Waste Stream Management

National Labor Relations Board - Board Decisions

Dec 22, 1994

315 N.L.R.B. 1088 (N.L.R.B. 1994)

1088
315 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 17, 1994, Judge Jesse Kleiman issued the attached deci-
sion. The Respondent filed exceptions and a supporting brief. The
National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
2 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.
Waste Stream Management, Inc. and International
Brotherhood of Teamsters, Local 687, AFL–
CIO. Cases 3–CA–16717, 3–CA–16871, and 3–
CA–16976
December 22, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The questions presented here are whether the admin-
istrative law judge correctly found that the Respondent
violated Section 8(a)(3) and (1) of the Act by taking
several adverse employment actions, including dis-
charge, against employee Vern Arno, and that it en-
gaged in other conduct which violated Section 8(a)(1)
of the Act.1 The Board has considered the decision and
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Waste Stream Manage-
ment, Inc., Canton and Potsdam, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Robert Ellison, Esq., for the General Counsel.
Daniel S. Cohen, Esq., of Utica, New York, for the Respond-
ent.
Christy Concannon, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. This case was
tried for 5 days in late 1992 in Canton and Potsdam, New
York. The amended consolidated complaint alleges that Re-
spondent violated Section 8(a)(1) of the Act by discrim-
inatorily promulgating new employee work rules, soliciting
an employee to survey and report on the work duties of em-
ployee Vern Arno because of Arno’s union activities, inform-
ing employees that it was seeking to force Arno to quit be-
cause of his union activities, promising and granting employ-
ees increased benefits to dissuade its employees from sup-
porting the Charging Party Union (the Union), and interro-
gating its employees about their union sympathies and the
union sympathies of their fellow employees. The complaint
also alleges that Respondent violated Section 8(a)(3) and (1)
of the Act by discriminating against Arno on various occa-
sions from July 22 through September 27, 1991, and by dis-
charging him on September 30, all because of his union ac-
tivities. The complaint further alleges that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discriminating
against employee Bryan Rose on various occasions from July
17 through December 1991 and by issuing him a disciplinary
layoff on February 14, 1992, all because of his union activi-
ties. The Respondent answered, denying the essential allega-
tions in the consolidated complaint. After the conclusion of
the hearing, the General Counsel filed an unpaginated brief;
the Respondent did not file a brief.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE EARLIER DECISION AND JURISDICTIONAL MATTERS
This is the second case I have heard involving this Re-
spondent. The first case was tried in October 1991 and re-
sulted in a decision (JD(NY)–96–93), [315 NLRB 1099]
issued by me on November 3, 1993, finding that Respondent
violated the Act by discriminating against employees because
of their union activities, and by coercing employees in the
exercise of their protected rights. I also set aside the Board-
conducted election of April 5, 1991, because of Respondent’s
unlawful conduct. That decision is now pending before the
Board.
I adopt the following description of Respondent’s business
from my earlier decision:
The Respondent, at all times material herein, is and
has been a New York Corporation with its principal
place of business located at 145 Outer Maple Road,
Potsdam, New York, and State of New York, and with
facilities located at Potsdam, Canton, Gouverneur,
Ogdensburg, and Parishville, New York (the Respond-
ent’s facilities), where it is engaged in the business of
rubbish removal, recycling and scrap metal reprocess-
ing, respectively. In the course and conduct of its busi-
ness operations during the preceding 12 months, those
operations being representative of its operation at all
times material herein, the Respondent receives gross
revenues in excess of $50,000 from the sale and direct
shipment of recycled or processed materials from its fa-
cilities located in the State of New York to customers
located outside the State of New York. The complaint
alleges, the Respondent admits, and I find that the Re-
spondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
In the prior case I found that Respondent committed nu-
merous violations of the Act from late January through late
1089WASTE STREAM MANAGEMENT
April 1991. The following conclusions from my earlier deci-
sion briefly summarize Respondent’s extensive violations:
4. The Respondent, in violation of Section 8(a)(1) of
the Act, has interfered with, restrained, and coerced its
employees in the exercise of their rights under Section
7 of the Act by interrogating its employees concerning
their union activities and the union activities of other
employees, by soliciting grievances from its employees
with explicit and implicit promises to rectify them, by
suggesting to its employees that they could draw up a
petition against the Union, by informing its employees
that if the Union lost the election the Respondent would
set up a grievance procedure, by soliciting its employ-
ees to sign a petition against the Union, by promising
its employees various benefits including a grievance
procedure in order to induce them to vote against the
Union in the upcoming election, by creating the impres-
sion that it was keeping under surveillance the union
activities of its employees, by promising and granting
wage increases to its employees in order to dissuade
them from supporting the Union, by terminating the
employment of Eugene Prashaw and Robert Monroe
and consolidating routes in order to redress grievances
of its employees and dissuade them from engaging in
activity on behalf of the Union, by telling an employee
that he was being assigned more onerous working con-
ditions because of his activities on behalf of the Union,
by telling an employee that the Respondent was seeking
a reason to terminate him because of his union activi-
ties and that this employee should forego such activi-
ties, by threatening to close its facilities because of the
union activities of its employees, by informing an em-
ployee that he was being discharged because of his
union activities, and by informing an employee that he
was fired because of his union activities.
5. The Respondent engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act by im-
posing more onerous working conditions on employee
Verde Snyder, and by discriminatorily terminating em-
ployees Eugene Prashaw, Verde Snyder, Richard
Walrath, Mark Rood and Vern Arno because these em-
ployees joined, supported or assisted the Union and en-
gaged in concerted activities for the purpose of collec-
tive bargaining or mutual aid or protection, and in order
to discourage employees from engaging in such activi-
ties.
II. THE ALLEGED UNFAIR LABOR PRACTICES IN
THIS CASE
The events in the instant case follow closely in time those
covered in the prior case. Thus, the last incident found un-
lawful in the prior case occurred in late April 1991 and the
first alleged unlawful incident in this case took place in July
1991. One of the alleged discriminatees in this case, rolloff
driver Vern Arno, was found, in the earlier case, to have
been discriminatorily discharged on April 15, 1991. He was
reinstated, along with four other discriminatees, on July 15,
1991, after the complaint issued but before the trial in the
earlier case. Following his reinstatement, Arno was allegedly
the victim of numerous discriminatory incidents of harass-
ment on the job over a period of several months, until he
was again allegedly discriminatorily discharged in late Sep-
tember 1991. Rose, the other person allegedly discriminated
against in this case, and another rolloff driver, testified in the
prior case. The earlier violations were not remedied at the
time of the alleged violations in this case and the events here
cannot be viewed in isolation. They must be considered in
light of Respondent’s earlier violations and my determination
that Respondent unlawfully interfered with the April 5, 1991
election and that another election should be held.
A. The General 8(a)(1) Allegations
The General Counsel alleges that the Respondent violated
Section 8(a)(1) of the Act by granting certain benefits listed
in an employee manual or handbook in November 1991 ‘‘in
order to dissuade its employees from supporting the Union.’’
The handbook listed changes and improvements in bereave-
ment pay, vacations, holidays, jury duty pay, educational as-
sistance, a two-way communications plan, an employee sur-
vey procedure, a hot-line to management plan, a grievance
procedure and an internal resolution dispute committee. It is
not disputed that such a handbook with the specified changes
and improvements was distributed to employees in group
meetings in November 1991.
