Action Carting Environmental Services

National Labor Relations Board - Board Decisions

Sep 30, 2009

354 N.L.R.B. 732 (N.L.R.B. 2009)

354 NLRB No. 84
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Action Carting Environmental Services, Inc. and Lo-
cal 813, International Brotherhood of Teamsters
Local 621, United Workers of America and Shafi
Gadson
Action Carting Environmental Services, Inc. and Lo-
cal 813, International Brotherhood of Team-
sters, Petitioner and Local 621, United Workers
of America, Intervenor. Cases 22–CA–28197,
22–CA–28211, 22–CA–28337, 22–CB–10530, and
22–RC–12875
September 30, 2009
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 8, 2009, Administrative Law Judge Steven
Davis issued the attached decision. The General Counsel
filed an exception and supporting brief. Local 621,
United Workers of America (Local 621), filed exceptions
with supporting argument. The General Counsel filed an
answering brief to Local 621’s exceptions. The Respon-
dent filed an answering brief to the General Counsel’s
exception.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs2 and has decided to affirm the judge’s rulings,

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed __U.S.L.W.__ (U.S. Septem-
ber 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840
(7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22,
2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d
36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Au-
gust 18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
2 We question whether Local 621 has standing to challenge the mer-
its of the judge’s unfair labor practice findings in the “CA” portion of
this consolidated proceeding that form the basis for his recommenda-
tion to sustain Petitioner Local 813, International Brotherhood of
Teamsters’ Objection 6. However, as no party has moved to strike
Local 621’s exceptions on this basis, we have considered, and rejected,
them on their merits.
findings,3 and conclusions,4 to adopt his recommended
Order as modified,5 and to direct a second election.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Action
Carting Environmental Services, Inc., Newark, New Jer-
sey, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.

3 The General Counsel, implicitly, and Local 621, explicitly, have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The General Counsel excepts only to the judge’s finding that the Re-
spondent did not constructively discharge Frank Madden in violation of
Sec. 8(a)(3). Local 621 excepts to the judge’s recommendation to
sustain Petitioner Local 813’s Objections 2 and 6 and to set aside the
election based on the conduct found objectionable, and to the judge’s
unfair labor practice findings upon which Objection 6 was based, i.e.,
that the Respondent unlawfully discharged Shafi Gadson and unlaw-
fully transferred Frank Madden. There are no exceptions to the judge’s
disposition of all other unfair labor practice and objections allegations.
4 In adopting the judge’s conclusion that the Respondent did not
constructively discharge Frank Madden, we disavow his analysis to the
extent that he found that the General Counsel established the first ele-
ment of a constructive discharge under Crystal Princeton Refining Co.,
222 NLRB 1068 (1976). The first element requires the General Coun-
sel to show that the “burdens imposed on the employee must cause, and
be intended to cause, a change in working conditions so difficult or
unpleasant as to force the employee to resign.” Id. at 1069. The judge
found, and we agree, that Madden quit because of his confrontation
with fellow driver Mac Johnson and Supervisor Daniel Alfano, not
because of the change in his working conditions resulting from his
discriminatory job transfer. Thus, the General Counsel failed to prove
the first element of the Crystal Princeton test. Member Schaumber,
moreover, would not find that the discriminatory transfer imposed
working conditions “so difficult or unpleasant as to force [Madden] to
resign.” Having found causation not established, Chairman Liebman
finds it unnecessary to pass on the severity of the burden imposed on
Madden.
5 We will amend the judge’s remedy, modify his recommended Or-
der, and substitute a new notice adding a requirement that the Respon-
dent make whole Frank Madden, with interest, for any additional
commuting expenses he incurred as a result of the unlawful transfers to
Brooklyn and the Bronx from the time he was transferred until he quit
his employment. See CWI of Maryland, Inc., 321 NLRB 698 (1996)
(remedy included “any increased commuting expenses incurred by
[employee] as a result of the discriminatory change of his reporting
site”), enfd. in relevant part 127 F.3d 319 (4th Cir. 1997); Illinois Insti-
tute of Technology, 201 NLRB 941 (1973) (requiring reimbursement
for additional travel costs resulting from discriminatory transfers).
6 Absent adequate explanation for the timing of adjustments to Ac-
tion Carting’s safety bonus program that resulted in large bonus pay-
ments to employees immediately prior to the election, we adopt the
judge’s recommendation to sustain Objection 2, and we set aside the
election on this basis. We therefore need not pass on whether Objec-
tion 6 would constitute a basis for setting aside the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
1. Substitute the following for paragraph 2(b).
“(b) Make David Zengewald, Shafi Gadson, Kevin
Meadows, and Frank Madden whole for any loss of earn-
ings, other benefits, and increased commuting expenses
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the judge’s
decision as amended.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during the period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the election directed herein and who retained their em-
ployee status during the eligibility period and their re-
placements. Those in the military services may vote if
they appear in person at the polls. Ineligible to vote are
employees who have quit or been discharged for cause
since the payroll period, striking employees who have
been discharged for cause since the strike began and who
have not been rehired or reinstated before the date of the
election directed herein, and employees engaged in an
economic strike that began more than 12 months before
the date of the election directed herein and who have
been permanently replaced. Those eligible shall vote
whether they desire to be represented for collective bar-
gaining by Local 813, International Brotherhood of
Teamsters, or by Local 621, United Workers of America,
or by neither union.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.
Dated, Washington, D.C. September 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you about your
union sympathies.
WE WILL NOT promise you benefits if you support Lo-
cal 621, United Workers of America, and if you refuse to
support Local 813, International Brotherhood of Team-
sters.
WE WILL NOT create an impression among you that
your union activities are under surveillance.
WE WILL NOT threaten you with reprisals if you sup-
port Local 813 and if you fail to support Local 621.
WE WILL NOT discharge or otherwise discriminate
against you because you support Local 813.
WE WILL NOT transfer, change your starting time, or
change your route assignment because you support Local
813.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
ACTION CARTING ENVIRONMENTAL SERVICES 3
WE WILL, within 14 days from the date of the Board’s
Order, offer David Zengewald, Shafi Gadson, and Kevin
Meadows full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make David Zengewald, Shafi Gadson,
Kevin Meadows, and Frank Madden whole for any loss
of earnings, other benefits, and increased commuting
expenses suffered as a result of the discrimination against
them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges, and WE WILL, within 3 days thereafter,
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
ACTION CARTING ENVIRONMENTAL SERVICES,
INC.
Tara Levy, Newark, NJ, for the General Counsel.
Patrick Stanton and Christopher R. Coxson, Esqs., (Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.), Morristown, NJ,
for the Respondent Employer.
Bryan C. McCarthy, Esq. (O’Connor & Mangan, P.C.), for
Respondent Union Local 621.
David M. Glanstein, Esq. (O’Donnell, Schwartz, Glanstein &
Lilly, LLP), New York, NY, for Local 813.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge: Based upon a
charge and an amended charge filed in Case No. 22-CA-28197
on January 11, 2008, and February 21, 2008, respectively, by
Local 813, International Brotherhood of Teamsters (Local 813),
and based upon a charge and an amended charge filed in Case
No. 22-CA-28211 on January 18, 2008 and March 3, 2008 by
Local 813, and based upon a charge filed in Case No. 22-CA-
28337 on April 24, 2008 by Local 813, and based upon a
charge filed in Case No. 22-CB-10530 on February 5, 2008 by
Shafi Gadson, An Individual, a complaint was issued by Region
22 of the Board on June 30, 2008 against Action Carting Envi-
ronmental Services, Inc. (Employer) and against Local 621,
United Workers of America (Local 621).
The complaint alleges essentially that the Employer interro-
gated employees about their union sympathies; promised em-
ployees benefits if they supported Local 621 and if they refused
to support Local 813; created an impression among its employ-
ees that their union activities were under surveillance; and
threatened employees with reprisals if they supported Local
813 and if they failed to support Local 621. The complaint also
alleges that the Employer unlawfully discharged David Zenge-
wald, Shafi Gadson, Kevin Meadows and Dominic Madden,
and caused the termination of Frank Madden by transferring
him and changing the start time and route assigned to him,
because of their activities in behalf of Local 813. Finally, the
complaint alleges that Local 621 unlawfully failed to process a
grievance over the discharge of Gadson.
