Waste Stream Management

National Labor Relations Board - Board Decisions

Dec 22, 1994

315 N.L.R.B. 1099 (N.L.R.B. 1994)

1099
315 NLRB No. 133
WASTE STREAM MANAGEMENT
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 On November 3, 1993, Administrative Law Judge Jesse Kleiman
issued the attached decision. The Respondent and the General Coun-
sel filed exceptions and supporting briefs. The Charging Party filed
an answering brief to the Respondent’s exceptions. The Respondent
filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 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.
The Respondent contends, inter alia, that the judge’s conduct of
the hearing and his findings have been tainted with bias, hostility,
and prejudice against the Respondent. We find these allegations to
be without merit. On our full review of the record and the decision
of the judge, we perceived no evidence that he prejudged the case,
made prejudicial rulings, or demonstrated bias, hostility, or prejudice
against the Respondent’s counsel or their witnesses. We further find
no evidence of partiality in the judge’s analysis and discussion of
the evidence in his findings.
4 In adopting the judge’s conclusion that supervisor Whitton’s in-
terrogation of employees Guiles, Law, and Prashaw violated Sec.
8(a)(1), Chairman Gould finds it unnecessary to rely on the holding
in Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006
(9th Cir. 1985).
Waste Stream Management, Inc. and its wholly
owned subsidiary CBI Steel, Inc. and Team-
sters Local Union No. 687, International Broth-
erhood of Teamsters, AFL–CIO.1 Cases 3–CA–
16245 and 3–RC–9695
December 22, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The administrative law judge in this case has found
that the Respondent committed numerous violations of
Section 8(a)(3) and (1) of the Act during the first 4
months of 1991 and that it interfered with employee
free choice in a representation election held on April
5, 1991.2 The Board has considered the decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,3 and
conclusions,4 as modified below, and to adopt the rec-
ommended Order, as modified.
I. AGENCY STATUS OF WILLIAM HENRY
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act, and engaged in objectionable
preelection conduct, when William Henry solicited em-
ployee signatures on an antiunion petition. According
to the judge, Henry was a nonsupervisory employee
who had actual and apparent authority from manage-
ment to engage in such activity on the Respondent’s
behalf. In so finding, the judge relied on several evi-
dentiary factors, including: Henry’s continued petition
activity after he became a full-time, nonsupervisory as-
sistant to admitted Supervisor Michael Bisnett in mid-
March 1991; the credible testimony of employee Mark
Rood indicating his impression that management
would know if he signed Henry’s petition; and the
credible testimony of employee Verde Snyder that
Henry used a computer printout which the administra-
tive law judge inferred must have been provided by the
Respondent to assist Henry’s solicitation efforts.
We agree with the judge that Henry acted as the Re-
spondent’s agent, but we do not rely on the factors
enumerated above. Although Henry’s full-time per-
formance of duties as Bisnett’s assistant would support
an agency finding, there is no affirmative evidence that
he solicited signatures for the antiunion petition after
he assumed these duties. Rood’s testimony indicates
only a subjective belief which, even if correct, does
not itself prove Henry’s agency. Finally, there is insuf-
ficient evidence about the nature or origin of the com-
puter printout to warrant the inference that the Re-
spondent must have provided it to Henry to facilitate
the petition drive. We nevertheless agree with the
judge, for the other reasons fully described in his deci-
sion, that Henry acted as the Respondent’s agent in the
unlawful solicitation of signatures for the antiunion pe-
tition.
II. IMPRESSION OF SURVEILLANCE
The judge also referred to several factors in support
of his finding that the Respondent violated Section
8(a)(1) of the Act by creating the impression that its
employees’ union activities were under surveillance.
One of those factors was Rood’s aforementioned testi-
mony about his subjective impression of surveillance.
We do not rely on this evidence. Another factor was
employee Harold Bush’s testimony about an occasion
in late March or early April when supervisor Bisnett
repeatedly said to him, ‘‘Yoo hoo, Harold, I’m watch-
ing you.’’ We likewise do not rely on this factor as
proof of the alleged unfair labor practice because the
record does not provide a sufficient context for
Bisnett’s statements to warrant the inference that they
were related to employees’ union activities. The re-
maining factors cited by the judge fully support his
finding of unlawful conduct.
III. DISCHARGE OF ROBERT MONROE
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by terminating driv-
er Robert Monroe and redistributing his route to driv-
ers Michael Miller and Robert Perry. We do not rely,
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981).
6 Indeed, Respondent on brief relies on the ‘‘Results from laying
off Prashaw and splitting up his route.’’
7 We agree with the judge, for the reasons stated in his decision,
that the preponderance of the evidence also supports finding that the
Respondent permanently laid off Prashaw because of his union ac-
tivities, in violation of Sec. 8(a)(3) of the Act.
8 The General Counsel has excepted to the judge’s apparently inad-
vertent omission of reinstatement language in his recommended no-
tice. We shall substitute a notice which includes the appropriate re-
medial language.
however, on the judge’s use of the Wright Line5 test
of discriminatory motivation or on his use of the
‘‘small plant doctrine’’ to infer prior knowledge of
Monroe’s union activity. The theory of violation al-
leged here does not require proof of discrimination
aimed at the discharged employee or of knowledge that
the discharged employee engaged in protected con-
certed activity. Instead, the legal question presented is
whether the Respondent’s conduct would reasonably
tend to interfere with, threaten, or coerce employees in
the exercise of their rights under Section 7 of the Act.
In this regard, the Respondent’s discharge of Mon-
roe and its redistribution of his route to Miller and
Perry in March 1991 closely resembles an unlawful ac-
tion undertaken by the Respondent 2 months earlier
when it permanently laid off employee Eugene
Prashaw and redistributed his route to employees Im-
panel Guiles and Edward Law.6 In both instances, the
route redistribution represented a substantial benefit to
a pair of employees who, prior to the advent of the
Union, had repeatedly made unavailing complaints
about having to perform part of the work of a third
employee whom the Respondent ultimately terminated.
In both instances, particularly in light of the Respond-
ent’s other unfair labor practices, employees would
reasonably tend to view the discharge and route redis-
tribution action as an attempt by the Respondent to re-
dress previously ignored grievances and to confer ben-
efits in order to dissuade employees from supporting
the Union. The Respondent has not proved a legitimate
and substantial business justification for its conduct.
Accordingly, such conduct violates Section 8(a)(1) of
the Act.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Waste
Stream Management, Inc. and its wholly owned sub-
sidiary, CBI Steel, Inc., Potsdam, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified by substituting
the attached notice for that of the administrative law
judge.8
[Direction of Second Election omitted from publica-
tion.]
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
violated the National Labor Relations Act and has or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of those pro-
tected concerted activities.
WE WILL NOT interrogate our employees concerning
their union activities and the union activities of other
employees.
WE WILL NOT solicit grievances from our employees
with explicit and implicit promises to rectify them.
WE WILL NOT suggest to our employees that they
could draw up a petition against Teamsters Local
Union No. 687, International Brotherhood of Team-
sters, AFL–CIO, or any other labor organization and
solicit them to sign such a petition
WE WILL NOT inform our employees that if the
Union lost the election we would set up a grievance
procedure.
WE WILL NOT promise employees various benefits
including a grievance procedure in order to induce
them to vote against the Union in any upcoming elec-
tion.
WE WILL NOT create the impression that we are
keeping under surveillance the activities of our em-
ployees on behalf of the Union or any other labor or-
ganization.
WE WILL NOT promise and grant wage increases to
our employees in order to dissuade them from support-
ing the Union.
WE WILL NOT terminate employees and consolidate
routes in order to redress grievances of our employees
and dissuade them from engaging in activities on be-
half of the Union or any other labor organization.
WE WILL NOT tell our employees that they are being
assigned more onerous working conditions or that we
are seeking a reason to terminate them because of their
activities on behalf of the Union or any other labor or-
ganization, and that they should forego such activities.
1101WASTE STREAM MANAGEMENT
WE WILL NOT threaten to close our facilities because
of the union activities of our employees and if the
Union came in.
WE WILL NOT inform our employees that they are
being fired or were fired because of their activities on
behalf of the Union or any other labor organization.
WE WILL NOT impose more onerous working condi-
tions on our employees because they joined, supported,
or assisted the Union or any other labor organization,
and engaged in concerted activities for the purpose of
collective bargaining or mutual aid or protection, and
in order to discourage employees from engaging in
such activities or other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.
WE WILL NOT terminate employees or otherwise dis-
criminate against them in regard to hire or tenure of
employment or any term or condition thereof because
they engage in activities on behalf of the Union or any
other labor organization, or in order to discourage
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL offer Eugene Prashaw, Verde Snyder,
Richard Walrath, Mark Rood, Vern Arno, and Robert
Monroe immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and WE
WILL make them whole for any loss of earnings they
may have suffered because of their terminations to-
gether with interest.
WE WILL remove from our personnel records any
and all references to the terminations of the above
named employees, and WE WILL notify each of them,
in writing, that this has been done, and that evidence
thereof will not be used against them in any way.
WASTE STREAM MANAGEMENT, INC.
AND ITS WHOLLY OWNED SUBSIDIARY
CBI STEEL, INC.
Thomas J. Sheridan, Esq. and Robert A. Ellison, Esq., for the
General Counsel.
Daniel S. Cohen, Esq. (Evans, Bankert, Cohen, Lutz &
Panzone, Esqs.), for the Respondent.
Christy Concannon, Esq. (Baptiste & Wilder, P.C.), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of a charge and amended charge filed on April 11 and May
21, 1991, respectively, in Case 3–CA–16245 by the Team-
sters Local Union No. 687, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (Charging Party or the Union), the General
Counsel of the National Labor Relations Board, by the Re-
gional Director for Region 3, Buffalo, New York, duly
issued a complaint and notice of hearing on June 26, 1991,
against Waste Stream Management, Inc. and its wholly
owned subsidiary CBI Steel, Inc. (the Respondent or the Em-
ployer), alleging that the Respondent had engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). By
answer dated July 1, 1991, duly filed with the Board, the Re-
spondent denied the material allegations in the complaint.
Previously, on February 4, 1991, the Union filed a petition
for certification of representative with the Board in Case 3–
RC–9695 seeking an election among the Respondent’s em-
ployees in an appropriate unit. Pursuant to a Stipulated Elec-
tion Agreement approved by the Regional Director for Re-
gion 3 on March 1, 1991, an election by secret ballot was
conducted on April 5, 1991 among the employees in the fol-
lowing described appropriate collective-bargaining unit:
All full-time and regular part-time employees including
all truck drivers, yard people, recyclers, mechanics,
steel fabricators, equipment operators and plant clericals
employed by Waste Stream Management, Inc. and its
wholly owned subsidiary CBI Steel, Inc. at their facili-
ties located at Potsdam, Canton, Gouverneur, Ogdens-
burg and Parishville, New York. Excluding all office
clerical employees and guards and supervisors as de-
fined in the Act.
The official tally of ballots showed that 14 votes were cast
in favor of the Union, 36 votes against the Union, and 10
ballots were challenged. On April 11, 1991, the Union filed
timely objections to the election alleging that the Respondent
had engaged in a wide range of unlawful conduct affecting
the outcome of the election. By letter dated June 26, 1991,
the Union requested withdrawal of Objections 3 and 4. The
remaining Objections 1, 2, 5, 6, and 7 assert, in substance,
that the Respondent unlawfully discharged ‘‘at least four
union supporters,’’ unlawfully interrogated employees about
their union sympathies and how they were going to vote in
the election, engaged in unlawful surveillance of employee’s
union activities, promised employees better wages, benefits
and working conditions to discourage support for the Union,
and that ‘‘During the critical period, the Employer engaged
in other conduct that restrained, threatened and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act and which prevented a fair election.’’ The with-
drawal request was approved by the Regional Director for
Region 3 on June 27, 1991.
Upon investigation of the remaining objections to the elec-
tion and the related unfair labor practice charges filed by the
Union, the Regional Director for Region 3 duly issued an
order on June 27, 1991, directing a hearing on the objections,
the consolidation of Cases 3–CA–16245 and 3–RC–9695 and
a notice of hearing. Also, the Regional Director held that the
unlawful conduct alleged to have been committed by the Re-
spondent in the objections to the election and in the com-
plaint, if it did occur, could be found to have interfered with
the election and be considered in determining whether the
election should be set aside, since such conduct was alleged
to have happened during the critical period between the filing
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Intercontinental Mfg. Co., 167 NLRB 769 (1967).
2 Also see White Plains Lincoln Mercury, supra at 1136; General
Signal Corp., 234 NLRB 914 fn. 1 (1978).
3 Van Camp Seafood Co., 243 NLRB 165 (1979).
4 White Plains Lincoln Mercury, supra; American Safety Equipment
Corp., supra; Dayton Rubber & Tire Co., supra.
5 It is clear from the record evidence that complaint allegation
‘‘V’’ incorrectly lists Chester G. Bisnett, Sr. as Jr.
of the petition in Case 3–RC–9695 and the election held
therein on April 5, 1991.1 The Regional Director then con-
cluded that such allegations and the investigation thereof
raise substantial and material questions of fact that can best
be resolved by a formal hearing.
Moreover, as the Board held in White Plains Lincoln Mer-
cury, 288 NLRB 1133, 1138 (1988):
[W]hen the unlawful conduct is, a fortiori, conduct that
interferes with a free choice in an election, it cannot be
treated as somehow falling outside the legitimate and
appropriate scope of the investigation of the election
process simply because it was not cited in the specific
objections to the election. In such circumstances it is
appropriate to find that the employer’s misconduct has
impinged on the employees’ exercise of free choice and
then set the election aside.
During the course of his investigation of the objections to
the election and the related unfair labor practice charges in
Case 3–CA–16245, the Regional Director for Region 3 ad-
duced evidence that during the critical period between the fil-
ing of the petition and the date of the election, the Employer
solicited grievances from its employees with explicit and im-
plicit promises to rectify them; suggested to its employes that
they could draw up a petition against the Union; informed
its employees that if the Union lost the election the Respond-
ent would establish a grievance procedure; solicited its em-
ployees to sign a petition against the Union; promised and
granted wage increases to dissuade the employees from sup-
porting the Union; terminated the employment of employee
Robert Monroe and consolidated routes in order to redress
grievances of its employees and in order to dissuade employ-
ees from engaging in activities on behalf of the Union; told
an employee that he was being assigned more onerous work-
ing conditions because of his activities on behalf of the
Union; and told an employee that the Employer was seeking
a reason to terminate him because of his activities on behalf
of the Union and that the employee should forego such ac-
tivities. The Respondent’s conduct as alleged above was not
specifically set forth in the Union’s objections to the elec-
tion.
In American Safety Equipment Corp., 234 NLRB 501
(1978), and Dayton Tire & Rubber Co., 234 NLRB 504
(1978), the Board restated and reaffirmed its ‘‘longstanding
policy which permits a Regional Director to set aside an
election based on conduct which he has discovered during
his investigation, even though that particular conduct had not
been the subject of a specific objection.’’2 Additionally, the
Board has held that a Regional Director lacks the discretion
to ignore any evidence that shows that the election has been
tainted which he uncovered during the investigation and that
to do so would constitute reversible error.3 Such conduct,
therefore, if it did occur, could be found to have interfered
with the election.4
A hearing in the consolidated cases was duly held before
me in Canton and Albany, New York, on October 15, 16,
17, 18, and 22, 1991. Subsequent to the close of the hearing,
the General Counsel, the Union and the Respondent filed
briefs. In their brief, counsels for the General Counsel moved
to correct the transcript of these proceedings which mostly
include corrections to the spelling of various names. I there-
fore grant the motion to correct the transcript as set forth in
their brief.
Upon the entire record and the briefs of the parties, and
upon my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admits, and I find
that at all times material herein, Waste Stream Management,
Inc. and CBI Steel, Inc., have been affiliated business enter-
prises with common officers, ownership, directors, manage-
ment, and supervision; have formulated and administered a
common labor policy affecting employees of their operations;
have shared common premises and facilities; have provided
services for and made sales to each other; have interchanged
personnel with each other; and have held themselves out to
the public as single-integrated business enterprises. I also
find that by virtue of the above, Waste Stream Management,
Inc. and CBI Steel Inc. (collectively the Respondent) con-
stitute a single-integrated business enterprise and a single
employer within the meaning of the Act.
The Respondent, at all times material herein, is and has
been a New York corporation with its principal place of
business located at l45 Outer Maple Road, Potsdam, New
York, and with facilities located at Potsdam, Canton,
Gouverneur, Ogdensburg, and Parishville, New York (the
Respondent’s facilities), where it is engaged in the business
of rubbish removal, recycling, and scrap metal reprocessing,
respectively. In the course and conduct of its business oper-
ations 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 facilities 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 Respondent 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 complaint further alleges, the Respondent admits, and
I find that Chester G. Bisnett Sr. (president),5 James Bruno
(vice president), Edwin Ricker, (labor counselor), Michael
Bisnett (manager), Lawrence Whitten (supervisor), Robert
Dalton (service manager), and Terry Morehouse (dis-
patchman and scale master) are supervisors of the Respond-
ent within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act. The complaint also alleged that William
Henry (foreman) and Ned Potts (fabrication engineer) are su-
pervisors and agents of the Respondent under the Act. The
Respondent in its answer denied that Henry was a supervisor
1103WASTE STREAM MANAGEMENT
and agent of the Respondent, but admitted that Potts was
such a supervisor and agent. However, at the hearing the Re-
spondent sought to amend its answer to now deny that Potts
is a supervisor and agent under the Act. A discussion of the
status of Henry and Potts as supervisors and agents of the
Respondent under the Act will be forthcoming later on in
this decision where appropriate.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that Teamsters Local Union No. 687, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE APPROPRIATE BARGAINING UNIT
The Stipulated Election Agreement provides, the parties do
not dispute, and I find that the following employees of the
Respondent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees includ-
ing all truckdrivers, yard people, recyclers, mechanics,
steel fabricators, equipment operators and plant clericals
employed by Waste Stream Management, Inc. and its
wholly owned subsidiary CBI Steel, Inc. at their facili-
ties located at Potsdam, Canton, Gouverneur, Ogdens-
burg, and Parishville, New York. Excluding all office
clerical employees and guards and supervisors as de-
fined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent in January,
February, March, and April 1991 interrogated its employees
concerning their union activities and the union activities of
other employees, solicited grievances from its employees
with explicit and implicit promises to rectify them, suggested
to its employees that they could draw up a petition against
the Union, informed its employees that if the Union lost the
election the Respondent would set up a grievance procedure,
solicited its employees to sign a petition against the Union,
promised its employees various benefits including a griev-
ance procedure in order to induce them to vote against the
Union in the upcoming election, created the impression that
it was keeping under surveillance the union activities of its
employees, promised and granted wage increases to its em-
ployees in order to dissuade them from supporting the Union,
terminated the employment of Eugene Prashaw and Robert
Monroe and consolidated routes in order to redress griev-
ances of its employees and in order to dissuade employees
from engaging in activities on behalf of the Union, told an
employee that he was being assigned more onerous working
conditions because of his activities on behalf of the Union,
told an employee that the Respondent was seeking a reason
to terminate him because of his activities on behalf of the
Union and that this employee should forgo such activities,
threatened to close its facilities because of the Union activi-
ties of its employees, told an employee not to talk to anyone
about the Union, informed an employee that he was being
discharged because of his activities on behalf of the Union,
informed an employee that he was fired because of his union
activities, imposed more onerous working conditions on its
employee Verde Snyder, and terminated employees Eugene
Prashaw, Verde Snyder, Richard Walrath, Mark Rood, and
Vern Arno because these employees joined, supported, or as-
sisted the Union and engaged in concerted activities for the
purpose of collective bargaining or mutual aid or protection,
and in order to discourage employees from engaging in such
activities, in violation of Section 8(a)(1) and (3) of the Act.
The Respondent denies these allegations.
A. The Evidence
The Union’s organizational campaign at the Respondent’s
facility began in January 1991 with Union Organizer Michael
Matthews speaking to employees and having them sign union
authorization cards. Matthews testified that on or about Janu-
ary 8, 1991, he gave cards to employees Michael Miller and
Robert Monroe with Monroe signing his card then and there
and returning it to Matthews. In and around the same time
Matthews and Union President Fred Carter met with Bryan
Rose at Rose’s home and Rose not only signed an authoriza-
tion card but volunteered to obtain other employees signa-
tures on authorization cards. On January l6, 1991, Matthews
met with employees Eugene Prashaw, Michael Guiles, and
Edward Law at the Gouverneur facility, and these employees
all signed union authorization cards. When Guiles indicated
that employee John Carlin would also sign a card, Matthews
left a blank card with Guiles for Carlin. However, after
Guiles gave the authorization card to Carlin, Carlin turned it
over to his supervisor, Larry Whitten, and told Wheaton to
apprise the Respondent’s vice presidents, James Bruin and
Chester W. Bisnett Jr., also known as ‘‘Skip,’’ what was
going on.
Employee Impanel Guiles testified that the next day, while
at work, Whitton asked Guiles and Law if someone from the
Union had been at the facility the previous day and when
they answered yes and that they had spoken with him for
about 20 or 30 minutes, Whitton said that they might have
to be docked a half hour’s pay because they had talked to
him on company time. Whitton also asked these employees
if they had signed union authorization cards and they ac-
knowledged that they had done so. Guiles added that the
next day, January 19, 1991, Whitton informed Guiles and
Law that they would not be docked for the time. It is reason-
able to assume from the record evidence that Whitton also
advised them at this time that Bruno would meet with the
employees on January 24, 1991.
Matthews testified that on January 19, 1991, he received
a phone call from Eugene Prashaw who advised Matthews
that John Carlin had given his authorization card to his su-
pervisor, Whitton, and that Whitton had at first told the em-
ployees who had spoken to Matthews that they should not
have done so and that they might be docked an hour’s pay
for that, but subsequently Whitton had said that they would
not lose any pay. Matthews stated that Prashaw also told him
that on the following Thursday, James Bruno had arranged
to meet with these employees at the Gouverneur facility.
Prashaw’s testimony regarding this was similar to Matthews’
and generally similar to Guiles’ except for adding the details
that Bruno had made the decision to dock the employees an
hour’s pay and then had reversed the decision that day, this
being conveyed to the employees through Whitton, and that
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Matthews testified that at a meeting held in Bryan Rose’s home
on January 26, 1991, he obtained signed authorization cards from
employees John Crumb, Ralph Shatraw, two employees named Niles
and Stratton, and another employee whose name he could not re-
member. While Vern Arno attended this meeting, he did not sign a
card. Also, at a union meeting with employees held a few days later
at the VFW hall in Potsdam, additional signed cards were gotten but
Matthews could only remember Todd Hayes’ name.
7 Guiles testified that although he and Law had complained to
Whitton previously about having to perform part of Prashaw’s work,
his failure to complete his route, and his taking time during working
hours for personal matters, and Whitton had said he would write
Prashaw up for these infractions, Whitton never did.
8 Bruno testified that laying off Prashaw would save the Respond-
ent about $14,000–$15,000 annually in salary and that the actual
savings amounted to $30,000–$40,000 if the use of a truck by
Prashaw on his route were factored in.
9 Bruno testified that no employees had suggested prior to January
24, 1991, that Prashaw’s employment could be dispensed with by
consolidating his route nor had he heard that fellow employees
themselves were complaining about Prashaw.
Bruno had agreed to meet with these employees soon there-
after.
However, in this regard, Bruno testified that Whitton had
taken it upon himself to tell these employees that they might
be docked for worktime used in discussion with the union
representative and that Bruno, upon learning of this, had in-
structed Whitton to advise the employees that no such action
would ensue. Bruno also testified that Guiles, Law, and
Prashaw had, through Whitton and prior thereto, ‘‘several
weeks ago,’’ requested a meeting with Bruno but that he had
been unable to schedule such a meeting until Thursday, Janu-
ary 24, 1991. Guiles acknowledged in his testimony that
these employees had indeed requested, through Whitton, to
meet with Bruno about 3 weeks prior to its scheduling.
On January 21, 1991, Matthews and Carter met with
Guiles, Law, and Prashaw at Law’s home and it was decided
to notify the Respondent by letter that these three employees
had signed union authorization cards and had been des-
ignated officially as union ‘‘committee people.’’ The follow-
ing morning, January 22, 1991, such a letter was hand deliv-
ered to Bruno by Matthews and Carter, with Bruno’s only
response being that he did not believe that the Union rep-
resented a majority of the Respondent’s employees.
On January 23, 1991, Matthews obtained signed authoriza-
tion cards from employees Mark Rood and Richard Walrath.
By letter dated January 24, 1991, the Union notified the Re-
spondent that employee Bryan Rose had signed an authoriza-
tion card and had also been designated officially as a union
‘‘committeeman.’’ By separate letter to the Respondent also
dated January 24, 1991, the Union advised the Respondent
that it represented a majority of the Respondent’s employees
in an appropriate unit and ‘‘demanded recognition based
upon verification of the cards by a mutually agreed upon
neutral third party.’’ The Respondent’s response to the
Union’s request was contained in an undated letter to the
Union asserting its belief that the Union did not represent a
majority of the Respondent’s employees and that the Board’s
elective process would be the only way that the Respondent
would recognize the Union as its employees’ bargaining rep-
resentative should the Union win such an election. By letter
dated February 1, 1991, the Union indicated to the Respond-
ent its intention to file a petition with the Board seeking such
an election.
