Waste Management of Arizona

National Labor Relations Board - Board Decisions

Dec 9, 2005

345 N.L.R.B. 1339 (N.L.R.B. 2005)

WASTE MANAGEMENT OF ARIZONA
345 NLRB No. 114
1339
Waste Management of Arizona, Inc. and Interna-
tional Brotherhood of Teamsters, Local No. 104,
General Teamsters (Excluding Mailers), State of
Arizona, AFL–CIO. Cases 28–CA–18542, 28–
CA–18543, 28–CA–18544, 28–CA–18848, and
28–CA–18902
December 9, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 16, 2004, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief to the General Counsel’s answering
brief. The General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed an answering
brief to the General Counsel’s cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 as modified below, and to adopt
the recommended Order as modified.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions have been filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) of the Act by coercively interrogating
and threatening employee Troy Hoekstra with a loss of pay; expressing
to Hoekstra the futility of seeking representation by a union; coercively
interrogating employees Joe Packer, Kevin Harring, and Samuel Won-
derling; promising benefits to Wonderling in exchange for his dropping
his support of the Union; soliciting Packer’s grievances and promising
to remedy them; and threatening employees with more onerous work-
ing conditions and threatening to calculate their pay at reduced levels.
Nor have any exceptions been filed to the judge’s dismissal of other
8(a)(1) allegations.
2 We need not pass on whether the Respondent coercively interro-
gated employee Samuel Wonderling on February 10. The violation
would be cumulative in view of our adoption of the judge’s uncontested
findings of other coercive interrogations, above.
The judge found that the Respondent violated Sec. 8(a)(1) when it
prohibited off-duty employees from distributing union literature in the
parking lots of two of its facilities. We adopt the judge’s finding of a
violation. In doing so, however, we find it unnecessary to pass on
whether the Respondent violated the Act when it prohibited distribution
by employees who engaged in that activity at facilities other than where
they worked. At each location where employees were prohibited from
engaging in distribution, at least one of the affected employees was
employed at that location. See Town & Country Supermarkets, 340
NLRB 1410, 1414 fn. 20 (2004).
Chairman Battista and Member Schaumber agree with the judge that
the Respondent violated Sec. 8(a)(1) by discriminatorily enforcing its
Background
The Respondent is a large trash-hauling company. It
employs drivers who pick up waste from residential and
commercial customers throughout the Phoenix metro-
politan area. The Union conducted an organizing cam-
paign among the Respondent’s employees in 2001, but
failed to receive a majority of the votes cast in a Board
election. In mid-January 2003,3 the Union again began
to organize the employees at five of the Respondent’s
facilities in the Phoenix area.
February 10 Conversation Between Rush
and Wonderling
Samuel Wonderling, a driver at the Respondent’s El-
wood facility, had been openly and actively opposed to
the Union during the Union’s 2001 campaign. In 2003,
however, Wonderling actively supported the Union.
Alan Rush, a route manager at the Respondent’s Elwood
facility, had been a driver and bargaining unit member
during the 2001 campaign, when he also opposed the
Union.
On February 10, Wonderling contacted Rush from his
truck to inquire about his schedule. After Rush and
Wonderling ended their discussion about Wonderling’s
schedule, Rush told Wonderling that he was aware that
the employees had held a union meeting. Rush asked
Wonderling for his assessment of whether the Union
enjoyed sufficient support among unit employees to win
an election. Wonderling replied that he felt uncomfort-
able discussing the Union over the Respondent’s two-
way radio in his truck, and asked Rush for his home tele-
phone number, which Rush gave him.
Wonderling promptly called Rush at home and in-
formed him that he, Wonderling, supported the Union.4
The judge found that Rush unlawfully created the im-
pression of surveillance by telling Wonderling that he
was aware that employees had held a union meeting. We
disagree.
In determining whether an employer has unlawfully
created the impression of surveillance of employees’
union activities, the test that the Board has applied is
whether, under all the relevant circumstances, reasonable
employees would assume from the statement in question

no-solicitation rule against employees because they were engaged in
brief discussions about the Union. However, they find it unnecessary
to rely on the judge’s comments and case citations set forth in sec. III,
I, pars. 10 and 12 of the judge’s decision concerning the Board’s dis-
tinction between union solicitation and other employee activity in
support of union organizing.
3 All dates refer to 2003, unless otherwise noted.
4 Rush responded, “I thought I fired all of them and I tried to make
sure they weren’t one of them when I hired them.” The judge found,
and we agree for the reasons set forth in his decision, that Rush’s
statement was a threat in violation of Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1340
that their union or other protected activities had been
placed under surveillance. Flexsteel Industries, 311
NLRB 257 (1993); Schrementi Bros., Inc., 179 NLRB
853 (1969). The General Counsel has not shown that the
union meeting was held in secret. Thus, Rush’s state-
ment that he knew that employees had held a union meet-
ing would not have reasonably implied that Rush had
monitored employees’ activities, given the various other
ways in which Rush might have learned of the nonsecret
meeting. Rush did not say or even suggest that he had
learned of the meeting in any covert manner, nor did he
suggest that he had any detailed knowledge about the
extent of the employees’ organizing activity. Cf. United
Charter Service, 306 NLRB 150 (1992).
Our colleague relies on the fact that Rush also said that
he had fired the union supporters and tried to make sure
that he did not hire any union supporters. Of course, the
statement was an 8(a)(1) threat. However, it is unreason-
able to leap from that statement to a finding of an unlaw-
ful impression of surveillance. More particularly, Won-
derling would have to infer from the threat that the
knowledge of union support came from spying on the
union activity of the previous Saturday. Inasmuch as the
purported actions (firing and not hiring union supporters)
took place before the Saturday meeting, the inference is
illogical.5
Thus, we find no merit in, and dismiss this complaint
allegation.
Termination of Troy Hoekstra
Employee Troy Hoekstra had been an open and active
union supporter from the beginning of the Union’s 2003
campaign. Hoekstra was among a group of employees
who distributed union flyers in the parking lots of two of
the Respondent’s facilities on February 20 and 22. The
flyers listed Hoekstra as a union organizing committee
member.
Hoekstra had also been the target of two of the Re-
spondent’s other 8(a)(1) violations in January and Febru-
ary.6 On one of those occasions, Rush told Hoekstra that
the employees who were trying to organize a union were
“pussies,” and that Hoekstra could not count on the em-
ployees to support him.
On February 21, Hoekstra received his paycheck for
the previous 2-week period. Hoekstra believed that the
Respondent had paid him less than he was owed. Hoek-

5 We do not say that the threat was irrelevant to the allegation of im-
pression of surveillance. We simply say that the threat does not estab-
lish that allegation. Further, Rush’s question about the strength of the
Union’s support, far from creating an impression of surveillance, sug-
gests that Rush was in the dark as to this matter, i.e., that he was not
surveilling.
6 See fn. 1, supra.
stra approached Route Manager Rush in the dispatch area
of the Respondent’s Elwood facility offices, and told him
that the Respondent had not adequately paid him for the
previous week. Rush responded by telling Hoekstra how
management had calculated Hoekstra’s pay, but Hoekstra
did not accept Rush’s explanation. He believed that the
Respondent had reduced his pay in retaliation for his
union activity.7
Hoekstra became belligerent, reacting to Rush’s expla-
nation by screaming statements such as: “this is f—ing
bullshit”; “you’re f—ing with me because we’re for the
Union”; “this isn’t f—ing Rush Management.” Rush
repeatedly instructed Hoekstra to come into Rush’s of-
fice to discuss the matter, but each time Hoekstra refused
and cursed more loudly. Then, Hoekstra clocked out and
left the facility. As Hoekstra left, he turned to Rush and
said, “What comes around goes around.” Several em-
ployees, including both unit employees and supervisors,
witnessed Hoekstra’s outburst, which occurred in an area
of the Respondent’s facility where employees gathered at
the end of the workday to complete paperwork prior to
clocking out and leaving work. The Respondent termi-
nated Hoekstra 4 days later.
The General Counsel alleges that the Respondent ter-
minated Hoekstra for his union activity. Applying the
criteria that the Board articulated in Atlantic Steel Co.,
245 NLRB 814 (1979), the judge dismissed the allega-
tion. The judge reasoned that, even if Hoekstra was en-
gaged in protected activity when he complained that the
Respondent had reduced his pay in retaliation for his
union activity, Hoekstra lost the protection of the Act by
engaging in opprobrious and abusive conduct. We agree
with the judge’s conclusion, but do not believe that it
completely responded to the General Counsel’s conten-
tion. Insofar as the General Counsel argues that the real
reason for the discharge was Hoekstra’s outbursts, and
that such outbursts were not outside the protection of the
Act, the judge’s finding responds to it, viz. the outbursts
were outside the protection of the Act. However, insofar
as the General Counsel contends that the real reason for
the discharge was Hoekstra’s prior union activity we
must conduct an analysis under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
To establish a violation of Section 8(a)(3) under
Wright Line, the General Counsel must make an initial
showing that the employee’s union activity was a moti-
vating factor in the employer’s adverse action against

7 The General Counsel alleged that the Respondent violated Sec.
8(a)(3) and (1) by reducing Hoekstra’s pay in retaliation for his union
activity. We adopt the judge’s recommended dismissal of that allega-
tion.
WASTE MANAGEMENT OF ARIZONA 1341
that employee. To meet that burden, the General Coun-
sel must show that the employee engaged in union activ-
ity, that the employer was aware of that activity, and that
the employer had animus toward the employee’s pro-
tected conduct. Donaldson Bros. Ready Mix, Inc., 341
NLRB 958 (2004). Proof of an employer’s animus may
be based on circumstantial evidence, such as the em-
ployer’s contemporaneous commission of other unfair
labor practices. Amptech, Inc., 342 NLRB 1131, 1135
(2004).
We find that here, the General Counsel has met that
burden. The Respondent was well aware of Hoekstra’s
ongoing union activity. Given that knowledge, the Re-
spondent’s contemporaneous commission of other unfair
labor practices is sufficient to establish antiunion animus.
The inference that antiunion animus was a substantial or
motivating factor in the Respondent’s decision to dis-
charge Hoekstra can fairly be drawn because, as ex-
plained above, Hoekstra was the specific target of two
contemporaneous unfair labor practices.
Once the General Counsel has met that burden, the
employer may contradict or meet the General Counsel’s
case, or demonstrate that it would have taken the same
action even in the absence of the protected conduct.
Wright Line, 251 NLRB at 1089. We agree with the
judge that the Respondent has shown that it would have
taken the same action in the absence of the protected
conduct. Hoekstra screamed profanities at Rush in a
crowded work area, and repeatedly refused to speak to
him in private, preferring to loudly curse at him in front
of other employees. His conduct was insubordinate, it
disrupted the workplace, and undermined Rush’s super-
visory authority.
Our dissenting colleague notes that Hoekstra had been
the object of 8(a)(1) remarks and a prior pay shortage.
However, neither of these was the cause of his outburst.
The outburst was caused by the dispute concerning less
pay for fewer hours because of bad weather. There is no
claim that this reduction in pay was unlawful. Nor was it
substantial. Further, we agree with the judge that the
General Counsel did not demonstrate that the Respon-
dent’s discipline of Hoekstra was disparate. Although
the General Counsel introduced evidence showing that
the Respondent’s employees often used profanity in the
workplace, and that the Respondent had tolerated some
insubordination from employees in the past, the General
Counsel did not show that the Respondent tolerated be-
havior comparable to Hoekstra’s.8

8 For example, another employee testified that, in the privacy of an
office, he had called Rush a liar and “thick-headed.” In our view, that
conduct was not comparable to Hoekstra’s more public and sustained
outburst.