On July 3, 2008, the Acting Regional Director issued a Re-
port on Objections, and Order Consolidating Cases and Notice
of Hearing in Case No. 22-RC-12875.1 The Order consolidated
for hearing the above complaint and the objections case. The
objections that are before me allege that the Employer (a)
changed the timing of periodic safety bonuses paid to employ-
ees (b) distributed a forged letter purporting to be from Local
813 which addressed the relative seniority rights of employees
(c) discharged Gadson and Dominic Madden and transferred
Frank Madden in retaliation for their support for Local 813 and
failure to support Local 621 and (d) had its supervisors position
themselves outside the entrance to the voting area where voters
had to pass in order to enter the voting area, and that represen-
tatives and employee-supporters of Local 621 positioned them-
selves in the same area, and that Local 621 supporters repeat-
edly chanted “vote for 621” and mentioned the name of the
observer for Local 813, Shafi Gadson.”2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Employer, a corporation having an office and place of
business in Newark, New Jersey, has been engaged in the col-
lection of waste and recyclable materials. During the twelve-
month period ending January 4, 2008, the Employer purchased
and received at its Newark facility goods and materials valued
in excess of $50,000 directly from suppliers located outside
New Jersey. The Employer admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that Locals 621 and 813 are
labor organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In October, 2007, the Employer had about 40 trucks which
were located in and dispatched from its facility in Newark, New

1 Pursuant to a petition filed on December 14, 2007 by Local 813
and a Stipulated Election Agreement, an election was conducted on
January 23, 2008 in a unit consisting of “all full-time and regular part-
time roll-off drivers, packing drivers, helpers, mechanics, welders,
painters and related employees employed by the Employer at its New-
ark, New Jersey facility… but excluding all office clerical employees,
sales employees, guards and supervisors as defined in the Act.” The
election resulted in a vote of 36 votes for Local 813, 74 votes for Local
621, 1 vote for neither union, and 7 challenged ballots which did not
affect the outcome of the election. Local 813 filed objections to the
election.
2 The Report on Objections erroneously states that this Objection al-
leges that agents of the Employer conversed with employees and per-
mitted agents of Local 621 to converse with employees who were pre-
paring to vote, urging them to vote against Local 813 and in favor of
Local 621, and threatening them if they did not support Local 621.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Jersey. Separate vehicles were used to pick up garbage, card-
board, and food waste called “vegetation” from restaurants. The
Employer also had “roll-off” trucks which were used to deliver
containers to customers’ locations. The garbage trucks con-
sisted of packers in which garbage was placed in the rear of the
truck and front-loading trucks which picked up bins containing
waste.
The hierarchy of the Employer’s operation consists of presi-
dent and co-owner John Glauda, chief operating officer and co-
owner Mike DiBella, director of operations Brian Malinari,
operations manager Frank Rizzo, night supervisor Robert
Staada, and supervisor Daniel Alfano.3
On October 5, 2007, the Employer acquired the assets in-
cluding the trucks and customer routes of Waste Management
Corp., a waste and recycling collection company having a facil-
ity in Varick Avenue, Brooklyn. Virtually all of the drivers and
helpers of Waste Management were members of Local 813, and
all were offered jobs and were hired by the Employer.4 The
wages of the drivers and helpers employed by the Employer
were less than those paid by Waste Management.
The Employer was given 60 to 90 days, until early or mid
January, 2008 to remove the trucks from the Waste Manage-
ment Brooklyn facility. In late November or early December,
the Employer obtained a facility in the Bronx, New York. The
Employer continued to operate from its Newark facility. Opera-
tions manager Rizzo stated that whatever routes could appro-
priately be dispatched from the Bronx (“whatever made geo-
graphic sense”) would be run from the Bronx. By early to mid
January, 2008, the Employer left the former Waste Manage-
ment Brooklyn facility. Some trucks were moved from Brook-
lyn to Newark. Some trucks were moved from Brooklyn to the
Bronx.
The acquisition resulted in a doubling of the size of the Em-
ployer, in employees, vehicles, and customer routes. In order to
attain greater efficiency, the Waste Management routes were
consolidated with the goal of reducing the number of drivers
and helpers. Immediately after the purchase, there were 180
drivers and helpers. At the time of the hearing, only 140 were
employed. By late 2007 and early 2008, nearly all the routes
had been consolidated.
Immediately after the purchase of Waste Management, the
Employer’s trucks were still being dispatched from its Newark
yard, and the former Waste Management’s trucks from Brook-
lyn. At first, the Employer planned to transfer the trucks that
were dispatched from Newark to Brooklyn, and then it was
decided to dispatch the trucks from Newark because picking up
stops in Manhattan would be closer to Newark than from
Brooklyn. Regarding stops in other boroughs which were for-
merly done by Waste Management, trucks would be dispatched
from Brooklyn. There were fewer former Waste Management
routes in Manhattan than in the other boroughs, while at the
same time the Employer had mostly Manhattan stops.

3 All references to “Alfano” will be to supervisor Daniel Alfano
unless otherwise stated. Daniel Alfano’s brother Nick, is a driver.
4 Other unions which represented the Waste Management’s employ-
ees include Local 116 for the recycling employees, and Local 282,
Teamsters for one roll-off employee.
The Employer employs drivers and helpers. Drivers drive the
truck while the helpers ride in the truck and get out at the stop
and empty the garbage into the truck. Occasionally a driver will
leave the truck to assist the helper. Typically, the drivers work
from 8:00 p.m. until their route is finished, usually at 5:30 or
6:00 a.m. However, the drivers and helpers are scheduled to
work a 10 hour day and are paid for 10 hours regardless of
when they finish their route. Thus, if they finish work early
they can leave and are still paid for 10 hours work.
Not all of the helpers work a regular full-time schedule. The
people who are not assigned to a regular full-time route are
“shape” employees - they are not regularly assigned every day
to work as helpers. Rizzo stated that shape employees come in
and “hang out” until they are asked to go on a truck. If they are
not asked, they leave the yard. Shape employees should be at
the yard by 7:30 or 8:00 p.m. If a shape worker is not sent out
that night he is not paid because he is a day-to-day worker. On
some trucks if a helper is not present a shape employee is used.
It has been the practice of the Employer that if a shape em-
ployee consistently comes to the yard day after day, he will, if
needed, be assigned to a truck on a more frequent basis and, if
he does a good job, may become a regular helper who is as-
signed to a regular route on a regular, daily basis and receive a
uniform and benefits. A shape worker may work one to three
days per week, and when he works is paid for a ten hour day.
Manager Rizzo further categorized shape workers into two
types: “a regular shapeup” is a person who is at the yard at least
four or five days per week and waits for assignments. He is
“consistent,” is always available and would be assigned to a
truck if needed. He was given preference in assignment com-
pared to other shape workers who did not appear at the yard
regularly.
B. Local 813 Organizes the Employees
Rizzo stated that in November, 2007, before the petition was
filed by Local 813 in December, he was introduced to Juan
Cruz by Employer official Malinari as a labor consultant who
would educate the employees as to unions. Malinari told Rizzo
at the time that the Employer supported “our” union, Local 621.
Rizzo stated that he learned from some drivers in about De-
cember, 2007 that Local 813 was trying to organize employees
by obtaining signed authorization cards. Rizzo informed Mali-
nari who told him that Local 813 filed a petition for an election.
The petition was filed on December 14, 2007. Rizzo stated that
he saw Cruz in December when he (Cruz) addressed 15 to 20
drivers in a 15 to 20 minute group meeting over a couple of
days at the Employer’s Newark yard. Rizzo also introduced
many employees to Cruz individually on a couple of occasions
in December. Rizzo did not hear what Cruz told the workers,
but he did not understand that Cruz would attempt to persuade
employees to support Local 621, believing that he was simply
there to educate employees concerning unions, being “com-
pletely neutral on that subject.”
Employer supervisor Staada stated that as part of his duties,
he occasionally follows the drivers as they make their pickups,
and stops the trucks to speak to the crew about new stops on
their routes or a complaint the Employer might have received
concerning the pickup. He testified that about two months
ACTION CARTING ENVIRONMENTAL SERVICES 5
before the election, labor consultant Cruz accompanied him on
two separate occasions while he was checking on the routes.