Matthews testified that there were approximately 60 em-
ployees in the unit appropriate for collective bargaining and
that the Union had obtained 31 signed authorization cards
from among these employees. However, Matthews admitted
that some cards were signed after January 24, 1991, the date
of the Union’s letter to the Respondent claiming majority
representation and demanding recognition on this basis, but
explained that at the time this letter was sent the Union was
unaware of the actual number of employees in the unit, spe-
cifically the number of employees at CBI Steel, Inc. and at
the Respondent’s Parishville facility. Be that as it may, Mat-
thews also agreed that based upon the true number of em-
ployees in the unit, the Union would not have possessed
signed authorization cards from a majority of these employ-
ees on January 24, 1991.6
The January 24, 1991 Meeting
On January 24, 1991, Bruno met with employees Guiles
and Law. Although Prashaw was also supposed to attend this
meeting, he did not do so. Guiles and Law raised the issue
of raises and more work hours to increase their salaries, and
Bruno explained that it was the Respondent’s policy to re-
view new employees after 6 months and other employees in
April of each year, and to grant raises based on these per-
formance evaluations. When Bruno learned that neither
Guiles nor Law had received reviews even though they had
been employed by the Respondent for approximately 11 and
7 months, respectively, he said that he would look into this.
That same day Bruno granted Guiles and Law raises of 50
cents an hour after discussing their work performances with
their supervisor, Whitton.
Moreover, Guiles testified that since Prashaw wasn’t
present at this meeting, he and Law complained about having
to perform part of Prashaw’s work, completing his route
pickups, etc. Bruno testified that he had previously received
‘‘sporadic’’ complaints about Prashaw’s work performance
from Whitton, about once monthly, although these were
never documented by the Respondent, and since Guiles and
Law had complained about Prashaw,7 and acknowledged that
they could handle Prashaw’s route between them since they
were already performing part of his work anyway, Bruno de-
cided to divide Prashaw’s route between Guiles and Law and
lay off Prashaw, this giving them extra hours of work as they
had requested and accomplishing a substantial monetary sav-
ings for the Respondent.8 According to the testimony of
Bruno and Guiles, as it turned out consolidating Prashaw’s
route only added several hours weekly to Guiles’ and Law’s
worktime, with Guiles characterizing this as having ‘‘very
little’’ effect on their hours of work or overtime hours.
Bruno maintained that the decision to let Prashaw go was
based on the complaints about Prashaw made by Guiles and
Law,9 the Respondent’s desire to give these employees addi-
tional hours of work as they had requested, and because this
action would result in significant economic benefits to the
Respondent. Bruno added that as of January 24, 1991, he
was unaware of Guiles’ support of the Union or what his
feelings were in this connection.
Later that day, January 24, 1991, Bruno also met with em-
ployee John Carlin, who had also requested a meeting with
Bruno. Carlin also asked for a wage increase and additional
1105WASTE STREAM MANAGEMENT
work hours but was denied a raise since he had received sal-
ary increases previously and, according to Bruno, under the
Respondent’s wage policy Carlin was not due for a perform-
ance review until April 1991 as a basis for any salary in-
crease. It would appear from Carlin’s testimony that he did
receive a small increase in his work hours after the Respond-
ent laid Prashaw off, although the bulk of Prashaw’s route
was divided up between Guiles and Law, since, as Bruno as-
serted, he had learned on January 24, 1991, that they worked
less than 50 hours weekly while the other drivers worked
more than that.
The Termination of Eugene Prashaw
Prashaw commenced his employment with the Respondent
on April 1, 1987, and worked as a truckdriver at the Re-
spondent’s Gouverneur facility. On Monday, January 28,
1991, Prashaw appeared at this facility to tell his supervisor,
Whitton, that he would not work that day because two of his
children were ill. Whitton not being present at the time,
Prashaw left a note on Whitton’s office door to that effect
and left. That afternoon Prashaw called Whitton and was ad-
vised to bring in his keys, uniforms, and other equipment be-
longing to the Respondent, and that Whitton had a letter for
him from Bruno ‘‘explaining everything.’’ After Prashaw ar-
rived at the facility and returned the equipment, Whitton
gave him Bruno’s letter dated January 28, 1991, which stated
that the Respondent had restructured its truck route system
and was eliminating Prashaw’s route which would be ab-
sorbed by other drivers, and that Saturday, January 26, 1991,
was Prashaw’s last day of employment. No other reason for
his termination was set forth in this letter. Prashaw testified
that of the four truckdrivers at the Gouverneur facility,
Guiles, Law, Carlin, and himself, he was the most senior,
had never received any warnings about his work perform-
ance, and had not been informed previously that his truck
route was to be consolidated and his employment terminated.
Bruno testified that while he had received complaints
about Prashaw’s work over the years, Prashaw ‘‘probably’’
had never received any written warning notices regarding
these complaints. However, Colleen Wallace, sister of two of
the Respondent’s owners, Michael and ‘‘Skip’’ (Jr.) Bisnett,
and employed by the Respondent to handle personnel and ad-
ministrative matters, such as health insurance and govern-
mentally required reports, etc., testified that there were two
written reprimands in Prashaw’s personnel folder. These
‘‘Disciplinary Action Forms’’ are dated ‘‘6/28/90’’ and
‘‘8/7/90,’’ are signed by Larry Whitton as Prashaw’s super-
visor, but are not signed by Prashaw. These forms indicate
that no disciplinary action was taken or recommended at the
time, and appear to be more like incident reports than any-
thing else. Moreover, Wallace did not know if Prashaw was
ever shown these forms or was aware of them. Additionally,
while the Respondent’s attorney directly asserted that it was
the Respondent’s contention that these forms played a part
in its decision to terminate Prashaw, Bruno, when asked why
Prashaw’s poor performance and employee complaints
against him were not mentioned in his termination letter to
Prashaw, responded, ‘‘I just laid him off. I had no reason.
It wasn’t a disciplinary action.’’
Prashaw testified that subsequently he was informed by
Matthews that the Respondent was looking for a ‘‘Roll-off
Driver’’ and by letter dated March 21, 1991, from Prashaw
to Bruno, Prashaw requested consideration for the job.
Prashaw stated that he also called Terry Morehouse the Re-
spondent’s dispatcher, and Morehouse told Prashaw that he
would submit Prashaw’s name to Bruno for the job. More-
over, the Respondent also advertised for a truckdriver in the
Watertown Daily Times on April 16, 1991. Prashaw stated
that while he was qualified for both positions the Respondent
never contacted him nor offered him either of these jobs.
Additionally, Bryan Rose testified that while on occasion
supervisors would substitute for a driver out ill or on vaca-
tion and drive a truck, when the Respondent was ‘‘short-
handed,’’ after Prashaw was laid off, this occurred more fre-
quently and for longer periods of time. According to Rose,
Whitton drove Prashaw’s ‘‘packer truck’’ on three or four
occasions for 3 or 4 days at a time, and Whitton had told
Rose that E. J. Flanders, another supervisor, was driving a
recycling truck in Canton, New York, ‘‘on a daily basis for
one or two months in a row.’’ Moreover, since advertising
for a truckdriver in April 1991, the Respondent hired the fol-
lowing truckdrivers: Peter Wimmer hired May 6, 1991, as a
rolloff driver in Potsdam; Brent Vedard hired April 27, 1991,
as a rolloff driver and left the Respondent’s employ in Sep-
tember 1991; Philip Charleston hired May 1, 1991, as a
truckdriver and worked only 1 week; and Gatel hired as a
truckdriver also on May 1, 1991, and who worked 2 weeks
only. Wimmer was still employed by the Respondent as of
the date of the hearing. The Respondent also hired Danny
White as a rolloff driver on March 14, 1991, but as Bruno
explained, White was hired for the Gouverneur facility be-
cause the Respondent had purchased a new route which
White was assigned to handle. White is still employed by the
Respondent.
The February 4, 1991 Meeting
By posted notice to its employees that this was an ‘‘ex-
tremely important meeting as it affects your future here and
the future of our company,’’ the Respondent held a ‘‘special
meeting’’ with employees from all its facilities on Monday,
February 4, 1991, in its Potsdam facility lunchroom. The no-
tice also informed employees that they would be paid for at-
tending the meeting with such attendance being required
‘‘just like regularly scheduled work.’’ The meeting was con-
ducted by Bruno and ‘‘Skip’’ Bisnett Jr. who distributed an
‘‘Evaluation of Management questionnaire’’ to the employ-
ees informing them that the Respondent had problems and
that by employees answering the questionnaires, the Re-
spondent ‘‘could get an idea on how they stood in their rela-
tions with their employees’’ and the Respondent ‘‘could find
out which areas they had to look more into.’’ Although most
of the questions contained therein were work-related, ques-
tion 43 stated: ‘‘the employees of this facility do not feel that
they need a union to speak and act for them.’’ The question-
naires were marked ‘‘confidential’’ and specifically requested
that employees not sign their names thereon. However, each
questionnaire was group color coded and had a number at the
top, and employee Bryan Rose testified that he believed that
this number corresponded to the department an employee
worked in since the number on his questionnaire was ‘‘3’’
and his department number on his paycheck stub as truck-
driver was ‘‘003.’’
These questionnaires were prepared by the Respondent’s
labor consultant, Edwin Ricker, who also sent the Respond-
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 By letter dated January 11, 1991, to all employees Bruno men-
tioned the Respondent’s new drug policy, referred to employee sug-
gestions that the Respondent examine all its personnel policies, ac-
knowledged that the Respondent had ‘‘not done much in employee
relations until the drug problem came up,’’ and indicated its inten-
tions to develop a ‘‘total’’ employee relations program in 1991,
without mentioning anything about the retention of Ricker as its
labor consultant to work in these areas.
11 While Rose testified as to Ricker’s statements about the Team-
sters Union and organized crime, Rose had made no mention of this
in an affidavit given previously to a Board agent.
ent written instructions as to how to proceed therewith.
Ricker testified that he had been retained by the Respondent
on January 2, 3, or 4, 1991, to assist the Respondent in the
area of ‘‘employee relations,’’ preparation of a new em-
ployee handbook, addressing problems of lack of commu-
nication between management and employees, implementa-
tion of a new drug abuse program which had resulted in em-
ployee concern, low employee morale, and ‘‘a lot of em-
ployee unrest.’’10 Ricker stated that Bruno had hired him
since Bruno was familiar with work he had previously per-
formed for Super Duper in Potsdam involving a union orga-
nizational drive. Ricker recommended that the Respondent
institute an employee questionnaire to determine how they
felt about ‘‘different things,’’ then prepared the surveys and
instructions by department and sent them to Bruno. Although
Ricker’s instructions included the recommendation for man-
agement to advise employees that they had the option not to
complete the questionnaire and if an employee chose not to
do so, there would be no reprisals taken against that em-
ployee, there is no evidence in the record that either Bruno
or Bisnett did so at the February 4, 1991 meeting.
Upon completion, the questionnaires were collected by an
employee that day selected by each employee group or de-
partment to act in this capacity and mailed directly to Ricker.
Ricker testified that he received the surveys back the second
or third week in February 1991 and in early March 1991
compiled the results thereof. Ricker stated that prior to Feb-
ruary 15, 1991, Bruno called him to say that the Respondent
had received the Union’s demand for recognition and a no-
tice from the Board that the Union had filed a petition for
an election. Ricker instructed Bruno to respond to the
Union’s letter demanding recognition with a letter indicating
the Respondent’s belief that the Union did not represent a
majority of the Respondent’s employees and to advise the
employees as to what was transpiring. Ricker related that
Bruno subsequently called him and told him that due to em-
ployee comments about what was happening and their re-
quest for a meeting to find out what was going on, the Re-
spondent wanted to hold a meeting with employees and
would Ricker conduct such a meeting to which Ricker
agreed.
Interestingly, Ricker also testified that the Respondent de-
termined to hold a meeting with its employees because ‘‘the
N.L.R.B. recommended it.’’ However, the Respondent’s ref-
erence to the Regional Director’s letter dated February 4,
1991, advising the Respondent that a petition for certification
of representative had been filed by the Union as support of
this contention is misplaced. The letter merely requests that
the Respondent post the Board’s ‘‘Notice to Employees’’
which sets forth the employees rights, and the Employer’s
and Union’s obligations regarding proper conduct during the
critical period before the election and nowhere therein does
the letter recommend the holding of an employee meeting for
any purpose.
The February l5, 1991 Meeting
By bulletin board notice dated February l2, 1991, the Re-
spondent scheduled an ‘‘Important Employee Meeting’’ to be
held at Uncle Max’s restaurant in Potsdam, New York, on
Friday, February 15, 1991. All employees were expected to
attend and would be paid for such attendance at the meeting.
The purpose of the meeting as set forth in the notice was to
bring employees ‘‘up-to-date as to what was happening, what
is going on, and what will likely go on’’ regarding the Re-
spondent and the Union. Attending this meeting were Bruno,
Michael Bisnett, and Howard Cornwell, another owner, for
management, all supervisors, and all the Respondent’s em-
ployees. According to the testimony of the General Counsel’s
witnesses, Mark Rood, Bryan Rose, Richard Walrath, Vern
Arno, and Verde Snyder, and the Respondent’s witness,
Edwin Ricker, the employees were told by Bruno that the
Respondent had the results of the questionnaires and realized
that there were problems and had hired Ricker, a labor con-
sultant, to straighten things out between the employees and
management. After introducing Ricker to the gathered em-
ployees, the meeting was turned over to Ricker who ad-
dressed the employees.
Ricker explained the Board’s election procedure and that
the Union had wanted to be recognized as the employees’
bargaining representative without an election but the Re-
spondent felt that the employees should have the right to
vote. Ricker told the employees that the Teamsters Union
was involved with organized crime, the Mafia, that unions
skim money from employees’ retirement programs, and were
usually really not interested in the employees they rep-
resented.11 Ricker also spoke about programs that the Re-
spondent would like to initiate but could not as long as the
Union was seeking to represent them, such as: an employee
relations program including a grievance procedure (internal
dispute resolution committee to resolve work-related dis-
putes) and a ‘‘PKP’’ program (pay for knowledge and per-
formance). Ricker advised the employes that he had been
hired by the Respondent to work things out between employ-
ees and management. In this connection Ricker told the em-
ployees that he was establishing a ‘‘hot-line’’ program in
which forms would be available to employees to record
thereon their questions regarding employee problems and any
concerns about what the Union or the Respondent were say-
ing during the organizational campaign, to which the Re-
spondent would provide answers. Ricker acknowledged that
he did not instruct the employees to refrain from including
grievances or complaints they may have in the ‘‘hot-line.’’
Both Ricker and Bruno testified that Ricker made no prom-
ises to the employees at this meeting. However, Mark Rood
testified that although Ricker made no promises, he did say
that it was possible that various programs he mentioned
might be instituted if the Union wasn’t in.
After Ricker opened the meeting to employees’ questions,
an employee asked, ‘‘[W]hat could be done in order to stop
the union from coming in.’’ Ricker explained that the em-
ployees could initiate a petition against union representation
and if enough employees signed such a petition and it were
presented to the Union, the Union might possibly withdraw
1107WASTE STREAM MANAGEMENT
12 The Respondent submitted into evidence three documents
assertedly from Snyder’s personnel file, a report of work perform-
ance alleging three instances of faulty repair work by Snyder which
is undated and unsigned by anyone, a multipart form dated 3–7–91
signed by Dalton alleging another instance of poor repair work by
Snyder, and a ‘‘Record of harassment of Frank Snyder by Verde
Snyder’’ listing two alleged instances of derogatory verbal harass-
ment, one because Frank Snyder signed the petition asking the
Union to withdraw from the election, the other threatening to do
harm to Frank Snyder’s car, with the dates these incidents occurred.
This latter document is undated, signed by Dalton and Frank Snyder,
not by Verde Snyder. Bruno testified that these documents were pre-
Continued
from the election. Mark Rood testified that Ricker also told
the employees that, ‘‘[I]f we didn’t vote the union in and if
we weren’t pleased with what happened, that we could get
them back in six months,’’ and that, ‘‘[T]here were other
ways of making the work environment better without going
union.’’ At the end of the meeting Ricker apprised the em-
ployees that the Respondent would hold another employee
meeting just before the election to answer ‘‘last minute ques-
tions’’ and to ‘‘share with them the results of the survey.’’
The Layoff of Verde Snyder
Verde Snyder started working for the Respondent in Sep-
tember 1988 as a rolloff driver but then was transferred to
a mechanics position in September or October 1989. Snyder
signed a union authorization card on January 28, 1991, spoke
in favor of the Union to fellow employees at work, and at-
tended two union meetings. Snyder testified that on numer-
ous occasions during late January and early February 1991,
he discussed the Union with his Supervisor Robert Dalton,
telling Dalton that he thought the Union would be good for
the employees and that Dalton agreed that the Union might
also be good for the Respondent. Snyder also told Dalton
that he felt the mechanics would all support the Union. Dal-
ton testified that he knew that Snyder favored the Union be-
cause it was common knowledge at the facility although Sny-
der had never told him so directly.
Snyder testified that towards the end of January and the
first part of February 1991, Dalton started assigning Snyder
to perform all of the outside yard work on cranes and load-
ers, contrary to the past practice of having the mechanics
share the outside work, although Snyder also worked indoors
at times during this period. Because of the weather condi-
tions this was more arduous type work than working inside
the building. Snyder stated that also around this time Dalton
stopped acting friendly towards him and when Snyder asked
Dalton why this was happening, Dalton replied that the Re-
spondent had told him not to be friendly with the employees.
Moreover, Snyder testified that about 1 week before his
layoff by the Respondent on February 22, 1991, he asked
Dalton why things had changed in the shop and why he was
being assigned all the outside work rather than it being
shared by the other mechanics as in the past, and also told
Dalton that he had signed a union card and he didn’t care
who knew about it. According to Snyder, Dalton answered
that ‘‘the union thing has a lot to do with what was going
on at the time.’’ While Dalton denied that Snyder had com-
plained to him about the outside work assignments and that
he had assigned Snyder anymore outside work than the other
mechanics, he did admit that Snyder had asked him why
their usually friendly relationship had changed and was it due
to Snyder being in favor of the Union. Dalton related that
his response to Snyder was, ‘‘That there’s a lot going on
about the union, and it was best for me not to say anything
one way or the other.’’
On February 25, 1991, while Snyder was preparing to start
his workday Bruno came over and handed him a letter dated
February 28, 1991, which stated that the Respondent had re-
evaluated the shop work and that because of the declining
workload his mechanic’s position was being eliminated, and
that the previous Friday, February 22, 1991, was Snyder’s
last day of work. Snyder testified that when handing him the
letter Bruno said, ‘‘This is how the company feels.’’ Snyder
stated that he asked Bruno if he had been laid off or fired
and Bruno only answered that the Respondent would not
contest Snyder’s application for unemployment insurance
benefits. Snyder also asked Bruno if after working for the
Respondent for 2-1/2 years, two of the other mechanics, one
with 3 months’ experience (Todd Hayes), and the other with
6 months’ experience (Frank Snyder), ‘‘are more valuable
than I am’’ and Bruno responded, ‘‘Maybe.’’ Snyder stated
that Dalton, who was also present, told Snyder that the Re-
spondent was planning to send out ‘‘a lot more work’’ to an
outside vendor, although there is no evidence in the record
that this was ever done. Snyder added that he had never re-
ceived any criticism of his work performance while em-
ployed by the Respondent and that prior to his layoff he had
been working 55–60 hours weekly, ‘‘it was very busy,’’ al-
though in and around this time another of the mechanics,
William Ramsey, was out sick.
Snyder also testified that at the time of his layoff, Feb-
ruary 22, 1991, the Respondent employed the following me-
chanics: Frank Snyder, Todd Hayes, William Ramsey, Verde
Snyder, and Supervisor Robert Dalton. According to Snyder,
Dalton and Frank Snyder had had prior mechanical training
while Hayes and Ramsey had none. Most of Verde Snyder’s
training was obtained during his employment with the Re-
spondent. In June 1991 the Respondent hired Todd Hayes’
brother, John Hayes, as a mechanic, although Hayes had no
formal training as a mechanic. John Hayes was terminated 3
months later. However, Dalton testified that Todd Hayes was
capable of performing major repair and motor overhaul work
and that William Ramsey was mainly used as a ‘‘tire man,’’
maintaining the condition of tires on the Respondent’s trucks.
Bruno testified that on February 13, 1991, he, Howard
Cornwell, and Robert Dalton met to discuss the workload of
the repair and maintenance shop because of the poor eco-
nomic conditions in early 1991. Because of the decrease in
the workload it was decided to abolish one mechanic’s posi-
tion and because Verde Snyder was ‘‘the subject of consist-
ent co-worker complaint, failure to work, poor attitude,
smokes and drinks coffee all during shift, resentful of super-
vision,’’ and the least qualified of the mechanics, his position
was selected and he was laid off. Bruno stated that another
reason for Snyder’s layoff was his harassment of fellow em-
ployee Frank Snyder (no relation), witnessed by employee
Todd Hayes. While Bruno testified that Snyder was laid off
because his work was poor and he had made highly insulting
and vulgar remarks to Frank Snyder, his letter to Snyder, no-
tifying him of his layoff gives as the sole reason for such
action the ‘‘reassessment of the workload in our maintenance
shop’’ eliminating Snyder’s position.12 Moreover, when
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pared after Verde Snyder was laid off, he did not know who pre-
pared the unsigned document, and was unaware if Verde Snyder
even knew of the existence of these reports in his personnel folder.
13 The General Counsel assets that Henry’s reply leaves the ‘‘im-
plication that some Respondent official was directing him in his so-
licitation activities.’’ However, another ‘‘implication’’ which arises
could be that since Henry implemented the petition partly because
of Ricker’s mention of it without Ricker elaborating on the mechan-
ics thereof, that Henry was referring to Ricker’s failure to do so at
the February 15, 1991 meeting.
14 Henry’s explanation for this apparent inconsistency was that he
was unaware of these statements in his affidavit because it was writ-
ten out by the Board agent whose handwriting he could not read and
who had failed to read its contents to him before he signed the affi-
davit. However, Henry admitted that he signed the affidavit ac-
knowledging that he had read and understood its contents, certified
to its truth and correctness by signing it, and had initialed each page
of the affidavit at its bottom line. Moreover, Henry’s denial that the
Board agent had not asked him questions to elicit the above informa-
tion seems unlikely and unbelievable, although he became less than
sure about this when questioned by the Respondent’s attorney. Henry
now seemed unsure about when he actually started circulating the
petition other than to maintain that he started this prior to his assist-
ing his foreman, Steven Hall, in the performance of Hall’s duties
which occurred in mid-March 1991. Henry’s status as a supervisor
is in issue.
Bruno advised Snyder of his layoff, he did not mention any
of the problems the Respondent purportedly had with his
work performance or the alleged harassment of Frank Snyder
as the cause of this action, nor did Bruno ask for Snyder’s
explanation to any of this.
Robert Dalton testified that in early or mid-January 1991,
Bruno and Cornwell approached him with a plan to restruc-
ture the repair and maintenance department ‘‘because there
was less work going on in the company.’’ Dalton rec-
ommended that the Respondent reduce labor costs because
the workload in this department was less in the winter time,
whereupon Bruno accepted this suggestion and also Dalton’s
recommendation to lay off Verde Snyder because Snyder’s
type of service work slowed during the winter months, he
was the least qualified of the mechanics, and he sometimes
failed to complete his work or to properly perform it. How-
ever, Dalton also testified that work in the maintenance de-
partment usually picks up starting in April or May of the
year, that prior to February 1991 no mechanic had ever been
laid off by the Respondent although he attributed this fact to
the Respondent’s business expansion, and that during the
months of February and March 1991 the mechanics worked
significant amounts of overtime, from 55–60 hours weekly,
although the actual workload decreased after Snyder was laid
off. Verde Snyder was rehired on July 15, 1991, and was
still working for the Respondent at the time of the hearing.
The Petition
A petition in effect requesting the Union to withdraw from
the election was subsequently circulated for signatures
among the Respondent’s employees by William Henry, em-
ployed by the Respondent at its CBI Steel, Inc. facility.
Henry testified that he prepared this petition because Ricker
had mentioned it at the February 15, 1991 meeting and based
on his own discussions with fellow employees about union
representation. Henry related that he began asking employees
to sign the petition about ‘‘two to three weeks’’ after the
February l5 meeting, prior to the middle of March 1991, and
of employees at ‘‘CBI Steel, Parishville, recycling plant, and
Waste Stream Management,’’ during nonworking hours.
Henry stated that management was unaware of what he was
doing and that he sent the signed petition to the Union di-
rectly on or about April 1, 1991. When asked why he did
not send the petition to the Union by certified mail to record
its receipt he replied, ‘‘[N]obody told me to do it that
way.’’13 However, in an affidavit given to a Board agent
during the investigative stage of these proceedings, and dated
May 30, 1991, Henry stated that he had prepared and cir-
culated this petition ‘‘around the last week in March, 1991,’’
and had obtained about 35 employee signatures from ‘‘all
employees in the shop (obviously meaning CBI Steel, Inc.
and not employees of WSM (Waste Stream Management). I
did go to Parishville with it.’’14
Mark Rood, also employed by the Respondent at CBI
Steel, testified that during the week following the February
15, 1991 meeting at Uncle Max’s Restaurant, he became
aware that such a petition was being circulated by Henry at
this facility. Rood stated that he was then approached by
Henry to sign the petition but refused to do so. From Rood’s
testimony about what occurred the very next day, February
26, 1991, it appears that Rood’s refusal to sign the petition
occurred on Monday, February 25, 1991. Rood continued
that after attending a union meeting at which the Union indi-
cated that it would not withdraw from the election even if
it received an employee petition requesting such action, Rood
signed the petition. Rood added that he also signed the peti-
tion since ‘‘it would give the company the impression that
I was not for the Union’’ since he believed that the Respond-
ent wanted this and he was seeking management’s favor’’ in
light of prior terminations.’’