We conclude that the Respondent did not violate Sec-
tion 8(a)(3) and (1) by terminating employee Hoekstra,
because the Respondent established that it would have
terminated Hoekstra, even absent his union activity.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Waste
Management of Arizona, Inc., Phoenix, Arizona, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(c) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER LIEBMAN, dissenting in part.
In finding that Route Manager Alan Rush did not cre-
ate an unlawful impression of surveillance, the majority
fails to grasp the impact of Rush’s statements to em-
ployee Thomas Wonderling, when those statements are
considered together. The majority also errs in finding
that the Respondent established that it would have dis-
charged Troy Hoekstra—an open and active union sup-
porter, with a spotless employment record, who was ad-
mittedly the victim of several unfair labor practices—
even in the absence of his union activity.1
Impression of Surveillance
The judge found, on the basis of his credibility deter-
minations, that during a phone conversation Rush told
employee Wonderling that he “knew there had been a
union meeting” the previous Saturday, and asked
whether the Union had enough support to win bargaining
status. In a second phone conversation almost immedi-
ately afterward, when Wonderling told Rush he had be-
come a union supporter, Rush replied that “I thought I
fired all of them and I tried to make sure they weren’t
one of them when I hired them.” As the majority recog-
nizes, Rush’s reply was an unlawful threat and independ-
ently violated Section 8(a)(1). But the majority finds,
contrary to the judge, that Rush’s comment that he knew

1 I agree with the majority with respect to the other complaint allega-
tions.
The majority finds it unnecessary to pass on “whether the Respon-
dent violated the Act when it prohibited distribution by employees who
engaged in that activity at facilities other than where they worked.” I
agree, but would point out that the Board has held, with the approval of
the courts, that under Sec. 7 of the Act, offsite employees have non-
derivative access rights to outside, nonworking areas of their employ-
ers’ property. See ITT Industries, 341 NLRB No. 118, slip op. at 3
(2004) (not reported in Board volumes), enfd. 413 F.3d 64 (D.C. Cir.
2005); Hillhaven Highland House, 336 NLRB 646, 648–649 (2001),
enfd. 344 F.3d 523 (6th Cir. 2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1342
about the union meeting would not have created an im-
pression that union activity was under surveillance. I
need not decide whether Rush’s comment alone was
unlawful, as it was made in the context of other state-
ments, which would leave no doubt that Rush had been
surveilling the employees’ union activities in order to
identify and fire union supporters: Rush not only told
Wonderling that he knew about the union meeting, but
also that he thought he had been successful in firing all
of the union supporters and that he had tried to make sure
that he did not hire any union supporters. He also asked
Wonderling about the strength of the Union’s support.
These statements, considered together, strongly sug-
gested that Rush’s knowledge of the union meeting was
acquired as part of his ongoing campaign to closely
monitor the employees’ union activities.2 Accordingly, I
would find a violation of Section 8(a)(1).3
Discharge of Hoekstra
The majority correctly finds that the Wright Line4 test
applies to Hoekstra’s discharge and that the General
Counsel has met his initial burden of establishing that
the Respondent’s antiunion animus was a motivating
factor in the discharge. Contrary to the majority, I
would find that the Respondent has not met its burden
of showing that Hoekstra would have been terminated
on this occasion even if he had not engaged in union
activity.
It is undisputed that Hoekstra was an open and active
union supporter. In addition, as the majority notes, he
was the target of at least three of the Respondent’s vio-
lations of Section 8(a)(1) during the union campaign: an
unlawful interrogation, a threat of loss of pay, and a
threat of futility of organizing.
In November 2002, 3 months before his discharge,
Hoekstra received a paycheck for less than he was enti-
tled to receive. This was corrected after he complained
to management. On February 21, 2003, however,
Hoekstra found that his paycheck again was lower than
he believed he was due. He approached Route Manager
Rush in the hallway near the dispatch office, where

2 In the majority’s view, Rush’s statement to Wonderling—that he
thought he had fired all of the union supporters and had tried to make
sure not to hire any of them—is irrelevant to whether Rush created the
impression of surveilling the union meeting, because the firings and
failure to hire union supporters predated the union meeting. But,
Rush’s statement clearly makes the point that Rush had made an ongo-
ing effort to keep track of who was a union supporter, which certainly
adds to the impression that Rush was surveilling union activity.
3 See, e.g., Spartech Corp., 344 NLRB No. 72, slip op. at 1 (2005)
(impression of surveillance created by statement that employer official
knew who had attended the union meeting).
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
several other employees were present. Rush told Hoek-
stra that his paycheck was reduced because he had
driven fewer hours due to bad weather. Hoekstra lost
his temper and yelled that this was “f–king bullshit”;
“you’re f–king me because we’re for the Union”; “this
is not f–king Rush Management”; “you can’t f–king do
this”; and “this is f–king wrong.” During this outburst,
Rush told Hoekstra several times to come to his office
to discuss the matter. Hoekstra did not comply, and
finally walked away. He was terminated for this inci-
dent 4 days later.
As noted above, Hoekstra had previously been
unlawfully interrogated and threatened by Rush, and he
was unlawfully threatened with loss of pay. He had
also previously received less pay than he had earned,
not long before the February 21 incident. Rush’s
unlawful harassment of Hoekstra, the unlawful loss of
pay threat, and what appeared to be a second pay short-
age certainly established a degree of provocation.
Given this, the fact that workers often used profanity in
the workplace, and Hoekstra’s spotless employment
record (he was a 7-year veteran with excellent evalua-
tions and no prior disciplinary record), I do not accept
that the Respondent would have fired Hoekstra over
this one incident, even if he had not been a union sup-
porter. Especially in light of Respondent’s clearly ex-
pressed intent to fire all union supporters, I would find
that the discharge of Hoekstra, an open and active union
supporter, violated Section 8(a)(3).
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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees concerning their
union sympathies or activities.
WE WILL NOT threaten employees with reduced pay,
benefits, or onerous working conditions if they select the
International Brotherhood of Teamsters, Local No. 104,
WASTE MANAGEMENT OF ARIZONA 1343
General Teamsters (excluding mailers), State of Arizona,
AFL–CIO, or any other labor organization, as their col-
lective-bargaining representative.
WE WILL NOT threaten to discharge or to refuse to hire
union supporters.
WE WILL NOT solicit employee grievances and promise
employees improved wages, benefits, or better working
conditions if they withhold support from the Union.
WE WILL NOT promulgate and enforce discriminatory
no-solicitation and no-distribution rules and remove un-
ion literature from employee vehicles parked in our park-
ing lots.
WE WILL NOT promulgate or enforce a discriminatory
rule that prohibits employees from discussing the Union
during working time or threatening employees with
stricter enforcement of our no-solicitation rules.
WE WILL NOT threaten employees with unspecified re-
prisals for engaging in union activity.
WE WILL NOT disparately enforce our policy prohibit-
ing employees from wearing hats other than Waste Man-
agement hats.
WE WILL NOT tell employees that it would be futile for
them to support the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL rescind, revoke, and cease enforcing the dis-
criminatory, overly broad no-solicitation and no-
distribution rules against employees.
WE WILL rescind the discriminatory rule prohibiting
employees from discussing union matters at work, while
permitting all other discussions.
WASTE MANAGEMENT OF ARIZONA, INC.
Sandra L. Lyons, Esq. and Johannes A. Lauterborn, Esq., for
the General Counsel.
Charles L. Fine, Esq. and Laurent R.G. Badoux, Esq., for the
Respondent.
Kathy Campbell, for the Charging Party.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issues
presented are whether the Respondent has violated Section
8(a)(1) and (3) of the National Labor Relations Act (Act).2 On
the entire record, including my observation of the demeanor of
the witnesses, and after consideration of the parties’ briefs, I
make the following

1 This case was heard at Phoenix, Arizona, on January 26–29, Feb-
ruary 17–19, and April 6, 2004. All dates in this decision refer to 2003
unless otherwise stated.
2 29 U.S.C. § 158 (a)(1) and (3).
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is engaged in the business of waste man-
agement services to commercial, governmental, and residential
customers in the Phoenix, Arizona area. The Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Charging Party Union (Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by reducing the pay of Troy Hoekstra
and discharging Hoekstra and David Keene because of their
activities on behalf of the Union. It is further alleged that the
Respondent committed numerous violations of Section 8(a)(1)
of the Act including promulgation and enforcement of certain
employment rules, unlawful interrogation, threats, soliciting
grievances, voicing the futility of union representation, and
creating the impression of surveillance of employees’ union
activities.
The Respondent employs drivers who pick up waste from
various types of containers throughout the Phoenix metropoli-
tan area. The Respondent has five facilities which are referred
to as Elwood (South Yard), Port-o-let (19th Ave.), Chandler,
Container (32nd St.), and North Yard (Williams Road). The
Respondent also operates a transfer station near the Phoenix
Sky Harbor Airport where drivers dump their waste. Each loca-
tion is directed by a district manager. Under the district manag-
ers are several route managers that supervise the drivers and
routes that operate out of that facility. In 2001, the Union con-
ducted an organizing campaign among the Respondent’s em-
ployees. An election was eventually held and the Union failed
to receive a majority of the votes. In late 2002, several of Re-
spondent’s Elwood employees started discussing the possibility
of again organizing the Respondent’s workers. In mid-January
2003, employees Sam Wonderling and Tim Peek contacted
Kathy Campbell, the Union’s organizer, about obtaining union
representation. Campbell told them that they should form an
organizing committee and test the employees’ interest in having
the Union represent them. The committee was created, the em-
ployees began actively discussing the Union, meetings were
held with the Union and union flyers were passed out by the
organizing committee. Among the employees named in the
flyers as organizing committee members were Kevin Harring,
Mark Keene, David Keene, Joe Packer, Andy Romero, Troy
Hoekstra, Tim Peek, and Sam Wonderling.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. January 20—Rush
Alan Rush was a route manager at the Elwood facility from
September 2001 until July 2003, when he was transferred to the
Chandler facility. On or about January 20, 2003, employee
Troy Hoekstra went into Rush’s office to look at the vacation
calendar. Hoekstra testified that he and Rush were discussing
the vacation schedule when Rush asked him: “What do you
think of this union shit?” Hoekstra told Rush that he was happy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1344
with everything he had at Respondent but wanted it in a legal
binding contract. Rush said “You know, if the union comes in
here, you guys will be making Valley-wide average. Troy, do
you think on $14 an hour you can afford your cabin in Flag-
staff?” (Hoekstra had a cabin in Northern Arizona that he and
Rush had discussed previously.) At the time of the conversa-
tion, Hoekstra was making $19.23 an hour. Rush then changed
the subject, asked Hoekstra for some cigarettes, and proceeded
to follow Hoekstra out to his truck in the parking lot. Hoekstra
recalled that Rush then told him that he had just watched a
program about Consolidated Freight, a trucking company,
where the employees had been locked out, and even Jimmy
Hoffa, the president of the Teamsters, was not able to do any-
thing for them. Rush testified by way of general denial that he
had said any of the things attributed to him by Hoekstra.