Staada drove Cruz while checking on the drivers’ work and
stopped the trucks so that Cruz could speak to the drivers and
helpers. Their conversations with the workers lasted five to ten
minutes. Staada introduced Cruz as someone who could answer
their questions about the union matter. Some questions the
workers asked were whether they would be laid off if they had
little seniority, whether safety bonuses and wages would in-
crease, and the truth of the rumor that Local 813-represented
employees earn $28.00 per hour. Cruz or Staada replied that if
Local 813 won the election it would have the right to negotiate
with the Employer and any rates would have to be negotiated.
Another employee asked whether if Local 813 was elected they
would be working without a contract. Cruz replied that they had
a contract with Local 621 now so if that union won, the contract
currently in place would remain the same. However, if Local
813 won, the “negotiations have to start all over again….”
Staada testified that he did not believe that Cruz was present
in order to help persuade employees to vote for Local 621.
Rather, his purpose was to answer employee questions about
the election. Cruz had literature including public records con-
cerning the amount of dues collected by Local 813 and money
spent by it, and statements made by Local 813 that were not
true.
Rizzo stated that the Employer decided to support Local 621
and was opposed to Local 813’s effort to represent the employ-
ees, and told the workers that if they wanted “things” to remain
the same they should vote for Local 621.
Supervisor Alfano testified that during the election campaign
he told the workers that Waste Management did not employ
shape employees and that the workers would have to get a
Commercial Driver’s License if they wanted to remain em-
ployed at the Employer. He further stated that he told them that
there would be no more shape program if Local 813 was
elected or “that’s the way Waste Management worked.”
Employee Gadson testified that in December, 2007 he at-
tended a meeting at which Rizzo and Alfano and about 30 em-
ployees were present. Local 621 president Stephen Sombrotto
spoke, telling the workers that if they voted for Local 621 they
would be guaranteed 60 hours work per week, but that if they
voted for Local 813, the helpers would be at the bottom of the
seniority list and they would lose their “spot” on the list.
On January 16, 2008, seven days before the election, Em-
ployer official Glauda wrote a letter to the employees in which
he urged them to vote for Local 621 as the union recognized by
the Employer, and also stated that Local 813 tried to “push
companies” into its pension plan even though the plan had a
$70 million deficit, and that Local 813 had participated in a
nearly four month strike at Waste Management causing a loss
of money to the workers.
C. David Zengewald
Zengewald, a driver who was employed in the garbage in-
dustry for 41 years and a member of Local 813, was employed
by Waste Management prior to being hired by the Employer on
October 5, 2007. Rizzo stated that he knew that Zengewald
worked in the industry for more than 20 years.
Zengewald’s first route at the Employer was his old Waste
Management route in Brooklyn. Then, when that facility was
closed, he was dispatched from Newark and, as the routes be-
tween the two companies were consolidated, some stops were
removed from his route, and he was given additional stops.
Zengewald testified that in late October and early November,
he distributed about 20 authorization cards in behalf of Local
813, received back about 12 to 15 signed cards and spoke to
employees about that Union. He also attended meetings with
Local 813 agent Cliff Lewis in the Fall of 2007 at which his
helper was present, and met with Local 813 agents about five or
six times in November, 2007 during working time.
Zengewald worked Sunday night through Friday night. On
Monday night, December 17, he began his shift, noting that
someone must have used his truck because it was dirty and not
in the same condition he left it the day before. That was the first
time another driver used his truck.
He completed his route, finishing on Tuesday morning, De-
cember 18, when Rizzo asked him to meet with Cruz. In the
meeting were Rizzo, Alfano and Cruz. Zengewald stated that he
felt uncomfortable during the meeting because supervisors
Rizzo and Alfano were present. Cruz spoke to him about the
good points of Local 621 and the negative features of Local
813. Cruz further told Zengewald that employees should vote
for Local 621, the union recognized by the Employer. Zenge-
wald stated that he replied that he was in Local 813 for many
years and nearing his 55th birthday when he would be eligible
for retirement. He added that he had the least to gain by being
in any union, and that he was not interested in what Cruz had to
say about Local 621, noting that he was not interested in either
union at that time. Specifically, Zengewald, in a slightly raised
voice, stated that he told the men “I don’t give a flying fuck
about the company or the unions or what goes on here between
the unions. I’m not interested in joining the unions. As soon as
the electrician’s union calls me, I’m getting out of here and
going with them.”
At hearing, Zengewald explained that an electrical contractor
friend offered him a job conditioned on his rehiring certain
electricians he had laid off. The contractor told him that if he
recalls those workers and if openings occur, he “could use”
Zengewald.
That evening, Tuesday, Zengewald appeared for his regular
shift. He saw Cruz speaking with other employees including
Sal Dalgoni. Zengewald heard Cruz tell the employees that the
Local 813 pension fund was going bankrupt and that they
would be throwing their money away by joining that union.
Zengewald and Dalgoni answered Cruz by saying that they
received a form from the government each year which stated
that the pension and other Local 813 funds were sound. Zenge-
wald told Cruz “If you don’t know what you’re talking about,
don’t spread rumors.”
The next morning, Wednesday, Zengewald finished his route
and Rizzo told him he was fired. Zengewald asked why.
Zengewald quoted him as follows: “Well, what you said yes-
terday about you don’t give a fuck about what goes on here and
you’re going to go someplace else, to the electrician’s union, I
can no longer have you here. I can’t invest any more time in
you and I can’t trust you out there with our equipment.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Zengewald protested that no time had to be invested in him
since when he was hired he was already trained and knew the
route, the area and the equipment. Zengewald added that he did
not mean to indicate that he did not care about the company,
just that he did not care about the unions and did not want to be
part of that discussion. He added that the electrician’s job was
speculative – first, employees had to be rehired, and then if an
opportunity arose, the owner would call him.5
Zengewald asked to meet with official Malinari and a meet-
ing was arranged with the three men. Malinari told him that he
was fired because of his “don’t give a fuck attitude, that they
could no longer trust me on the street with a $230,000 piece of
equipment, that I might run it into a building or damage it in
some way.” Zengewald replied that he is not that way and
would not put “a 41 year career on the line just to spite some-
one.” He noted that sometimes his mouth “gets me in trouble,”
noting that his remarks the previous day applied to the union
situation and not his attitude toward the performance of his job
or servicing the customers. Zengewald reminded the men that
he had spoken with them about a vacation in the summer of
2008, and noted that if he was thinking of leaving he would not
have been concerned about a vacation.
Zengewald had not received any criticism or discipline dur-
ing his 2½ month work tenure with the Employer.
Manager Rizzo described the incident. He stated that he saw
Zengewald immediately after he completed his route. Rizzo
noted that Zengewald appeared “all pissy,” upset that someone
had driven his truck and left it “messy.” Rizzo introduced him
to Juan Cruz, identifying Cruz as a labor consultant who would
“educate you about what goes on with union matters.” Accord-
ing to Rizzo, Zengewald immediately threw up his hands say-
ing “I don’t give a fuck about unions or anything. As soon as
the electrical union calls me, I’m going.” Zengewald then left.
That day, Rizzo spoke to his superior, Malinari, about the in-
cident, telling him that Zengewald was “irate,” and recom-
mended to Malinari that he did not think that Zengewald should
be driving a truck, further noting that if he was leaving the
company they should not “invest the time in keeping him.”
They decided to terminate Zengewald.
That evening, Zengewald drove his regular route without in-
cident. Rizzo was not present when Zengewald went on his
route at 8:00 p.m. because Rizzo’s day ends in the late after-
noon. Although Rizzo has the power to terminate employees he
did not do so at the time of his meeting with Zengewald but
wanted to speak to his superior, Malinari, about the incident.
Rizzo did not tell anyone to caution Zengewald about driving
when he was angry. Rizzo further testified that Zengewald is
not an angry person, and also that it is not unusual for the em-
ployees to be angry. In this respect, supervisor Alfano testified
that “everybody is upset. Nobody wants to be there picking up
garbage it’s the middle of the night, it’s raining, it’s cold, it’s
hot, I don’t know what kind of personal problems people got at

5 The evidence concerning dispatcher Michael O’Donnell’s request
that Zengewald prepare a list of the order of his stops will not be dis-
cussed since it was not a factor in his discharge. The General Counsel’s
argument that he was disparately asked to make such a list is not sup-
ported by the evidence.
home.” It should be noted that employee Frank Madden was
suspended for one day for having a fist fight with another
worker. In another instance, employee Mac Johnson testified
that he argued with his helper and the Employer transferred him
to another route.
