Waste Management of Utah

National Labor Relations Board - Board Decisions

Mar 29, 1993

310 N.L.R.B. 883 (N.L.R.B. 1993)

883
310 NLRB No. 149
WASTE MANAGEMENT OF UTAH
1 The Respondent’s unopposed revised motion to correct its name
is granted.
2 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
3 On March 31, 1992, Administrative Law Judge Richard J. Boyce
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an answering brief.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In its exceptions, the Respondent contends, inter alia, that the
judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by
failing and refusing to recognize and bargain with the Union after
May 11, 1989, was barred by Sec. 10(b) of the Act. We agree, for
the reasons stated by the judge, that a remedial bargaining order
under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is appro-
priate and that the bargaining order attaches as of May 11, 1989, the
date the Respondent embarked on its course of unfair labor practices.
However, inasmuch as an 8(a)(5) violation is not a sine qua non for
a remedial bargaining order, and inasmuch as an 8(a)(5) violation
would not add to the remedy, we find it unnecessary to pass on
whether the judge was correct in finding an 8(a)(5) violation as of
May 11, 1989. See Peaker Run Coal Co., 228 NLRB 93 (1977).
The Respondent contends that the judge’s finding that the Re-
spondent violated Sec. 8(a)(2) and (5) by its formation and domina-
tion of employee committees was barred by Sec. 10(b). The conduct
concerning the committees began in July 1989. In addition to the
reasons stated by the judge for finding no merit in the Respondent’s
contention, we note that the unfair labor practice charge filed by the
Union on November 17, 1989, explicitly referenced the pending rep-
resentation case, 27–RC–6962. In that case, the Union on August 10,
1989, had filed objections based in part on the Respondent’s forma-
tion and domination of these employee committees.
5 For the reasons stated in his concurrence in Electromation, Mem-
ber Raudabaugh agrees with his colleagues’ adoption of the judge’s
finding that the employee committees formed by the Respondent
were labor organizations within the meaning of Sec. 2(5) of the Act
and that the Respondent’s conduct in forming and dominating the
employee committees violated Sec. 8(a)(2). With particular respect
to the 8(a)(2) allegations, Member Raudabaugh considers four fac-
tors in evaluating the Respondent’s conduct: (1) the extent of the
employer’s involvement in the structure and operation of the com-
mittees; (2) whether the employees, from an objective standpoint,
reasonably perceive the employee participation program as a sub-
stitute for full collective bargaining through a traditional union; (3)
whether employees have been assured of their Sec. 7 right to choose
to be represented by a traditional union under a system of full col-
lective bargaining; and (4) the employer’s motives in establishing the
employee participation program.
Here, as in Electomation, the Respondent completely dictated the
structure of the committees and controlled their operations, the em-
ployees could reasonably view the committees as a substitute for
collective bargaining through traditional union representation, and
the employees were never given assurances of their right to choose
collective bargaining through traditional union representation. In ad-
dition, antiunion motive was established. Under these circumstances,
Member Raudabaugh finds that the Respondent’s conduct was un-
lawful.
Salt Lake Division, a Division of Waste Manage-
ment of Utah, Inc.1 and International Brother-
hood of Teamsters, Local No. 222, AFL–CIO.2
Cases 27–CA–10940, 27–CA–11130, 27–CA–
11141, and 27–RC–6962
March 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case3
present a procedural issue, a number of substantive
issues, and a remedial issue. The first issue is whether
the complaint allegations were barred by Section 10(b)
of the Act. The substantive issues are whether the Re-
spondent in the context of a union organizing cam-
paign: solicited employee grievances with the implied
promise of correcting them; made threats of plant clo-
sure, job loss, and loss of benefits; interrogated em-
ployees as to their union support; made statements
conveying the futility of union representation; formed
and dominated employee committees which were labor
organizations; and issued warnings and discharged an
employee because of their union activities. Finally, the
Respondent questions whether a bargaining order is an
appropriate remedy.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,4 and con-
clusions and to adopt the recommended Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(2) by ‘‘dealing with’’ the employee
committees established in response to the union cam-
paign. While the subject matter of some of the com-
mittees, i.e., routing and productivity, and safety,
might under other circumstances indicate that the
avowed purposes of these committees might place
them outside the ambit of Section 8(a)(2), it is plain
that under our recent decision in Electromation, Inc.,
309 NLRB 990 (1992), these committees were domi-
nated labor organizations tacitly held out to employees
as an employer-approved alternative to representation
by an organization of the employees’ own choice.5
We find no merit in the Respondent’s contention
that the imposition of a bargaining order is not war-
ranted in light of turnover in employees and the pas-
sage of time. Such factors are irrelevant under Board
law concerning factors governing the issuance of
Gissel bargaining orders. See Astro Printing Services,
300 NLRB 1028, 1029 (1990); F & R Meat Co., 296
NLRB 759 (1989); Highland Plastics, 256 NLRB 146,
147 (1981).
Even assuming the relevance of these factors, we
find that the evidence in this case would not warrant
a finding that employee turnover and passage of time
have dissipated the lingering effects of the unfair labor
practices to the extent that a fair election could be
held. In light of the serious nature of those unfair labor
practices, the small size of the unit, the continuing
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 May 22–25 and 30–31; June 1; and August 13 and 14.
2 The complaint bases the Employer’s bargaining obligation on
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and its progeny.
presence of unit employees who had been subject to
the Respondent’s unfair labor practices, the continuing
presence of the management officials who committed
the unfair labor practices, and the discharge of a lead-
ing union activist after the representation election, we
find that the present deleterious effects of the Respond-
ent’s misconduct remain essentially the same as when
it occurred. The possibility of erasing the effects of the
Respondent’s unfair labor practices and of conducting
a fair election by the use of traditional remedies is
slight.
Finally, we note that no exceptions were filed to the
judge’s finding that the Union had signed authorization
cards from a majority of unit employees on May 11,
1989.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Salt Lake Division, a divi-
sion of Waste Management of Utah, Inc., West Jordan,
Utah, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Michael W. Josserand, Eqs., for the General Counsel.
John D. McLachlan, Eqs., of San Francisco, California, and
Thaddeus Sobieski, Eqs. (Fisher & Phillips), of Atlanta,
Georgia, for the Respondent.
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This con-
solidated matter was tried before me in Salt Lake City, Utah,
over 9 days in 1990.1
The complaint as now constituted, based on charges filed
by Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, Local 222 (Union) issued on April 26,
1990, and was amended during the trial. It alleges that Salt
Lake Division, a division of Waste Management, Inc. (Em-
ployer) violated the National Labor Relations Act (Act) as
follows:
(a) Section 8(a)(5) and (1) since early May 1989 by failing
to recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of its truckdrivers, mechan-
ics, parts employees, and welders.2
(b) Section 8(a)(5), (2), and (1) as follows:
(1) On and after about July 6, 1989, by forming and nego-
tiating with employee committees concerning terms and con-
ditions of employment;
(2) In late July 1989, by announcing the likely adoption
of certain changes in terms and conditions of employment as
a result of committee negotiations; and,
(3) In early August 1989, by announcing that it had insti-
tuted said changes.
(c) Section 8(a)(5), (3), (2), and (1) in early August 1989
by instituting said changes.
(d) Section 8(a)(5), (3), and (1) by thereafter retracting
said changes.
(e) Section 8(a)(3) and (1) in August and November 1989
by warning, suspending, discharging employee Jim Jacketta,
and by classifying certain incidents involving Jacketta as
‘‘chargeable.’’
(f) Section 8(a)(3) and (1) in January 1990 by
reprimanding employee Ron McQuiston, and by classifying
an accident involving McQuiston as ‘‘chargeable.’’
(g) Section 8(a)(1) between early May and late August
1989 by numerous instances of verbal conduct by various of
its management personnel.
An election in Case 27–RC–6962 was held on August 3,
1989, among the Employer’s truckdrivers, mechanics, parts
employees, and welders. It derived from a petition filed by
the Union on May 11, 1989, and a stipulated consent election
agreement approved by the Regional Director on June 8. The
tally was 13 votes for the Union and 23 against, with 2 chal-
lenged ballots.
On August 10, the Union filed 14 objections to the Em-
ployer’s preelection conduct, seven of which it later with-
drew.
On October 27, the Regional Director issued his report on
objections, order directing hearing, and order of consolida-
tion, in which he concluded that the remaining objections
‘‘raise substantial and material issues of fact which can best
be resolved after the conduct of a hearing’’; observed that
the investigation of the objections revealed evidence of ob-
jectionable conduct in addition to that raised by the objec-
tions, which also ‘‘raise substantial a nd material issues of
fact . . . [requiring] . . . the conduct of a hearing’’; and,
noting that the allegedly objectionable conduct corresponds
with certain of the allegations of misconduct set forth in the
complaint herein, directed that these matters be consolidated
for purposes of hearing before and decision and report on ob-
jections by an administrative law judge.
I. JURISDICTION/LABOR ORGANIZATION
The Employer, located in West Jordan, Utah, is engaged
in waste pickup and disposal in greater Salt Lake City. The
complaint alleges, the answer admits, and I find that it is an
employer engaged in and affecting commerce within Section
2(2), (6), and (7) of the Act.
The parties also agree and I find that the Union is a labor
organization within Section 2(5) of the Act.
II. THE EMPLOYER’S 10(B) DEFENSE
A. The Employer’s Position
The Employer asserts in its answer, as affirmative de-
fenses:
The allegations of violations of 8(a)(5) of the . . .
Complaint which are based on the Respondent’s alleged
refusal to recognize and to bargain with the Union . . .
from May 8, 1989, to the present are barred by the six
month statute of limitations contained in Section 10(b)
of the Act.
The allegations of violations of 8(a)(2) and 8(a)(3) of
the . . . . Complaint which are based on Respondent’s
885WASTE MANAGEMENT OF UTAH
alleged forming and dominating employee committees
since on or about July 7, 1989, and the allegation that
Respondent promised, implemented and withheld bene-
fits through such committees, on or about July 25,
1988, are barred by the six month statute of limitations
contained in Section 10(b) of the Act.
The Employer moved at the outset of the trial that I dis-
miss the subject 8(a)(2), (3), and (5) allegations on 10(b)
grounds, and placed in evidence a written supporting argu-
ment. I reserved ruling. The Employer adheres to that posi-
tion in its posttrial brief.
B. Facts
The Union filed its original charge in Case 27–CA–10940
on June 14, 1989. It alleged that the Employer violated Sec-
tion 8(a)(1) and (3) as follows:
On or about May 11, 1989, two Labor Relation indi-
viduals, Tom Tucker and Ron Keith, from corporate,
held meetings with all drivers at the West Jordan facil-
ity and did make statements to the employees that if
they voted the union in . . . they would lose their ben-
efits.
Rick Peters from Corp., when trying to explain the
incentive program to the employees, did make the state-
ment that, if the union was voted in, employees would
have to work for $3.35 until a contract would be nego-
tiated. Chuck Elmers, Operations Manager, on May 25,
1989, also made the same statement.
This charge, and the others in question, also contained this
preprinted language:
By the above and other acts, the above-named em-
ployer has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
The Regional Director issued a complaint in Case 27–CA–
10940 on July 28, 1989. It alleged that the Employer violated
Section 8(a)(1) by specified verbal acts on May 11, 25, and
28, 1989.
The Union filed an amended charge in Case 27–CA–
10940 on October 18, 1989. It alleged that the Employer vio-
lated Section 8(a)(1) and (3), elaborating:
Since on or about May 11, 1989, the Respondent has
threatened, questioned, interrogated and coerced em-
ployees regarding their union activities and employees’
wages and benefits.
The Regional Director issued an amended complaint in
Case 27–CA–10940 on October 19, 1989. It repeated the ear-
lier allegations, and alleged that the Employer further vio-
lated Section 8(a)(1) by certain verbal acts on July 6, 28, and
30, and August 1 and 2, 1989.
On October 27, 1989, as earlier noted, the Regional Direc-
tor issued his report on objections, order directing hearing,
and Order of Consolidation. The hearing was set for Novem-
ber 28.
The Union filed the charge in Case 27–CA–11130 on No-
vember 17, 1989. It alleged that the Employer violated Sec-
tion 8(a)(1) and (5), adding:
Regarding Cases 27–CA–6962 & 27–CA–10940
which have been consolidated and ordered to hearing
on November 28, 1989, the Teamsters union requests
that the hearing be set aside and a bargaining order be
issued on the Employer due to the fact that a fair and
equitable election cannot be conducted for the employ-
ees due to the violations of unfair labor practices that
the Employer committe[d] before the last election and
is committing since. High management officials are tell-
ing employees that under no circumstances are they
willing to abide by the results of the NLRB hearing
. . . . That they will appeal any and all decisions for
the next 3 years to keep the employees without rep-
resentation.
With the track record of this employer, and the un-
fair labor practices already committed, it would vir-
tually be impossible for the employees to feel that they
could get a fair election.
The Regional Director thereupon issued an order, dated
November 20, postponing indefinitely the consolidated hear-
ing set for November 28 in Cases 27–CA–10940 and 27–
CA–6962.
The Union filed the charge in Case 27–CA–11141 on No-
vember 27, 1989. It alleged that the Employer violated Sec-
tion 8(a)(1) and (3) by discharging Jim Jacketta on Novem-
ber 20.
The Union filed a second amended charge in Case 27–
CA–10940 on March 1, 1990. It alleged that the Employer
violated Section 8(a)(1) and (2) and, in addition to repeating
the language of the first amended charge, stated that the Em-
ployer ‘‘has solicited employee grievances, promised bene-
fits, and then withheld benefits based on the employees’
union activities.’’
The second amended charge in Case 27–CA–10940 also
asserted:
Since on or about July 7, 1989, the employer has
formed and dominated employee committees. The em-
ployer has bargained with such committees regarding
wages, hours, and working conditions, promised bene-
fits through such committee[s] and then withheld bene-
fits negotiated with the committees based on the Union
having filed objections to the conduct of the election.
On March 2, 1990, the Regional Director issued an order
consolidating Cases 27–CA–11130 and 27–CA–11141 with
Case 27–CA–10940, together with an amended consolidated
complaint. This complaint incorporated the 8(a)(1) allega-
tions set forth in the amended complaint in Case 27–CA–
10940, and alleged that Respondent committed violated Sec-
tion 8(a)(1) in sundry other respects in July and September
1989. The new complaint also alleged that the Employer:
(a) Violated Section 8(a)(2) and (1) on about July 6, 1989,
by forming and inviting employee participation in various
committees, and later in July by negotiating and offering
changes in terms and conditions of employment in and as a
result of the committee meetings that ensued.
(b) Violated Section 8(a)(3) and (1) on about November
20, 1989, by discharging Jim Jacketta.
(c) Violated Section 8(a)(5) and (1) since about May 8,
1989, by failing to recognize and bargain with the Union.
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Cited above in fn. 2.
4 A & L Underground, 302 NLRB 467 (1991).
5 The first charge alleging a violation of Sec. 8(a)(3) was filed on
October 18, 1989. The text of that charge, however, described noth-
ing fitting the allegation.
6 See generally Well-Bred Loaf, 303 NLRB 1016 fn. 1 (1991); Co-
lumbia Portland Cement Co., 303 NLRB 880 (1991); Long Island
Day Care Services, 303 NLRB 112, 113 (1991); Southwest Distrib-
uting Co., 301 NLRB 954, 955 (1991); Nickles Bakery of Indiana,
296 NLRB 927, 928 (1989); Overnite Transportation Co., 296
NLRB 669 (1989); Redd-I, Inc., 290 NLRB 1115, 1116–1118
(1988). See also NLRB v. Fant Milling Co. 360 U.S. 301, 307–309
(1959); NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 746
(7th Cir. 1973).
7 The Employer did not respond to Longoria’s letter.
The Union filed a third amended charge in Case 27–CA–
10940 on April 25, 1990, alleging that the Employer violated
Section 8(a)(1), (2), and (3). It enlarged on the second
amended charge by stating that the Employer not only had
promised and withheld, but had ‘‘implemented,’’ benefits;
and requested that ‘‘all benefits and working conditions ne-
gotiated through the committees be implemented.’’
Also on April 25, the Union filed a second amended
charge in Case 27–CA–11141. It alleged that the Employer
violated Section 8(a)(1) and (3) not only by discharging
Jacketta, but by issuing a warning to Ron McQuiston on
about January 11, 1990.
On April 26, 1990, the acting Regional Director issued a
second amended consolidated complaint, which was opera-
tive at the onset of the trial. It expanded on its antecedent
by alleging that the Employer violated Section 8(a)(3) and
(1) in these additional respects:
(a) On about August 3, 1989, by implementing benefits
formulated by the committees, and on about September 15,
1989, by withdrawing said benefits.
(b) On about August 28, 1989, by warning Jacketta, and
on about November 21, 1989, by reclassifying as ‘‘charge-
able’’ certain ‘‘incidents’’ involving him.
(c) On about January 11, 1990, by reprimanding
McQuiston, and on about January 13, 1990, by finding
McQuiston chargeable for a January 9 accident.
C. Conclusion
1. Section 8(a)(5)
To summarize, the first charge alleging a violation of Sec-
tion 8(a)(5) was filed on November 17, 1989; and the com-
plaint alleges that the Employer violated that section by fail-
ing to recognize and bargain with the Union since the pre-
ceding May 8—the date of the Union’s demand letter.
Thus, as the Employer contends, the charge indeed was
filed more than 6 months before the alleged onset of the mis-
conduct in question. I conclude, even so, that the allegation
is not time-barred. As the complaint states, the theory of vio-
lation derives from NLRB v. Gissel Packing Co.3—that is, it
presupposes that the Employer’s overall course of conduct
rendered unlikely a fair second election. All but one instance
comprising that allegedly unlawful course of conduct oc-
curred within 6 months of November 17.
Gissel aside, the Employer never acknowledged the May
8 demand letter. The Union consequently did not know the
Employer’s position concerning the demand until well within
the 10(b) period, when the Employer revealed where it stood
not by unequivocal statement, but by its conduct generally.
The 10(b) period ‘‘commences only when a party has clear
and unequivocal notice of a violation of the Act,’’ and ‘‘the
burden of showing that the charging party was on clear and
unequivocal notice of the violation rests on the respondent.’’4
2. Section 8(a)(2) and (3)
Again summarizing, the subject conduct—the allegedly un-
lawful formation and domination of employee committees
and the changes—occurred in July and August 1989. The
first charge alleging 8(a)(2) misconduct was filed more than
6 months later—on March 1, 1990; and the first charge al-
leging that certain of the same conduct violated 8(a)(3) was
not filed until April 25, 1990.5 However, the charge filed on
November 17, 1989, alleging an 8(a)(5) violation and calling
for a bargaining order, referred nonspecifically to the Em-
ployer’s unlawful ‘‘track record’’ both before and after the
election.
I conclude that the allegations in question are not time-
barred. They arose from the same circumstance as the con-
duct alleged to be unlawful in the November 17 and earlier
charges; namely, the organizing drive and the Employer’s ef-
forts to resist it. Moreover, although the November 17 charge
alleged neither 8(a)(2) nor (3) violation, it called for a bar-
gaining order based on the sum total of the Employer’s
antiunion behavior—of which the conduct underlying the
challenged allegations was an integral part. Those allegations
thus satisfy the Board’s ‘‘closely related’’ test.6
III. THE ORGANIZATIONAL ONSET
In November 1988, the parent organization installed Bob
Martin as the general manager of its Salt Lake Division—
that is, the Employer. Martin testified that ‘‘improv[ing] the
profitability of the Division’’ was ‘‘foremost on [his] mind.’’
To that end, he effected ‘‘benefit reductions’’ as of January
1, 1989—imposing a less generous formula for calculating
vacation pay and replacing the sick-leave program with an
attendance-bonus arrangement. Martin testified that ‘‘the Di-
vision was in quite a bit of turmoil due to management turn-
over,’’ as well, one result being that only one of four oper-
ations supervisors had any experience; another being that
Chuck Elmer, whose style aggravated the employees, became
operations manager. Employee morale consequently was
‘‘very poor,’’ as Martin put it.
The alleged discriminatees herein, Jim Jacketta and Ron
McQuiston, began discussing the desirability of union rep-
resentation on about May 1, 1989. On May 6, McQuiston
hosted a backyard barbecue attended by a number of employ-
ees, during which Al Longoria, an organizer for the Union,
described the steps leading to recognition and the employees
signed union authorization cards. Card solicitation continued
after the meeting; and, by letter dated May 8, Longoria ad-
vised the Employer that ‘‘a majority of [the] employees . . .
have approved the Union as their representative’’ and re-
quested recognition.7
On May 11, as earlier noted, the Union filed for an elec-
tion.
From about May 16 to 22, approximately 30 employees
signed petitions stating in part that they ‘‘hereby voluntarily
signed up for the inplant committee . . . so that [they] can
887WASTE MANAGEMENT OF UTAH
8 The Employer did not post the document.
9 Subsequently named vice president of human resources for the
Western States.
10 Tucker last visited the facility in December 1987. His office was
and is in Palm Desert, California.
11 Tucker testified: ‘‘I had no information that any cards had been
signed at that point.’’
12 Tucker was sympathetic, he explained, ‘‘because a lot of things
had happened in a negative sense in a very short period of time’’—
‘‘that was probably as dramatic [a] picture as I’ve seen in awhile
in terms of the number of changes that have taken place.’’
