U.S. Recycling and Disposal, LLC

National Labor Relations Board - Administrative Judge Opinions

May 21, 2007

13-CA-043702 (N.L.R.B. May. 21, 2007)

JD(ATL)–18–07
Plainfield, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
U.S. RECYCLING AND DISPOSAL, LLC
and
GENERAL CHAUFFEURS, SALES DRIVERS AND
HELPERS UNION LOCAL 179
Case 13–CA–43702
Dawn J. Blume, Esq., for the General Counsel.
Stanley E. Niew and Kenneth M. Mastney, Jr.,
Esqs., for the Respondent.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Chicago,
Illinois, on March 28 and 29, 2007, pursuant to a complaint that issued on January 29, 2007.1
The complaint alleges that the Respondent threatened employees and interrogated employees
in violation of Section 8(a)(1) of the National Labor Relations Act, and warned and discharged
employee Richard Mann because of his union activities in violation of Section 8(a)(3) of the Act.
The Respondent’s answer denies any violation of the Act. I find that the Respondent violated
the Act substantially as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, U.S. Recycling and Disposal, LLC, the Company, is an Illinois
corporation engaged in waste hauling from its facility in Plainfield, Illinois. The Company
annually purchases and receives goods and materials valued in excess of $50,000 directly from
points outside the State of Illinois. The Respondent admits, and I find and conclude, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that General Chauffeurs, Sales
Drivers and Helpers Union Local 179, the Union, is a labor organization within the meaning of
Section 2(5) of the Act.

1 All dates are in 2006 unless otherwise indicated. The charge was filed on November 3 and
was amended on December 28.
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II. Alleged Unfair Labor Practices
A. Background
Richard Grad founded the Company in September 2004. As General Manager, he
directs the Company’s operations from its Plainfield, Illinois, facility at which six drivers, who
operate waste hauling trucks, are employed. Prior to February 1, 2007, the Company had no
employee manual. Although Grad denied that the Company had any written policies, prior to
February 1, 2007, it had issued a written memorandum dated May 2, 2005, regarding yellow
safety shirts and steel toed work boots, a written memorandum dated April 20, 2006, advising
employees that they would be individually responsible for the cost of any damage to culverts but
not mentioning a reporting requirement, and a written memorandum dated January 26, 2007,
relating, among other requirements, to completion of the drivers’ Daily Report including marking
the box that the condition of the vehicle is satisfactory. Notwithstanding the absence of an
employee manual, the Company administered progressive discipline as established by the
Employee Warning Notice forms upon which discipline is recorded. The forms provide for a
first, second, and third warning, either oral or written.
Two oral policies are relevant to this proceeding. The first relates to “pretripping,” the
requirement that a driver perform an inspection of his truck before leaving the facility. The
second relates to the reporting of accidents or damage to a company vehicle or to property.
On September 15, the Union filed a petition for an election, and, on October 27, a
representation election was held at the Company’s facility from 4:30 to 5:30 a.m., prior to the
drivers leaving to service the customers on their routes. The employees selected the Union as
their collective bargaining representative. Thereafter the Company and Union agreed upon and
signed a collective-bargaining agreement effective April 1, 2007. Appended thereto is an
Employee Manual dated February 1, 2007.
B. Facts
Driver Richard Mann was hired in the last week of June. Shortly after being hired, General
Manager Grad questioned Mann about damage to a truck that Mann had previously driven. The
driver who damaged the truck did not report the damage. In the conversation, Grad told Mann
“that if anything like that ever happens to call him immediately.” Mann did so when he dented a
fender on a truck in late July or early August.
In late August, Mann contacted the Union. He signed a union authorization card and, on
August 23 and 24, solicited and obtained authorization cards from four of the remaining five
drivers. There is no evidence that the Company was aware of this activity.
On August 31, while picking up a dumpster at a construction site, Mann drove his truck
over a new concrete sidewalk that was above ground level because the contractor had not yet
brought the sidewalk to ground level by backfilling the area adjacent to the sidewalk with dirt.