Rizzo stated that he may have considered ordering Zenge-
wald not to drive that night but wanted to speak to him in per-
son, conceding that he could have spoken to him by radio when
he began his route that evening or could have left him a termi-
nation notice before he began his route.
The following morning Rizzo told Zengewald that he was
fired, telling him that he was no longer needed because he
would not let him drive a $230,000 truck “in that state.”
Zengewald asked to speak to Malinari and when they met said
that he was just upset and that his “mouth gets me in trouble. I
have a temper and that’s why I said what I said.” Malinari said
that he was no longer needed. No termination letter was given.
Rizzo conceded that Zengewald was a good employee, and
that the route he drove for the Employer was his former Waste
Management route, which he knew and for which he needed no
training. Rizzo further admitted that the Employer “valued” the
former Waste Management drivers because they knew their
routes and the customers.
Rizzo stated that his decision to terminate Zengewald was
not based on any union considerations, especially since Zenge-
wald stated that he did not care about either union since he was
leaving the Employer’s employ. Rizzo was aware that Zenge-
wald was a member of Local 813 for many years.
D. Shafi Gadson
Gadson stated that he began work in late February, 2006 as a
shape employee. He came to the yard every night and waited to
be sent out. In the first three weeks he received assignments
two to three days a week, and then four and then five days. At
that point in time, Rizzo stated that Gadson was a “regular
shape” someone who he defined as a consistent worker, some-
one who was “always there” who was given preference on as-
signment to a truck over other, casual shape workers.
The Employer then sent him on a truck with Johnson to be
“tried out” as a helper. According to Gadson, Staada told him
that Johnson gave him a good report. On March 26, 2006,
Rizzo told him that he had become a “permanent” helper. He
received uniforms, health insurance benefits, safety bonuses
and holiday pay, extras which are not given to shape employ-
ees. He was assigned to driver Peter Chang who he worked
with every day for about seven months. Thereafter, he was
assigned to driver Ronald Conover for two to three months and
then with driver Darius Brian or Jimmy Tindle for about three
months in March or April, 2007. He received two warnings,
one on September 13, 2006 and one on February 14, 2007 for
“no call-no show.”
Thereafter he worked regularly, either five or six days each
week until July, 2007 when a change occurred in his assign-
ments. Although he was a full-time employee he was not being
sent out each day. Some weeks he worked a full week, others
only a couple of days. He asked Alfano and dispatcher Michael
O’Donnell why he was not being sent out but they did not
ACTION CARTING ENVIRONMENTAL SERVICES 7
know. O’Donnell testified that there was no problem with Gad-
son’s attendance before July, 2007.
The Employer’s supervisors, Rizzo, Alfano and dispatcher
O’Donnell testified that after Gadson was assigned to a route as
a regular helper, he “disappeared for a while” and was very
inconsistent in appearing for work. They stated that he became
“unreliable” in about August, 2007. For example, when he was
assigned to a truck and the truck was ready to depart he disap-
peared, “just walked off and left.” The next day he would re-
turn, explaining that he had a family emergency, among other
excuses. O’Donnell suspected that Gadson simply did not like
the route he was assigned and left for that reason. O’Donnell
further testified that he could not keep him on a permanent
route because he would not come to work for “weeks at a time”
because of family problems and other reasons. For this reason,
O’Donnell testified that he recommended “many times” includ-
ing in October, 2007 that Gadson be moved from regular helper
to shape.
Although Gadson’s misconduct was apparent from August,
2007 no action was taken against him until December. The
reason offered was that he and others asked that he be given
another chance since he was having some problems and would
“straighten out.” However, in December, Rizzo was of the
opinion that Gadson’s poor performance was “tolerated much
too long” and decided to demote Gadson to the position of
shape employee. Dispatcher O’Donnell stated that he told Gad-
son that he was being moved from regular helper to shape be-
cause he did not come to work. Rizzo explained that he did not
discharge Gadson, but rather demoted him to shape employee
because he still appeared at the yard “once in a while.” When
Gadson reappeared, the dispatcher asked Rizzo if he should put
him to work and Rizzo said “let him work a couple of days here
and there” and “bring him back as a shape.” Rizzo noticed that
Gadson still wore his uniform but did not ask that it be re-
turned.
Gadson identified himself as a “swing man” as of July, 2007,
which is a worker who does not have a regular route but works
from “truck to truck” but is nevertheless a “permanent” worker.
He conceded that no supervisor told him that he was a swing
man, and the Employer’s supervisors testified that it does not
use that term. Gadson first testified that a swing employee
works every day, but conceded that during this period of time
he was not sent out each day. Gadson injured his wrist in mid
October, 2007 and was out of work for one month. When he
returned his schedule decreased.
Gadson stated that in the first week of January, 2008, he and
supervisor Alfano traveled to the Bronx yard to move some
furniture. During their trip back to Newark, Alfano asked Gad-
son which union he was supporting and whether he would sup-
port Local 621. Gadson replied “no, stop pressuring me.” Gad-
son stated that Alfano said that he was going to keep it “real
with me, if I don’t vote 621 I’ll be fired – I could kiss my job
good-bye.” Gadson answered that Alfano could not say that
because he was “supervision” and Alfano said that “if I go 813
or vote for non union that I’ll be fired.”6 Gadson told employ-
ees Kevin Meadows and Jimmy Tindle about Alfano’s remarks.
Alfano admitted taking Gadson to the Bronx in early Janu-
ary, but denied asking Gadson which union he was supporting,
and Gadson did not volunteer any such information. Alfano
also denied telling him that if he did not vote for Local 621 or
voted for Local 813 or no union he would be fired. However,
Alfano conceded telling him that “things would definitely be
different” if Local 813 was selected. For example, he would no
longer extend personal courtesies or give “leeway” to employ-
ees such as picking Gadson up because he had to go home or
grant a request by an employee to leave work after he had been
on a route for two hours. At hearing, Alfano explained that he
was simply telling Gadson how things worked at Waste Man-
agement which was a more strict operation.
Gadson stated that he was not at work on January 6, 7, and 8,
2008, and returned to the yard on January 9. That day, Gadson
saw Local 621 president Sombrotto and asked if he was the
Local 621 representative. Sombrotto said he was. Gadson asked
him to explain the union’s benefits. Sombrotto said that as a
member of the union he would be guaranteed 60 hours work
per week. Gadson asked about job security. Sombrotto replied
that Gadson was “working here, that’s job security enough.”
Gadson asked him who appointed him to represent the shop,
and Sombrotto replied that he had been employed by the Em-
ployer for three years. Gadson persisted, asking who elected
him. Sombrotto did not reply and walked away.
Gadson stated that one or two days later, Alfano asked him if
he signed the Local 621 contract. Gadson said that he had not,
and told Alfano to “stop pressuring me.” Alfano then said that
he heard that Gadson was “gathering everybody telling them to
go for 813.” Gadson denied it, saying everyone has a mind of
his own. He entered the office where he saw Local 621 steward
Freddie Gonzalez who asked him if he signed the Local 621
contract. Gadson replied that he had not. Alfano entered the
room and Gonzalez said that he had a contract. Gadson stated
that he signed it at that time because he felt pressured.
Supervisor Alfano testified that he spoke briefly with Gad-
son regarding his attendance, mentioning that he was “in and
out” and was unreliable. For example, he would work three
days in a row and would not appear at the premises for one
week. Alfano testified that he told Gadson that this would not
be tolerated – he could not simply “fly in and out.” Dispatcher
O’Donnell recommended that Gadson be terminated. Gadson
stated that on January 14, dispatcher O’Donnell gave him a
termination letter and told him that Rizzo said that he was fired
for stealing from the Employer because the “record” showed
that he was punching in and being paid for time he was not
working.
In contrast, O’Donnell stated that he told Gadson that he was
fired because after being assigned to a truck he would “disap-
pear” because he did not like the route, thereby leaving the
driver without a helper until one could be located. However,
O’Donnell could not recall any specific route he assigned to
Gadson that he did not appear to work at, or the name of any

6 Gadson’s father was a long-time union member and taught him
about the “rules” concerning remarks by supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
driver who had to wait for him. Similarly, Rizzo stated that he
decided to terminate Gadson because he did not “show up” for
work and was “inconsistent” but could not recall any specific
dates that he did not appear. Rizzo stated that in late December,
2007 or early January, 2008 he decided to terminate Gadson on
the recommendation of the dispatchers who complained that
Gadson told the dispatcher that he was ready to work, and when
he was assigned to a truck he would “disappear” for one or
more hours or not come back at all. Rizzo cited a case when a
driver waited 3½ hours for him to return but he did not and no
one else was available to take the assignment. After that inci-
dent Rizzo decided to fire him. Rizzo admitted, however, that
between October and December, 2007 Gadson had committed
the same misconduct but was not disciplined for any of those
instances. Further, Rizzo could not recall the names of the driv-
ers Gadson had “stood up.” Gadson denied being asked to go
on a route and refusing or being assigned to a route and then
just disappearing.