Verde Snyder testified that while working at ‘‘the test
workbench he observed Frank Snyder signing the petition
whereupon Henry then looked at him and said, ‘‘Ho, Ho. I
don’t suppose you want to sign this,’’ and Verde Snyder re-
sponded, ‘‘No, I don’t.’’ Snyder stated that this occurred dur-
ing working hours but after Dalton had left. Snyder related
that he also saw Henry with what appeared to be a ‘‘com-
puter printout that he had gotten from the company, with all
the employees’ names,’’ and that, ‘‘I noticed he was marking
as people were signing them here.’’
Harold Bush, employed by the Respondent at CBI Steel,
testified that in late February or early March 1991, Henry
asked him to sign the petition against union representation.
Bush told Henry that he wanted to hear the Union’s side and
refused to sign it. Subsequently, after attending a union
meeting, Bush signed the petition which was lying on
Henry’s worktable. Bush stated that about 5 minutes after he
had signed the petition Michael Bisnett came over, put his
arm around Bush, thanked him for signing the petition, and
said he appreciated it. Moreover, Bush observed another em-
ployee sign the petition after which he saw Henry and Mi-
chael Bisnett pointing at that employee with the petition ei-
ther in Henry’s hand or back on the table. Bush continued
that when Henry had asked him to sign the petition Henry
had said that, ‘‘[N]one of the bosses would know who signed
it. . . . No one will know about this.’’ Later when Bush re-
minded Henry that Henry had said that no one was going to
know about the petition, Henry responded, ‘‘What do you
1109WASTE STREAM MANAGEMENT
care? You signed it, didn’t you?’’ Bush added that he be-
came aware of the Union’s organizing campaign in February
1991, attended only the one union meeting, and did not sign
a union authorization card.
Michael Bisnett admitted that he was aware that Henry
was circulating an antiunion petition but he never encouraged
Henry’s action in this regard or played a part in it. Bisnett
also admitted thanking Bush for signing the petition since he
had observed the petition lying on Henry’s desk and Bush’s
signature thereon. However, Bisnett denied putting his arm
around Bush or that he and Henry had reviewed the list of
signatures regarding the finger-pointing incident.
Bush also related that towards the end of March 1991, on
several occasions that day, Michael Bisnett told Bush, ‘‘Yoo
Hoo, Harold, I’m watching you.’’ However, Bush stated that
he did not know what this meant or to what Bisnett was re-
ferring to. Bisnett denied making any such statements to
Bush.
Richard Walrath testified that 1 week before his termi-
nation, he viewed the petition and was asked by an employee
from CBI Steel to sign it but he would not do so. Walrath
stated that he saw this employee place a mark by his name
after he refused to sign the petition. Walrath added that his
supervisor, Terry Morehouse, was nearby in the dispatcher’s
office when this occurred.
The Termination of Mark Rood
Mark Rood began his employment with the Respondent in
September 1989 as a truckdriver at its CBI Steel facility.
Rood testified that on February 26, 1991, he and Fabrication
Engineer, Edward Potts, were discussing truck weight limits
with regard to overweight loads and they decided to bring
Michael Bisnett into the discussion. Rood related that while
checking a New York State Department of Transportation
weight specification listing, Bisnett, in response to a ques-
tion, told Rood, ‘‘Why don’t you just take this sheet to your
rep and he’ll straighten it right out for you.’’ Rood stated
that he understood this to be a reference to Union Represent-
ative Matthews, since Matthews was the only ‘‘representa-
tive’’ of any sort that Rood had contact with at the time, and
because Rood’s father Gerry Rood, who does business with
the Respondent at CBI Steel, had told Mark about a con-
versation he had had with Michael Bisnett about unions, dur-
ing the week of February 17, 1991, in which Bisnett had
asked his father, ‘‘Why is Mark so hell-bent on getting a
union in here.’’ While Bisnett admitted talking to Gerry
Rood about the Union and asking him, ‘‘What’s Mark think-
ing of?’’, he denied telling Mark Rood to see ‘‘his represent-
ative’’ when Rood had questioned him about truck weight
specifications. Potts who was also present denied hearing
Bisnett make such a statement. Moreover, Bisnett admitted
that he knew that Mark Rood supported the Union.
Rood testified that also on February 26, 1991, shortly after
the above incident with Bisnett, as he was preparing to take
his truck out on his route, Michael Bisnett told him to
‘‘Make sure your pants are clean, because the next guy who
drives the truck might want the seat to be clean.’’ Rood stat-
ed that he considered this a ‘‘serious statement’’ in light of
his prior conversation with Bisnett and what his father had
told him, and the fact that he mostly drove this particular
truck at work. Rood added that also present when this re-
mark was made were Potts, William Henry, Steve Burdict,
and Rood’s supervisor, Steve Hall. While Potts denied hear-
ing Bisnett make such a statement, Bisnett testified that ob-
serving Rood with greasy work pants he had told Rood to
keep the truck clean for other drivers and not to get ‘‘any
excess grease or dirt on the inside of the trucks.’’ Bisnett
maintained that this certainly was not meant as a threat of
any kind related to Rood’s union activities.
On February 27, 1991, after placing a load of steel on his
truck, Rood forgot to lower the truck’s loading boom and,
while backing under the building’s overhead door, he
accidently struck the building damaging the wall and the can-
opy over the door. Rood testified that he immediately re-
ported the mishap to Bisnett and apologized for the accident
and Bisnett told him that while he knew Rood was sorry
about the damage he would have to let Rood know later
what the Respondent intended to do about this. Rood re-
counted that upon his return to CBI Steel later that afternoon
he was told by Potts that while Potts did not know how
Rood felt about the union situation, if Potts were Rood, in
light of the accident which happened that morning, Potts
would act very nonunion since the Respondent was looking
for a reason to get rid of Rood and Rood may have given
them a reason that very morning. Potts admitted that he had
told Rood that his being associated with the Union ‘‘might
not be in his own best interest.’’
On March 1, 1991, while at work, Rood was given a letter
terminating his employment with the Respondent by Chester
Bisnett Jr. and James Bruno. The letter indicated that Rood
had been trained in operating the truck boom and was being
fired because of the accident on February 27, 1991. Rood
told Bisnett and Bruno that he had never received any such
training but notwithstanding this he did sign the termination
letter. Rood stated that he had never received any prior warn-
ing notices although he had been involved in two prior acci-
dents in 1990, one in which he damaged a customer’s hy-
draulic pump at a well site, and another in which he dam-
aged the tailgate of his truck while loading a steel beam.
Rood related that when he reported these prior accidents to
Michael Bisnett, Bisnett told him to be more careful and try
not to have any more accidents. Rood received no discipline
for these incidents.
Michael Bisnett testified that he was aware that Rood was
a union supporter before he was terminated and that Rood
was a good employee. In what appeared to me to be evasive
testimony on his part Bisnett testified that Rood had been in-
volved in some accidents prior to the incident on February
27, 1991, and that he ‘‘probably’’ told Rood ‘‘not to do it
again.’’ However, in an affidavit given to a Board agent,
Bisnett had stated that Rood had no accidents of any con-
sequence in the past and did not have to be warned about
safety procedures. According to Bisnett, Rood was termi-
nated because after raising his truck boom, he failed to lower
it before moving and smashed the boom into the front top
of the building.
Chester Bisnett Jr. also testified that Rood was a good em-
ployee but ‘‘argumentative.’’ Bisnett Jr. stated that he and
Bruno had made the decision to terminate Rood solely be-
cause of his accident with the boom, and although there was
extensive damage to the wall struck by the boom, this was
not an important consideration regarding Rood’s termination.
According to Bisnett Jr. and the testimony of Colleen Wal-
lace, although Wallace played no part in the decision to dis-
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 A letter from the insurance carrier’s representative, James P.
Sloan, reporting his findings on his visit to the Respondent’s facili-
ties dated November 29, 1990, neither states that there is a defi-
ciency in the Respondent’s then accident reporting procedure, in fact
commending the Respondent on its use of ITT Hartford Accident In-
vestigation Forms, nor mentioning anything about a postaccident dis-
cipline policy.
charge Rood, the deciding factor in Rood’s termination was
the seriousness of the accident in that it could have resulted
in loss of life. Rood’s truck route even on the Respondent’s
premises took him under overhead high tension wires and
should the raised boom strike such electric wires Rood could
have been electrocuted. Bisnett Jr. added that he was un-
aware at the time that Rood had been involved in any prior
accidents.
Rood was rehired by the Respondent on July 15 or 16,
1991, and was still in the Respondent’s employ at the time
of the hearing.
The Termination of Richard Walrath
Richard Walrath commenced his employment with the Re-
spondent on June 29 or July 2, 1990, as a rolloff driver at
the Respondent’s Potsdam facility. Walrath signed a union
authorization card on January 23, 1991, attended one union
meeting prior to his discharge, and spoke favorably about the
Union to his fellow employees.
On February 19, 1991, while rotating a compactor unit at
the Newton Falls Paper Mill, Walrath creased the top of the
container. When Walrath returned to the Potsdam facility, he
reported the accident to Terry Morehouse his supervisor, who
told him not to say anything about it. Morehouse testified
that Walrath had told him that he had put a ‘‘small dent’’
in a compactor unit and Morehouse therefore said that
Walrath should not worry about it since ‘‘small dents are
very common.’’ Morehouse testified that thereafter, when
employee Bryan Rose picked up the compactor unit and re-
turned it to Potsdam he showed Morehouse an 18-inch crease
at the top of the unit, the top was crushed. Walrath denied
that he had told Morehouse that there was a ‘‘little crease’’
in the unit.
On February 21, 1991, Walrath was advised by Morehouse
that Chester Bisnett Jr. had viewed the damaged compactor
unit and wanted to speak to Walrath. According to Walrath,
Morehouse told him to tell Bisnett, Jr. that Walrath had tried
to tell Morehouse about this but that Morehouse was too
busy at the time to listen and instead sent Walrath out on
another route run and it was later forgotten. Since Bisnett Jr.
was busy that day, Walrath did not get to see him.
On March l, 1991, Walrath was called to Bisnett Jr.’s of-
fice. Bruno was also present when Walrath got there and he
was handed a letter terminating his employment. Walrath tes-
tified that when he tried to explain about the accident,
Bisnett Jr. refused to listen and referred to two other acci-
dents Walrath had had previously and this last one. Walrath
related that the damaged container was repaired by the Re-
spondent at its CBI Steel facility and that it was not uncom-
mon for drivers to damage such units with dents and creases.
Walrath’s two prior accidents occurring in July and August
1990, both times involved a box falling off the truck and
damaging the truck’s taillight and fender. Walrath stated that
the first time this happened nothing was said to him about
it, but after the second accident he was given a written warn-
ing notice and Bisnett Jr. told him that if he had another ac-
cident, ‘‘Disciplinary actions would be taken’’ against him.
According to the testimony of Chester Bisnett Jr. and Col-
leen Wallace, in the summer of 1990, the Respondent’s in-
surance carrier ITT Hartford Insurance Company, asked
Bisnett Jr. to investigate and report, in detail, accidents
which occurred and the Respondent hired Colleen Wallace as
its regulation compliance coordinator and employee relations
representative to perform some of this work. After a visit by
a representative of the insurance company in November 1990
pointed up the inadequacy of the accident investigation pro-
cedure, Wallace instituted a series of report forms (vehicle
accident reports, incident reports, supervisor’s damage inci-
dent reports, and injury reports) which forms were given to
the Respondent’s supervisors in December 1990. Wallace
then sent a memo to management with the insurance rep-
resentative’s recommendation including a policy on
postaccident discipline.15 This included the use of written
reprimands when a driver is at fault for the accident and
‘‘job termination for frequent accidents.’’ In enunciating the
Respondent’s defense to the allegation that Walrath was ter-
minated solely for cause, counsel for the Respondent stated
that under its policy, implemented in December 1990, prior
to the advent of the Union’s organizing campaign, the Re-
spondent discharged employees after three accidents in which
they were at fault.
The record evidence shows that this policy was not re-
duced to writing and issued to the Respondent’s employees,
although Rood testified that the Respondent’s disciplinary
procedure was ‘‘common knowledge’’ among employees,
brought to their attention by their supervisors ‘‘many times,’’
and consisted in an initial written warning for the first inci-
dent, a second offense would bring ‘‘a write up and a three
day, without pay, time off thing,’’ and the third offense may
result in dismissal. Additionally, the Respondent’s employee
manual, effective since 1988 states:
Page 7—Discipline—
In those rare, extreme cases where a discharge is
necessary, the employee will be given the reasons and
as much warning as possible that such action is pend-
ing.
Page 11—Termination for Cause—
Every attempt will be made to let an employee cor-
rect these problems before the need for dismissal be-
comes the only alternative.
Wallace testified that Walrath was terminated because he
was involved in three accidents due to his own fault and oc-
curring after December 1990. However, after Wallace was
asked if any other employees had three accidents after the
discipline policy was implemented in December 1990, ‘‘dis-
regarding Mark Rood at this point,’’ except Walrath, she re-
sponded ‘‘No.’’ Wallace was then asked if the Respondent’s
policy terminating employees necessarily required three acci-
dents at which time Wallace now answered, ‘‘the issue was
more of the gravity of the situation . . . and who was at
fault.’’ Moreover, the Respondent introduced into evidence a
memorandum to all employees dated March 16, 1990, which
‘‘clarifies’’ the Respondent’s use of written reprimands for
1111WASTE STREAM MANAGEMENT
tardiness, absenteeism, misuse of equipment, failure to follow
work and safety rules, failure to get along with coworkers
and alcohol and drug abuse, any combination of which ‘‘may
be grounds for termination.’’ Vernon Arno signed his memo
on March 20, 1990, and Mark Rood on what appears to be
June 16, 1990.
Bisnett Jr. testified that Walrath had been terminated be-
cause he was involved in four accidents, within a 6- to 8-
month period, the first in September 1990 wherein he dam-
aged the fender and taillight of his truck, the next when he
damaged a 2 by 4 foot wooden support of a scale at a land-
fill site, the next a repeat of the first wherein he caused a
rolloff container box to fall off the truck and damaging the
vehicle which he failed to report allegedly because Bisnett Jr.
had instructed him how to avoid such accidents when he had
the first one, and the denting of the compactor unit described
hereinbefore, which Bisnett Jr. considered quite serious since
Walrath could have caused damage to a customer’s property
with this accident and the Newton Falls account was one of
the Respondent’s major customers.
Various of the witnesses for the parties herein testified as
to accidents in which other employees of the Respondent
were involved. Employee Gene Pharo in 1985, while operat-
ing a crane, ‘‘took the windshield out of a loader’’ and on
March 1, 1991, while operating a truck allowed a loaded
scrap bin to fall off the truck onto a Potsdam street for which
he was ticketed by the police. Pharo received no discipline
for these accidents from the Respondent. Driver Ceylon Fos-
ter while removing a compactor unit at the Kraft Food plant
sometime in February 1991 damaged a building wall, which
cost the Respondent $12,000 to $13,000 to repair. Although
it appears from Bruno’s testimony that Foster was at fault re-
garding this accident, Bisnett Jr. testified that Foster was not
at fault and Foster was not disciplined for this by the Re-
spondent. Walrath testified that from conversations he had
with Foster he believed that Foster was against the Union.
Driver Wade Rivers, who replaced Rood backed his truck
loaded with a steel beam into a wall and dented it. River’s
was suspended for 3 days without pay for this accident.
Additionally, driver Robert Converse dented the side of his
truck backing into a steel warehouse, smashed his trucks
clearance lights and mirror while backing up, dented a fuel
tank while driving a tractor-trailer, almost caused injury to
another driver when he prematurely moved his flatbed truck
while it was being unloaded all in 1990, receiving a 3-day
suspension for the latter incident, and in August or Septem-
ber of that year narrowly missed being struck by a train
while incautiously crossing railroad tracks. Converse was not
disciplined for denting the side of his truck or the fuel tank
because as Bisnett Jr. testified in the case of the fuel tank
he was being directed by another employee when this hap-
pened. Bisnett Jr. stated that after hearing some employees
discussing Converse’s narrow escape from being hit by a
train he asked Converse to explain what happened and Con-
verse said ‘‘that it was not even close although he had failed
to come to a complete stop at the railroad tracks as required
by stop signs located there. After lecturing Converse about
compliance with such signs, he spoke to the other drivers
about obeying traffic signs at railroad crossings. Since Con-
verse had been with the Respondent for a number of years
and he had denied the closeness of the danger, the Respond-
ent imposed no discipline for this incident. However, as re-
gards the August or September incident in 1990, Bisnett Jr
described an accident occurring in about August 1991 where-
in Converse pulled away from a loading dock before a fork-
lift had cleared the back of the truck, almost injuring the
forklift driver who complained to his supervisor about this
and Converse received a 3-day suspension as discipline.
Also driver William Converse, Robert Converse’s son,
raised the hoist on his rolloff truck and damaged an overhang
at the psychiatric center in 1988, and in 1989 allowed a com-
pactor unit to fall off his truck in the middle of an intersec-
tion and converse was not disciplined for either accident.
However, Bisnett Jr. explained that in both these instances,
Converse was being directed by another person during the
first incident and was not the driver in the second but was
instructing a trainee who was the actual driver, and being not
at fault was not disciplined for these accidents. In 1990, driv-
er Ralph Shatraw struck and knocked down overhead signal
lights while transporting a large waste bin unit without re-
ceiving any discipline regarding this. Bisnett Jr. testified that
he had instructed Shatraw to transport the oversized con-
tainer unit not realizing what might happen and he took re-
sponsibility for this accident.
Moreover, driver Fred Wright damaged the rear end of his
truck through abuse on three or four occasions in 1990, for
which he received no discipline. However, Bisnett Jr. indi-
cated that the fault was in the design of the truck’s rear end
and after replacement thereof under warranty, there was no
further trouble with Wright driving the vehicle. Driver Duane
Stratton damaged the hood of his truck which required its re-
placement, this occurring prior to the commencement of the
Union’s organizing campaign. In explaining why Stratton re-
ceived no discipline for this incident, Bisnett Jr. stated that
Stratton was given a new truck to drive, although it appears
that he had driven a similar truck with his prior employer,
and his lack of any other accidents persuaded Bisnett Jr. that
no discipline was warranted. Driver Calvin Rose damaged an
overhang at the Ogdensburg Psychiatric Center with his hoist
in 1988, and in the latter part of that same year, in an acci-
dent which seems to me to be reminiscent of the incident for
which Mark Rood was terminated, Rose, while moving roll-
off containers with his up-raised hoist struck and knocked
down overhead telephone wires attached to the Respondent’s
Ogdensburg facility, ‘‘shorting the electrical wires.’’ No dis-
cipline was imposed in either case because, according to
Bisnett Jr., Bisnett felt that he was at fault for not warning
Rose to be careful in the first incident and not advising Rose
to refrain from driving his truck around with his hoist in the
air. Also driver Frank Snyder lost control of his truck, ran
off the road and dented the fender which required replace-
ment. This occurred in April or May 1991 and Snyder was
not disciplined for this. In 1987, employee Jeff Fuller backed
his loader into the magnet of a crane smashing the radiator
at the Potsdam scarp yard. He received no discipline for this
incident.
Additionally, Bruno testified that from April 1, 1987,
through January 1991, in those instances of accidents involv-
ing equipment damage by employees at fault, no employee
had been terminated because of such accident.
The Termination of Robert Monroe
Robert Monroe commenced his employment with the Re-
spondent as a truckdriver in the fall of 1989. Monroe worked
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with two other drivers, Robert Perry and Michael Miller at
the Respondent’s facility. According to the testimony of
Perry and Miller, at first Monroe was a good driver but then,
about 3 or 4 months into his employment, Monroe began to
miss customers on his pickup route, failing to complete his
assignments and not discharging his duty to keep the garage
clean. Perry and Miller complained to their supervisor, Tim
Abplanalp, about Monroe’s work on several occasions in
1990 and although Abplanalp said he would speak to Mon-
roe about this and also report the complaints to James Bruno,
nothing changed. Sometime in late February 1991, Perry and
Miller again complained to management about Monroe and
suggested that they could handle Monroe’s route between
them.
Bruno testified that in late February 1991 being aware that
they were having problems with Monroe, he met with Perry
and Miller. Miller testified that this occurred on a Sunday in
March 1991, the day before Monroe was terminated on
March 11, 1991. Bruno stated that Perry and Miller ex-
plained how they could accomplish taking over Monroe’s
truck route, and having had a similar experience in pre-
viously reassigning Prashaw’s truck route to Guiles and Law
and terminating Prashaw not too long ago, Bruno decided to
split Monroe’s route between Perry and Miller and to termi-
nate Monroe. By letter dated March 11, 1991, listing his fail-
ure to keep the garage clean, to perform his duties fully and
his unsafe driving habits as the reasons for his termination,
Monroe was fired. The Respondent then split up Monroe’s
route between Perry and Miller. Perry testified that it had
taken Miller and himself sometimes 2 to 3 hours a day, ‘‘a
couple hours a day or more,’’ to complete Monroe’s route
when he failed to do so. Also, Miller testified that although
he didn’t want anyone to lose his job, yet he was aggravated
by Monroe working only 30 hours weekly and being paid for
50 while he and Perry worked 50 hours weekly and were
paid for 50. With the split up between them of Monroe’s
route, Perry and Miller now worked 2 to 3 hours extra per
day plus overtime on occasions.
The April 3, 1991 Meeting
By posted notice to employees on its bulletin board, the
Respondent held a meeting with its employees on April 3,
1991, 2 days before the scheduled Board election on April
5, 1991, at the Knights of Columbus Hall in Potsdam, com-
mencing at 4:30 in the afternoon. Ricker addressed the em-
ployees and, according to his testimony, indicated that the re-
sults of the surveys taken by the Respondent showed em-
ployee concerns in certain areas and that the Respondent
would like to remove these concerns by providing the fol-
lowing: a ‘‘Pay for Knowledge and performance’’ program
(PKP), an ‘‘internal dispute resolution committee’’ program
(IDRC), a new employee handbook (already being worked
on), better communications between the employees and man-
agement, and a job bidding and posting procedure. Ricker
stated that he said that these recommendations would be in-
stituted if the Union lost the election or, if the Union won,
then the Respondent would negotiate with the Union in re-
gard to these issues. Ricker added that except for the em-
ployee handbook, these were all new programs.
Additionally, Ricker spoke about the ‘‘hot line program’’
instituted by the Respondent during the Union’s organizing
campaign, and told employees that they could ask anything,
any items or concerns about what the Union and the Em-
ployer were saying and about the Board’s election procedure
and that these questions would be answered by the Respond-
ent. Ricker acknowledged that he had not told employees to
refrain from including any grievances or complaints they
may have. Ricker related that using charts he also spoke
about the parent Teamsters Union’s strike record of violence,
the projected cost to employees of dues payments, etc., over
the life of a collective-bargaining contract and the union vot-
ing procedure. Ricker admitted that he was unaware as to
whether or not Local 687 was involved with organized crime
(Mafia).
Regarding this meeting, Bryan Rose testified that Ricker
had told employees that it was 2 days before the election and
that, ‘‘He had plans of what things he had come up with to
help the company out, whether the union came in or not.’’
Ricker mentioned better wages, benefits, job reclassification,
better communication, and job orientation. Ricker handed out
copies of the IRDC plan providing for a five-person commit-
tee, two employees chosen by the Respondent, two by the
grievant, and one by random drawing, to recommend
changes in company policy or to hear appeals from dis-
charged employees.
The Termination of Vern Arno
Vern Arno commenced his employment with the Respond-
ent on April 29, 1989, as a rolloff driver at the Respondent’s
Potsdam facility. Arno was laid off at his own request from
December 8, 1990, to February 25, 1991. Arno attended the
meeting with union representatives on January 26, 1991, at
Bryan Rose’s home and two union meetings at the VFW
building in Potsdam, the last one being held on March 24,
1991, wherein 12 to 15 employees attended. Arno testified
that at the March 24 meeting he gave a letter to one of the
union representatives detailing complaints about low wages,
long hours, and the Respondent’s other acts of unfairness to-
wards employees. Arno stated that he asked the union rep-
resentative to read the letter at this meeting but not to dis-
close who wrote it because there was a ‘‘company stoolie’’
at the meeting. Arno related that after the letter was read and
placed on a table for anyone to read, Bill Converse, the em-
ployee whom Arno had referred to as the ‘‘company stool-
ie,’’ said that after reading this letter he was now for the
Union. Arno then stood up and voiced his complaints against
the Respondent about wages and working conditions, and
stated that he did not care if anyone wanted to take his re-
marks back to the Respondent. Prior to this meeting Arno
had not supported the Union, having spoken against union
representation at the February 15, 1991 meeting with em-
ployees called by the Respondent at Uncle Max’s Restaurant.
