Act. The named Respondents
filed timely answer denying they had engaged in the unfair
labor practices described in the complaint. Thereafter, on
February 13, 1991, Case 26–RC–7290 was consolidated with
the unfair labor practice cases for trial thereby placing Peti-
tioner’s Objections 1–4, 6, and 11 before me for resolution.
The cases were heard at Memphis, Tennessee, on various
dates during the period February 19 through March 20, 1991.
At the outset of the hearing, General Counsel amended the
complaint by deleting Laidlaw Environmental Services, Inc.
as a named respondent and removing that entity’s name from
the case caption. Additionally, General Counsel amended
paragraph 13 of the complaint by designating the original
paragraph to be paragraph 13a, and by adding paragraph 13b,
which alleged, in substance, that Respondent, through Chris
Harpell, unlawfully threatened employees with plant closure
on May 22 and 25, 1990, if they selected the Union as their
bargaining agent.
On the entire record, including careful consideration of
posthearing briefs filed by the parties, and from my observa-
tion of the demeanor of the witnesses who appeared to give
testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Tricil Environmental Management, Inc., a Tennessee cor-
poration (the Respondent), maintains an office and place of
business in Millington, Tennessee, where it processes
(blends) fuel and consolidates materials (used chemicals) for
either sale as fuel to cement kilns or for landfill. It annually
sells goods and materials valued in excess of $50,000 to cus-
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 At the time of the hearing, Whaley, Tyson, Timmons, and
Harpell were no longer employed by Respondent. Gray was em-
ployed when the hearing commenced in February 1991, but was em-
ployed elsewhere when he was recalled to give testimony during the
presentation of Respondent’s case in March 1991.
3 General Counsel’s posttrial motion which requests that I admit
report on challenges and objections issued by the Regional Director
in the representation case on October 16, 1990, and the Board’s De-
cision and Direction, which issued on February 6, 1991, in evidence
is hereby granted. The former document is designated ALJ Exh. 1;
the latter ALJ Exh. 2.
tomers located outside the State of Tennessee, and it annu-
ally purchases goods and materials valued in excess of
$50,000 directly from points located outside the State of
Tennessee. It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Oil, Chemical and Atomic
Workers International Union, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Complaint Allegations
Summarized, the denied allegations of the complaint al-
lege, in substance, that Respondent violated Section 8(a)(1)
of the Act during the period extending from May 22 to Au-
gust 17, 1990, by: unlawfully interrogating employees re-
garding their union activities and sentiments; threatening em-
ployees with loss of benefits, more stringent enforcement of
rules, and plant closure if they select the Union as their bar-
gaining representative; creating the impression that the union
activities of employees were under surveillance; and unlaw-
fully soliciting employee grievances. Additionally, the com-
plaint alleges that Respondent violated Section 8(a)(3) of the
Act by: disciplining named employees on various dates dur-
ing the period May 29 through August 28, 1990; terminating
employees Leon Smith and Donald Whitney on July 10,
1990; and by terminating employees Antonio D. Hill, Anto-
nio J. Hill, Cellus Perry, Stanley Hill, Curtis Wright, and
Charles Morse on September 13, 1990.
B. Background
The Millington, Tennessee facility involved in this pro-
ceeding has experienced several changes in ownership in re-
cent years. Prior to 1989, the facility was owned by Earth
Industrial Waste Management. In September 1989, Tricil
Waste Management, Inc., a wholly owned subsidiary of
Tricil, Inc., purchased the property. Thereafter, in January
1990, Laidlaw Investments, a wholly owned subsidiary of
Laidlaw, Inc., purchased the stock of Tricil, Inc.
During relevant periods, Respondent employed approxi-
mately 100 employees at the Millington facility. Those em-
ployees engaged in the blending of various waste products
with fuel which was then sold as fuel for cement kilns or
for landfill. While Earth Industrial operated the facility, it
handled about 600 containers per week. During the summer
of 1990, the volume increased to approximately 1500 drums
per week.
At various times during calendar year 1990, John Peeples,
Lynn Shreve, Carter Gray, and Charlie Bodanza had overall
management responsibility at the facility. In addition to
them, other supervisors who satisfied the criteria of Section
2(11) of the Act were: Willie Thomas, process manager;
Kevin Whaley, inventory manager (until June 2, 1990); Don
Tyson, controller; Billy Arrington, Rick Timmons, and Chris
Harpell, inventory foremen; and Carter Grey, manager of
safety and regulatory compliance.2
A substantial number of employees were hired at the facil-
ity when the volume of business increased in 1990. Alleged
discriminatees hired in January 1990 included Leon Smith,
Cellus Perry, Antonio D. Hill, and Curtis Wright. All new
hires attended a 3-day orientation period which included in-
struction regarding Respondent’s operations, and instruction
on Respondent’s policies and procedures, including attend-
ance and discipline. With respect to attendance, employees
were informed they were to notify their supervisor 15 min-
utes before their scheduled worktime if they were to be
tardy, and they were requested to give 24 hours advance no-
tice if they intended to be absent from work. With respect
to discipline, the record reveals the progressive system en-
tailed a verbal warning, a written warning, a 3-day suspen-
sion, and discharge.
C. The Union Campaign and the Board-Conducted
Election
Employee Leon Smith indicated during his testimony that
he and other employees discussed the possibility of obtaining
union representation during April, and those discussions
caused him to contact Union President Jeff Woods on May
1. Thereafter, Smith was put in contact with an individual
named Arthur Maxwell, and plans for an organization drive
were formulated. Smith testified that they started setting up
meetings about the middle of May with the aim of following
procedures which would enable the Union to file a petition
to organize the plant. Union meetings were scheduled to be
held on Saturdays, and Smith testified he secured a union
hall where the meetings could be held, and he prepared
handwritten literature to inform employees of meeting dates
and everything they were doing in organizing the Union.
While Smith and several other employees testified they
placed union-related literature on the employee bulletin board
at the plant, and illustrative examples of the material posted
were placed in the record as General Counsel’s Exhibits 7(a)
and (b), the documents are undated and the record fails to
reveal precisely when they were placed on the bulletin board.
The petition was filed in Case 26–RC–7290 on June 25.3
The unit sought was:
All production and maintenance employees, including
process operators, warehousemen, laboratory techni-
cians, material inspectors, maintenance technicians, and
truck drivers employed at the Employer’s facility at
Millington, Tennessee, excluding all office clerical em-
ployees, section leaders, professional employees, guards
and supervisors as defined in the Act.
671TRICIL ENVIRONMENTAL MANAGEMENT
4 At the conclusion of his case-in-chief, General Counsel was per-
mitted to delete paragraphs 7(e), 10, 11, and that portion of para-
graph 7(d) dealing with the allegation of surveillance from the com-
plaint. 5 The poster was placed in the record as R. Exh. 39.
An election was conducted at the facility pursuant to a Stipu-
lated Election Agreement on August 10. Approximately 62
employees were eligible to vote; 27 cast votes for Petitioner;
28 cast votes against Petitioner; and 7 challenged ballots
were cast.
The Union filed objections to the conduct of the election
and on October 16 the Regional Director for Region 26
issued Report on Challenges and Objections in Case 26–RC–
7290. With respect to the challenges, he recommended that
challenge of the ballots of four employees (Ninette Parrish,
Karen Ray, Lisa Kern, and Dawn Lowery) he overruled; that
the challenge of the ballot of employee Pipkin he sustained;
and that the ballots of John Washburn and Leon Smith he
decided on the basis of testimony in event they remained de-
terminative after the ballots of the four above-named employ-
ees were opened and counted. With respect to the objections,
the Regional Director recommended that Objections 5–7 and
9–10 be overruled, and that Objections 1–4, 6, and 11 be
consolidated for hearing with Cases 26–CA–13941 and 26–
CA–14038. By Decision and Direction dated February 6,
1991, the Board adopted the Regional Director’s findings and
recommendations.
The objections before me for resolution are, with excep-
tion of Objection 6, coextensive with allegations set forth in
the complaint. Thus, Objection 1 is coextensive with para-
graphs 15 and 16 of the complaint; Objection 2 is coexten-
sive with paragraphs 14 and 16 (period June 25–August 10
only); Objection 3 is coextensive with paragraphs 7a, b and
c; Objection 4 is coextensive with paragraphs 9 and 13; and
Objection 11 is coextensive with paragraph 8. Paragraph 6
is as follows:
That immediately prior to said election the Em-
ployer, through its agents, officers and representatives
engaged in unfair labor practices by the act of holding
‘‘impromptu captive audience’’ meetings within 24
hours of conduct of ballot, which conduct interfered
with and restrained the employees in their free choice
of a bargaining representative.
D. The Alleged 8(a)(1) Violations
The complaint alleges, and General Counsel contends, that
Respondent engaged in conduct which violated Section
8(a)(1) during the course of the organization campaign. Four
Respondent supervisors, who are admittedly statutory super-
visors (Willie Thomas, Charlie Bodanza, Don Tyson, and
Rick Timmons) are alleged to have engaged in unlawful con-
duct. The allegations are discussed individually below.4
Alleged Unlawful Conduct by Willie Thomas
1. Paragraph 7(a) of the complaint alleges, in substance,
that Thomas threatened employees with plant closure if they
selected the Union as their bargaining representative on July
10.