The termination letter, dated January 7 and signed by Rizzo
stated that his “position as helper was terminated. Your position
has been eliminated due to lack of work.” Rizzo and dispatcher
O’Donnell admitted that there was no lack of work at that time
since the Employer had just purchased the routes of Waste
Management. However, Rizzo said that that reason was given
to permit employees to collect unemployment insurance.
After receiving the letter and leaving the office, Gadson saw
Sombrotto and asked if he represented Local 621. Sombrotto
said he did. Gadson asked whether if he had been fired he
would “fight” for him. Sombrotto said he would. Gadson an-
swered “start fighting because I just got fired.” Sombrotto
seemed surprised and Gadson showed him the letter. Sombrotto
said that he would see what he could do. The following week
Sombrotto told Gadson that he spoke to Rizzo who said he was
busy and refused a meeting until after the election. Shortly after
the election Gadson called Sombrotto who said that Rizzo was
still busy. That was the last time Gadson spoke to Sombrotto.
Rizzo stated that after Gadson was discharged he discovered,
or O’Donnell told him, that according to the Employer’s crew
sheets which showed when an employee worked, Gadson was
paid for days that he was not listed on the crew sheet. Rizzo
concluded that Gadson had scanned in and left his name but did
not work that night, and then returned the following morning
and scanned out. The decision to discharge Gadson was not
based on his alleged stealing time because that alleged informa-
tion was discovered after Gadson’s discharge.
Two or three days after he was fired, Gadson went to the
Employer’s office and met Rizzo who told him “there’s no
work” for him and that he should collect unemployment insur-
ance. Rizzo told him that he was “stealing from the job; punch-
ing in and not working.” Gadson retorted that “everybody
punches in, that’s how we get paid.” Rizzo denied telling him
that there was no work, but told him that he was stealing time
and was “inconsistent,” appearing at the yard whenever he “felt
like it.”
Rizzo stated that if a shape employee does not appear at the
yard for 30 days in a row, he does not taken any action against
the worker because he is not a permanent employee and has no
right to a job, but goes to the bottom of the list in terms of be-
ing assigned to a truck.
Rizzo testified using the Employer’s records that Gadson
was paid for the following number of workdays in the follow-
ing weeks: August 21 – 3 days; August 28 – six days; Septem-
ber 5 – four days; September 11 – two days; September 18 –
one day; October 2 – four days; October 16 – none; October 30
– one day; November 20 – one day; November 28 – four days;
December 4 – three days; December 11 – two days; December
18 – one day; January 2 – four days; January 8 – five days;
January 10 – four days; January 15 – two days.
The Respondent attempted to show from these records that
Gadson’s work was “inconsistent” – that he was worked spo-
radically. However, as Rizzo testified, Gadson, as a shape em-
ployee by definition, works intermittently depending upon
when he is assigned to a truck. He comes to the yard when he
wishes and waits there for an assignment. He could have ap-
peared to shape every day yet not be assigned to a truck and
therefore would not have earnings that day. Indeed, according
to Rizzo, when a shape employee such as Kevin Meadows
stopped appearing at the yard no further action was taken
against him.
Rizzo admitted that this record only shows on what days
Gadson worked and was paid for. As a shape worker he may
have appeared at the yard every day but was sent out, and hence
paid, for only those days listed above. Thus the record shows
only how many days he was assigned to a truck, not how many
days he reported to work.
Rizzo denied knowing which union, if any, Gadson sup-
ported. Rizzo first testified that he saw Gadson wearing a Local
621 hat, but then stated that he did not know and did not be-
lieve that he saw Gadson wearing such a hat.
Sombrotto did not recall any conversation with Gadson re-
garding his employment. He stated that at times he saw Gadson
congregate outside the dispatch office with other shape em-
ployees, adding that he never saw him go out on a truck. Som-
brotto stated that sometime in January, Gadson told him, letter
in hand, that he had been fired. Sombrotto was confused be-
cause he was a shape employee but he was listed as an eligible
voter, but told him that he would try to talk to Rizzo in a few
days about his discharge. Sombrotto then called Rizzo and left
a message telling him that he wanted to speak to him regarding
a “couple of things.”
Sombrotto stated that Rizzo called him about one week be-
fore the election and told him that he was busy with the election
and that they would meet after the election was held. Rizzo did
not call him back to speak about Gadson and Sombrotto did not
call Rizzo. Sombrotto stated that he called Gadson and left a
message that he heard from Rizzo, and further stated that he
saw Gadson at the yard and told him he hoped to meet with
Rizzo after the election. Rizzo testified that no one from Local
621 contacted him about Gadson’s termination.
Sombrotto reviewed the dues invoice received from the Em-
ployer which showed that the Employer classified Gadson as a
shape employee, and also stated that dispatcher Michael
O’Donnell told Sombrotto that he was a shape employee.
Thereafter, Gadson called Sombrotto immediately after the
election asking about the meeting with Rizzo. Sombrotto testi-
ACTION CARTING ENVIRONMENTAL SERVICES 9
fied that at that time he believed that Gadson was a shape em-
ployee who was not covered by the Local 621 contract and that
there was nothing he could do for him, but that if he heard from
Rizzo he would still try to help him if he could. He called Gad-
son and left him a message to that effect, and did not contact
Gadson thereafter. Nor did Gadson return his call. He stated
that Gadson did not ask him to file a grievance in his behalf and
none was filed.
Sombrotto testified that he knew that at some point Gadson
was a regular helper and then a full member of Local 621.
However, at the time of his discharge he believed that Gadson
was a shape employee because he had not seen him go out on
any trucks, he was listed on the dues remittance report as a
shape, he congregated with the shape employees and then
would leave without Sombrotto seeing him being sent to work
on a truck, although Sombrotto conceded not being at the facil-
ity every evening. It should be noted that Sombrotto accepted
shape employees as Local 621 members when he received their
applications.
The collective-bargaining agreement does not contain or de-
fine the term “shape” employee. However, it contains the fol-
lowing provision, as relevant:
On Call / Temporary Employees:
A. Nothing herein shall preclude the Employer from hiring
or assigning on call or temporary employees. An on-call
employee is one who fills in on an as needed basis. A
temporary employee is one who has been hired for a
specified period of time or project not to exceed 60 cal-
endar days.
B. On call and temporary employees are not entitled to any
of the terms, conditions or benefits set forth in this
Agreement. During said period of on-call or temporary
employment … the Employer may discharge any such
employee at will for any reason, with or without cause,
and such discharge shall not be subject to the grievance
and arbitration provision of this Agreement.
E. Kevin Meadows
Meadows began work as a shape employee for the Employer
on July 16, 2007, reporting each day at 7:00 to 7:30 p.m. Rizzo
stated that Meadows was a “regular shapeup” who was consis-
tently at the yard every night and was given preference in as-
signment to a truck over other, more casual shape employees.
An issue arose concerning whether Meadows should wait
outside the gate to the yard where the shape employees congre-
gated, or inside the gate. Alfano told him to wait outside the
gate, but Meadows asked Rizzo who told him that he was no
longer a shape employee, but was “permanent” and could wait
inside the yard.
In the summer of 2007, Meadows was assigned as a regular
helper with driver Vincent Garrison with whom he worked for
about 2 to 2½ months until October or November. Meadows
received a uniform and a dental card which bears the Em-
ployer’s name.
Meadows stated that in October or November, on a day when
a substitute driver replaced Garrison, Meadows was asked by
Alfano and O’Donnell whether he knew all the stops. Meadows
answered that he knew most but not all the stops. Alfano ap-
peared upset and replied “you’ve been on the route two months
and you don’t know it?” Alfano sent another truck and split the
route. Thus, two trucks completed the route that night, and
Meadows completed as many stops as he remembered.