13 Tucker testified: ‘‘I would have said . . . that we have the abil-
ity . . . through our Employee Relations group . . . to help solve
problems or morale issues,’’ which ‘‘makes a union unnecessary so
long as benefits and wages are competitive.’’ He also said, he testi-
fied, that procedures to deal with employee discontent had ‘‘been in
place for a long time’’; and that he ‘‘referred to the 800 number’’
for employee complaints, to ‘‘opinion surveys,’’ and to an existing
‘‘grievance procedure.’’
assist the Union to organize.’’ By letter dated June 7,
Longoria supplied the Employer with an integrated com-
posite of the petitions, and proposed that it be posted at the
terminal so ‘‘there will be no question which employees are
assisting the Union.’’8
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Misconduct by Tom Tucker on about
May 11, 1989
1. The allegation
Paragraph 5(a) of the complaint alleges that, on about May
11, 1989, Tom Tucker, director of employee relations for the
Western States, ‘‘questioned groups of employees regarding
what their grievances were, asked the employees why they
had not first come to the employee relations office with their
grievances, and promised that, if given a chance, Respondent
would make things right.’’ Paragraph 15 alleges that the Em-
ployer thereby violated Section 8(a)(1).
2. The evidence
Tom Tucker, then director of employee relations for the
Western States,9 made a rare visit to the Salt Lake facility
on May 10–11, 1989.10 He conducted meetings with three
employee groups—at 4, 5, and 6 a.m.—on May 11. The
meetings had a ‘‘twofold’’ purpose, he testified—to ‘‘express
the company’s point of view’’ that unions are ‘‘unneces-
sary’’ and to forestall ‘‘any future card signing.’’11 He said
‘‘approximately the same thing’’ in each of the meetings, he
testified, and the meetings in general ‘‘were pretty much car-
bon copies’’ of one another. He did not use a script.
Tucker testified that he began the meetings by saying he
served in an ‘‘employee-relations capacity,’’ with one of his
‘‘functions’’ being ‘‘problem resolution’’; and that his var-
ious ensuing remarks included these:
(a) That ‘‘unions are not a necessary ingredient within our
corporation.’’
(b) That a union ‘‘needed to get employees’ signatures’’
to organize; and that, ‘‘if card signing or petition signing had
been started or was to be started in the future,’’ the employ-
ees should ‘‘think twice before putting down their signatures,
because that can get us going down a path that could lead
to an election setup.’’ He accordingly ‘‘asked that they just
please hold off until we had an opportunity to find out how
far things had progressed . . . .’’
(c) That, because the Employer had been ‘‘in an unfavor-
able economic position in Salt Lake,’’ the new management
team had made ‘‘several changes . . . to try to turn the eco-
nomic picture to the brighter side,’’ and ‘‘many employees
were quite upset’’ as a result.
This last ‘‘triggered sort of a barrage of employee com-
ments,’’ Tucker recalled—‘‘everybody was really upset.’’
The employees complained about ‘‘excessive hours’’ (‘‘that
was probably the main topic of discussion’’), about recent
‘‘supervisory demotions back to drivers,’’ about ‘‘recent dis-
ciplinary action,’’ and about ‘‘a lot of different things . . .
besides that’’—such as changes in sick-leave and vacation-
pay policies.
Although admittedly ‘‘a little sympathetic’’ toward the
complaints,12 Tucker testified that he ‘‘did not express that
anything would be done one way or the other about them.’’
He added that, while he could not ‘‘remember precisely’’
how he responded to the complaints, his usual approach
when dealing with employee complaints is to ‘‘say that . . .
[he] would look into it and get back to them, and that would
be the extent of a commitment.’’ ‘‘Here,’’ he averred, ‘‘since
we were in a union campaign, my guess is that I was more
reserved than that, even.’’
Tucker went on:
I said something to the effect that, depending on
whether we were in a union-campaign situation or not,
it would have an impact on the company’s ability to
deal or not to deal with the problems. Knowing that if
we were at or close to a petition stage, our hands would
be pretty much tied in terms of being able to come in
and do unusual sorts of changes, and that if we were
in an organizing campaign at all, we would have some
limitations put on us, too. And I remember talking with
a group and telling them: ‘‘We don’t know where we’re
at, so, therefore, we don’t know what, if anything, can
be done about these things at the present time. We’re
just going to have to wait and see what happens.’’
In addition to stating at the outset that one of his functions
was problem resolution, Tucker summarized the means avail-
able to the employees to air their grievances.13 Even so, he
testified, he was ‘‘not positive’’ if he invited the complaints
or if they were ‘‘spontaneous.’’ Later, reading from the com-
plaint, the Employer’s counsel asked Tucker if he
‘‘question[ed] groups of employees about what their griev-
ances were.’’ Tucker answered:
I really don’t think so. . . . Their comments, their
complaints, were pretty much spontaneous. I don’t be-
lieve I had to ask any question at all. It just kind of
flowed forth without any prompting at all.
Yet later, asked a similar question by counsel for the General
Counsel, Tucker replied: ‘‘I don’t think I did. . . . I think
they just let it unload.’’
Again tracking the complaint, the Employer’s counsel
asked Tucker if he promised that the company ‘‘would make
things right’’ if given a chance. Tucker replied: ‘‘No. Defi-
nitely did not do that.’’ He presently enlarged:
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Jacketta testified that one of the complaints concerned the impo-
sition on the employees of a uniform-rental fee, that the Employer
shortly provided new uniforms, and that the employees ‘‘never heard
any more about uniform rental.’’
15 Even Tucker’s self-serving postulates—that he commonly said,
in answer to employee complaints, that he ‘‘would look into it and
get back to’’ the employee, and that he ‘‘would have said . . . we
have the ability . . . to help solve problems or morale issues’’—sug-
gest that he promised relief.
16 E.g., Pennsy Supply, 295 NLRB 324, 325 (1989); Massachusetts
Coastal Seafoods, 293 NLRB 496, 514 (1989); L. M. Berry & Co.,
266 NLRB 47, 54 (1983); Borg-Warner, 229 NLRB 1149, 1152–
1153 (1977); Uarco Inc., 216 NLRB 1, 1–2 (1974).
17 Smith wore a union hat and buttons at work. He testified that
his wife also was active—‘‘very much so’’—in support of the
Union.
I don’t have a precise recollection of what I said.
But I do know that I did not say that the problems
would be taken care of. . . . I would have said some-
thing to the effect that we have the ability, typically,
through our Employee Relations group, and one of its
missions being to help solve problems or morale issues.
Several employees testified about one or the other of the
meetings. Their accounts matched Tucker’s in most respects,
the significant difference being the explicitness with which
he invited complaints and spoke of solutions. Thus:
(a) Jim Jacketta testified that Tucker asked what the
‘‘problems’’ were, and responded to the resulting deluge that
the employees ‘‘had some legitimate complaints and . . .
they would be addressed.’’14
(b) Jeff Jones, called by the Employer, testified that Tuck-
er said ‘‘something about they’d try to take care of things
if there wasn’t too many cards signed.’’
(c) Ron McQuiston testified that Tucker ‘‘wanted to know
what the problem was,’’ and asked the employees to give the
Employer ‘‘a chance . . . to fix what is wrong.’’
(d) Curtis Smith testified that Tucker ‘‘wanted to know
what our problems were and why we were trying to organize
a union,’’ and appealed to the employees to ‘‘please hold off
on signing any more union cards until we get things straight-
ened out.’’
(e) Jeffery Woolsey testified that Tucker ‘‘asked us what
our problems was and what our bitches was’’; then said the
Employer would ‘‘straighten everything out’’ if the employ-
ees would ‘‘give [it] a chance first.’’
3. Conclusion
I find that Tucker expressly invited the employees to voice
their grievances. He equivocated when asked about it, and
the overwhelming weight of evidence otherwise—the em-
ployees’ testimony and the fact that he listened sympa-
thetically to the complaints—leaves scant doubt that he did.
I find, as well, that Tucker held out the ‘‘carrot’’ of relief,
at least by implication, if the organizational ferment were to
subside. He not only invited the complaints, but he told the
employees his position entailed ‘‘problem resolution’’ and
described the available mechanisms ‘‘to help solve problems
or morale issues,’’ he asked the employees to ‘‘hold off’’
signing cards so the Employer could ‘‘find out how far
things had progressed,’’ and he said the Employer’s ‘‘ability
to deal or not to deal with the problems’’ would depend on
‘‘whether we were in a union-campaign situation or not.’’
Further, when asked if he promised solutions, he again
equivocated, professing lack of ‘‘precise recollection,’’15
whereas the employee witnesses testified convincingly that
he did.
I conclude that the Employer, through Tucker, violated
Section 8(a)(1) substantially as alleged by promising to rem-
edy the employees’ complaints if they rejected the Union.16
B. The Alleged Misconduct by Chuck Elmer on about
May 25, 1989
1. The allegation
Paragraph 5(b) of the complaint alleges that, on about May
25, 1989, Chuck Elmer, operations manager, ‘‘questioned an
employee about what he was going to do if the Union got
in, and threatened the employee with a reduction in wages
and benefits until everything was negotiated, if the Union
were to get in.’’ Paragraph 15 alleges that the Employer
thereby violated Section 8(a)(1).
2. The evidence
On about May 25, 1989, Chuck Elmer, operations manager
at the time, called Curtis Smith to the office, ostensibly to
propose Smith’s reassignment. Smith said he opposed the
change because it would mean less money.
With that, Smith testified, Elmer ‘‘started going on about
the Union.’’ Smith elaborated:
He [Elmer] says he knows a little about the Union.
He was involved in a union. He told me I was only
guaranteed 3.35 an hour. I would have no benefits until
everything was negotiated if the Union was voted in.
The federally mandated minimum hourly wage was then
$3.35.
Elmer went on, according to Smith, that, if the Employer
‘‘had to close their doors,’’ management personnel would
still have jobs, ‘‘but us drivers won’t’’; that ‘‘basically
[unions] were no good’’; that a union ‘‘broke them down’’
when Elmer worked for another firm (Laidlaw); that ‘‘unions
do that to companies, force them to close down’’; that ‘‘all
of [the Employer’s] drivers would be out of a job if Waste
Management was going to close the doors’’; and that ‘‘we
could take a loss of wages or we could get more wages’’
with a union, but employees ‘‘usually have to give up some-
thing for something.’’
Smith’s recital continued:
He [Elmer] told me, he says, what are you going to
do if the Union is voted in? You are only guaranteed
3.35 an hour and you lose everything. No benefits or
nothing until everything is negotiated. He just said you
have nothing until everything is negotiated.
Smith testified that the conversation progressively ‘‘heated
up,’’ and that Elmer knew that he was ‘‘a union sup-
porter.’’17
Elmer, led by the Employer’s counsel, denied telling
Smith ‘‘that, if the Union got in . . . his wages would be
reduced,’’ that ‘‘his wages would go back to minimum wage
889WASTE MANAGEMENT OF UTAH
18 Kenrich Petrochemicals, 294 NLRB 519, 530 (1989);
Plastronics, Inc., 233 NLRB 155, 156 (1977).
19 The legality of unalleged conduct can be considered if it is ‘‘re-
lated to other allegations in the complaint, fully and fairly litigated,
and not prejudicial to respondent.’’ Northern Wire Corp., 291 NLRB
727, fn. 3 (1988). This situation meets those criteria.
20 At 395 U.S. 618 (1969).
21 E.g., Long-Airdox Co., 277 NLRB 1157, 1157–1158 (1985);
Thriftway Supermarket, 276 NLRB 1450, 1452 (1985); Scotch &
Sirloin Restaurant, 269 NLRB 436, 440 (1984); Four Winds Indus-
tries, 228 NLRB 1124, 1124 (1977).
if the Union were to win the election,’’ or that ‘‘he would
lose benefits if the Union were to win the election.’’
3. Conclusions
Smith’s account was convincingly detailed, and he im-
pressed me as a sincere and competent witness. Elmer’s per-
functory, lawyer-led denials were hollow by comparison. I
therefore credit Smith that the exchange transpired much as
he described it.
I conclude that the Employer, through Elmer, violated Sec-
tion 8(a)(1) as alleged by saying in effect that the employees
would lose existing wages and benefits, with restoration de-
pendent upon negotiation, should the Union win the elec-
tion.18
I also conclude that Elmer’s remarks about closure and job
loss, although not specifically alleged to be unlawful, addi-
tionally violated Section 8(a)(1).19 Extracting from NLRB v.
Gissel Packing Co.,20 an employer properly can
make a prediction as to the precise effect he believes
unionization will have on his company. In such case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s be-
lief as to demonstrably probable consequences beyond
his control . . . .
Elmer’s remarks fell well short of that standard.21
C. The Alleged Misconduct by Rick Peters on about
May 28, 1989
1. The allegation
Paragraph 5(c) of the complaint alleges that, on about May
28, 1989, Rick Peters, regional productivity compensation
manager, ‘‘questioned various drivers about why they wanted
a union, and threatened the employees with a reduction in
wages and a loss of benefits if the Union were to get in.’’
Paragraph 15 alleges that the Employer thereby violated Sec-
tion 8(a)(1).
2. The evidence
Rick Peters, regional productivity compensation manager,
visited the Salt Lake facility ‘‘seven, ten times’’ in the spring
and summer of 1989. His office is in Denver, Colorado. He
described himself as ‘‘an internal consultant,’’ his role being
to ‘‘figure out ways to improve the operations, routing, any-
thing that . . . is going to improve the productivity of the
division.’’ ‘‘The first thing I do when I go to a location,’’
he testified, ‘‘is get on the routes and get some input from
employees, what they see as problems.’’
Jim Jacketta testified that he and Peters had a conversation
in the drivers’ room in ‘‘the latter part of May’’ in which
he asked Peters how the wages and benefits at the parent or-
ganization’s unionized operations compared with those at
Salt Lake City. Peters presently remarked, per Jacketta, that
those matters ‘‘are all put on the table’’ in collective bar-
gaining, and that:
[I]f you get the Union in, all you are guaranteed is
minimum wage and all you are going to get. You could
lose all your benefits until they’re negotiated for.
Jacketta’s account continued:
I didn’t understand whether I heard him correctly, so
I asked him to repeat it, which he did. . . . He said,
‘‘You know, if you get the Union in, the only thing you
have got is minimum wage. You are going to lose all
your benefits until they’re negotiated for.’’
Jacketta later specified that Peters said ‘‘wages would be
3.35 during negotiations.’’
Jacketta testified that, within a month following this ex-
change, as Peters rode with him, Peters said that another di-
vision of the parent organization had defeated—‘‘kicked their
butts’’—the home local of Teamsters President Jackie Press-
er, and that the Employer ‘‘would risk unfair labor charges
to keep the Union out.’’
Peters testified that he could not ‘‘recall any specific con-
versation’’ with Jacketta in the drivers’ room, much less one
‘‘relative to the Union.’’ He added that, while he ‘‘had a lot
of discussions . . . in the drivers room,’’ they generally con-
cerned ‘‘how did things go that day.’’ Moreover, he averred,
he would not have made the drivers’ room remarks attributed
to him by Jacketta ‘‘because I wouldn’t say anything I know
is not true.’’ He explained that, based on his ‘‘pretty good
knowledge of . . . what goes on during a negotiations proc-
ess,’’ he knows that, ‘‘even if we were to have been union-
ized, things remain as they are until the outcome of those ne-
gotiations.’’
Peters acknowledged that he ‘‘might have’’ ridden with
Jacketta twice. He did not speak, however, to Jacketta’s as-
sertion that he said the Employer ‘‘would risk unfair labor
charges to keep the Union out,’’ and he could not remember
telling Jacketta that an affiliate had defeated Jackie Presser’s
‘‘home local.’’ ‘‘I know that in fact did happen,’’ he testi-
fied, ‘‘but if I had that discussion with Jacketta, I don’t re-
member.’’
Jeffery Woolsey testified that Peters asked, while riding
with him ‘‘on about May 26th,’’ ‘‘how come I thought we
needed a union.’’ Woolsey replied, as he recalled, that the
employees ‘‘needed somebody to speak for [them] because
management didn’t.’’ Woolsey testified, ‘‘I don’t think any-
body knew at that time that I was for the Union.’’
Asked if he ever discussed the union situation when riding
with Woolsey, Peters testified:
I would think probably not, because then most of the
type of discussions I had with employees were cen-
tering around getting their input as to ways we can im-
prove the operation, and, again, my purpose wasn’t
there for the campaign. I really couldn’t recall unless
he brought something up. I would probably think we
didn’t discuss it at all.
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 See cases cited above in fn. 18.
23 Cf., American Furniture Co., 293 NLRB 408, 408 fn. 2 (1989);
Bay Area Mack, 293 NLRB 125, 133 (1989). As noted above in fn.
19, illegality can attach to unalleged conduct in certain cir-
cumstances. I find that those circumstances obtain in this instance.
24 The test is ‘‘whether under all the circumstances the interroga-
tion reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.’’ United Artists Communications, 280 NLRB
1056, 1056 (1986), citing Rossmore House, 269 NLRB 1176, 1177,
1178 fn. 20 (1984). This interrogative incident plainly had that tend-
ency inasmuch as Woolsey was not then an open union proponent
(he had signed one of the petitions to be on the in-plant organizing
committee, but Longoria had yet to supply the Employer with the
integrated composite). Peters gave no assurances against reprisal, and
the question served no legitimate business purpose. See generally
Benjamin Coal Co., 294 NLRB 572, 572 fn. 2 (1989); Establishment
Industries, 284 NLRB 121, 123–124 (1987); Cardivan Co., 271
NLRB 563, 567 (1984).
25 Martin testified that the ‘‘benefit reductions’’ instituted as of
January 1, ‘‘to put it mildly, didn’t go over too well with the em-
ployees,’’ and he ‘‘wanted to get their input to see . . . what we
could do . . . to get morale turned back around.’’
26 Many of the employees signed for more than one committee,
necessitating followup meetings at which Martin urged them to pick
just one.
Peters enlarged that he could not recall ever engaging Wool-
sey in discussion ‘‘with regard to the Union.’’
Peters denied generally that he ever said ‘‘wages would be
reduced to 3.35 an hour’’ if the Union got in, or that benefits
‘‘would be taken away until further benefits were bargained
for.’’
3. Conclusions
Jacketta. Jacketta’s rendition of the drivers’ room con-
versation not only contained persuasive detail, but was deliv-
ered with conviction. That Peters so spoke gains probability,
moreover, from the similarity of the comments attributed to
him to those Chuck Elmer made to Smith, just discussed. On
the other hand, Peters’ professed inability to recall con-
versing with Jacketta in the drivers’ room, together with his
purported surmise that he would not have made such com-
ments ‘‘because I wouldn’t say anything I know is not true,’’
struck me as disingenuous. Jacketta’s account of the incident
in his truck, not specifically denied by Peters, was eminently
believable, as well. I therefore credit Jacketta regarding both
conversations.
I conclude that the Employer, through Peters, violated Sec-
tion 8(a)(1) as alleged by saying in substance that the em-
ployees would lose existing wages and benefits ‘‘until
they’re negotiated for’’ should the Union get in.22
I conclude, as well, that Peters’ statement to Jacketta that
the Employer ‘‘would risk unfair labor practices to keep the
Union out,’’ while not alleged to be improper, conveyed that
the organizational effort was a futility, thereby further vio-
lating Section 8(a)(1).23
Woolsey. Woolsey impressed me as a conscientious and
reasonably capable witness. Further, Peters did not explicitly
contest his testimony, instead resorting to transparent equivo-
cation (‘‘I really couldn’t recall’’) and postulation (‘‘I would
think probably not’’) when asked if he ever discussed the
union situation with Woolsey.
I therefore credit Woolsey that Peters asked why he
thought the employees needed a union, and conclude that the
Employer thereby violated Section 8(a)(1) as alleged.24
D. The Allegedly Unlawful Formation of and
Participation in the Committees on and After July 6
1. The allegations
Paragraphs 5(e), (h), and (k) of the complaint allege that,
on about July 6, 1989, Bob Martin, General Manager,
formed the Benefits, Safety, and Productivity and Routing
Committees and ‘‘solicited employee participation in the for-
mulation of revised terms and conditions of employment.’’
Paragraph 8(a) makes substantially the same allegation.
Paragraphs 5(f), (i), and (l) allege that, from July 6
through 25, ‘‘members of management’’ participated with
each of the three committees ‘‘to formulate revised terms and
conditions of employment.’’ Paragraph 8(b) contains much
the same allegation.
Paragraphs 15 and 16 allege that the Employer in each in-
stance violated Section 8(a)(1) and (2).
2. The evidence
On July 6, 1989, Martin presided over six employee meet-
ings to ‘‘solicit their participation’’ in one of three ‘‘em-
ployee committees’’ he was forming. The committees were
to be called Routing and Productivity, Safety, and Benefits.
Their purpose, he explained, was to get employee ‘‘input’’
so the Employer could correct some past mistakes.25 Martin
asked the employees to indicate their committee preferences
on signup sheets.26
Martin decided the makeup of the committees, from
among those signing up, following the July 6 meetings. By
letter to each volunteer dated July 10, he identified those
chosen and announced the times and places of the first meet-
ings. The letter thanked everyone for ‘‘volunteering to par-
ticipate,’’ and stated:
Your thoughts and ideas are important to me and
necessary for us to improve our operation so that we
may all grow and prosper together.