In the earlier case, I found that, prior to the Board elec-
tion, Respondent held a meeting with employees at which it
distributed a written survey seeking information as to how it
could improve its labor relations. The survey included a
question about union representation. I found that the survey
included coercive interrogation and amounted to an unlawful
solicitation of grievances with the implication of their resolu-
tion without a union, in violation of Section 8(a)(1) of the
Act. I also found unlawful Respondent’s solicitation of griev-
ances with the implicit and explicit promise to resolve them
in two other meetings with employees, one through its labor
consultant, Edwin Ricker, and another through one of its vice
presidents, James Bruno. Ricker spoke about new programs
that would be instituted, including a grievance procedure and
a wage initiative. (315 NLRB at 1116–1118.) In addition, I
found unlawful promises of benefit made by Ricker in an
employee meeting 2 days before the election, in which he
told employees that the previously conducted survey had re-
vealed concerns that Respondent intended to meet specifi-
cally, by instituting ‘‘a new grievance procedure’’ and ‘‘a re-
vised employee handbook.’’ (315 NLRB at 1122–1123)
Thus Respondent had explicitly promised a new handbook
before the election and, after the election, it delivered on that
very promise. Moreover, before the election, it promised a
new grievance procedure and, after the election, it delivered
on that promise as well. At least five items in the hand-
book—the two-way communications, the survey procedure,
the hot-line plan, the grievance procedure, and the internal
resolution dispute committee—are directly related to the un-
lawful preelection promise of a grievance resolution proce-
dure. The inclusion of these particular items in the handbook
is therefore an unlawful grant of benefits in violation of Sec-
tion 8(a)(1) of the Act.
The other five items in the handbook that are alleged to
be unlawful grants of benefit—bereavement pay, vacations,
holidays, educational assistance, jury duty pay and edu-
cational assistance—are less directly related because it is not
clear in the record whether these benefits were specifically
raised by employees as concerns unlawfully solicited by Re-
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent before the election or specifically promised at that
time by Respondent. However, the Respondent did specifi-
cally promise a revised handbook, a promise on which it de-
livered. This permits the inference, which I make, that the
Respondent was, by including these items in its revised
handbook, also delivering on its unlawful promises, unless it
could show that the latter five items were not related to the
unlawful preelection promises. Respondent has not made
such a showing on this record. I therefore find that, on these
items as well, Respondent unlawfully granted benefits in vio-
lation of the Act.
In sum, Respondent’s issuance of a revised handbook in
November 1991 was a continuation of the unlawful
preelection conduct documented in my earlier decision. I also
note that objections were pending to the conduct of the April
1991 election, which was set aside by my earlier decision,
with the direction that a new one be held. Thus, the prospect
of another election was not remote. See Ambox Inc., 146
NLRB 1520, 1521 (1964). Accordingly, I find that Respond-
ent violated Section 8(a)(1) of the Act by granting the fol-
lowing benefits in its revised employee manual or handbook:
changes and improvements in bereavement pay, vacations,
holidays, jury duty pay, educational assistance, a two-way
communications plan, an employee survey procedure, a hot-
line to management plan, a grievance procedure, and an in-
ternal resolution dispute committee.
The General Counsel also alleges that Respondent unlaw-
fully interrogated employees about their feelings concerning
union representation in February 1992 when it conducted a
written survey of employees. This survey was similar to the
one found unlawful in the earlier case, and it was one of the
unlawfully granted benefits set forth in the revised handbook.
This survey contained the same question about union rep-
resentation that was found unlawful in the earlier survey in
the prior case. According to Labor Relations Representative
Coleen Wallace, the 1992 written survey was distributed to
employees in group meetings and the employees were ex-
pected to return the surveys to Respondent. She testified that
its purpose was the same as that for the earlier unlawful sur-
vey. In context, and because the same question was found
unlawful in the earlier case, I find that the same interrogation
in the February 1992 survey was also violative of Section
8(a)(1) of the Act.
The complaint also alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by promulgating new work rules for
its employees because of their activities on behalf of the
Union. The record shows that, on July 15, 1991, the Re-
spondent issued or posted documents setting forth certain
work-rule changes, including use of a timeclock that had
been installed some time before, stopping time directions,
paid break periods, different lunch periods, overtime author-
ization requirements, Saturday scheduling, and a smoking
prohibition. These changes applied to all employees.
Apart from a very abbreviated two paragraph statement of
facts, the General Counsel’s brief on this allegation is limited
to the following analysis: ‘‘[Respondent’s] promulgation of
new work rules on July 15, in light of the timing of the an-
nouncement and its overall course of conduct, is unlawful.’’
The timing statement apparently refers to the date that Re-
spondent reinstated five previously discharged employees, all
of whom were drivers. I fail to see the significance of the
timing of the work rule announcement because the new rules
applied to all employees and, as Wallace testified, in promul-
gating these work rules, Respondent was simply formalizing
some changes that had ‘‘come into being’’ over the past few
months. An employer need not refrain from making non-
discriminatory work rule changes in the aftermath of a union
campaign. For example, about this same time, Respondent
also instituted a more formal employee evaluation procedure.
This particular change was not alleged as unlawful and I
must assume it was benign. Similar changes are simply the
result of ordinary and necessary adjustments in running a
business. Thus, I cannot make an inference of illegality sole-
ly on the basis of the timing of the announcement of the
work rule changes.
Nor does the context of the work rule changes in the midst
of other unlawful activity establish discrimination in the
changes themselves. First of all, the unlawful activities had
ceased after the election and none were alleged to have oc-
curred between mid-April and mid-July 1991, when five
discriminatorily discharged employees were reinstated. The
work rule changes were not shown to have been related to
the earlier violations, unlike the grant of the handbook bene-
fits discussed above. Nor is there any other evidence that
would show that the work rule changes were imposed for
discriminatory reasons or to interfere with employee rights.
Most of the rules themselves appear to be neutral, neither
beneficial nor harmful to employees. One appears to be ben-
eficial, the paid 15-minute break periods, but none appears
to have been controversial. Some were simply clarifications
of existing policy. And all appear to have had a legitimate
business purpose. The installation of a timeclock to monitor
tardiness is a time-honored management tool; and the ban on
smoking is simply part of a health-related trend in the work-
place. In these circumstances, I shall dismiss the allegation
that Respondent’s work rule changes were unlawfully pro-
mulgated because of the union activities of its employees.
B. The Rose Allegations
The complaint alleges that Respondent discriminated
against Bryan Rose in several respects: On July 17, 1991, it
issued a written warning to him and suspended him for 1 day
for placing salt in a coffeepot; in late August 1991, it issued
him a written warning, apparently for driving over some
wood blocks; on December 3, it issued him a written warn-
ing for tardiness; in early December, it denied him a wage
increase comparable to that granted to other employees; and,
on February 14, 1992, it issued him a disciplinary 1-day lay-
off because he and another employee, Pete Wimmer, were
‘‘standing around,’’ not having left on their driving assign-
ments 35 minutes after having punched in the morning be-
fore. About a week later, after serving the 1-day suspension,
Rose voluntarily quit his employment. The General Counsel
does not allege that Rose was unlawfully or constructively
discharged. As specified below, I will dismiss all of the alle-
gations with respect to Rose.