Meadows stated that after this incident he was assigned
fewer days to work. Whereas he began at six days, he was re-
duced to five, then four, then three and finally to two days per
week. However, he was not given a disciplinary notice for any
misconduct.
Meadows testified that when he arrived at work in late No-
vember while he and other employees stood in the yard, Alfano
approached them and said: “whoever goes to 813 they will lose
they [sic] job.” Meadows further stated that about one week
later, he saw Alfano distribute Local 621 hats to workers.7 Al-
fano walked directly to him and asked if he wanted a hat.
Meadows replied “no, I’m going to 813. Alfano replied “well,
you’re going to lose your job.”
Meadows further testified that some time before the election,
as he arrived at work, Alfano stopped him and asked him to
come into the dispatch office and sign a Local 621 contract.
Meadows refused. One day shortly after the election, Meadows
entered the office to punch in. Alfano told him “we know who
went 813, but 621 got it anyway.” Meadows asked him how he
knew who he voted for, and Alfano said “punch out, you shape
up now.”
On January 29, six days after the election, Meadows entered
the office. Alfano told him that dispatcher O’Donnell “is not
going to work you. No point of you coming back.”
Alfano testified that Meadows began as a shape employee.
He impressed Alfano as being a good worker and was assigned
as a regular helper to a truck with driver Garrison. Alfano told
him when he began his employment that he must learn the route
and if not he would not be kept on a steady route. Garrison was
absent one day and the replacement driver told Alfano that
Meadows only knew the first five stops on the route. Alfano
stated that the replacement driver told him “this guy has no idea
where we’re going, he’s riding me around in circles. I’m look-
ing at the route sheet, we’re not picking up the right stops. It
was a disaster.” Alfano stated that he took Meadows off the
route immediately, and demoted him to a shape position.
Alfano stated that after the election Meadows did not appear
in the yard for five weeks, but then returned and asked Alfano
for a letter stating that he was discharged. Alfano replied that
he was not fired, he “abandoned” his job since he had not ap-
peared to shape for five weeks. Meadows replied that he left
because he was not being sent out every day so he needed to
earn money and apparently worked elsewhere. Alfano told him
to return to work and wait to be sent out like the other shape
workers. Meadows replied that he did not have time for that
and needed to earn money.
Alfano denied that Meadows told him that he was going to
vote for Local 813. He also denied telling Meadows that any-
one who supported Local 813 would lose their jobs, however he
conceded telling him that Local 813 and Waste Management
did not employ shape workers who would eventually become

7 Meadows was confused about the date. He also testified that this
incident occurred one week before the election in January.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
full-time employees as was the practice at the Employer, stating
that he told them “there would be no more shape-up program.”
Alfano further denied telling him that he knew who voted for
Local 813 but Local 621 won anyway, but Alfano admitted
telling Meadows at the election after the votes were counted
that it did not matter who voted for Local 813 because Local
621 won.
Rizzo stated that Meadows was a shape employee, a good
worker who was given an opportunity to become a regular
helper when he was working on a regular route for six weeks
with driver Garrison. However, he did not become a regular
helper because he did not know the route after six weeks. Rizzo
stated that Meadows’ employment ceased when he stopped
coming to work. After not having come to work for one week
he called Rizzo, asking if he could work full-time, and could
not work only one or two days per week. Rizzo replied that he
could work for one to three days per week if he is needed, but
there was no “permanent” spot for him. Rizzo stated that when
Meadows called he was a shape employee and Rizzo had made
no decision to terminate him and had no reason to discharge
him for not appearing at the yard because “a shape up guy just
stops coming in.”
F. Frank Madden
Madden was a Waste Management employee who was hired
by the Employer in June, 2006 and drove the vegetation route.
He was dispatched from the Employer’s Newark yard, working
six days per week, Sunday through Friday nights, from 6:00
p.m. to 1:30 or 2:00 a.m.
Madden stated that in the Fall of 2007 he distributed a couple
of cards for Local 813, having received them from that union’s
agents. Before the election, Rizzo asked him how he felt about
Local 813. Madden replied that he was not in favor of any un-
ion because “my work represents me; if you’re a good worker,
why would you need a union? I don’t need a union because my
work is good.” Rizzo told him to “stand by your own union, we
have a union, the union has no problems.” During the conversa-
tion, Madden told Rizzo that he heard that a new vegetation
truck was being delivered to the Employer, and asked him if
“the truck was mine.” Rizzo replied “you do right by me and
we’ll do right by you.” Rizzo denied any conversations in
which he told employees that they would be assigned to a new
truck if they supported one union over another but did not deny
asking Madden how he felt about Local 813.
Rizzo testified that in his discussion with Madden about un-
ions Madden said that he did not care about unions because he
is a good worker. Rizzo told him that if he liked things the way
they are he should vote for Local 621. At hearing, Rizzo stated
that his belief was that if Local 813 won the election the parties
would begin negotiations and that “anything could happen in
negotiations.”
Staada, a route supervisor, stated that his job included fol-
lowing drivers and checking their routes. During the union
campaign he also carried labor consultant Juan Cruz with him,
ostensibly to “educate” workers as to unions. Madden testified
that Staada and Cruz pulled up to Madden’s truck. They handed
him booklets and told him that Local 813 was losing members
and it “had no future.” Staada asked him whether any Local
813 members were “harassing” him. Madden asked what he
meant and Staada said by going on the routes and stopping
employees from doing their work and distributing pamphlets
for Local 813. Madden replied “isn’t that the same thing that
you’re doing to me, you’re stopping me from doing my work
and passing out pamphlets about Local 813.” Staada replied “I
know where your vote is” adding that he heard from other peo-
ple that he was voting for Local 813. Madden asked Staada
whether he would be assigned the new vegetation truck. Staada
replied “if you do right by the company the truck is yours.”
Staada conceded that he probably spoke to Madden that night
about his own truck which frequently broke down, but denied
speaking about whether he would be assigned the new truck.
Staada testified that after introducing Cruz to employees
Daniel Mason, Jamie Matos, Henry Morales, Jonathan Prescott
and Tom Barletta, they advised Staada that Frank Madden
stopped their trucks and spoke to them about “this stuff” and
asked why he was doing that. Cruz told them that they were
free to vote for Locals 621 or 813 or for no union, but that the
Employer hoped that they would support their current union,
Local 621. Their conversations lasted five to ten minutes.
Staada stopped Frank and Dominic Madden on their route
and introduced Cruz. Frank told Staada that he did not need a
union. Cruz said that the Employer hoped that he would support
Local 621 its contractually-recognized union. Frank repeated
that he did not need a “fucking union” to protect his job be-
cause he does his job. Staada replied: “That’s not what I heard.
Guys are telling me that you’re pulling them over on their
routes trying to organize them to go to meetings for information
about 813. Frank asked who was saying that, and Staada said
“everybody.” Frank answered that if anyone said that he should
have them speak to him (Madden).
Dominic Madden stated that while Cruz was telling them
that Local 813 membership was declining, Staada told his
brother that “we will give you a new truck and you should do
the right thing.” Frank replied that Staada should not be “pres-
suring” him into voting yes or no. Dominic told Cruz that he
was not in Local 621 and the matter did not concern him.
The Employer originally had two vegetation routes, both
dispatched from Newark. They were driven by drivers Frank
Madden and Mac Johnson. Madden’s route, later called route
801, made stops predominantly in Manhattan and was the lar-
ger route. Johnson’s route, 802, had fewer stops and picked up
vegetation mostly in Brooklyn. In addition, because Johnson
had the lighter route and finished earlier, he took his truck to a
dump in New Milford, Connecticut. On the other hand, Madden
did not have to take his truck to the dump. Another driver met
his truck and took it to the dump while Madden returned to the
yard.
On about January 10, Rizzo asked Madden to attend a meet-
ing with Cruz. Rizzo was in attendance. Cruz said that Local
813 was losing members, and urged the employees to vote for
Local 621 which has a contract with the Employer. Madden
testified that he asked Cruz how there could be a contract if he
did not vote on one. Cruz replied that it was an agreement be-
tween the Employer and Local 621. Madden then left the room.
Rizzo followed him and told Madden that he was being
taken off his route 801 and given Johnson’s route 802 because
ACTION CARTING ENVIRONMENTAL SERVICES 11
Johnson wanted that route and also wanted the new truck ex-
pected to be assigned to it. Rizzo added that Madden’s route
would be transferred to Brooklyn. Madden stated that he asked
why Johnson was getting the Newark route and Rizzo said that
he had seniority. At hearing, Madden conceded that Johnson
had greater seniority with the Employer, but that he had served
on the vegetation route longer than Johnson.