General Counsel sought to prove the allegation through
testimony given by employee Larry Porterfield. Porterfield
testified that, about the second week in July, he and Willie
Hunt, Gregory Allen, and Willie Murrell were conversing
with Supervisor Willie Thomas about high school and after
he and Thomas both indicated they had gone to Manassas
High School, Thomas asked him ‘‘did I know what happened
to the plants around Manassas.’’ The employee claims he re-
plied they probably moved away to a town that paid less
money and Thomas said ‘‘No, they closed because of union
activity . . . that’s probably gonna happen here.’’ Porterfield
claims Thomas then asked him if he was scared for his job,
stating he was scared for his. The employee claims the con-
versation ended with him stating ‘‘No, I’m not scared.’’
While employee Willie Murrell appeared as a witness and
was asked to describe his union-related conversation with
management during the organization campaign, he made no
mention of a breakroom conversation with Supervisor Thom-
as.
Thomas indicated during his testimony that he made com-
ments about plant closings on one occasion while he was in
the breakroom, but he claimed his conversation was with one
of his supervisors rather than with any employee. He testified
that a poster had been placed on the bulletin board which de-
picted a Greenpeace person standing in front of a closed
plant and he commented to the unspecified supervisor that
places like Firestone and International Harvester had unions
and they did not do anything to help the employees keep
their jobs because they could not remain competitive and that
the Greenpeace guy depicted in the posted was fulfilling his
mission to close down the plant.5
Respondent urges me to credit Thomas rather than
Porterfield, in part because employee Murrell failed to cor-
roborate Porterfield’s testimony. Noting that Thomas did not
refute Porterfield’s claim that they both attended Manassas
High School, and the further fact that Thomas did not seek
to directly refute Porterfield’s testimony, I am not inclined
to credit Thomas as urged. I credit Porterfield who appeared
to be seeking to state his best recollection of a conversation
he had with Thomas in the breakroom. I find that Respond-
ent, through Thomas, violated Section 8(a)(1) in mid-July by
threatening employees with plant closure if they selected the
Union as their bargaining agent.
2. Paragraph 7(b) of the complaint alleges that on July 24,
in separate incidents, Willie Thomas threatened employees
with plant closure.
General Counsel sought to prove the allegation through
testimony given by employees Willie Murrell and A. J. (Lit-
tle Antonio) Hill.
The record reveals that Greenpeace, a conservation group,
demonstrated outside of Respondent’s facility on July 24.
Using sound amplifiers, the Greenpeace group claimed that
the facility was improperly licensed and should be shut
down. A union representative expressed the Union’s concur-
rence with Greenpeace’s objectives.
Murrell testified that, when he entered Respondent’s park-
ing lot shortly before his 2 p.m. reporting time, on the day
Greenpeace demonstrated at the facility (July 24), Willie
Thomas walked up to him and the following conversation
occurred:
He asked me, when I came up, he asked me how am
I doing. I said ‘‘okay.’’ He asked me how did I feel
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about the union, and he asked me did I know what hap-
pened to International Harvester and Firestone, and I
told him, ‘‘No.’’ Then, he went on to say they closed,
and if I voted for the Union, Tricil would close, if the
Union got in.
Murrell stated the conversation lasted 2–3 minutes and he
testified the Greenpeace group was already at the site at the
time.
Hill testified that, on the day Greenpeace picketed, Thom-
as came to the dock and told him the Company would close
if the Union came in. The employee could not recall any-
thing else being said.
Thomas generally denied that he told any employee Re-
spondent would close if employees selected the Union to rep-
resent them. With specific regard to July 24, Greenpeace
day, he recalled that after hearing a Greenpeace spokesman
state Greenpeace desired to cause the facility to be closed,
he asked employee Jarvis Hudson in the decontamination
trailer if he had heard what the Greenpeace guy said; that he
said he wants to shut the place down. Thomas claims the en-
tire second shift was present at the time. He testified he
never spoke with Murrell individually about International
Harvester of Firestone. Thomas did not specifically deny
conversing with Hill at the dock on July 24.
Respondent accurately observes that all witnesses except
Murrell indicated the Greenpeace group arrived at the site at
4 or 5 p.m. on July 24. As Murrell testified that group was
at the site prior to 2 p.m., it urges me to credit Thomas rath-
er than Murrell. While it may well be that Murrell incor-
rectly recalled that the Greenpeace group was at the facility
prior to 2 p.m., Thomas simply denied indirectly that he en-
gaged in conversation with Murrell on July 24. The em-
ployee described the conversation convincingly and I credit
him. Moreover, I credit Hill as Thomas failed to deny he
conversed with Hill at the dock on July 24.
Having credited the employees, I find that Respondent,
through Thomas, violated Section 8(a)(1) on July 24 by
threatening plant closure if employees selected the Union as
their bargaining representative.
3. Paragraph 7(c) of the complaint alleges that Willie
Thomas threatened employees with plant closure if they se-
lected the Union as their bargaining agent on August 6.
General Counsel offered no testimony to prove the allega-
tion. Accordingly, I recommend that paragraph 7(c) of the
complaint be dismissed.
4. Paragraph 7(d) of the complaint alleges that Willie
Thomas interrogated an employee about his union activities,
sympathies and desires in late July or early August. General
Counsel sought to prove the allegation through the testimony
of employee A. J. (Little Antonio) Hill.
Hill testified that when Willie Thomas and Don Tyson,
Respondent’s Controller, were conducting one-on-one meet-
ings with employees to discuss their entitlement to vacation
pay, he met with them. He testified that after Tyson informed
him of the vacation pay he was entitled to receive, Thomas
asked him how he was going to vote for the Union. The em-
ployee claims he responded by asking if he had to vote for
a union; if he had to be a part of it. He claimed he recalled
nothing further.
Tyson, who had been terminated by Respondent prior to
the time he appeared to testify, denied that Hill was asked
how he would vote in the election when he and Thomas dis-
cussed vacation pay with him. Similarly, Thomas denied that
he asked the employee how he would vote in the election.
Tyson was an impressive witness and he appeared to have
no motive for slanting his testimony. Noting that A. J. Hill
was the only employee who claimed he was interrogated
about his union sentiments during the insurance one-on-one
meetings, and the fact that Tyson and Thomas carefully indi-
cated while discussing vacation pay with employees that the
decision to pay them the vacation moneys Tricil owed them
had nothing to do with the union situation, I credit Tyson’s
and Thomas’ claim that Hill was not asked how he would
vote during the incident under discussion. Accordingly, I rec-
ommend that paragraph 7(d) of the complaint be dismissed.
5. Paragraphs 8 and 13(a) of the complaint allege that
Charlie Bodanza unlawfully solicited employee complaints
and grievances and promised employees increased benefits
and improved conditions of employment on or about the sec-
ond week of July. General Counsel caused employees Anto-
nio D. Hill, Larry Porterfield, and Curtis Wright to describe
conversations they had with Bodanza in mid-July.
Hill testified that, when he met with Bodanza in the
latter’s office in July, Bodanza asked him what he disliked
about the Company. Hill replied that he thought a lot of
things were unsafe and unfair. He recalled that Bodanza stat-
ed he wanted the employees to give him a chance to prove
himself, and that things were going to change.
Porterfield testified that when he met individually with
Bodanza in July, that Bodanza asked him his name, and told
him his. He recalled Bodanza then stated it was just a meet-
ing to get to know employees, and to let them get to know
him. Porterfield testified Bodanza then asked what he could
do to make the Company better, and he replied give more
money. The employee indicated Bodanza then asked what he
could do to improve the Company, and that, after he
(Porterfield) told him he did not know much about that,
Bodanza concluded the meeting by saying he would probably
be meeting more with employees.
According to Porterfield, Bodanza met with second shift
employees in mid-July. He testified that during the meeting,
Bodanza related a personal experience wherein he had pre-
viously been employed as a press operator at a printing com-
pany. According to Porterfield, Bodanza told them the em-
ployees at the Company obtained union representation; that
negotiations failed to produce an agreement; that the employ-
ees went on strike for about 4 months; that they then re-
sumed negotiations; that they struck another 6 months; that
negotiations were unsuccessful; that, when they eventually
went back to work, they took less money than they bargained
for at first; and that the plant closed after a year or so later
because other businesses were getting their business.
Porterfield testified that Bodanza ended the story by saying
that’s what happens when you have a union; that we don’t
need one, and we ain’t gonna have one.
Curtis Wright claimed during his testimony that he had
two one-on-one conversations with Bodanza in July, and that
he attended one group meeting at which Bodanza spoke.
At the first one-on-one meeting, Wright testified that after
Bodanza told him he would like to be given a chance to turn
the Company around, he said, if given a chance, we would
be given better conditions and more money—we would even-
673TRICIL ENVIRONMENTAL MANAGEMENT
tually be reaping the benefits of all the money that was being
saved.
Wright testified he next had a one-on-one conversation
with Bodanza about a week or two after the first meeting.