Thereafter, Arno became active in support of the Union
speaking to employees in its behalf. Arno stated that on one
such occasion, within a week more or less after the March
24, 1991 meeting, while in the lunchroom with four or five
other employees, an employee read aloud a piece of literature
distributed by the Respondent which said that union dues
would be $32 monthly if the Union won the election and the
employee indicated that he would be unable to pay such a
high amount, and Arno told them that this was ‘‘bullshit,’’
and ‘‘scare tactics’’ by the Respondent. Arno also recounted
another incident in late March or early April 1991 wherein
his supervisor, Terry Morehouse, asked him to go out on an-
1113WASTE STREAM MANAGEMENT
16 Morehouse testified that Stickler had told him on the telephone
that the driver (Arno) had been rude to him and then Morehouse had
given the phone to Bruno. Morehouse stated that it took two men
2 hours to clean up the papers, which included travel between the
Respondent’s facility and the University campus.
17 Arno testified that the Union was brought into this conversation
with the farmer because the farmer’s son had heard about the
Union’s attempt to organize the Respondent’s employees and had
asked Arno about this, and Arno had said that the employees wanted
the Union because of long hours and low wages.
other run with his truck after he had returned late in the day,
and Arno replied that he was tired, and that he would vote
for the Union in the election because ‘‘something had to be
done,’’ about working conditions.
Arno testified that on April 8 or 9, 1991, following the
Board election while he was in Morehouse’s office, the Re-
spondent’s president, Chester A. Bisnett Sr. asked Arno what
he thought about the election vote. Arno replied that while
the Respondent won this time, ‘‘If they don’t let us know
what they are going to do about changing things like they
said they were going to do . . . . If the Union wins again,
I’ll vote for it again.’’ Arno stated that he also told Bisnett
Sr. that he was sick and tired of the long hours and low
wages whereupon Bisnett Sr. responded, ‘‘Well, it I was run-
ning this place, I would lock the doors and send everyone
home.’’ Bisnett Sr. then told Arno that, ‘‘he would never
have the union.’’ Bisnett Sr. did not testify at this hearing.
Arno testified that on April 11, 1991, after returning from
‘‘a run,’’ Morehouse assigned him to another one. While
fueling up for this next run, Arno backed into a crane and
after reporting this to Morehouse, also advised Morehouse
that he should not be driving since he was overtired. That
same day while Arno was at the St. Lawrence University site
to replace a compactor unit there, a strong wind blew papers
from the loaded unit around the area. Arno stated that some-
one from the University complained to him about the papers
blowing around and said he would report this to Bisnett Jr.
Arno told him to ‘‘call whoever you want’’ and that Arno
was working as fast as he could to gather up the papers and
had no control over the wind. While Arno was picking up
the papers strewn about, Dave Kennedy and another of the
Respondent’s employees dispatched by Morehouse to help
Arno, arrived to clean up the papers and, according to Arno,
‘‘by that time I had most of everything picked up anyway.’’
Arno continued that upon his return to the Respondent’s
facility Bruno asked him about what had happened and after
Arno explained what had occurred, as above, Bruno told him
that John Stickler, the University’s manager of custodial
services had complained that Arno was rude and arrogant to
him and that he would never tolerate an employee like Arno
working for him.16 Bruno also advised Arno that he had re-
ceived another complaint from a farmer who said that Arno
had spoken to him about the Union and told him that if the
Union got in, some drivers would refuse to unload a delivery
while others would not. When Arno admitted making such
a statement to the farmer,17 Bruno hit the desk and told him
that he ‘‘had no business talking to anyone about the union.’’
Arno stated that he then told Bruno that no one could tell
him not to talk to anyone he works with but Bruno replied,
‘‘No, you have no business talking to anyone about the
Union. You know nothing about our business.’’
Arno related that Bruno then questioned Kennedy about
the extent of the paper blowing loose at the University cam-
pus and Kennedy said that ‘‘there was a little handful.’’
Arno testified that Bruno asked him what was bothering him
and Arno answered that he had told Morehouse about his fa-
tigue that morning and he shouldn’t have been driving that
day, but that this made no difference since the Respondent
didn’t care about him. When Bruno asked Arno if there was
anything else bothering him and Arno responded that he was
sick and tired of long hours and low pay, Bruno told Arno,
‘‘Okay, that does it,’’ and directed Arno to leave, take 3
days off and return the following Monday when Bruno
would let him know if he still had a job with the Respond-
ent. Arno then left the premises.
John Stickler testified that he had observed Arno emptying
papers from the compactor onto the ground which were
being blown around the campus by the wind, and when he
asked Arno what he was doing Arno explained that he had
to do this in order to ‘‘put the boot on the compactor.’’
Stickler inquired of Arno as to who was going to clean the
papers up and Arno said, ‘‘I’m not.’’ After Stickler told
Arno to stop what he was doing and Arno said he didn’t care
about the job, Stickler called the Respondent and told man-
agement that Arno had a ‘‘bad attitude,’’ that papers were
flying all over the campus, and demanded that the Respond-
ent clean the mess up. Stickler added that he asked that Arno
not be sent to the University campus site again.
Arno returned to work on April 15, 1991, and was given
a letter of termination by Bruno which stated as the reason
for his discharge ‘‘poor attitude in your dealings with valued
customers.’’ This letter listed two instances of his poor atti-
tude, one being the St. Lawrence University campus incident
described above and the other, his inconvenience of a ‘‘po-
tential bedding customer by delivering at the wrong time and
dumping the load in a fashion that blocked the customer’s
driveway,’’ and his unpleasantness and discourtesy to the
customer’s wife. Moreover, the letter states that when Bruno
confronted Arno with the St. Lawrence University incident,
Arno stated, ‘‘I don’t care if I work here or not.’’
Arno stated that he explained to Bruno that sometime in
late February or early March 1991, he had two loads of bales
to deliver that day and Morehouse had directed him to make
the delivery to farmer John Barry, second, which he did.
Barry wasn’t present and his wife berated Arno for being late
and arriving after the laborers hired to unload the bales into
the barn had left. Mrs. Barry insisted that Arno unload the
bales into the barn and Arno refused since he was alone.
Mrs. Barry finally agreed to have Arno unload the bales near
the barn door since the bales were free. Subsequently, Arno
was directed to return to farmer Barry and pick up the bales
and deliver them to another person, since Barry had called
Morehouse, become abusive on the phone, and Morehouse
hung up on him, saying that, ‘‘We will never deliver any-
thing to those people again.’’ Arno recounted that Bruno said
that this made no difference and that Arno was fired. When
Arno asked Bruno about a recommendation for another job
Bruno said that he would have to show this letter to the next
employer. When Arno asked about unemployment compensa-
tion Bruno told him that it would be easier to get if he
signed the termination letter, which Arno had at first refused
to sign as being untrue, and Arno then signed it. Arno added
that as he was leaving Bruno, put out his hand and said,
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Interestingly, counsel for the Respondent asked Morehouse if
after this conversation Morehouse had begun to assign more work
to Arno because he was now in favor of the Union, to which More-
house responded that he had not assigned more work to Arno ever,
and that he believed Arno to be against the Union. There is no alle-
gation in the complaint alleging any such violation or in the brief
of the General Counsel.
‘‘I’m sorry Vern . . . I don’t know if you were doing your
work.’’ Morehouse denied that Barry had been abusive to
him on the phone or that he had told Arno that the Respond-
ent would no longer do business with Barry.
Bruno testified that the incident that precipitated Arno’s
termination was the St. Lawrence University incident and
Arno’s problems with farmers. Arno was ‘‘agitating people
. . . in regards to the union . . . expressing company poli-
cies that are probably going to change after the union got in-
volved.’’ Bruno stated that his remark to Arno after learning
what Arno had said to the farmer about drivers picking up
loads after the Union got in was, ‘‘I don’t want you to talk
about company policy regarding the union to our customers.
You have no idea what the company policy’s going to be
after the union’s in here. I don’t feel we should be upsetting
people, our customers, based on that at the time.’’ Bruno
maintained that he was unaware at the time that Arno was
in favor of the Union since Arno had always said that he was
against union representation, and at the February 15, 1991
meeting with employees at Uncle Max’s Restaurant, Arno
spoke vehemently against the Union. Moreover, Morehouse
testified that Arno had never told him that he was in favor
of the Union including the conversation between Arno and
Chester Bisnett Sr. at which Morehouse was present.18
Arno testified that on April 19, 1991, he telephoned More-
house to see if his final paycheck was ready and Morehouse
said that it was. Arno asked Morehouse if he thought it was
right for the Respondent to fire him and Morehouse said that
both he and Bisnett Sr. felt that Arno should have been
‘‘talked to’’ and ‘‘not fired like that.’’ According to Arno,
Morehouse also said that Arno had ‘‘ticked Bruno off . . .
talking about the long hours and the wages . . . and the
union.’’ When Arno picked up his check later that day from
Morehouse he had to sign a release stating that his termi-
nation was for ‘‘poor attitude.’’ Arno asked Morehouse if he
had ever seen Arno with a poor attitude and Morehouse
shook his head indicating no. Morehouse acknowledged that
Arno had asked him if he had a poor attitude and that More-
house may have responded, ‘‘No.’’ Also, Morehouse did not
deny making the statements attributed to him by Arno in
their April 19, 1991 telephone conversation.
The Supervisory Status of William Henry
Between the testimony of William Henry and his affidavit
given to a Board agent on May 30, 1991, it appears that at
the time of the hearing Henry had been employed by the Re-
spondent as a ‘‘layout man, a welder’’ at CBI Steel, Inc. in
Potsdam, New York, for about 3 years. His overall super-
visor was Michael Bisnett, but his immediate supervisor was
Steven Hall, the foreman. After Hall was diagnosed with a
brain tumor in January 1991 and began to appear for work
only once or twice a week, in late February 1991 Henry
asked Bisnett if he could fill in for Hall during his absences
and Bisnett told him that he would think this over. Subse-
quently in mid-March 1991 Bisnett agreed to this and in-
structed Henry to basically do what Hall did whenever Hall
was out, ‘‘scheduling and stuff like that . . . keeping the
men busy and making sure everything got shipped out prop-
erly and the basics.’’ According to Henry, while Bisnett was
not specific about the duties he was assuming, he told Henry
that Henry would not have Hall’s authority such as ‘‘hire and
fire, things like that.’’ Henry remained as an hourly paid em-
ployee and received no increase in salary for his newly as-
sumed duties, used Hall’s office to perform this work and
discontinued his regular duties as a welder.
Moreover, Henry asserted that he had no authority to hire,
fire, or discipline employees, assign overtime work, schedule
employee vacations, or evaluate employees. Henry attended
no management meetings and only commenced using the
front parking area reserved for management in the summer
of 1991, after he had been permanently made Hall’s assistant
and at which time he was placed on salary rather than an
hourly wage. Additionally, according to Henry’s affidavit,
the Respondent did not notify the employees at CBI Steel by
posted notice or verbally that Henry was ‘‘filling in for
Hall’’ during his absences and Henry said nothing about this
to these employees as to what his authority and duties were,
including his lack of authority to discipline them.
Harold Bush, a laborer who worked at CBI Steel, testified
that when Henry assumed Hall’s duties as supervisor in late
February or early March 1991, during Hall’s absences, Henry
assigned work to employees, granted time off on occasion
with Michael Bisnett’s approval, warned an employee not to
leave work early, answered employees’ work questions, as-
signed overtime work, kept the employees time records and
checked the hours thereon, and employees contacted Henry
if they were out sick or had any grievances. Also, newly
hired employees at CBI Steel reported to Henry. Bush stated:
Well, as far as I’m concerned . . . he was pretty
much in charge then. But he went back to Steve Hall
for advice and stuff. But as far as I’m concerned, he
was the foreman then.
On cross-examination, Bush admitted being unsure as to
whether Henry actually performed some of the above duties
he attributed to Henry, such as granting time off, assigning
overtime work, and scheduling vacations, but Bush main-
tained that Henry did assign work to the employees and was
considered by Bush to be his supervisor when Hall was ab-
sent. Moreover, in an affidavit given to a Board agent on
April 23, 1991, Bush stated that he had no knowledge of
Henry ever sending any employee home early.
Michael Bisnett testified that while Henry did convey job
and overtime assignments to employees, it was Bisnett him-
self who designated the recipient employees. Bisnett ac-
knowledged that Henry kept the employee time records and
checked their accuracy. Bisnett also testified that when he
was on vacation and Hall was out there was ‘‘nobody in
charge’’ over the 15–18 employees at CBI Steel because
each employee knew his job and what he was supposed to
do. As noted hereinbefore, I found Michael Bisnett’s testi-
mony to be evasive and at times belligerent during question-
ing by counsel for the General Counsel, especially during his
testimony regarding Henry’s supervisory status.
1115WASTE STREAM MANAGEMENT
19 NLRB v. Four Winds Industries, 530 F.2d 75 (9th Cir. 1976).
Also see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
20 NLRB v. Marine World USA, 611 F.2d 1274 (9th Cir. 1980);
NLRB v. Raytheon Co., 445 F.2d 272 (9th Cir. 1971).
21 NLRB v. Gissel Packing Co., supra at 618.
22 NLRB v. Marine World USA, supra; NLRB v. Lenkurt Electric
Co., 438 F.2d 1102 (9th Cir. 1971).
23 NLRB v. Gissel Packing Co., supra at 6l7; NLRB v. Marine
World USA, supra.
24 The record evidence shows that this conversation occurred on
January 18, 1991.
25 Guiles was still employed by the Respondent at the time of the
hearing and his testimony, apparently adverse to the Respondent on
this issue, is entitled to additional weight and supports his credibil-
ity. Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961). Moreover, the
Respondent’s failure to call Whitton as a witness to refute the testi-
mony of Guiles and Prashaw as to this, without explanation, allows
an inference to be drawn that his testimony would be unfavorable
to the Respondent. 7-Eleven Food Store, 257 NLRB 108 (1981), and
cases cited therein. Moreover, Prashaw’s testimony regarding the
employees’ conversation with Whitton on January l8, 1991 was simi-
lar to Guiles’ in most relevant aspects.
Moreover, Mark Rood, who also worked with Henry at
CBI Steel, testified that when Henry was circulating the peti-
tion in late February 1991, Henry was not a supervisor nor
did he perform any supervisory duties. Rood related that
Henry became a supervisor sometime after Rood was termi-
nated on March 1, 1991. Rood added that while he was em-
ployed at CBI Steel and Hall was out because of illness, Ned
Potts, Steve Burdick, or Henry performed Hall’s duties.
The Supervisory Status of Edward (Ned) Potts
Edwards Potts is employed by the Respondent at CBI
Steel, Inc. as a fabrication engineer. Potts was alleged to be
a supervisor under Section 2(11) of the Act and an agent of
the Respondent under Section 2(13) of the Act in the com-
plaint and the Respondent’s answer admitted this allegation.
However, at the hearing the Respondent’s counsel moved to
amend its answer to deny this allegation.
Potts testified that he works in the ‘‘fabrication part of the
business,’’ receiving drawings from architectural firms, put-
ting out bids, contacting owners, or general contractors and,
when projects are obtained, Potts handles the financing and
the purchase of materials. Potts and Bisnett decide job prior-
ity when there are several projects to be worked on. Potts
also develops job estimates and prepares and negotiates the
contracts for the work to be done, manages the projects when
the job is won, purchases materials, commits the credit of the
Respondent for purchases, and directs the work of a drafts-
man hired by the Respondent on Potts’ recommendation.
Potts has his own office, is on salary with bonuses, and earns
more than any of the employes or supervisors except for the
Respondent’s owners. Nonsupervisory employees are paid on
an hourly wage basis. Potts also parks his car in an area re-
served for other management employees. Potts stated that on
occasion when Foreman Hall has been absent, Potts has di-
rected the work of the employees at CBI Steel. Additionally,
Potts was not eligible to vote in the Board election. Further-
more, Potts denied that he hires or fires, disciplines, or eval-
uates employees or tells them what to do. Moreover, Potts
does not attend any of the management meetings.
B. Analysis and Conclusions
Section 8(a)(1) of the Act provides that it shall be an un-
fair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of their statutory right
to engage in or refrain from engaging in concerted activity.
This provision is modified, however, by Section 8(c) of the
Act, which defines and implements the first amendment right
of free speech in the context of labor relations.19 Section 8(c)
permits employers to express ‘‘any views, arguments or
opinions’’ concerning union representation without running
afoul of Section 8(a)(1) if the expression ‘‘contains no threat
of reprisal or force or promise of benefit.’’20 The employer
is also free to express opinions or make predictions, reason-
ably based in fact, about the possible effects of unionization
on its company.21 In determining whether questioned state-
ments are permissible under Section 8(c), the statements
must be considered in the context in which they were made
and in view of the totality of the employer’s conduct.22 Also
recognized must be the economically dependent relationship
of the employees to the employer and the necessary tendency
of the former, because of that relationship, to pick up in-
tended implications of the latter that might be more readily
dismissed by a more disinterested ear.23
1. Interrogation
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when its supervisor, Lawrence Whitton, in-
terrogated employees concerning their union activities and
the union activities of other employees on February 17,
1991,24 and by written survey on February 4, 1991. The Re-
spondent denies these allegations.
a. By Lawrence Whitton
According to the testimony of Guiles and Prashaw, which
I credit,25 on January 18, 1991, while Guiles, Law, and
Prashaw were at work, their supervisor, Lawrence Whitton,
asked them if a union representative had been at the facility
and whether they had signed union authorization cards. After
Guiles and Law acknowledged that a union representative
had spoken to them at work the previous day and that they
had all signed authorization cards for the Union, Whitton
told them that they might have to be docked one-half hour
to 1 hour’s pay because they had talked to the Union’s rep-
resentative on ‘‘company time.’’
In Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985), the Board reiterated the basic test
for evaluating whether interrogations violate Section 8(a)(1)
of the Act established in Blue Flash Express, 109 NLRB 591
(1954): whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act. The Board then stated in Rossmore
House, supra at 1177:
Our view is consonant with that expressed by the
Seventh Circuit Court of Appeals in Midwest Stock Ex-
change v. NLRB [635 F.2d l255, l267 (7th Cir. 1980)]:
It is well established that interrogation of employ-
ees is not illegal per se. Section 8(a)(l) of the Act
prohibits employers only from activity which in
some manner tends to restrain, coerce or interfere
with employee rights. To fall within the ambit of
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore
House, supra. Also see Advance Waste Systems, 306 NLRB 1020
(1992).
27 Basin Frozen Foods, 307 NLRB 1406 (1992) (although a dif-
ferent type of implied threat was involved here). I also reject the Re-
spondent’s argument in its brief that Whitton’s remarks were not un-
lawful because ‘‘an employer is not precluded from regulating em-
ployee use of its property,’’ especially in light of Whitton’s interro-
gation of the employees as to their having signed union authorization
cards in the same conversation.
28 Rossmore House, supra; Sunnyvale Medical Clinic, supra.
29 Rossmore House, supra.
30 Varco Inc., 216 NLRB 1 (1974).
31 Gordonsville Industries, 252 NLRB 563 (1980).
Section 8(a)(1), either the words themselves or the
context in which they are used must suggest an ele-
ment of coercion or interference.
Thus, the circumstances of the questioning determines its un-
lawfulness.
In this case neither Guiles, Law, or Prashaw were open
and active supporters of the Union at the time Whitton ques-
tioned them about their union activities, since it was not until
a few days later that the Union notified the Respondent that
these three employees had signed union authorization cards
and were designated union committeemen. It is reasonable to
assume that when Carlin turned his union authorization card
over to Whitton to report union activity at the Respondent’s
facility he identified Guiles as the employee who gave him
the card and that this brought on Whitton’s interrogation of
Guiles, Law, and Prashaw as to the presence of a union rep-
resentative on the premises and whether or not they had
signed authorization cards for the Union. It is my belief that,
without more, this would be enough to constitute unlawful
interrogation in violation of Section 8(a)(1) of the Act, since
Whitton’s questioning of these employees did not occur in
the context of a ‘‘casual’’ and ‘‘friendly’’ conversation, was
limited solely and precisely to the employes interplay with
the Union, was made by the employees supervisor at work
and during worktime, involved the direct disclosure of their
union activities, and none of these employes was a self-pro-
claimed union adherent.26
However, in this case, Whitton added an extra element
when, after being told by Guiles and Law that they had spo-
ken to a union representative at the facility and had signed
union authorization cards including Prashaw, he advised
them that they might be docked part of their pay for the time
spent in conversation with the Union’s representative at the
Respondent’s facility, which under the circumstances then
present could reasonably be construed as a threat of punish-
ment for their now disclosed union activities, including their
signing union authorization cards.27 Moreover, Whitton’s
subsequent declaration, upon Bruno’s direction, that these
employees would not lose any pay, without any further ex-
planation, does not remedy the Respondent’s unlawful inter-
rogation. This could reasonably be construed as an act to
curry favor with these employees to entice them away from
supporting the Union, in view of Whitton’s also advising
them that Bruno wanted to now meet personally with these
employees after their prior request for such a meeting with
Bruno had brought no results.
From the above, I find and conclude that under all the cir-
cumstances present in this case, the Respondent’s interroga-
tion of these employees through Whitton, was unlawful and
violative of Section 8(a)(1) of the Act because it reasonably
tended to restrain, coerce, and interfere with their rights guar-
anteed under the Act.28
b. By written survey
At an ‘‘extremely important’’ meeting with employees on
February 4, 1991, employee attendance being required and
paid for as worktime, two of the Respondent’s owners,
Bruno and ‘‘Skip’’ Bisnett Jr., informed the employees that
the Respondent recognized that it had employee relations
problems and in order to ‘‘find out which area they had to
look more into,’’ they distributed an ‘‘Evaluation of Manage-
ment Questionaire’’ to the employees. While most of the
questions were work related, question 43 asked for the em-
ployees feelings about union representation.
As indicated above, the Board’s test for evaluating wheth-
er a interrogation violates Section 8(a)(1) of the Act is
whether under all the circumstances the interrogation reason-
ably tends to restrain, coerce, or interfere with rights guaran-
teed employees under the Act.29 In Weather Shield of Con-
necticut, 300 NLRB 93 (1990), the administrative law judge
held, with Board approval, that a survey of its employees by
the employer regarding ‘‘wages, working conditions and
‘questions of that nature’’’ violated Section 8(a)(1) of the
Act because the employer had ‘‘never previously conducted
such a survey among its employees and as it took place so
close to the election,’’ and the judge assumed that its pur-
pose was to interfere with the employees free choice in the
upcoming election, citing, Electric Hose & Rubber Co., 267
NLRB 488 (1983); Varco Inc., 216 NLRB 1 (1974). While
all these cases involved the unlawful solicitation of griev-
ances it seems applicable as well on this issue.
In the instant case as in Weather Shield, the Respondent
had never previously conducted such a survey, it was con-
ducted after the Respondent became aware that the Union
was engaged in organizing its employees, was introduced and
explained as to purpose by two of the Respondent’s owners
and distributed at a special important meeting with employ-
ees, took place comparatively close to the election, and, most
importantly, the survey included a question regarding the em-
ployees union sympathies. Since the survey was distributed
during the Union’s organizational campaign, it cannot be said
to be unrelated to union activity. Moreover, the survey also
constituted an unlawful solicitation of employee grievances
with its implied promises of redress in violation of Section
8(a)(1) of the Act, as will be more fully discussed herein-
after.30 Additionally, while the questionnaire noted that it
was not to be signed or necessary to be completed, the ques-
tionnaire was color coded as to department and a number ap-
pearing thereon may have also helped to pinpoint the particu-
lar employees department affecting its anonymity, and the
Respondent failed to give employees assurances against re-
prisals for failure to complete the questionnaire or, if com-
pleted, based on its contents.31
From the above, I find and conclude that under all the cir-
cumstances present in this case, the Respondent’s interroga-
tion of its employees by written survey was unlawful and
violated Section 8(a)(1) of the Act because it reasonably
1117WASTE STREAM MANAGEMENT
32 Rossmore House, supra; Gordonsville Industries, supra.
33 Vinyl-Fab Industries, 265 NLRB 1097 (1983).
34 Purolator Armored, 268 NLRB 1268 (1984).
35 Purolator Armored, supra; Vinyl-Fab Industries, supra Reliance
Electric Co., supra. Also see General Electric Co., 264 NLRB 953
(1982).
36 Reliance Electric Co., supra.
37 Keystone Lamp Mfg. Corp., 284 NLRB 626 (1987).
tended to restrain, coerce, and interfere with their rights guar-
anteed under the Act.32
2. Solicitation of grievances
The complaint alleges that the Respondent, by James
Bruno on January 24, 1991, by written survey on February
4, 1991, and by Edwin Ricker on February l5, 1991, solicited
grievances from its employees with explicit and implicit
promises to rectify them in violation of Section 8(a)(1) of the
Act. The Respondent denies these allegations.
a. By James Bruno
The credited testimony of Guiles shows that on January
24, 1991, Bruno met with employees Guiles and Law where-
in these employees complained about not having received
any raises since their hire several months before, and re-
quested additional hours of work to increase their salaries.