Rose was a known union supporter. He held at least one
union meeting at his home and he testified on behalf of the
General Counsel in the earlier case. He was not, however,
the specific object of discrimination in that case. The General
Counsel did offer testimony by Rose’s supervisor, Terry
Morehouse, that he was told by his superiors to ‘‘watch the
areas I put [Rose] in so I could keep a tighter eye on him.’’
Morehouse was told to prevent Rose from delivering to
1091WASTE STREAM MANAGEMENT
unionized plants at around the time of the Board election.
Respondent’s witnesses either denied the substance of
Morehouse’s testimony or gave it a business-related context.
Even assuming that I accepted Morehouse’s testimony, it
does not establish the kind of animus directed toward Rose
that would infect all the allegedly unlawful personnel actions
subsequently taken against him. Those actions were inde-
pendently supported by credible and sometimes uncon-
tradicted testimony or uncontroverted documentary evidence.
And none was tainted by union animus.
The coffeepot incident is illustrative. Rose admittedly
poured the contents of a salt container into a coffeepot in the
drivers’ lunch- or breakroom in July 1991. When this was
discovered, Vice President Chester (Skip) Bisnett became
very angry and told Morehouse to ‘‘pull’’ the coffeepot until
the perpetrator had submitted a written apology. Obviously,
Bisnett’s anger was precipitated by the incident itself be-
cause, at that point, he had no idea who was responsible.
Rose did come forward, took responsibility, and apologized.
Rose testified that, when he ‘‘confessed’’ to Morehouse, he
was told that Bisnett ‘‘was quite hot.’’ As a result of his ad-
mitted culpability in this incident, Rose was issued a 1-day
suspension. According to Rose, this was the first warning or
suspension he had ever received.
Bisnett testified that he was concerned about the inci-
dent—even before he learned who was responsible—because
the atmosphere at the facility was tense due to the reinstate-
ment, 2 days before, of the employees who had been unlaw-
fully discharged during the union campaign and the report
that the employees who drank the salted coffee were not
amused. Rose had admittedly left the lunchroom immediately
after dumping the salt in the coffee and was not present
when the salted coffee was discovered. In these cir-
cumstances, it is clear that Bisnett’s concerns were genuine
and unrelated to Rose’s union activities.
The General Counsel seeks to support an inference of dis-
crimination by pointing to other pranks at the facility, none
of which resulted in disciplinary action. The evidence is in-
sufficient to support a finding of discrimination. Some of
these pranks were not specifically shown to have come to the
attention of management, but those that did, and were de-
scribed with at least some specificity, involved a perpetrator
who was present or contemporaneously identified during or
immediately after the prank. This is what differentiates what
Rose did from an innocuous prank that is met with tension-
releasing laughter. The affected employees had no idea what
happened to cause the coffee to have been salted or why this
was done. No other evidence of union animus directed to-
ward Rose is apparent in any of the testimony about this in-
cident. Accordingly, I find that the General Counsel has not
proved by a preponderance of the evidence that Respondent
discriminatorily disciplined Rose for the coffeepot incident.
The complaint also alleges that, in late August 1991, Rose
was discriminatorily issued a written warning. The precipitat-
ing incident is not identified in the complaint, but it appears
to involve a situation where Rose drove a truck over some
wood blocks. Rose testified that the incident took place in
late August when fellow employee Bob Converse, who ap-
parently had some safety-related responsibilities, handed him
a ‘‘write up,’’ which he immediately discarded. Rose also in-
dicated that his supervisors, Morehouse and Albert (Gus)
Mattice, spoke to him about the incident. The Respondent
submitted in evidence a written incident report that was
placed in Rose’s personnel file over this matter. It is dated
September 23 and states that the incident happened the day
before.
Whenever the incident took place, it appears that no writ-
ten warning was issued. Rose did not remember whether
Converse’s ‘‘write up’’ was endorsed by a supervisor or
whether it was to be placed in his file. He admitted that no
formal action was taken against him, but he testified that
Morehouse told him that such action would be taken if an-
other such incident of the same kind occurred. Rose also said
that he had seen Converse doing the same thing. Morehouse
confirmed that he had seen Converse driving over blocks and
he stated that Respondent had no specific rule prohibiting
this. He was unaware whether Converse had been disciplined
or reprimanded for what he had done. Vice President James
Bruno testified that he was unaware that Converse had driven
over blocks in the past.
Bruno did testify, plausibly in my view, that driving a
truck over such blocks presents a safety hazzard and should
be avoided. It was thus appropriate for Respondent’s officials
to remind Rose that this was not to happen again. Neither
Rose nor the General Counsel defends what Rose did. More
importantly, there is absolutely no evidence that whatever
Respondent did—and it was not in the form of a disciplinary
warning—was related to Rose’s union activities. Nor can I
make an inference of discrimination on the evidence that
Converse may have done the same thing without being rep-
rimanded. That evidence is insufficient to establish a pattern
of disparate treatment that would alone support an inference
of discrimination. This allegation will also be dismissed.
The General Counsel also alleges that the tardiness warn-
ing issued to Rose on December 3 was discriminatory. This
allegation is likewise not supported by a preponderance of
the evidence. It is uncontested that Rose was in fact tardy
12 times as set forth in the warning. There is no evidence
that this warning was issued because of Rose’s union activi-
ties. The General Counsel again seeks an inference of dis-
crimination based on disparate treatment, but his anecdotal
evidence on this point is refuted by the documentary evi-
dence and the testimony of his own witness, Supervisor
Morehouse. It was Morehouse’s testimony that Rose had the
worst tardiness record of any of the drivers. Rose was late
about once or twice a week more than the next worse of-
fender. Rose’s generally poor tardiness record was confirmed
by timecards introduced in evidence, both his and those of
the second worse offender; and it was also confirmed
through the testimony of his other supervisor, Mattice. In
these circumstances, I shall dismiss the allegation that Re-
spondent issued the December 3 written tardiness warning to
Rose because of his union activities.
The complaint also alleges that, in late 1991, Respondent
discriminated against Rose by granting him less of a pay
raise than that granted to other drivers. The evidence does
not support the violation alleged. Rose received a 15-cent-
per-hour raise, which was, as were all the raises given at this
time, retroactive to August 1, 1991, regardless of when they
were approved. Although some drivers received larger raises,
40 or 50 cents, many—actually 10 out of 23 drivers—re-
ceived no raise at all. Bob Converse, the most senior and
highly regarded driver, received no raise. One other driver
received the same amount of raise as Rose, 15 cents. Rose
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was the third highest paid driver before the raises, even
though he stood sixth in seniority, and he remained the third
highest after the raises. There is thus nothing in the objective
evidence concerning the 1991 raises that would suggest any-
thing out of the ordinary in the relative amount of Rose’s
raise.
To the extent that the raises reflected Respondent’s subjec-
tive view of the drivers’ work, there is no reason to presume
that Rose merited a greater raise than he received. Rose’s su-
pervisor, Morehouse, who testified on his behalf, described
his evaluation of Rose only as ‘‘fairly good’’ or ‘‘mod-
erate.’’ There was much testimony about the fact that Rose’s
evaluation came late in the year and that the first version was
returned for an update, but I find nothing sinister in this. It
appears that when Rose asked about a raise, someone
checked his file and found that it contained no evaluation for
him. Respondent directed that one be prepared. Morehouse
prepared this first evaluation, but his superior, Vice President
Howard Cornwell, found that it was based on conduct before
August 1, the date to which the raises were to be retroactive.