The safety committee, comprised of 11 employees, first
met on July 12. The benefits committee, 11-strong as well,
first met on the 13th.
On July 17, Martin provided members of the benefits com-
mittee with a summary of the July 13 meeting. Martin testi-
fied that it embodied ‘‘the ideas . . . that [he] thought were
the best things from the meeting.’’ The summary indicates
that the meeting dealt with ‘‘proposed programs’’ regarding
attendance bonuses and vacations, and that two other pro-
grams—concerning new-account bonuses and performance
recognition—were ‘‘pending for discussion.’’
A letter from Martin to the members accompanied the
summary. Beyond setting forth the time and place of the next
meeting, it ‘‘encourage[d]’’ those on the committee ‘‘to dis-
891WASTE MANAGEMENT OF UTAH
27 Martin testified that the incumbent accident-review committee
‘‘was not effective’’; that the one now proposed ‘‘was very different
in its form and function.’’
cuss’’ the summary ‘‘with other employees so that we may
also benefit from their thoughts and ideas.’’ The letter also
stated:
Your contribution, like those of your fellow employ-
ees, are [sic] invaluable to the continued success of our
division. The more I work with people like you, the
better I feel about our ability to beat our competition
and prosper—together—in the future.
On July 17, as well, Martin presented those on the Safety
Committee with a summary of that committee’s July 12
meeting. Martin testified, ‘‘There were a lot of employee
thoughts and ideas that were discussed . . . but these are the
ones I felt were good.’’ The summary reveals that the meet-
ing concerned the establishment of an Accident/Injury Re-
view Committee—the selection and terms of its members—
and the procedures for reviewing accidents and injuries; and
stated that the next meeting would address ‘‘Safety Bonus
Program & final review of Accident/Injury Review Com-
mittee.’’ A letter from Martin, nearly identical to that just de-
scribed to the Benefits Committee, accompanied each sum-
mary.
The safety committee next met on July 19. Martin pro-
vided the members with a summary and a letter on July 24.
The summary indicates that the committee worked out
‘‘modifications’’ affecting the accident/injury review com-
mittee and formulated a ‘‘proposed safety bonus program,’’
and that a ‘‘safety training program’’ was ‘‘pending for dis-
cussion.’’ The letter again ‘‘encourage[d]’’ the members ‘‘to
discuss’’ the summary ‘‘with other employees so that we
may also benefit from their thoughts and ideas.’’ It further
stated:
We already made tremendous progress in our first
two meetings and we are ready to write two final poli-
cies. They are concerning the accident and injury re-
view committee and the safety bonus program.
Martin met with the benefits committee a second time on
July 20. By letter to the committee members dated July 25,
he stated:
We have made tremendous progress in our first two
meetings and we are ready to write two final policies.
They are concerning Vacations and the Attendance
Bonus Program.
Due to the time it will take me to write the final
policies they won’t be ready until the end of this week.
. . . I will send the policies to you as soon as they’re
completed.
Meanwhile, Martin apparently divided the Routing and
Productivity Committee in two—one for front-load or com-
mercial drivers, one for roll-off or residential drivers. He first
met with these groups on about July 20. In letters dated July
25 to the members of both, Martin opened:
I would like to thank you all for participating in our
productivity/routing committee last week. The feedback
I received in the meeting has been invaluable and we
are in the process of utilizing the information.
The letter to the front-load group added that ‘‘we are in the
process of correcting some of the identifiable problems’’; and
that to the roll-off group also stated:
I have met with both your supervisor and the dis-
patcher to discuss the immediate problems and we
should have improvement with our routing process.
On July 27, Martin presented all employees with a two-
page document entitled ‘‘Proposed Attendance Bonus Pro-
gram Initiated by: Benefits Committee’’ and a five-page doc-
ument entitled ‘‘Proposed Vacation and Holiday Policy Initi-
ated by: Benefits Committee.’’ Martin attached an addendum
to each stating, ‘‘This proposed policy if adopted will be
started in August 1989 . . . .’’ In an accompanying letter to
the committee members, Martin noted that the proposals
‘‘are based on everything agreed on by the benefit com-
mittee,’’ and stated:
Copies of these policies and addendums will be sent
to every employee in the company so they can have a
chance to give any final input before we finalize the
programs. I encourage you to discuss it with other em-
ployees so that we may also benefit from their thoughts
and ideas.
And, in a companion letter to the employees at large, Mar-
tin stated:
As you are aware the company has established a
benefits committee to review, update and improve some
of our current programs. It is the desire of the com-
mittee to keep everyone informed as to our progress so
that we can benefit from your thoughts and ideas. At-
tached for your review are the proposed vacation and
holiday policy and the attendance policy.
The benefits committee is scheduled to meet again
on August 3, 1989, to finalize these two programs.
Once again we welcome your input either to me or any-
one on the committee so please let us know your
thoughts before we meet again.
On July 27, as well, Martin provided all employees with
a two-page document entitled ‘‘Proposed Safety Bonus Pro-
gram Initiated by: Safety Committee,’’ and a two-page docu-
ment outlining the establishment of and guidelines for an
accident/injury review committee.27 As with the proposals of
the Benefits Committee, these included addenda stating that
the proposals ‘‘if adopted will be started in August 1989.’’
Martin’s companion letter to the employees was similar to
that accompanying the benefits committee’s proposals.
The election, as earlier stated, was on August 3.
The benefits committee next met on August 3, after the
election. Martin announced during the meeting that the com-
mittee’s proposals were in effect. The new vacation and holi-
day policy was implemented as of August 1. The record is
unclear whether that was the precise implementation date for
the new attendance-bonus policy.
By letter dated August 10, Martin informed the employees
that the safety committee and the benefits committee had
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 DOT being the Utah Department of Transportation. The Em-
ployer had been cited by it on June 20, 1989, for ‘‘requiring or per-
mitting driver to drive after having been on duty 12 hours’’ and
‘‘more than 60 hours in 7 consecutive days.’’
29 Martin’s memoranda to the members announcing the makeup of
the committees as reduced attributed the change to ‘‘DOT maximum
hour requirements.’’
30 E.g., NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). Sec.
2(5) of the Act defines ‘‘labor organization’’ to include ‘‘any organi-
zation of any kind, or any agency or employee representation com-
mittee or plan, in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers con-
cerning . . . wages, rates of pay, hours of employment, or condi-
tions of work.’’ As the Court points out in Cabot Carbon Co., the
term ‘‘dealing with’’ in this definition is less limited than ‘‘bar-
gaining with.’’ Id. at 210–211. Martin’s denial that he ‘‘negotiated
with’’ the committees thus is of no moment.
31 Camvac International, 288 NLRB 816, 816 fn. 3 (1988); Jet
Spray Corp., 271 NLRB 127, 129 (1984); Predicasts, Inc., 270
NLRB 1117, 1121–1122 (1984); Kurz-Kasch, Inc., 239 NLRB 1044,
1045 (1978); Rennsalaer Polytechnic Institute, 219 NLRB 712, 712
(1975).
32 See cases cited above in fn. 16. The Board may find a violation
on a theory other than that specifically alleged. Gordonsville Indus-
tries, 252 NLRB 563, 564 fn. 7 (1980).
33 E.g., U.S. Marine Corp., 293 NLRB 669, 669 (1989). See also,
Pembrook Management, 296 NLRB 1226, 1229 (1989); Camvac
International, 288 NLRB 816, 822 fn. 18 (1988); Trading Port, 219
NLRB 298, 302 (1975). Although the complaint does not allege an
8(a)(5) violation in this context, the circumstances justify a finding
of violation. See fn. 19, above.
‘‘elected to adopt all but one policy as previously issued.’’
That not adopted, the letter stated, had to do with ‘‘the Safe-
ty Committee policy and it concerns the board members and
the election process.’’ The letter closed:
I want to thank you for your input into these new
and improved policies. Your contribution, like that of
your fellow employees are [sic] invaluable to the con-
tinuing success of our division.
Martin dissolved the routing and productivity committee
sometime after the election. He explained that the Employer
had been cited for ‘‘DOT violations,’’28 that he formed the
committee to facilitate compliance with DOT regulations,
that he ‘‘adjusted’’ the routes aided by the committee’s
‘‘thoughts, ideas, and input,’’ and that he consequently had
‘‘met [his] objectives in that area.’’
The benefits and safety committees continue to function,
although Martin reduced their size from 11 to 5 in late Octo-
ber 1989.29
Martin denied that he ‘‘negotiate[d] with’’ the committees
‘‘as to what changes would be made.’’ He amplified:
There was one-hundred percent my decision. . . . I
got input from . . . employees, management, super-
visors, everybody. But it was my decision and only my
decision.
3. Conclusions
Martin engineered the formation of the committees to get
employee ‘‘input’’ so the Employer could correct past mis-
takes—and as part of a transparent effort to undermine em-
ployee support of the Union. He dictated committee size and
membership, he set meeting times, he presided over the
meetings, he decided which of the ideas merited inclusion in
the summaries, he alone determined which resulting changes
to make, and he dissolved one of the committees when he
decided that it had no further use.
I conclude that each of the three committees was a labor
organization within Section 2(5) of the Act,30 and that the
summary just stated establishes a classic case of domination
and interference violating Section 8(a)(2) and, derivatively,
8(a)(1).31
I also conclude that, by avowedly seeking employee
‘‘input’’ to correct past mistakes through the committees, the
Employer additionally violated Section 8(a)(1) by promising
to remedy the employees’ complaints to discourage their sup-
port of the Union.32
Finally, based on my conclusion below that the Employer
became obligated to bargain with the Union in May, I con-
clude that it violated Section 8(a)(5) by forming and dealing
with the committees.33
E. The Alleged Misconduct by Bob Martin on about
July 6, 1989
1. The allegation
Paragraph 5(d) of the complaint alleges that, on about July
6, 1989, Martin ‘‘stated that anyone who did not want to par-
ticipate on the Benefits Committee ought not to be working
there because, if they did not want to support the Company,
there was no use in working there.’’ Paragraph 15 alleges
that the Employer thereby violated Section 8(a)(1).
2. The evidence
Ken McQuiston, a roll-off driver at the time, attended one
of the July 6 meetings at which Martin solicited volunteers
for the three committees. He testified that, when he passed
the signup sheet to the next person without signing it, Martin
‘‘looked right at’’ him and declared, ‘‘Anybody that don’t
want to participate in these might not even be working
here,’’ or words to that effect. McQuiston stated that he
signed for two committees as a result.
McQuiston first testified that this meeting occurred about
4 a.m.—that it was ‘‘pretty early and I’m still half asleep.’’
He later opined that it was in the afternoon ‘‘because all the
drivers was there.’’
Martin testified in substance that McQuiston misconstrued
what he had said. He elaborated:
I was talking about my management style, and I said
to the employees, I said, ‘‘Any manager or supervisor
in this company that does not agree or will work with
the same management style that I have doesn’t have [a]
place here.’’ That message was directed to my manage-
ment staff, not the hourly employees.
3. Conclusion
I find that, although McQuiston had doubts whether the
meeting was morning or afternoon, he accurately conveyed
the gist of Martin’s remarks. The ‘‘spin’’ Martin would im-
part is unduly clever and makes no sense in the context of
an employee meeting.
893WASTE MANAGEMENT OF UTAH
34 Midland Transportation Co., 304 NLRB 4 (1991); A-1
Schmedlin Plumbing Co., 284 NLRB 1506, 1506 (1987); Reeves
Rubber, 252 NLRB 134, 142 (1980).
35 I credit Mrs. McQuiston that Baylor inquired about ‘‘prob-
lems.’’ This testimony was not refuted, and fits plausibly with sur-
rounding developments.
36 Mrs. Jacketta and Mrs. McQuiston both testified that Baylor
cited specific problem areas. He testified that he did not. I credit the
two wives, who came across as witnesses of utmost sincerity and
competence.
37 The foregoing derives largely from Mrs. Jacketta’s detailed and
convincing account. Except as noted in the preceding footnote, it
corresponds in substance with that of Baylor and Mrs. McQuiston.
38 Respondent apparently had informed the employees of this num-
ber some months earlier.
39 Baylor justified, ‘‘That’s part of my responsibilities.’’
40 Mrs. Jacketta and Mrs. McQuiston testified convincingly and
without contradiction that Baylor made this offer.
By suggesting a link between committee participation and
job security, Martin necessarily pressured McQuiston and all
others within earshot to abet an activity that not only violated
the Act, as I have concluded, but was designed to defeat the
organizational effort. I accordingly conclude that Martin
abridged the employees’ unquestioned right to refrain from
antiunion activities, and that the Employer consequently vio-
lated Section 8(a)(1) as alleged.34
F. The Alleged Misconduct by Ken Baylor and Jim
Jones on about July 19, 1989
1. The allegation
Paragraph 5(n) of the complaint alleges that, on about July
19, 1989, Ken Baylor, human resource manager, and Jim
Jones, business development manager, ‘‘solicited the griev-
ances of employees and promised to remedy those griev-
ances.’’ Paragraph 15 alleges that the Employer thereby vio-
lated Section 8(a)(1).
2. The evidence
On the night of July 20, 1989, Ken Baylor, human re-
source manager, presided over a dinner meeting of 13 or so
employee wives at a restaurant in Glendale, near Salt Lake
City. Jim Jones, business development manager for the Em-
ployer and formerly general manager, accompanied Baylor.
Several of the employees—Jim Jacketta, Ron McQuiston,
Curtis Smith, and Dale Bullock—had sold Baylor on the
idea, reasoning that less would be ‘‘lost in translation’’ if
management were to explain its position on the several
issues of employee concern directly to the wives. The wives
made the arrangements, and Baylor and Jones ‘‘just showed
up’’ at the designated place and time. Baylor ‘‘pick[ed] up
the tab.’’
The meeting lasted about 3 hours—the first devoted to
dining, the rest to substantive matters. By all accounts, Chris-
tine (Mrs. Jim) Jacketta and Sandra (Mrs. Ron) McQuiston
were the most vocal of the wives. Baylor recalled that Lisa
(Mrs. Curtis) Smith was ‘‘somewhat vocal,’’ as well. Several
of the others also spoke from time to time.
The substantive portion of the meeting began with intro-
ductions all around, after which Baylor asked the wives what
their ‘‘problems’’ were.35 Mrs. Jacketta redirected the ques-
tion, asking him, ‘‘Why do you think we’re here?’’ Baylor
replied, ‘‘We understand you have some concerns about your
husbands’ supervisors and their long hours, and you don’t
understand the incentive pay, and I guess your insurance
claims aren’t getting paid or something.’’36 Mrs. Jacketta re-
plied that he had ‘‘missed the point altogether,’’ and had
‘‘put his foot in his mouth.’’ She enlarged:
That’s not why were here. We’re not here about
petty things, about supervisors and insurance
claims. . . . We’re worried about our husbands’ well-
being and their health and their state of mind.
Mrs. Jacketta went on that the wives were upset by
a combination of the long hours, the unsafe equipment,
the pressure that [their husbands] were feeling, the
mind-games that were being played with them.
Baylor replied: ‘‘We’re concerned about your husbands, too.
What can we do to make it right? . . . Does anyone else
have any concerns?’’ With that, various of the wives spoke
up.37
These were foremost among the wives’ complaints:
(a) That the ‘‘trucks were poorly maintained and . . . un-
safe.’’ Carmen (Mrs. Lynn) Cook said her husband, a me-
chanic, did not have proper repair parts, so was forced to use
‘‘wire and bubblegum’’; and that she was ‘‘bothered’’ that
trucks ‘‘fixed like that’’ were given ‘‘the guys to drive.’’
Baylor replied that the Employer ‘‘always wanted to main-
tain the safety of [its] trucks, and that they are regularly
maintained according to a maintenance schedule.’’
(b) That the employees were required to work excessive
hours under the new incentive pay arrangement. Rita (Mrs.
Juan) Martinez complained that her children ‘‘didn’t know
their dad anymore’’ because he ‘‘left for work when the kids
were in bed, and he came home from work after the kids had
been in bed.’’ Baylor answered that ‘‘this is the type of busi-
ness which just requires long hours’’; that ‘‘everyone in the
company works long hours, it’s simply not drivers and me-
chanics.’’ He added that he is ‘‘away from home a lot’’; in-
deed, that this was his wife’s birthday and he would have
to send her flowers. Mrs. Jacketta, echoed by Mrs.
McQuiston, responded: ‘‘Well, then pack your bags and go
home. We didn’t ask you to come here.’’
(c) That, with the advent of an answering machine, the
wives could not ‘‘get ahold of’’ their husbands before office
hours. Baylor said he had had no idea this was a problem,
and Mrs. McQuiston disclosed that she had ‘‘some secret in-
ternal number that she could call and get through.’’38 Re-
spondent posted a direct-line number the next morning.
(d) That the processing of health insurance claims was too
slow. Lisa Smith complained that bill collectors were after
her because of the delayed payment of a pending claim.
Baylor said he would ‘‘look into’’ her claim ‘‘and see ex-
actly where it is.’’39 Baylor then stated, more generally, that
the employees could give their claims to him if they were
having trouble and he would ‘‘make sure’’ they received
prompt handling.40
(e) That the incentive pay arrangement was confusing and
demoralizing. One of the wives complained that she could
not ‘‘figure it out’’ and so could not budget; another, that
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 True to Baylor’s word, each employee received a fresh turkey
the following Thanksgiving and a certificate for a ham at Christmas.
42 Crediting Mrs. Jacketta’s convincing testimony, which was cor-
roborated in substance by Mrs. McQuiston.
43 Baylor was sensitive to appearances, he testified, because Jeff-
ery Woolsey recently had faulted the seeming indifference of a su-
pervisor who jotted an employee complaint on a paper towel.
44 Addressing Jones’ testimony that he had taken notes, Baylor tes-
tified that Jones was ‘‘not in a position . . . to see what I was writ-
ing, . . . nor did I ever expose them to him.’’
45 Dale Bullock signed a union card, but later opposed the Union.
it was hard on ‘‘the men’s mental state’’ because they were
‘‘trying to meet a time quota and they’re being told at the
end of the week by their paycheck that they weren’t produc-
tive.’’ Baylor said Respondent was ‘‘working on the incen-
tive program . . . to make it better.’’
(f) That the Employer no longer gave the employees fresh
Thanksgiving turkeys or Christmas hams. Baylor promised in
reply that Respondent would get the employees ‘‘some tur-
keys and hams.’’41
(g) That the husbands apparently could not wear their
own, rather than official company, T-shirts as part of their
summer uniform. Mrs. Smith commented that her husband
had been ‘‘chewed out’’ for wearing an unofficial T-shirt,
and asked if he could wear a his own gray shirt the next day,
that being the color of the official uniform. Baylor replied
that he ‘‘was sure that would be okay’’; that ‘‘there wouldn’t
be a problem.’’
(h) That the wives had no place at the terminal to wait for
their husbands. Marty (Mrs. Jim) Nunnally complained that
she had to wait in the car, whereas, ‘‘at the old building,’’
the wives could wait in the breakroom. Baylor responded:
I don’t think that will be a problem. You come on
up and we’ll have a coffee cup for you and you can
have a cup of coffee while you’re waiting for Jim.
At some point in the meeting, Jones offered to be a ‘‘go-
between’’ carrying employee complaints to management for
resolution. His testimony:
I said . . . that if they felt they needed someone like
that, that I would do it if they felt maybe the super-
visors weren’t answering their questions as good as
they should or something. I would help out in that way.
Jones further stated, as Mrs. Jacketta credibly recalled:
I know all your husbands. I can personally relate to
them. Let them come to me. Let me take their concerns
to management, because . . . you can’t get anywhere
with the Union. It builds walls.
As the meeting wound down, Baylor said that the Em-
ployer ‘‘would bargain hard’’ should the Union get in, and
asked what the wives would do if their husbands ‘‘had to go
on strike.’’ Mrs. McQuiston replied that she would ‘‘pack up
[her] kids and go out and picket with [her] husband.’’ Some
of the wives declared that their husbands ‘‘would not con-
tinue working . . . unless they had a collective-bargaining
agreement,’’ and that they ‘‘would go on strike . . . if they
didn’t get exactly what they wanted in that . . . agreement.’’
Mrs. Jacketta then asked Baylor, ‘‘And what would you do
then?’’ He answered, ‘‘We would continue to service our
customers, regardless of whether or not there was a strike’’;
and Mrs. Jacketta came back, ‘‘Do you mean to tell me that
you would starve our families by bringing in people to do
their jobs?’’ Baylor rejoined, ‘‘Well, my intent certainly isn’t
to starve your families, but I certainly intend to service the
customers.’’
At meeting’s end, Baylor asked: ‘‘Have I taken care of all
your concerns? Have I heard everything? Have we taken care
of some things tonight?’’ Mrs. McQuiston answered: ‘‘No.