Such a meeting had been requested by Guiles and Law and
two other employees, Prashaw and Carlin, about 3 weeks be-
fore through their supervisor, Whitton, but according to
Bruno could not be arranged until January 24, 1991, because
Bruno was busy. Since Prashaw wasn’t present at this meet-
ing, Guiles and Law also complained about Prashaw, part of
whose work they were consistently being obliged to perform,
and they suggested the possibility of taking over Prashaw’s
truck route to supplement their pay. The record evidence also
discloses that this meeting occurred after the Union had
begun its organizing campaign in early January 1991, al-
though the employees request for it was made earlier, and
took place soon after Bruno became aware on January 18,
1991, that Guiles, Law, and Prashaw had signed union au-
thorization cards and also learned on January 22, 1991, that
these employees had been designated by the Union as ‘‘com-
mittee people.’’ At this meeting Bruno explained the Re-
spondent’s policy of evaluating new employees for purposes
of salary increases after they had been employed for 6
months, and when he was apprised that Guiles and Law had
worked for the Respondent for 10 and 7 months, respec-
tively, without such evaluation, Bruno said he would look
into this. Additionally, after they had discussed the feasibility
of dividing Prashaw’s truck route between Guiles and Law,
with Bruno taking notes thereon, Bruno told them that he
had decided to give them Prashaw’s route. That very same
day Guiles and Law were granted 50-cent-an-hour wage in-
creases by the Respondent and on January 28, 1991,
Prashaw’s truck route was reassigned to Guiles and Law and
Prashaw was terminated.
In Reliance Electric Co, 191 NLRB 44, 46 (1971), the
Board stated:
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that
he is implicitly promising to correct these inequities he
discovers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
and correction will make union representation unneces-
sary.
Furthermore, in Varco, Inc., 216 NLRB 1 (1974), the Board,
on reference to this holding in Reliance Electric Co., supra,
stated:
Thus the Board has found unlawful interference with
employee rights by an employer’s solicitation of griev-
ance during an organizational campaign although the
employer merely stated it would look into or review the
problem but did not commit itself to specific corrective
action; the Board reasoned that employees would tend
to anticipate improved conditions of employment which
might make union representation unnecessary. How-
ever, it is not the solicitation of grievances itself that
is coercive and violative of Section 8(a)(1), but the
promise to correct grievances or a concurrent interroga-
tion or polling about union sympathies that is unlawful;
the solicitation of grievances merely raises an inference
that the employer is making such a promise, which in-
ference is rebuttable by the employer.
In the instant case no evidence was presented to show that
the Respondent had a practice of meeting with employees
personally, especially at the ownership level,33 either at their
own request or otherwise to hear their complaints or griev-
ances.34 Additionally, the employees’ request to meet with
Bruno, brought to his attention by their supervisor Whitton
on several occasions prior to the advent of the Union, was
not acted upon until after Bruno learned about their union ac-
tivity. The timing of this meeting also takes on significance
in that while Bruno could not fit a meeting with those em-
ployees into his schedule although requested to do so by
Whitton, ‘‘a couple of times,’’ upon his being apprised of
their union activities he immediately arranged for such a
meeting. Moreover, Bruno actually agreed to remedy their
grievances at this very meeting.
From all of the above, I find and conclude that the Re-
spondent violated Section 8(a)(1) of the Act by soliciting
grievances from its employees with explicit and implicit
promises to rectify them.35
b. By written survey
An unprecedented inquiry concerning employee grievances
engaged in during a union organizational campaign raises a
compelling inference that an employer ‘‘is implicitly promis-
ing to correct those inequities he discovers as a result of his
inquiries and likewise urging on his employees that the com-
bined program of inquiry and correction will make union
representation unnecessary.’’36 In the instant case the Re-
spondent had never conducted such a survey before, it took
place during the Union’s organizational campaign and this
timing plus the question contained therein regarding the em-
ployees union sympathies suggests that it constituted a pre-
cipitant reaction to union activity.37 Moreover, Bruno and/or
‘‘Skip’’ Bisnett, Jr. indicated that the purpose of the ques-
tionnaire was to get an idea as to their standing with their
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 Weather Shield of Connecticut, supra, Keystone Lamp Mfg.
Corp., supra; Reliance Electric Co., supra, Contrast Electric Hose
Co., 267 NLRB 488 (1983), enfd. in part and denied in part 731
F.2d 1384 (9th Cir. 1984).
39 Reliance Electrical Co., supra.
40 Varco Inc., supra.
41 Ibid.
42 Vinyl-Fab Industries, supra.
43 Electric Hose Co., supra; Vinyl-Fab Industries, supra.
44 See for example Pennsy Supply, 295 NLRB 324 (1989); C-F Air
Freight, 247 NLRB 403 (1980).
employees and as to ‘‘which areas they had to look more
into.’’ I therefore find and conclude that the purpose of this
survey was to interfere with the employees free choice in the
upcoming election and therefore violates Section 8(a)(l) of
the Act.38
c. By Edwin Ricker
At another ‘‘important employee meeting’’ requiring paid
for employee attendance, held at Uncle Max’s Restaurant on
February 15, 1991, to ‘‘up-date’’ what was happening re-
garding the Respondent and the Union, Bruno advised the
employees that the results of the questionaire had been ob-
tained and that the Respondent had realized that problems
existed and had hired a labor consultant, Edwin Ricker, to
straighten out things between employees and management.
Ricker was then introduced and took over the meeting.
Ricker discussed the Board’s election procedure, and the
Teamsters Union’s involvement with organized crime. Ricker
also spoke about programs the Respondent would like to ini-
tiate but could not because of the Union’s representation pe-
tition and the coming Board election, such as, an employees
relations program including a grievance procedure (internal
dispute resolution committee), and a wage program (pay for
knowledge and performance). Ricker also told the employees
that the Respondent was establishing a ‘‘hot-line’’ program
in which forms would be available to employes to write in
questions regarding their concerns about employee problems
and about what the Union and the Respondent were saying
during the organizational campaign.
The solicitation of grievances at preelection meetings, es-
pecially where an employer has not had a practice of solicit-
ing employee grievances or complaints before, carries with
it an inference that the employer is implicitly promising to
correct these inequities it discovers as a result of its inquir-
ies.39 this is true even though the employer merely stated it
would look into or review the problems but did not commit
itself to corrective action.40 However, this inference is rebut-
table.41
In the instant case, the Respondent, through Ricker, at the
very least, left the impression that, by bringing their com-
plaints and grievances directly to the Respondent either by
means of the survey, questions elicited at the meeting, or by
the ‘‘hot-line forms initiated by it, the employees complaints
or grievances would be remedied. Ricker spoke about new
programs to be instituted, a grievance resolution procedure
and wage initiative, which might well be implemented if the
Union was unsuccessful in its organizing campaign and the
election. Ricker’s reference to ways of making the work en-
vironment better without going union, after explaining the
new proposed grievance procedure and wage proposal, would
not be lost on the employees present, as an indication by the
Respondent that it would redress their grievances and com-
plaints making union representation unnecessary.42 More-
over, Ricker’s statement to the gathered employees that if the
employees did not vote the Union in and were not pleased
with what the Respondent did, they then could get the Union
back in 6 months, certainly reinforces the above inference of
promised redress for employee grievances and complaints by
the Respondent if the Union lost the election.
From the above, I find and conclude that the Respondent
violated Section 8(a)(1) of the Act by soliciting grievances
from its employees with explicit and implicit promises to
rectify them.43
The complaint also alleges that the Respondent by Edwin
Ricker violated Section 8(a)(1) of the Act by informing its
employees that if the Union lost the election it would set up
a grievance procedure. The Respondent denies this allega-
tion.
Mark Rood testified that at the meeting on February 15,
1991, while Ricker made no promises directly to the employ-
ees, he did say that it was possible that various programs he
had mentioned including a grievance resolution procedure
might be instituted if the Union failed in its quest to rep-
resent the Respondent’s employees. Ricker denied making
any promises to employees at this meeting but did not spe-
cifically deny making this statement attributed to him. I
therefore credit Rood’s testimony on this issue. While
couched in language suggesting a possibility rather than an
actuality, it appears to be no less an implied promise of a
benefit conditioned upon the rejection of the Union. More-
over, this meeting was admittedly held with employees be-
cause of the advent of the Union’s organizing campaign thus
the timing and impact of such a statement cannot be ignored.
In NLRB v. Crown Can Co., 138 F.2d 263, 267 (8th Cir.
1943), cert. denied 321 U.S. 769 (1944), the United States
Court of Appeals for the Ninth Circuit (citing Western Car-
tridge Co. v NLRB, 134 F.2d 240, 244, cert. denied 320 U.S.
746 (1943), stated that ‘‘interference is no less interference
because it is accomplished through allurement rather than co-
ercion.’’ I therefore find and conclude that the Respondent
violated Section 8(a)(1) of the Act when it informed its em-
ployees that if the Union lost the election it would set up a
grievance procedure.44
3. The petition
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when Edwin Ricker suggested to its em-
ployees on February 15, 1991, that they could draw up a pe-
tition against the Union, and when William Henry and Mi-
chael Bisnett solicited its employees to sign such a petition
against the Union. The Respondent denies these allegations.
a. By Edwin Ricker
As more particularly set forth hereinbefore, at a meeting
with employees on February 15, 1991, at Uncle Max’s Res-
taurant, Edwin Ricker, in response to an employee’s question
as to how to prevent the Union from coming in, answered
that the employees could initiate a petition against union rep-
resentation, to be presented to the Union after a majority of
the employees signed it, hopefully resulting in the Union’s
withdrawing from the election.
1119WASTE STREAM MANAGEMENT
45 Eagle Comtronics, 263 NLRB 515 (1982).
46 Fabric Warehouse, 294 NLRB 189 (1989), enfd. mem. sub
nom. Hancock Fabrics v. NLRB, 902 F.2d 28 (4th Cir. 1990). Also
compare and contrast, Lee Lumber & Building Material Corp., 306
NLRB 9 (1992). Moreover, in NLRB v. Grossinger’s Inc., 372 F.2d
26 (2d Cir. 1967), the United States Court of Appeals, Second Cir-
cuit held that the employers suggestion to employees that they with-
draw their union affiliation by petition, its assistance in preparing the
petition and permitting the petition to be circulated for signatures on
company time and property violated Section 8(a)(1) of the Act.
47 Parkview Furniture Mfg. Co., 284 NLRB 947 (1987); Gold
Standard Enterprises, 234 NLRB 618 (1978); V & W Castings, 23l
NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230
(1976).
48 At the time Bush testified herein, he was still employed by the
Respondent and his testimony seemingly adverse to the Respondent,
is entitled to additional weight in support of credibility. Georgia Rug
Mill, supra. I am not unaware that Bush’s testimony regarding
Henry’s assumption of supervisor Hall’s duties as it affects Henry’s
supervisory status contained discrepancies but these appeared to be
based on Bush’s perception that when Henry took over Hall’s duties
he became Bush’s supervisor in Hall’s stead and assumed all of
Hall’s duties when Hall was absent, as will be more fully set forth
hereinafter.
Under Section 8(c) of the Act, an employer may lawfully
furnish accurate information, especially in response to em-
ployees’ questions, if it does so without making threats or
promises of benefits.45
The evidence herein shows that the February 15, 1991
meeting was called by the Respondent for the purpose of ad-
vising employees as to what was going on regarding the
Union’s organizing campaign and the Respondent’s response
to it. Ricker made reference to the Union’s parent organiza-
tion, Teamsters Union, being involved with organized crime
and its engagement in illegal activities such as skimming
moneys from retirement programs of union members, and its
alleged lack of interest in its membership, all to discredit the
Union. Moreover, as found above, at this same meeting
Ricker engaged in the unlawful solicitation of grievances and
unlawfully informed the employees that if the Union lost the
election the Respondent would implement a grievance proce-
dure among other things. Under these circumstances it can
be said that Ricker’s suggestion of an employee petition
against the Union, reasonably tended to interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act and that the Respondent
thereby violated Section 8(a)(1) of the Act.46
b. By William Henry and Michael Bisnett
A petition against the Union was prepared and circulated
for signatures among the Respondent’s employees by Wil-
liam Henry, employed by the Respondent at CBI Steel, Inc.
Henry admitted preparing such a petition because of Ricker’s
suggestion of it at the February 15, 1991 meeting and
Henry’s own conversations with fellow employees. The testi-
mony of Henry and Michael Bisnett concerning the cir-
cumstances surrounding the circulation of this petition and
that of the other witnesses for the General Counsel shows
significant contradiction and requires a resolution of the
question of their credibility. In making my credibility deter-
minations, I have carefully considered the record evidence,
my observation of the demeanor of the witnesses, the weight
of the respective evidence, established and admitted facts, in-
herent probabilities and reasonable inferences which may be
drawn from the record as a whole.47 Moreover, in the con-
text of determining credibility, this would also have some
bearing on the issue of Henry’s status as a supervisor under
Section 2(11) of the Act and as an agent of the Respondent
under Section 2(13) of the Act as alleged in the complaint
and denied by the Respondent.
Henry’s testimony as to when he started circulating the pe-
tition against the Union and his statement about this in his
affidavit is clearly contradictory. Henry testified at first that
he had prepared the petition and began obtaining employee
signatures thereon about 2–3 weeks after the February 15,
1991 meeting or in or about mid-March 1991. In his affida-
vit, Henry states that this occurred ‘‘around the last week in
March, 1991,’’ and having obtained about 35 signatures dur-
ing that week, he then mailed the petition to the Union
around April 1, 1991. Henry’s explanation for this discrep-
ancy, that the information in his affidavit was not obtained
by the Board agent through questioning, that he was not read
the affidavit by the Board agent before he initialed each page
and signed the statement at its end and acknowledged the
truth of the statements made therein, and the implication that
the Board agent either mistakenly or purposely recorded his
statements inaccurately, plus other evidence in the record
which challenges his believability and veracity, leads me to
believe that Henry tempered his testimony to favor the Re-
spondent and enhance its positions herein opposing the alle-
gations against it of conduct violative of Section 8(a)(1) of
the Act involving this petition, and to conclude that he is a
less than reliable witness.
For example, Rood testified that following the February
15, 1991 meeting at Uncle Max’s Restaurant he became
aware that a petition against the Union was being circulated
by Henry at CBI Steel. Henry asked him to sign the petition
on February 25, 1991, which Rood refused to do, but Rood
did sign it the next day, February 26, 1991. Rood was termi-
nated on March 1, 1991. This testimony was not denied by
Henry or refuted by any other evidence in the record and
strongly contradicts Henry’s testimony that he prepared and
circulated the petition beginning in either mid-March or the
end of March 1991. It would seem incredible that Rood
would return to CBI Steel after being terminated on March
1, 1991, to sign the petition thereafter. Moreover, the same
is true of Verde Snyder who testified uncontradictedly, that
he had been sarcastically asked by Henry to sign the petition
prior to his layoff by the Respondent on February 25, 1991.
Snyder was not rehired until July 1, 1991. Additionally,
Richard Walrath testified that 1 week before his termination
on March 1, 1991 he was asked by Henry to sign the petition
but refused to do so.
Additionally, employee Harold Bush’s testimony that in
late February or early March 1991, Henry asked him to sign
the petition against the Union also supports discrediting
Henry’s testimony regarding it.48 It thus appears from the
record evidence that Henry prepared the petition against the
Union in late February 1991 and circulated it for employees
signatures during the critical period before the election, the
interval from the date of the Union’s filing of its representa-
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 Goodyear Tire Co., 138 NLRB 453 (1962).
50 NLRB v. Allen’s I.G.A. Foodliner, 651 F.2d 438 (6th Cir. 1981).
51 Okum Bros. Shoe Store, 825 F.2d 102 (6th Cir. 1988).
52 5 Rep. No. 105, 80th Cong., 1st sess. 4 (1947).
53 NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728 (6th Cir.
1981); City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965).
54 NLRB v. Wilson-Crissman Cadillac, supra; Hydro Conduit
Corp., 254 NLRB 433 (1981); Federal Compress & Warehouse Co.
v. NLRB, 398 F.2d 631 (6th Cir. 1968).
tion petition with the Board on February 4, 1991, until the
Board election on April 5, 1991.49
Other examples abound in the record as well. At the hear-
ing Henry testified that he solicited employee signatures on
the petition at all the Respondent’s facilities, yet in his affi-
davit he states that ‘‘he approached all employees in the shop
[CBI Steel] and not employees of WSM. I did go to
Parishville with it.’’ Henry also testified that he solicited and
obtained employee signatures on the petition after work
hours and not on ‘‘company time,’’ with employees at
Parishville signing the petition in the facility parking lot. Ad-
ditionally, Henry in his affidavit states:
When circulating the petition I was always on my
own time—never on the clock or work time; at no time
did any Company official or supervisor provide me
with a list of employees to assist me in circulating the
petition. I never showed the petition to Mike Bisnett
nor any Company official or supervisor. I never told
Mr. Bisnett nor any Company official or supervisor
who had or had not signed the petition.
However, Verde Snyder testified that he observed Henry ob-
tain Frank Snyder’s signature on the petition during working
hours but after their supervisor, Robert Dalton, had left for
the day, and also observed that Henry had in his possession
what looked like a ‘‘computer printout that he had gotten
from the company, with all the employees names,’’ and
Henry was marking this list as employees signed the petition.
Moreover, Bush testified that about 5 minutes after he
signed the petition which was lying on Henry’s work table,
Michael Bisnett came over, put his arms around Bush and
thanked him for signing it. Bush also testified that he had
observed another employee sign this petition after which he
saw Henry and Bisnett pointing at this employee with the pe-
tition being held in either Henry or Bisnett’s hand. Bush
added that since Henry had told him that management would
not know who had signed the petition he asked Henry about
this, reminding Henry of what he had said and Henry told
him that since Bush had already signed the petition why
should he care about any disclosure.
Bisnett admitted being aware of what Henry was doing vis
a vis the petition but denied encouraging him to do this or
playing any part in its preparation or circulation. Bisnett also
admitted thanking Bush for signing the petition since he had
seen it laying on Henry’s desk with the signatures thereon.
Bisnett did deny reviewing the list of signatures with Henry
or their pointing out any employee who had signed the peti-
tion. Also, Richard Walrath testified that when he refused to
sign the petition 1 week before he was terminated, he ob-
served the employee who had asked him to sign it (it could
only have been Henry), place a mark by his name on a list
of employees in his possession.
For the reasons set forth hereinbefore, I credit the testi-
mony of Bush, Verde Snyder, Mark Rood, and Walrath, al-
though the latter three are discriminatees herein, over that of
Henry and Bisnett on this issue since they testified in a forth-
right manner, their testimony was consistent with each oth-
er’s and importantly consistent with other evidence in the
record. In contrast, as noted hereinbefore, Henry’s testimony
was discredited as being tailored to assist the Respondent in
this case and Bisnett testified in an evasive manner on the
issue of Henry’s supervisory status and exhibited a hostile
and belligerent attitude towards counsel for the General
Counsel on cross-examination which was totally unwar-
ranted.
It is a violation of Section 8(a)(1) of the Act for an em-
ployer to sponsor and participate in the circulation of a peti-
tion among employees withdrawing support from a union.50
An employer’s participation in such a petition violates Sec-
tion 8(a)(1) because it ‘‘tends to be coercive or tends to
interfere with the employees’ exercise of their rights.51 In In-
diana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292 (6th Cir. 1988),
the United States Court of Appeals, Sixth Circuit found the
employers participation in drafting and circulating a petition
among employees withdrawing support from a union to be
coercive where a plant superintendent drafted the petition,
was present when several of the employees signed it, and the
plant superintendent signed the petition himself.
Since William Henry prepared the petition in the instant
case and circulated it for employee signatures, also presum-
ably signing it himself, a consideration of his status as a su-
pervisor and/or as an agent of the Respondent is required.
Section 2(11) of the Act provides:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
In enacting Section 2(11), congress emphasized its intention
that only truly supervisory personnel vested with ‘‘genuine
management prerogatives’’ should be considered supervisors,
and not ‘‘straw bosses, leadmen, set-up men and other minor
supervisory employees.’’52 However, consistent with the stat-
utory language and legislative intent, it is well recognized
that Section 2(11)’s disjunctive listing of supervisory indicia
does not alter the essential conjunctive requirement that a su-
pervisor must exercise independent judgment in performing
the enumerated functions.53 As the court stated in Beverly
Enterprises v. NLRB, 661 F.2d 1095, 1098 (6th Cir. 1981):
‘‘[R]egardless of the specific kind of supervisory authority at
issue, its exercise must involve the use of true independent
judgment in the employer’s interest before such exercise of
authority becomes that of a supervisor.’’ Thus, it is well set-
tled that the exercise of merely routine or clerical authority
does not give an individual the status of supervisor; ‘‘the test
must be the significance of his judgment and directions.’’54
Consequently, an employee does not become a supervisor
1121WASTE STREAM MANAGEMENT
55 NLRB v. Wilson-Crissman Cadillac, supra; NLRB v. Doctors’
Hospital of Modesto, 489 F.2d 772 (9th Cir. 1973).
56 Federal Compress & Warehouse Co. v NLRB, supra; NLRB v.
Merchants Police, 313 F.2d 310 (7th Cir. 1963).
57 Advance Mining Group, 260 NLRB 486 (1982); NLRB v. Brown
& Sharpe Mfg. Co., 169 F.2d 331 (1st Cir. 1958).
58 Advance Mining Group, supra; NLRB v. Security Guard Service,
384 F.2d 1 (5th Cir. 1967).
59 RACHO, Inc., 265 NLRB 235 (1983); Tucson Gas & Electric
Co., 241 NLRB 181 (1979); Commercial Movers, 240 NLRB 288
(1979).
60 Although Bush testified that Henry had the authority to dis-
cipline employees and had done so in an instance when an employee
had left work early without permission and Henry had warned him
not to do this again, I do not believe that this establishes that Henry
had the authority to discipline employees. Henry’s duties entailed as-
signing work to employees and to see that the work was properly
done. Telling an employee not to leave work early without reporting
it or seeking permission would be in line with this duty. Moreover,
Bush was unsure if Henry had warned that he would write the em-
ployee up if it occurred again, and there is no other evidence in the
record that Henry had the authority to impose discipline on employ-
ees himself.
61 It is not unusual that, based on the evidence in the record, the
testimony of a witness may be credited in part, while other segments
thereof are discounted or disbelieved. Jefferson National Bank, 240
NLRB 1057 (1979), and cases cited therein. Importantly, neither the
General Counsel nor the Union produced any evidence to contradict
this.
62 Clark Machine Corp., 308 NLRB 555 (1992). Contrast, Hoff-
man Plastic Compounds, 306 NLRB 100 (1992).
63 Clark Machine Corp., supra.
merely because he gives some instructions or minor orders
to other employees.55 Nor does an employee become a su-
pervisor because he has greater skills and job responsibilities
or more duties than his fellow employees.56 Additionally, the
existence of independent judgment alone will not suffice for,
‘‘the decisive question is whether [the employee has] been
found to possess authority to use independent judgment with
respect to the exercise . . . of some one or more of the spe-
cific authorities listed in Section 2(11) of the Act.57 In short,
‘‘some kinship to management, some empathetic relationship
between employer and employee must exist before the latter
becomes a supervisor for the former.’’58 Moreover, in con-
nection with the authority to recommend actions, Section
2(11) of the Act requires that the recommendations must be
effective. The burden of proving that an employee is a ‘‘su-
pervisor’’ within the meaning of the Act rests on the party
alleging that such status exists.59
The record evidence shows that Henry had no authority to
hire, fire, suspend, lay off, recall, discharge, reward, or even
discipline employees.60 While the foreman, Hall, had such
authority, at least as far as effectively recommending such
action, or directly with regard to some of the above, in this
instance I credit the testimony of Henry and Bisnett only to
the effect that although Henry did assume Hall’s duties, he
was also restricted by Bisnett as to his exercising any of the
above authority, since this is supported by other evidence in
the record.61
However, the Board also considers ‘‘secondary indicia’’ in
determining whether an individual is a supervisor. The evi-
dence herein shows that while Henry assigned jobs to the fab
shop employees in most instances Bisnett and even Potts
gave Henry the assignments, and while Henry assigned over-
time work to employees, Bisnett made the decision for the
need for overtime and whom to assign it to. Although Henry
exercised some direction-of-work authority in carrying out
his duties, the General Counsel failed to establish that Henry
used independent judgment in exercising his limited author-
ity. Moreover, Henry maintained the timecards and checked
the employees hours thereon. No independent judgment was
required to correct any oversights. There is no evidence that
Henry had the authority to grant time off to employees un-
less he checked with Bisnett or Hall first, and his giving per-
mission for vacation time was based on a schedule already
set by Hall or with Hall’s approval.
Additionally, Henry used Hall’s office in performing his
duties and while doing so discontinued his work as a welder.
This in and of itself is insufficient to designate Henry as a
supervisor. While Henry received a higher hourly salary than
many of the other employees in the shop, this appears to be
due to his previous higher skilled work or seniority since an-
other nonsupervisory employee, Steve Burdick, received a
slightly higher hourly wage than Henry and in February 1991
had also filled in for Hall as foreman when Hall was absent.
It should be noted that Hall was salaried while Henry re-
ceived an hourly wage and when Henry assumed Hall’s du-
ties he received no increase in pay. As regards Henry’s park-
ing privileges, I am unsure as to when he started parking his
automobile at the front of the facility where management
parked their cars or stopped parking in the rear with the
other employees, since Bush was unsure of dates and Henry
did become Hall’s full-time assistant in the summer of 1991
as a salaried employee with such parking rights and with au-
thority to act in areas which might well establish him as a
supervisor under the Act at that time. Also Henry attended
no managerial meetings in February or March 1991. Thus
most of Henry’s other duties were clerical in nature and re-
quired no independent judgment.