It should be noted that Rizzo stated that the Employer’s prac-
tice has been to keep drivers on their routes indefinitely unless
changes had to be made. Madden had been working on his
route since June, 2006. Johnson was working on his route since
2007.
Rizzo testified that in early January, 2008, after the purchase
of Waste Management, the Employer decided to move one of
the vegetation routes from its dispatch area in Newark to
Brooklyn where the Waste Management facility was located.
At that time the Employer knew that it would have to vacate the
Brooklyn facility but did not know exactly when. That route
was dispatched from Brooklyn for about four to six weeks and
then was transferred to the Bronx.
Rizzo testified that he decided to run one of the routes from
the Brooklyn yard because the Employer wanted to expand its
vegetation pick-up business into the outer boroughs. He ex-
plained that the cost to the Employer of dispatching a truck
from Brooklyn to handle the Brooklyn stops was much less
than dispatching a truck from Newark since the routes were
closer to Brooklyn than from Newark with a savings in tolls
and fuel.
Johnson testified that he asked Rizzo to be assigned to Mad-
den’s route assuming that the new truck would be associated
with that route. Johnson stressed that he had greater seniority
and wanted to be dispatched from Newark because it was closer
to his home in New Jersey. Rizzo agreed that he had greater
seniority and that he would look into it. Rizzo conceded, how-
ever, that the Employer had no “formal system” for employees
to bump others through seniority. He had never, before that
time, assigned a route based on seniority because no one asked
to change his route based on that factor.
Rizzo stated that Johnson asked him for Manhattan route 801
because he had greater seniority. It was the first time that John-
son had asked for anything and Rizzo wanted to give it to him.
However, prior to that time, Johnson asked to be taken off the
cardboard route and Rizzo granted that request. He told Jonson
in November or December, that a new truck was coming for a
route that he wanted. About that time he first asked to change
routes. In fact, Johnson stated that he had been asking for that
route for one year before it was assigned to Madden.
In fact, Johnson was not assigned to the new truck or to route
801. At first, supervisor Alfano worked route 801 with the new
truck after Madden was removed from the route. Thereafter, the
Employer assigned Ray Houston, a new driver with no experi-
ence on the route to drive route 801. Houston started driving
the route on January 24, 2008, but was capable of learning
route 802 which was the route that Madden was reassigned to.
Upon the transfer to Brooklyn, Madden took Johnson’s route
and Johnson was assigned to Madden’s route which had fewer
stops and was completed earlier. Johnson testified that when he
was assigned to Madden’s route he told him that he had re-
quested it. Madden replied that Johnson was correct, and that
Johnson should have gotten it.
Madden had to drive to the dump which was traditionally
part of that route. The dump was located in New Milford, Con-
necticut while Johnson’s truck was picked up by another driver
who drove it to the dump. Prior to Madden’s transfer to Brook-
lyn, Madden did not have to travel to the dump, but after the
switch he went to the dump every day. The trip from Brooklyn
to the dump was 2 to 2½ hours which extended his work day
depending on the traffic. In addition, the dump opened at 4:00
or 5:00 a.m. and the driver had to wait there for about one hour.
In contrast, when Johnson drove the route he had to travel to
the dump only every other day. Madden stated that he asked
Rizzo why he had to go to the dump each day, Rizzo explained
that the truck “goes [to the dump] every day now.”
Rizzo testified that Manhattan route 802 took 8½ hours
compared to four hours for Madden’s Brooklyn route. He stated
that it took 1½ hours to1¾ hours for a truck to go from Manhat-
tan to the dump and a couple of hours to go to Newark, and that
route 802 should have taken four hours when dispatched from
Brooklyn.
Upon the transfer, Madden’s work hours changed. When he
worked in Brooklyn he left the yard at 6:00 p.m. or 7:00 p.m. to
try to avoid the rush hour. Shortly thereafter he was told by a
supervisor that the route would start at 8:00 p.m. This resulted
in a slower trip to Brooklyn because there was heavier traffic
on Thursday, Friday and Sunday due to the “night scene.”
Madden asked Rizzo whether Johnson asked for his route
and Rizzo said he did. However, Madden stated that he asked
Johnson if he asked for the route and Johnson denied doing so.
When Madden reported this to Rizzo, he said that it is now a
Brooklyn route.
Prior to his transfer to Brooklyn, Madden drove a distance of
15 miles in 10 minutes to work in Newark from his home in
New Jersey. He did not have to pay tolls during that commute.
When he was dispatched from Brooklyn, it took about one hour
to one hour and 45 minutes, and about 30 to 35 miles each way
with tolls for the Verrazano Bridge, the New Jersey Turnpike
and additional fuel consumed. He estimated that gasoline and
tolls for that trip was $200 to $270 per week. During the time
that Johnson was training Madden he had the same commute
from Newark to Brooklyn.
Rizzo admitted that one week after his transfer to Brooklyn,
Madden told him that the commute was too far for him. Rizzo
replied “I need you to drive that route.” Madden’s compensa-
tion was not changed after he began being dispatched from
Brooklyn.
It is significant that although Johnson was assigned to Mad-
den’s route, he never actually drove that route. Instead, Johnson
rode with Madden on his new route, teaching him the stops.
After Madden’s transfer, his former route was driven by Ray
Houston a new driver. On January 24, Madden and Johnson
were both moved to the Bronx upon the close of the Brooklyn
facility where Madden worked until he quit on February 4.
After Madden quit, Johnson continued to drive route 802 and
he was still driving that route at the time of the hearing. Ac-
cording to Rizzo, Johnson was not assigned to route 801 be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
cause there was no driver available who knew the 802 route
which Johnson had been driving.
Madden’s commute from home in New Jersey to the Bronx
added 30 minutes to the commute from home to Brooklyn.
Madden testified that he believed that the transfers, first to
Brooklyn and then to the Bronx were made in order to harass
him because of his support for Local 813.
Madden testified that on February 4, he drove to the Bronx
from his home in New Jersey and was waiting for Johnson to
arrive so that they could begin the route at 8:00 p.m. as sched-
uled. Johnson was late and Madden phoned him a couple of
times and was told that he was on his way. Madden called again
and Johnson said that he was with Alfano who asked him to
come to Newark and was driving him to the Bronx. Madden
called again and heard Alfano tell Johnson not to worry about it
that they would get there “when we get there.” Johnson arrived
at 11:00 p.m.
There was some confusion as to who started the confronta-
tion which began upon Johnson’s arrival. Madden was waiting
in the truck when the men arrived. He first testified that Alfano
exited his car and laughed in his face and began “mouthing off”
asking “who are you to tell me that I’ve got to bring Mack
Johnson right away. I’m the supervisor. You do what I say. If
you don’t do what I say, you know where to go, you can leave
right now.” Madden admittedly “got into [Alfano’s] face and
told him that he shouldn’t be disrespecting me. If you disre-
spect me, I’m going to disrespect you. He kept getting closer to
me nose to nose [which he considered as a] threat. So I told him
if you keep getting any closer to me, I was going to punch
him.”
Later, Madden testified and this is confirmed by Johnson,
that he (Madden) began the confrontation by getting out of the
truck and “mouthed off” to Alfano, asking why it took so long
to get from Newark to the Bronx. Alfano replied that he had to
take care of some tasks in Manhattan. Madden replied “but you
are holding my route up.” Alfano said that he did not care.
Then words were exchanged as set forth above. Johnson physi-
cally pulled Madden away from Alfano. Madden stated that he
then decided to quit and asked an employee to get the keys to
his personal vehicle which he drove to the Bronx. Madden
turned in his Nextel phone and left.
Madden stated that before that day he had no intention of
quitting. The reason he quit was the confrontation with Alfano
which was triggered by “Alfano’s mouth.” Madden conceded,
however, that he was already angry even before the argument
because he was delayed three hours because Johnson was late.
Madden noted that garbage men and supervisors lose their tem-
pers all day, drivers because of New York traffic and pedestri-
ans, and it is not uncommon for people in the industry to curse
at each other.
Johnson gave his version of the confrontation. He stated that
he was carpooling with Madden, alternating days when each
would drive to the Bronx. On the morning of February 3, he
returned home with Madden who said that he would pick up
Johnson that evening at 5:30 or 6:30 p.m. for a 7:00 p.m. shift.