The Union’s not in yet. It’s not been resolved. It’s not been
taken care of.’’42
Baylor denied—‘‘absolutely not’’—that he promised to
remedy grievances the wives had raised. He admittedly had
a notepad, but, apart from jotting the wives’ names, assert-
edly ‘‘did not take notes during the meeting.’’ He brought
the note-pad, he explained, because he ‘‘didn’t want to ap-
pear cavalier.’’43
Jones likewise denied that he or Baylor ‘‘promise[d] to fix
anything.’’ His more particular testimony suggested other-
wise, however, and contradicted Baylor’s claim that the note-
pad was only a prop. Thus, beyond admittedly offering him-
self as a go-between, Jones testified:
Probably the biggest comment . . . that was used
was that we would look into the concerns and try to
find answers, was more or less the way we approached
it. . . . A lot of the questions were directed at Ken and
he did make some notes of things that he would look
into, and I don’t recall what they were. . . . When the
question was asked that maybe he [Baylor] didn’t have
the answer for, he would make a note of some sort to
remind himself to look into that particular situation.44
Sherry Lynn (Mrs. Dale) Bullock, called by the Employer,
testified that, ‘‘the wives were upset’’ in the parking lot after
the meeting, ‘‘because . . . they felt like it was a waste of
time, nothing had been promised, nothing had been accom-
plished.’’45
By letter to wives dated July 21, Baylor thanked them for
meeting with him and Jones ‘‘to discuss our mutual con-
cerns,’’ and added:
While it was most disappointing to hear about the
difficulties you have experienced in the past, I am con-
fident of our ability to work together to resolve these
matters and restore Salt Lake to the type of Company
in which you and your families may once again be
proud.
The letter closed:
Please do not hesitate to contact me if you have any
other questions, or if I may be of further assistance to
you.
3. Conclusion
The overwhelming weight of evidence eliminates all doubt
that Baylor—and Jones to a lesser extent—invited the wives’
complaints and held out the prospect of relief, the purpose
being to engender good-will in anticipation of the election.
Thus:
895WASTE MANAGEMENT OF UTAH
46 I credit Jones—and the probabilities inherent in the situation—
over Baylor’s denial that he took notes. Baylor in this and some
other instances came across as a witness of expedience rather than
probity. But, even if he had not taken notes, only nurturing that illu-
sion to avoid seeming ‘‘cavalier,’’ the wives’ perception would have
been the same.
47 See citations above in fn. 16.
48 Snow’s testimony conflicted with Martin’s in certain funda-
mental respects. Thus, he testified that he could not recall Martin’s
getting out of the car, that Martin said nothing to Gonsalves, and
that his and Martin’s purpose was ‘‘just to check on the guys . . .
and see how the guys were doing.’’
49 See, in addition to the comments and citations above in fn. 24,
Establishment Industries, 284 NLRB 121, 123–124 (1987); Pony Ex-
press Courier Corp., 283 NLRB 868, 868 (1987); Bates Nitewear
Co., 283 NLRB 1128, 1128 (1987); Fimco Co., 282 NLRB 653, 654
(1987); Sunnyvale Medical Clinic, 277 NLRB 1217, 1217–1218
(1985).
(a) Baylor began the substantive portion of the meeting by
asking what the problems were and what the Employer could
do ‘‘to make it right,’’ after which he and Jones listened so-
licitously as the wives besieged them with grievances.
(b) Baylor responded to the complaint about insurance
claims by proposing that the employees give their claims to
him and he would ‘‘make sure’’ they received prompt han-
dling; to the complaint about the incentive-pay arrangement,
that the Employer was ‘‘working on the incentive program
. . . to make it better’’; to the complaint about holiday tur-
keys and hams, that the employees would get ‘‘some turkeys
and hams’’; to the T-shirt complaint, that it ‘‘would be
okay’’ if Curtis Smith wore his own; and, to the complaint
that the wives had no place to wait for their husbands, that
they could wait in the terminal and ‘‘we’ll have a coffee cup
for you.’’
(c) Jones offered to be a ‘‘go-between’’ carrying employee
complaints to management for resolution, adding in that con-
text: ‘‘[Y]ou can’t get anywhere with the Union. It builds
walls.’’
(d) By Jones’ admission, Baylor responded to the com-
plaints by saying ‘‘we would look into the concerns and try
to find answers.’’
(e) Baylor made entries on his note-pad during the meet-
ing, creating the appearance, at least, that he was recording
the wives’ complaints.46
(f) At meeting’s end, Baylor asked: ‘‘Have I taken care of
all your concerns? Have I heard everything? Have we taken
care of some things tonight?’’
(g) In his next-day letter to the wives, Baylor expressed
confidence in ‘‘our ability to work together to resolve these
matters,’’ and urged them ‘‘to contact’’ him if they had
‘‘other questions’’ or if he could be ‘‘of further assistance.’’
I conclude that the Employer, through Baylor and Jones,
violated Section 8(a)(1) as alleged by promising to remedy
the wives’—and by implication their husbands’—complaints
in the hope of blunting their support of the Union.47
G. The Alleged Misconduct by Bob Martin on about
July 28, 1989
1. The allegation
Paragraph 5(o) of the complaint alleges that, on about July
28, 1989, Martin ‘‘questioned an employee regarding his
union activities and/or sympathies.’’ Paragraph 15 alleges
that the Employer thereby violated Section 8(a)(1).
2. The evidence
The Friday before the election, riding together, Martin and
Dave Snow, an operations supervisor, spoke with some of
the residential drivers on their routes. Martin’s ‘‘main objec-
tive’’ admittedly was to campaign in anticipation of the elec-
tion. He and Snow never before had done this.
One of the drivers, Patrick Gonsalves, testified that Martin
and Snow ‘‘pulled up behind’’ him as he was ‘‘picking up
garbage,’’ whereupon Martin asked him, ‘‘With this union
deal, we got your support?’’ Gonsalves replied, as he re-
called, ‘‘Yes, you got my support.’’
Martin testified that he and Snow ‘‘got out and talked to’’
Gonsalves’’; that Snow asked Gonsalves ‘‘how the route was
going and normal, typical questions a supervisor should ask
his driver’’; and that he, Martin, said to Gonsalves, ‘‘I’d like
to have your support in the election.’’ Martin added, ‘‘I think
he said that I would have it.’’ Martin testified that his words
with Gonsalves were ‘‘very brief’’; that Snow ‘‘took up most
of the minutes.’’48
Martin testified that he had like encounters with drivers
Mark Mierra and Doug Gerber, asking them ‘‘for their sup-
port on the union issue.’’ He denied asking anyone ‘‘how
they were going to vote.’’
3. Conclusion
I credit Gonsalves that Martin asked if the Employer had
his support, and that he replied, ‘‘Yes, you got my support’’;
rather than Martin that he simply asked for Gonsalves’ sup-
port. Gonsalves, although casual in manner, came across as
a witness of sincerity and cognition, while Martin seemed
disposed once again to impart a self-serving ‘‘spin.’’
I conclude that, by questioning Gonsalves in this fashion,
Martin violated Section 8(a)(1) as alleged. Although
Gonsalves was a known union adherent, the surrounding cir-
cumstances—Martin’s never before having sought him out
on his route, Martin’s failure to accompany the question with
assurances against reprisal, and the absence of a valid busi-
ness purpose for the question—imparted a coercive taint.49
H. The Alleged Misconduct by Dave Snow on about
July 28, 1989
1. The allegation
Paragraph 5(p) of the complaint alleges that, on about July
28, 1989, Dave Snow, operations supervisor, ‘‘interrogated
an employee regarding his union activities and/or sym-
pathies.’’ Paragraph 15 alleges that the Employer thereby
violated Section 8(a)(1).
2. The evidence
Patrick Gonsalves testified that, ‘‘probably about [an] hour
and a half’’ after the Martin incident just described, Snow
‘‘cornered [him] on the route,’’ leading to this:
He says if I vote no, he is the supervisor, and he will
take care of me. He says . . . he will put his job on
the line. He says the Company can do good for me. He
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 Because of both Snow’s demeanor and the conflicts between his
and Martin’s testimony noted above in footnote 48, which betray
Snow’s see-no-evil tendencies.
51 While the complaint alleges unlawful interrogation rather than a
promise of benefit, a finding of violation on the latter basis is war-
ranted. See fn. 19, above.
52 The outcome of the picnic vote, Baylor testified, was ‘‘the talk
of the town.’’
53 Baylor presumably was alluding to the incidents just described
in which Martin and then Snow elicited from Gonsalves on his route
that he would vote for the Employer.
54 See generally the comments and citations in fns. 24 and 49,
above.
55 See citations above in fn. 16. This conduct warrants a finding
despite the absence of a specific allegation. See fn. 19, above.
says, if I go, he can put his job on the line and he can
go. So I said okay. He says, all I want you to do is
vote no. So I tell him I’ll vote no.
Gonsalves testified that Snow did not ask him if he was
going to vote no.
Snow, while recalling that he and Martin saw Gonsalves
on his route, professedly could not remember talking to
Gonsalves later that day. He denied—‘‘I don’t believe so,
no’’—discussing the pending election with Gonsalves, and
denied telling Gonsalves later that day or anytime that ‘‘good
things could happen to him’’ if he voted for Respondent.
3. Conclusion
Gonsalves, as I have noted, ‘‘came across as a witness of
sincerity and cognition.’’ Snow, on the other hand, was sin-
gularly unconvincing.50 I therefore credit Gonsalves’ ac-
count, and conclude that the Employer, through Snow, vio-
lated Section 8(a)(1) by promising him unspecified benefits
for voting against the Union.51
I. The Alleged Misconduct by Ken Baylor on about July
30 and August 2, 1989
1. The allegation
Paragraph 5(q) of the complaint alleges that, on about July
30 and August 2, 1989, Baylor ‘‘interrogated an employee
regarding his union activities and/or sympathies.’’ Paragraph
15 alleges that the Employer thereby violated Section 8(a)(1).
2. The evidence
The employees had a picnic in a public park the Saturday
before the election. During the picnic, someone called for a
show of hands of those voting for Union. Patrick Gonsalves
was among those raising their hands.
At work soon after, according to Gonsalves, Baylor asked
why he had raised his hand when he previously had said he
would vote no, and he answered:
I say, well . . . that Saturday I had a bike race, and
it was a long race. I was pretty hammered, and I had
a few beers after the race, and I was pretty well pol-
luted. So I raised my hand to anything.
Baylor denied—‘‘absolutely not’’—that he interrogated
any employee about his union activities or sympathies as al-
leged. More specifically, he denied asking Gonsalves about
the show of hands at the picnic. He expanded that ‘‘the re-
sults’’ of that poll ‘‘were well advertised’’ and much dis-
cussed at work,52 that ‘‘you didn’t have to ask anybody how
they voted,’’ that he knew how Gonsalves had voted, and
that he had known ‘‘for weeks’’ that Gonsalves was
prounion and was not surprised that he would raise his hand.
Gonsalves testified that he had another conversation with
Baylor ‘‘a day or two’’ later, shortly ‘‘before the vote.’’ His
testimony:
He asked me how I liked the Company, you know.
. . . I said, ‘‘Well, the Company is okay.’’ . . . I says
the only thing I don’t like, I say they recognize Gerber
as a—he got the driver-of-the-month award. I says . . .
I had no wrecks, no nothing. I says . . . I think I
should get it. And he said, ‘‘Well, we’ll see what we
can do.’’
Baylor testified that, ‘‘towards the end of the campaign,’’
incidental to a conversation with Gonsalves about his car-res-
toration hobby, he said he would ‘‘be glad when’’ the union
campaign ‘‘is over’’ and asked Gonsalves ‘‘if he had any
questions about anything that we had been discussing in the
meetings that we had been holding with employees.’’
Gonsalves said he ‘‘did not have any questions about those
things,’’ Baylor recalled, but then complained about being
‘‘overlooked for the employee of the month.’’ Baylor did not
describe his response to this complaint.
Gonsalves was named August driver of the month.
3. Conclusions
As I have indicated, Gonsalves impressed me as a forth-
right and competent witness, whereas Baylor seemed more
intent on gaining an advantage than promoting the truth
when it served the Employer’s purpose. I therefore credit
Gonsalves’ version of the first of the above encounters.
So doing, I conclude that Baylor violated Section 8(a)(1)
as alleged by confronting Gonsalves about raising his hand
when previously he had said he would vote no.53 The com-
bination of Baylor’s failure to include an assurance against
reprisal, his accusatory tenor (that Gonsalves had broken his
word), the underlying implication that Gonsalves had been
under surveillance, and the lack of a valid business purpose
gave the question an impermissibly coercive thrust.54
Regarding the second encounter, I do not see unlawful in-
terrogation as alleged. An amalgamation of the two accounts
warrants the inference, however, that Baylor invited
Gonsalves to express whatever complaints he had; that, when
Gonsalves complained of being bypassed as driver-of-the-
month, Baylor promised and shortly effected redress; and
that Baylor’s purpose in doing this was to lure Gonsalves
away from the Union. I conclude that the Employer, by this
conduct, violated Section 8(a)(1).55
J. The Alleged Misconduct by Jack Cassari about
August 1, 1989
1. The allegations
Paragraphs 5(r), (s), and (x) of the complaint allege that,
on about August 1, 1989, Jack Cassari, director of human re-
sources, told employees that ‘‘the Company would have an
897WASTE MANAGEMENT OF UTAH
56 The General Counsel and the Employer both introduced tran-
scripts. With one duly noted exception, I adopt the Employer’s,
which generally is the cleaner of the two.
57 The Employer’s transcript reads ‘‘then we’ll’’; the General
Counsel’s, ‘‘it will.’’ Given the surrounding context, I agree with the
General Counsel that Cassari more likely said ‘‘it will.’’
58 The General Counsel contends, based on his transcript, that
Cassari said ‘‘I’ll’’ rather than ‘‘I’ve.’’ Either is compatible with the
surrounding context. I therefore will adhere to the Employer’s tran-
script in this regard.
59 The meeting of commercial drivers, taped by McQuiston, pre-
ceded that for residential drivers, attended by Gerber.
60 Apart from its primary function, collecting waste, the Employ-
er’s Salt Lake operation provides portable toilets in the name of
Portalet and rents and sells modular trailers under the style of Mod-
ular of Salt Lake. Portalet and Modular employ about eight people.
61 Cassari, called by counsel for the General Counsel as an adverse
witness, testified before Gerber and was not recalled.
62 And presumably in the other meetings, as well.
63 American Furniture Co., 293 NLRB 408, 408 fn. 2 (1989); Bay
Area Mack, 293 NLRB 125, 133 (1989); Camvac International, 288
NLRB 816, 820 (1989).
64 See citations above in fn. 16. Although not specifically alleged,
this conduct warrants a finding. See fn. 19, above.
incentive program with or without a union’’; that ‘‘the incen-
tive program would go on as it currently exists’’ even if the
Union won the election and the employees ‘‘could go out the
door . . . if they did not like it’’; that ‘‘sick leave would not
be negotiable . . . if the Union got in’’; and that the Em-
ployer ‘‘would shut the doors . . . if the Union got in.’’
Paragraph 15 alleges that the Employer in each instance vio-
lated Section 8(a)(1).
2. The evidence
The Employer’s director of human resources, Jack Cassari,
visited the Salt Lake City facility in late July and again on
August 1 ‘‘in connection with’’ the union campaign. His of-
fice is in Oakbrook, Illinois. His duties include being the
Employer’s chief collective-bargaining negotiator. He testi-
fied that he spoke to four groups of employees during the
first visit, and that, while he attended employee meetings
during the second, he said nothing.
Ron McQuiston tape-recorded Cassari’s remarks at the
meeting of commercial drivers. A transcript of that tape, in
evidence, reads:56
I guess there’s some critical issues you guys should
be aware of. Number one is that this division will have
an incentive program. We’ll have an incentive program
with or without a union. That is the bottom line. We
will have an incentive program. Under the current situa-
tion, we’re making some progress. We’re working with
you on it. Hopefully some adjustments will be made,
but after Thursday if we have a union in here we’ll be
bargaining in the incentive program and [it will]57 go
in as it currently exists without much thought or discus-
sion to any more flexibility.
Seniority, in all our contracts basically, what senior-
ity will mean, the only time seniority’s going to come
into play is when skill and ability and experience are
equal. . . . We will have a managements-rights clause
in the contract that will cover everything. We will have
in that contract everything we need to run this division
as efficiently and productively as we possibly can. . . .
[T]here’s been a lot of progress made, these committee
meetings and the committee sessions are making a lot
of progress. . . . I suggest you give them the oppor-
tunity to conclude and get it back on track, back as to
where it was.
I can assure you that I’ve58 not put any sick leave
in any contract that I’ve been negotiating. That’s num-
ber one. Number two, as far as vacation pay is con-
cerned, as far as our contracts are concerned, you’re
looking for vacation pay of 40 hours. I know those are
issues that brought this whole thing to light. . . . [B]ut
when we get to sit down with the Union, all those are
cost measures that we’re gonna to take into consider-
ation before we sign any type of an agreement. You’re
making progress, you’ve caught our attention, as I said
to you earlier last week, take advantage of it and make
sure we work this thing out before they make any seri-
ous mistakes till next Thursday.
So I’m saying, you’ve got our attention, you’ve
made a lot of good progress, you’re about ready to put
the Humpty-Dumpty back together again. Don’t let him
fall off. . . . [Y]ou can rest assured that . . . we’re
never gonna let these things happen again. That’s a
commitment we made . . . . I can assure you . . . that
things fell apart here a few months ago. We made com-
mitments . . . that those things won’t happen again.
Okay?
Douglas Gerber, who attended one of the meetings not
taped,59 testified that Cassari said to his group, among other
things:
He said, ‘‘If the Union came in, . . . we don’t need
this business in Salt Lake City. . . . [W]e just close the
doors. If you don’t like it, don’t let it kick you in the
butt on the way out.’’ He said, ‘‘We’d just stay with
Portalet and Modular.’’60
Cassari did not deny this.61
3. Conclusions
By the totality of his remarks in the taped meeting62—that
the Employer would ‘‘have an incentive program with or
without a union’’; that the incentive program would ‘‘go in
as it currently exists’’; that any contract would have a man-
agement-rights clause ‘‘that will cover everything’’; and that,
while he realized that unhappiness over the sick-leave and
vacation-pay takeaways triggered the organizational ferment,
he had never ‘‘put any sick leave in any contract’’ and the
calculation of vacation pay would stay put—Cassari con-
veyed the unmistakable impression that union representation
would be a futility. I conclude that the Employer con-
sequently violated Section 8(a)(1) substantially as alleged in
this regard.63
Further, by repeatedly citing progress made by the com-
mittees and beseeching the employees to continue building
on that progress, Cassari tacitly promised to remedy com-
plaints if the employees rejected the Union. I conclude that
this also violated Section 8(a)(1).64
Finally, crediting Gerber’s uncontroverted testimony, I
conclude that Cassari violated Section 8(a)(1) much as al-
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
65 Even had Cassari refuted Gerber, I would be disinclined to be-
lieve him. His contempt for the oath is revealed by comparing his
testimony with the transcript of the tape, which did not surface until
later in the trial. Cassari testified, in stark conflict with the tape: ‘‘I
never mentioned the word ‘committee’ once in my meetings. . . .
I knew absolutely nothing about what the committees were dis-
cussing. . . . I knew nothing about the committees. . . . I mentioned
nothing about committees during my meetings with these employ-
ees.’’ 66 Of which more later.
leged by raising the prospect of closure and job loss should
the employees bring in the Union.65
K. The Allegedly Unlawful Announcement on about
July 25 and Institution on about August 3 of New
Terms and Conditions of Employment
1. The allegations
Paragraphs 5(g), (j), and (m) of the complaint allege that,
on about July 25, the Employer ‘‘announced that’’ each of
the three committees ‘‘had formulated new terms and condi-
tions of employment which would be implemented after the
scheduled August 3, 1989, election.’’ Paragraph 8(c) makes
substantially the same allegation. Paragraphs 15 and 16 al-
lege that the Employer in each instance violated Section
8(a)(1) and (2).
Paragraph 5(t) of the complaint alleges that, on about Au-
gust 3, 1989, Bob Martin ‘‘told employees that the benefits
formulated by the Benefits Committee, Safety Committee,
and Productivity and Routing Committee had been put into
effect.’’ Paragraph 15 alleges that the Employer thereby vio-
lated Section 8(a)(1).
Paragraph 6(d) alleges that, on about August 3, the Em-
ployer ‘‘implemented the benefit plans formulated through’’
the three committees. Paragraph 13(b) alleges that the Em-
ployer did this ‘‘without notice to or bargaining with the
Union.’’ Paragraphs 17 and 18 allege that the Employer
thereby violated Section 8(a)(1), (3), and (5).
2. The evidence
To summarize:
On July 27, Martin presented the employees with docu-
ments entitled ‘‘Proposed Attendance Bonus Program Initi-
ated by: Benefits Committee’’ and ‘‘Proposed Vacation and
Holiday Policy Initiated by: Benefits Committee’’; and at-
tached an addendum to each stating, ‘‘This proposed policy
if adopted will be started in August 1989 . . . .’’ In a com-
panion letter to the employees, Martin stated that ‘‘the bene-
fits committee is scheduled to meet again on August 3, 1989,
to finalize these two programs.’’
On July 27, as well, Martin provided the employees with
a document entitled ‘‘Proposed Safety Bonus Program Initi-
ated by: Safety Committee’’ and one outlining the establish-
ment of and guidelines for an Accident/Injury Review Com-
mittee. These likewise included addenda stating that the pro-
posals ‘‘if adopted will be started in August 1989.’’ Martin’s
companion letter to the employees was similar to that accom-
panying the Benefits Committee’s proposals.
On August 3, following the election, Martin announced to
the Benefits Committee that its proposals were in effect; and
he informed all the employees by letter dated August 10—
the very date the Union filed its objections concerning the
election—that the Safety Committee and the Benefits Com-
mittee had ‘‘elected to adopt all but one policy as previously
issued.’’