The sidewalk cracked. Mann was aware that his back tires had rolled over the sidewalk, but he
was unaware that the sidewalk had been damaged. The contractor notified the Company of the
damage, and Dispatcher Chris Collins called Mann on the cellular telephone in his truck, asking
whether he was aware that he had damaged the sidewalk. Mann informed Collins that he “may
or may not have” damaged the sidewalk, that he was “not aware that it broke.”
The Company salesperson, James Purvis, went to the site to inspect the damage and
confirm that the Company was responsible. The cost of repair was $250. General Manager
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Grad spoke with Mann, telling him that he had “plenty of room to maneuver” and that he needed
“to be more careful because that cost money.”
Grad testified that he gave Mann an oral warning and informed him that “the next time
he does not report [an] incident immediately upon occurrence, he will be discharged.” Grad
admitted that he did not fill out a warning document relating to the foregoing incident.
Mann denies that Grad informed him that he was being given an oral warning, that he
was simply told to be more careful. Mann acknowledged that he was aware, on the basis of the
damaged truck conversation with Grad shortly after being hired, that he must report “damage to
[the] vehicle immediately.” I credit Mann. Grad’s claim that he gave Mann an oral warning is
contradicted by the warning he issued Mann on October 27. On that warning, in response to the
question “Has the employee been previously warned?” Grad circled “NO.”
In late September, Mann spoke with General Manager Grad. He referred to the recently
posted Notice of Election by asking “what the crap was above the time clock.” Grad replied that
he did not know, “[Y]ou tell me. Your drivers, your fellow drivers are trying to bring the Union in
here.” Mann answered that he did not know too much about unions, that “all they do is take
your money and don't do anything for you.” Grad agreed and stated that “the Union has their
rules that he'll have to play by” and rhetorically questioned whether “the drivers can play by
those rules.” He then noted that “whatever the minimum hours required by whatever union
contract is put in place … [, t]hat’s all you would get and overtime would be cut at that point.”
Mann recalled that Grad was assisting him with a mechanical problem at a location at
the facility referred to as the quarry when this conversation occurred. Grad denied having the
foregoing conversation. Drivers Steve Hudson and John Ellison both testified that Grad did not
engage in any conversation relating to the Union with either of them. The foregoing is
consistent with Mann’s testimony that he, not Grad, initiated the conversation. I credit Mann.
Mann, in the foregoing conversation, did not reveal his prounion sentiments. At the
election on the morning of October 27, Mann served as the election observer for the Union.
Two business agents, Thomas Flynn and Rich Garrett, were present at the election. The
employees selected the Union as their collective bargaining representative. The tally of votes
was completed by the Board Agent in the presence of Mann, driver Steve Hudson who served
as observer for the Company, General Manager Grad, Grad’s brother Carl who is employed as
a driver/mechanic, and the two business agents. When it was completed, Grad turned to
Business Agent Rich Garrett and said, “[O]kay, you two guys get the fuck off my property.”
Garrett commented that “it doesn't have to be like this,” and Grad stated, “I don't want to talk
about it, just get the fuck out.” Mann corroborated the foregoing exchange, recalling that one of
the business agents stated that there was “no need to be hostile,” to which Grad responded
saying, “I'm not being hostile, just grab your shit and get the fuck off my property.”
Grad testified that he simply asked the business agents to leave. He denied “swearing.”
The vulgar language which Grad used did not invoke a deity and did not constitute swearing.
Thus, his denial that he swore is irrelevant. Driver Steve Hudson, who served as observer for
the Company and appeared as a witness for the Respondent, was not questioned regarding the
words used by Grad at the conclusion of the election. I credit Flynn and Mann.
Prior to January 2007, the Company’s requirement that drivers complete a pretrip
inspection was oral. Department of Transportation regulations require that drivers sign their
inspection report only if a defect is noted; however, the Daily Report used by the Company,
after blocks relating to various components that would be checked if there were a problem, has
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a block followed by the statement “Condition of the above vehicle is satisfactory” and a
signature line. The memorandum of January 26, 2007, directs the drivers, even if there are “no
issues” with their truck, to check the “satisfactory” box and, presumably, sign the document
insofar as “all information on the driver’s daily sheet must be completed.” The memorandum
does not set out what is included in a pretrip inspection. In practice, a minimal pretrip inspection
includes checking the lights and tires of the vehicle. Some drivers also check the fluid levels.