He sent the evaluation back for a more timely appraisal. This
second appraisal was written by Mattice, and it was later re-
vised upward by Cornwell. Morehouse seemed to suggest
that he was told to downgrade Rose, but I found his testi-
mony on this issue to have been somewhat confused and am-
biguous. I found that the testimony of Mattice and Cornwell,
at least on this issue, to be more reliable. In any event,
Morehouse’s testimony does not establish that Rose’s ulti-
mate evaluation was not accurate or that it was used
discriminatorily to deny Rose a larger raise than he deserved.
Indeed, the General Counsel failed to submit comparable
evaluations in evidence so that they could be analyzed in
connection with the raises granted by Respondent.
The bottom line on this issue is that Rose’s raise was not
out of the ordinary when compared with the raises (or non-
raises) of other drivers, in terms of seniority, relative pay,
and amount. Moreover, it is significant that other union ad-
herents received even greater raises than Rose. Both Mark
Rood and Richard Walrath, union adherents who had, unlike
Rose, been discriminatorily discharged in the past and rein-
stated in July 1991, received greater raises than Rose.
Walrath received a 50-cent-an-hour raise, the highest amount
given in this round of raises. Had Respondent been intent on
discriminating on the basis of union activities it would more
logically have focused on other more ardent unionists. In
these circumstances, I shall dismiss the allegation that Re-
spondent discriminated against Rose in the grant of his 1991
raise because of his union activities.
Finally, the General Counsel alleges that Rose’s February
14 1-day suspension for ‘‘standing around’’ and not starting
work at 6:35 a.m. the day before was unlawful. I disagree.
On that occasion, Rose and another rolloff driver, Pete
Wimmer, received written warnings and suspensions. They
had punched in at 6 a.m., their normal starting time, and had
not left the yard by 6:35 when confronted by Mattice, who
issued the warnings and suspensions. According to Rose, he,
Wimmer, and another driver, Mark Rood, were waiting for
their trucks to ‘‘thaw out,’’ standing around, talking about
their routes and waiting for Mattice, who came on the scene
and told them to ‘‘get moving.’’ Here again, there is no evi-
dence—even from Rose’s own testimony—that he was not
standing around the yard 35 minutes after punching in. And
there is no evidence that Respondent did what it did because
of Rose’s union activities. Another employee was subjected
to the same punishment for the same offense. There is no
possible inference of discrimination on the facts presented.
The General Counsel again attempts to establish discrimi-
nation on the basis of disparate treatment. According to the
General Counsel, Respondent tolerated other employees
standing around and not working without likewise punishing
them. The evidence submitted is insufficient to support a
finding of disparate treatment. Not only was another em-
ployee disciplined in the same manner and for the same of-
fense as Rose, but the fact that Rood was not disciplined for
allegedly doing the same thing actually hurts the General
Counsel’s case. It is unclear from the record whether Rood
was as culpable as Rose and Wimmer, but, if he was, this
effectively refutes a discriminatory motive because, as I have
said above with respect to Rose’s raise, Rood was a more
likely candidate for union discrimination than was Rose. That
Rood was not disciplined on this occasion makes a discrimi-
natory motive unlikely. Other examples of employees alleg-
edly standing around without being disciplined are also not
helpful to the General Counsel. These employees were either
shown to have different responsibilities or different starting
times than the offending rolloff drivers involved here. There
is no other credible evidence from which it could be con-
cluded that this particular suspension was the product of
union-based discrimination.
Rose’s assertion that he and Wimmer, who did not testify,
were waiting for their trucks to thaw on this occasion was
specifically and effectively refuted by Maintenance Super-
visor Richard Downs. He testified that, in the winter months,
the drivers’ vehicles were warmed up and ready to be driven
by 6:20 a.m. at the latest. Even if I accepted Rose’s self-
serving denial that he had been orally warned about standing
around in the past, that he told Mattice that he was sick of
being harassed and was told in return that the warning was
coming from higher authorities—none of which was attrib-
uted to Rose’s union activities, this would not support a vio-
lation. The facts remain that Rose admitted that he remained
in the yard and was not on the road 35 minutes after he had
punched in, and another driver who was guilty of the same
offense was similarly punished. This allegation will also be
dismissed.
C. The Arno Allegations
Respondent is alleged to have violated Section 8(a)(1) of
the Act by soliciting an employee, on July 17, 1991, to sur-
vey and report on Vern Arno’s work duties because of his
union activities and by informing employees on three sepa-
rate occasions thereafter that it was seeking to force Arno to
quit his employment because of his union activities. The
General Counsel also alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by notifying Arno on two sep-
arate occasions that, contrary to past practice, he had to pay
fines resulting from his receipt of traffic citations, by refus-
ing to permit him to work from July 22 to 30, by refusing
to permit him to take his breaks and lunch with other em-
ployees, by issuing him warnings, including a final warning
on September 24, by giving him an adverse evaluation on
September 27, and by terminating him on September 30,
1991, all for discriminatory reasons.
1093WASTE STREAM MANAGEMENT
1 The above is based on Rheaume’s testimony, which I found reli-
able, detailed, and credible. Cornwell denied making such a state-
ment to Rheaume. However, the testimony of Mattice and More-
house was not so clearly in conflict. Mattice admitted that Rheame
was told to make sure that Arno ‘‘was doing all right . . . make
sure that he was being able to do the job.’’ (1007.) Morehouse testi-
fied but was asked no questions about this issue. It appears that
something was said to Rheaume about watching Arno, but the failure
of Morehouse to support Mattice makes it more likely that Rheame’s
version is correct than Mattice’s version, which in any event gen-
erally supports Rheaume.
2 Mattice denied in general terms ever telling Arno that manage-
ment wanted him to quit, but he did not deny that Arno made such
accusations in his presence. Nor did he specifically deny nodding as-
sent to Arno’s statements, as Arno testified. In these circumstances,
and because Arno’s testimony was generally reliable, I credit Arno
on this point.
1. The facts on the Arno allegations
As I have found in the prior case, Arno, a known union
adherent, was discriminatorily discharged by Respondent on
April 15, 1991, because of his union activities. In that case,
Respondent attempted to use a pretext ‘‘poor attitude,’’
which I rejected, to justify the discharge. (315 NLRB at
1132.) Shortly after the April 5 election, Arno advised Presi-
dent Chester Bisnett Sr. that if Respondent failed to address
needed changes in working conditions, as it had promised, he
would again vote for the Union in any ensuing election.
Bisnett Sr.’s response was an unlawful threat to close the op-
eration rather than to accept the Union (315 NLRB at 1131–
1132). Shortly after Arno was discharged, he was told by
Morehouse that he had ‘‘ticked [Vice President James]
Bruno off’’ by complaining about wages and hours and sup-
porting the union. Morehouse also told Arno that Arno did
not have a ‘‘bad attitude,’’ the pretextual reason assigned for
his discharge (315 NLRB at 1132.)