About the same time, Martin adjusted the drivers’ routes
after conferring with the two groups comprising the Routing
and Productivity Committee.
Needless to say, the Employer made these several changes
without first notifying or conferring with the Union.
3. Conclusion
The conduct just described contained promises and grants
of benefit, and flowed from that regarding the committees
that I already have concluded violated Section 8(a)(1), (2),
and (5). I conclude that this conduct, like that from which
it emanated, perforce also violated 8(a)(1), (2), and (5).
I find, in addition, that the Employer implemented the
changes because of and to dampen the employees’ union
ardor, and therefore conclude that said implementation vio-
lated Section 8(a)(3), as well.
L. The Allegedly Unlawful Withdrawal of Benefits on
about September 15
1. The allegations
Paragraph 6(e) of the complaint alleges that, on about Sep-
tember 15, 1989, the Employer ‘‘withdrew the benefits’’ it
had unlawfully instituted on about August 3. Paragraph 13(b)
alleges that it did this ‘‘without notice to or bargaining with
the Union.’’ Paragraphs 17 and 18 allege that the Employer
thereby violated Section 8(a)(1), (3), and (5).
2. The evidence
After the Union filed its objections, the Employer aborted
the recently-instituted changes arising out of the safety and
benefits committees—a development that Martin announced
to the employees on August 25.66 It did this because of the
objections, on the advice of counsel.
Again, the Employer did this without first notifying or
conferring with the Union.
3. Conclusions
I conclude that the Employer, by retracting the changes
because objections had been filed, necessarily violated Sec-
tion 8(a)(3) and (1). I also conclude, based on the Employ-
er’s outstanding obligation to bargain with the Union, that it
violated 8(a)(5) by taking this action without first giving the
Union a chance to bargain.
M. The Alleged Misconduct by Bob Martin on about
August 25, 1989
1. The Allegations
Paragraphs 5(u)–(w) of the complaint allege that, on about
August 25, 1989, Martin ‘‘announced to employees that the
policies formulated by the benefits committee, safety com-
mittee, and productivity and routing committee could not be
put into effect because the Union had filed objections to the
election’’; ‘‘polled employees concerning their awareness of
the Union’s objections to the election’’; and ‘‘solicited em-
ployees to have the Union withdraw its election objections
899WASTE MANAGEMENT OF UTAH
67 Martin elaborated: ‘‘I told them that . . . the filing of the objec-
tions . . . put us right back in the same mode as we were prior to
the vote and, legally, we were not able to put [the changes] in at
this time. We just had to wait until it was resolved.’’
68 Ron McQuiston testified that Martin called for a show of hands.
Martin denied this. Regardless, Martin plainly was seeking a re-
sponse of that sort. Thus, he testified that one of his purposes was
‘‘so other employees would know who was aware of’’ the objec-
tions, another being that he ‘‘wanted to just get an impression of
what was going on out there.’’ He also testified that he ‘‘probably
didn’t’’ ask this of the mechanics because he ‘‘knew nobody would
raise their hand in that group.’’
69 E.g., Josten Concrete Products Co., 295 NLRB 1029 (1989).
70 See generally the comments and citations in fns. 24 and 49,
above.
71 Jacketta reverted to driving at the Employer’s request.
so the benefits formulated by the benefits committee, safety
committee, and productivity and routing committee could be
implemented.’’
Paragraph 15 alleges that the Employer in each instance
violated Section 8(a)(1).
2. The evidence
As previously noted, the Union filed its objections on Au-
gust 10. On August 25, Martin held a series of employee
meetings, during which he:
(a) Announced that, because of the objections, ‘‘the bene-
fits discussed in the committees couldn’t be put into ef-
fect.’’67
(b) Asked which of the employees knew about the objec-
tions, prompting Jim Jacketta, Ron McQuiston, and Kevin
Love to raise their hands.68
(c) Stated: ‘‘If you have any pull with the Union, I suggest
that you go down and see if you can get these objections
dropped, so I can put these benefits in.’’
Martin testified with regard to the objections:
It was kind of an emotional issue with me because
we’d worked so hard and we had things going, and I
had to stop everything and take away people’s pay
. . . .
3. Conclusions
Martin’s announcement that the benefits ‘‘couldn’t be put
into effect’’ because of the objections and his urging that
those with ‘‘pull’’ try to get the objections ‘‘dropped’’ so he
could ‘‘put these benefits in’’ unavoidably restrained the em-
ployees in the exercise of their statutory right to a fair elec-
tion through the objections process. I conclude, therefore,
that the Employer violated Section 8(a)(1) by each of these
statements.69
Martin’s call for a show of hands or similar indication re-
garding knowledge of the objections was not directed solely
to known union adherents, was sandwiched between the two
unlawful remarks just discussed, was not accompanied by as-
surances against reprisal, and had no imaginable legitimacy.
In view of these circumstances, I conclude that the Em-
ployer, by this incident of interrogation, again violated Sec-
tion 8(a)(1).70
N. The Alleged Discrimination Against Jim Jacketta in
August and November 1989 and Against Ron
McQuiston in January 1990
1. The allegations
Paragraph 6(a) of the complaint alleges that, on about Au-
gust 28, 1989, the Employer ‘‘issued a written warning and
suspension to its employee Jim Jacketta.’’ Paragraph 6(b) al-
leges that, on about November 20, 1989, the Employer dis-
charged Jacketta and since has refused to reinstate him. Para-
graph 6(c) alleges that, on about November 21, 1989, the
Employer ‘‘classified incidents which had involved Jim
Jacketta on May 15, 1989, August 23, 1989, and November
17, 1989, as chargeable.’’
Paragraph 6(f) of the complaint alleges that, on about Jan-
uary 11, 1990, the Employer ‘‘issued its employee Ron
McQuiston a written reprimand for insubordination.’’ Para-
graph 6(g) alleges that, on about January 13, 1990, the Em-
ployer ‘‘found Ron McQuiston chargeable for a January 9,
1990, accident.’’
Paragraph 17 alleges that the Employer in each instance
violated Section 8(a)(3) and (1).
2. Background evidence
Jacketta was employed by the Employer from November
1986 until discharged on November 20, 1989. He was a
commercial driver except for a 3-month period—from De-
cember 1988 to March 1989—when he was a supervisor.71
He previously had his own trash-hauling business, which he
sold to the Employer.
McQuiston has been a front-load driver for the Employer
since 1978.
Jacketta and McQuiston were the most conspicuously
prounion of the employees. Dave Peck, operations manager
since October 1989 and maintenance manager before that,
perceived them to be the ‘‘instigators’’ of the organizational
drive. They had ‘‘several conversations’’ concerning the need
for representation in late April and early May. That led to
the May 6 barbecue at McQuiston’s, during which the
Union’s Longoria explained the organizational process and
they and a number of their coworkers signed authorization
cards. They thereafter solicited the signatures of other co-
workers on both cards and petitions, and distributed prounion
handbills in the Employer’s parking lot
Gary Goff, an operations supervisor, recalled Jacketta’s
telling him, in May or June, that he should
let Bob Martin and everybody else know that he was
the Number One man, that if they pointed any fingers,
to point them at Jim Jacketta, because he was the man
that was doing all the organizing, and he was the man
that wanted the Union in.
Following the July 20 meeting of the benefits committee,
on which Jacketta served, Martin asked him if he ‘‘was
ready to join his team.’’ Jacketta answered that he thought
Martin ‘‘was going in the right direction.’’ At about that
same time, Jacketta testified, he and McQuiston were ‘‘get-
ting a lot of pressure’’ from coworkers to ‘‘back off the
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
72 Taul, avowedly ‘‘never for the Union’’ although he had signed
a card, described this incident grudgingly and only after being faced
with his affidavit. Goff testified that he ‘‘vaguely’’ remembered tell-
ing Taul that the Employer had ‘‘tightened its enforcement of the
accident policy,’’ but he denied (in answer to a leading question
from the Employer’s counsel) indicating ‘‘that the Company was
going to watch union supporters more closely with regard to vehicle
accidents.’’ Goff added: ‘‘I don’t remember exactly how it went.
. . . I don’t remember the specifics on it. . . . I don’t recall any-
thing other than that.’’ In the circumstances, I have no trouble cred-
iting Taul’s affidavit-prompted account.
73 I credit Jacketta’s convincing and uncontroverted testimony that
this sequence of events happened as described.
74 The Employer has not granted O’Neal’s subsequent request to
return to Salt Lake City
75 Jacketta testified that Craig Taul eventually—‘‘a good two
weeks after the incident’’—straightened the bumper by ‘‘back[ing]
the service truck into it.’’
76 Goff, who investigated the accident, gave the alley’s length as
120 feet. Jacketta, in his testimony, reckoned it to be ‘‘sixty to a
hundred feet.’’
77 Jacketta estimated that he had perhaps 6 inches of clearance on
either side.
78 One of the witnesses, Donald Snow, defined dog-tracking as
‘‘where your truck don’t go down the road straight. . . . The plane
of the front wheel would be . . . removed from the plane of the rear
wheel.’’
Union’’ because the Employer ‘‘was giving them what they
wanted.’’ Jacketta and McQuiston consequently considered
dropping the campaign, but ‘‘decided that [they] had to con-
tinue.’’ Jacketta reported this to Martin ‘‘the next week at
the fuel island.’’ Jacketta’s account:
Mr. Martin walked up to me and asked me, he said,
‘‘I thought you was ready to join the team,’’ and I says,
‘‘I’d like to believe you, Bob, but I can’t.’’ His state-
ment from that was, ‘‘What’s the matter, don’t you
think I’m for real?’’ I said, ‘‘No, Bob, I don’t.’’ He
looked at me and said, ‘‘Too bad,’’ turned around and
walked back into the building.
After the next meeting of the benefits committee, on Au-
gust 3 following the election, Martin told Jacketta and Robert
O’Neal that he knew ‘‘pretty much which way [they]
voted’’; that he wanted them to know he was ‘‘for real’’ and
the things he had been working on with the committees
‘‘would be put into effect’’; and that he ‘‘hoped to work
with [them], not against [them], in the future.’’
In the election’s aftermath, Jacketta and McQuiston dis-
cussed with Longoria whether the Union should file objec-
tions, deciding it should. On August 25, as previously set
forth, Martin held employee meetings in which he asked
which of the employees knew about the objections, prompt-
ing Jacketta, McQuiston, and Kevin Love to raise their
hands; then appealed to those having ‘‘pull’’ with the Union
to ‘‘see if you can get these objections dropped’’ so the
‘‘benefits’’ worked out by the committees could be re-
instituted. This, as Martin put it, was ‘‘kind of an emotional
issue with’’ him.
Within a month after the election, Goff told Craig Taul,
a mechanic and a personal friend, that Martin had said super-
vision ‘‘would be watching the people they knew were for
the Union’’; that accidents ‘‘that was chargeable would be
charged’’; and that ‘‘they would be ‘down the road.’’’72
Hal Lafeen, another operations supervisor, asked Jacketta
in January 1989 if he had ‘‘heard of any union activity.’’
Jacketta, then a supervisor, said he had not. That night, Ross
Hoefling, then operations manager, asked Jacketta if he
‘‘knew anybody had went to the Union,’’ and Jacketta again
said no. Later that night, Lafeen told Jacketta he had ‘‘found
out it was Juan Martinez that had went to the Union,’’ and
directed him ‘‘to find any way possible and legal to get rid
of Juan Martinez, to fire him.’’73
Seeking to allay any notion that the Employer might dis-
criminate against employees because of their union sym-
pathies, Martin listed certain ‘‘special favors’’ it had ex-
tended to known union supporters:
(a) Loaning money to Jeffery Woolsey to pay for his fa-
ther’s burial, which Martin thought was after the election.
(b) Providing $500 to sponsor Robert O’Neal’s son as a
bicycle racer, which happened ‘‘right during the campaign,’’
according to Martin.
(c) Accommodating O’Neal’s postelection request for
transfer to another city.74
(d) Acceding to Mrs. Jacketta’s postelection request for
sponsorship of a charity volleyball tournament.
(e) Assigning new trucks to Mark Mierra and Douglas
Gerber, which ‘‘was certainly [after] we were notified of the
union activity,’’ Martin testified, although he could not recall
if it was ‘‘pre- or post-election.’’
(f) Deferring the discharge of Curtis Smith, in early 1990,
from the time he was arrested for driving-under-the-influence
until his driver’s license was suspended about a month later.
(g) Promoting Juan Martinez to a better paying job. Martin
testified that he ‘‘believe[d]’’ Martinez’s promotion ‘‘was
post-election’’; Jacketta, less tentatively, that it happened in
July or August 1989.
3. Jacketta’s August 28 warning
a. The evidence
On August 23, 1989, as Jacketta backed his truck from an
alley, the right extremity of the front bumper hooked a fire
hydrant at the alley outlet. This moved the hydrant ‘‘slight-
ly,’’ according to Jacketta, but ‘‘there was no water leakage
or anything like that.’’ The bumper ‘‘was pulled out approxi-
mately a foot,’’ he estimated. That interfered with the truck’s
ability to lift the container at the next stop, so he forced the
bumper into some semblance of alignment with his feet, ena-
bling function. Jacketta recalled that the bumper was already
‘‘full of dings and nicks,’’ but never had been bent in a
‘‘major’’ way.75
The alley is about 120 feet long,76 and is flanked on both
sides by buildings, which left little clearance for Jacketta’s
truck.77 Because of a recent route change, this was only his
‘‘second or third time’’ there.
Jacketta submitted an accident report the same day. In it,
he described the accident as ‘‘backing up between two build-
ings right front bumper caught fire hydrant,’’ and attributed
causation to ‘‘bad suspension; dog tracks to the left bad.’’78
The next day, August 24, Goff prepared a Supervisor’s
Accident/Injury Summary which stated:
Driver was backing up between two building[s]. He
caught the right front bumper of the truck on a fire hy-
901WASTE MANAGEMENT OF UTAH
79 Jacketta used a ‘‘spare’’ truck while his was in the shop. He
then reclaimed his regular truck, although aware that the dog-track-
ing persisted. He preferred it because ‘‘the hydraulics was a lot bet-
ter.’’
80 Not to mention common sense.
81 Asked how the bent bumpers were fixed, Snow testified: ‘‘Gen-
erally, we just ran them up against a steel post or a telephone pole,
something that could push the bumper back into place.’’ Snow re-
verted voluntarily from supervisor to driver. He was discharged in
December 1989 after an ice-abetted skid into a carport, causing dam-
ages estimated at $8,750. Snow described himself as a ‘‘very open
and obvious’’ union proponent.
drant and knoted [sic] it loose. He also hit a cement
pole about 3 feet high before he hit the hydrant.
The driver claims that because the truck dog tracks
to the left that was the major cause of this accident. But
the driver was fully aware of the problem before the ac-
cident happen [sic]. The driver should have com-
pensated knowing of the problem with the truck. It
wasn’t that he was not aware of the problem. We do
have spare truck and if the driver was uncomfortable
with Truck #200 he should have taken a spare.
Goff’s summary stated, in a space captioned ‘‘Actions Taken
to Reduce Likelihood of Recurrence’’:
Talk with driver about backing when truck is dog
walking like Truck #200 was doing. If he chooses to
drive a truck with this problem to be very careful when
backing—Disciplinary action taken will be 3 days off
without pay. This is the second chargeable accident of
a twelve month period. Next chargeable accident will
be termination with W.M. of S.L.
On August 28, 1989, Jacketta received a written reprimand
signed by Goff and Lafeen. It stated:
On 8/23/89 you were involved in a backing accident
at 3675 S. 300 W. in which you hit a pole and a fire
hydrant causing damage to both. The pole and the fire
hydrant are approximately 3 feet apart which means
you struck the pole first then the hydrant. Also truck
#200 received damage to the right front bumper. The
accident we feel was preventable. You stated on the ac-
cident report that the truck was dog tracking to the left.
You were fully aware of this problem before the acci-
dent happened. We are confident in your abilities as a
professional driver. Taking into consideration all of the
above information we feel that the dog tracking condi-
tion of your truck should not have and quite likely did
not contribute to the accident.
Therefore, it is our conclusion that this accident is
chargeable against your safety record. This is your sec-
ond chargeable accident in a twelve month period and
requires disciplinary action of a Final written warning
and a 3 day suspension to be given at the companies
[sic] discretion. This letter should be considered your
final written warning and any further accident will re-
sult in termination of your employment with Waste
Management of Salt Lake. We recommend that you
take any and all precautions to avoid any further prob-
lems that would require disciplinary action as stated
above.
Again we are confident in your professional abilities
and appreciate your didication [sic] to service as an em-
ployee of Waste Management of Salt Lake.
Goff testified that, although this accident made Jacketta
subject to suspension, the Employer withheld that action be-
cause it would not have been ‘‘convenient.’’
Jacketta testified that he reported the accident to Goff, by
truck radio, ‘‘at the time it happened’’; that Goff asked if the
hydrant was damaged; and that he said no, ‘‘it wasn’t leak-
ing or anything.’’ Jacketta recounted that he asked Goff what
to do about the bumper, and Goff said to finish the route ‘‘if
it’s workable’’ and that he would ‘‘look at the hydrant’’
later.
Concerning the so-called dog-tracking, Jacketta testified
that the ‘‘the suspension on the truck had a serious prob-
lem’’; that it caused the wheels to be ‘‘a good four to six
inches’’ out of alignment’’; and that this ‘‘does not allow
you to back up straight—it gives you the impression that you
are straight, but you are not.’’ Jacketta testified that the truck
‘‘had been in that condition for months,’’ and that he had
talked to shop personnel about the condition and mentioned
it in vehicle condition reports as far back as March or April.
The shop had installed walking beams on the truck ‘‘with-
in a month’’ before the hydrant accident in an unsuccessful
effort to solve the dog-tracking problem. Jacketta testified
that he continued to report the problem ‘‘on the daily VCR
reports’’ thereafter, that he also told Goff about it, and that
Goff said he would ‘‘let the shop know about it.’’79 The
condition finally was corrected sometime after the accident,
when a worn out bushing rendered the truck inoperable.
Goff investigated the accident in question. He testified that
it warranted a reprimand because of ‘‘both’’ the damage to
the hydrant and the damage to the truck. The Employer’s ac-
cident file contains no indication, however, of monetary
damage to either.
Goff asserted that the hydrant ‘‘had been broken loose,’’
then qualified that ‘‘the ground around it’’ had been loosened
and ‘‘it appeared somewhat’’ that a connecting pipe had been
broken. He testified that he mentioned the matter to a county
official, who said he would send someone ‘‘to check it’’; and
that he ‘‘never heard back.’’ Another driver, Jim Nunnally,
caused $576.10 damage to a hydrant in December 1989, yet
apparently received no reprimand.
Regarding the bumper, Goff testified that, while he had
‘‘no idea’’ how it was straightened or the cost, he is ‘‘sure’’
it entailed some expense. Goff could cite no other instance
when he issued a written reprimand for bumper damage.
Although Goff denied that ‘‘the majority of trucks . . .
have bumper damage,’’ the weight of evidence80 compels the
inference that bumper damage is commonplace. Lafeen,
Goff’s co-signator on the subject reprimand, admitted that it
sometimes happens, and that he could not recall ever issuing
a reprimand for it. Donald Snow, a supervisor for about 10
years until December 1988, testified that his drivers reported
a number of instances—‘‘a dozen, a couple of dozen’’—of
bent bumpers during that period, and that only one warning
resulted—to a recurrent offender.81 The ‘‘biggest culprit,’’
Snow added, ‘‘is probably fire hydrants and fence posts.’’
Jeffery Woolsey testified that he bent a bumper in 1988, that
Snow told him to ‘‘just bend it back,’’ and that the bumper
eventually ‘‘just broke in half’’ from ‘‘continually being bent
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
82 In Wright Line, 251 NLRB 1083 (1980), the Board stated at
1089:
[W]e shall henceforth employ the following causation test in all
cases alleging violation of Section 8(a)(3) or violations of Sec-
tion 8(a)(1) turning on employer motivation. First, we shall re-
quire that the General Counsel make a prima facie showing suf-
ficient to support the inference that protected conduct was a
‘‘motivating factor’’ in the employer’s decision. Once this is es-
tablished, the burden will shift to the employer to demonstrate
that the same action would have taken place even in the absence
of the protected conduct.
This formulation received Supreme Court approval in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
83 August 25, the date of the meetings, was a Friday; August 28,
the date of the warning, a Monday.
84 Jacketta also had frustrated Martin in late July when he defied
Martin’s entreaties that he ‘‘join the team.’’
85 Even when, as in the case of Jim Nunnally, the damages were
over $500.
86 That the Employer bestowed ‘‘special favors’’ on union sup-
porters does not weaken this conclusion. Those bestowed before the
election might well have been calculated to affect the outcome; those
after, to engender goodwill on behalf of the effort to get the objec-
tions withdrawn and in the event of an election rerun.
87 A photograph, in evidence, reveals that the poke was at the
junction of three blocks, inflicting some damage on all.
and straightened.’’ Jacketta testified that most of the trucks
have ‘‘some damage to the bumpers.’’