Prior to October 27, no employee had ever been disciplined for failure to conduct a
pretrip inspection. A total of 73 Daily Reports submitted by various drivers during the period
from July 1, 2006, through January 31, 2007, are unsigned and the “satisfactory” box is
unchecked. Thus, in each of those instances, there is no confirmation that the respective
drivers conducted a pretrip inspection.
On October 27, following the election and dismissal of the union representatives, Mann
performed a pretrip inspection, checking the lights and tires of his vehicle. He then departed on
his route. He observed Grad in the area, but they did not speak. Mann’s Daily Report reflects
that the condition of the vehicle was satisfactory and bears his signature.
General Manager Grad testified that he observed that Mann failed to perform a pretrip
inspection, that he simply got into his vehicle and left. He did not warn him at that time. He did
not speak with him on his cellular telephone because “I normally don’t confront people while
they’re driving down the street on the Nextel [cellular telephone].”
Upon Mann’s return to the facility on the afternoon of October 27, Grad issued a written
warning to him for failing to perform a pretrip inspection. Mann acknowledges that he signed the
warning and wrote “I concur.” He explained that he did so because Grad is “a very
confrontational, argumentative person,” and he, Mann, felt that he “had a bull’s eye on my back”
and that the warning was “just retaliation.”
On October 30, at a construction jobsite in Naperville, Illinois, Mann’s truck rolled over a
roll of mesh that goes underneath concrete foundations. There was an employee in the area.
Mann got out of the truck and spoke with the employee, asking how he wanted to handle it and
offering to pay for any damage. The employee stated that Mann need not “worry about it, it's
used,” and that they were “going to throw it away anyways.” Mann inspected the truck to assure
that there was no damage, that the mesh had not put a hole in a tire. He was unable to obtain
access to the dumpster because of mud. He called the facility, spoke with Grad about the mud,
and was given his next assignment. Mann did not mention the wire mesh. He explained that if
he called “the supervisor every time I ran over trash, I would be on the phone all day.”2
Driver John Ellison, called as a witness by the Respondent, testified that Mann called him
saying that he “had run over something at a jobsite within, I mean, nothing really specific.”
Counsel then asked Ellison whether Mann said that “he knew he'd be in trouble.” Ellison
answered that Mann “just mentioned that he thought he might be in trouble, but that again
nothing really specific.” Mann denied the foregoing conversation. Ellison’s demeanor, the
absence of any reference to the word “trouble” in his initial answer, and his qualification of both

2 Counsel for the General Counsel moved that I adjourn rather than close the hearing so that
subpoena enforcement could be sought to obtain the testimony of the employee with whom
Mann spoke. I denied the motion but permitted Counsel to make an offer of proof. I do not rely
upon that offer of proof in any way. I rely upon Mann’s uncontradicted testimony regarding his
conversation with the employee.
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answers with the words “nothing really specific,” reflect adversely upon his credibility. I credit
Mann and find that no such conversation occurred.
Jeff Wilson, Vice President of Rock and Roll Concrete, was not at the site when the
foregoing occurred. When he arrived, the employee told him what had happened. Wilson called
the Company and spoke with Grad, asking who “was going to pay for a roll of wire mesh that a,
my truck had just run over.” Grad replied that he was unaware of the situation. Wilson repeated
that a driver for the Company “had backed up over a roll of wire mesh.” Grad told him to send a
bill and that he would “get to the bottom of this and get back to you.” They then discussed how
much the Company charged for a dumpster and the possibility of Rock and Roll Concrete hiring
the Company as the waste disposal company for a future job on the Company’s “side of town.”