Hoekstra’s demeanor and detailed testimony of what was
said to him by Rush impressed me as being truthful and accu-
rate. His testimony is contrasted with Rush who left the sense
of one who was not offering a complete picture of what he
knew and was not forthcoming in his recitation of events. I
credit Hoekstra as to what Rush said to him.
The General Counsel alleges that Rush’s question to Hoek-
stra about the Union was unlawful interrogation and his refer-
ence to $14 wages was a threat to reduce his pay if the Union
was selected as the employees’ collective-bargaining represen-
tative. In determining if an interrogation violates Section
8(a)(1) of the Act, the Board looks at whether under all the
circumstances the interrogation reasonably tends to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Rossmore House, 269 NLRB 1176 (1984). The
Board has applied a “totality of the circumstances” test to inter-
rogation. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
The areas of inquiry are the background, the nature of informa-
tion sought, identity of the questioner, and the place and
method of interrogation. Id. Rush questioned Hoekstra privately
in his office and it was not shown at the time that Hoekstra had
publicized his support for the Union. Rush was a supervisor and
was clearly attempting to ascertain what Hoekstra’s union sym-
pathies were. Under all of the circumstances, I find that this
interrogation was unlawful and violated Section 8(a)(1) of the
Act. I further find that Rush’s reference to how Hoekstra would
like trying to live on wages that were reduced $5.23 an hour
was a threat suggesting that if the employees selected the Union
to represent them he could look forward to that type of loss of
pay. I conclude this threat violated Section 8(a)(1) of the Act.
B. Late January and February 10—Rush
In approximately late January 2003, employee Joe Packer
was in Rush’s office to discuss his performance evaluation.
Packer testified that after they finished talking about the evalua-
tion Rush asked him how he felt about the Union. Packer told
Rush that he was from New York where there are a lot of un-
ions and he would look at both sides and would make his own
decision.
Employee Sam Wonderling testified that while working his
route on or about February 10, 2003, he called Rush on his
radio to discuss a concern he had about a Sunday schedule.
The two men concluded their discussion about that matter and
then Rush said that he knew there had been a union meeting on
Saturday and asked Wonderling if the numbers were “strong
enough.” Wonderling testified that he was uncomfortable talk-
ing to Rush over the radio and thus asked him for his home
phone number so he could call Rush back. Shortly thereafter
Wonderling did telephone Rush at his home. He told Rush that
he had switched sides and was now supporting the Union.
Wonderling recalled that Rush responded, “I thought I fired all
of them and I tried to make sure they weren’t one of them when
I hired them.” Wonderling asked Rush if he had heard what he
had just said, that he was on the Union’s side this time. Rush
said he had heard Wonderling. Wonderling then said that he
had told Rush in the previous union campaign that if the Re-
spondent did not start treating the drivers right, he would be
sitting on the other side of the table from the Company. Rush
replied, “The Company lost one hell of an ally.”
In the early part of February employee Kevin Harring was
driving on his route when Rush radioed him. According to Har-
ring, Rush said he wanted to get the “run down” of how Har-
ring felt about the Union. Harring told Rush he was not com-
fortable talking about the subject and Rush said that was fine
and he would discuss it later with him when he was back at the
facility.
Harring testified that he attempted to avoid Rush after their
conversation but about 2 weeks later Rush saw him talking to
another supervisor, Jim Sargeant, and asked Harring to come to
his office. Harring and Rush then went into the office. Harring
testified that Rush asked him how he felt about the Union.
Harring replied that he was for the Union. Rush stated that the
union rules were harsher than company rules and that if Harring
thought the rules were strict now, they would be a lot stricter
with the Union. Rush also said that the Respondent would have
to take a Valley average for pay and start there for negotiations.
Rush also said that a union steward would be one more person
that knew their business that did not know about it now. Rush
asked Harring what the issues were. Harring testified he told
Rush he had some issues with the working conditions, includ-
ing the rising cost of benefits to employees. He also told Rush
of his disappointment with having attended classes about haul-
ing special waste so he would earn more money. The special
waste assignment, however, had not materialized. Rush asked
how much more money was he expecting to make by hauling
the special waste and Harring told him a couple of dollars
more. Harring testified that Rush asked if he got Harring a cou-
ple more dollars an hour, would it “make this go away.” Har-
ring responded only by shrugging his shoulders. Rush told Har-
ring that he had been for the Union at one time but when he
weighed the positives and the negatives about the Union, the
Respondent came out better.
Rush recalled having a conversation with Harring on Febru-
ary 12, in which they discussed Harring’s dissatisfaction about
not getting more pay after taking the special waste classes.
Rush testified that he knew nothing about the special waste
matter but he told Harring he would check on it for him. Rush
then spoke to District Manager Jim Sergeant, about the matter
and was told the Respondent was not implementing the special
waste program at that time and no employee would be paid
more since the program was not in effect. Rush testified that he
WASTE MANAGEMENT OF ARIZONA 1345
later passed this information on to Harring. Rush denied that he
ever promised benefits to any employee if the employees would
reject representation by the Union. Rush denied at any time
asking Harring, Packer, Wonderling, or any other employee, if
they supported the Union.
Packer, Wonderling, and Harring impressed me as having
very good recollections of their conversations with Rush, in-
cluding questioning them as to their union sympathies and em-
ployees’ union activities. I found Rush not to be candid in his
version of events and his denials of committing any unfair labor
practices. I do credit Packer, Wonderling, and Harring and find
that, as they testified, they were interrogated by Rush. I find
that under all the circumstances these interrogations were viola-
tions of Section 8(a)(1) of the Act. Rossmore House, 269
NLRB 1176 (1984). I further find that Rush’s asking Harring if
he could get him increased pay if that would make the union
situation go away, what the issues were, threatening employees
with more onerous working conditions and calculating their pay
at a reduced level for purposes of negotiation if the Union rep-
resented them, are all unlawful conduct that tends to restrain,
coerce, and interfere with employees’ union activities. I con-
clude all of this conduct violated Section 8(a)(1) of the Act.
I additionally find that Rush did inform Wonderling that he
knew of the union meeting on Saturday and asked him if the
union support among employees was strong enough. I conclude
that Rush stating to an employee that he knew of the union
meeting reasonably suggested to the employees that the Re-
spondent was closely monitoring their organizing efforts and
thus unlawfully created the impression that employees’ union
activities were under surveillance. I find this creation of the
impression of surveillance is a violation of Section 8(a)(1) of
the Act. United Charter Service, 306 NLRB 150 (1992); South
Shore Hospital, 229 NLRB 363 (1977); Schrementi Bros., Inc.,
179 NLRB 853 (1969). Likewise, Rush’s statement concerning
firing and not hiring union supporters was a threat that employ-
ees supporting union representation would be terminated or not
hired. I conclude that these threatening statements are also vio-
lations of Section 8(a)(1) of the Act.
C. February 11 & 12—Rush
On or about February 11, 2003, Wonderling was driving his
route when Rush called him on the radio. Rush again asked
Wonderling if the numbers were strong enough, and Wonder-
ling replied that he did not know. Rush then asked what it
would take to get Wonderling over to “our team.” Wonderling
understood that Rush was asking him what did he want in order
to get him to support the Respondent rather than the Union. He
told Rush that to change his support would reflect on his credi-
bility.
The following day Wonderling was in his truck and engaged
in a cell phone conversation with Union Organizer Kathy
Campbell. With Campbell still on the phone, Wonderling called
Rush on his truck radio. Campbell was able to hear the conver-
sation between Rush and Wonderling. Wonderling asked Rush
if “the deal” was still open—referring to the previous day’s
conversation where Rush had asked Wonderling what it would
take to get Wonderling to switch sides. Rush replied that the
deal was still open. Wonderling said that there were three
things he wanted to see happen before he would switch sides.
Wonderling told Rush that he wanted his seniority calculated
with credit for having worked for a previous owner of the Re-
spondent’s business (Browning Ferris Industries), he wanted to
be assigned a new truck that Respondent had just received, and
he wanted his friend, Gilbert Garcia, who had been fired by the
Respondent, to be eligible to return to work in 6 months instead
of the usual 1 year. Rush told Wonderling he would get to work
on those items the first thing that morning. Rush did go to
higher supervision regarding Wonderling’s desires but was told
in effect that nothing could be done to satisfy the requests.
Later in the day Rush invited Wonderling into his office and
told him that he had looked into the three things that he had
asked for and did not have an answer for him regarding the
seniority. Rush said that the only way to get a new truck was to
take over a route instead of being a relief driver, and that it was
a corporate policy that Gilbert Garcia would have to wait 1 year
to reapply for work.
I credit Wonderling’s testimony of his conversations with
Rush and note that his second conversation was overheard by
Campbell who corroborated what Rush said. I find that Rush
did interrogate Wonderling about the employees union support
and probed him as to what it would take to not support the Un-
ion. Rush confirmed the next day that his “offer” to provide
benefits to Wonderling in exchange for his dropping support of
the Union was extant and Rush admitted following up on these
subjects. I find that Rush’s interrogation and promise to seek to
satisfy Wonderling’s requests tended to interfere with, restrain,
and coerce employees in their union activities. I conclude that
by theses actions the Respondent violated Section 8(a)(1) of the
Act.
D. February—No-Distribution Policy
The General Counsel alleges that on various dates in late
February 2003, some of Respondent’s supervisors promulgated
an overly broad and discriminatory no-distribution rule that
prohibited employees from distributing union literature on the
Respondent’s premises and unlawfully removed union flyers
from employees’ vehicles parked in the Respondent’s parking
lots. The Respondent cites its no-solicitation policy as justifica-
tion for prohibiting such placement of flyers and for excluding
off-duty employees from the parking lot for such purposes. The
record shows that the Respondent has signs posted at its Phoe-
nix facilities that state “no-solicitation.” There are also no tres-
passing signs at the Respondent’s Port-a-let and North Yard
locations. The Respondent published a letter to all of its Phoe-
nix area employees on January 1, 2003, that set forth the fol-
lowing company policy regarding the distribution of materials.
Also, employees may not distribute non-Waste Management
literature or leaflets of any kind . . . during working time, in the
work area or anywhere on Waste Management property, except
for Waste Management sponsored charities. (R. Exh. 6.)
1. February 20 Port-a-let facility
On February 20, several of Respondent’s employees went to
the Port-a-let facility in order to distribute union flyers at both
entrances to the facility. The flyers were addressed to “Dear
Fellow Co-worker,” explained the employee organizing com-
mittee’s purpose and invited employees to a union meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1346
Union Organizer Kathy Campbell and Tim Peek, an employee
who works out of the Elwood facility, arrived and placed the
flyers on the windshields of employees’ cars that were in the
company parking lot. The parking lot is the Respondent’s pri-
vate property but is not considered a work area. The union sup-
porters then stood at the entrances to the property and pro-
ceeded to pass out the flyers to employees. Facility Manager
Steve Fanning at the Port-a-let facility, and two other managers,
John Delaware and Mike Bartell, watched the union supporters
for awhile and then Fanning and Bartell started taking the union
flyers off of employee vehicles in the parking lot. Fanning then
approached Campbell and several employees and told them to
stay off the property, and Campbell replied that she knew what
the rules were. Fanning then returned to the area of the em-
ployee vehicles and continued taking flyers off the vehicles.