For the above, I find and conclude that the General Coun-
sel has not met his burden of establishing that Henry was a
supervisor within the meaning of Section 2(11) of the Act.
In examining the incidents alleged to show that Henry was
responsible for directing the fab shop employees, I find that
the evidence fails to establish that the authority exercised
was anything more than strictly routine or that it involved the
use of independent judgment. At most the evidence shows
that any authority he exercised was performed in a routine
manner. Such conduct is insufficient to establish supervisory
status under the Act.62
However, even if the evidence in this case does not estab-
lish supervisory status, it does establish that the Respondent
placed Henry in a position where employees could reason-
ably believe that he spoke or acted on behalf of management.
While the Board has held that employees belief that a fellow
employee is a supervisor is not determinative of the issue of
supervisory status, ‘‘it is the actual exercise of supervisory
authority, not employee belief that is determinative,’’63 the
Board has frequently held that an employer may be liable for
the statements and acts of nonsupervisory employees who act
as its agents. It is also well settled that where an employer
places a nonsupervisory employee in a position in which em-
ployees could reasonably believe he speaks or acts for man-
agement, the employer then may be responsible for the coer-
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 Tyson Foods, 311 NLRB 552 (1993), and cases cited therein.
65 Community Cash Stores, 238 NLRB 265 (1978). Also see
Technodent Corp., 294 NLRB 924 (1989); Futuranik Industries, 279
NLRB 185 (1986).
66 Machinists v. NLRB, 311 U.S. 72 (1940); NLRB v. Arkansas-
Louisiana Gas Co., 333 F.2d 790 (8th Cir. 1964).
67 Minnesota Boxed Meats, 282 NLRB 1208 (1987); Broyhill Co.,
210 NLRB 288 (1974).
68 Davies Medical Center, 303 NLRB 195 (1991), and cases cited
therein at 207; Indiana Cal-Pro, Inc. v. NLRB, supra; NLRB v. Al-
len’s I.G.A. Foodliner, supra; NLRB v. S & H Grossinger’s Inc.,
supra.
cive acts or statements of that employee.64 The test is
‘‘whether, under all the circumstances, the employees would
reasonably believe that the non-supervisory employee was re-
flecting company policy and speaking and acting for manage-
ment.’’65 Moreover, the strict principles of agency are not
applied in determining an employer’s responsibility under the
Act for the conduct of others.66 Section 2(13) of the Act pro-
vides:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
From the evidence herein, I find and conclude that Henry
was an agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act, when he solicited employees to sign
a petition against the Union. With Michael Bisnett’s author-
ization, Henry assumed the duties of his supervisor Hall
when Hall was absent due to illness. As Hall did, Henry as-
signed work to the fab employees, saw that the work was
performed properly and in a timely manner, answered em-
ployees questions when he could and checked with Hall
when he couldn’t, handled timecards, etc. Although Bisnett
may have limited Henry’s authority as a statutory supervisor,
Bisnett never conveyed this to the employees nor did Henry.
For all intents and purposes Henry was the foreman as far
as the employees were concerned and they were expected to
follow Henry’s instructions whenever Hall was absent and
when Bisnett went on vacation in March 1991. Bush un-
equivocally testified that he considered Henry his supervisor.
Additionally Henry was allowed to use Hall’s office and
ceased to perform his previous welding duties. Thus the
record clearly reveals that the Respondent placed Henry in
a position as acting or assistant foreman where employees
could reasonably believe that he spoke on behalf of manage-
ment.67
Partly, if not totally, at the suggestion of the Respondent’s
labor consultant, Edwin Ricker, a supervisor and agent of the
Respondent, made at the employees meeting on February 15,
1991, Henry prepared and started soliciting employee signa-
tures on a petition against the Union in late February 1991.
While it is true that Henry had not as yet assumed Hall’s du-
ties as full-time foreman when Hall was absent, Rood
credibly testified that when Hall became ill in January 1991,
Potts, Burdick and Henry would fill in for him on occasion.
Upon Henry being assigned to perform Hall’s duties as as-
sistant to Hall full-time in mid-March 1991, he continued to
circulate and solicit employee signatures until the end of
March 1991, all during the critical period before the election.
Admittedly, the Respondent was aware of what Henry was
doing regarding the petition against the Union and allowed
him to solicit employee signatures thereon during worktime
and on company property in effect outwardly encouraging
and endorsing Henry’s action. Supporting this is Michael
Bisnett being seen with Henry with or in the vicinity of the
petition pointing to an employee who had recently signed the
petition, and with Bisnett thanking Bush for signing the peti-
tion with his hand around Bush’s shoulders, all presumably
on the workfloor in full view of any employees present. Ad-
ditionally, Henry was observed with a computerized or typed
list of employees, names which he marked as employees
signed the petition or not, and it is reasonable to infer that
he obtained such a list from the Respondent to assist his so-
licitation of employee signatures, for as a nonmanagerial or
supervisory employee, where else would he obtain such a
listing.
Furthermore, Mark Rood testified that he had signed the
petition against the Union to give the impression that he was
antiunion since he believed that the Respondent wanted this
and to curry its favor.
From the above, I find and conclude that William Henry
was an agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act and that the Respondent gave Henry
the actual and apparent authority to solicit employee signa-
tures on the petition against the Union. Moreover, I also find
that the Respondent, through Michael Bisnett, also involved
itself in the circulation of the petition and solicitation of em-
ployee signatures thereon. The suggestion for the petition
came from Ricker, Bisnett was seen with Henry and the peti-
tion identifying employees signatures and the employees
themselves, on the work floor, and Bisnett had thanked an
employee for signing the petition although the identity of
such employees was purported to be secret and to be with-
held from management.
Therefore, the Respondent violated Section 8(a)(1) of the
Act when it involved itself in the preparation and circulation
of the petition against the Union since unit employees would
understandably consider the petition as sponsored and en-
couraged by the Respondent and thereby tended to coerce or
interfere with the employees exercise of their rights under the
Act.68
4. Promises of wage increase and other benefits
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by promising its employees various bene-
fits including a grievance procedure in order to induce them
to vote against the Union in the election and by promising
and granting wage increases to employees in order to dis-
suade them from supporting the Union. The Respondent de-
nies these allegations.
a. By Edwin Ricker
At the meeting with employees held on April 3, 1991, 2
days before the Board election on April 5, 1991, Edwin
Ricker told employees that the survey conducted previously
by the Respondent had indicated employee concerns in cer-
tain of their terms and conditions of employment and that the
Respondent would like to remove these concerns by provid-
ing a new grievance procedure program (IDRC), a new wage
1123WASTE STREAM MANAGEMENT
69 NLRB v. Norbar, Inc., 752 F.2d 235 (6th Cir. 1985).
70 NLRB v. E. I. DuPont Co., 750 F.2d 524 (6th Cir. 1984); Henry
I. Siegel Co. v. NLRB, 4l7 F.2d 1206 (6th Cir. 1969).
71 Pennsy Supply, 295 NLRB 324 (1989); Electric Hose & Rubber
Co., 267 NLRB 488 (1983); C-F Air Freight, 247 NLRB 403
(1980).
72 Litton Industrial Products, 221 NLRB 700, 701 (1975), enf. de-
nied 543 F.2d 1085 (4th Cir. 1976). Also see Elston Electronics
Corp., 292 NLRB 510 (1989).
73 Mariposa Press, 273 NLRB 528 (1984); Chester Valley, 251
NLRB 1435 (1980).
74 Doces Sixth Avenue, 225 NLRB 806 (1976). Also see Mariposa
Press, supra.
program (PKP), a job bidding and posting procedure, better
communications between the employees and management,
and a revised employee handbook. Ricker advised the em-
ployes that if the Union lost the election, these programs
would be implemented and if the Union won the election the
Respondent would negotiate with the Union regarding these
items.
The test for determining whether an employer has violated
Section 8(a)(1) of the Act is whether the employer’s conduct
tends to be coercive or tends to interfere with the employees’
exercise of their rights.69 In making this determination the
Board considers the total context in which the challenged
conduct occurs and is justified in viewing the issue from the
standpoint of its impact on the employees.70
Having previously unlawfully solicited employees’ griev-
ances by means of a written survey at the February 4, 1991
meeting with employees, the Respondent, through Ricker,
now promised to remedy these grievances by presenting al-
ready developed programs (IDRC, PKP) and improved bene-
fits to be implemented if the Union lost the election or nego-
tiated with the Union if it won the election. Ricker’s state-
ments were not general and vague or mere responses to em-
ployee suggestions to be looked at at some indefinite future
time. Moreover, the Respondent’s unequivocal commitment
to these programs was communicated to the employees two
days before the Board’s scheduled election. Even Ricker’s
statement that these programs and benefits would be imple-
mented if the Union lost the election or negotiated with the
Union if it won, under the circumstances present herein
seems to present to the employees the choice of ‘‘a bird in
the hand or two in the bush,’’ vote against the Union and
your certain of these programs and benefits, vote for the
Union and you face the possible uncertainty of negotiations.
Accordingly, I find and conclude that Ricker’s statements
conveyed at the very least an implied promise to remedy the
employees grievances and thereby infringed on the employ-
ees rights under Section 7 of the Act in violation of Section
8(a)(1) of the Act.71
b. By James Bruno
On January 24, 1991, at a meeting between Bruno and em-
ployees, Michael Guiles and Edward Law, the employees
asked Bruno for raises. Bruno promised to look into their re-
quest and later that same day granted each of them a 50-
cent-per-hour wage increase.
In NLRB v. Exchange Parts Co., 375 U.S. 405, 409
(1964), the United States Supreme Court stated:
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside the velvet glove.
The employees are not likely to miss the inference that
the source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
The Board in Marine World USA, 236 NLRB 89, 90 (1978),
held:
It is well settled, however, that the granting of wage
increases and/or benefits during the pendency of a rep-
resentation proceeding, including the pendency of ob-
jections to an election, is not per se unlawful. Rather,
the test is whether, based on the circumstances of each
case, the granting of increased wages and benefits is
calculated to impinge upon the employees’ freedom of
choice in an upcoming scheduled election or an election
which might be directed in the future.6 Thus, for exam-
ple, the Board has found the granting of new wages and
benefits during the pendency of a representation pro-
ceeding to be lawful where an employer has established
that such action was consistent with past practice,7 such
action had been decided upon prior to the onset of
union activity,8 or business justifications prompted the
adjustment.9
6 McCormick Longmeadow Stove Co., supra at l242; Champion
Pneumatic Machinery Co., 152 NLRB 300, 306 (1965).
7 Cf. The Gates Rubber Company, 182 NLRB 95 (1970).
8 See, e.g. FMC Corporation, Power Control Division, 216 NLRB
476 (1975).
9 See, e.g. Frito-Lay, Inc., 185 NLRB 400 (1970).
When the timing of a wage increase or other grant of bene-
fits coincides with organizational activity, ‘‘absent an affirm-
ative showing of some legitimate business reason for the tim-
ing, it is not unreasonable to draw the inference of improper
motivation and improper interference with employee freedom
of choice.’’72 The burden of establishing that the timing of
such increases was motivated by factors other than the union
campaign or the pendency of an election is on the Respond-
ent.73 The burden is met where the increases are shown to
be granted in accordance with an established wage pro-
gram.74
The Respondent asserts in its memorandum brief that:
[T]he wage increases to Guiles and Law on January
24, 1991 were motivated solely by reason of their not
having been reviewed and granted the raises normally
given to WSM employees following completion of their
sixth month of employment. That is made more notice-
able by the fact that John Carlin, one of their co-em-
ployees who like them, requested a raise on January 24,
1991, was denied the raise and told he would have to
wait until the annual review given to all longer em-
ployed employees of WSM in April.
However, the record evidence does not support the Respond-
ent’s contentions.
The January 24, 1991 meeting between Bruno and em-
ployees Guiles and Law was clearly precipitated by the em-
ployees union activities. At this meeting Bruno unlawfully
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 It is also reasonable to assume from the evidence that Whitton
had told Bruno on January 18 or 19, 1991, that Guiles, Law, and
Prashaw had spoken to a union representative and signed union au-
thorization cards.
76 United Charter Service, 306 NLRB 150 (1992); South Shore
Hospital, 229 NLRB 363 (1977); Schrementi Bros., 179 NLRB 853
(1969).
77 It should be noted that for the reasons previously stated herein,
I credit the testimony of Bush, Snyder and Walrath over that of Mi-
chael Bisnett and Henry.
solicited their grievances and promised these employees that
the Respondent would remedy them. In fact, the Respondent
did just that by granting Guiles and Law wage increases and
dividing up Prashaw’s truck route between them that very
day. Moreover, although the Respondent has a policy of
granting wage raises in April-June, after employees are given
performance reviews in April of that year, and to new em-
ployee 6 months after their hire, both Guiles, who had
worked for the Respondent for 10–11 months, and Law who
had been employed for 6–7 months had not been timely re-
viewed and the Respondent offered no valid reason for this
omission. It is conceivable that without the advent of the
Union’s organizational campaign and its filing of a represen-
tation petition with the Board, neither Guiles nor Law would
have been reviewed until April 1991 with all the other em-
ployees for raises.
Additionally, while Bruno denied that on January 24,
1991, he was aware that Guiles supported the Union, and I
assume that this would include Law as well, this is clearly
contradicted by evidence that the Union, by letter hand deliv-
ered to Bruno on January 22, 1991, advised the Respondent
that Guiles, Law and Prashaw had signed authorization cards
and had been designated as Union ‘‘committee people.’’75
Thus, the timing of the wage increase—just days after Bruno
was informed that these employees favored the Union—
weighs heavily against the Respondent’s asserted reason for
the wage increases. As for the Respondent’s reliance for sup-
port on the fact that Carlin was not granted a raise on Janu-
ary 24, 1991, although he requested one, this could also be
considered along the lines that Bruno was aware that Carlin
was already against the Union therefore there was no reason
to seek to influence his vote in any upcoming election, espe-
cially in view of the fact that in April he would be consid-
ered for a raise anyway. Also, Carlin had been employed by
the Respondent for about 3 years, and Bruno met with him
individually, so that for at least the immediate future, Carlin
would be unaware of any raises granted that day, if this was
a consideration of Bruno’s at all under the circumstances.
From all of the above, I find and conclude that the Re-
spondent has failed to make an affirmative showing, with re-
spect to the timing of its wage raises to Guiles and Law, that
such raises were motivated by factors other than the Union’s
organizational campaign or the pendency of the election, and
thereby by granting such wage increases violated Section
8(a)(1) of the Act.
5. Surveillance
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when it created the impression that it was
keeping under surveillance the union activities of its employ-
ees. The Respondent denies this allegation.
In determining whether a respondent has created an im-
pression of surveillance, the Board applies the following test:
whether employees would reasonably assume from the state-
ment in question that their union activities have been placed
under surveillance.76
The evidence herein indicated77 that William Henry,
whom I found to be an agent of the Respondent, prepared
and circulated a petition against the Union for employees sig-
natures. On company time and on company property, Henry
was observed by at least two of the Respondent’s employees,
Verde Snyder and Richard Walrath, marking off the names
of employees who had signed the petition or refused to do
so from a list of employees, and it is reasonable to infer
from the circumstances present in this case that other em-
ployees also saw this and were aware of what Henry was
doing as well. Moreover, almost immediately after Bush
signed the petition against the Union an owner, Michael
Bisnett, came over and thanked him for signing it and put
his arm around Bush’s shoulders for employees to see. Bush,
on another occasion observed Bisnett and Henry pointing to
another employee who had just signed the petition, again
possibly in view of other employees. Bisnett admitted know-
ing about Henry’s circulation of the antiunion petition and
observing the petition and the names of employees who had
signed it, notwithstanding that Henry had advised Bush that
no one from management would be apprised of what was
happening or be told the names of employees who signed or
did not sign the petition. Henry’s response to Bush when
Bush confronted him with Bisnett’s knowledge that he had
signed the petition is enlightening, Henry told him that it
made no difference whether management knew or not since
Bush had already signed the petition and he therefore had
nothing to worry about. Also, Rood’s testimony that he
signed the petition because it would give the Respondent the
impression that he was against the Union currying manage-
ment’s favor ‘‘in light of prior terminations,’’ raises the in-
ference that he believed that the Respondent would learn that
he had signed it.
As regards Bisnett’s statement to Bush at the end of
March 1991, made several times during the day that, ‘‘Yoo
hoo, Harold, I’m watching you,’’ Bush expressed bewilder-
ment at what Bisnett meant by this. Bush had not signed a
union authorization card and had attended only one union
meeting. It is unclear from the record as to whether Bush’s
actions, his refusal to sign the petition when first asked by
Henry to do so, his attendance at a union meeting after tell-
ing Henry that he wanted to hear the Union’s side, and then
his actual signing of the petition against the Union each
came before or after Bisnett made these seemingly bizarre
statements to Bush. If Bisnett’s statements came before Bush
signed the petition there would be a strong inference that the
Respondent through Bisnett was placing Bush’s union activi-
ties under surveillance, it could appear to imply nothing else
that makes sense. If the statements came after, the inference
would be weakened but still could be assumed to be a re-
minder to Bush about what to do in the upcoming election.
Be that as it may, and from all of the above, I find and
conclude that the Respondent created the impression that its
1125WASTE STREAM MANAGEMENT
78 United Charter Service, supra; Belcher Towing Co. v. NLRB,
726 F.2d 705 (11th Cir. 1984), enfg. 265 NLRB 1258 (1982);
Crown Cork & Seal Co., 254 NLRB 1340 (1981).
79 Cartridge Actuated Devices, 282 NLRB 426 (1986). Also see
Sweetwater Crafts, 300 NLRB 18 (1990).
80 Lakepark Industries, 293 NLRB 452 (1989); Laminates Unlim-
ited, 292 NLRB 595 (1989).
81 Ibid.
employees’ union activities were under surveillance thereby
violating Section 8(a)(l) of the Act.78
6. Threat of plant closure
The complaint alleges that the Respondent, through Ches-
ter G. Bisnett Sr., threatened to close its facilities because of
the union activities of its employees in violation of Section
8(a)(1) of the Act. The Respondent denies this allegation.
Vern Arno testified that on April 8, 1991, following the
Board election on April 5, 1991, while he was in dispatcher
Terry Morehouse’s office, the Respondent’s president, Ches-
ter G. Bisnett Sr., asked Arno what he thought about the
election which the Union had lost. Arno responded that if the
Respondent failed to make the changes in wage and other
working conditions as it had said it would, and there was an-
other Board election Arno would vote for the Union. Bisnett
Sr. then told Arno that, ‘‘Well, if I was running this place,
I would lock the doors and send everyone home. . . . [I]
would never have the Union.’’ I credit Arno’s account of this
occurrence since Bisnett Sr. was not called as a witness to
testify herein and Arno’s testimony remained uncontradicted
in the record.
Bisnett Sr. is the Respondent’s president, and the record
is devoid of any evidence that the employees considered him
as a ‘‘figure head.’’ Moreover, Bisnett Sr. statement was
clearly a threat that the Respondent’s operations would close
if the Union ever came in and thereby interfered with, re-
strained, or coerced employees in the exercise of their statu-
tory rights under the Act in violation of Section 8(a)(1) of
the Act.79
7. Imposition of more onerous working conditions
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act when it imposed more onerous
working conditions on employee Verde Snyder, and violated
Section 8(a)(1) of the Act when its supervisor, Robert Dal-
ton, told Snyder that the Respondent was taking such action
because of Snyder’s activities on behalf of the Union. The
Respondent denies these allegations.
The record evidence shows that it was the Respondent’s
practice in the mechanics yard to divide the outside yard
work between all the mechanics so that the hardship of
working outdoors during the cold winter months would be
bourne equally among them. After the Union began its orga-
nizational campaign in January 1991, Snyder discussed the
Union with his supervisor, Robert Dalton, on numerous occa-
sions with Snyder telling Dalton that the Union would be
good for the employes and that most of the mechanics sup-
ported the Union. Snyder signed a union authorization card
on January 28, 1991, discussed the Union with other employ-
ees, and attended two union meetings.
Snyder testified that in late January or early February
1991, Dalton started to assign him to perform most of the
outside yard work on cranes and loaders, and Dalton’s
friendly attitude towards Snyder and the other mechanics
ceased. Sometime in mid-February 1991, Snyder approached
Dalton and complained about his being assigned more of the
outside yard work than the other mechanics contrary to past
practices, and why Dalton’s friendly attitude towards the em-
ployee had changed. Snyder also informed Dalton at this
time that he had signed a union authorization card. Accord-
ing to Snyder, Dalton’s response was that, ‘‘[T]he union
thing has got a lot to do with what was going on at the
time.’’ Dalton also told Snyder that the Respondent had in-
structed him to stop being friendly with the other employees.
Dalton denied assigning Snyder anymore outside yard
work than the other mechanics or that Snyder had com-
plained to him about his. However, Dalton acknowledged
that Snyder, who performed mainly repair work, had been as-
signed to repair an outside circuit panel and for a period of
time to work on a trailer in the yard, although Dalton main-
tained that other employees, such as a welder, were also
working on this trailer at the same time. Dalton admitted that
he was aware that Snyder favored the Union, at first stating
that Snyder had told him so, then that although Snyder had
not told him directly that it was common knowledge among
the employees.
I credit the testimony of Verde Snyder over that of Robert
Dalton. Snyder’s testimony was consistent with the testimony
of other of the General Counsel’s witnesses I credited above,
appeared forthright and was consistent with other evidence in
the record. Moreover, while it is true that Snyder is a
discriminatee in this case, it appears that he was subse-
quently rehired and working for the Respondent at the time
he testified herein and with what had transpired regarding his
previous layoff, at issue in this proceeding, it took some
courage to testify about a different issue adverse to the Re-
spondent, his employer. Although I do not dismiss Dalton’s
testimony out of hand, it appeared designed more to assist
the Respondent’s positions herein than consistent with the
other evidence in the record on this and other issues as well.
Dalton’s assignment of Snyder to perform more than his
share of the outside yard work contrary to past practice raises
the inference that such action was taken for other than legiti-
mate business justification especially in view of Dalton’s
statement that the Union had a lot to do with what was hap-
pening at the time. I therefore find and conclude that when
the Respondent imposed more onerous working conditions
on Verde Snyder because of his union activities, the Re-
spondent violated Section 8(a)(1) and (3) of the Act.80 The
Respondent also violated Section 8(a)(1) of the Act when Su-
pervisor Robert Dalton told Snyder that it was taking this ac-
tion against him because of his activities on behalf of the
Union.81
8. Alleged unlawful termination of employees
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by terminating employees Eugene
Prashaw, Verde Snyder, Richard Walrath, Mark Rood, and
Vern Arno, on various respective dates, because of their
union activities. The Respondent denies these allegations.
Section 8(a)(3) makes it an unfair labor practice for an
employer to discriminate ‘‘in regard to hire or tenure of em-
ployment or any term or condition of employment to encour-
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
82 Wright Line, 251 NLRB at 1089. Also see J. Huizinga Cartage
Co. v. NLRB, 941 F.2d 616 (7th Cir. 1991).
83 Hall Construction v. NLRB, 941 F.2d 684 (8th Cir. 1991).
84 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1960).
85 Asociacion Hospital del Maestro, 291 NLRB 198 (1988); White-
Evans Service Co., 285 NLRB 81 (1987); NLRB v. O’Hare-Midway
Limousine Service, 924 F.2d 692 (7th Cir. 1991).
86 ACTIV Industries, 277 NLRB 356 (1985); Heath International,
196 NLRB 318 (1972).
87 I am not unaware that Guiles and Law had also been identified
in the Union’s letter to Bruno as having signed union authorization
cards and been designated as union committeemen. However, their
appearance at the January 24, 1991 meeting with Bruno presented
the Respondent with the opportunity to hear these employees griev-
ances, judge what the promise to resolve these grievances might por-
tend, and in remedying them dissuade these employees from support-
ing the Union. On the other hand with Prashaw’s failure to attend
this meeting, his layoff might serve as a lesson to those who contin-
ued to support the Union. Moreover, the Board has held that the ter-
mination of only one of several union activists does not, without
more, support an inference that the employer’s motivation for such
termination was lawful. See Nachman v. NLRB, 337 F.2d 421 (7th
Cir. 1964).
88 The Respondent introduced into evidence two ‘‘disciplinary ac-
tion forms’’ dated 6/28/90 and 8/7/90, allegedly from Prashaw’s per-
sonnel file. However, these documents were not signed by Prashaw,
the testimony of various witnesses establishes that Prashaw never
was shown or received copies thereof and since Prashaw was never
informed about them, it cannot be said that the Respondent complied
with its purported disciplinary procedure leading to termination then
in effect, although the Respondent asserted that these disciplinary
forms were a consideration in its decision to layoff Prashaw. More-
over, neither Prashaw nor any of the other discriminatees discussed
hereinafter, were given any advance warning nor any opportunity to
correct any problems the Respondent had with them prior to their
termination as provided for in the disciplinary procedure.
89 See for example International Metal Co., 286 NLRB 1106
(1987).
90 See Christopher Construction Co., 288 NLRB 1272 (1988).
age or discourage membership in any labor organization.’’