He testified that after Bodanza stressed that he would be on
the opposite side of the table if the Union was voted in,
Bodanza again stressed that he wanted a chance to turn the
Company around, indicating that better money and working
conditions would eventually come.
The third meeting, attended by third shift employees at the
beginning of the shift on Greenpeace day (July 24), was held
in the breakroom. Wright testified Bodanza brought a piece
of paper to the meeting which listed money saving improve-
ments he had made at the facility. The employee claimed
that after referring to the money saved as the ‘‘bottom line,’’
and commenting that money would be used to make more
improvements and money which would eventually fall down
to employees, Bodanza tore the paper up stating that if the
Union is voted in, we can forget this.
Prior to causing Bodanza to describe his one-on-one and
group meetings with Respondent’s employees, Respondent’s
counsel adduced considerable accrediting testimony though
Bodanza. Thus, this management official, who reported to
the Millington facility on July 11, testified that he gained
considerable experience as a manager by working for Litton
Industries for 26 years. He indicated that during 20 of those
years he served in a supervisory or management position,
and that at regular intervals he attended programs which em-
phasized communication, labor and employment training.
While with Litton, he claimed they stayed union free at a
South Carolina location for 17 years by practicing open door
communication with employees and by refraining from
threatening, interrogating, promising, or spying on people.
Bodanza testified that when he came to the Millington fa-
cility in July 1990, his assignment was to work with the
operational people to turn the operation around. He recounted
the various cost cutting measures he took, and indicated that
he held one-on-one and group meetings with employees to
tell them what he had done, and to get acquainted with them
and let them get to know him.
Bodanza’s recollection was that he first met with a group
of employees on July 24, the day Greenpeace demonstrated.
He testified the message he imparted on that occasion was
that no one was going to close them down; that they all had
a job to do; they were going to do it together; and there was
no reason they should be closed down.
According to Bodanza, during his second meeting with
employees, he described a personal experience he had gone
through while he was a nonsupervisory employee at a South
Carolina Litton facility. His description of the experience
tracked the account given by employee Porterfield as set
forth above. Bodanza added that he prefaced his remarks
with a statement that what he was going to relate would not
necessarily occur at the Millington facility, and he indicated
that during the meeting he informed employees what they
were doing, how they were doing it, and informed them they
had to pull together to stem the decline of business and help
make the profits they needed to make.
Bodanza testified his final meeting(s) with employee
groups occurred shortly before the election. He indicated he
once again discussed the bottom line—where they were at
the time, and the progress they had made—with employees.
He indicated he referred to the coming election at which they
would vote whether they were going with the Company or
the Union, and he told them he would love to continue to
work with them as a team member to get things done rather
than sit on the opposite side of the table and negotiate their
contract.
When asked if he told the people during any meetings that
they would get better benefits and wages if the Union did
not get in, Bodanza answered: ‘‘Absolutely not.’’ Similarly,
he testified he did not tell employees they would get better
working conditions if the Union did not get in.
General Counsel contends in his brief that Respondent,
through Bodanza’s conversations with individuals and groups
of employees, violated Section 8(a)(1) as he: stated his oppo-
sition to the Union; asked employees how they felt about the
Company and asked what he could do to improve it; and
asked the employees to give him 6 months to improve bene-
fits, conditions, and money. As noted above, the three wit-
nesses who described their one-on-one or group meetings
with Bodanza claim, variously, that they told Bodanza they
would like to see improvement in working conditions, safety,
and wages. The record fails to reveal that Bodanza expressly
promised to grant any wage increase, any specific safety im-
provement, or any specific improvement in employee work-
ing conditions. Instead, his technique during the one-on-ones
and during the group meetings was to emphasize corrective
steps he had taken to make Respondent more profitable, and
to encourage employees to give him additional ideas which
would lead to further improvement of the Company. Notice-
ably, the record fails to reveal that Bodanza indicated at any
time that employees would be rewarded if they refused to
support the Union. Instead, he indicated their lot would im-
prove if they cooperated with him and improved Respond-
ent’s operations.
In sum, I am convinced that Hill, Porterfield, and Wright
recited during their testimony conclusions they reached after
meeting with Bodanza. I am not convinced by their testi-
mony that Bodanza expressly or impliedly promised them a
wage increase, better benefits or improved working condi-
tions if they abandoned their support of the Union. I credit
Bodanza’s denial that he engaged in the conduct attributed
to him. Accordingly, I recommend that paragraphs 8 and
13(a) of the complaint be dismissed.
6. Paragraph 9 of the complaint alleges that on or about
August 3 Willie Thomas and Don Tyson threatened employ-
ees with loss of benefits if they selected the Union as their
bargaining representative. General Counsel sought to prove
the allegation through testimony given by Willie Murrell.
Murrell testified that, when he, Don Tyson, and Willie
Thomas were in Thomas’ office a week before the election,
Tyson told him he wanted him to vote ‘‘no’’ in the election,
and that if the union came in: ‘‘I would have to pay for—
I might lose my insurance.’’ During cross-examination,
Murrell agreed he was told during the meeting under discus-
sion that a contract would have to be negotiated if the Union
came in; that benefits could go up and they could go down.
He insisted, however, they told him that he would lose some
benefits, and that he would have to pay for some of them.
The record reveals that Laidlaw and Tricil’s vacation plans
differed, and in early August Tricil employees who had
earned vacation benefits in 1989, but had not received them,
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were paid for their accrued vacation to enable Laidlaw to in-
stitute its vacation plan.
Tyson, corroborated by Thomas, testified that all employ-
ees who were due vacation pay were called to the office
where he and Thomas discussed their vacation pay entitle-
ment. During the individual sessions, each employee was
given a copy of a so-called affidavit which was placed in the
record as Respondent’s Exhibit 40. The affidavit contained
Union Representative Arthur Maxwell’s name, and set forth
some nine items the affiant would guarantee if the Union
won representation rights, i.e., automatic wage and benefit
increases, a pledge that there would never be a strike, etc.
Tyson testified the affidavit provoked some employees to ask
questions and that when such questions involved an inquiry
about pay or benefits in event of a union victory, he ex-
plained to employees that a contract would have to be nego-
tiated and everything was negotiable; that some benefits may
go up, and some might go down. He forcefully denied that
he told Murrell or any other employee that they would lose
insurance or other benefits, or that they would have to pay
for their own insurance if the Union was voted in.
In sum, Murrell appeared somewhat confused when he tes-
tified about the meeting under discussion. On the other hand,
Tyson, who was no longer employed by Respondent at the
time of the hearing impressed me as being an impartial wit-
ness who testified in a clear, convincing manner. I credit his
claim that he merely described the negotiation process to
Murrell, rather than informing the employee he would lose
insurance or other benefits if employees selected the Union
as their bargaining agent. Accordingly, I recommend that
paragraph 9 of the complaint be dismissed.
7. Paragraph 12 of the complaint alleges that on August
9 Willie Thomas threatened employees with plant closure if
they selected the Union as their bargaining agent. General
Counsel sought to prove the allegation through the testimony
of William Murrell.
Murrell testified that he went into Willie Thomas’ office
the day before the election, and that Thomas stated in the
presence of Percy Woodears, Patrick Miller, and himself that
he did not want us to vote for the Union. After the employee
stated that was all he could recall being said, General Coun-
sel asked: ‘‘Did Mr. Thomas make any comments regarding
what might happen if employees voted for the Union?’’ After
asking counsel to repeat the question, Murrell stated: ‘‘Yes,
he said the plant would close if the union came in.’’
With respect to the August 9 incident, Thomas indicated
that, at the start of their shift, employees Murrell, Miller and
Woodears appeared unsolicited at his office and they stated
to him: ‘‘This thing is really going crazy, I can’t even rest
at home, they’re coming over to my house at night, they’re
calling me at home. What can I do?’’ He claims he told the
employees to hang in there; this thing will be over tomorrow.
He denied he said anything about plant closure at the meet-
ing.
Thomas was the more impressive witness and I credit his
version of the above-described conversation rather than the
abbreviated version given by Murrell after the employee had
been led by General Counsel. I recommend that paragraph 12
of the complaint be dismissed.
8. Paragraph 13(b) of the complaint alleges that on or
about May 22 or 25, Chris Harpell threatened employees
with plant closure if the union was selected as their bargain-
ing agent. General Counsel sought to prove the allegation
through testimony given by Leon Smith and Cellus Perry.
Smith testified that on May 22, while he, Clifford Roy and
Cellus Perry were working on the dock, their foreman, Chris
Harpell, told them the plant would close if the Union got in,
and that if the Union did get in the Company would listen
to a Union, but they would not have to deal with the Union.
Perry testified that around the May 25, as he was walking
from the pad to go to a meeting the Company had called,
Harpell came out of the operations trailer and told him the
guys should wait a couple of months before deciding to get
a union ‘‘because if y’all get a union, we’ll probably close
down or move.’’
While Harpell was called as a witness by General Counsel,
he was asked no questions about the alleged plant closure
threats attributed to him by employees Smith and Perry. Con-
sequently, the above-described testimony given by the em-
ployees stand unrefuted. In the circumstances described, I
find that Respondent, through Foreman Harpell, threatened
employees with plant closure if they selected the Union As
their bargaining agent on May 22 and May 25, 1990.