Peek testified that Bartell approached the group of employees
with whom he was standing on the sidewalk. Bartell told them
to stay off the property. Peek replied that they were not on the
property but were on the sidewalk.
2. February 22 North Yard
On February 22, employees and union officials arrived at
Respondent’s North Yard facility in order to pass out the union
flyers. Campbell and Peek again placed a copy of the flyer on
each vehicle in the parking lot. The employees and union rep-
resentative then stood outside the facility and gave flyers to
employees entering or exiting. Rod Hansen, a front-load route
manager at the North Yard, came out of the office and walked
toward a group of union committee members who were stand-
ing across the street. As he approached the group, Hansen took
several flyers off the vehicles in the parking lot. Hansen came
up to the group and told them there was a no-solicitation policy
and they were not allowed on the property. Hansen said they
had 15 minutes to remove all the flyers from the cars in the
parking lot. Campbell said that she was not going back on the
property. Hansen told Campbell he was going to call someone,
and Campbell told him to do what he had to do. Hansen then
left and went to the parking lot where he removed all of the
remaining flyers from the vehicles in the parking lot.
The Board has stated that, “[a] no-solicitation rule is lawful
so long as its prohibition is confined to periods when employ-
ees are performing actual job duties, periods which do not in-
clude that employee’s own time such as lunch and break peri-
ods.” Clinton Electronics Corp., 332 NLRB 479, 497 (2000)
(citing Our Way, Inc., 268 NLRB 394, 395 (1983)). Our Way
also applies to cases involving rules prohibiting or placing limi-
tations on distribution. Chromalloy Gas Turbine Corp., 331
NLRB 858 (2000); Titanium Metals Corp., 340 NLRB 766,
767 (2003). “Interference with employee circulation of pro-
tected material in non-working areas during off-duty periods is
presumptively a violation of the Act unless the employer can
affirmatively demonstrate the restriction is necessary to protect
its proper interest.” Champion International Corp., 303 NLRB
102, 105 (1991) (citing Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945)). “Indeed, the mere maintenance of an am-
biguous or overly broad rule tends to inhibit or threaten em-
ployees who desire to engage in legally protected activity but
refrain from doing so rather than risk discipline.” Grand-view
Health Care Center, 332 NLRB 347, 348 (2000) (citing Ingram
Book Co., 315 NLRB 515, 516 (1994); J.C. Penney Co., 266
NLRB 1223, 1224 (1983). In order to defeat this presumption
of illegality of its overly broad rules, an employer must show a
compelling and legitimate business reason necessitating the
rule. Midland Transportation Co., 304 NLRB 4, 5 (1991).
The Respondent’s written no-distribution rule broadly pro-
hibits employees from distributing “during working time, in the
work area or anywhere on Waste Management property.” Peek,
an off-duty employee, along with a union representative, had
placed union flyers on employees’ vehicles in the Respondent’s
parking lots. The off-duty employees were told by Respon-
dent’s supervisors that they were prohibited from distributing
their flyers in the parking lots, a nonwork area, and the employ-
ees were told to stay off of the property. The written rule and its
interpretation as it applied to the employees were overly broad
and contrary to the Board’s construction of such rules. The
Respondent adduced no evidence to establish a compelling and
legitimate business reason necessitating the rule. I further find
the fact that employee Tim Peek did not work at the locations
where he entered the parking lots to distribute flyers does not
make the Respondent’s no-distribution policy applicable as a
no-access rule as the Respondent argues. The Board has held
that off-site employees of an employer may have access for
protected activities. Eagle-Picher Industries, 331 NLRB 169
fn. 2 (2000) (Employer unlawfully maintained a work rule that
prohibited off-duty and off-site employees from gaining access
to its parking lots and other nonwork areas). I conclude that the
supervisor’s statements to the employees on February 20 and
22, 2003, their taking of the union flyers and thus the enforce-
ment of the Respondent’s overly broad no-distribution rule
were all unlawful and violate Section 8(a)(1) of the Act. Waste
Management of Palm Beach, 329 NLRB 198, 199–200 (1999)
(Employer violated the Act by prohibiting employees from
soliciting and distributing literature in its parking lot).
E. February 22–Rodriguez
Robert Rodriguez is a route manager at the Elwood facility.
On February 22, 2003, he was at the North Yard facility. Em-
ployees, who were distributing union flyers at both entrances,
observed Rodriguez drive into that facility through one of the
entrances, go into the office and eventually exit through the
other gate. Rodriguez credibly testified that he was at the El-
wood location that day to drop off some personnel papers con-
cerning a new employee.
The General Counsel alleges the fact that Rodriguez was at
the North Yard, a location where he did not normally work, was
unlawful surveillance of employees’ union activities. I find that
the credible evidence shows that Rodriguez was at the facility
for legitimate business reasons, that he did nothing unusual
regarding noting or recording the employees’ union activities
and that, therefore, the General Counsel has failed to show by a
preponderance of the evidence that he engaged in any unlawful
surveillance of the employees’ open union activities at that
facility. Roadway Package System, 302 NLRB 961 (1991);
Southwire Co., 277 NLRB 377, 378 (1985); Schnadig Corp.,
265 NLRB 147, 157 (1982); Porta Systems Corp., 238 NLRB
WASTE MANAGEMENT OF ARIZONA 1347
192 (1978). I conclude that Rodriguez’ presence at Elwood on
February 22, 2003, did not violate Section 8(a)(1) of the Act.
F. Late February—Rush
Employee Joe Packer was dumping a waste load in at the
40th street transfer station in late February and he noticed Rush
talking to some individuals he did not recognize. Packer testi-
fied that Rush subsequently approached him and said he wanted
to speak to him about the Union and what was going on with it.
Packer told Rush he was not supposed to be asking him about
the Union, and Rush told him that he could ask him about the
Union, as long as he did not badmouth the Union. Rush pro-
ceeded to ask Packer what the issues were, why the employees
wanted a union and why the employees were upset. Rush said
he wanted to know what the issues were to fix them so the em-
ployees could be happy. Packer did not respond and let Rush
continue to talk. Rush then summoned a labor relations special-
ist by the name of Sal Duarte over to talk to Packer. Duarte had
been brought in by Respondent from its corporate headquarters
to talk to employees about benefits and go on ride-a-longs with
employees. Rush continued to talk to Packer, with Duarte pre-
sent, about what the issues were and what it would take to make
the employees happy. Packer stated that the conversation took
almost an hour and a half, and Rush instructed him to put down
the time spent as a meeting with a supervisor.
Rush admitted that he had the discussion with Packer but re-
called that he asked him, “how it was going and what he felt
about what was going on right now.” He recalled Packer saying
that Rush could not ask him that. Rush asked what question
Packer thought he was talking about and Packer told him he
thought he was asking about the union organizing. Rush testi-
fied he then explained that he was not talking about the Union
but about benefit changes. Rush also recalled they talked about
the weather, the attendance policy and what Packer thought of
how Rush was performing his job. Packer responded that he
thought Rush was unapproachable and did not have an open
door policy. Rush replied he did want to talk to employees
about their problems. Rush denied asking Packer if he sup-
ported the union organizing efforts or asked him to provide him
with information about the organizing effort. Sal Duarte did not
testify at the hearing. In assessing the demeanor of these two
witnesses regarding this incident I found Rush was not forth-
coming. He left the impression that he was trying to put the best
light on what he said. Packer, in contrast, impressed me as be-
ing certain of what was said and having a good recollection of
the unusual nature of his conversation with Rush during his
work shift. I credit Packer’s version of what was said regarding
Rush’s questioning him about what was going on with the Un-
ion and why the employees wanted union representation. I find
that under all the circumstances such interrogation was unlaw-
ful and a violation of Section 8(a)(1) of the Act.
Rush’s probing of Packer about what the issues were that
concerned the employees so he could correct them and make
the employees happy was unlawful. Woodbridge Foam Fabri-
cating, 329 NLRB 841 (1999) (An employer may not solicit
grievances from employees with the express or implied promise
to remedy them). Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999); Foamex, 315 NLRB 858, 858 (1994); and Reliance
Electric Co., 191 NLRB 44, 46 (1971). I find that Rush’s com-
ments were an unlawful solicitation of grievances from em-
ployees and a promise that the Respondent would seek to ad-
dress these concerns in order to get the employees to withdraw
their support for the Union. I conclude that Rush’s conduct was
a violation of Section 8(a)(1) of the Act. Maple Grove Health
Care Center, 330 NLRB 775 (2000); Uarco, Inc., 216 NLRB 1,
2 (1974).
G. End of February—Sergeant
Paragraph 5(l) of the complaint alleges that on or about the
end of February Respondent’s district manager, Jim Sergeant,
committed the following violations of the Act: (1) Informed
employees that it would be futile for them to select the Union
as their collective-bargaining representative, and, (2) Threat-
ened employees that the Respondent would not negotiate with
the Union if the employees selected it as their collective-
bargaining representative. The evidence offered in support of
this allegation consisted of the testimony of employee Joseph
Packer. He testified that he attended a safety meeting held by
Sergeant at the Elwood facility around the end of January.
Packer recalled that about 25–30 employees attended and that,
along with Sergeant, Supervisor Robert Rodriguez was also
present. Among other things the employees were shown an
antiunion film followed by comments from Sergeant. Accord-
ing to Packer, Sergeant told the employees that management
had made some mistakes, they were only human, and manage-
ment would probably make mistakes in the future, but he had
an open-door policy and anytime employees had a problem
they could talk to him. Packer also recalled that Sergeant told
them they “could gain more than we expected or we . . . can get
less than what we expected, you just don’t know, but they
didn’t really . . . have to sit down and negotiate with the union.”
Sergeant denied making any statements attributed to him
about it being futile for the employees to select the Union as
their representative and not negotiating with a union. He testi-
fied that he had been through previous union organizational
campaigns at the Respondent and had been trained in what
supervisors could and could not say to employees. Sergeant
also testified without contradiction to other occasions when he
had told employees he would defend their rights to do whatever
they needed to do regarding union representation, but that he
thought they did not need such representation. He also had told
employees that they knew what they had now in terms of their
work situation and they did not know what they would gain or
lose in the negotiation process.
The resolution of exactly what was said is clouded by the
fact that no party called any of the approximately 30 other indi-
viduals in attendance at the safety meeting to testify as to their
recollections of what was said. I found Packer’s account of
what Sergeant allegedly said to be doubtful because, even ac-
cording to his recollection, Sergeant advised the employees that
negotiations could yield more or less than what they expected
from union representation. This is somewhat inconsistent with
the later statement Packer attributed to Sergeant that the Re-
spondent did not even have to negotiate with the Union. Addi-
tionally, the demeanor of these two witnesses causes me to find
that Sergeant should be credited in his denials of unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1348
statements. Packer seemed unsure of the exact language used.
In contrast, Sergeant impressed me as a prudent man who, on
the record as a whole, was judicious in his conduct towards
employees and the union situation. I credit his denials of mak-
ing statements as alleged in paragraph 5(l) of the complaint and
find that the Respondent did not violate Section 8(a)(1) of the
Act as alleged in that paragraph.
H. March—Minnis
On a Saturday in early March 2003, employee Israel Her-
nandez Munoz was on his waste pickup route in a residential
area in the East Valley of Phoenix. Supervisor Bill Minnis,
who at the time was the project manager for the Arizona mar-
ket, had a house on the route. The two men were friendly and
talked regularly. Minnis maintained an office at the facility
where Munoz was assigned, but Minnis had no supervisory
authority or other work dealings with Munoz at that time. Min-
nis testified that Munoz considered him a friend and would call
him daily to discuss work and personal matters. When Munoz
got to his residence Minnis walked out to talk to him. Munoz
testified that Minnis immediately asked him what he thought of
the Union. Munoz said that he was neutral about the Union.