Under the test announced in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), and approved by
the Supreme Court in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), a discharge is violative of the
Act only if the employee’s protected conduct is a substantial
or motivating factor for the employer’s action. If the General
Counsel carries his burden of proving unlawful motivation,
then the employer may avoid being held in violation of Sec-
tion 8(a)(1) and (3) of the Act only if it can show that ‘‘the
same action would have taken place even in the absence of
the protected conduct.’’82 The first part of the Wright Line
test requires proof not only that the employer knew of the
employee’s union activities, but also that the timing of the
alleged reprisal was proximate to the protected activities and
that there was antiunion animus ‘‘to link the factors of tim-
ing and knowledge to the improper motivation.’’83 It is also
well settled, however, that when an employer’s stated mo-
tives for its actions are found to be false, the circumstances
may warrant an inference that the true motivation is an un-
lawful one that the employer desires to conceal.84 The mo-
tive may be inferred from the total circumstances proved.
Moreover, the Board may properly look to circumstantial
evidence in determining whether the employer’s actions were
illegally motivated.85 That finding may be based on the
Board’s review of the record as a whole.86
a. Layoffs
1. Eugene Prashaw
Prashaw was employed by the Respondent for approxi-
mately 3-1/2 years as a truckdriver. Prashaw signed a union
authorization card on January l6, 1991 and by letter hand de-
livered to Bruno, part-owner and a vice president of the Re-
spondent, on January 22, 1991, the Union informed the Re-
spondent that Prashaw, among other employees, had signed
such a card and was officially designated as a union com-
mitteeman. On January 28, 1991, Prashaw was laid off. In
its layoff letter to Prashaw, the Respondent asserted that the
reason for this action was the restructuring of its truck routes
and since Prashaw’s route was being ‘‘absorbed by the re-
maining drivers’’ there was no need for his driver’s position
and it was being eliminated.
However, at the hearing, Bruno gave as the reasons for the
Respondent’s action in laying off Prashaw: that the Respond-
ent had received numerous complaints about Prashaw’s work
performance from his supervisor Whitton; that at the meeting
on January 24, 1991, with Prashaw’s fellow employees
Guiles and Law, these employees complained about having
to perform part of Prashaw’s work and since they had also
requested additional work hours to supplement their salaries
and had raised the feasibility of dividing Prashaw’s truck
route between them, Bruno agreed to this proposal to satisfy
their requests and resolve their complaints; and that by lay-
ing off Prashaw, the Respondent would benefit monetarily
since eliminating Prashaw’s position the Respondent would
save the cost of his salary and use of his truck.
The record evidence herein shows that the reasons ad-
vanced by the Respondent for its layoff of Eugene Prashaw
were pretextual.
Prior to January 28, 1991, Prashaw had received no indi-
cation or notice that the Respondent was considering consoli-
dating his truck route or that he would be laid off. In fact,
as Bruno admitted, the decision to take such action was
made on January 24, 1991, significantly 2 days after the Re-
spondent learned of Prashaw’s union activities.87 It is also
significant that Prashaw never received any written warning
notices regarding his alleged work deficiencies and Bruno
maintained that Prashaw’s layoff was not considered a dis-
ciplinary action.88 Moreover, it should be remembered that
the sole reason advanced by the Respondent in its layoff let-
ter to Prashaw was the restructuring of its truck routes lead-
ing to the elimination of Prashaw’s position. Also, Prashaw
was the most senior of the four truck drivers at the Respond-
ent’s Gouverneur facility.89
Additionally, after Prashaw’s layoff supervisors were re-
quired to fill in driving Prashaw’s route besides Guiles and
Law, which would indicate that the need for another driver
on Prashaw’s truck route was not eliminated by any ‘‘re-
structuring.’’ This finds support in the fact that just 2 months
after Prashaw’s layoff, the Respondent advertised in the local
newspaper for a truck driver and since that time hired four
other drivers, two of whom were still employed by the Re-
spondent at the time of the hearing.90 Furthermore, when
Prashaw subsequently learned of a job opening with the Re-
spondent for ‘‘roll-off’’ driver, he requested consideration for
1127WASTE STREAM MANAGEMENT
91 See for example Jumbo Produce, 294 NLRB 998 (1989); North-
east Lincoln-Mercury, 292 NLRB 857 (1989).
92 Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
93 Equitable Gas Co., 303 NLRB 925 (1991); Chelsea Homes, 298
NLRB 8l3 (1990).
94 Fluor Daniel, Inc., 311 NLRB 498 (1993); Shattuck Denn Min-
ing Corp. v. NLRB, supra.
95 Ibid. Also see Collectramatic, Inc., 267 NLRB 866 (1983).
96 House of Raeford Farms, 308 NLRB 568 (1992).
97 The Respondent introduced into evidence three documents
which alleged instances of poor work performance and employee
harassment by Snyder. One was undated and unsigned by anyone,
another was dated 3–7–91 and signed only by Dalton, and the third
describing incidents of harassment by Snyder of a fellow employee
is signed by Dalton and the employee, Frank Snyder. Testimony es-
tablished that these documents were prepared after Verde Snyder
was laid off so that he never saw them, the preparer of the docu-
ments was unknown and I therefore do not give much weight to
Continued
the job through the Respondent’s dispatcher-supervisor, Terry
Morehouse, and by letter to Bruno. No response to his re-
quests were received by Prashaw although he was apparently
qualified for the position.91
As found herein, the Respondent engaged in numerous
violations of Section 8(a)(1) of the Act during the critical
preelection period. This together with its knowledge of
Prashaw’s protected activities and the timing of his layoff in
close proximity to Prashaw’s union activities evidences that
the General Counsel has established a prima facie case that
a reason for the Respondent’s layoff of Eugene Prashaw was
his protected activities and was discriminatorily motivated.92
In order to rebut the prima facie case, the Respondent
must demonstrate that it would have laid off Prashaw in the
absence of his protected activities. The Respondent has the
burden of presenting ‘‘an affirmative defense in which the
employer must demonstrate by a preponderance of the evi-
dence that the same action would have taken place even in
the absence of the protected conduct.’’93 Having found that
the Respondent’s proffered justifications for the layoff of
Prashaw were pretextual, I conclude that the Respondent has
failed to meet its Wright Line burden of demonstrating that
it would have taken the same action in the absence of
Prashaw’s union activities.94
Based on the foregoing, I find and conclude that the Re-
spondent violated Section 8(a)(3) and (1) when it laid off Eu-
gene Prashaw because of his union activities.95
The complaint also alleges that the Respondent terminated
Eugene Prashaw and consolidated routes in order to redress
grievances of its employees and in order to dissuade employ-
ees from engaging in activities on behalf of the Union in vio-
lation of Section 8(a)(1) of the Act. The Respondent denies
this allegation.
Bruno admitted that one of the reasons he laid off Prashaw
and divided his truck route between Guiles and Law was to
satisfy their request to him for additional hours to supple-
ment their salaries and their suggestion of such action against
Prashaw. Having previously found that the Respondent vio-
lated Section 8(a)(1) of the Act when Bruno solicited griev-
ances from employees Guiles and Law and explicitly and im-
plicitly promised to rectify these grievances, the actual act of
remedying such grievances is in and of itself a violation of
Section 8(a)(1) of the Act since it interferes with, restrains,
and coerces employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.96
2. Verde Snyder
Snyder commenced his employment with the Respondent
in September 1988 as a truckdriver. In September or October
1989 Snyder was transferred to a mechanics position which
he held until his layoff on February 22, 1991. Snyder signed
a union authorization card on January 28, 1991, and spoke
openly in favor of the Union frequently with his fellow em-
ployees and with his supervisor, Robert Dalton. As found
hereinbefore, soon after Snyder signed the union card he was
assigned to more onerous working conditions and Dalton’s
previously friendly attitude towards him changed. About a
week before his layoff, Snyder asked Dalton why things had
changed between them and why he was being assigned more
than his share of wintertime outside work and Dalton replied
that the Union had a lot to do with it. Snyder then told Dal-
ton that he had signed a union authorization card and that
he didn’t care who knew about it. However, admittedly it
was also common knowledge at the Respondent’s facility
that Snyder was in favor of the Union.
A week after this discussion with Dalton, Snyder appeared
for work on February 25, 1991, and was handed a letter by
Bruno who told him ‘‘this is how the Company feels.’’ The
letter notified Snyder that his last day of work was February
22, 1991, and that the reason for this was that his position
had been eliminated after ‘‘careful reassessment of the work-
load in our maintenance shop.’’
At the hearing the Respondent asserted that because of
poor economic conditions resulting in a decline in the me-
chanics division workload it had been decided to eliminate
one mechanics position. Since Verde Snyder was the least
qualified and experienced of the mechanics, and was the sub-
ject of consistent coworker complaints, i.e., failure to per-
form his work adequately, poor attitude, smokes, and drinks
coffee all during the shift, resentful of supervision, and had
been involved in the harassment of a fellow employee who
refused to support the Union, the Respondent had chosen his
position for elimination and Snyder for layoff.
The record evidence establishes that the reasons alleged by
the Respondent for the elimination of Verde Snyder’s posi-
tion are pretextual.
Prior to February 25, 1991, Snyder had received no indica-
tion or notice that the Respondent was contemplating the
elimination of any of the mechanics positions. In fact, before
Snyder’s layoff, no mechanic had ever been laid off by the
Respondent for any reason. Moreover, at the time of Sny-
der’s layoff he and the other two working mechanics, Todd
Hayes and Frank Snyder (no relation) were all working over-
time averaging 55–60 hours weekly. While it is true that an-
other mechanic, William Ramsey, was out sick at the time,
he apparently did not return to work until a week or more
after Snyder was laid off, Ramsey generally was assigned to
perform tire maintenance and service. Also, the Respondent
hired a new mechanic approximately three months after Sny-
der was laid off, the remaining mechanics continued to work
substantial hours thereafter, and Snyder observed that there
had been no decline in the shop work prior to his layoff.
Additionally, it is significant that Snyder never received
verbal or written warnings about his alleged poor work per-
formance or bad attitude, etc.97 Moreover, Snyder received
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them. Furthermore, this fails to reflect the Respondent’s compliance
with its own disciplinary procedure then in effect regarding warning
notices and termination.
98 International Metal Co., supra; Sogard Tool Co., 285 NLRB
1044 (1987).
99 Roure Bertrand Dupont, Inc., supra.
100 Fluor Daniel, Inc., supra; Equitable Gas Co., supra; Shattuck
Denn Mining Corp. v. NLRB, supra.
101 Ibid.
102 Bay Corrugated Container., 3l0 NLRB 450 (1993); Chopp &
Co., 295 NLRB 1058 (1989); Springhill Services, 295 NLRB 1021
(1989); Future Ambulette, 293 NLRB 884 (1989).
103 NLRB v. Future Ambulette, 903 F.2d 140 (2d Cir. 1990); NLRB
v. J. Coty Messenger Service, 763 F.2d 92 (2d Cir. 1985).
104 Wright Line, supra.
wage increases during his employment with the Respondent,
the above strongly suggesting that while the Respondent was
willing to put up with his alleged poor performance and
work attitude prior to the advent of the Union’s organiza-
tional campaign, once the Union appeared on the scene and
Verde Snyder supported it, his deficiencies now became un-
acceptable to the Respondent.
Furthermore, Snyder had more seniority than two of the
other mechanics; Todd Hayes had been employed by the Re-
spondent at the time for 3–4 months and Frank Snyder from
6–13 months. When considering that Ramsey performed gen-
erally ‘‘tire work,’’ Snyder would then have been the me-
chanic with the most experience in performing the mechani-
cal service work required by the Respondent’s operation.
Add to this that Snyder had never been given any verbal or
written warnings about his work performances, had received
wage increases over the course of his employment with the
Respondent, and had substantially more seniority than the
other two mechanics, and under these circumstances it is
highly suspect that Snyder would be laid off first if the
elimination of one mechanics position for business reasons
were the real reason for this action.98
Of additional significance is the Respondent’s failure to
mention any of its asserted reasons for selecting Snyder for
layoff in its letter notifying him of his last day of work. This
letter raised the declining mechanics workload as the only
reason for its action. Moreover, even the Respondent’s asser-
tion that Snyder was chosen for layoff because he was the
‘‘least experienced’’ of the mechanics remains doubtful. Sny-
der had had approximately 2-1/2 years of on-the-job training
as a mechanic, had been granted raises during this period
presumably for adequate or better work, and had never re-
ceived warnings about his work performance. Even if Snyder
was the least experienced of the mechanics as compared to
Todd Hayes who had previous vocational training and Frank
Snyder’s diesel school experience, he undisputedly had more
experience than John Hayes who was hired subsequently in
June, 1991, and apparently more than Ramsey who was used
for tire maintenance and service.
From the record evidence it is clear that the Respondent
was aware of Verde Snyder’s union activities. The Respond-
ent also has been found to have engaged in various violations
of Section 8(a)(1) of the Act during the critical preelection
period. These, together with the timing of his layoff occur-
ring close to Snyder’s union activities establishes that the
General Counsel has sustained his burden of proving a prima
facie case that a reason for the Respondent’s layoff of Verde
Snyder was his protected activities.99
Having found that the Respondent’s asserted reasons for
laying off Snyder were pretextual, I conclude that the Re-
spondent has failed to meet its Wright Line burden of show-
ing that it would have taken the same action against him in
the absence of his protected activities.100 From all the above,
I find and conclude that the Respondent violated Section
8(a)(3) and (1) of the Act when it unlawfully laid off Verde
Snyder because of his union activities.101
b. Discharges for alleged misconduct
It is well settled that an employer’s ‘‘business justifica-
tion’’ for terminating an employee will be held to be
pretextual where other employees who have engaged in simi-
lar or more serious conduct receive milder or no discipline
at all.102 Such disparate treatment of an employee tends to
support the inference of an unlawful motive, rather than
good-faith business judgment.103
Under the analysis set forth in Wright Line, supra, the
General Counsel must show that the protected conduct of an
employee was a motivating factor in the employer’s decision
to discharge him. Once established, the burden then shifts to
the employer to demonstrate that it would have discharged
this employee even in the absence of the employee’s union
activities.104
1. Richard Walrath
Walrath commenced his employment with the Respondent
in late June or early July 1990 as a ‘‘roll-off’’ truckdriver
at the Respondent’s Potsdam facility. Walrath signed a Union
authorization card on January 23, 1991, attended one union
meeting prior to his discharge, and spoke favorably about the
Union to his fellow employees. About 1 week before his ter-
mination Walrath was asked by an employee, obviously Wil-
liam Henry, to sign the petition against the Union which
Walrath refused to do. Walrath then saw Henry place a mark
against his name after his refusal to sign the petition.
On February 19, 1991, Walrath dented the top of a con-
tainer at the Newton Falls Paper Company while moving the
box. Upon his return to the Potsdam facility he reported this
incident to Terry Morehouse, his supervisor who unaware of
the extent of the damage told him to forget about it since
dents to containers were a common occurrence. On February
21, 1991, Morehouse advised Walrath that part-owner and
Vice President Chester Bisnett Jr. had viewed the container
and wanted to speak to him about the damage and that
Walrath should explain to Bisnett Jr., that Walrath had tried
to tell Morehouse about the damage but Morehouse was
busy, sent Walrath out on another assignment, and it was
later forgotten. Walrath was unable to speak to Bisnett Jr.
that day because Bisnett was too busy.
On March 1, 1991, Walrath was called to Bisnett Jr’s. of-
fice and given a letter of termination. Bisnett Jr. refused to
listen to Walrath’s explanation as to what happened and re-
ferred to two other accidents that Walrath had been involved
in previously and this last one. Walrath’s discharge letter
gives as the reason for his termination Walrath’s ‘‘unsafe
working habits’’ in that he was involved in two prior acci-
dents (each involved the dropping of a container off a truck
resulting in damage to the truck’s lights and fender), and the
latest one in which Walrath ‘‘badly damaged’’ a container
1129WASTE STREAM MANAGEMENT
105 See Kidde, Inc., 284 NLRB 78 (1987).
106 Sogard Tool Co., supra; NLRB v. Health Care Logistics, 784
F.2d 232 (6th Cir. 1986), quoting Alumbaugh Coal Corp. v. NLRB,
635 F.2d 1380 (8th Cir. 1980).
107 Bay Corrugated Container, supra; Pottsville Bleaching Co., 303
NLRB 186 (1991); Mid-Mountain Foods, 291 NLRB 693 (1988).
108 I credit the testimony of Rood over that of Bisnett and Potts.
Besides Having discredited Bisnett’s testimony on other issues,
Rood’s testimony was given in a forthright manner and importantly,
consistent with other credited evidence in the record. Moreover,
Potts’ testimony was contrary to other testimony in the record con-
stituting admissions and seemed designed to advance the Respond-
ent’s cause herein rather than the truth. For example, Rood testified
as to a statement made to him by Bisnett in Potts presence on Feb-
ruary 26, 1991, regarding the wearing of ‘‘clean pants’’ when driv-
ing his truck. Potts denied hearing Bisnett make this statement while
Bisnett admitted doing so.
while hitting a door opening entering or existing a building.
Bisnett Jr.’s letter also states that since Walrath had failed
to inform him of this accident, ‘‘how this happened or why’’
the Respondent assumed that Walrath was covering the acci-
dent up to escape any consequences and hoped it would re-
main unnoticed and/or undiscovered.
Whatever part credibility plays in resolving this issue, it
should be noted that I would credit the testimony of Richard
Walrath over that of the Respondent’s witnesses Colleen
Wallace, Chester Bisnett Jr., James Bruno, and Terry More-
house. Wallace’s testimony at times was contradictory and
unsubstantiated regarding the accident reports on which the
Respondent allegedly based Walrath’s termination and the
Respondent’s actual disciplinary procedure, and the same can
be said of Bisnett Jr.’s. I also noted some disparity between
each other’s testimony regarding driver accidents. Moreover,
Walrath’s testimony as concerns other issues in this case was
consistent with other credited witnesses herein and with other
uncontested evidence in the record and, overall, he testified
in a forthright manner.
Be that as it may, and while Bisnett Jr. maintained that he
discharged Walrath because of these accidents and the seri-
ousness of the last one, because Walrath could have caused
extensive damage to the property of one of the Respondent’s
major customers, the record evidence is replete with driver
accidents of an equal or more serious nature in which the
Respondent issued no discipline or, when it did, discipline of
a substantially milder nature, and no driver was ever fired for
this before. Among the other driver accidents listed herein-
before, I note particularly that of driver Caylon Foster, caus-
ing damage to a customer’s wall to the extent of $12,000–
$13,000 paid by the Respondent with no discipline imposed,
and driver Wade Rivers who backed his truck loaded with
a steel beam into a building damaging the wall for which he
received a 3-day suspension.
Additionally, the Respondent’s contentions that Walrath
was fired because he had been involved in three accidents is
disingenuous. First, discharge for a third accident does not
explain the disparate treatment accorded Walrath as com-
pared with driver Robert Converse who was involved in four
incidents. Also, Walrath’s termination does not comply with
the Respondent’s stated policy set forth in its Employees
Handbook of progressive discipline nor its past practice of
warning employees and affording them reasonable consider-
ation before the final step of termination. Moreover, as point-
ed out in the briefs of both the General Counsel and the
Union, the testimony of the Respondent’s witnesses regard-
ing Walrath’s two previous accidents illustrates the pretextual
nature of this alleged reason for his discharge. After testify-
ing that the Respondent relied on these written records of
Walrath’s two prior accidents and that these records were
available, later in the proceeding it was finally conceded by
the Respondent that no records existed of these previous inci-
dents, notwithstanding Morehouse’s testimony that he had
written Walrath up for these incidents.
The record evidence clearly shows that the Respondent
was aware of Walrath’s prounion sympathies and activities.
Walrath signed a union authorization card, attended a union
meeting before his discharge, and spoke openly with other
employees in favor of the Union. After Walrath refused to
sign the petition against the Union for William Henry, whom
I previously found to be an agent of the Respondent, Henry
had noted this on his employee’s list.105 Moreover, the Re-
spondent’s knowledge of Walrath’s union activities may also
be inferred under the Board’s small-plant doctrine that ‘‘rests
on the view that an employer at a small facility is likely to
notice union activities at the plant because of the close work-
ing environment between management and labor.’’106
The Respondent engaged in numerous violations of Sec-
tion 8(a)(1) of the Act and, as previously also found, of Sec-
tion 8(a)(3) and (1) of the Act. This, together with its knowl-
edge of Walrath’s protected activities and the timing of his
discharge establishes a prima facie case against the Respond-
ent.
The great disparity in the Respondent’s treatment of
Walrath and that of other employees who were either
antiunion or had engaged in no union activities as far as the
Respondent knew, strongly suggests that it was not Walrath’s
accidents that motivated his discharge. Rather it appears that
the Respondent seized on this reason as a pretext to fire him.
Based on the foregoing, I find that the Respondent has failed
to demonstrate by a preponderance of the evidence that
Walrath would have been discharged even without his pro-
tected activity.107 Accordingly, I find and conclude that the
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Richard Walrath because of his union activity.
2. Mark Rood
Mark Rood began his employment with the Respondent in
September 1989. Rood signed a union authorization card on
January 23, 1991, and attended one union meeting prior to
his termination on March 1, 1991. The record evidence clear-
ly establishes that the Respondent was aware of Rood’s
prounion feelings. During the critical preelection period, spe-
cifically during the week of February 17, 1991, Michael
Bisnett asked Rood’s father, who did business with the Re-
spondent, ‘‘why is Mark so hell bent on getting a union in
here?’’ Also, on February 25, 1991, while Rood, engineer
Ned Potts, and Michael Bisnett were discussing overweight
truckloads, Bisnett advised Rood to seek answers about this
from his ‘‘rep,’’ which Rood believed could only be a ref-
erence to the Union’s representative, especially in view of
Bisnett’s comments to his father, which had been disclosed
to him previously.108 Moreover, Bisnett admitted knowing
that Rood supported the Union.
The next day, February 27, 1991, after loading his truck,
Rood forgot to lower the loading boom and while backing
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
109 The accident involving Robert Converse and the forklift driver
occurred in August or September 1991 and resulted in a 3-day sus-
pension; Wade Rivers’ accident occurred in August 1991 for which
Rivers received a 3-day suspension; and Gene Pharo’s incident hap-
pened in March 1991 for which he received no discipline.
110 Bisnett Jr. testified that it was created in the summer of 1990.
111 Wright Line, supra. Also see fns. 102–103 herein.
towards the warehouse building he damaged a wall and door
canopy. When Rood reported this to Bisnett and apologized
for the damage, Bisnett told him that he would make a deci-
sion later as to what to do about this accident. Upon Rood’s
return from delivering his truckload later that afternoon, Potts
told him that if he were Rood he would act very nonunion
especially in light of the accident that morning, since the Re-
spondent was looking for an excuse to get rid of him and
Rood may have given the Respondent its reason that morn-
ing. Potts admitted telling Rood that his being associated
with the Union ‘‘might not be in his own best interests.’’
On March 1, 1991, while at work Rood was given a letter
of termination by Chester Bisnett Jr. and James Bruno which
stated that Rood had received training in the operation of the
truck boom and was being discharged because of the acci-
dent on February 27, 1991. The Respondent maintains that
Rood was fired because of the potential seriousness of this
accident. According to the Respondent and, although exten-
sive damage was caused to the building, more serious was
the potential for harmful injury to both Rood and others
since Rood could have struck high tension wires with the
upraised boom. However, the Respondent concedes that
Rood was a good employee and while Rood had been in-
volved in two prior accidents in 1990, these were incon-
sequential and played no part in his discharge. Besides Rood
was not disciplined for these prior incidents.
The record evidence herein shows that the Respondent’s
asserted reason for terminating Mark Rood is pretextual. Ex-
amples of other employees who were involved in similar or
more serious conduct and received lighter discipline or none
at all abounds in the record. For example: driver, Calvin
Rose actually struck overhead electrical wires in the Re-
spondent’s yard while driving his truck with the boom ex-
tended, shorting out electricity to the building, and for which
he received no discipline; driver William Converse struck a
building with a raised hoist at a customer’s site damaging an
overhang, but received no discipline; driver Ralph Shatraw
struck overhead signal lights with an oversized container unit
knocking them down without receiving any discipline for the
incident; driver Robert Converse backed his truck away from
a loading dock too quickly almost injuring a forklift driver
whereupon converse received a 3-day suspension after the
other employee complained about Converse’s carelessness;
also, Converse was almost struck by a train when he reck-
lessly failed to stop his truck at a railroad crossing before
proceeding with no discipline imposed for this potentially
dangerous incident; driver, Gene Pharo allowed a loaded
scrap bin to fall off his truck onto a street resulting in his
being ticketed by police and received no discipline. It is rea-
sonable to infer varying degrees of potential hazard to the
driver and/or others in these incidents.
Moreover, the Respondent’s defenses for its disparate
treatment of Rood appear contrived and without merit. The
Respondent asserted that these accidents, excluding Rood’s
and Walrath’s, were not the fault of the particular driver be-
cause of vehicle defects, unclear or improper instructions by
other employees or supervisors, or changed policies. I did not
find Bisnett Jr’s. explanation of his investigations of these in-
cidents convincing and the Respondent produced no other
evidence to support his testimony such as, repair records, in-
cident reports regarding driver complicity or fault, or testi-
mony by the drivers themselves. Also, the incidents cited
herein are not sufficiently distinguishable to warrant dispar-
ate treatment. Significantly, some of these incidents, of a
similar or more serious nature, occurred after these employ-
ees were discharged and the driver involved was not termi-
nated.109
At the hearing the Respondent also seemed to allege that
Rood and Walrath were treated differently because of a new
more strict policy regarding accidents occasioned by the in-
sistence of its insurance carrier including adequate reporting
thereof. I find no support for this defense in the record evi-
dence. First, even if this new program existed at the time al-
leged by the Respondent, the Respondent admitted that the
new policy and the accident forms in connection therewith,
were not disseminated to the employees or notice thereof
given to them. Second, if the new policy was implemented
in December, 1990,110 the question arises as to why the acci-
dents of Ceylon Foster, Robert Converse, Gene Pharo, etc.,
were also not dealt with under the new stricter disciplinary
policy terms as was Walrath and Rood. These facts illustrate
that the Respondent’s new policy on discipline was
discriminatorily applied to union adherents.