Arno, a rolloff truckdriver, was one of the employees rein-
stated on July 15, 1991, about 3 weeks after the complaint
issued in the prior case. On his reinstatement, Arno was not
assigned to drive a rolloff truck, which is essentially a dump
truck with tailgate loading and unloading. Instead, he was as-
signed to ride along with and help van driver Larry
Rheaume. In this capacity he assisted in picking up debris
and delivering bales of animal bedding that had to be han-
dled manually. This was more physically demanding than
Arno’s former job. At this point, Rheaume was instructed by
Cornwell, Mattice, and Morehouse to ‘‘keep an eye’’ on
Arno and give them a daily report on his work. Rheaume re-
fused to comply on the ground that he was not a supervisor.1
After assisting Rheaume on the van for 4-1/2 days, on the
afternoon of Friday, July 19, Arno was assigned to drive the
van alone. Rheaume apparently had to leave work at noon
for personal reasons. Later that afternoon, Arno was stopped
by a state trooper who issued him two citations because the
vehicle he was driving had a broken tail light and defective
brakes. Arno was not permitted to drive the van any farther
and he had to call Respondent’s office to obtain transpor-
tation back to the facility. When he returned, he gave the
tickets he had been issued to Morehouse, his immediate su-
pervisor. Morehouse accepted the tickets. However, the next
workday, Monday, July 22, Morehouse returned the tickets
to Arno, stating that the tickets were Arno’s responsibility.
Later, when Arno appeared in court, the charges against him
were dismissed because the judge stated that Respondent was
responsible for the defects that resulted in the citations.
Arno was not assigned any work on July 22 because the
brakes on the van were being repaired and he was told that
there was no other truck available for him to drive. He was
given 2 hours of ‘‘show-up time’’ for that day and told to
go home. He remained at home and was not again recalled
to work until Tuesday, July 30, because, again according to
Respondent, there was no work available for him. During
this hiatus, Arno asked for, and received, vacation pay for
the time he missed work, based apparently on his having
earned it during his previous period of employment.
Arno returned to work on July 30 and, because the repairs
on the van were apparently still not completed and no other
work was available, he was assigned to Respondent’s
Ogdensburg facility to assemble recycling boxes. He per-
formed this work for 3 days. At some point thereafter, he
was finally assigned to drive a rolloff truck, which was his
former job.
Sometime in August 1991, after the citations against Arno
were dismissed, Arno reported the dismissal and the judge’s
comments about Respondent’s responsibility for the equip-
ment-related citations to Albert Mattice, his other supervisor.
Arno told Mattice on this occasion that he believed he was
forced to defend himself on the tickets, at great personal in-
convenience, because Respondent wanted him to quit.
Mattice nodded in assent. On still another occasion in Au-
gust, when Mattice reported management’s refusal to grant
Arno a requested leave of absence, Arno told Mattice he be-
lieved that his request was denied because management
wanted him to quit. Mattice again nodded in assent.2
In September, Arno received another citation for driving a
truck with a defective tarp covering its load. This case was
also dismissed as to Arno. Arno again reported the results of
his court proceeding to Mattice with the same statement
about Respondent wanting him to quit. Arno insisted that he
would not quit.
At some point in the summer of 1991, while Arno was on
duty driving a truck on the road, he encountered Skip
Bisnett, who was apparently driving his own vehicle. Ac-
cording to Arno, Bisnett ‘‘flipped the finger’’ at him while
Arno was waiting at a stop sign. Later that same day, Arno
asked Bisnett why he had given Arno the finger. Bisnett de-
nied doing so, stating that, if he ever did, he would ‘‘stick
it right in your face,’’ which he proceeded to do. Bisnett sup-
ported Arno’s testimony in all respects, except that he denied
making the obscene gesture known as the finger to Arno
while they passed each other on the road. He testified that,
on that occasion, he made a different kind of gesture which
had no obscene connotations. I thought Bisnett’s testimony
in this respect was strained, particularly in view of his ad-
mission that he made the obscene gesture to Arno in their
face-to-face meeting. Accordingly, in any credibility conflict
between Arno, whom I credited in the earlier proceeding, and
Bisnett, whom I did not, I credit Arno.
According to Rose’s testimony, Bisnett told him about the
above incident and confrontation with Arno. Bisnett told
Rose that he had a man ‘‘that doesn’t know whether he
wants to work here or not and I can help him make up his
mind.’’ Bisnett did not specifically deny having this con-
versation with Rose, although he did generally deny inform-
ing ‘‘employees’’ that the Company wanted Arno to quit. I
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
credit Rose on this issue not only because of his more de-
tailed testimony, but because I discredited Bisnett in the prior
case.
On another occasion in August 1991, Morehouse told
Arno that he could not take his breaks in the drivers’
coffeeroom or the yard itself, as he had before and as did
all other employees. He was told to take his breaks on the
road. When Arno asked why, Morehouse said that he was
‘‘bothering some of the workers.’’ Arno replied that he be-
lieved that management thought he was talking to employees
about the Union. Morehouse did not respond and did not re-
fute Arno’s testimony on this point.
In fact, on his return, Arno continued speaking on behalf
of the Union to the same extent as he did before. Indeed,
Mattice testified that he learned ‘‘the most’’ about Arno’s
prounion sentiments after Arno’s reinstatement in July 1991.
On September 24, Arno was in a group of employees and
supervisors that included Bryan Rose, Richard Walrath,
Mattice, and Richard Downs. Arno made the statement to the
group that he should start parking his car in the front row
of the parking lot and write ‘‘Union yes’’ across the wind-
shield. Rose corroborated Arno on this point and Mattice tes-
tified he could not remember the incident. I credit Arno.
This same day, September 24, at the end of the workday,
Arno was called into the office for a conference with Mattice
and Morehouse. At this conference, Arno was told of alleged
work offenses over the past several weeks. These offenses
were listed on an incident report form, dated September 24,
together with the dates of the alleged offenses. After a dis-
cussion of the alleged offenses themselves, many of which
Arno could not remember, and which had not been brought
to his attention at the time they occurred, Arno asked for
documentation of the alleged offenses. Mattice said he would
have to check first with higher management before turning
them over to Arno. The next day, Morehouse told Arno that
he would have to sign a disciplinary action form, also dated
September 24, in order to obtain copies of the underlying
documentation. The form stated that Arno was being issued
a final warning under the penalty of discharge. Arno refused
to sign the form.
The September 24 incident report was placed in evidence
by stipulation and without a context. It lists Arno’s alleged
offenses, including five alleged instances of insubordination,
all occurring on September 3. The report includes a criticism
of Arno’s ‘‘constant complaining [that] causes discord
among other employees,’’ something that was not part of the
listed offenses. The report also states that documentation for
the offenses is attached. However, there was no attachment
to the exhibit entered in evidence. The record does contain
an undated, handwritten document signed by Mattice, also
entered in evidence by stipulation, which complains about
Arno ‘‘bad mouthing the company’’ and details the five al-
leged instances of insubordination on September 3. Four of
the five instances were hearsay reports from Supervisors
Allen Bell and Terry Morehouse and nonsupervisor Scott
Ramsey. Neither Bell nor Ramsey testified in this proceed-
ing, and Morehouse, who did, was not asked anything about
the alleged insubordination involving him. The fifth instance
apparently involved Mattice himself, but he testified that
Arno may have ‘‘misunderstood’’ or ‘‘not heard’’ his in-
structions on that occasion or that there might have been a
‘‘miscommunication.’’