Minnis told Munoz that the Union was not good. Munoz ques-
tioned Minnis about that statement as he was aware Minnis had
worked for UPS, a union company. Minnis told him that he did
not like the Union.
Minnis denied ever having a conversation at his residence
with Munoz about the Union. He did recall, however, that he
had a conversation with Munoz about the Union in the latter
part of May 2003. Munoz had telephoned him to discuss some
personal problems that Munoz was having. During their con-
versation Munoz asked what Minnis’ opinion was concerning
the Union. Minnis asked why he wanted to know and Munoz
told him he was just curious. He told Munoz that in his opinion
they did not need a union. He denied asking Munoz about his
opinion for the simple reason he did not care.
The evidence shows that Minnis and Munoz talked very fre-
quently about numerous subjects. Both men recalled the subject
of the union coming up on one occasion, but their recollections
were at variance as to when, where, and what was said. I found
Minnis to have the superior recall of the details regarding their
discussion of the subject. He was definite in his recollection
and impressed me as to having been somewhat puzzled by
Munoz inquiry about his opinion of unions. Likewise his pro-
claimed indifference to Munoz’ thoughts about unions seemed
genuine. I credit Minnis’ version of events. I conclude that
Minnis did not unlawfully interrogate Munoz concerning his
opinion of the Union and find that the General Counsel failed to
prove this allegation by a preponderance of the evidence.
I. June 4—Bogard
The Respondent maintains the following no-solicitation
rules: “Drivers, Helpers & Equipment Operators Handbook—
January 1999.” To ensure employee health, safety, and to pro-
vide for mutual protection, the following actions on the part of
the employee are contrary to the health and safety of company
employees and the public. These actions are therefore prohib-
ited by WM personnel. Soliciting during working time, unless
authorized by a supervisor or company official. (R. Exh. 13, pp.
2–3) Company Solicitation and Distribution Policy–1/1/2003 1.
To avoid unnecessary harassment of other employees, an em-
ployee may not solicit signatures. (R. Exh. 6.) On June 4, broth-
ers Mark and David Keene were leaving the Elwood facility
after finishing their shifts. They encountered janitor Jose Mejia
who was sweeping outside the office. At the same time Super-
visors Jim Bogard and Robert Rodriguez were standing nearby
under a shade tree taking a smoke break. While each witness
had his own version of what happened next, there is not a major
factual dispute as to what then occurred. The following are my
findings as to what happened based on my assessment of the
credited testimony. Mark Keene had offered Mejia his union
pin, shaped like the State of Arizona. As the Keenes talked with
Mejia, Bogard shouted several times, “he’s still on the clock.”
Bogard testified he noticed this offer of the pin but could not
hear what the employees were saying. Bogard approached the
three employees and told the Keene brothers that Mejia was
working. He recalled saying, “[Y]ou can’t do that while the
employee is on the clock. I said, I understand that you guys are
off, but you can’t solicit while Jose is still working.” The
Keenes remembered Bogard saying if he had to play by the
rules, so did they. The Keene brothers then started to walk
away. Bogard recalled as the brothers left, David said that he
had been told that it was okay if they talked if they were on the
clock. Bogard testified he said, “And I said no, that’s not the
right information. I said if you were both off the clock yes you
may talk, and solicit your union material. I said but you guys
are off the clock and Jose is on the clock, so you're not allowed
to do that.”
Mejia testified that he talked to the Keene brothers for ap-
proximately 15–20 seconds. Mejia testified that drivers fre-
quently stop and talk to him while he is working and no super-
visor had previously stopped him from talking to them. Also on
June 4, driver Andy Romero stopped to talk with Mejia for
what he estimated was less than a minute. Romero testified that
he pointed at Mejia’s union pin on his vest and gave him a
thumbs-up sign. At that time Bogard came from the mainte-
nance shop and told Romero he could not be doing that. Bogard
testified that he saw Romero point at Mejia’s union pin imme-
diately before he told Romero to leave Mejia alone. Bogard
also testified that it is not his normal practice to stop employees
and admonish them when he sees them talking. Romero then
left and went into the lavatory and Bogard also came in to the
room. Romero asked Bogard whether he had a problem with
him. Bogard told Romero, “Andy, don’t be doing that.” Ro-
mero kept questioning Bogard as to what he meant. Bogard
testified that he said, “And I said no, Andy I don't have a prob-
lem, I said, you know the rules, I know the rules, if I have to
play by them you need to play by them. And I made a comment
that nobody needs a ULP.” Bogard further testified that he was
referring to the no-solicitation rule and that he interpreted the
Respondent’s rule to be, “Employees are not allowed to solicit,
distribute, leaflets, brochures, pins, etcetera, to fellow employ-
ees that are both on the clock or off the clock, on worktime and
work areas.” Bogard admitted that he had not seen Romero try
to distribute anything to Mejia and did not hear what their con-
WASTE MANAGEMENT OF ARIZONA 1349
versation (which was being conducted in Spanish and is a lan-
guage he does not understand) was about.
Bogard’s reference to a ULP was apparently misunderstood
by Romero who thought he made reference to a “UPI.” This
caused Romero to later talk to his supervisor, Robert Rodri-
guez, about Bogard and the meaning of a “UPI.” This conversa-
tion is discussed below. Bogard also spoke with employee Sam
Wonderling on June 4, 2003. Wonderling saw another em-
ployee, Sedivy, drop something in the yard. He picked the item
up and saw it was a union pin. Wonderling told Bogard that he
had seen Sedivy drop something and then sought out Sedivy
and asked him about the pin. Sedivy told him that the pin was
not his. Wonderling then went to Bogard and told him that the
item did not belong to Sedivy. Wonderling showed Bogard that
it was a union pin. Bogard told Wonderling that, “If I have to
play by the rules, you have to play by the rules.” Bogard asked
Wonderling if Sedivy was off the clock when he spoke to him,
Wonderling said that he did not know. Wonderling then left.
Wonderling called Bogard approximately 20 minutes later and
told him he was sorry and was just kidding around with him.
Bogard said that if he had to play by the rules, then Wonderling
had to play by the rules and people do not get fired during un-
ion campaigns unless they do not follow the rules. Bogard then
told Wonderling to call the Keene brothers and tell them that he
was sorry for blowing up at them. Bogard told Wonderling that
they, referring to Wonderling and the Keene brothers, were not
going to cram “this shit” down his throat.
It is alleged that the supervisors unlawfully created the im-
pression of surveillance of the employees’ union activities. In
the first instance involving the Keene brothers the evidence
shows that the shade tree where the supervisors were standing
was regularly used as a place where Respondent’s personnel
took breaks. The employees’ activities on the Respondent’s
premises were in plain view of this vantage point and it was not
shown that the employees were trying to conceal what they
were doing. There is no evidence that the supervisors had made
a special effort to place themselves at the shade tree in order to
observe employees activities. A similar finding is made con-
cerning Bogard happening upon Romero giving a thumbs-up to
Mejia relative to his union pin. The evidence discloses nothing
more than Bogard observed the Romero-Mejia conversation by
happenstance. I conclude that the General Counsel has failed to
prove by a preponderance of the evidence that Bogard and Rod-
riguez unlawfully created the impression of surveillance of the
employees’ open union activities while on the Respondent’s
premises. The General Counsel alleges that Bogard promul-
gated an overly broad and discriminatory rule prohibiting em-
ployees from discussing the Union during working time, threat-
ened employees with stricter enforcement of Respondent’s
rules, and threatened employees with discipline for violating
the stricter rule.
An employer violates Section 8(a)(1) of the Act when it pro-
hibits employees from discussing union-related matters while
allowing discussion of other nonwork related subjects during
working time. Trus Joist MacMillan, 341 NLRB 369, 373
(2004); Opryland Hotel, 323 NLRB 723, 731 (1997); McGaw
of Puerto Rico, Inc., 322 NLRB 438, 449 (1992); Teksid Alu-
minum Foundry, 311 NLRB 711 (1993); Willamette Industries,
306 NLRB 1010 fn. 2 (1992); Emergency One, Inc., 306 NLRB
800 (1992). The Board distinguishes between union solicita-
tion and other employee activity in support of union organizing.
“‘[S]olicitation’ for a union is not the same thing as talking
about a union or a union meeting or whether a union is good or
bad.” W.W. Grainger, 229 NLRB 161, 166 (1977), enfd. 582
F.2d 1118 (7th Cir. 1978). See Lamar Industrial Plastics, 281
NLRB 511, 513 (1986) (Board found that an employee did not
engage in conduct lawfully proscribed by no-solicitation rules
when she merely asked a coworker if she had a union authori-
zation card.); Sahara-Tahoe Corp., 216 NLRB 1039, 1039
(1975), enfd. in relevant part 533 F.2d 1125 (9th Cir. 1976)
(Board held that an employee’s act of introducing a union rep-
resentative to a coworker, and her subsequent statement that the
coworker would go along with the union, did not constitute
solicitation for which the employee could be disciplined under
the employer’s no-solicitation rule.); Wal-Mart Stores (Em-
ployee’s invitations to fellow workers to attend a union meeting
did not constitute conduct properly prohibited by the Respon-
dent’s no-solicitation rule, even though the invitations were
extended during working time.) The record shows that the
Respondent did not restrict casual work conversations among
employees for any matters other than union activity as noted
above in regard to the Keene brothers, Wonderling and Ro-
mero. The evidence further demonstrates that the conversations
between the employees in the cited incidents were brief, were
not shown to have materially interrupted work, or to have been
out of the ordinary in the everyday business milieu of the Re-
spondent—other than the subject under discussion involved the
Union. The General Counsel does not allege the Respondent’s
no-solicitation rule is unlawful but does assert that Bogard’s
interpretation of the rule was unlawful. The Board has held
that in the context of a union campaign, “‘[s]olicitation’ for a
union usually means asking someone to join the union by sign-
ing his name to an authorization card.” W.W. Grainger, Inc.,
supra. However, an integral part of the solicitation process is
the actual presentation of an authorization card to an employee
for signature at that time. As defined, solicitation activity
prompts an immediate response from the individual or indi-
viduals being solicited and therefore presents a greater potential
for interference with employer productivity if the individuals
involved are supposed to be working. Solicitation is therefore
subject to rules limiting it to nonworking time. The Board addi-
tionally has held that casual work conversation that may cause
short interruptions of work does not normally violate a valid
no-solicitation rule. The Board has found that simply informing
another employee of an upcoming meeting or asking a brief,
union-related question does not occupy enough time to be
treated as a work interruption in most work settings. Wal-Mart
Stores, supra; Flamingo-Hilton-Laughlin, 324 NLRB 72, 110
(1997); Lamar Industrial Plastics, 281 NLRB 511, 513 (1986);
Greensboro News, 272 NLRB 135, 138 (1995), enf. denied on
other grounds 843 F.2d 795 (4th Cir. 1988); W.W. Grainger,
supra at 161 fn. 2, 166–167.