The obvious disparate treatment accorded Mark Rood
clearly establishes that Rood was discharged not for the rea-
sons set forth in his termination letter of March 1, 1991, but
for his support of the Union. It also appears more than coin-
cidental that some of the employees who were involved in
comparable or more serious accidents, and who received
lesser or no discipline at all were against union representa-
tion such as Pharo and Foster.
The Respondent’s numerous violations of Section 8(a)(1)
of the Act and its additional violations of Section 8(a)(3) and
(1) of the Act demonstrating animus against the Union, to-
gether with the Respondent’s knowledge of Rood’s union ac-
tivity, sufficiently evidences that the General Counsel has
sustained its burden of establishing a prima facie case against
the Respondent.
The disparate treatment accorded Mark Rood supports the
inference that the reasons advanced by the Respondent for
his termination were pretextual and that the Respondent’s
real motive was unlawful.111 Accordingly, I find and con-
clude that the Respondent has failed to sustain its burden of
proving that Rood would have been fired even without his
protected activity and therefore, when it discharged him be-
cause of his union activity the Respondent violated Section
8(a)(3) and (1) of the Act.
The complaint also alleges that the Respondent violated
Section 8(a)(1) of the Act when alleged Supervisor Ned Potts
told Rood that the Respondent was seeking a reason to termi-
nate him because of his union activities and that Rood should
forgo such union activities. The Respondent denies this alle-
gation.
In deciding this issue it is required that a determination be
made as to whether Ned Potts is a supervisor and/or agent
of the Respondent within the meaning of the Act. The Gen-
eral Counsel alleges that Potts is such a supervisor and agent
1131WASTE STREAM MANAGEMENT
112 Advance Mining Group, supra; NLRB v. Security Guard Serv-
ice, supra.
113 See generally Long-Airdox Co., 277 NLRB 1157 (1988).
of the Respondent. While the Respondent admitted in its an-
swer that this was so, at the hearing it amended its answer
to deny this allegation.
The evidence herein establishes that Ned Potts is a super-
visor within the meaning of Section 2(11) of the Act and an
agent of the Respondent under Section 2(13) of the Act.
Potts is employed by the Respondent at CBI Steel as a
fabrication engineer. Potts receives the architectural draw-
ings, places bids, contacts customers, purchases materials for
the job committing the Respondent’s credit, estimates job
costs and referred to himself as the ‘‘project manager.’’ Potts
and Bisnett decide job priority and Potts at times assigns
work to the employees. Potts also recommended for hire a
draftsman and upon his hire directed the draftsman’s work.
Potts has his own office, is salaried and with bonuses earns
more than any other employee except for the Respondent’s
owners. Only the owners and supervisors are salaried. Potts
was also not eligible to vote in the Board’s election. While
Potts’ does not hire, fire, discipline, or evaluate employees,
etc., he can effectively recommend hiring and it can reason-
ably be inferred that his recommendation for firing would be
given substantial consideration. Moreover, the above strongly
suggests that Potts’ exercise of his duties involves the use of
independent judgment and establishes ‘‘some kinship to man-
agement, some sympathetic relationship between the [Re-
spondent] and [himself].’’112
Accordingly, I find that the General Counsel has sustained
his burden of proving that Ned Potts is a supervisor and
agent of the Respondent within the meaning of Section 2(11)
and 2(13) of the Act, respectively.
Having found that Potts is a supervisory employee and an
agent of the Respondent; and having previously credited
Rood’s testimony over that of the Respondent’s other wit-
nesses including Potts; and while Potts admitted telling Rood
that associating with the Union was not in his best interests,
he did not deny the substance of Rood’s version of what he
had said, that the Respondent was looking for a reason to
fire him because of his support of the Union; and considering
the totality of the Respondent’s unlawful conduct herein, I
therefore find and conclude that Potts’ statements reasonably
tended to restrain, coerce, and interfere with employee’s
rights guaranteed them under the Act and the Respondent
thereby violated Section 8(a)(1) of the Act.113
3. Vern Arno
Vern Arno commenced his employment with the Respond-
ent on April 29, 1989, as a rolloff truckdriver at the Re-
spondent’s Potsdam facility. Arno did not sign a union au-
thorization card and was openly hostile to the Union at the
beginning of its organizational campaign, having spoken
against union representation at the employee’s meeting held
on February 15, 1991, at Uncle Max’s Restaurant. However,
at a union meeting held on February 24, 1991, Arno men-
tioned the Respondent’s low wages, long hours, and unfair
working conditions and spoke in favor of the Union, and
since he believed that the Respondent had an informer
among the employees present at the meeting, he added that
he didn’t care if the Respondent were told of his current sup-
port of the Union.
Thereafter, Arno actively supported the Union, discrediting
some of the Respondent’s literature as ‘‘scare tactics’’ to em-
ployees and telling employees to support the Union. Addi-
tionally, at the beginning of April 1991, just prior to the
Board election on April 5, 1991, Arno told Supervisor Terry
Morehouse that changes were needed in working conditions
and that he was going to vote for the Union in the upcoming
election. Moreover, on April 8 or 9, 1991, soon after the
election, Arno advised the Respondent’s president, Chester
Bisnett Sr., that if the Respondent failed to address needed
changes in working conditions as promised prior to the elec-
tion, then he would again vote for the Union in any ensuing
election. As discussed hereinbefore, Bisnett Sr.’s response to
this was that if it were up to him he would close down the
Respondent’s operations rather than accept the Union.
From the evidence herein, it is apparent that the Respond-
ent was aware of Arnos’ prounion feelings and his activities
on behalf of the Union at the time he was discharged on
April 15, 1991, notwithstanding Bruno’s testimony to the
contrary. In this connection, I credit the testimony of Vern
Arno over that of James Bruno for the reasons previously
used to discredit Bruno’s testimony on other issues herein.
Arno’s letter of termination states as the reason for his dis-
charge, ‘‘poor attitude in your dealing with valued cus-
tomers,’’ and listed the two incidents previously detailed
hereinbefore as the examples of his poor attitude, one being
the St. Lawrence University incident involving trash paper
blowing about the campus, and the second involving Arno’s
late delivery of a load of bales and his depositing them on
farmer Barry’s property blocking his driveway. The letter
also alleges that Arno had been rude and arrogant to the cus-
todial services manager at the University during that incident,
and unpleasant and discourteous to Mrs. Barry during the lat-
ter one.
On April 11, 1991, on Arno’s return to the Respondent’s
facility after the occurrence at St. Lawrence University,
Bruno confronted Arno with the complaint from the custodial
manager at the University and with a complaint from a farm-
er customer about Arno’s comments regarding the Respond-
ent’s delivery service if the Union came in. When Arno ad-
mitted making the comments, Bruno told him that he had
‘‘no business talking to anyone about the Union. You know
nothing about our business.’’ Bruno also asked Arno if there
was anything else bothering him and after Arno responded
that he was sick and tired of long hours and low pay, Bruno
said, ‘‘Okay, that does it’’ and told Arno to leave and return
the following Monday to find out if he still had a job.
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when Bruno told Arno on April 11, 1991,
not to talk to anyone about the Union. However, in the con-
text of this conversation Bruno’s admonition to Arno not to
speak about the Union follows directly after Arno related
what he told the farmer about what might occur regarding
the Respondent’s drivers’ delivery duties if the drivers were
to become union members and appears directed solely to
Arno’s remarks to the Respondent’s customers about the
Union and its effect on the Respondent’s business dealings.
Arno’s testimony that Bruno had ended his statement direct-
ing Arno not to talk to anyone about the Union with, ‘‘You
know nothing about our business,’’ would support this con-
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
114 Fluor Daniel, Inc., supra.
115 Wright Line, supra.
116 It is obvious from the record evidence that the employees’
union activities were carried out in such a manner and at such times
that in the normal course of events, the Respondent must have
known about them. See Sogard Tool Co., supra.
clusion. Moreover, Arno had never previously been told to
refrain from talking about the Union to anyone including fel-
low employees, although Arno had spoken in favor of the
Union to employees before the election occurred.
Under the circumstances present in this case I do not be-
lieve that the General Counsel has sustained his burden of
showing that Bruno’s statement to Arno concerning talking
about the Union to ‘‘anyone’’ interfered with, restrained and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act or tended to do so, and I therefore
would dismiss this allegation in the complaint.
The complaint also alleges that the Respondent violated
Section 8(a)(1) of the Act when Bruno informed Arno that
he had been fired because of Arno’s activities on behalf of
the Union during this same conversation. I find that Bruno’s
statement to Arno after Arno said that he was sick and tired
of long hours and low wages, that ‘‘Okay, that does it’’ and
Arno’s discharge soon thereafter tended to interfere with, re-
strain, and coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
In a telephone conversation with dispatcher Terry More-
house on April 19, 1991, Morehouse told Arno that he had
‘‘ticked Bruno off’’ by talking about ‘‘the long hours and the
wages . . . and the union.’’ Later that same day when Arno
picked up his final paycheck from Morehouse and asked
Morehouse if he, Arno, had a ‘‘bad attitude,’’ Morehouse in-
dicated that he did not. I credit Arno’s rendition of their tele-
phone conversation since Morehouse did not deny making
the statements attributed to him above, and he did admit that
he may have responded ‘‘No’’ when Arno asked him if he
had a poor attitude.
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when Morehouse informed Arno that he
had been fired because of his activities on behalf of the
Union. The evidence herein supports this allegation and I so
find. Morehouse is an admitted supervisor and agent of the
Respondent under Sections 2(11) and 2(13) respectively, of
the Act.
The record evidence herein establishes that the Respondent
was aware of Arno’s prounion inclination and his activities
on behalf of the Union at the time of his discharge on April
15, 1991. The timing of Arno’s discharge, just days after he
spoke to Bisnett Sr. about voting again for the Union, espe-
cially in view of the Union’s objections to the election, and
Morehouse’s agreement that Arno did not have a poor atti-
tude regarding his work undermines the Respondent’s as-
serted reasons for Arno’s discharge that of ‘‘poor attitude’’
including customer complaints, and supports the conclusion
that these reasons, alleged by the Respondent, were
pretextual. Moreover, the incidents mentioned by the Re-
spondent as the basis of Arno’s discharge were simply not
serious enough to warrant his termination as acknowledged
by Morehouse when he told Arno that both he and Bisnett
Sr. felt that Arno’s conduct merited a warning or talking too
rather than a discharge.
Additionally, after the General Counsel met his burden of
establishing a prima facie case that Arno’s union activities
was a motivating factor in Arno’s discharge (knowledge of
Arno’s union activities, timing of the discharge proximate to
the protected activities, and the Respondent’s clear antiunion
animus) and the pretextual nature of its asserted reasons for
such discharge,114 the Respondent then failed to sustain its
burden of showing that Arno would have been terminated
even in the absence of his union activities.115 For example,
the Respondent failed to offer proof that it had ever fired any
employee prior to Arno for a ‘‘bad attitude.’’
From all the above, I find and conclude that the Respond-
ent violated Section 8(a)(3) and (1) of the Act when it un-
lawfully terminated Vern Arno because of his union activi-
ties.
9. Additional violations alleged
The complaint also alleges that the Respondent terminated
Robert Monroe and consolidated routes in order to redress
grievances of its employees and in order to dissuade employ-
ees from engaging in activities on behalf of the Union in vio-
lation of Section 8(a)(1) of the Act. The Respondent denies
this allegation.
The record evidence herein shows that Monroe was termi-
nated by the Respondent under circumstances similar to
those involved in the termination of Eugene Prashaw, which
I previously found to be violative of the Act. Monroe com-
menced his employment as a truck driver in the Fall of 1989.
In 1990 his fellow truckdrivers, Robert Perry and Michael
Miller, started complaining to their supervisor, Tim
Alplanalp, that they were required to complete Monroe’s
truck route on occasion because of Monroe’s failure to do so.
Perry and Miller also complained to Alplanalp about
Monroe’s failure to keep the garage clean. While Alplanalp
said he would speak to Monroe about not performing his du-
ties fully and also report this to Bruno, nothing was done re-
garding Monroe. In January 1991 the Union began its organi-
zational campaign at the Respondent’s facilities. On January
8, 1991, Monroe signed a union authorization card. In late
February 1991, Perry and Miller again complained to man-
agement about having to complete Monroe’s work without
additional compensation. According to Bruno, being aware
that there was a problem with Monroe and his fellow drivers
about his work, Bruno went to the Ogdensburg facility to
speak to Perry and Miller about this. Bruno testified that re-
membering what had been done regarding Eugene Prashaw
he agreed to Perry and Miller’s request to divide up
Monroe’s route among them which would result in additional
hours of work and pay for them and the Respondent could
terminate Monroe. Monroe was terminated on March 11,
1991, his letter of discharge giving as the reasons his failure
to fully perform his duties and to keep the garage clean, and
his unsafe driving habits. While Perry and Miller had com-
plained about Monroe’s work deficiencies previously on sev-
eral occasions in 1990 it appears that no warning or dis-
cipline was given to Monroe regarding this.
The evidence herein, including the Respondent’s knowl-
edge of general union activity, the applicability of the small-
plant doctrine,116 the Respondent’s demonstrated animus to-
wards the Union, the timing of Monroe’s discharge, and the
pretextual nature of the reasons given by the Respondent
1133WASTE STREAM MANAGEMENT
117 BMD Sportswear Corp., 283 NLRB 142 (1982); NLRB v. Long
Island Limousine Service Corp., 468 F.2d 292 (2d Cir. 1972).
118 Flour Daniel, Inc., supra; Shattuck Denn Mining Corp., supra.
119 The only unfair labor practices found herein which occurred
subsequent to the critical period were those which involved
discriminatee Vern Arno.
120 Dal-Tex Optical Co., supra. Also see Jennie-O Foods, 301
NLRB 305 (1991); Pro-Tech Security Network, 308 NLRB 655
(1992); Casa Duramax, Inc., 307 NLRB 213 (1992); Sunbeam
Corp., 287 NLRB 996 (1988).
121 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
therefore, sufficiently establishes a prima facie case against
the Respondent with respect to the termination of Robert
Monroe.117
Having found that the Respondent’s alleged reasons for
the termination of Robert Monroe were pretextual, I conclude
that the Respondent has failed to meet its Wright Line burden
of demonstrating that it would have taken the same action in
the absence of Monroe’s union affiliation.118
Based on the foregoing, I find and conclude that the Re-
spondent violated Section 8(a)(1) of the Act when it termi-
nated Robert Monroe and consolidated routes in order to re-
dress grievances of its employees Perry and Miller and in
order to dissuade them from engaging in activities on behalf
of the Union.
V. OBJECTIONS TO THE ELECTION
The objections to the election herein are for the most part
subsumed within the allegations of the complaint. Having
found numerous instances of preelection Section 8(a)(1) and
(3) misconduct on the part of the Respondent as set forth
hereinbefore, the next issue to be decided is whether such
violations are sufficient to warrant the setting aside of the
election.
In Clark Equipment Co., 278 NLRB 498 (1986), the Board
held that:
[I]t is the Board’s usual policy to direct a new elec-
tion whenever an unfair labor practice occurs during the
critical period since ‘‘[c]onduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an elec-
tion.’’17 However, the Board has departed from the pol-
icy in cases where it is virtually impossible to conclude
that the misconduct could have affected the election re-
sults. In determining whether misconduct could have af-
fected the results of the election, we have considered
‘‘the number of violations, their severity, the extent of
discrimination, the size of the unit, and other relevant
factors.18
17 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
18 Enola Super Thrift, 233 NLRB 409 (1977).
In this case, many of the unfair labor practices found here-
in as violations of the Act and which includes those also al-
leged as objections to the election, occurred during the criti-
cal period between the filing of the petition in Case 3–RC–
9695 on February 4, 1991, and the Board conducted election
on April 5, 1991.119 Other violations of the Act herein found
occurred just prior to and in close proximity to the com-
mencement of such critical period and during the advent of
the Union’s organizational campaign. These unlawful viola-
tions of the Act were numerous, involved violations of Sec-
tion 8(a)(1) such as interrogation, solicitation of grievances,
redress of such grievances through termination of employees,
promises of wage increases and other benefits, solicitation of
an employee petition against the Union, impression of sur-
veillance of employees union activities, among others, and
violations of Section 8(a)(3) of the Act such as the unlawful
discharge of five employees who engaged in union activities
and the imposition of more onerous working conditions on
one of these employees before his termination. Moreover, the
unfair labor practices were committed by two of the Re-
spondent’s owners who are also vice presidents, the Re-
spondent’s labor consultant, and various supervisors, and
some of these violations involved most if not all of the Re-
spondent’s employees.
Since it is clear from the above that the Respondent’s un-
lawful conduct was not de minimis, I conclude that such
conduct has substantially interfered with the election. Since
the standard for interference necessary to set aside a board-
conducted election is substantial interference with ‘‘labora-
tory conditions,’’ I recommend that the Board set aside the
election in Case 3–RC–9695, and that the Regional Director
for Region 3 direct the holding of a second election at such
time as he deems appropriate.120
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, set forth in section IV,
above, occurring in connection with the Respondent’s oper-
ations described in section I, above, have a close and inti-
mate relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
VII. THE REMEDY
Having found that the Respondent had engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully terminated
Eugene Prashaw, Verde Snyder, Richard Walrath, Mark
Rood, Vern Arno, and Robert Monroe, the Respondent shall
be ordered to offer them immediate reinstatement to their
former positions, discharging if necessary any replacements
hired since their terminations, and that they be made whole
for any loss of earnings or other benefits by reason of the
discrimination against them in accordance with the Board’s
decision in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed as in New Horizons for the Retarded,
283 NLRB 1173 (1987).121
Because of the nature of the unfair labor practices herein
found, and in order to make effective the interdependent
guarantees of Section 7 of the Act, I recommend that the Re-
spondent be ordered to refrain from in any like or related
manner abridging any of the rights guaranteed employees by
Section 7 of the Act. The Respondent should also be re-
quired to post the customary notice.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
122 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CONCLUSIONS OF LAW
1. The Respondent, Waste Stream Management, Inc. and
its wholly owned subsidiary CBI Steel, Inc., 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.
2. The Union, Teamsters Local Union No. 687, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees includ-
ing all truckdrivers, yard people, recyclers, mechanics,
steel fabricators, equipment operators and plant clericals
employed by Waste Stream Management, Inc. and its
wholly owned subsidiary CBI Steel, Inc. at their facili-
ties located at Potsdam, Canton, Gouverneur,
Ogdesburg, and Parishville, New York. Excluding all
office clerical employees and guards and supervisors as
defined in the Act.
4. The Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
by interrogating its employees concerning their union activi-
ties 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 inform-
ing its employes that if the Union lost the election the Re-
spondent would set up a grievance procedure, by soliciting
its employees to sign a petition against the Union, by prom-
ising 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 impression that it
was keeping under surveillance the union activities of its em-
ployees, by promising and granting wage increases to its em-
ployees in order to dissuade them from supporting the Union,
by terminating the employment of Eugene Prashaw and Rob-
ert Monroe and consolidating routes in order to redress griev-
ances of its employees and dissuade them from engaging in
activities on behalf of the Union, by telling an employee that
he was being assigned more onerous working conditions
becuse of his activities on behalf of the Union, by telling an
employee that the Respondent was seeking a reason to termi-
nate him becuse of his union activities and that this em-
ployee should forego such activities, by threatening to close
its facilities because of the union activities of its employees,
by informing an employee that he was being discharged be-
cause of his union activities, and by informing an employee
that he was fired becuse 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 imposing
more onerous working conditions on employee Verde Sny-
der, and by discriminatorily terminating employees Eugene
Prashaw, Verde Snyder, Richard Walrath, Mark Rood, and
Vern Arno because these employees joined, supported, or as-
sisted the Union and engaged in concerted activities for the
purpose of collective bargaining or mutual aid or protection,
and in order to discourage employees from engaging in such
activities.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. The Respondent has not otherwise violated the Act.
On the basis of these findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended122
ORDER
The Respondent, Waste Stream Management, Inc. and its
wholly owned subsidiary CBI Steel, Inc., 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) Soliciting grievances from its employees with explicit
and implicit promises to rectify them.
(c) Suggesting to its employees that they could draw up
a petition against the Union and soliciting them to sign such
a petition against the Union.
(d) Informing its employees that if the Union lost the elec-
tion it would set up a grievance procedure.
(e) Promising its employees various benefits including a
grievance procedure in order to induce them to vote against
the Union in any upcoming election.
(f) Creating the impression that it was keeping under sur-
veillance the union activities of its employees.
(g) Promising and granting wage increases to its employ-
ees in order to dissuade them from supporting the Union.
(h) Terminating employees and consolidating routes in
order to redress grievances of its employees and dissuade
them from engaging in activities on behalf of the Union.
(i) Telling employees that they are being assigned more
onerous working conditions because of their union activities
and that the Respondent is seeking a reason to terminate
them because of their activities on behalf of the Union and
that they should therefore forgo such activities.
(j) Threatening to close its facilities because of the union
activities of its employees and if the Union came in.
(k) Informing employees that they are being fired because
of their union activities and that they have been fired because
of their activities on behalf of the Union.
(l) Imposing more onerous working conditions on its em-
ployees because they joined, supported, or assisted the Union
and engaged 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 activities or
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
(m) Terminating employees or otherwise discriminating
against them in regard to hire or tenure of employment or
any term or condition thereof because they engage in union
activities or in order to discourage union activities.
1135WASTE STREAM MANAGEMENT
123 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.’’
(n) In any like or related manner interfering with, restrain-
ing, or coercing employes in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employes Eugene Prashaw, Verde Snyder,
Richard Walrath, Mark Rood, Vern Arno, and Robert Mon-
roe immediate and full reinstatement to their former jobs or,
if these positions no longer exist, to a substantially equiva-
lent position, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them in the manner set
forth in the remedy section of this decision and expunge
from the Respondent’s personnel records any references to
their terminations and notify each of them, in writing, that
this has been done and that evidence thereof will not be used
as a basis for any future personnel actions against them.
(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.’’123 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarilay 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.
IT IS FURTHER RECOMMENDED that the election in Case 3–
RC–9695 be set aside and that this case be severed and re-
manded to the Regional Director for Region 3 for the pur-
pose of conducting a new election at such time as he deems
the circumstances appropriate.
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 representatives 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 interrogate our employees concerning their
union activities and the union activities of other employees.
WE WILL NOT solicit grievances from our employees with
explicit and implicit promises to rectify them.
WE WILL NOT suggest to our employees that they could
draw up a petition against Teamsters Local Union No. 687,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO or any other
labor organization and solicit them to sign such a petition.
WE WILL NOT inform our employees that if the Union lost
the election we would set up a grievance procedure.
WE WILL NOT promise employees various benefits includ-
ing a grievance procedure in order to induce them to vote
against the Union in any upcoming election.
WE WILL NOT create the impression that we are keeping
under surveillance the activities of our employees on behalf
of the Union or any other labor organization.
WE WILL NOT promise and grant wage increases to our
employees in order to dissuade them from supporting the
Union.
WE WILL NOT terminate employees and consolidate routes
in order to redress grievances of our employees and dissuade
them from engaging in activities on behalf of the Union or
any other labor organization.
WE WILL NOT tell our employees that they are being as-
signed more onerous working conditions or that we are seek-
ing a reason to terminate them because of their activities on
behalf of the Union or any other labor organization, and that
they should forgo such activities.
WE WILL NOT threaten to close our facilities because of
the union activities of our employees and if the Union came
in.
WE WILL NOT inform our employees that they are being
fired or were fired because of their union activities on behalf
of the Union or any other labor organization.
WE WILL NOT impose more onerous working conditions on
our employees because they joined, supported, or assisted the
Union or any other labor organization, and engaged in con-
certed activities for the purpose of collective bargaining or
mutual aid or protection, and in order to discourage employ-
ees from engaging in such activities or other concerted ac-
tivities for the purpose of collective bargaining or other mu-
tual aid or protection.
WE WILL NOT terminate our employees or otherwise dis-
criminate against them in regard to hire or tenure of employ-
ment or any term or condition thereof because they engage
in activities on behalf of the Union or any other labor organi-
zation, or in order to discourage union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL make whole Eugene Prashaw, Verde Snyder,
Richard Walrath, Mark Rood, Vern Arno, and Robert Mon-
roe for any loss of earnings they may have suffered because
of their terminations together with interest.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remove from our personnel records any and all
references to the terminations of the above-named employ-
ees, and WE WILL notify each of them, in writing, that this
has been done, and that evidence thereof will not be used
against them in any way.
WASTE STREAM MANAGEMENT, INC. AND ITS
WHOLLY OWNED SUBSIDIARY CBI STEEL, INC.