On Thursday, September 26, Arno was assigned to drive
truck 24, an old, partially rebuilt vehicle that he had not driv-
en for over a year. That truck was normally operated by
Walrath, who had driven it the day before, but had been as-
signed a different truck on September 26. While he was on
the road driving truck 24, Arno experienced a problem with
the motor ‘‘revving up’’ in traffic. He managed to avoid a
near collision, and he pulled off the road and shut off the
motor. He called the shop and Respondent sent a mechanic’s
helper, Scott Ramsey, to the site. After Ramsey tried unsuc-
cessfully to rectify the problem, Arno drove the truck slowly
back to Respondent’s facility, with Ramsey following in his
vehicle. When they returned to the shop, Arno was told to
wait around while the truck was repaired. Some 10 minutes
later, Arno was told by Mattice that the truck was fixed and
that the mechanic had ‘‘reamed the floor board where the rod
goes through from the pedal.’’ Arno questioned whether the
repairs had resolved the problem. He said that the pedal was
not the problem, rather the ‘‘governor was stuck.’’ Mattice
nevertheless told Arno to drive the truck. Arno said he would
only drive the truck if a qualified mechanic performed a full
inspection of the vehicle to alleviate his safety concerns.
Mattice did not authorize such an inspection and insisted that
Arno drive the truck. Mattice conceded that he never in-
spected the truck, but merely took a call from an unnamed
mechanic who said ‘‘it was all right.’’ In any event, Mattice
said that he had no other work for Arno and if Arno was
not going to drive truck 24 he should punch out and go
home, which he did.
The next day, Friday, September 27, Arno came to work
and was assigned to drive truck 15, the vehicle he had been
driving before he was assigned to truck 24. He worked all
day and nothing was said about his refusal to drive truck 24
the day before.
In the meantime, on September 26, Mattice wrote up an
incident report on Arno’s refusal to drive truck 24. In the re-
port Mattice stated that Arno said that the throttle linkage
‘‘was not free enough to drive’’ and that the clutch ‘‘pushed
in hard.’’ Mattice stated further that the truck was ‘‘known
for hard clutch.’’ Also on September 26, Respondent pre-
pared a statement for Walrath’s signature stating that he had
not had any major problems with truck 24 when he drove
it and that, when he parked it on September 25, ‘‘there was
not anything wrong with the throttle to my knowledge.’’
Walrath was asked to sign this statement at the end of the
workday on September 26. Another statement appeared in
Arno’s personnel file, also dated September 26, signed by
Head Mechanic Robert Dalton. Although it was signed by
Dalton, the statement was prepared by someone else. Ac-
cording to Dalton’s statement, he viewed truck 24 as ‘‘sound
and safe to drive’’; he found no throttle problem. Walrath
testified and confirmed the circumstances of his statement.
But neither Ramsey, who apparently repaired truck 24 on
September 26, nor Dalton, who was not shown personally to
have even seen truck 24 on September 26, testified in this
proceeding.
On Friday, September 27, Walrath drove truck 24 and ex-
perienced the ‘‘same problem’’ that Arno had experienced
the day before. According to Walrath, ‘‘the throttle linkage
was sticking wide open.’’ On three separate occasions while
he was on the road, Walrath experienced the throttle prob-
lem. He managed to unstick the throttle each time, but, after
1095WASTE STREAM MANAGEMENT
the last incident, he brought the truck into the shop for re-
pairs. That evening, a mechanic repaired the linkage. After
these repairs were completed, Walrath drove the truck again
for a few days before it was taken off the road permanently.
Thereafter, according to Walrath, truck 24 simply ‘‘sat in the
yard.’’ Eventually, it was sent to the Parishville facility
where, according to Maintenance Supervisor Richard Downs,
it is being used ‘‘as a stationary vehicle.’’
On Monday, September 30, Arno reported for work as
usual and, while he was on the road, he was notified to re-
turn to the facility and report to Bruno. He did so. When
Bruno and Arno met, Bruno told Arno that he was being
fired because he refused to operate truck 24 the previous
Thursday. Bruno also presented Arno with a termination no-
tice stating that he was fired for ‘‘failure to cooperate with
management.’’ It was Bruno who had discriminatorily dis-
charged Arno several months before, under the pretext that
he had a bad attitude.
Arno’s personnel file contained two evaluations, one dated
July 31, 1991, and another dated September 27, 1991, the
day after the truck 24 incident. The first evaluation rated him
low on work quality (both ‘‘before and present’’) and general
attitude (the same pretextual reason given for his earlier un-
lawful discharge). It rated him satisfactory or better on at-
tendance and work completion. Since the evaluation was pre-
pared after only 5 days of work following Arno’s reinstate-
ment, it is obvious that most, if not all, of the evaluation was
based on an assessment of Arno prior to his earlier unlawful
discharge. The second evaluation rated him even worse on
work quality and attitude. This evaluation, apparently pre-
pared by Mattice, said that Arno had a ‘‘very opinionated at-
titude toward management and his job, and job duties’’ and
that Arno was ‘‘constantly arguing with management.’’
2. Analysis of the Arno allegations
The evidence in this case, when considered in the context
of Respondent’s earlier discriminatory discharge of Arno,
and the threats made to him around the time of his earlier
discharge, clearly supports the inference, which I make, that
Respondent continued its discrimination against Arno after
his reinstatement because of his earlier and continued union
activities and that Respondent again discharged him because
of those same union activities. Respondent’s animus against
Arno because of his union activities continued unabated from
July 15, 1991, when he was reinstated, to September 30,
when he was again discharged. Rheaume, his coworker, was
instructed to watch Arno for no apparent reason except to re-
port on mistakes which could be thereafter used against Arno
because of his union activities. I make this inference not only
because of the unusual instructions to Rheaume, who was not
a supervisor, but also because of subsequent examples of dis-
criminatory treatment of Arno. This included complaints
about Arno’s work, which I discuss later in this decision, that
were not mentioned to Arno at the time they occurred and
were saved for inclusion in a discriminatorily issued final
warning. In these circumstances, and in view of the prior dis-
crimination against Arno, I find that Respondent violated
Section 8(a)(1) of the Act by directing employee Rheaume
to survey and report on Arno’s work because of the latter’s
union activities.
Indeed, the evidence supports the inference, which I also
make, that Respondent informed employees that it wanted to
force Arno to quit, again because of his union activities. Not
only did Mattice not deny such accusations when made by
Arno to his face, but Vice President Bisnett specifically told
Rose that he would ‘‘help’’ Arno in terminating his employ-
ment with Respondent. He exhibited his contempt for Arno
on another occasion by making an obscene gesture to his
face. No other reason for this contempt appears in the record
except for Arno’s union activities and Respondent’s unlawful
opposition to them. Bisnett had participated in some of the
unfair labor practices found in the earlier case and Arno had
continued his union activities after his reinstatement. I there-
fore find that Respondent gave clear indications that it was
seeking to force Arno to quit his employment because of
Arno’s union activities. This was violative of Section 8(a)(1)
of the Act.
It is also alleged that Respondent’s refusal to permit Arno
to take his breaks with other employees in the yard or in the
coffeeroom was discriminatory. I agree that this was viola-
tive of the Act. Uncontradicted testimony establishes that
Arno was restricted as alleged beginning in early August in
circumstances that confirm that this was done because of
Arno’s union activities. Morehouse told Arno that the restric-
tion was imposed because he was ‘‘bothering’’ the other em-
ployees and, when Arno suggested that it was done because
of his union activities, which had continued unabated after
his reinstatement, Morehouse made no response. No other
reason for this restriction appears in the record. Accordingly,
and in view of other contemporaneous violations directed to-
ward Arno, I find that Respondent violated Section 8(a)(3)
and (1) of the Act by restricting Arno’s breaks because of
his union activities.