I find that the activity engaged in by the Keene brothers, Ro-
mero and Wonderling was not solicitation as defined by the Board
and was not a violation of the Respondent’s published no-
solicitation rule. I further find that Bogard did discriminatorily
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1350
more strictly enforce the Respondent’s no-solicitation rule against
employees because they were engaged in brief union discussions.
This enforcement by its nature included a ban on the employees
discussing union matters while not prohibiting workplace discus-
sions on other subjects and thus was overly broad and discrimina-
tory. Disparate enforcement of a no-solicitation rule is unlawful.
Funk Mfg. Co., 301 NLRB 111, 113 (1991). To the extent Bogard
warned the employees that they should not be engaging in such
conversations, I additionally find that this implies the threat of
discipline for any failures to comply with his admonitions. I con-
clude that by this enumerated conduct the Respondent did violate
Section 8(a)(1) of the Act.
J. June 4—Rodriguez
The General Counsel alleges that on June 4, 2003, Robert Rod-
riguez, a route supervisor, committed four unfair labor practices
directed at employees’ union activities by threatening employees
with unspecified reprisals, creating the impression of surveillance,
promulgating an overly-broad rule prohibiting employees from
talking about the Union during working time, and threatening
employees with stricter enforcement of its rules. On June 4, 2003,
employee Lazarito “Andy” Romero was concerned that Supervi-
sor Jim Bogard was causing trouble for him. As a result of this
concern Romero sought out Rodriguez, who was his immediate
supervisor, to discuss the matter. Romero explained to Rodriguez
that his concern centered on a statement that Bogard had made to
him that he was going to write Romero up a “UPI.” Rodriguez
told Romero that he would look into the matter. Romero asked
Rodriguez who his supervisor was and Rodriguez said that he was
his supervisor but Bogard was also a supervisor. Rodriguez then
told Romero that they were just getting tired of the employees
rubbing their noses in this all the time. Romero asked what Rodri-
guez meant and was told that the employees were always talking
on the radio about “this” all the time. Rodriguez then told Romero
that he saw Romero passing out union flyers. Romero testified
that Rodriguez said, “We are going to go by the rules.” Rodriguez
testified that the day before he had seen Romero take paperwork
into the mechanics’ shop and he later went into the shop and asked
the shop supervisor, Terry Deal Sr., what Romero had. Deal gave
him a piece of paper that was an invitation to a union luncheon.
Rodriguez testified that Romero asked if he could hand out such
papers. Rodriguez testified that he told Romero, “no soliciting.”
He further explained to Romero that he could not be handing out
paperwork while “they’re on duty and you’re off duty in the
workplace.” Rodriguez denied that he ever mentioned anything to
Romero about talking on the radio to other employees. He noted
further that this was not even possible because Romero could only
talk to dispatchers or him. Rodriguez also denied saying anything
about going by the rules. I find that Rodriguez’ inquiry of a fel-
low supervisor about a flyer that Romero had given him in the
Respondent’s shop and then mentioning that fact to Romero does
not violate the Act as creating the impression of surveillance. I
conclude Rodriguez did not unlawfully create the impression of
observing employees’ union activities in the workplace and that
his mention of what he observed would not reasonably tend to
interfere with, restrain, or coerce employees in the exercise of
their Section 7 rights under the Act. I find that Rodriguez did
complain about the Respondent being tired of employees rubbing
the Respondent’s nose in it and that this was a reference to the
employees’ union activities. I conclude that this statement was an
implied threat based on the employees’ union activities. I con-
clude the statement did tend to interfere with, restrain, and coerce
employees in the exercise of their Section 7 rights and was a viola-
tion of Section 8(a)(1) of the Act. I further find that Rodriguez
did make the statements of “no-solicitation,” that the Respon-
dent was going to go by the rules, that employees could not
hand out union materials in the workplace and these statements
were references to the Respondent’s no-solicitation rule. The
Board distinguishes between union solicitation and other em-
ployee activity in support of union organizing. “‘[S]olicitation’
for a union is not the same thing as talking about a union or a
union meeting or whether a union is good or bad.” W.W.
Grainger, 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118
(7th Cir. 1978). The Board has held that this type of minimal
conduct does not amount to solicitation. Wal-Mart Stores, 340
NLRB 637, 638, 639 (2001). I conclude, therefore, that the
Rodriguez’ statements concerning no-solicitation when applied
to the conduct that Romero had engaged in were an overly
broad application of the Respondent’s no-solicitation rule and
threatened employees with stricter enforcement of its rules
because they had engaged in union activities. I conclude such
conduct violates Section 8(a)(1) of the Act.
K. June 4—Mullens
The complaint alleges that on or about June 4, 2003, Route
Supervisor Rick Mullens, “interrogated its employees as to
their union sympathies by soliciting its employees to wear
‘Vote No’ buttons.” Employee Sam Wonderling testified that
he was in the South Yard dispatch office in early June 2003.
Mullens was in the office along with some employees who
included Leo Garcia. As Wonderling did paperwork he heard
Mullens say to Garcia, “Do you want one of these?” Wonder-
ling observed that Mullens was holding a cardboard box from
which he took a pin and offered it to Garcia. Wonderling saw
that the pin displayed the words, “DIJO NO.” Wonderling testi-
fied that it was his understanding that the words are Spanish
for, “vote no.” Garcia said he did not want the pin and Mullens
left the office. Wonderling recalled seeing a couple of employ-
ees and Supervisor Alan Rush wearing the pins around the
same time. Mullens testified that he saw some buttons that he
believed were left over from a previous union campaign in the
dispatch office. He recalled that he took one of them and put in
his desk drawer. He remembered that he was later informed in a
supervisors meeting that the buttons “were not recommended”
and the Respondent would make up new buttons. He testified
that since the buttons were just “causing trouble” he threw his
away. Mullens denied ever offering a pin or button to anyone. I
found Wonderling’s demeanor and detailed recollection of the
event was persuasive that he was accurately recalling what
Mullens said and did on this occasion. Mullens in contrast ad-
mitted handling antiunion buttons and seemed uncertain in his
testimony as to exactly what their purpose was and how he was
to use them. I credit Wonderling’s testimony. The Board has
held that offering “vote no” buttons to employees is a means of
interrogating them as to their union sympathies. Houston Coca-
Cola Bottling Co., 256 NLRB 520 (1981); Kurz-Kasch, 239
WASTE MANAGEMENT OF ARIZONA 1351
NLRB 1044 (1978). I conclude that by offering Garcia the vote
no pin the Respondent violated Section 8(a)(1) of the Act.
L. June 18—Minnis
On or about June 18, Bill Minnis, operations manager, and
Wonderling had a conversation at the Elwood facility. Wonder-
ling testified that Minnis asked him what the issues were and
that he could fix them. Wonderling told him that he was uncer-
tain about what Minnis was referring to and the subject was
dropped. Minnis testified that he had a discussion with Won-
derling about numbering trash containers, a suggestion that
Wonderling had previously made to him. Wonderling then said
that because of legal issues he could not discuss any more of
the problems. Minnis testified that he told Wonderling he was
not talking about “issues” but was specifically talking about
missed pickup problems. The General Counsel alleges that this
conversation violated the Act because it amounted to “soliciting
employee complaints and grievances, promised its employees
increased benefits and improved terms and conditions of em-
ployment if they refrained from union organizational activity.”
I found Minnis by his demeanor and solid recollection to have
the most accurate memory as to what was said in this conversa-
tion. Wonderling by contrast impressed me as having a less
complete recall of the event. I credit Minnis’ testimony and find
that nothing he said on this occasion violated Section 8(a)(1) of
the Act.
M. July 18—Bogard
On about July 18, Wonderling was driving a new route and
was having difficulty completing the work. He radioed the
dispatch office to notify them that he might require some assis-
tance to finish the route. Supervisor Jim Bogard contacted
Wonderling who explained his difficulty. According to Won-
derling, Bogard told him that he may want to look for a job
with another waste company, specifically Arizona Waste, be-
cause he was not sure how much longer Wonderling would
have a job with Waste Management. When Wonderling did not
reply, Bogard told Wonderling not to “let those big tears rust
his steel-toed boots.” Bogard testified that on July 17, he had
overheard Wonderling boasting to a fellow driver that he
(Wonderling) was the number one relief driver and that he
would have no problem completing that driver’s route the fol-
lowing day. Thus the next day when Wonderling complained
about not being able to finish the route, Bogard said he kidded
him for his braggadocio. Bogard remembered saying to Won-
derling that he had heard him telling the regular driver the day
before that he would complete the route easily. Bogard gave
him the boundaries of the route and then asked him if he knew
about a big red truck in town that Carlos drives. This was a
reference to another local waste hauler’s red-colored trucks.
Wonderling replied he did know about the trucks. According to
Bogard he then told Wonderling that he would look good in one
of those. He then said to Wonderling, since he was complaining
about the route, not to let “those tears rust those steel-toed
boots.” Bogard impressed me as having the best recollection of
the conversation and the background of that conversation. I
found that Wonderling’s recollection of what was said was not
as convincing and conclude that Bogard was indeed merely
joking with Wonderling because of his predicament that day. I
credit Bogard’s version of the conversation and conclude that
nothing in his remarks was based on Wonderling’s union activi-
ties and was intended to be nothing more than an attempt to
engage in teasing of a fellow employee. I conclude that Bo-
gard’s remarks to Wonderling were not a threat to Wonderling
that he might be losing his job or an invitation to seek alterna-
tive employment because of his union activities. Likewise, I
find that the remarks were not intended as disparaging com-
ments directed at an employee because of his union sympathies.
I conclude Bogard’s remarks on this occasion were not a viola-
tion of Section 8(a)(1) of the Act.
N. August 2
The Respondent has a policy that drivers and mechanics
dress in company uniforms, including caps, while at work. The
General Counsel alleges that there was disparate application in
the administration and/or enforcement of the rule when applied
to hats that bore union insignia. On or about August 2, em-
ployee Israel Hernandez Munoz was working on a residential
route. Munoz was dressed in a Waste Management uniform but
was wearing a union baseball cap. Rush met Munoz on the
route in order to assist him in locating a particular dumpster.
Rush observed that Munoz was not wearing a Waste Manage-
ment cap. Rush told Munoz that he could only wear company
hats and told him to take off the union baseball cap. Munoz
took his union hat off and continued working. Rush had left at
this point and Munoz called him on the truck radio and asked to
speak to him. The two men then met again and Munoz asked
Rush why he was not allowed to wear the hat. Rush told him
that he was only allowed to wear Waste Management hats.
Munoz asked Rush why other drivers were permitted to wear
non-Waste Management hats. Rush said that he was going to
talk to those individuals as well. The evidence shows that some
other drivers wore noncompany hats while at work. These hats
included one with a skull on the back, various professional base-
ball caps, a Viagra racing team hat, and a MAC hat. While there is
some evidence that Rush chastised other employees for wearing
noncompany hats around the time that he spoke to Munoz there is
a lack of showing that the Respondent rigidly enforced its uniform
policy relative to the hats employees wore. I find that the evi-
dence shows the Respondent did not strictly enforce its policy of
drivers wearing only company hats. I find that Rush’s instruction
to Munoz to remove his union baseball cap was a discriminatory
application of the Respondent’s ephemeral hat policy, and I con-
clude that such disparate restriction regarding the union hat was a
violation of Section 8(a)(1) of the Act.