Wilson testified that a roll of mesh cost about $75. He never sent a bill because he was
“[b]usy. Bigger things to worry about, forgot.” He has not been reimbursed. Notwithstanding the
statement made by the employee to Mann that the mesh was used, Wilson claimed that it was
not “junk,” that it was “30 rolls of wire mesh in one pile, … they’re all the same.” Wilson did not
explain how only one roll of mesh could have been damaged insofar as there was a pile of 30
rolls. He did not explain why his being “busy” would have caused him to “forget” to request a
$75 reimbursement. Unlike the situation regarding the broken concrete, in this instance
Company salesperson James Purvis did not go to the site to investigate.
Upon Mann’s return to the facility, Grad asked about the job he had gone to in
Naperville. Mann asked, “[W]hat about it?” Grad asked, [W]hat about that wire mesh.?” Mann
started to explain, but Grad cut him off stating, “I don't want to hear it. Remember that sidewalk
you broke a few months ago that cost me 250 bucks and now this, give me your keys, grab
your shit and get out of here, you're done.”
Grad testified that he asked Mann whether “there was something that he wanted to tell
me about the Cantore Construction site,” and that Mann looked “stupefied” and said, “No.” Grad
then asked if Mann wanted “to talk about the roll of wire mesh,” and that Mann replied, “[O]h
that, I'm going to take care of that personally with the customer.” Grad told Mann to give him
the keys, “that he was through.” Grad testified that he discharged Mann not for causing damage
but for “[n]ot reporting the accident.” A handwritten statement by Grad relating to this incident
does not report that Mann stated that he was “going to take care of that personally with the
customer.” There was no reason for Mann to have made such a statement since he had been
told that the mesh was trash. I credit Mann and find that, when he began to explain what had
occurred, Grad told him that he did not “want to hear it” and discharged him.
The policy relating to damage reports was unwritten; thus there are varying versions of
what was required. General Manager Grad testified that he informed every driver that “[a]nytime
there is any damage, whether it be an accident, incident, whether there is a problem with a
customer, that they're supposed to call the office immediately.” He expanded upon this,
explaining that any time there was a “problem with a customer, you always call in. I don't want
the drivers confronting customers.” Despite this, driver Steve Hudson, who served as the
observer for the Company at the election, was not terminated for an incident that occurred on
January 30, 2007. Grad documented the incident upon a warning notice that states: “Knocked
over windows, glass everywhere, gave our customer & the homeowner an attitude about ‘it not
being his job.’” Grad admitted that he learned of this altercation from the customer. Grad
explained that the glass had been thrown away and testified that Hudson denied giving the
customer an “attitude.” Contrary to Grad’s testimony regarding the alleged denial, Hudson
signed the document and checked the line stating “I AGREE with the employer’s statement.”
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Hudson was not asked what he was told regarding the reporting policy. He was asked
about his understanding of “what would happen to you if you didn't report an accident or
damage to property right after it occurred.” Hudson answered that he “would be expecting a
write up or if it was an accident involving the vehicle, probably termination. That's just standard.”
Although Grad testified that he personally informed each driver of the reporting policy,
driver John Ellison testified that Grad “never said nothing to me about it,” that he received the
information from fellow driver Jay Ellis. Ellison noted that he already knew what Ellis told him,
that “[i]t was pretty much assumed that, well, anyplace you work, if there is an accident or
anything like that, you're supposed to report it.”
Salesperson Purvis, although not mentioning the word “damage,” recalled overhearing
Grad tell Mann that “any time that an incident involving one of our trucks, an accident on the
highway, an accident on a jobsite, anything, drivers were to stop, call it in immediately.”
Mann, on the basis of his conversation with Grad concerning the truck that Mann had
previously driven, understood that he must report “damage to [the] vehicle immediately.”
On July 12, driver Edward Grebic was discharged. His timecard reflects that Grebic
worked for the Company for three days, a total of 24.30 hours on July 10, 11, and 12. On his
third day of work, July 12, the truck he was driving sustained damage to both front fenders and
the bumper, which had been pushed to within one inch of the left front tire. When asked about
the damage, Grebic claimed that he “did not know” how this had happened. Grebic was
discharged for failing to report an accident.