Not all of the alleged misconduct directed toward Arno in
the summer of 1991 was unlawful. I find, for example, that
Respondent’s refusal to work Arno from July 22 to 30 was
not violative of the Act, as alleged by the General Counsel.
It appears that the van Arno was supposed to drive at this
time was being repaired as a result of the citation for faulty
brakes. The General Counsel has not established that other
work was available for Arno. Testimony that there was an-
other truck sitting in the yard at one point during this period
is not sufficient to show that other work was available.
Moreover, Arno asked for and received vacation pay for the
period he was not working. I see no evidence from which
I could infer discrimination. Accordingly, I will dismiss the
allegation that Respondent discriminated against Arno by not
permitting him to work for a week in late July 1991.
The General Counsel also alleges that Respondent violated
the Act by causing Arno to defend against traffic citations
that ordinarily would have been the responsibility of the Re-
spondent. This allegation involves two sets of citations. The
first was for a broken tail light and faulty brakes on the van
driven by Rose on July 19; the second was for having a de-
fective tarp in September. I find a violation with respect to
the first set of citations, but I will dismiss as to the citation
for the defective tarp.
Arno’s July 19 citations involved equipment-related prob-
lems of the same type that were handled by Respondent in
the past. Although some of Respondent’s witnesses testified
to the contrary, there is record evidence, which I find reliable
and plausible, that Respondent took responsibility for equip-
ment-related traffic citations. For example, Rose testified that
several times Respondent took responsibility for such cita-
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 My analysis of the discrimination allegations here is in accord-
ance with the Wright Line test explicated in greater detail in my
prior decision (315 NLRB at 1125–1126).
tions of his. On one occasion, he handed a ticket for an
uninspected vehicle to a supervisor who took care of the
matter without his having to make a court appearance. On
another occasion, he was reimbursed for a fine he had paid
in connection with a citation. Arno’s July 19 citations were
of the same general character and he had absolutely no cul-
pability that would cause Respondent not to take responsibil-
ity for the citations. On that occasion, he had taken over
Rheaume’s van at midday. This was his first driving assign-
ment since his reinstatement. Neither Morehouse nor Mattice
suggested to Arno that he was responsible for checking the
van for any tail light or brake problems before he took over
Rheaume’s driving assignment. Indeed, if anyone other than
Respondent’s mechanics was responsible for checking for the
defects that later caused the citations on this occasion, it
would have been Rheaume. Mattice testified that Rheaume
told him that he was having trouble with the brakes on the
van. When Morehouse was handed and accepted the tickets
submitted to him by Arno, he did not say that Respondent
would not take care of them. His silence confirmed Arno’s
understanding of Respondent’s policy with respect to equip-
ment-related citations. That policy was that Respondent
would, in effect, take care of paying the fines involved or
defend against the citations. Nevertheless, the next workday,
after apparently checking with his superiors, Morehouse
handed the tickets back to Arno and told him the matter was
entirely his responsibility.
As a result of Respondent’s refusal to take responsibility
for these equipment-related citations, Arno was forced to de-
fend himself against the citations, which were eventually dis-
missed as to him with the observation by the judge that they
were the responsibility of Respondent. He spent some 4
hours of his own time traveling to the courthouse, waiting
for his case to be called and participating in the case itself.
In view of Respondent’s animus toward Arno, as expressed
in the prior case and in the violations I have found above,
I find that Respondent’s refusal to take responsibility for
Arno’s equipment-related citations of July 19, contrary to its
past practice, was discriminatory. By forcing Arno personally
to defend against these citations, which were dismissed as to
him, Respondent violated Section 8(a)(3) and (1) of the Act.
While I am somewhat suspicious of Respondent’s refusal
similarly to take responsibility for Arno’s defective tarp cita-
tion, I will dismiss the allegation that Respondent violated
the Act in the way it treated Arno with respect to that cita-
tion. This situation is different, in my view, from the situa-
tion surrounding the July 19 citations. It is not clear, as it
was in the earlier set of citations, that Arno was not culpable.
Unlike equipment-related citations, a defective tarp is easily
observable by a driver. The evidence is not clear whether
Arno himself had the responsibility to change the tarp or to
obtain a new tarp, but he certainly could have asked about
one. Respondent kept tarps in a location that was easily ac-
cessible and known to drivers. Moreover, Arno’s citation for
this offense was dismissed with no major unconvenience, un-
like the situation in the earlier citations. Since the burden of
proving discrimination in each case falls on the General
Counsel and the evidence on this allegation stands in equi-
poise, at best, I shall dismiss this allegation.
This brings me to the final week of Arno’s second stint
of employment. It is alleged that Respondent’s final warning
of September 24 and its adverse evaluation of September 27
were discriminatory and unlawful. I agree. In view of Re-
spondent’s continuing animus and discrimination against
Arno, as mentioned and found above, and the timing of the
September 24 final warning, issued the same day as Arno re-
emphasized his prounion sympathies in the presence of
Mattice, who issued him the warning, I find that the General
Counsel has at least established a prima facie case of dis-
crimination. I also find that the alleged offenses listed in the
September 24 incident report that supported the final warning
were pretexts and would not have supported such a warning
in the absence of Arno’s recently restated prounion sym-
pathies.3
These alleged offenses were not and could not have been
substantial ones because they were not mentioned to Arno at
the time they occurred. Moreover, on the witness stand, Arno
gave perfectly plausible explanations for them that negated
any serious culpability on his part. These explanations were,
for the most part, not directly contradicted. For example, in
four of the five alleged instances of insubordination men-
tioned in the September 24 incident report, the people to
whom Arno was allegedly insubordinate did not testify to re-
fute Arno’s explanations, and Mattice, who did testify about
the instance involving him, conceded that this may have been
the result of a possible miscommunication. It defies common
sense that a person who has really been insubordinate five
times in 1 day would not be warned or disciplined at the
time. Yet, this is what supposedly happened here. Respond-
ent held back and neither said nor did anything to Arno until
over 3 weeks later when it issued him a final warning. Actu-
ally, Mattice was not content simply with testifying about the
alleged offenses in the September 24 incident report. He
even testified about an alleged offense that was not men-
tioned in the report. Finally, his reference, in the incident re-
port, to Arno’s complaining to management and creating
‘‘discord’’ among employees sounds much like the same bad
attitude that was used by Respondent as a pretext to justify
Arno’s earlier discharge. These references infect all of the al-
leged improprieties listed in the report. In these cir-
cumstances, I must reject Respondent’s underlying reasons
for both the September 24 incident report and the final warn-
ing as pretexts.
The above strongly suggests that Respondent was attempt-
ing to build a record against Arno. This supports my earlier
finding that Respondent was watching Arno and suggested
that it was trying to get him to quit. Thus, Respondent’s
pretextual explanations for the final warning and the underly-
ing incident report are not only insufficient to overcome the
General Counsel’s prima facie showing of discrimination, but
tend to buttress that finding. Accordingly, I find that by
issuing the September 24 final warning, based on the under-
lying pretextual incident report, Respondent violated Section
8(a)(3) and (1) of the Act.