O. Termination of Troy Hoekstra
Troy Hoekstra started work driving for the Respondent in
August 1995. Hoekstra became involved with the Union in the
late January 2003, when he started talking to other employees
about the Union, attended union meetings, and became a mem-
ber of the organizing committee. Hoekstra’s name was listed on
the union’s initial flyer that was passed out to employees start-
ing on February 20, and was admittedly seen by management.
As noted above, the credited evidence shows that Rush knew of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1352
Hoekstra’s union sympathies, having unlawfully interrogated
him about that matter.
1. January 23, 2003
The Respondent provides Nextel two-way radios in its
trucks. On or about January 23, 2003, Hector Gonzalez, the
Nextel technician who services radios at Waste Management’s
Elwood facility, was at that location in the dispatch office per-
forming routine maintenance. Most of the radios are “closed”
because they only have the limited capacity to communicate
with a route manager, a dispatcher or a mechanic. A few of the
radios, however, are “open” and can communicate with any
other Nextel subscriber. Hoekstra was also in the dispatch area
of the Elwood facility on January 23, along with Rush and dis-
patcher Frank Elliot. Rush asked Hoekstra if he had an “open”
radio in his truck. Hoekstra replied that he did have an open
radio. Rush asked Hoekstra why he had an open radio and
Hoekstra said “V.I.P.” and laughed. Rush then said to Gon-
zalez, “Radio 403451 (Hoekstra’s truck), shut it off.” Rush and
Gonzalez testified that Rush winked at Gonzalez when he said
to shut off the radio. Rush testified that the remark was a joke
offered in response to Hoekstra asserting that he was a V.I.P.
Hoekstra testified that he then asked Rush why he was shutting
off his radio and then accused Rush of turning off the radio in
order to prevent him from talking freely about the Union on the
radio. When he said that, Rush told Hoekstra to come into his
office. The two men went into Rush’s office and, according to
Hoekstra’s testimony, Rush told him that the employees who
were trying to organize the Union were “pussies” and would
not back Hoekstra because they did not back Rush on anything
either. Rush continued talking and said that he had been in an
argument with District Manager Jason Rose earlier that day and
he was not afraid of being fired as he had a commercial driver’s
license and could get a job anywhere. Rush pulled out his li-
cense and showed it to Hoekstra. Rush finished by telling
Hoekstra that he could only trust his family, meaning his wife.
Hoekstra listened to Rush, without saying much, and left soon
after Rush told him he could trust no one. Hoekstra’s open
radio was not turned off at the time. Gonzalez testified that he
thought that Rush’s instruction was a joke and took no action
on the matter. After Hoekstra left the Respondent’s employ-
ment that open radio was turned off. The General Counsel ar-
gues that the Respondent unlawfully “removed the capability
for a two-way radio from” Hoekstra’s truck on or about January
23, 2003. The evidence is to the contrary. The radio in Hoek-
stra’s truck was not modified during his employment. I find
from the testimony of the three witnesses to the conversation
about the radio that the credited evidence shows that Rush’s
remarks were nothing more than a joking response to Hoek-
stra’s boast that he was a VIP. I find that the Respondent did
not cancel Hoekstra’s two-way radio and did not violate Sec-
tion 8(a)(1) and (3) of the Act as alleged. The General Counsel
also alleges that Rush’s remarks to Hoekstra when they went
into Rush’s office amount to telling employees that it would be
futile to select the Union as their collective-bargaining repre-
sentative. The evidence sustains this conclusion. I credit Hoek-
stra’s testimony as to what was said in the privacy of the office.
I find that Rush’s remarks about the employees interested in the
Union not backing Hoekstra in his organizing efforts was an
unlawful expression of the futility of the employees seeking
representation by the Union. I conclude that Rush’s remarks are
a violation of Section 8(a)(1) of the Act.
2. Hoekstra’s pay dispute
Paragraph 6(b) of the complaint alleges that on or about Feb-
ruary 23, 2003, the Respondent unlawfully reduced Hoekstra’s
pay because of his union activities. The Respondent denies
reducing Hoekstra’s pay for unlawful reasons and asserts he
was paid properly for the work that he performed during the
period in question. In March 2001, Hoekstra changed assign-
ments and began driving a truck and trailer. His Personnel Ac-
tion Request form reflected that his pay changed with his new
duties from $15.91 base-pay-per-hour plus incentive to a “flat
rate” of $18.30. Hoekstra and Kevin Harring were the two driv-
ers that regularly drove a truck-trailer. They both testified that
they were paid on a flat rate basis for that assignment. The
Respondent presented witnesses who testified that Hoekstra’s
pay was calculated as an hourly rate plus maximum incentive.
This meant that since he regularly drove a truck and trailer he
was paid at the highest maximum rate. The Respondent’s wit-
nesses testified further that the higher rate was paid only when
Hoekstra and Harring actually drove with a trailer at least 60
percent of the time during a workweek. Absent performing
work at that level the two were paid at the lesser regular driver
rate because they were driving standard trash trucks. Hoekstra’s
pay became an issue on about February 21, 2003, when he re-
ceived his paycheck and noticed he was paid less than his usual
amount. Shortly thereafter Hoekstra angrily confronted Rush
about the matter and this ultimately resulted in Hoekstra being
terminated for insubordinate conduct. The Respondent’s expla-
nation for the lesser pay in that particular check was that there
had been heavy rains during the payweek and this prevented
Hoekstra from driving his truck-trailer the required 60 percent
of the time during the week. The Respondent’s pay records
show that in November 2001, several months after Hoekstra
was assigned the truck-trailer, both Hoekstra and Harring were
shown to have received a change in base rate from $15.91 to
$16.39. They both were shown to have a new high incentive
rate of pay of $18.85. Pay records for November 2002 show
increases in the base rate for the two men to $16.72. Sergeant
and Rush gave uncontroverted testimony that in November
2002, Hoekstra was paid less than the maximum rate because
he supposedly had not driven the truck-trailer the requisite per-
centage of time during the week. Hoekstra complained about
his pay and they investigated the matter. It was discovered that
he had actually driven the truck-trailer 60 percent of the time.
Hoekstra was informed of the error and he was given the cor-
rect amount of pay retroactively. The Respondent also offered
the testimony of Respondent’s human resource coordinator,
Dora Akers, concerning Harring’s pay records. Her testimony
credibly showed that Harring had received less than the maxi-
mum incentive rate when he did not drive a tractor-trailer at
least 60 percent of the week. Based on the record as a whole I
find that the General Counsel has not established by a prepon-
derance of the evidence that Hoekstra was to be paid at the
highest incentive rate regardless of what work he performed.
WASTE MANAGEMENT OF ARIZONA 1353
Rather, I conclude the evidence shows he was paid a base rate
and received the highest incentive rate only when he performed
his usual truck-trailer driving duties more than 60 percent of the
time during the workweek. I conclude that on or about Febru-
ary 21, the Respondent did not unlawfully reduce Hoekstra’s
pay because of his union activities and, therefore, did not vio-
late Section 8(a)(1) and (3) of the Act as alleged.
On February 21, Hoekstra was at the Elwood facility at the
end of the workday. He received his paycheck and noticed that
his hourly rate had been reduced which amounted to approxi-
mately a $16 difference in what he would commonly receive.
Hoekstra went to discuss the reduction with Rush. He found
Rush standing in the hallway near the dispatch office and the
driver’s room talking with drivers Mark Williams and Eddie
Gregg. The hallway is a fairly busy area used frequently by
drivers and other employees. Several of Respondent’s employ-
ees and supervisors were in the immediate area at the time that
Hoekstra approached Rush and asked about his pay. Rush ex-
plained to Hoekstra that pay was less because it was based on
the fact that it had rained and Hoekstra was unable to pull his
trailer for a week.
Hoekstra became incensed by Rush’s answer. What occurred
next is not in serious dispute and several witnesses, including
Hoekstra, testified regarding his ensuing outburst directed at
Rush. Hoekstra started screaming at Rush that “this is f–king
bull shit.” Rush told Hoekstra to calm down and to come to his
office so they could discuss the matter. Hoekstra, however,
ignored his request and continued unabated to say such things
as “Why are you f–king with me? You’re f–king me because
we’re for the Union.” “This is not f–king Rush Management.”
“You can’t f–king do this.” “This is f–king wrong.” Rush kept
attempting to assuage Hoekstra’s anger and telling him to come
to his office to discuss the pay dispute. Hoekstra would not go
to the office and repeatedly cursed Rush until finally Rush
stated “enough” and again asked Hoekstra to his office. Hoek-
stra, however, disregarded that request and clocked out. Hoek-
stra started walking out the door and then turned and said to
Rush, “Just remember, what goes around, comes around.”
A three-person supervisory committee determined to termi-
nate Hoekstra after reviewing investigatory statements taken
from some persons who had witnessed his conduct. Hoekstra
was not interviewed about the incident, but as noted, he freely
admitted to his outburst. Respondent’s records state that Hoek-
stra was terminated for using obscene and abusive language,
and for failing to follow the orders of a supervisor.
3. Analysis of Hoekstra’s termination
The General Counsel contends that the Respondent discrimi-
nated against Hoekstra because of his union activity and that he
would not have been fired absent that motivation. The General
Counsel points to the record evidence that the use of profanity
is common by the Respondent’s drivers and that other employ-
ees have had boisterous disputes with supervisors that have not
resulted in their terminations. The Respondent argues that
Hoekstra’s conduct was extraordinarily insubordinate and was
the sole reason for his discharge.
a. Alleged disparate treatment
The General Counsel introduced evidence that the Respon-
dent had not terminated any employee for conduct that is al-
leged to be similar to that engaged in by Hoekstra. The Re-
spondent argues that the conduct of the noted employees was
not of the same magnitude of that engaged in by Hoekstra. I
have examined the instances shown by the General Counsel’s
evidence and find that while several employees did engage in
loud and questionable conduct, that the record as a whole does
not support the conclusion that Hoekstra’s conduct was neces-
sarily similar. Hoekstra was shown to have been highly con-
frontational to the point of irrationality in dealing with a $16
wage dispute. He did so in a profane and somewhat threatening
manner in an open area in front on several employees and su-
pervisors. Hoekstra repeatedly refused to follow Rush’s order
to come to his office to discuss the matter in private. In sum, I
find that Hoekstra’s conduct was shown to be extraordinary and
the Respondent’s reaction to his conduct was not proven by a
preponderance of the evidence to be disparate treatment.
b. Protected concerted activity
Under the Act, Respondent could discharge Hoekstra for
good cause, or even no cause, so long as the discharge was not
motivated by his exercise of protected rights guaranteed by
Section 7 of the Act. In order for activity to be protected by the
Act, it must be concerted in nature. National Wax Co., 251
NLRB 1064 (1980). An employee’s activity will be deemed
concerted, when it is engaged in with or on the authority of other
employees, and not solely by and on behalf of the employee him-
self. KNTV, Inc., 319 NLRB 447, 450 (1995); Pacific Electricord
Co. v. NLRB, 361 F.2d 310, 310 (9th Cir. 1966), enfg. 153 NLRB
521 (1965). In certain circumstances, the Board has found that
“ostensibly individual activity may in fact be concerted activity
if it directly involves the furtherance of rights which inure to
the benefits of fellow employees.” Anco Insulations, Inc., 247
NLRB 612 (1980). Hoekstra’s complaint to Rush was twofold in
that it involved his individual pay dispute and his perception that
the reduced pay was the result of his union activity. I find that
Hoekstra’s questioning of his reduced pay was based upon his
belief that his union activities had caused the reduction. I further
find that such a protest was protected concerted activity in that it
involved a statutorily protected right of all of Respondent’s em-
ployees to engage in such activities without retribution and was of
mutual concern to such employees. Alleluia Cushion Co., 221
NLRB 999 (1975).