Although not clear from the record, it appears that the damage to the truck that Grebic
was driving was the basis for the conversation between Mann and Grad in early July. Grad
confirmed with Mann that the truck had not been damaged when Mann had last driven it.
C. Analysis and Concluding Findings
1. The Section 8(a)(1) Allegations
The complaint alleges that, in late September, the Respondent, by General Manager
Grad, threatened employees with stricter enforcement of work rules, loss of overtime, and
reduction of hours if they selected the Union as their collective bargaining representative.
“Employee-initiation of conversations about unions does not provide a justification under
the Act for ensuing unlawful statements which supervisors choose to make, as such
conversations progress.” Altorfer Machinery Co., 332 NLRB 130, 135 (2000). “[U]nlawful
statements are no less unlawful because it … [was not] the supervisor who initiated discussion
of a union or unions.” Ibid.
The Respondent’s brief does not discuss Grad’s statements to Mann. The brief states
that Mann’s testimony was "inconsistent with GC’s [General Counsel’s] opening statement.”
Opening statements are not evidence. My analysis and findings are based upon Mann’s
credited testimony regarding what Grad said to him.
Grad’s statement that “the Union has their rules that he'll have to play by” and his
rhetorical question as to whether “the drivers can play by those rules,” referred to the rules of
the Union. I find no threat of stricter enforcement of the Respondent’s oral work rules in those
statements.
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Similarly, the minimum hour requirement was stated in terms of “whatever union
contract is put in place.” The General Counsel argues that the statement relating to minimum
hours was the same as the threat to cut working hours found in Felsa Knitting Mills, Inc., 203
NLRB 504 (1974). In that case, the threat was of a specific reduction to 35 hours, stated as
“Union hours,” but without reference to any contract. Id. at 508. Grad’s reference was to
“whatever union contract is put in place;” thus the hours would be hours agreed upon in
collective bargaining and not a threat of “retaliatory action solely on his own initiative.” Milford
Fabricating Co., Inc., 193 NLRB 1012, 1023 at fn. 18 (1971). See also Miller Industries Towing
Equipment, Inc., 342 NLRB 1074, 1076 at fn. 13 (2004). Insofar as no number of hours was
stated, there is no basis for concluding that any contractual minimum would constitute a
reduction. There was no threat that the Respondent would reduce hours.
Grad did threaten to reduce overtime. After referring to a contractual minimum hour
requirement, Grad added that the minimum hour requirement was all the employees would get,
that “overtime would be cut at that point.” The cutting of overtime was an action that the
Respondent would take. The loss of overtime was not “carefully phrased on the basis of
objective fact to convey an employer's belief as to demonstrably probable consequences
beyond his control ….” NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The
Respondent, by threatening loss of overtime if the employees selected the Union as their
collective bargaining representative, violated Section 8(a)(1) of the Act.
The complaint also alleges one instance of interrogation in late September. The
subpoenaed witness that the General Counsel anticipated would testify to the interrogation did
not appear; thus there is no evidence in support of this allegation. Counsel for the General
Counsel, in her brief, requests that I reconsider my ruling denying her motion for an
adjournment to pursue subpoena enforcement. I have done so, and I reaffirm that ruling made
pursuant to my authority under Section 102.35(6) of the Board’s Rules and Regulations to
regulate the course of the hearing. On the first day of the hearing, Counsel advised that she
had two brief witnesses under subpoena who would not be present until the following day and
that their testimony related to Mann’s “state of mind.” Nothing was said about a witness relating
to the interrogation allegation. In view of the nature of the anticipated testimony, I requested the
Respondent to proceed to present its evidence, although the General Counsel had not rested. If
the two absent witnesses had been present, this hearing would have concluded in one day. On
the morning of the second day of hearing, one of the two witnesses appeared. The other did
not. Counsel for the General Counsel moved that I adjourn the hearing in order to obtain
subpoena enforcement upon not one, but two witnesses, the expected second witness and a
third witness who had not previously been mentioned and whose testimony related to the
allegation of interrogation. I accepted an offer of proof with regard to the testimony expected
from the missing second witness, which, as stated in footnote 2, above, I have not relied upon
insofar as I have credited Mann. I closed the hearing and denied the request to adjourn the
hearing to permit subpoena enforcement with regard to the third witness, the existence of
whom was not mentioned until 10 minutes prior to the close of the hearing and whom Counsel
for the General Counsel acknowledged she “never expected … to show.” I reaffirm that ruling. I
shall recommend that the allegation relating to interrogation be dismissed.