Since Arno’s September 27 evaluation was based, at least
in part, on what I have found was an unlawful final warning
issued 3 days before, I find that it too was unlawful. In addi-
tion, the references in that evaluation to Arno’s disagree-
ments with management and his attitude problems harken
back to Arno’s previous discriminatory discharge that Re-
1097WASTE STREAM MANAGEMENT
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
Continued
spondent defended on the pretext that he had a bad attitude.
This echo of things past in the evaluation, like a similar echo
in Mattice’s notes and the September 24 incident report,
amounts to a continued criticism of Arno’s continued union
support, which was openly exhibited as late as September 24.
It is clear that, despite Respondent’s efforts in harassing
Arno, he had not capitulated and was not cured of his
prounion tendencies. This undoubtedly affected his evalua-
tion. Finally, this evaluation was prepared after the truck 24
incident, which eventually led to his discharge, a discharge
that, as I find below, was itself discriminatory. In the context
of this unlawful conduct toward Arno, I find that the adverse
evaluation of September 27 was likewise discriminatory, and
Respondent’s explanations for it pretextual. The evaluation
was thus violative of Section 8(a)(3) and (1) of the Act.
I now turn to the termination itself. Bruno, who terminated
Arno on Monday, September 30, as he had several months
before, based it solely on Arno’s refusal to drive truck 24.
However, it appears that Respondent was less concerned with
the impact on its operations of the loss of a driver, as to
which there is no evidence, than with Arno’s continued bad
attitude, the reason that had ostensibly caused his earlier un-
lawful discharge. Thus, the termination notice mentioned
nothing about the refusal to drive truck 24; it simply men-
tioned a failure to cooperate with management. Moreover,
the discharge itself did not come until after Arno had worked
a full day and part of another after the truck 24 incident. In
the meantime, and without mentioning anything to Arno
about possible disciplinary action as a result of the truck 24
incident, Respondent was seeking documentation to support
Arno’s discharge. The accumulation of such secret docu-
mentation and the delay in effectuating the discharge, to-
gether with the context of other unlawful conduct directed to-
ward Arno at this time, and in the earlier case, supports the
inference, which I make, that the General Counsel estab-
lished at least a prima facie case of discrimination as to the
termination itself.
I also find that the truck 24 incident was not the real rea-
son for Arno’s discharge, but was a pretext used by Re-
spondent in an attempt to justify Arno’s termination. A close
analysis of the evidence supports the inference that Arno was
set up for discharge and that the incident itself would not
have resulted in Arno’s termination but for his union activi-
ties. Respondent’s explanations are insufficent to overcome
the prima facie case of discrimination established by the
General Counsel. Truck 24 was an old and tattered truck. Its
assignment to Arno on September 26 was highly unusual. It
was normally driven by Walrath, who drove it both the day
before Arno did and the day after. Walrath was assigned to
drive another truck on September 26. Arno drove truck 24
only that 1 day. Mattice, who made the assignments, con-
ceded that it was unusual for drivers to be assigned to trucks
other than those they normally operate, and he could not re-
member why he switched Arno and Walrath on September
26.
When Arno took truck 24 on the road, he experienced a
serious throttle problem that nearly resulted in an accident.
Even though the truck was allegedly repaired later that day,
Walrath, who drove it the very next day, experienced the
very same problem with truck 24. The truck was again re-
paired, this time on September 27 and, within days, it was
retired from service on the public roads. By Monday, Sep-
tember 30, when Arno was fired, Respondent knew that, on
Friday, September 27, Walrath had the same problem with
truck 24 that led to Arno’s refusal to drive it the day before
and that new repairs had to be made to the truck. Arno was
thus proved correct in insisting that the repairs performed on
September 26 were not adequate. That Respondent neverthe-
less went ahead with the discharge in these circumstances re-
futes any contention that the discharge was not discrimina-
tory. Indeed, Respondent’s treatment of Arno in the truck 24
incident demonstrates the depth and breadth of its union ani-
mus. Respondent would not have treated Arno in this manner
and discharged him to boot, but for a deeply rooted, union
animosity directed toward him. This record, as well as the
previous one, provides evidence of such animosity.
In sum, I find that Respondent terminated Arno on Sep-
tember 30, 1991, because of his union activities, as it had
terminated him earlier for such activities. Bruno was in-
volved in both discharges. He used Arno’s refusal to drive
an unsafe truck as a pretext on this occasion, just as he used
bad attitude as another pretext in the earlier termination of
Arno in April 1991. Thus, I find that Respondent has again
discharged Arno in violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. By granting benefits to employees to dissuade them
from supporting a union, by interrogating its employees
about their union sympathies and the union sympathies of
their fellow employees, by soliciting employees to survey
and report on the work duties of another employee because
of his union activites, and by informing employees that it
wanted to force an employee to quit his employment because
of his union activities, Respondent violated Section 8(a)(1) of
the Act.
2. By issuing warnings, adverse evaluations, and otherwise
harassing employee Vern Arno and by thereafter terminating
him, all because of his union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
3. These violations constitute unfair labor practices within
the meaning of the Act.
4. Respondent has not otherwise violated the Act.
THE REMEDY
I shall order the Respondent to cease and desist from the
unfair labor practices found here, and to take certain affirma-
tive action necessary to effectuate the policies of the Act.
Nothing in the Order shall be construed as requiring Re-
spondent to rescind benefits already granted. However, Re-
spondent will be ordered to fully and immediately reinstate
employee Vern Arno to his former position or, if such posi-
tion no longer exists, to a substantially equivalent position
and to make him whole for any loss of earnings or benefits
he may have suffered because of its unlawful treatment of
him, in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
On the above findings of fact and conclusions of law, and,
on the entire record, I issue the following recommended4
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
ORDER
The Respondent, Waste Stream Management, Inc., Canton
and Potsdam, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities and the union activities of other employees.
(b) Granting its employees various benefits in a revised
employee handbook in order to dissuade employees from
supporting the Union.
(c) Soliciting employees to survey and report on the work
duties of employees and informing employees that it seeks
to force employees to quit, because of their union activities.
(d) Issuing warnings and adverse evaluations to, and
harassing and terminating employees or otherwise discrimi-
nating against them because they engage in union activities
or in order to discourage union activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employee Vern Arno immediate and full rein-
statement to his former job or, if such position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
this decision, and expunge from its personnel records any
references to his final warning, evaluation, and termination
and notify him, in writing, that this has been done and that
evidence thereof will not be used as a basis for any future
personnel actions against him.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facilities in Potsdam, Canton, Gouverneur,
Ogdensburg, and Parishville, New York, copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other materials.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate our employees concerning their
union activities and the union activities of other employees.
WE WILL NOT grant our employees various benefits in a
revised employee handbook in order to dissuade employees
from supporting the Union.
WE WILL NOT solicit employees to survey and report on
the work duties of employees and inform employees that it
seeks to force an employee to quit, because of their union
activities.
WE WILL NOT issue warnings and adverse evaluations to,
harass and terminate employees or otherwise discriminate
against them because they engage in union activities or in
order to discourage union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer to Vern Arno immediate and full reinstate-
ment to his former job or, if such position no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him,
with interest, and WE WILL expunge from our personnel
records any references to his final warning, evaluation, and
termination and nofity him, in writing, that this has been
done and that evidence thereof will not be used as a basis
for any future personnel actions against him.
WASTE STREAM MANAGEMENT, INC.