Goff acknowledged that Jacketta’s truck had a dog-track-
ing problem. He would have it, however, that it was ‘‘a few
inches’’ out of line—‘‘probably two inches at the most’’—
rather the ‘‘four to six’’ estimated by Jacketta. Goff con-
ceded, as well, that Jacketta mentioned the problem in his
daily reports.
b. Conclusions
Applying the analytical approach prescribed in Wright
Line,82 I conclude that the General Counsel has made the
requisite prima facie showing that Jacketta’s union sym-
pathies and activities were a motivating factor in the Em-
ployer’s issuing the August 28 warning. I base this conclu-
sion on these considerations:
(a) Jacketta probably was the most actively prounion of
the employees, and was so regarded by management. Peck
perceived him and McQuiston to be the ‘‘instigators,’’ be-
yond which Jacketta told Goff in May or June that he was
‘‘the Number One man’’ and he raised his hand on August
25 when Martin asked who knew about the objections.
(b) The Employer is virulently antiunion. This is disclosed
not only by the manifold instances of misconduct chronicled
elsewhere herein, but by Lafeen’s directing then-supervisor
Jacketta in January 1989 to ‘‘find any way possible and legal
to get rid of’’ Juan Martinez because Martinez reportedly had
gone to the Union, and by Goff’s postelection disclosure to
Taul that supervision ‘‘would be watching the people they
knew were for the Union’’—that accidents ‘‘that was charge-
able would be charged’’ and ‘‘they would be down the
road.’’’
(c) The warning issued the first business day after the
meetings in which Martin asked who knew about the objec-
tions, then appealed to those having ‘‘pull’’ with the Union
to try to ‘‘get these objections dropped.’’83
(d) The objections frustrated Martin greatly; he conceded
that the attendant retraction of the newly instituted benefits
was ‘‘an emotional issue’’ with him. That frustration doubt-
less was compounded when, despite his pointed appeal to
those with ‘‘pull,’’ the objections were not ‘‘dropped.’’84
(e) The underlying accident was of a sort that was not un-
usual and rarely prompted disciplinary action,85 indicating
that the Employer singled Jacketta out for adverse treatment.
I further conclude that Respondent has not overcome the
General Counsel’s considerable prima facie showing. The ac-
cident was minor, apparently entailing no monetary loss.
Jacketta’s culpability was mitigated, moreover, by the length
and narrowness of the alley, by its newness to his route, and
by the dog-tracking problem, which he dutifully had reported
time and again.
In addition, Goff’s credibility suffered from his effort to
hold Jacketta responsible for using an impaired truck, al-
though management was well aware of that situation; by his
exaggeration, initially, that the hydrant ‘‘had been broken
loose’’; by his unsupported and unconvincing claim that the
bumper damage entailed some expense; and by his insist-
ence, contradicted by the weight of evidence, that ‘‘the ma-
jority of trucks’’ did not have bumper damage.
In summary, I conclude that the Employer violated Section
8(a)(3) and (1) as alleged by its August 28 warning of
Jacketta and by its attendant determination that Jacketta’s
August 24 hydrant accident was chargeable.86
4. Jacketta’s discharge and the alleged classification of
incidents as chargeable
a. The evidence
About noon on November 17, 1989, as Jacketta attempted
to pick up a trash container at a Pic ’N Pac store, one of
the forks on his truck poked a hole in the cinder-block wall
behind the container. Jacketta described the hole as ‘‘about
the size of a silver dollar’’ and, ‘‘at the most,’’ an inch deep.
Jacketta testified that he immediately called the dispatcher,
asking for Goff; that the dispatcher said he did not know
Goff’s whereabouts; and that he told the dispatcher to make
a note that he had called. Jacketta then completed his route;
and, upon returning to the terminal about 4:30, told Goff
what had happened. Goff said he would ‘‘have a look at it’’
over the weekend.
In his accident report, dated November 17, Jacketta stated:
‘‘Container was on a angle against the block wall. I was
watching the left fork and the right fork poked through the
wall.’’
The next Monday, November 20, Goff and Dave Peck, op-
erations manager, spoke with Jacketta in Peck’s office. Peck
said, as Jacketta recalled, that the Employer would ‘‘have to
replace three blocks in that wall,’’87 that this would ‘‘cost
the company a hundred fifty dollars,’’ that that was ‘‘too
much,’’ and that he therefore held Jacketta ‘‘chargeable.’’
Peck went on, according to Jacketta, that this was Jacketta’s
third chargeable accident in a year, ‘‘actually four, counting
the windshield,’’ and that he consequently would ‘‘have to
let [Jacketta] go.’’
The Employer’s published Disciplinary Policy dictates
‘‘termination’’ for three ‘‘chargeable’’ incidents ‘‘within 12
months.’’ Jacketta’s previous chargeable accidents, so far as
he had been informed, were when he turned into another ve-
903WASTE MANAGEMENT OF UTAH
88 He was informed by memorandum dated March 28 from Chuck
Elmer, then operations manager.
89 A photo of Sophie Garcia’s pocked wall is in evidence. Goff
granted that it has ‘‘several’’ unrepaired holes and has been in that
condition ‘‘for years,’’ the reason being that Sophie Garcia’s has
never complained.
90 Goff did not explain why he departed from the practice in this
instance.
91 Echoing Goff, Snow testified that generally, ‘‘until the customer
contacted us, no, we wouldn’t repair it.’’ He qualified, however, that
if a poke ‘‘was in an obvious place,’’ he sometimes would repair
it without contacting the customer. ‘‘We’d buy a little three-pound
box of wall patch,’’ he recalled, ‘‘and just mix it up and patch it.’’
92 Lafeen, too, cited the writeups of Ken McQuiston and Snow.
Lafeen testified that he also wrote up Robin Clontz for a wall-poke,
in 1989, later amending that he could not recall if Clontz was found
chargeable.
hicle on March 15,88 and when he hooked the hydrant on
August 23.
Jacketta heatedly accused Peck and Goff of being ‘‘out to
get’’ him. Peck, taking that as an allusion to Jacketta’s union
activities, angrily rejoined, ‘‘That’s not the situation at all.’’
Peck presently asked, ‘‘What are you going to do, file
charges?’’ Jacketta answered, ‘‘You’re damn right I’m going
to file charges,’’ and walked out.
Goff’s Accident/Injury Summary, dated November 20,
noted that ‘‘driver poked hole in wall with forks,’’ and con-
tained this entry: ‘‘Disciplinary Action: Found Chargeable.
Employee Terminated.’’
On November 21, Peck prepared this memorandum:
On November 20, 1989 Jim Jacketta was terminated
from Waste Management of Salt Lake in accordance
with safety policies.
On Friday November 17, 1989 Jim was involved in
an accident at Cottonwood Bowl, 5600 South 900 East
where he poked a hole through the wall with the forks
of his truck while attempting to pull into the container.
Additionally, the employee failed to report this accident
to his supervisor immediately after it happened, as is
required by the rules and regulations of Waste Manage-
ment of Salt Lake. This was Jim’s fifth preventable ac-
cident in less than 12 months.
Due to Jim’s past and present accident record with
Waste Management of Salt Lake he has left us with no
alternative but to terminate his employment.
The reporting requirement Peck referred to appears in the
Employer’s Rules and Regulations. It states:
Employees shall report all accidents, including dam-
ages to customer property or other property, and all
personal injuries immediately. Failure to report an acci-
dent or damage shall result in termination of employ-
ment.
On Jacketta’s termination notice, dated November 21 and
signed by Goff, two boxes were checked: ‘‘Unacceptable
Work Performance’’ and ‘‘Rules Violation.’’ The notice fur-
ther stated that Jacketta was ineligible for rehire because of
‘‘to [sic] many accidents,’’ and concluded: ‘‘Jim did a good
job on his route servicing customers. Only problem to [sic]
many accidents.’’
The next day, at the terminal to return his uniforms and
get his final check, Jacketta asked Peck why the ineligible-
for-rehire box had been checked on his termination notice.
Peck answered that it was Martin’s ‘‘policy that anybody ter-
minated for too many accidents is not eligible for rehire.’’
Goff testified that he was not aware that Jacketta left a
message with the dispatcher—‘‘Not to my knowledge, no’’—
but that ‘‘it seems like’’ Jacketta said he had called in. Goff
also testified that the cost to repair the wall was ‘‘150 to 200
dollars.’’ An invoice from Ed Conrad Masonry reveals that
it in fact was $53.
Curtis Smith, who as a relief driver was familiar with
many routes, testified that wall damage near the garbage bins
is common. Smith further testified that, when he poked a
hole at Sophie Garcia’s in October 1989, Goff responded:
‘‘We won’t worry about it unless something is brought up.
There are several other holes in the wall.’’ Goff conceded
that the Employer’s ‘‘practice’’ is to make repairs only if a
customer complains.89 Yet, he admittedly ‘‘chose to let’’ Pic
’N Pac ‘‘know about’’ Jacketta’s poke.90
Smith to the contrary, Goff denied that wall-pokes are
‘‘fairly common’’—‘‘it happens, yes, but frequently, no.’’
Goff also denied that a driver reported to him poking a hole
at Sophie Garcia’s, or that he told the driver ‘‘to just forget
about it.’’
Apart from Jacketta, Goff could not recall citing anyone
for a wall poke. Donald Snow, identified earlier as a super-
visor from 1978 to 1988, testified that the drivers under him
reported ‘‘a dozen or so’’ wall pokes in that time, and that
this occasioned neither an accident report nor a reprimand.91
Peck testified, on the other hand, that the Employer has
found some wall-pokes to be chargeable. He amplified that
Ken McQuiston was charged ‘‘about a month ago,’’ but only
after damaging a wall a second time within a brief period;
and that Donald Snow was charged in December 1989, but
for pushing a container into a wall, not damaging it with a
fork.92
Peck’s November 20 remark that Jacketta had ‘‘actually
four’’ chargeable accidents ‘‘counting the windshield’’ re-
ferred to an incident on August 22. Jacketta testified that, as
he picked up a container and ‘‘leveled the container out, a
big, round piece of metal came rolling out and struck the
right windshield, breaking it.’’ Jacketta reported this to Goff
at the landfill, Jacketta recalled, and Goff said, ‘‘Duly noted,
you did report it to me.’’
When Jacketta finished his route the day of the windshield
incident, Goff had him sign a memorandum stating:
On Tues 8–22–89 you had a part of a transmission
roll off a container you were servicing. That broke the
right windshield of your truck #200. You brought it to
my attention out at the Salt Lake County landfill at
about 11:00 A.M. This information will be filed. No
further action will be taken unless a similar incident
like this occurs again.
Goff said nothing about chargeability.
Jacketta testified that windshield breakage is ‘‘very com-
mon’’ with front-loader trucks. Lafeen testified that he could
recall ‘‘possibly a dozen’’ such incidents and that the Em-
ployer generally does not impose chargeability in a driver’s
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 Young, however, received a written reprimand.
94 Martin qualified that he did not impose the greater stringency
immediately—‘‘it was a two- to three-month period before my style
was firmly in place with the division.’’ Jeffery Woolsey testified that
he and his fellow drivers complained to Tom Tucker, at one of the
May 11 meetings previously described, that ‘‘every little accident
that we would have they would charge us for . . . and we didn’t
think it was fair.’’
95 McQuiston testified that he was ‘‘not really sure’’ why Peck
said this. Peck testified, ‘‘Ron’s a good man. I’d hate to lose him.’’
96 Which warning allegedly was unlawful. That issue is treated
later.
97 Emphasis added.
98 The Employer states in its brief: ‘‘The essence of the Smith and
Snow incidents is the fact that Martin’s supervisors did not perfectly
carry out his policy of reporting all damages of property and acci-
dents.’’
99 See fn. 82, above.
100 The two instances cited by Peck in which employees were dis-
ciplined for wall damage are distinguishable either in degree (Ken
McQuiston) or kind (Snow) from the present. Also, McQuiston’s
writeup occurred ‘‘about a month’’ before Peck testified, raising the
first instance; and neither he nor Goff could recall ever
issuing a reprimand for such an occurrence.
The statement in Peck’s November 21 memorandum that
the November 17 wall-poke was Jacketta’s ‘‘fifth preventable
accident in less than 12 months’’ apparently also con-
templated an incident at the landfill the previous May 18.
The box on Monty Young’s truck ‘‘jumped the hooks’’ and
became stuck when Young began to unload it. As Jacketta
tried to help him restore the box to its proper place, it
‘‘tipped over and off the truck and hit another truck.’’
Jacketta later told Goff about this, and asked if he should fill
out an accident report. Goff said that was ‘‘not necessary,’’
and that seemingly was the end of the matter as concerns
Jacketta.93
Even so, Goff put a memorandum in Jacketta’s personnel
file concerning the incident. Dated May 23, it stated, after
describing what happened:
I felt that Jim played a major role in this accident.
Since he was in control and operating the heavy equip-
ment that caused the box to tip off. He should have
called management and let us handle the situation. Al-
though Monty was found chargeable for this I felt that
Jim was also very much at fault in this accident.
Goff did not tell Jacketta about this memorandum. Its pur-
pose, he testified, was to make ‘‘everyone aware that Jim
Jacketta was involved in an incident.’’
Martin testified that the ‘‘only reason’’ for Jacketta’s dis-
charge ‘‘was the number of chargeable accidents’’; that his
performance otherwise was ‘‘satisfactory.’’ Martin testified
that, upon becoming general manager in late 1988, he ‘‘could
tell that [previous management] were very lax . . . about
chargeability on accidents,’’ and that ‘‘there is no question
that [he] enforced the policy more stringent than pre-
vious.’’94
Ron McQuiston told Peck and Lafeen, after Jacketta’s dis-
charge, that he thought it ‘‘was not fair.’’ Peck responded,
‘‘I hope that you don’t think Jim was terminated for union
activities,’’ and McQuiston said he did. Peck came back that
‘‘it was never [his] intent to let Jim go for union activities’’;
that it was for ‘‘too many accidents.’’ Peck added: ‘‘You
don’t need to worry, you know, we’re not looking to get rid
of you. You’re one of our better employees.’’95
Its stated policy notwithstanding, the Employer does not
always effect discharge upon a third chargeable accident
within a year. It did not discharge Douglas Gerber or Bob
Wiechert until their fourth chargeables; and, in a written
warning to Ron McQuiston, dated January 12, 1990,96 stated:
[I]t is our hope that this will help prevent a third
chargeable incident which will, depending on the sever-
ity, result in termination . . . .97
Peck rationalized regarding Gerber that one of the acci-
dents involved ‘‘a very minute injury and we . . . gave
Doug a break on that.’’ Peck testified that Gerber ‘‘prob-
ably’’ would not have been discharged even on his fourth,
had it not related to ‘‘a very serious accident.’’ ‘‘It all de-
pends on the circumstances,’’ he observed. As for Wiechert,
the Employer states in its brief that his was ‘‘a special cir-
cumstance and not in line with Martin’s strict-enforcement
policy.’’
Nor is the Employer’s accident-review procedure
unfailingly consistent. When Donald Snow lost a turn signal,
Goff told him ‘‘not to worry about it’’; and, when Curtis
Smith tipped a container onto and damaged a nearby vehicle,
Goff did not require that he file an accident report. Martin
testified that he first learned about these incidents during the
present trial, and that they ‘‘should have been reported on
accident forms and gone up the chain of command for proper
review.’’98
The Employer is less than consistent, moreover, con-
cerning the eligibility for rehire of those discharged for too
many accidents. Whereas Jacketta’s termination notice stated
that he was not eligible for rehire, Donald Snow’s was blank
in that regard and Peck admittedly ‘‘sure wanted to try’’ to
effect Snow’s rehire. Similarly, Peck told Gerber that he
‘‘wanted to do what [he] could for him.’’
b. Conclusions
Again heeding the Wright Line approach,99 I conclude that
the General Counsel has made a prima facie demonstration
that Jacketta’s discharge was improperly motivated. My rea-
sons are these:
(a) Apart from other considerations, the Employer’s
would-be justification for the discharge—that the November
17 wall-poke was Jacketta’s third chargeable accident—pre-
supposes the validity of its holding him chargeable for the
hydrant incident. But, as I have concluded, the Employer
violated the Act in that instance. The taint necessarily trans-
fers.
(b) The Employer mightily resented Jacketta’s union sym-
pathies and activities—as shown by its unlawful discrimina-
tion against him in August and, more generally, by Goff’s
postelection disclosure to Taul that supervision ‘‘would be
watching the people they knew were for the Union’’; that ac-
cidents ‘‘that was chargeable would be charged’’ and ‘‘they
would be ’down the road.’’’
(c) Jacketta’s wall-poke, like his August hydrant accident,
was of a sort not particularly uncommon and seldom prompt-
ing disciplinary action.100 Indeed, when Curtis Smith re-
905WASTE MANAGEMENT OF UTAH
suspicion that it was imposed to give colorable legitimacy to
Jacketta’s treatment.
101 I credit Smith, rather than Goff’s denial, that Goff said this.
Goff had more incentive to lie than did Smith, and in general was
not an impressive witness when his interests did not correspond with
the truth.
102 I credit Jacketta’s unchallenged testimony that he called in.
Goff conceded that ‘‘it seems like’’ Jacketta said he called in.
103 Peck’s testimony on the subject was limited, not requiring a
credibility assessment.
104 McQuiston testified that, although he apologized, he did not
think his conduct ‘‘out of line.’’ Asked by the Employer’s counsel
why he did it, then, he answered, ‘‘I’m a nice guy.’’
ported a wall-poke to Goff in October 1989, Goff said not
to ‘‘worry about it unless something is brought up.’’101 This
indicates that the Employer again singled Jacketta out for ad-
verse treatment.
(d) Contrary to the Employer’s practice of repairing wall
damage only if a customer complains, Goff ‘‘chose to let’’
Pic ’N Pac ‘‘know about’’ Jacketta’s poke. This, too, be-
speaks a singling out; that the Employer was building a case
against Jacketta.
(e) Goff’s determination that Jacketta is ineligible for re-
hire, when others discharged for too many accidents have
been eligible, suggests that Jacketta’s accidents are a smoke-
screen concealing another true reason.
(f) The Employer commonly ignores its policy dictating
termination for three chargeable incidents, and its operative
criteria for determining what is chargeable (or even report-
able) plainly are fraught with subjectivity, as well. Thus, its
strict application of the rules against Jacketta also indicates
pretext.
I conclude, as well, that the Employer has not surmounted
the General Counsel’s prima facie case. My thinking:
(a) The accident caused only $53 in damage.
(b) Peck’s November 20 remark that Jacketta had ‘‘actu-
ally four’’ chargeable accidents and his depiction of the wall-
poke, in his November 21 memorandum, as Jacketta’s ‘‘fifth
preventable accident,’’ when Jacketta had been charged only
twice before (once lawfully), betray a need to inflate
Jacketta’s transgressions to give the discharge ostensible le-
gitimacy.
(c) The statement in Peck’s November 21 memorandum
that Jacketta had ‘‘failed to report this accident . . . as is re-
quired by the rules and regulations,’’ when Jacketta had at-
tempted to reach Goff through the dispatcher, and later told
Goff he had, further reveal a need to overstate Jacketta’s
sins.102
(d) As before, Goff hurt his credibility, exaggerating the
cost of repair severalfold, self-servingly downplaying the in-
cidence of wall-pokes, and disputing Curtis Smith’s credited
testimony that he told Smith not to ‘‘worry about it’’ when
Smith reported a wall-poke. I have commented elsewhere
about Martin’s poor credibility. His testimony concerning
Jacketta’s discharge was similarly wanting.103
I conclude, in sum, that Jacketta’s termination violated
Section 8(a)(3) and (1) as alleged. I conclude that the Em-
ployer also violated Section 8(a)(3) and (1), as alleged, by
treating Jacketta’s November 17 wall-poke as chargeable,
and by according prejudicial weight to the May 18 landfill
and August 22 windshield incidents to bulwark the discharge.
5. McQuiston’s warning on about January 11 and the
chargeability finding about January 13
a. The evidence
On January 9, 1990, about 8:40 a.m., McQuiston’s truck
hit a car in the parking lot of a 7-Eleven store. His testi-
mony:
I turned into the 7-Eleven off of 8th South, turned
north into their parking lot, went around the fuel island,
started turning around it, then the truck just started slid-
ing straight. It wouldn’t turn. . . . It slid on ice. . . .
I stepped on the brakes, I couldn’t stop, and slid into
the car.’’
McQuiston testified that he was ‘‘about 20 feet’’ from the
car when he attempted to turn, was going ‘‘about six, seven
miles an hour,’’ and that he could not see the ice from his
vantage point in the cab. The record does not disclose the
cost, if any, of the resulting damages.
McQuiston reported the accident by radio, and Goff ar-
rived at the scene about 30 minutes later. McQuiston told
him that ice had caused the accident, and Goff remarked:
‘‘Where’s the ice? I can’t see no ice.’’ McQuiston said it had
melted ‘‘where the sun has hit,’’ he testified, and pointed to
ice in the shadows, but Goff ‘‘just insisted that there was no
ice.’’ At length, ‘‘upset’’ by Goff’s seeming skepticism,
McQuiston exclaimed, ‘‘You had better come down off your
high horse.’’ Goff rejoined, ‘‘You’ll think, ‘come down off
my high horse’,’’ and McQuiston shot back, ‘‘Don’t be
cocky with me.’’
With that, Goff summoned Lafeen by radio, and
McQuiston meanwhile made some entries about the incident
in his notebook. Goff, seeing this, asked what he was doing
and if he took notes often. McQuiston replied, ‘‘Yeah, I take
’em all the time, every day.’’ Goff countered, ‘‘Well, two
can play at that game, you know.’’