E. The Alleged 8(a)(3) Violations
1. Positions of the parties
When the union organization campaign was instituted at
Respondent, alleged discriminatees Leon Smith, Cellus Perry,
Donald Whitney, Antonio D. Hill, Curtis Wright, and Anto-
nio J. Hill were employed in Respondent’s inventory depart-
ment. General Counsel contends the union activities of the
named alleged discriminatees caused Respondent to more
strictly apply its disciplinary policies in the Inventory De-
partment after it learned its employees were engaged in
union activities. Thus, when alleged discriminatees were
given verbal warnings, written warnings, 3-day suspensions,
and/or were terminated on various dates extending from May
to September 13, 1990, General Counsel asserts the dis-
cipline administered was unlawful as it resulted from Re-
spondent’s decision to ‘‘crack-down’’ on employees in the
inventory department because employees were seeking union
representation.
Respondent contends the record reveals that a serious ab-
sentee problem developed in the Inventory Department prior
to the time that it became aware that employees were en-
gaged in union activities. It further contends that the alleged
discriminatees were disciplined as they were engaged in con-
duct which they knew, or should have known, would lead to
the discipline imposed upon them. Finally, it contends that
alleged discriminatees Leon Smith and Donald Whitney were
terminated pursuant to its progressive discipline program, and
that the alleged discriminatees terminated on September 13,
1990, were terminated pursuant to an economically motivated
consolidation and reorganization plan which, inter alia, re-
sulted in the separation of employees who had the poorest
absentee, lateness, and disciplinary records.
2. Protected activities of alleged discriminatees and
extent of company knowledge
Leon Smith, employed on the second shift in Respondent’s
Inventory Department, indicated that, after he and other em-
ployees discussed the desirability of unionizing in April, he
contacted Union President Jeff Woods on May 1, 1990, to
675TRICIL ENVIRONMENTAL MANAGEMENT
6 Grey was the manager of the Millington facility for 2–3 weeks
in July 1990. During that period, he terminated Leon Smith and
Donald Whitney and he imposed a 3-day suspension on alleged
discriminatee Cellus Perry.
indicate the employee’s sentiments. Woods put Smith in con-
tact with Union Representative Arthur Maxwell. Thereafter,
Maxwell and Smith commenced an effort to organize Re-
spondent’s employees. Smith testified that his efforts in-
cluded: setting up meetings; securing a union hall for meet-
ings; preparing handwritten prounion literature, which he
posted on the employee bulletin board at the facility; and
keeping employees advised on what he and others were
doing. Smith testified without contradiction that, during the
organization drive, he received complaints from employees
working on all shifts, and he took the problems up with fore-
men, supervisors, and the plant manager (including Carter
Grey).
The record reveals that Smith openly supported the Union
and Respondent’s management was fully aware of his union
advocacy. As found, supra, the employee testified, without
contradiction, that his immediate Supervisor Harpell, told
him and employees Clifford Roy and Cellus Perry on May
22 that he felt the plant would close if the Union got in.
Smith claimed, without contradiction that a second foreman,
Billy Arrington, told him and Perry around May 31, that they
did not need a union; they needed to give the Company a
chance to make things right. Smith testified he and Perry re-
plied by telling Arrington in unison ‘‘We have to do what
we have to do.’’ In addition to Harpell and Arrington, Smith
indicated he had union-related discussions with Inventory
Manager Kevin Whaley, Plant Manager Lynn Shreve, and
Corporate Representative Richard Familla during the month
of June. Thus, he testified: Whaley told him around June 1
that he respected him being a spokesman for the Union; that
he later confronted Whaley about making copies of prounion
literature; that Shreve told him he respected him for organiz-
ing; and that, on June 14, Familla told him he respected him
for his activities, but if he should cross the line, he would
get rid of him.
Employee Cellus Perry also worked on the second shift in
the inventory department. Perry testified that he assisted in
the union organization drive by passing out and posting
prounion fliers, distributing literature which related to a bar-
gaining agreement the Union had with another employer, and
keeping employees advised as to union meetings.
Perry’s unrebutted testimony reveals that Foremen Harpell
and Arrington were aware of his union sentiments. Thus, he
corroborated Smith’s claim that Arrington told them around
the end of May that they did not need a union; that they
needed to give the Company a chance, and he corroborated
Smith’s version of their plant closure prediction made by
Harpell, but he placed the date of the conversation as May
25 rather than May 22.
Employees Antonio J. Hill, Antonio D. Hill, Stanley Hill,
and Curtis Wright all testified that they attended union meet-
ings during the organization campaign. Wright and Stanley
Hill indicated they wore union buttons and/or union T-shirts
to work. Antonio J. Hill testified he rode with and was the
constant companion of Smith and Perry; and Antonio D. Hill
testified, without contradiction, that he posted union bolster
signs in the facilities breakroom. As the employees engaged
in union activities openly and/or associated openly with
known union advocates, I infer that Respondent management
was aware of their prounion sentiments.
Alleged discriminatee Donald Whitney did not attend the
hearing, and the record fails to reveal the extent, if any, of
his participation in union or other protected activities. It fol-
lows that Respondent has not been shown to have known or
suspected that such employee engaged in union or other pro-
tected activities. Employee Charles Morse testified he at-
tended several union meetings, but the record fails to reveal
that Respondent became aware of his limited participation in
union activities.
3. Respondent’s absence and tardiness policies and its
progressive disciplinary system
Carter Grey, then safety and regulation manager at Re-
spondent,6 and those alleged discriminatees who appeared at
the hearing to give testimony described Respondent’s ab-
sence and tardiness policies as well as its progressive dis-
cipline system. Their collective testimony reveals that the ab-
sentee policy was one wherein an employer was expected to
give notice in advance of his scheduled worktime of ex-
pected absence or tardiness. Grey indicated 24-hour notice of
anticipated absence was requested and 15–30 minutes notice
before scheduled shift start was requested if an employee
was to be late. In event an employee was absent from work
or was late in arriving at work, his immediate supervisor pre-
pared a Work Missed Report (WMR). The supervisor indi-
cated on the WMR whether the absence or tardy was ex-
cused or unexcused. Grey indicated the supervisors consid-
ered all the circumstances when making their subjective ex-
cused or unexcused decision. Once it was decided that an ab-
sence or tardy was unexcused, the employee was subject to
discipline. The progressive system entailed: oral warning,
written warning, 3-day suspension, and discharge. While ex-
cused absences or tardies did not normally subject an em-
ployee to discipline, excesses would.
4. The discipline of alleged discriminatees during
period May 29–August 28, 1990
Paragraph 14 of the complaint read in conjunction with
paragraphs 16 and 18, alleges that Respondent imposed indi-
cated discipline on named employees on the dates indicated
because they joined or supported the Union, or engaged in
other protected activity:
Leon Smith May 29, 1990, verbal warning
June 4, 1990, verbal warning
Cellus Perry June 4, 1990, verbal warning
June 25, 1990, written
warning
July 9, 1990, three-day
suspension
Donald Whitney June 22, 1990, written
warning, three-day
suspension
Antonio D. Hill August 28, 1990, written
warning
Curtis Wright June 13, 1990, written
warning
June 25, 1990, three-day
suspension
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 General Counsel offered documentary evidence which reveals the
absentee and tardy policies were not as strenuously enforced in other
departments. As the record fails to reveal that organizational activity
occurred only in the inventory department, such evidence does not
support General Counsel’s ‘‘crack down’’ theory.
Antonio J. Hill June 22, 1990, three-day
suspension
As noted, supra, General Counsel contends the above-de-
scribed discipline was inflicted upon the employees named
because Respondent decided, after learning that its employ-
ees were engaged in union activity, to more strictly enforce
its absence and tardiness policies. General Counsel sought to
prove the allegation in main, through the testimony of Cris
Harpell and Rick Timmons, former Respondent supervisors
in Respondent’s inventory department, who were working
elsewhere at the time of the hearing.
Cris Harpell was employed by Respondent during the fall
of 1989. In January 1990, he was promoted to a foreman po-
sition in the inventory department, on the second shift. He
testified that when he became a foreman, employee absences
from work or tardiness were recorded on a document entitled
Work Missed Report. Harpell indicated he checked the ap-
propriate box indicating whether the absence and/or tardy
was excused or unexcused, and indicated on the form why
he had classified the absence or tardy as excused or unex-
cused. He turned completed Work Missed Reports into his
immediate supervisor, Whaley. Harpell testified that during
the early part of his tenure in the foreman position, he did
not strictly enforce Respondent’s rules and he refrained, on
occasion, from writing up employees for being late without
calling in, not wearing safety equipment, and absences. He
testified that during April and early May he was experiencing
attendance problems with employees and Whaley instructed
him to more fully document employee rule violations by pre-
paring, in addition, to a Work Missed Report, a writeup
which fully explained the circumstances surrounding an ab-
sence, a tardy, or other violation of Respondent’s rules.
Harpell specifically indicated he was told to prepare detailed
writeups as well as Work Missed Reports prior to the time
that he learned Respondent’s employees were attempting to
get a union to represent them.