2. The Section 8(a)(3) Allegations
The complaint alleges that Richard Mann was warned and discharged because of his
union activities in violation of Section 8(a)(3) of the Act. In assessing the evidence pursuant to
the analytical framework prescribed in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), I find that Mann’s presence at the election as the observer for the Union
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establishes the criteria of union activity and the Respondent’s knowledge of that activity.
Animus is established by General Manager Grad’s threat to reduce overtime if the employees
selected the Union as their collective bargaining representative. Even in the absence of the
threat, the circumstances surrounding the warning and discharge of Mann fully support an
inference of animus. The warning and discharge were adverse actions that directly affected
Mann’s employment. I find that the General Counsel established that union activity was a
substantial and motivating factor for the Respondent’s actions. Manno Electric, 321 NLRB 278
(1996). Thus, it is incumbent to the Respondent to demonstrate that the same action would
have taken place even in the absence of Mann’s protected conduct.
With regard to the warning, prior to October 27, no driver had been warned for failing to
perform a pretrip inspection. I find it incredible that, over the two year period since September
2004, Grad had not had not become aware of any occasion upon which a driver had not
performed a pretrip inspection. A total of 73 unchecked and unsigned driver Daily Reports
establish a lack of enforcement of the policy. Even if I were to have found that Mann did not
perform a pretrip inspection, the timing of the warning, on the day that Mann served as
observer for the Union and on the day that Grad had vulgarly directed the union representatives
to leave his property, suggests an unlawful motive. See Harran Transportation Co., 319 NLRB
461, 463 (1995). That suggestion is reinforced by the absence of prior enforcement of the
pretrip inspection policy.
General Manager Grad claims that he observed Mann get into his truck without
conducting a pretrip inspection and drive off. He made no attempt to stop him. Insofar as Grad
was in a position to observe the alleged dereliction, he was in a position to rectify the situation
at that time. Indeed, Grad testified that, if he observed a driver not performing a pretrip
inspection, he would “[g]o right to them and tell them that … they got to do it.” He did not tell
Mann anything. Even if Grad could not have been heard if he had shouted at Mann, he could
have called Mann on his cellular telephone. His testimony that it is not his practice to call drivers
on the street misses the point. Mann was still at the facility. I do not credit Grad’s testimony.
The brief of the Respondent asserts that Mann, “in his exuberance [following the
election victory of the Union] failed to conduct a vehicle inspection” and that his claim of not
wanting a confrontation “does not fit reality” because he was “ready to take on his employer.”
There is no evidence that Mann was “ready to take on” anybody. I have credited the testimony
of Mann that he signed the warning in order to avoid a confrontation. See Air Caterers, Inc., 154
NLRB 455, 462 (1965). Grad was the confrontational party. Having heard Grad vulgarly tell the
union representatives to get off of his property, Mann reasonably sought to avoid a
confrontation.
The brief of the Respondent does not address the Daily Report signed by Mann that
reflects that he did conduct a pretrip inspection and that the condition of the vehicle was
satisfactory. Mann was not warned for falsifying a document. When the reason given for a
disciplinary action is either false, or does not exist, the Respondent has not rebutted General
Counsel’s prima facie case. Limestone Apparel Corp., 255 NLRB 722 (1981). I find that the
Respondent issued the warning for failure to perform a pretrip inspection to Mann in retaliation
for his union activity and that, by doing so, the Respondent violated Section 8(a)(3) of the Act.
The Respondent contends that Mann was discharged because he violated the oral
policy requiring the immediate reporting of damage to property. Mann understood that he was
to report any accident resulting in damage to his vehicle. So far as Mann knew, there was no
damage. He was told by the individual present that the mesh was used and was going to be
thrown away. There was no accident; thus there was nothing to report.