McQuiston calmed down while awaiting Lafeen’s arrival,
saying to Goff, ‘‘I’m sorry, but you shouldn’t come across
like that.’’ McQuiston could not recall if Goff responded.104
Also, McQuiston asked Goff, ‘‘Does this mean that it’s the
end of my job?’’ Goff answered, ‘‘No comment.’’
When Lafeen arrived, he examined the point of impact on
the two vehicles, and McQuiston showed him the remaining
ice ‘‘where the sun hadn’t quite hit.’’ McQuiston recalled
that Lafeen ‘‘didn’t say much,’’ and that he shortly resumed
his route.
McQuiston testified that he ‘‘believe[d]’’ he mentioned to
both Goff and Lafeen that two people had witnessed the ac-
cident—‘‘two Mountain Fuel guys’’—who by then had left.
The next day, January 10, Goff and Lafeen called
McQuiston to the office. He asked if he could bring his
brother, Ken, along. They refused, and he ‘‘kind of argued
the point,’’ saying he had that ‘‘right’’ and asking if they
had ‘‘something to hide.’’ Lafeen replied, ‘‘[M]aybe in a
union company you can have a witness, but you can’t now.’’
That over, Goff or Lafeen read to him and asked that he sign
a memorandum captioned: ‘‘Written warning for insubor-
dination at the seen [sic] of an accident.’’
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
105 McQuiston had been charged in connection with an accident in
April 1989. As he described it, he ‘‘was dumping . . . a garbage
can and a pallet had went over the top . . . and fell off and . . .
hit a car.’’
106 Peck testified that he finally reached Minear ‘‘after several at-
tempts, probably 15 to 20 different times.’’
107 Mentioned above in fn. 81.
Prepared by Goff, the memorandum stated:
On Tuesday January 9, 1990 I received a radio call
from you requesting a supervisor to come to 7–11 at
800 South 900 West at 8:40 AM. You then stated over
the radio that you had slid on some ice and hit a car.
On arrival I walked around the entire truck on both
sides to see where the ice was and could not find any.
You were on the phone at this time. When you walked
over I asked you where the ice was, at that point you
walked toward me in a threatening manor [sic], raised
your voice and said don’t get arrogant and cocky with
me and to come down off my cloud. I said you haven’t
seen me on a cloud yet. Then I walked away because
I could see a confrontation starting to happen. I then
called Hal Lafeen to also come out to the accident loca-
tion because of the situation. While waiting for Hal we
were talking and you said you were sorry for the acci-
dent and for getting upset.
Ron, this type of behavior cannot be tolerated and if
an infraction of this type ever happens again it could
result in serious disciplinary action.
McQuiston refused to sign, exclaiming that it ‘‘isn’t true,’’
that it was ‘‘all in Gary’s favor,’’ and that the ‘‘only part’’
he agreed with ‘‘is that [he] did call [Goff] on the radio to
come and investigate the accident when he slid across the
ice.’’ Goff suggested that he get his ‘‘little notebook out and
compare.’’ McQuiston refused. Goff called him ‘‘a goddamn
liar,’’ declaring, ‘‘You did tell me to come down out of the
clouds or something.’’ McQuiston replied that he ‘‘didn’t say
nothing about clouds.’’
On January 11, in Peck’s office, Peck and Goff told
McQuiston the accident had been found chargeable.
McQuiston protested that ‘‘there was ice there,’’ and that he
‘‘had witnesses’’—the ‘‘two Mountain Fuel guys,’’ whose
names he did not then know.
On January 12, Goff presented a memorandum to
McQuiston stating that the ‘‘accident has been found to be
chargeable against your safety record.’’ The document added:
This accident is your second chargeable accident in
a twelve month period and will be treated as such.105
Therefore, according to the Safety policies of Waste
Management of Salt Lake it is required that you receive
a final written warning in lieu if disciplinary layoff.
. . . We strongly urge you to make every effort to in-
crease your safety awareness. In doing so, it is our hope
that this will help prevent a third chargeable incident
which will, depending on the severity, result in termi-
nation of your employment with Waste Management of
Salt Lake.
Lafeen told McQuiston at the time, ‘‘We believe that this
[the accident] may have happened because you have a lot on
your mind.’’ McQuiston took this as an allusion to his union
involvement, although Lafeen did not specifically so state.
McQuiston eventually learned the names of the two wit-
nesses, co-partners in Mountain Fuel Company, telling Peck
‘‘about a month’’ after the accident. Peck spoke with one of
them, Ken Minear, ‘‘probably three to four weeks’’ later.106
Minear said that McQuiston ‘‘was driving very slow and did
not seem to be careless.’’ Peck prepared this memorandum
of his conversation with Minear:
Parking lot was icy. He said Ron was not speeding
just did not allow enough distance as he was turning for
the conditions. He also said Ron was driving very slow
and did not seem to be careless. It was just one of
those things.
Peck did not bother to speak with the other witness—‘‘I
accepted the first one and pretty much stayed with the deci-
sion that was made.’’
Peck testified that the Employer found McQuiston charge-
able because ‘‘he did not allow enough time to clear that ve-
hicle. He started sliding and didn’t allow himself enough
room to recorrect.’’ Peck admitted that ‘‘ice was the big
problem.’’ Asked why that did not exonerate McQuiston, he
stated:
I just felt that the driver was in control of the vehi-
cle. He was the only one in there. He was traveling too
fast for existing conditions and not allowing himself
enough room to recorrect the situation he was in.
Goff likewise testified that the presence or absence of ice
made ‘‘no difference in terms of chargeability.’’
In January 1989, the Employer exempted Harold Sucese
from chargeability because of ‘‘the icy conditions.’’ Peck ex-
plained:
Harold was sitting completely still, just got done
dumping a container, and his truck just slid right off the
side of the at pavement and hit into a building or some-
thing of that nature, it seems. . . . Basically he was sit-
ting still. He wasn’t in control of the vehicle at all. . . .
[T]he truck just slid right off of where it was sitting.
Sucese’s report of the accident reflects that his truck ‘‘slid
sideways and into the wall’’ as he began to move forward.
The Employer held another driver, Donald Snow, charge-
able for an ice-related accident—when he slid into a carport
in December 1989, causing damages estimated at $8750.107
b. Conclusions
Once more applying the Wright Line analysis, I conclude
that the General Counsel has achieved a prima facie case
with regard to both the January 10 reprimand and the Janu-
ary 12 finding of chargeability. My reasoning:
(a) With the possible exception of Jacketta, McQuiston
was the most ardently prounion of the employees, and was
perceived by Peck to be one of the two ‘‘instigators.’’
(b) As revealed by its unlawful conduct toward Jacketta,
culminating in discharge, the Employer will go to extremes
to punish those behind an organizational drive.
907WASTE MANAGEMENT OF UTAH
108 395 U.S. 575 (1969).
109 Id. at 613–614.
110 Id. at 614–615.
111 International Door, 303 NLRB 582, 584 (1991).
112 Id. at 583, quoting from Koons Ford of Annapolis, 283 NLRB
506, 508 (1986).
113 Long-Airdox Co., 277 NLRB 1157, 1160 (1985).
114 Camvac International, 288 NLRB 816, 822 (1988).
115 Long-Airdox Co., supra at 277 NLRB 1160.
116 Massachusetts Coastal Seafoods, 293 NLRB 496, 499 fn. 7
(1989).
(c) By adamantly refusing to entertain McQuiston’s claim
that the accident was ice-caused, and admitting that ice made
‘‘no difference in terms of chargeability,’’ Goff displayed a
resolve not only to make a case for chargeability regardless
of the realities of the situation, but to goad McQuiston into
ostensible ‘‘insubordination.’’
(d) By issuing the January 10 reprimand in disregard of
McQuiston’s intervening apology, Goff again revealed a vin-
dictive resolve.
(e) Peck, by joining in the chargeability determination al-
though acknowledging that ‘‘ice was the big problem,’’ and
by adhering to that finding despite hearing from a disin-
terested witness that McQuiston ‘‘was driving very slow and
did not seem to be careless,’’ likewise exhibited a hostile
bias.
(f) The Employer had excused Harold Sucese from charge-
ability in January, citing similar ‘‘icy conditions.’’
I also conclude that the Employer has not overridden the
prima facie showing. Regarding the January 10 reprimand,
McQuiston’s postaccident conduct toward Goff did not
amount to insubordination by any objective standard; and,
concerning the finding of chargeability, driver-negligence
played no discernible part in the accident, the damage appar-
ently was minimal, Peck’s attempt to distinguish the Sucese
situation from McQuiston’s came across as hyper-technical
and palpably dishonest, and Goff’s credibility, as I have indi-
cated, was singularly unimpressive.
The Employer accordingly violated Section 8(a)(3) and (1)
on January 10 by reprimanding McQuiston for supposed in-
subordination, and on January 12 by finding him chargeable
for the ice-related accident.
O. The Appropriateness of a Bargaining Order Remedy
and the Allegedly Unlawful Refusal to Recognize
and Bargain
1. The allegations
Paragraph 13(a) of the complaint alleges that, since about
May 8, 1989, the Employer ‘‘has failed and refused to recog-
nize and bargain collectively with the Union as the exclusive
collective-bargaining representative’’ of certain of its em-
ployees. Paragraph 14 alleges that the Employer’s several un-
fair labor practices were
so serious and substantial in character that the possi-
bility of . . . conducting a fair election by the use of
traditional remedies is slight and the employees’ senti-
ments regarding representation, having been expressed
through authorization cards, would . . . be protected
better by . . . a bargaining order . . . .
Paragraph 18 alleges that the failure to recognize and bar-
gain therefore violated Section 8(a)(5) and (1).
2. The sufficiency of the violations herein to support a
bargaining order
Before addressing the other issues in which a bargaining
order remedy or an unlawful refusal to recognize and bargain
rely, I think it appropriate first to determine if Respondent’s
misconduct is sufficient, assuming the presence of the other
requisites, to support a bargaining order.
The applicable guidelines appear in NLRB v. Gissel Pack-
ing Co.108 The Supreme Court in Gissel set forth two situa-
tions in which bargaining orders are indicated: ‘‘excep-
tional’’ cases fraught with ‘‘outrageous’’ and ‘‘pervasive’’
unfair labor practices, and certain ‘‘less extraordinary’’ cases
attended by misconduct that is ‘‘less pervasive’’ but never-
theless has a ‘‘tendency to undermine [the Union’s] majority
strength and impede the [Board’s] election processes.’’109
The Court elaborated that the Board, in deciding whether
misconduct comes within the latter category, may consider
the extensiveness of an employer’s unfair practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election . . . by the use
of traditional remedies, though present, is slight and
that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such order should issue.110
Weighing the appropriateness of a bargaining order rem-
edy under Gissel, the Board characterizes unlawful threats of
discharge (not to mention discharges themselves) and closure
as ‘‘hallmark violations,’’111 with the former ‘‘more likely to
destroy election conditions for a lengthier period of time than
other unfair labor practices,’’112 and the latter being ‘‘one of
the most coercive actions . . . a company can take . . . to
influence an election.’’113 The Board also takes the position
that an employer’s unlawfully promising to redress griev-
ances, forming and dealing with employee committees, and
announcing or granting improved terms or conditions com-
prise a ‘‘course of action’’ having ‘‘a strong coercive effect
on the employees’ freedom of choice . . . eliminat[ing], by
unlawful means and tactics, the very reasons for a union’s
existence.’’114
The Board has further observed that the ‘‘swiftness and
timing’’ of an employer’s unlawful response after the onset
of union activity reduce ‘‘the possibility of erasing the lin-
gering effects of’’ that misconduct,115 and that act also is
magnified if the conduct is perpetrated by high officials and
‘‘envelopes a significant number of employees.’’116
The Employer in the case at hand committed several viola-
tions of the hallmark variety. Its course of conduct included
sundry other violations, as well, which although of lesser se-
verity, certainly were not inconsequential in their aggregate
effect or in combination with the hallmark violations. The
violations began the day the Union filed its petition and con-
tinued with increasing intensity until the election, some even
occurring thereafter; they were perpetrated by the ranking lo-
cally based official, Martin, and by high-level officials who
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
117 A demand, for that matter, ‘‘is not a necessary predicate to the
granting of a bargaining order.’’ Yolo Transport, 286 NLRB 1087,
1096 fn. 47 (1987). And, should a demand be made, the inappropri-
ateness of the unit description therein renders the demand invalid
only if—which is not so in the present case—the description pre-
sents a ‘‘substantial deviation’’ from that which is appropriate. Soil
Engineering Co., 269 NLRB 55, 79 (1984).
118 ‘‘[N]onmajority bargaining orders cannot be considered a reme-
dial option.’’ Gourmet Foods, 270 NLRB 578, 587 (1984).
119 The Board accepts authentication by comparison of signatures.
E.g., Lott’s Electric Co., 293 NLRB 297, 312 (1989); Sarah Neuman
Nursing Home, 270 NLRB 663, 682–683 (1984).
120 ‘‘[D]ates that appear on authorization cards are presumed
valid.’’ Zero Corp., 262 NLRB 495, 499 (1982).
had come from afar for the purpose; and they were pervasive
in scope.
I conclude, based on the totality of the circumstances, that
the possibility of erasing the effects of the Employer’s mis-
conduct and conducting a fair election by application of tra-
ditional remedies is slight to nonexistent, and that a bar-
gaining order remedy therefore is warranted, assuming the
presence of the other requisites to such a remedy.
3. The other requisites
a. Unit appropriateness
The Union’s demand letter, dated May 8, 1989, requested
that the Employer recognize it ‘‘as the bargaining agent . . .
for all your employees employed at your Waste Management
Facility.’’ The Union’s election petition, filed May 11, de-
scribed the unit as ‘‘all drivers, mechanics, welders,’’ exclud-
ing ‘‘all salesmen, office, clerical, management, guards and
supervisors as defined in the Act.’’ The Stipulated Election
Agreement executed by the parties on June 5 and approved
by the Regional Director on June 8, contained this descrip-
tion:
Included: All refuse drivers, mechanics, parts em-
ployees and welders employed by the Employer . . . .
Excluded: All management employees, salesmen, of-
fice clerical employees, guards and supervisors as de-
fined in the Act, and all other employees.
I conclude that, despite the imprecision of its demand let-
ter, the Union’s organizational efforts at all times were di-
rected toward the employees in the unit ultimately agreed
upon, and that that is an appropriate unit for purposes of the
Act.117
b. Majority118
(1) The numbers
The appropriate unit consisted of 42 employees on May 1.
The number rose to 43 the week of May 7, then dropped to
42 the week of May 20, to 40 the week of May 28, and to
37 the week of June 4. The Excelsior list of unit employees,
supplied by the Employer in mid-June, contained 38 names.
Some hirings and one termination thereafter occurred, raising
the number to about 49 by the end of July.
The General Counsel introduced 37 signed authorization
cards. Each is captioned ‘‘Application Blank,’’ and states
that the signer ‘‘hereby make[s] application for admission to
membership and hereby designate[s] the [Union] as my bar-
gaining agency for collective bargaining regarding conditions
of employment . . . .’’ The signatures on 35 of the cards
were duly authenticated by either the signer or the solicitor.
The General Counsel has asked me to pass on the authen-
ticity of the other two—ostensibly signed by Randy Jolley
and Kenneth Sheets—by comparing the signatures on the
cards with their undoubted signatures on W-4 forms. Having
done that, I find the card signatures to be authentic.119
Twenty-three of the cards are dated May 6. Another, Todd
Forman’s, was signed on May 6 although erroneously dated
May 16. Of the remaining cards, one each is dated May 10,
15, 16, 19, and 21 and July 7; four are dated May 17; and
three are dated July 10. Longoria credibly testified that he
received 13 signed cards during the May 6 barbecue at
McQuiston’s; that Sandra (Mrs. Ron) McQuiston delivered
another eight to him the following Monday, May 8; and that
he had 32 in his custody about June 19, when he compared
those signing against the names on the Excelsior list.
Some of the cards were dated by Longoria’s secretary,
who approximated the date of signing, rather than by the
signer. Not all of the dates, therefore, reflect the exact date
of signing. The record affords no basis for supposing, how-
ever, that any date is materially off.120
I am satisfied and find that a comfortable majority of the
unit employees had signed cards by about May 11, when the
Union filed its petition; and that the majority thereafter grew
despite the onset of employer misconduct.
(2) Cards specifically challenged by the Employer
(a) Arguments and evidence
The Employer, in its brief, specifically challenges the va-
lidity of 17 cards. It challenges two, those of Randy Jolley
and Kenneth Sheets—for want of signature authentication.
As I have just found, they did sign.
The Employer attacks the validity of the remaining 15
cards as follows:
(a) That Dale Bullock was told, before signing, that the
purpose was to get ‘‘on a mailing list to receive more infor-
mation.’’
Bullock testified that Jacketta and Ron McQuiston told
him that signing ‘‘would just put [him] on a mailing list to
receive more information’’; that he read a card at that time
and said he wanted to talk to his father-in-law about ‘‘the
benefits of union membership’’ before signing; that he later
signed a card, after again reading it, at the union hall; and
that he signed because he supported the Union. His support
was such that he once hosted an organizing party at his
house.
Bullock switched allegiance a ‘‘couple weeks’’ before the
election, and asked the Union to return his card on election
eve.
(b) That Randy Childs was told he would not have to pay
a $25 membership fee if he signed.
Called by the Employer, Childs testified that Ron
McQuiston told him, when soliciting his signature, that
if we did go union and I didn’t sign it, I would have
to pay an initiation fee, but if I’d already signed and
it goes to the Union, I’d automatically be in, something
to that effect.
909WASTE MANAGEMENT OF UTAH
Childs testified that McQuiston said the purpose of the
card was ‘‘to get a vote in, to see if we could have the
Union in there.’’
(c) That Richard Cook ‘‘was not told the purpose of the
card,’’ and did not date it.
Cook testified that Sandra McQuiston took the card to him
at his home, that he ‘‘looked it over before [he] signed it,’’
and that he could not remember what Mrs. McQuiston said
the ‘‘card was for.’’ Mrs. McQuiston testified that Cook had
asked her to bring a card over, that he signed in her presence
on May 8, and that she ‘‘didn’t explain the card to him.’’
(d) That Todd Forman’s card bears a date after the
Union’s demand, and his reasons for signing contain ‘‘inher-
ent ambiguities.’’
Forman testified that he signed May 6 at the McQuiston
barbecue; that he, Jacketta, and McQuiston solicited signa-
tures at the homes of coworkers later the same day, their
purpose being ‘‘so that we could petition the company to go
union’’; and that they told those they solicited that the cards
were ‘‘to help bring the Union in and that.’’
(e) That Leonard Gilley signed ‘‘only to get an election.’’
Gilley testified that he signed a card tendered by Jacketta
and Ron McQuiston after they had said ‘‘that signing the
card was to have the Union represent [him].’’
(f) That Patrick Gonsalves did not read his card, and said
in a statement obtained by Ken Baylor that Kevin Love had
told him, when soliciting his signature, ‘‘that the sole pur-
pose of the card was to get an election.’’
Gonsalves testified that he read and signed the card the
night of May 6, and that Juan Martinez, accompanied by
Love, told him the purpose was ‘‘to be represented by the
Union.’’
Baylor obtained a statement from Gonsalves in April 1990
which says:
I did not read the card before I signed it. I under-
stood the card to be only for us to have an election,
nothing else. I believe that Kevin Love gave me the
union card. He told me that the sole purpose of the card
was to get an election.’’
Gonsalves testified that, while the statement was accurate
‘‘to a certain extent,’’ he ‘‘didn’t really take time to read it
and consider it and all that good stuff’’; that he ‘‘was late’’
for a bicycle time-trial that night and was ‘‘in a hurry’’; that
he ‘‘just wanted to get out of there.’’
The Employer offered the statement for impeachment only,
and I received it on that basis.
(g) That James Hensley’s name was not on the Excelsior
list, and ‘‘the testimony about the purpose of [his] card is
ambiguous.’’
Hensley testified that he signed May 6 at the barbecue;
that Longoria previously had said that, ‘‘if the majority of
the people signed . . . the Union would bargain’’; and that
Longoria also said he would ‘‘set up the time for us to vote
on it . . . if we got enough signatures.’’ Hensley received
a transfer to Modular of Salt Lake—that is, out of the unit—
on about May 22.
(h) That Earl Holt did not date his card, that the record
contains no testimony ‘‘with respect to the purpose of the
card,’’ and that his name was not on the Excelsior list.
The Employer hired Holt the week of June 18. He left
after about 6 months, but later rejoined the payroll. He testi-
fied that he signed his card after reading it ‘‘real carefully,’’
then gave it to Mark Mierra on July 7.
(i) That Troy Justet’s card bears a date after the demand,
and that he was not eligible to vote.
The Employer hired Justet the week of June 11. Mark
Mierra testified that Justet returned his signed and dated card
to him. It is dated July 10.
(j) That Juan Martinez ‘‘did not read’’ his card before
signing it, and said, in a statement procured by Ken Baylor,
that he ‘‘signed it only to get more information and have an
election.’’