Rick Timmons was employed at Respondent’s facility for
about 4-1/2 years. When Tricil purchased the facility in late
1989, he was a warehouse foreman. He was promoted to in-
ventory supervisor when Laidlaw took over around April
1990. Timmons indicated that, when the facility was owned
by Earth Industrial, employees’ absences and failures to re-
port for work on time were not dealt with strictly unless they
occurred a lot. He indicated that, after Tricil acquired the fa-
cility, they started giving verbal warnings, written warnings,
and stuff like that. According to Timmons, his Supervisor
Whaley, told him at some point in May before the Company
had any knowledge of union activity, that in addition to com-
pleting Work Missed Reports when employees were absent,
tardy, or violated company rules, he was to prepare a writeup
more fully explaining the circumstances of the work missed
or rules violation. According to Timmons, frequent absences
by employee Donald Whitney, which had resulted in em-
ployee complaints, caused Whaley to tell him to be more
strict with discipline.
Kevin Whaley, who, like Harpell and Timmons, was no
longer employed by Respondent at the time of the hearing,
held the title of inventory manager at Respondent from early
1988 until July 2, 1990. He indicated all employee absences
and tardies were recorded, whether they were excused or un-
excused, on Work Missed Reports only until April 1990. He
testified he decided in early April that the Work Missed Re-
ports were not effective as employees would just throw them
in the trash when given their copies. To cure the problem,
he indicated he started to prepare writeups which expanded
on the incidents noted in the Work Missed Reports when ab-
sences or tardies were deemed by him and the employee’s
supervisor to be unexcused. The writeups, as well as the
Work Missed Reports, were shown to employees who had
experienced unexcused absences and tardies, and such docu-
ments indicated the discipline being invoked, i.e., verbal
warning for the first offense, written warning for the second
offense, 3-day suspension for the third offense, and discharge
for the fourth offense. Whaley indicated his foremen contin-
ued to prepare Work Missed Reports, but they were busy and
he prepared most of the supplemental writeups. Whaley iden-
tified writeups involving safety violations by employees A.
J. Hill and Darrell Clark which were prepared on April 5,
1990, as examples of the type of writeup which he prepared
for inspection by employees and for inclusion in employees’
personnel files. (R. Exhs. 21(a) and (b) and 22(a) and (b).)
Similarly, he identified a writeup documenting a verbal
warning which was given to employee Curtis Wright for un-
excused absence on May 7, 1990, as the type of writeup he
prepared to document discipline imposed for absenteeism.
Whaley testified he decided to use detailed writeups in addi-
tion to Work Missed Reports before he learned employees
were engaged in union activity at the facility.
In support of Whaley’s claim that he was experiencing ab-
sentee problems in the inventory department during April
and May 1990, Respondent contends in its brief (pp. 37 and
38), that the Work Missed Reports and or writeups docu-
menting absence and tardiness from January 19 through Au-
gust 8, 1990, reveal there was 1 incident of absenteeism-
lateness in January; 3 incidents in February; 4 incidents in
March; 11 incidents in April; and 19 incidents in May. My
inspection of the exhibits referenced causes me to conclude
that the representations made in the brief are accurate.
Having carefully reviewed the testimony given by Harpell,
Timmons, and Whaley, and having considered the frequency
of employee absences and tardies in Respondent’s inventory
department during the first 5 months of 1990, I find, contrary
to General Counsel, that the testimony and evidence does not
reveal that Respondent decided to more strictly enforce its
rules and/or policies after learning its employees were en-
gaged in union organizational activity.7 Nevertheless, I re-
view below the circumstances surrounding the imposition of
discipline on the alleged discriminatees to permit resolution
of the issues raised.
Leon Smith
May 29, 1990 Verbal Warning
Smith did not report for work at Respondent on May 25,
1990. While the Work Missed Report prepared by Supervisor
Billy Arrington (R. Exh. 5) indicates the absence was unex-
cused because the employee failed to call the facility before
the start of his shift to report that he would be absent, Smith
677TRICIL ENVIRONMENTAL MANAGEMENT
testified he called the facility but did not get an answer.
Smith could not recall what time he called on May 25, but
claimed that when he reported for work on May 29, his next
scheduled workday, he informed Inventory Manager Whaley
he had attempted to call in, and he gave Arrington a doctor’s
report on the May 25 absence.
Whaley testified that Smith came to the facility early in
the day on May 25 to pick up his check, which was in
Whaley’s office. He claimed Smith took the check, shook his
hand, and stated: ‘‘I’ll see you after while, boss.’’ He
claimed Smith did not report for work on the second shift,
and did not call to report that he would be absent. Whaley
indicated that the incident caused him to give Smith a verbal
warning (R. Exh. 6).
Smith testified he could not recall whether he visited the
facility on May 25 to pick up his check. He indicate he had
arranged for direct deposit of his check around the time
under discussion and he may have received pay for that pe-
riod by direct deposit. He admitted during cross-examination
that his affidavits given during the investigation failed to in-
dicate he had called in to report his intended absence on May
25.
Carter Grey credibly testified, when called as a witness for
Respondent, that Respondent’s payroll records reveal that
Smith first received direct deposit of his paycheck on June
8, 1990. I credit Whaley’s claim that the employee picked
up his check in Whaley’s office on May 25 and told Whaley
at the time that he would see him later. As Smith was less
than forthright regarding the check matter, I credit Whaley’s
claim that the employee did not call in before the start of
his scheduled worktime to report that he would be absent. I
do not credit Smith’s claim that he called in at some unstated
time.
Contrary to General Counsel’s contention, I find that
Smith was issued a verbal warning on May 29 for cause,
rather than because he supported the Union or engaged in
other protected activity.
June 4, 1990 Written Warning
Smith did not report for work on Saturday, June 2, 1990,
which was a scheduled workday. He testified he told his
foreman, Arrington, the preceding Thursday that he would
not be at work on Saturday because he had an important
union meeting he had to go to. Smith admitted Arrington
told him he may be written up, and that Arrington asked if
he would not come in. Smith told the supervisor he just
could not come in because he had something else to do.
On June 4, 1990, Arrington gave Smith a written warning
noting that he had received a verbal warning for unexcused
absence on May 29, and had experienced a second unex-
cused absence on June 2.
I find that General Counsel has failed to prove that Re-
spondent unlawfully gave Smith a written warning on June
4, 1990.
Cellus Perry
Perry, who like Smith worked the second shift, did not re-
port for work on Saturday, June 2, 1990, a scheduled work-
day. The employee testified that when his supervisor,
Arrington, told him on the Thursday preceding June 2 that
Saturday would be a scheduled workday, he told Arrington
he was not going to be able to work that Saturday because
his wife’s mother was sick and they had made plans for him
to take her to see her mother that Saturday. Perry admits
Arrington told him, if he missed work that Saturday, he was
going to get an unexcused absence.
Arrington admitted during his testimony that Perry told
him on the Thursday preceding June 2 that he would not be
at work on June 2. He claimed the employee simply gave as
a reason that he had prior commitments.
On June 4, 1990, Perry was given a verbal warning be-
cause he did not work on June 2 (G.C. Exh. 8). The second
page of the warning indicates Perry’s explanation for his
prior commitments was that he had to take his wife to visit
her ill mother; that ‘‘We feel that other arrangements could
have been made and that Cellus could have attended work.’’
In sum, Perry was advised prior to June 2 that if he failed
to work that day he would be given an unexcused absence.
I conclude General Counsel has failed to prove that Respond-
ent unlawfully disciplined Perry for missing work on June 2.
June 25, 1990 Written Warning
The record reveals that Saturday, June 23, 1990, was a
scheduled workday at the facility. Perry did not work that
day because he ‘‘just wasn’t able to make it in.’’ On June
25, 1990, he was given a written warning which noted that
he had received a verbal warning for unexcused absence on
June 2, 1990; that he did not show up for work on June 23,
and he did not call in to inform anyone that he would be
absent (R. 36(t)). Perry refused to sign the written warning,
allegedly because he felt overtime was voluntary rather than
mandatory.
The above facts fail to reveal that Respondent unlawfully
disciplined Perry on June 25, 1990, by giving him a written
warning.
July 9, 1990 3-Day Suspension
Saturday, July 7, 1990, was a scheduled workday at the
facility. Perry credibly testified he informed his immediate
supervisor, Harpell, that he was not going to work that Satur-
day because his vacation was to start on Monday, July 9.
Harpell told the employee he should discuss the matter with
Willie Thomas. The employee testified that he phoned
Thomas at about 1:45 p.m. on July 7 to let him know that
he was not coming in, and that his vacation started Monday.
Thomas asked Perry if he could come and see him on Mon-
day. The employee agreed he could. Perry testified, without
contradiction, that Inventory Manager Whaley had told him
and some other employees, including Donald Whitney, at an
earlier time that they could elect to not work on Saturday if
their vacation was scheduled to begin the following Monday.
On Monday, July 9, Perry went to Thomas’ office. Thom-
as told him he had missed work on Saturday and he would
be starting a 3-day suspension on Tuesday because his vaca-
tion was canceled. The employee claims he asked who had
canceled his vacation, and Thomas stated he wanted to see
Billy Arrington about it, and would get back to him later.