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The requirement for a report was an oral policy that was stated differently by every
witness who testified. According to Grad, “Anytime there is any damage, whether it be an
accident, incident, whether there is a problem with a customer, … they're supposed to call the
office immediately.” Purvis understood that any time there was “an incident involving one of our
trucks, an accident on the highway, an accident on a jobsite, anything, drivers were to stop, call
it in immediately.” Driver John Ellison knew that “[i]t was pretty much assumed that, well,
anyplace you work, if there is an accident or anything like that, you're supposed to report it.”
Driver Steve Hudson understood that if a driver did not immediately report an accident or
damage to property, the driver “would be expecting a write up or if it was an accident involving
the vehicle, probably termination.” Contrary to the statement in the Respondent’s brief that
Hudson believed that he would be “fi[r]ed if he did not report damage to property immediately,”
his testimony reflects an understanding that incidental damage and accidents involving the
vehicle would be treated differently. Unreported incidental damage would result in a “write up;”
unreported accidents involving the company vehicle would result in termination. That
understanding was borne out in January when a customer reported that Hudson had given him
an “attitude.” If, as Grad claimed, the Respondent required that when there was either damage
or a “problem with a customer … call the office immediately,” Hudson would have been
terminated.
On April 20, the Respondent had issued a written memorandum advising employees
that they would be individually responsible for the cost of any damage to culverts. The
memorandum is silent regarding any reporting requirement.
Mann was not involved in an accident on October 30. So far as he knew there was no
damage to anything. If he called every time he “ran over trash, … [he] would be on the phone
all day.”
The Respondent could certainly choose to believe the complaint of Vice President Jeff
Miller of Rock and Roll Concrete if it had a rational basis for doing so after investigating the
matter. Unlike the situation regarding the sidewalk that Mann had broken in August, prior to the
Respondent’s knowledge of his union activity, the Respondent did not investigate to determine
whether the damage reported by Miller had, in fact, occurred as he claimed.
I have credited the testimony of Mann that Grad cut him off as he was attempting to
explain what occurred. He did not “want to hear it.” Purvis was not sent to the jobsite to
determine what had occurred. The Respondent lost no money because Rock and Roll Concrete
never sought reimbursement. Whether the failure of Rock and Roll Concrete to bill the
Respondent was, as Miller testified, due to his being too “busy …forgot,” or upon his
determining that the mesh was used is not established. Investigation by Purvis would have
established how it was possible for Mann to have damaged only one roll of mesh in a pile
containing some 30 rolls of mesh unless that roll was not in the pile and had been used and
was to be thrown away as Mann was told by the employee with whom he spoke.
Accepting one version of an event without obtaining or considering all the facts suggests
a discriminatory motive. As stated, with Board approval, in Bantek West, Inc., 344 NLRB No.
110, JD slip op at 10 (2005:
"The failure to conduct a meaningful investigation or to give the employee [who is the
subject of the investigation] an opportunity to explain" are clear indicia of discriminatory
intent. K & M Electronics, 283 NLRB 279, 291 fn. 45 (1987). When addressing
discriminatory discipline, the Respondent "not only must separate its tainted motivation
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here from any legitimate motivation, but it must persuade that its legitimate motivation
outweighs its unlawful motivation so much that the Company would have imposed the
discipline even in the absence of any union activities." Formosa Plastics, 320 NLRB 631,
648 (1996).
The Respondent has not persuaded “that its legitimate motivation outweighs its unlawful
motivation so much that the Company would have imposed the discipline even in the absence
of any union activities." There was no accident. Mann was told that there was no damage. The
Respondent did not, as it had in August, send a representative to the jobsite to confirm that
there was damage for which the Respondent was responsible. The discharge of Mann three
days after the election victory of the Union at which he served as observer for the Union and
three days after the unprecedented warning issued to him for allegedly failing to conduct a
pretrip inspection was effectuated without giving him the opportunity to explain and with no
investigation whatsoever. The foregoing facts belie any claim of legitimate motivation.