Not all concerted activities, however, are protected under
Section 7 of the Act. Thus, where an employee engages in inde-
fensible or abusive conduct, his concerted activity will lose the
protection of the Act. Whether the Act’s protection is lost de-
pends on a balancing of four factors: (1) the place of the discus-
sion between the employee and the employer; (2) the subject
matter of the discussion; (3) the nature of the employee’s out-
burst; and (4) whether the outburst was, in any way, provoked
by an employer’s unfair labor practice. Atlantic Steel Co., 245
NLRB 814 (1979). Where profane and other offensive conduct
occurs in the context of protected concerted activity that poten-
tially removes the conduct from the protection of the Act, the
Atlantic Steel test is used rather than the traditional analysis
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1354
under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). See Aluminum Co. of America, 338 NLRB 20,
21 (2002); Honda of America Mfg., 334 NLRB 751, 753
(2001). Applying the Atlantic Steel factors to Hoekstra’s situa-
tion the record evidence shows the following. First, the place
where the discussion took place was not a private area but
rather the dispatch hallway where Hoekstra’s conduct was wit-
nessed by several employees and supervisors. His shouting was
extremely loud and could be heard over a wide area. His lan-
guage was profane, degrading of a supervisor in front of others,
and somewhat threatening. Rush repeatedly attempted to get
Hoekstra to accompany him to the supervisor’s office to discuss
the matter privately but Hoekstra refused to acquiesce and left
the premises while stating that “what goes around comes
around.” I find that the first factor weighs against Hoekstra’s
actions being protected by the Act. Second, the discussion was
about Hoekstra’s wages and his perception that they had been
unfairly altered because of his union activities. I find that the
second factor weighs in favor of finding that the discussion was
protected activity. Third, Hoekstra’s outburst was loud, abu-
sive, widely witnessed and insubordinate towards Supervisor
Rush who attempted to defuse the situation. Rush did not re-
spond in kind to Hoekstra’s tirade. I find that the nature of
Hoekstra’s conduct militates against it being protected under
the Act. Fourth, the outburst was not provoked by the Respon-
dent. As found above, the $16 difference in pay was not shown
to have resulted from Hoekstra’s union activities. Additionally,
nothing that Rush did on this occasion has been shown to re-
semble provocation of Hoekstra so as to cause or exacerbate the
situation. Simply put, Hoekstra was very angry and would not
listen to Rush’s efforts to calm the waters. I find that the lack
the Respondent’s unfair labor practices relative to Hoekstra’s
pay situation dictates against finding his actions protected. In
sum, Hoekstra’s conduct exceeded the bounds of what the Act
will sanction and he lost the protection of the Act by engaging
in that egregious conduct. I conclude that the Respondent’s
discharge of Hoekstra did not violate Section 8(a)(1) and (3) of
the Act. Trus Joist MacMillan, 341 NLRB 369, 370 (2004);
Aluminum Co. of America, supra; Piper Realty Co., 313 NLRB
1289 (1994).
P. Termination of David Keene
1. Background concerning David Keene
David Keene was employed by the Respondent starting in
1993, and worked as a commercial front-load truckdriver. He
was a member of the union organizing committee from ap-
proximately January 2003, until his discharge on July 24, 2003.
His union activities included distributing union materials to
employees and he was named in union fliers as a member of the
organizing committee. On July 24, 2003, Bogard terminated
David Keene, pursuant to the Respondent’s established policy
that punished employees with firing for having three chargeable
accidents within a 12-month period. The Respondent defines a
chargeable accident as an accident where the driver was at
fault. The Respondent attributed Keene’s discharge to damage
it determined he had caused a few days earlier to a pickup truck
that was parked next to a driveway at All-Pro Fence, one of
Respondent’s customers in Mesa, Arizona. Keene had been
involved in two previous chargeable accidents, on August 22,
2002 (unsafe lane change), and July 9, 2003 (Running over a
median strip and knocking down a light pole.)
2. The All-Pro accident and Respondent’s investigation
On July 8, 2003, a day before his second chargeable acci-
dent, Keene’s route included servicing All-Pro Fence. Keene
drove his usual green and white front-load truck on this date.
On that date one of All-Pro’s employees had parked his primer
gray pickup truck next to the company’s driveway entrance.
That pickup truck sustained damage to the rear end on July 8
which included green paint from the vehicle that had hit the
parked truck. Keene’s truck was painted green. There were no
witnesses to the accident.
On Friday, July 11, Keene again was routed to All-Pro in the
normal course of his duties. When he arrived there a female
employee of All-Pro talked to him about the damaged pickup.
Keene denied any knowledge of the accident. It was noted dur-
ing their conversation that the Respondent’s Port-a-Let truck
had serviced the premises on Tuesday and Friday and that an-
other trash hauling company, Paradise, had serviced the busi-
ness across the street. Keene speculated that these trucks might
have caused the damage. The female employee, Lortie, told
Keene that one of Respondent’s supervisors from the Port-a-Let
division had come to the company about the accident but had
not contacted her afterwards. Keene then radioed Bogard who
was his supervisor and explained the situation to him. Bogard
replied that the Port-a-Let supervisor was looking into the situa-
tion and would be in touch with Bogard if there were any prob-
lems.
Keene next returned to All-Pro on Tuesday, July 15. When
Keene was leaving the owner of the pickup stepped on to the
running board of Keene’s truck and told him he would not get
off until he could speak to one of Respondent’s supervisors.
Keene radioed Bogard and explained the situation. Bogard
immediately drove to the All-Pro premises where he spoke to
the owner of the pickup. At the end of the day Bogard and
Keene discussed the situation and Keene denied any knowledge
of the accident. Bogard said he would investigate the situation.
Bogard proceeded to investigate the accident. His investiga-
tion included matching the truck that Keene had been driving
up next to the pickup truck damage, taking photos and meas-
urements. Following his examination of the matter he informed
Keene that the damage seemed to match up with Keene’s truck
including the paint colors. The Respondent presented extensive
evidence at the hearing detailing the investigation and the re-
sults. I find that the evidence shows Bogard’s investigation was
a reasonable and relatively thorough effort to determine if
Keene had caused the damage to the pickup truck. Bogard’s
investigation concluded that David Keene had been the cause of
the damage to the pickup and, as a result, he was terminated.
Keene’s testimony about the All-Pro accident was not persuasive.
He denied that he was involved in an accident with the pickup. He
further testified that the damage to the pickup truck did not match
up with the trash truck he was driving the day of the accident. The
sworn affidavit he gave to the Board during the investigation of
WASTE MANAGEMENT OF ARIZONA 1355
the case contradicted this denial: “Monday, it could not be ar-
ranged, but we all met out there finally on Tuesday and com-
pared the vehicles and heights of the hit, which did match.”
3. Analysis of D. Keene’s discharge
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent's action alleged to constitute discrimination in vio-
lation of Section 8(a)(3). The elements commonly required to
support such a showing of discriminatory motivation are union
activity, employer knowledge, timing, and employer animus.
Once such unlawful motivation is shown, the burden of persua-
sion shifts to the Respondent to prove its affirmative defense
that the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983); Electromedics,
Inc., 299 NLRB. 928, 937 (1990), enfd. 947 F.2d 953 (10th Cir.
1991); Presbyterian/St. Luke’s Medical Center, 723 F.2d 1468,
1478–1479 (10th Cir. 1983). The test applies regardless of
whether the case involves pretextual reasons or dual motiva-
tion. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2
(1984). “A finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not in
fact relied upon, thereby leaving intact the inference of wrong-
ful motive established by the General Counsel.” Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. sub nom. 705 F.2d
799 (6th Cir. 1982).
David Keene was shown to have been an active and open
supporter of the Union. His activities included being a member
of the union organizing committee beginning in January 2003.
He also distributed union pins, fliers with his name on them,
and bumper stickers. He and his brother were warned by Re-
spondent’s supervision about conducting union business on the
Respondent’s premises. I find that the Respondent had knowl-
edge of his union support prior to his discharge and that the
timing of his discharge was contemporaneous with his union
activities. As to the element of animus, the Respondent has
been found herein to have engaged in certain unfair labor prac-
tices, thus I further find that the General Counsel had estab-
lished the necessary preliminary showing that Keene’s dis-
charge could have been connected to his union activities. The
Respondent has presented persuasive evidence that Keene
caused the third accident that led to his discharge and that it
simply followed its established policy when it terminated him
for having a third chargeable accident in a 12-month period. I
find that the Respondent has proven that it would have dis-
charged D. Keene for his third accident regardless of his union
activities. I conclude that the Respondent did not violate Sec-
tion 8(a)(1) and (3) of the Act by its termination of David
Keene.
CONCLUSIONS OF LAW
1. Waste Management of Arizona, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The International Brotherhood of Teamsters, Local No.
104, General Teamsters (Excluding Mailers), State of Arizona,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act.
4. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not violated the Act except as herein
specified.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER4
The Respondent, Waste Management of Arizona, Inc., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union sympa-
thies or activities.
(b) Threatening employees with reduced pay, benefits, or
onerous working conditions if they select the International
Brotherhood of Teamsters, Local No. 104, General Teamsters
(Excluding Mailers), State of Arizona, AFL–CIO, or any other
labor organization as their collective bargaining representative.
(c) Creating the impression that employees union activities
are under surveillance.
(d) Threatening to discharge or to refuse to hire union sup-
porters.
(e) Soliciting employee grievances and promising them im-
proved wages, benefits or better working conditions if they
withhold support from the Union.
(f) Promulgating and enforcing overly broad and discrimina-
tory no-solicitation and no-distribution rules and removing
union literature from employee vehicles parked in Respon-
dent’s parking lots.
(g) Promulgating or enforcing a discriminatory rule that pro-
hibits employees from discussing the Union during working
time or threatening employees with stricter enforcement of the
Respondent’s no-solicitation rules.
(h) Threatening employees with unspecified reprisals for en-
gaging in union activity.
(i) Disparately enforcing the Respondent’s policy requiring
employees to wear company hats.
(j) Telling employees that it would be futile to support the
Union.
(k) 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 effec-
tuate the policies of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommend
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 pur-
poses.
4 The Respondent submitted a posthearing errata sheet detailing cer-
tain discrepancies in the record as recorded. No opposition was filed
regarding those corrections and I receive the sheet into evidence as R.
Exh. 57.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1356
(a) Rescind, revoke, and cease enforcing the discriminatory
overly broad no-solicitation/distribution rules against employ-
ees.
(b) Rescind the rule discriminatorily prohibiting employees
from discussing union matters at work while permitting all
other discussions.
(c) Within 14 days after service by the Region, post at its fa-
cilities in the Phoenix, Arizona area, copies of the attached
notice marked “Appendix.”5 Copies of the notice written in
both English and Spanish, on forms provided by the Regional
Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
immediately upon receipt 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 al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice in both English
and Spanish to all current employees and former employees
employed by the Respondent at any time since January 20,
2003. Excel Container, Inc., 325 NLRB 17 (1997).
(d) 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 inso-
far as it alleges violations of the Act not specifically found.