Perry testified he had put in for his vacation in April. He
requested that it begin on July 4, but was told he could not
take it then, but he could the following week.
Perry testified that Thomas never got back to him about
the vacation change. When Whaley appeared as a witness, he
produced Perry’s vacation request document. It reveals his
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacation was scheduled to be taken during the period July 9–
13 (G.C. Exh. 30).
In sum, the record clearly reveals that Perry was known
by Respondent management to be a union adherent well in
advance of July 7, 1990; that Respondent harbored antiunion
animus and that fact had been communicated to Perry by,
inter alia, his Supervisor Harpell; that the employee had been
informed by Whaley, his departmental boss, that employees
could elect to not work on Saturday if their vacation started
on Monday; and that Perry was suspended for 3 days be-
cause he exercised what he felt was his right to refuse to
work on Saturday, July 7, because his vacation was sched-
uled to begin on Monday, July 9, 1990. By establishing the
facts set forth, I find General Counsel established that Per-
ry’s participation in union activities was a motivating factor
in Respondent’s decision to suspend him for 3 days on July
9, 1990.
Respondent defended its decision to suspend Perry for 3
days on July 9, 1990, by causing Thomas to give his version
of the incident. Thomas testified that Perry called him at a
time he could not recall on July 7 to indicate he had tickets
to a Louis Farrakahn show and did not intend to work that
day. He claims he told the employee he was sorry he had
purchased the tickets, but he was expected to work that day.
Continuing, Thomas testified that the following Monday they
discussed Perry’s reasons for not coming to work in the fa-
cility manager’s office. Carter Grey was then serving as in-
terim manager of the facility. He indicated Perry said his rea-
son was because he had the tickets, and that he had sched-
uled his vacation. Thomas claimed he investigated Perry’s
vacation claim by discussing it with his foreman, Harpell. He
claimed Harpell told him Perry had requested to have his va-
cation changed. Thomas testified that Grey decided Perry
should be charged with an unexcused absence and that he
should be suspended for 3 days, commencing the next day.
Thomas indicated he did not ask Harpell if Perry had filled
out a vacation request form, and he did not ask to see the
form. Thomas did not recall whether Grey called Harpell in
to question him about Perry’s vacation change.
When Grey appeared as a witness for Respondent, he
merely indicated that, after looking at records, he felt the ap-
propriate discipline for Perry was a 3-day suspension.
In sum, the record reveals that Cellus Perry was treated in
disparate fashion during the incident under discussion. The
employee’s claim that his departmental manager informed
him he could elect not to work the Saturday preceding a va-
cation scheduled to begin on Monday was not rebutted.
Moreover, the record reveals Respondent failed to investigate
Perry’s vacation claim adequately, as attested by the fact that
his vacation request submission reveals he was scheduled to
be on vacation from July 9 to 13, 1990. I find Respondent
has failed to sustain its evidentiary burden of showing that
Perry would have suffered cancelation of his scheduled vaca-
tion, and would have been suspended for 3 days on July 9,
1990, even in the absence of his participation in protected
conduct.
Donald Whitney
Donald Whitney did not attend the hearing in the instant
case. Accordingly, the record contains no evidence which
would reveal his union sentiments or activities, and it con-
tains no evidence which would reveal Respondent knew or
suspected that he was a union adherent.
General Counsel’s Exhibits 2, 2(a), (b), and (c) reveal,
inter alia: that Whitney was hired by Respondent on January
22, 1990; that as of June 11 he had been absent eight times
(three excused and five unexcused); that he received a verbal
warning on May 8 for unexcused absences on May 2 and 8;
and that he received a written warning and a 3-day suspen-
sion for excessive absences and unexcused absences on June
22.
While General Counsel contends that Respondent’s failure
to discipline Whitney for his May 30 and June 11 unexcused
absences prior to June 22 reveals the employee was ulti-
mately disciplined because inventory department employees
were engaged in union activity, Whaley testified the dis-
cipline was not administered in timely fashion because Whit-
ney’s foreman negligently failed to do his job. Rick
Timmons, Whitney’s foreman, corroborated Whaley’s testi-
mony by indicating he simply put a note in Whitney’s file
rather than a writeup on some occasions, and Whaley eventu-
ally told him to document Whitney’s absences because other
employees were complaining that he was receiving favorable
treatment.
In sum, the record reveals employee Whitney had a very
poor attendance record, and it fails to reveal that he engaged
in union activities or other protected conduct. Accordngly, I
find that General Counsel has failed to prove that Whitney
was disciplined on June 22, 1990, because he engaged in
union activities or other protected activity.
Antonio D. Hill
Antonio D. Hill was hired by Respondent in January 1990.
He was then employed at the Brooklyn Boys Club; his job
at Respondent was a second job. At the time of the hearing
he was still employed at the Brooklyn Boys Club.
Hill missed considerable work at Respondent while em-
ployed at the facility. He candidly admitted during his testi-
mony that he was often just too tired to report for work in
Respondent’s inventory department after putting in a full day
at his primary job. To avoid unexcused absences, he would
go to a doctor, voice a complaint, and obtain a doctor’s ex-
cuse.
Hill indicated that while he was employed at Respondent
he had several supervisors, including Harpell, Timmons, and
Donald Ficklin. As revealed by General Counsel’s Exhibit
11(f), Foreman Harpell prepared a Work Missed Report on
June 15 which noted that Hill was given an unexcused tardy
on that date when he arrived late for work without calling
in to indicate he would be late. The report indicated Hill’s
excuse was that he had gotten a flat tire on the way to work.
Thereafter, on August 26, Hill was absent from work. His
supervisor, Donald Ficklin, excused the absence when Hill
claimed car trouble caused the absence (G.C. Exh. 11(d)).
The following day, Billy Arrington, Ficklin’s superior, re-
classified Hill’s August 26 absence from excused to unex-
cused and prepared a written warning advising Hill that any
further work miss could subject him to discipline, including
a suspension (G.C. 11(a)).
Review of the record reveals that Arrington uniformly
treated employee absences due to car trouble and/or lack of
transportation to be unexcused during the general period
under discussion (i.e., G.C. Exh. 15(j)—Antonio J. Hill on
679TRICIL ENVIRONMENTAL MANAGEMENT
May 16, 1990; G.C. Exh. 36—Whitney on May 9, 1990;
G.C. Exh. 17—James Beaver on December 21, 1990). Ac-
cordingly, as the record fails to reveal Hill was treated in
disparate fashion when he was disciplined on August 28,
1990, I find General Counsel has failed to prove the dis-
cipline was administered for unlawful reasons.
Curtis Wright
Curtis Wright was hired by Respondent in January 1990.
On May 8, Timmons, Wright’s foreman, prepared a Work
Missed Report noting that Wright had been charged with an
unexcused absence because he did not work on May 6, and
he failed to call in before his scheduled worktime. As re-
vealed by Respondent’s Exhibit 28(b), Timmons and Wright
had an argument about the classification of the May 6 ab-
sence on May 7. Timmons sent the employee home, and
issued him an oral warning. As revealed by Respondent’s
Exhibit 28(a), Wright was absent from work on May 28, and
he called in about an hour after his shift started, claiming he
had called earlier but could not reach anyone. The absence
was classified as unexcused, and on June 13, the employee
was given a written warning for the May 28 unexcused ab-
sence as well as excessive excused absences. On June 20,
Wright and other inventory department employees were in-
formed that Saturday, June 23, would be a scheduled work-
day. Wright informed his foreman, Harpell, that he would
not be at work on June 23 because he had prior commit-
ments. Harpell informed the employee he could be consid-
ered unexcused. On the evening of June 22, Wright contacted
Inventory Manager Whaley to inform him he had a severe
sinus condition and would not work June 23. He was asked
to bring a doctor’s excuse when he next reported for work.
On June 24, Wright reported for work, but did not bring a
doctor’s excuse. Instead, he told Supervisor Timmons he had
received medication from a nurse. Timmons classified the
absence as unexcused and Wright was given a 3-day suspen-
sion (R. Exh. 32(a) through (d)).
The record fails to reveal that Respondent was aware of
Wright’s union sentiments until he wore a union button to
work during July 1990. Noting that Respondent appears to
have adhered to its progressive discipline system when dis-
ciplining Wright, I find General Counsel has failed to prove
that Respondent violated the Act when issuing Wright a writ-
ten warning on June 13, 1990, or when it suspended him for
3 days on June 25, 1990.
Antonio J. Hill
Antonio J. Hill was hired by Respondent in November
1989. During the union organization campaign, he attended
union meetings and closely associated with Leon Smith and
Cellus Perry. He ate lunch with the named employees, and
rode to work with them. On April 5, 1990, Hill was sus-
pended for 3 days because he and another employee had
been observed racing forklifts at the facility (G.C. Exhs.
15(a) and (b)). On May 16, he was excused from work to
see a doctor. He called in on May 17 to state he was in jail.