The Respondent argues that the facts of this case “are identical” to the facts in Grocery
Haulers, Inc., 315 NLRB 1312 (1995). Contrary to that argument, the cases are not identical. In
Grocery Haulers, Inc., the Company had documentary photographic evidence of the damage, a
two and one half foot section of stockade fence that had been flattened by the trailer of the
truck that had backed into the fence. When confronted with his failure to report the damage, the
driver denied being aware that he had damaged the fence. Id. at 1315. In this case the
Company had no documentary evidence establishing any damage, and the driver did not deny
the incident. Mann was cut off by Grad who did not permit him to explain that he understood
that there was no damage because the mesh was used and was to be thrown away.
A more applicable case is Thurston Motor Lines, 263 NLRB 1101 (1982), in which the
respondent never sought the employee’s “version of the ‘accident’ or the reasons why he did
not report it.” In that case, in which the employee had chipped a brick on a loading dock, the
respondent did investigate and determined that the employee had chipped a brick. The Board
found that the respondent “seized upon a trifling incident, called it an ‘accident,’ and used it as a
pretext to discharge” the employee for his union activity. Ibid. In this case the Respondent
discharged Mann with no investigation whatsoever.
The Respondent argues that its discharge of employee Edward Grebic establishes an
absence of disparity. I disagree. The Respondent’s investigation of the damage caused by
Grebic was instantaneous; it had only to look at his truck. The Respondent did not see the
damage that Mann had allegedly caused, and it sent no representative to the jobsite to confirm
the damage reported by Miller. The discharge of a three day employee who denied knowing
how damage to two fenders and the bumper of his truck occurred does not establish consistent
enforcement of the Respondent’s oral policy relating to the immediate reporting of accidents or
damage. The Respondent has not established that Mann would have been discharged in the
absence of his union activity. I find that the Respondent discharged Richard Mann because of
his union activity in violation of Section 8(a)(3) of the Act.
Conclusions of Law
1. By threatening employees with loss of overtime if they selected the Union as their
collective bargaining representative, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By warning Richard Mann on October 27, 2006, because of his union activities, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
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Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
3. By discharging Richard Mann on October 30, 2006, because of his union activities,
the Respondent has engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily warned and discharged Richard Mann, it must
rescind the warning and offer him reinstatement and make him whole for any loss of earnings
and other benefits, computed on a quarterly basis from October 30, 2006, to date of proper
offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, U.S. Recycling and Disposal, LLC, Plainfield, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of overtime if they selected the Union as their
collective bargaining representative.
(b) Warning, discharging, or otherwise discriminating against any employee for
supporting General Chauffeurs, Sales Drivers and Helpers Union Local 179, or any other union.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the written warning issued to
Richard Mann on October 27, 2006.
(b) Within 14 days from the date of this Order offer Richard Mann full reinstatement to

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make Richard Mann whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful warning and unlawful discharge, and within 3 days thereafter notify Richard Mann in
writing that this has been done and that the warning and discharge will not be used against him
in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facility in Plainfield, Illinois,
copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 13, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 30, 2006.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. May 21, 2007
_____________________
George Carson II
Administrative Law Judge

4 If this Order is enforced by a Judgment of the 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.”
JD(ATL)–18–07
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 had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten you with loss of overtime if you select the Union as your collective
bargaining representative.
WE WILL NOT warn, discharge, or otherwise discriminate against any of you for supporting
General Chauffeurs, Sales Drivers and Helpers Union Local 179, or any other union.
WE WILL, within 14 days from the date of the Board’s Order, rescind the warning issued to
Richard Mann on October 27, 2006.
WE WILL, within 14 days from the date of the Board’s Order offer Richard Mann full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him, less any net interim earnings, plus interest, in the manner set
forth in the remedy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful warning and discharge of Richard Mann and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the warning and discharge will
not be used against him in any way.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of you in the
exercise of your rights guaranteed by Section 7 of the Act.
U.S. RECYCLING AND DISPOSAL, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
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investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-1219
(312) 353–7570, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170