Martinez testified that he signed at the May 6 barbecue;
and that, while he did not read the card, he ‘‘signed it be-
cause we wanted to have a union representation.’’ Martinez
added that he thereafter solicited signatures from others, tell-
ing them that
the card was for the purpose of having legal representa-
tion, and for the purpose to see how many people were
interested in it, and to see if they come up with enough
signatures to have election.
Baylor obtained a statement from Martinez in April 1990
which says:
I did not read the card. I believed the card was only
to get a union election at our company. I have no idea
what the card read. I got the card from Al Longoria,
the union agent. He said the card was to get more in-
formation, too. So, I signed it only to get more infor-
mation and have an election.
Martinez testified that the statement is inaccurate; that he
told Baylor the cards were ‘‘to have an election to have
union representation, to see how many people are interested
in having union representation.’’
I received the statement for impeachment purposes only.
(k) That Mike McNally neither read nor dated his card and
signed because of ‘‘peer pressure.’’
McNally testified that he signed, but did not date, his card
during a Sunday meeting at the union hall, possibly on May
21; that he did not read it; that coworkers previously had so-
licited him ‘‘three times’’ at his home; and that he signed
because of ‘‘peer pressure.’’
(l) That Ken McQuiston’s card was invalidated ‘‘by ambi-
guities regarding the date it was signed’’ and because the
record contains no testimony that he read the card.
Longoria testified that Ken McQuiston’s was among the
13 cards he obtained at the barbecue.
(m) That Lewis Peck’s card is invalid because Longoria
told him ‘‘signing was not putting him in the Union, it was
just to show support of a vote’’; and because someone else
dated it.
Peck testified that he signed at the union hall in the ‘‘first
part’’ of May, after first reading the card and after Longoria
had said ‘‘the card was not putting you in the Union, it was
just to show support of a vote.’’ Peck testified that Longoria
said this to a group of ‘‘probably 50 guys,’’ not to him per-
sonally.
Longoria denied on rebuttal that he ever said the cards
‘‘were solely for the purpose of getting an election.’’
(n) That Craig Taul neither read nor dated his card; and
that Ron McQuiston said, when soliciting Taul’s signature,
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
121 395 U.S. at 606–607. The Court also observed at 608:
[E]mployees are more likely than not, many months after a card
drive . . . to give testimony damaging to the union, particularly
where company officials have previously threatened reprisals
. . . in violation of Section 8(a)(1). We therefore reject any rule
that requires a probe of an employee’s subjective motivation as
involving an endless and unreliable inquiry.
122 299 Lincoln Street, 292 NLRB 172, 184 (1988); Horizon Air
Services, 272 NLRB 243, 257–258 (1984); Gordonsville Industries,
252 NLRB 563, 565 (1980).
123 Photo Drive Up, 267 NLRB 329, 364 (1983).
124 Tall Pines Inn, 268 NLRB 1392, 1405–1406 (1984); Atlas
Microfilming, 267 NLRB 682, 693 (1983).
125 Hicks Oils, 293 NLRB 84, 87 (1989).
126 Ideal Elevator Corp., 295 NLRB 347, 348 (1989).
127 See fn. 117, above.
128 ‘‘It is the Respondent who must show clear and convincing
evidence of material misrepresentations to invalidate otherwise un-
ambiguous authorization cards . . . .’’ Photo Drive Up, supra, at
267 NLRB 364. As noted, I received the statements Baylor obtained
from Gonsalves and Martinez for impeachment purposes only. Hav-
ing serious reservations about the procedure Baylor followed to ob-
tain them, I accord them scant impeachment value; and, if they did
constitute substantive evidence, I would give them no credence vis-
a-vis the two employees’ testimony.
129 NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973).
130 Three employees—Dale Bullock, Craig Taul, and Blaine
Wallgren—sought the return of their cards either shortly before the
election or after Martin appealed to the employees to try to get the
objections dropped. The Board regards an attempted revocation
‘‘after the onset of the coercive conduct’’ to be a result of that con-
duct and thus ‘‘ineffective.’’ Lott’s Electric Co., 293 NLRB 297,
312 (1989).
131 Yolo Transport, 286 NLRB 1087, 1097 (1987); Grandee Beer
Distributors, 247 NLRB 1280, 1280 fn. 5 (1980); Freehold AMC-
Jeep Corp., 230 NLRB 903, 903 (1977).
that ‘‘it was for no other purpose [than] to get on a mailing
list for the Union.’’
Taul testified that he signed the card, without reading it,
about 4 a.m. on May 8. He enlarged: ‘‘[I]t was dark enough
not to read without a light.’’ Taul also testified at one point
that McQuiston had said the purpose of the cards was ‘‘to
see how many people wanted the Union in,’’ and at another
that the purpose ‘‘was to get on a mailing list and to see how
much support there was.’’
(o) That Blaine Wallgren ‘‘was never told the purpose of
the card and he did not read it.’’
Wallgren testified that he signed at his home ‘‘when they
first started pushing it’’; that he did not read ‘‘all of it’’; and
that the solicitors—Jacketta, Ron McQuiston, and Curtis
Smith—said ‘‘it was just to get enough signatures to have
the Union represent [him].’’
b. Conclusions
The Supreme Court stated in Gissel:
[E]mployees should be bound by the clear language
of what they sign unless that language is deliberately
and clearly canceled by a union adherent with words
calculated to direct the signer to disregard and forget
the language above his signature. There is nothing in-
consistent in handing an employee a card that says the
signer authorizes the union to represent him and then
telling him that the card will probably be used first to
get an election.121
The Board consequently holds that a card is not tainted by
a solicitor’s saying it would ‘‘let the union come for a vote’’
or that it would help get an election.122 It also deems a so-
licitor’s misrepresentation of no moment if the signer did not
rely on it.123
Moreover, a card need not be accurately dated—or dated
at all—to be valid, provided the approximate signing date
can be established by other means;124 the signer need not
have read the card;125 that the signer may have been induced
by peer pressure ‘‘is irrelevant’’;126 and, a demand not being
‘‘a necessary predicate’’ to a bargaining order,127 the date of
signing relative to a demand likewise is irrelevant. Finally,
that a signer entered the unit after the cutoff date for election
eligibility or was omitted from the Excelsior list does not ne-
gate his/her card.
I conclude, based on the evidence concerning 14 of the 15
cards in question and the operative legal principles, that the
Employer has not met its burden of showing invalidating cir-
cumstances.128 Concerning the remaining card, Randy Childs
testified that McQuiston raised the prospect that his initiation
fee would be waived if he signed. That perhaps invalidated
Childs’ card under the doctrine of Savair Mfg. Co.,129 al-
though I see no need to pass on that since the one card
would not affect the Union’s majority.
(3) Conclusion regarding majority
Having found that a majority of the employees had signed
cards by about May 11 and that at least 14 of the 15 cards
challenged by the Employer are valid, I conclude that the
Union on that date had a valid majority, which it thereafter
retained.130
4. Conclusions regarding a bargaining remedy and the
refusal to recognize and bargain
The Union having achieved a valid card majority in an ap-
propriate unit by May 11, and the Employer having em-
barked upon its course of unlawful conduct that same day,
I conclude that a bargaining order remedy is warranted, ef-
fective May 11.
I also conclude that the Employer’s subsequent disregard
of the Union’s May 8 demand for recognition and bargaining
violated Section 8(a)(5) and (1) as alleged.131
CONCLUSIONS OF LAW
1. The Employer’s manifold violations of the Act, in com-
bination with the Union’s card majority, warrant a bargaining
order remedy.
2. The Employer violated Section 8(a)(5) and (1) by fail-
ing and refusing to recognize and bargain with the Union
after May 11, 1989.
3. The Employer violated Section 8(a)(5), (2), and (1) as
follows:
(a) On and after July 6, 1989, by establishing and dealing
with the routing and productivity, safety, and benefits com-
mittees concerning terms and conditions of employment.
(b) On July 27, 1989, by promulgating and announcing the
likely adoption in August of new programs ‘‘initiated by’’
the benefits and safety committees.
911WASTE MANAGEMENT OF UTAH
132 The Employer will begin to satisfy its obligation only when it
starts to bargain in good faith with the Union. Bentson Contracting
Co., 298 NLRB 199, 201 (1990).
133 ‘‘It is not the Board’s policy to require that unlawfully granted
benefits be rescinded . . . .’’ Pembrook Management, 296 NLRB
1226, 1228 (1989).
134 The employees’ entitlements, if any, are to be calculated in ac-
cordance with Ogle Protection Service, 183 NLRB 682, 683 (1970).
Interest, wherever called for herein, shall be figured in accordance
with New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) On August 3 and 10, by announcing that the several
new programs ‘‘initiated by’’ the benefits and safety commit-
tees were in effect.
4. The Employer violated Section 8(a)(5), (3), (2), and (1)
in early August 1989 by instituting the several new programs
‘‘initiated by’’ the benefits and safety committees and by ad-
justing the drivers’ routes after conferring with the routing
and productivity committee.
5. The Employer violated Section 8(a)(5), (3), and (1) on
about August 25, 1989, by retracting the newly instituted
programs ‘‘initiated by’’ the benefits and safety committees
because the Union filed objections to the election.
6. The Employer violated Section 8(a)(3) and (1) in these
respects:
(a) On August 28, 1989, by issuing a written warning to
Jim Jacketta, and concomitantly deeming Jacketta’s August
24 hydrant accident chargeable, because of his union sym-
pathies and activities.
(b) On November 21, 1989, by discharging Jim Jacketta,
and concomitantly treating Jacketta’s November 17 wall-
poke as chargeable and according prejudicial weight to his
May 18 landfill and August 22 windshield incidents, because
of his union sympathies and activities.
(c) On January 10, 1990, by issuing a written reprimand
to Ron McQuiston, supposedly for insubordination, because
of his union sympathies and activities.
(d) On January 12, 1990, by deciding that Ron
McQuiston’s ice-related accident on January 9 was charge-
able because of his union sympathies and activities.
7. The Employer violated Section 8(a)(1) as follows:
(a) On May 11, 1989, when Tom Tucker, director of em-
ployee relations for the Western States, promised employees
that the Employer would remedy their complaints if they re-
jected the Union.
(b) On about May 25, 1989, when Chuck Elmer, oper-
ations manager, told Curtis Smith he would lose existing
wages and benefits, with restoration dependent upon negotia-
tion, should the Union be voted in; and implied to Smith that
the Employer would close its doors, costing the employees
their jobs, if the Union got in.
(c) In late May 1989, when Rick Peters, regional produc-
tivity compensation manager, told Jim Jacketta that the em-
ployees would lose existing wages and benefits ‘‘until
they’re negotiated for’’ should the Union get in; and said the
Employer ‘‘would risk unfair labor practices to keep the
Union out,’’ thereby indicating that the organizational effort
was a futility.
(d) On about May 26, 1989, when Rick Peters questioned
Jeffery Woolsey why he thought the employees needed a
union.
(e) On July 6, 1989, when Bob Martin, general manager,
impliedly threatened the job security of employees not wish-
ing to participate on the committees then being formed.
(f) On and after July 6, 1989, by promising through the
three committees to remedy employee complaints to discour-
age their support of the Union.
(g) On July 20, 1989, when Ken Baylor, human resource
manager, and Jim Jones, Business Development Manager,
promised to remedy the complaints of employee wives—and
by implication their husbands—to discourage support of the
Union.
(h) On about July 28, 1989, when Bob Martin questioned
Patrick Gonsalves whether the Employer had his support in
the election.
(i) On about July 28, 1989, when Dave Snow, Operations
Supervisor, promised Patrick Gonsalves unspecified benefits
if he voted against the Union.
(j) On about July 30, when Ken Baylor questioned Patrick
Gonsalves why he had raised his hand at a picnic to indicate
his support of the Union.
(k) On August 1, 1989, when Jack Cassari, director of
human resources, told employees, in substance, that union
representation would be a futility; promised that their com-
plaints would be remedied if they rejected the Union; and
raised the prospect of closure and job loss if they brought
the Union in.
(l) On about August 2, 1989, when Ken Baylor promised
to remedy a complaint raised by Patrick Gonsalves to dis-
courage Gonsalves’ support of the Union.
(m) On August 25, 1989, when Bob Martin announced
that the newly instituted programs emanating from the bene-
fits and safety committees ‘‘couldn’t be put into effect’’ be-
cause the Union had filed objections to the election; asked
those with knowledge of the objections to show themselves;
and urged those with ‘‘pull’’ to try to get the objections
‘‘dropped’’ so he could ‘‘put these benefits in.’’
REPORT ON OBJECTIONS
The Employer’s misconduct warranting a bargaining order
remedy, the election of August 3, 1989, in Case 27–CA–
6962, should be set aside and the underlying petition dis-
missed.
REMEDY
The Employer having engaged in sundry unfair labor prac-
tices, I will recommend that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of the
Act.
More particularly, as I have indicated, my recommended
Order will direct the Employer to recognize and bargain with
the Union, that obligation to be retroactive to May 11,
1989.132 My recommended Order also will require the Em-
ployer to disband the benefits and safety committees; if re-
quested by the Union, to reinstate any or all of the programs
growing out of the bnefits and safety committees which were
instituted in August 1989, then retracted because of the ob-
jections to the election,133 and, as concerns those programs
reinstated, to make the employees whole, with interest, for
the monetary equivalent of any loss occasioned by those re-
tractions;134 if requested by the Union, to restore the routes
as they existed before the adjustments made in August 1989;
to offer Jim Jacketta reinstatement, and make him whole,
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
135 Jacketta’s entitlement shall be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 189 (1950).
136 Any outstanding motions inconsistent with this Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and 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.
137 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
with interest, for the loss of earnings and benefits he suffered
because of his unlawful discharge;135 and to rescind the other
unlawfully discriminatory actions against Jacketta and Ron
McQuiston.
Finally, because of the pervasive and serious nature of the
Employer’s misconduct, I will include broad remedial lan-
guage.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended136
ORDER
The Respondent, Salt Lake Division, a Division of Waste
Management, Inc., West Jordan, Utah, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, Local 222 (Union) as the exclusive collec-
tive-bargaining representative of its employees in this appro-
priate unit:
All refuse drivers, mechanics, parts employees and
welders employed by the Employer at its West Jordan,
Utah, location, excluding all management employees,
salesmen, office clerical employees, guards and super-
visors as defined in the Act, and all other employees.
(b) Dominating or interfering with the formation or admin-
istration of any employee committee or group constituting a
labor organization.
(c) Dealing with any employee committee or group con-
cerning terms and conditions of employment in violation of
its obligation to recognize and bargain with the Union.
(d) Announcing and/or effecting changes in terms or con-
ditions of employment without first giving the Union a
chance to bargain over them, to discourage employee support
of the Union, or because objections to an election have been
filed.
(e) Discharging, issuing warnings to, or otherwise dis-
criminating against employees because of their union sym-
pathies or activities.
(f) Promising employees and employee wives that it will
remedy their complaints to discourage their support of the
Union.
(g) Threatening employees that they will lose existing
wages and benefits, with restoration dependent upon negotia-
tions, should the Union be voted in.
(h) Threatening employees that it will close and they will
lose jobs if the Union gets in.
(i) Indicating to employees that their efforts to gain union
representation are a futility by telling them it will risk unfair
labor practices to keep the Union out and that its posture in
bargaining would be unyielding on the issues that prompted
those efforts.
(j) Coercively interrogating employees regarding their
union sympathies.
(k) Threatening the job security of employees not wishing
to participate in activities designed to defeat the Union.
(l) Promising unspecified benefits to employees for voting
against the Union.
(m) Urging employees with ‘‘pull’’ to try to get objections
to the election ‘‘dropped’’ so that certain benefits can be in-
stituted.
(n) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in good
faith with the Union as the exclusive bargaining representa-
tive of the employees in the above-described unit, said rec-
ognition to be retroactive to May 11, 1989; and embody any
resulting agreement in a signed document.
(b) Offer Jim Jacketta immediate and full reinstatement to
his former job, or if that job no longer exists, to a substan-
tially equivalent job, without prejudice to his seniority or any
other rights or privileges; and make him whole as prescribed
above in the remedy section for any loss of earnings and
benefits suffered as a result of his unlawful discharge.
(c) Disband the benefits and safety committees created in
July 1989.
(d) If requested by the Union, reinstate any or all of the
programs growing out of the benefits and safety committees
which it instituted in August 1989, then retracted because of
the objections to the election; and, as concerns those pro-
grams reinstated, make the employees whole as prescribed
above in the remedy section for any loss occasioned by the
retractions.
(e) If requested by the Union, restore the routes as they
existed before it adjusted them in August 1989.
(f) Rescind its written warning of August 28, 1989, to Jim
Jacketta, as well as its determinations that Jacketta’s August
24, 1989, hydrant accident and his November 17, 1989, wall-
poke were chargeable, and its treatment of his landfill and
windshield incidents on May 18 and August 22, 1989, re-
spectively, as added justification for his discharge.
(g) Rescind its written reprimand of January 10, 1990, to
Ron McQuiston, and its January 12, 1990, determination that
McQuiston’s ice-related accident on January 9 was charge-
able.
(h) Remove from its files and destroy any and all writings
comprising, documenting, or referring to the several acts of
unlawful discrimination against Jim Jacketta and Ron
McQuiston; and notify them in writing that this has been
done and that those unlawful actions will in no way serve
as a ground for future personnel or disciplinary action against
them.
(i) Post copies of the attached notice marked ‘‘Appen-
dix.’’137 Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being signed by the Em-
ployer’s authorized representative, shall be posted by it im-
913WASTE MANAGEMENT OF UTAH
mediately upon receipt and maintained for 60 consecutive
days, in conspicuous places, including all places where no-
tices to employees customarily are posted. The Employer
shall take reasonable steps to ensure that the notices are not
altered, defaced, or covered by any other material.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the election of August 3,
1989, in Case 27–CA–6962 be set aside, and that that case
be remanded to the Regional Director for dismissal.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representative of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to recognize and bargain
with Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, Local 222 (Union) as the exclusive col-
lective-bargaining representative of our employees in this ap-
propriate unit:
All refuse drivers, mechanics, parts employees and
welders employed by us at our West Jordan, Utah, loca-
tion, excluding all management employees, salesmen,
office clerical employees, guards and supervisors as de-
fined in the Act, and all other employees.
WE WILL NOT dominate or interfere with the formation or
administration of any employee committee or group consti-
tuting a labor organization.
WE WILL NOT deal with any employee committee or group
concerning terms and conditions of employment in violation
of our obligation to recognize and bargain with the Union.
WE WILL NOT announce and/or effect changes in terms or
conditions of employment without first giving the Union a
chance to bargain over them, to discourage employee support
of the Union, or because objections to an election have been
filed.
WE WILL NOT discharge, issue warnings to, or otherwise
discriminate against employees because of their union sym-
pathies or activities.
WE WILL NOT promise employees or employee wives that
we will remedy their complaints to discourage their support
of the Union.
WE WILL NOT threaten employees that they will lose exist-
ing wages and benefits, with restoration dependent upon ne-
gotiations, should the Union be voted in.
WE WILL NOT threaten employees that we will close and
they will lose jobs if the Union gets in.
WE WILL NOT indicate to employees that their efforts to
gain union representation are a futility by telling them we
will risk unfair labor practices to keep the Union out and that
our posture in bargaining would be unyielding on the issues
that prompted those efforts.
WE WILL NOT coercively interrogate employees regarding
their union sympathies.
WE WILL NOT threaten the job security of employees not
wishing to participate in activities designed to defeat the
Union.
WE WILL NOT promise unspecified benefits to employees
for voting against the Union.
WE WILL NOT urge employees with ‘‘pull’’ to try to get
objections to the election ‘‘dropped’’ so that certain benefits
can be instituted.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL recognize and, on request, bargain collectively in
good faith with the Union as the exclusive bargaining rep-
resentative of the employees in the above-described unit, said
recognition to be retroactive to May 11, 1989; and WE WILL
embody any resulting agreement in a signed document.
WE WILL offer Jim Jacketta immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to
a substantially equivalent job, without prejudice to his senior-
ity or any other rights or privileges; and WE WILL make him
whole for any loss of earnings and benefits suffered as a re-
sult of his unlawful discharge.
WE WILL disband the benefits and safety committees cre-
ated in July 1989.
WE WILL, if requested by the Union, reinstate any or all
of the programs growing out of the benefits and safety com-
mittees which we instituted in August 1989, then retracted
because of the objections to the election; and, as concerns
those programs reinstated, WE WILL make the employees
whole for any loss occasioned by the retractions.
WE WILL, if requested by the Union, restore the routes as
they existed before we adjusted them in August 1989.
WE WILL rescind the written warning of August 28, 1989,
to Jim Jacketta, as well as our determinations that Jacketta’s
August 24, 1989, hydrant accident and his November 17,
1989, wall-poke were chargeable, and our treatment of his
landfill and windshield incidents on May 18 and August 22,
1989, respectively, as added justification for his discharge.
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL rescind the written reprimand of January 10,
1990, to Ron McQuiston, and our January 12, 1990, deter-
mination that McQuiston’s ice-related accident on January 9
was chargeable.
WE WILL remove from our files and destroy any and all
writings comprising, documenting, or referring to the several
acts of unlawful discrimination against Jim Jacketta and Ron
McQuiston; and WE WILL notify them in writing that this has
been done and that those unlawful actions will in no way
serve as a ground for future personnel or disciplinary action
against them.
SALT LAKE DIVISION, A DIVISION OF WASTE
MANAGEMENT, INC.