He failed to report or call in on May 18 and his absence was
classified as unexcused. During the week of June 12, Hill
missed work to attend court proceedings. While he docu-
mented his court appearances, the work missed was classified
as unexcused as he was charged with theft under $500, and
was fined. On June 22, he was suspended for 3 days for ‘‘at-
tendance and substandard work performance including safety
violations’’ (G.C. Exh. 15(g)).
Noting that the record contains no direct evidence of Re-
spondent knowledge of Hill’s limited participation in union
activities and the further fact that it appears Respondent sim-
ply applied its progressive discipline policy in Hill’s situa-
tion, I find General Counsel has failed to prove that Re-
spondent suspended the employee for 3 days on June 22 for
unlawful reasons.
5. The July 10, 1990 terminations
On July 10, 1990, Respondent’s interim plant manager,
Grey, terminated the employment of employees Donald
Whitney and Leon Smith. As indicated, supra, Whitney did
not attend the hearing to give testimony. Moreover, the
record fails to reveal that Whitney engaged in union or other
protected activities, and it fails to reveal that Respondent sus-
pected the employee had engaged in protected conduct. Ac-
cordingly, I find that General Counsel has failed to establish,
prima facie, that Whitney was terminated because he en-
gaged in activities protected by the Act. The Smith termi-
nation is discussed below.
Leon Smith was hired by Respondent on January 22,
1990. As indicated, supra, he initiated and guided the union
organization campaign at Respondent’s facility, and Re-
spondent was fully aware of his union advocacy. Corporate
Representative Familla told the employee on June 14 that he
respected him for his activities, but if he should cross the
line, he would get rid of him.
I have found, supra, that Smith was give an oral warning
for absenteeism on May 29, and he was given a written
warning for absenteeism on June 4. While General Counsel
contends those warnings were unlawful because Respondent
decided to ‘‘crack down’’ on employees in the inventory de-
partment once it learned they were engaged in union activi-
ties, I have found that supervision in the department were
told to more strenuously enforce attendance rules before Re-
spondent became aware of union activity at the facilities.
Moreover, having considered the facts surrounding the dis-
cipline imposed on Smith on May 29 and June 4, I have con-
cluded the record fails to reveal that discipline was adminis-
tered for unlawful reasons.
On July 6 and 7, 1990, a Friday and Saturday, Smith did
not work. He testified that he called Foreman Billy Arrington
on July 6 at 12:30 to tell him that he would be late because
he was going to the Board. He indicated Arrington said
‘‘okay, thanks for calling.’’ Subsequently, at about 5:45 p.m.,
Smith claims he called the facility again and told Arrington
that he would not be in because he had hurt his back. Smith
also failed to work on Saturday, July 7. He testified he called
in at 1:45 p.m. and asked to speak with Foreman Harpell,
but Harpell failed to answer the page. He then asked to
speak with Willie Thomas. When Thomas came on the line,
he told him he would not be in because his back was still
hurting him. The employee indicated Grey was also on the
line, and Grey told him to bring a doctor’s statement when
he came in. Smith testified that when he reported for work
on July 10, Arrington told him to go see Grey. He claimed
that when he went to Grey’s office, Willie Thomas was there
and he told him he was giving him 3 days off for being off
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Foreman Harpell had been discharged in July 1990.
Friday, and as he called in 3 minutes late on Saturday, he
was terminated.
While Smith was subjected to two forms of discipline for
2 consecutive days of absence which Respondent classified
as unexcused, General Counsel established that consecutive
days of unexcused absence of employees normally resulted
in the imposition of only one form of discipline. Thus, Gen-
eral Counsel’s Exhibits 4(a) and (b) reveal that inventory de-
partment employee Donald Whitney had unexcused absences
on May 2 and 8, 1990, and the discipline imposed for the
2 consecutive days of absence was issuance of a written
warning (see also R. Exh. 36(i)). Similarly, General Coun-
sel’s Exhibit 14(f) reveals that inventory department em-
ployee Stanley Hill experienced unexcused absences on Janu-
ary 2, 3, and 4, 1990, and the discipline imposed was a 3-
day suspension. Additionally, General Counsel’s Exhibits
15(d), (e), (g), and (j) reveal that inventory department em-
ployee Antonio J. Hill experienced unexcused absences on
May 16, 17, and 18, 1990, and the discipline imposed was
a 3-day suspension.
Assuming, arguendo, Smith’s absences on July 6 and 7,
1990, were properly classified as unexcused, it is clear that
the employee was treated in disparate fashion. As the em-
ployee was known by Respondent to be an ardent union sup-
porter and Respondent had indicated a desire to get rid of
him, I find that General Counsel has shown the employee’s
participation in union activity was a ‘‘motivating factor’’ in
Respondent’s decision to terminate him.
Respondent defended the decision to discharge Smith
through testimony given by Arrington, Thomas, and Grey.
Arrington testified Smith called him prior to his 2 p.m. start-
ing time on July 6 to state that he was at the Board to give
testimony and would report for work as soon as he finished
giving testimony. In a note to Smith’s personnel file,
Arrington indicated ‘‘at 6:00 p.m. Leon hadn’t come to
work’’ (R. Exh. 36(a)).
Grey testified that Arrington reported to him on July 6 that
Smith had called in to indicate he may be a little late be-
cause he was going to the Board to testify. He claimed he
assumed Smith was going to the Labor Board, and as they
had some fairly significant processing needs, he phoned the
Labor Board to see how late Smith would be. He claims the
secretary and could not locate Smith and although he left
word for Smith to call him, he did not hear from Smith on
July 6. He testified that at 2 or 2:05 p.m. on July 7, Smith
called Willie Thomas and the call was taken on a conference
line as he and Thomas were in the plant manager’s office.
According to Grey, the employee informed them he would
be unable to work that day because his back was hurting
him. Grey testified Smith originally sought to convey the im-
pression the back injury was work-related, but he then indi-
cated it was not work-related. Grey testified he told the em-
ployee to bring a doctor’s statement and the name of a per-
son he spoke with at the Board when he reported for work.
After Smith indicated during the hearing that he visited the
school board on July 6 for the purpose of seeking to cause
his son to be admitted to summer school, Grey denied that
he learned, before the hearing, that Smith had visited the
school board rather than the NLRB.
While Smith testified that Thomas was the individual who
informed him of his termination, Grey claimed he terminated
the employee. He testified his reasons were: that he felt
Smith had been less than honest when indicating he would
be a little late on July 6; that he suspected Smith was fab-
ricating a back injury; and that his review of Smith’s person-
nel file caused him to determine that Smith’s actions were
grounds for termination under Respondent’s policy of dis-
cipline for absenteeism and tardiness. Grey admitted he did
not ask Smith to produce a doctor’s statement or ask him for
the name of a person he spoke with at the Board when he
terminated him. During the hearing, Smith testified he hurt
his back moving a tire at home after work on July 5. General
Counsel did not offer a doctor’s statement to verify his
claim. Respondent placed in evidence (R. Exh. 36(d)) a Ten-
nessee Department of Employment Security Agency Deci-
sion, which reveals Smith was denied immediate benefits be-
cause it determined he was discharged for ‘‘Work-Related
Misconduct.’’
Noting that Respondent made no effort to justify its deci-
sion to treat Smith’s July 6 and 7 absences as two incidents
rather than one as it had when inventory department employ-
ees Stanley Hill, Donald Whitney, and Antonio J. Hill were
absent for consecutive days, it is clear, and I find that Smith
was treated disparately when Grey decided the discipline for
the July 6 absence should be a 3-day suspension, and the dis-
cipline for the July 7 absence should be discharge. Moreover,
as Grey failed to give Smith the opportunity to explain where
he was on July 6, and he failed to accord the employee an
opportunity to produce a doctor’s statement to verify his
claimed back problem, I infer that Grey did not give the em-
ployee an opportunity to justify his July 6 and 7 absences
because he wished to rid Respondent of the leading union
adherent in the facility.
For the reasons stated, I find that Respondent has failed
to show that it would have terminated Smith on July 10,
1990, in the absence of his participation in union activities.
I find that by terminating Leon Smith, Respondent violated
Section 8(a)(3) and (1) of the Act as alleged.
5. The September 13 terminations
Bodanza claimed during his testimony that starting in July
1990, Respondent’s business dropped off and by September
it was off 30–35 percent. He testified the decline in business
caused him to decide that supervision as well as the work
force should be reduced. To effectuate a reduction, he claims
he told the foremen to review the discipline and absentee
records of employees and to submit names of employees who
should be discharged to him. He indicated that originally 14
names were submitted, but he felt that number was too large,
and that eventually he decided the number to be separated
should be 7. Bodanza indicated he reviewed the personnel
files of the employees chosen by the foremen and decided,
after considering the absenteeism and discipline experienced
by employees Antonio D. Hill, Antonio J. Hill, Cellus Perry,
Stanley Hill, Curtis Wright, and Charles Morse, to discharge
them on September 13, 1990. With respect to supervision, he
claimed he decided Respondent could reduce supervision by
approximately one-half. He then decided that Supervisors
Timmons, Bobby Wagner, and Whaley, who had been des-
ignated as special projects officer, would be terminated.8
General Counsel does not contest Respondent’s claim that
Respondent decided to reduce its supervisory and non-
681TRICIL ENVIRONMENTAL MANAGEMENT
supervisory work force for economic reasons on or about
September 13, 1990. Instead, he contends the record reveals
Respondent more strenuously enforced its absentee and tardi-
ness policies after learning its employees were engaged in
union activities, and that as absences and discipline during
the period late May through August 28, 1990, were viewed
to determine who should terminated pursuant to the Septem-
ber reorganization and consolidation of operations, the selec-
tion process was tainted. Accordingly, as the discipline im-
posed was unlawful, General Counsel contends the termi-
nations were unlawful. As indicated above, I find General
Counsel’s overall contention to be without merit. Con-
sequently, I recommend that the allegation that employees
Antonio D. Hill, Antonio J. Hill, Stanley Hill, Curtis Wright,
and Charles Morse were terminated for discriminatory rea-
sons on September 13, 1990, be dismissed. With respect to
employee Cellus Perry, I reach a different conclusion for the
reasons set forth below.
As indicated, supra, I have found that Respondent violated
Section 8(a)(3) and (1) of the Act when it disciplined em-
ployee Perry for his July 7, 1990 absence on July 9, 1990.
Bodanza’s testimony reveals that the unlawful discipline ex-
perienced by Perry on July 9 was a factor which was consid-
ered when he was terminated on September 13, 1990l. Re-
spondent did not seek to show that it would have terminated
Perry on September 13, 1990, even in the absence of the dis-
cipline imposed upon the employee on July 9, 1990. Accord-
ingly, the unrebutted record evidence reveals that the em-
ployee’s participation in union activities led to his termi-
nation on September 13, 1990. In the circumstances de-
scribed, I find that by terminating Perry on September 13,
1990, Respondent violated Section 8(a)(3) and (1) of the Act
as alleged.
The Representation Case
The objections filed by the Petitioner in Case 26–RC–7290
which are before me for resolution are:
I. That immediately prior to said election the Employer,
through its agents, officers and representatives, engaged in
unfair labor practices by the act of discharging two employ-
ees in the event that they voted to elect Petitioner as bargain-
ing representative, which conduct interfered with and re-
strained the employees in their free choice of a bargaining
representative.
II. That immediately prior to said election the Employer,
through its agents, officers and representatives, engaged in
unfair labor practices by the acts of suspending one em-
ployee in the event that he voted to elect Petitioner as bar-
gaining representative, which conduct interfered with and re-
strained the employees in their free choice of a bargaining
representative.
III. That immediately prior to said election the Employer,
through its agents, officers and representatives, engaged in
unfair labor practices by the Act of threatening to cease oper-
ations if the Union ‘‘came in’’ and to close the facility in
the event that they voted to elect Petitioner as bargaining
representative, which conduct interfered with and restrained
the employees in their free choice of a bargaining representa-
tive.
IV. That immediately prior to said election the Employer,
through its agents, officers and representatives, engaged in
unfair labor practices by the act of threatening loss of bene-
fits if they voted to elect Petitioner as bargaining representa-
tive, which conduct interfered with and restrained the em-
ployees in their free choice of a bargaining representative.
VI. That immediately prior to said election the Employer,
through its agents, officers and representatives, engaged in
unfair labor practices by the act of holding ‘‘impromptu cap-
tive audience’’ meetings within 24 hours of conduct of bal-
lot, which conduct interfered and restrained the employees in
their free choice of a bargaining representative.
XI. That immediately prior to said election the Employer,
through its agents, offices and representatives, engaged in
unfair labor practices by the act of its management consult-
ants posing as a Laidlaw employee (Tricil Environmental
Management, Inc.) promising better benefits, wages, and
preferential treatment, which conduct interfered with and re-
strained the employees in their free choice of a bargaining
representative.
Comparison of the objections with the complaint allega-
tions reveals that the following objections are coextensive
with the complaint allegations as follows:
Objection Complaint Paragraph
1 15, 16
2 14, 16
3 7(a), (b), (c), (f), 12
4 9, 13
11 8
Having found that Respondent discharged employees Leon
Smith and Cellus Perry in violation of Section 8(a)(3) and
(1) of the Act on July 10 and September 13, 1990, respec-
tively, I find Objection 1 to be meritorious.
Having found that Cellus Perry was suspended for 3 days
by Respondent on July 9, 1990, in violation of Section
8(a)(3) and (1) of the Act, I find Objection 2 to be meritori-
ous.
Having found that Respondent, acting through Willie
Thomas, threatened employees with plant closure if they se-
lected the Union as their bargaining agent on July 10 and 24,
1990, in violation of Section 8(a)(1) of the Act, I find Objec-
tion 3 to be meritorious.
Having found that General Counsel failed to prove the al-
legations set forth in paragraphs 8, 9, and 13 of the com-
plaint, I find Objections 4 and 11 to be without merit.
Objection 6 is related to but is not coextensive with para-
graph 12 of the complaint, which alleges, in substance, that
Willie Thomas unlawfully threatened employees with plant
closure on August 9, 1990. As revealed, supra, Thomas testi-
fied that shortly before 2 p.m. on August 9, 1990, second
shift employees Willie Murrell, Patricia Miller, and Perry
Woodears entered his office without invitation. Employee
Murrell testified Thomas told the employees he did not want
them to vote for the Union, and he said the plant could close
if the Union came in. Murrell’s testimony was not corrobo-
rated by employees Miller or Woodears, and the plant clo-
sure testimony was given after General Counsel led the wit-
ness. Thomas denied Murrell’s version of the conversation.
He testified the employees voiced complaint that they were
being called and visited at home, and he claimed he simply
told them to hang in there and vote tomorrow and it would
all be behind them.
I have credited Thomas rather than Murrell with respect to
the context of the conversation, and I credit Thomas’ claim
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
10 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.’’
that he did not invite the employees to his office on August
9, 1990. Accordingly, I find Objection 6 to be without merit.
Having found Objections 1, 2, and 3 to be meritorious, I
find that by: discharging the leading union adherents Smith
Perry on July 9 and September 13, respectively; suspending
Perry for engaging in union activities on July 9; and by
threatening employees with plant closure during the critical
period preceding the August 10, 1990 election, Respondent
interfered with the employees’ exercise of a free and
untrammeled choice in the election. Accordingly, I rec-
ommend that the August 10, 1990 election be set aside and
that a second election be conducted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with plant closure if they se-
lected the Union as their bargaining agent, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By suspending employee Cellus Perry for 3 days on
July 9, 1990, and by discharging employee Leon Smith on
July 10, 1990, and employee Perry on September 13, 1990,
because said employees engaged in union activities, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
5. Respondent has not violated the Act except as expressly
indicated in this decision.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the
Act.
Having found that Respondent unlawfully suspended em-
ployee Cellus Perry on July 9, 1990, and that it unlawfully
terminated employees Leon Smith on July 10, 1990, and
Cellus Perry on September 13, 1990, I recommend that Re-
spondent be ordered to offer both employees immediate rein-
statement to their former or substantially equivalent positions
of employment and that it be ordered to make them whole
for the discrimination practiced against them for any losses
of wages and benefits, less interim earnings, with backpay to
be computed in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and interest
thereon to be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Tricil Environmental Management, Inc.,
Millington, Tennessee, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure if they select
the Union as their collective-bargaining agent.
(b) Discouraging employees from joining, supporting, or
engaging in activities on behalf of Oil, Chemical and Atomic
Workers International Union, AFL–CIO or any other labor
organization, by suspending or discharging employees be-
cause they engage in union activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employees Leon Smith and Cellus Perry imme-
diate and full reinstatement to their former or substantially
equivalent positions of employment, without prejudice to
their seniority or other rights and privileges, and make them
whole for the discrimination practiced against them in the
manner set forth in the remedy section of this decision.
(b) Expunge from its records any reference to the July 9,
1990 layoff of Cellus Perry and all references to the unlawful
discharges of Cellus Perry and Leon Smith, and notify them
that this is being done and that the referenced layoff and the
discharges will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all subcontracts,
bills, invoices and other documents relating to its transpor-
tation functions and all payroll records, social security pay-
ment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay
due under and to facilitate compliance with this Order.
(d) Post at its Millington, Tennessee facility copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with plant closure if
they select the Union as their collective-bargaining agent.
683TRICIL ENVIRONMENTAL MANAGEMENT
WE WILL NOT discourage employees from joining, sup-
porting, or engaging in activities on behalf of Oil, Chemical
and Atomic Workers International Union, AFL–CIO or any
other labor organization, by suspending or discharging em-
ployees because they engage in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer employees Leon Smith and Cellus Perry
immediate and full reinstatement to their former or substan-
tially equivalent positions of employment, without prejudice
to their seniority or other rights and privileges, and make
them whole for the discrimination practiced against them.
WE WILL expunge from our records any reference to the
July 9, 1990 layoff of Cellus Perry and all references to the
unlawful discharges of Cellus Perry and Leon Smith, and no-
tify them that this is being done and that the referenced lay-
off and the discharges will not be used against them in any
way.
TRICIL ENVIRONMENTAL MANAGEMENT, INC.