That night, Madden was late picking him up and Johnson called
him before 8:00 p.m. Madden explained that he had a family
problem and was almost ready to pick him up. Later, Johnson
called him again and was told by Madden that he was already
in the Bronx. Johnson yelled at him for not picking him up,
accusing him of “setting me up” and having “no intention of
picking me up.” They both yelled at each other. Johnson then
drove to the Newark yard arriving at 9:00 p.m. and told Alfano
that he wanted to meet Madden in Brooklyn at the first vegeta-
tion stop. Alfano said that he had to drop two employees off in
Manhattan and would then take him to the Bronx.
During the ride, Johnson and Madden cursed each other on
the phone with Madden demanding that Johnson get there
quickly and Johnson accusing him of not picking him up. John-
son arrived in the Bronx just before 10:00 p.m. Johnson stated
that he got into Madden’s truck and announced that he would
not travel to the dump with Madden because he “screwed me
around.” Madden then said “fuck it. I quit. I ain’t gonna take
this shit.” Madden left the truck and approached Alfano who
was about to depart. Madden said “fuck this job, I quit, I don’t
need this here” and threatened to punch Alfano. Johnson got
between them and said that he would go to the dump with him.
Madden was standing very close to Alfano and told him “I’ll
have my brother kick your ass. I’ll ask Mike to fuck you up up
here. You better not go uptown.” Alfano dared Madden to hit
him and Madden left.
Alfano and Johnson testified that Madden was at fault for
Johnson’s lateness. Alfano stated that Johnson appeared at the
Newark yard complaining that Madden was supposed to have
picked him up on his way to the Bronx and did not. Johnson
needed a ride to the Bronx. Alfano had to drop off two employ-
ees in Manhattan so he took Johnson with him. During the trip,
Madden and Johnson were yelling at each other on the phone
with Johnson blaming Madden for not picking him up. Madden
did not deny Johnson’s testimony that Madden was at fault for
not picking him up.
Alfano stated that he and Johnson arrived at the Bronx yard
at 9:30 or 10:00 p.m. Alfano stated that Madden “got in my
face,” threatened to punch him and threatened that he would not
“make it out of the Bronx alive.” Madden then announced that
he was quitting. Madden denied telling Alfano that he should
not go uptown because he was going to get him.
By letter dated February 5, the Employer wrote that Mad-
den’s employment with it “is hereby terminated as of February
4, 2008. Your position has been eliminated as a result of Job
Abandonment. Additionally, you verbally assaulted supervisory
personnel in a threatening manner which is also cause for dis-
missal.”
Rizzo denied being aware that Madden or any other em-
ployee supported Local 813, and denied that supervisor Staada
told him of Madden’s interest in that union or that he had solic-
ited employees to join that union.
G. Dominic Madden
Dominic Madden was hired at the request of his brother,
Frank, a former Waste Management driver who became em-
ployed by the Employer in 2006. Dominic was hired specifi-
cally to be Frank’s helper, and began work on November 15,
2007.
Dominic conceded that a couple of days after he began work
he was told by Rizzo that he had to learn the stops so that he
ACTION CARTING ENVIRONMENTAL SERVICES 13
could direct a replacement driver if his brother was absent.
Rizzo testified that the Employer assigns helpers to a specific
route with a driver on a day-to-day basis. The helper stays on
the same route as long as possible so that he is able to learn the
route. If he does a good job he is not replaced because it takes a
period of time to learn the route which may involve hundreds of
stops – knowing the specific stop, what date garbage is picked
up, how many bags are there, and specifically where the gar-
bage is located – in an alley, for example, with each stop hav-
ing a specific time and location when and where the garbage
must be taken from. In the event that the driver is absent, a
substitute driver relies on the long-term helper on the route to
assist in finding the stops. Rizzo also told him that it should
take him no longer than six weeks to learn the route. Rizzo
testified that upon his hire he asked Dominic how long it would
take him to learn the route. Dominic replied that it should not
take him long. At hearing, Rizzo stated that it should take a
helper six weeks at most to learn the stops on a route.
Shortly after his hire, Dominic began to tape record the
stops. He described the stops on the route as he was driving in
the truck. It took two days to record the entire route. According
to Dominic, dispatcher O’Donnell knew that he was recording
the route. He left his recorder bag on the dispatch counter and
O’Donnell asked what it was. When Dominic told him he was
recording the route, O’Donnell replied that that was a “good
idea.”
Frank was absent for two nights, January 3 and 4. The first
night, Dominic was first assigned to his regular route. Dominic
stated that he told dispatcher O’Donnell that he did not know
three stops on the route. O’Donnell assigned a different helper,
Michael Burton, who knew Frank Madden’s route to do that
route and assigned Dominic to a different route in Brooklyn
driven by Mac Johnson. Dispatcher O’Donnell testified that
Frank called him that night, said he would be absent and ad-
vised O’Donnell that his brother did not know the route and he
should assign someone else. Rizzo testified that Frank told him
that night that he would be absent and that Burton should be
assigned to the route as the helper because Dominic did not
know the route. Rizzo asked Frank why he did not know the
route. Frank replied that it was taking “a while” for him to learn
it but that he should have learned it by then.
O’Donnell testified that Dominic was not fired at that time
because he was “given a chance.”
On the second consecutive night that Frank was absent,
Dominic was again assigned to his brother’s regular route. He
used the tape recorder to help him remember the stops but two
hours later after 13 stops he was taken off the truck. O’Donnell
called the driver and told the driver to park the truck and wait
for helper Burton who knew the route. Johnson arrived at the
scene with his truck and Dominic was assigned once again as a
helper on Johnson’s route. Dominic asked O’Donnell why they
had to replace him since he knew the three stops he did not
know the prior night. O’Donnell said it’s not a problem.
Dispatcher O’Donnell testified that on the occasions when
Frank was absent, he told Alfano that Dominic did not know
the route and someone else should be assigned as helper on the
route. O’Donnell assigned Michael Burton who had been
Frank’s long-time helper, to the route. O’Donnell also stated
that on another occasion when Frank was absent, Dominic
started the route and then called him and said he did not know
it.
O’Donnell stated that Frank was also absent prior to that
time, on December 27, and did not know the route then. How-
ever, he was not fired at that time. Driver Johnson also testified
that Frank told him at about that time that Dominic was not
learning the route. It was also Johnson’s opinion that by De-
cember Dominic should have known the route, stating that
employees are given two to three months to learn the route
depending on its size. In this case, Johnson stated that although
there were 206 stops on the route, only about one-half were
actually picked up and that two months were sufficient to learn
the route, but that it should have been learned in one month.
O’Donnell stated that such transfers of helpers in mid-route
are not common. They result in a loss of time while garbage is
lying on the street. A helper who is familiar with the route must
be obtained and either driven to his new assignment or the
trucks have to arrange to meet where the transfer of helpers
takes place. Frank Madden stated that there was an “expecta-
tion” that the helper should know the stops on the route, and
that if a helper did not know the route the Employer had to
locate a driver or helper who knew the stops and take the helper
off his regular truck. Frank conceded that such an occurrence
“slowed things up” and drivers complained when that hap-
pened.
Dominic stated that no one told him that he had done any-
thing wrong that evening. In fact, O’Donnell and Alfano told
him not to worry about it.
Rizzo testified that following Frank Madden’s second ab-
sence where Dominic had to be taken off the route, O’Donnell
and he discussed the matter. Rizzo stated that O’Donnell told
him that if Dominic did not know the route by then he would
not be able to learn it. They decided to discharge Dominic.
Rizzo did not ask O’Donnell which stops Dominic did not
know, and Rizzo was not aware at that time that Dominic had
been recording the stops. Rizzo further testified that he was not
aware of Dominic’s union sympathies. They had no discussions
concerning unions. The collective-bargaining agreement incon-
sistently provides that (a) during an employee’s 90 day proba-
tionary period the employee “may be terminated for any reason
without recourse by the Union” (Article XI, page 6), and “all
employees covered by this Agreement shall be considered pro-
bationary for a period of 60 calendar days from their last date
of hire with the Employer.” (page 12). No explanation was
given at the hearing for this discrepancy in the probationary
period.
Dominic stated that on January 9, 2008, as he and Frank re-
turned to the yard at the end of their work-day, they were asked
by Rizzo to attend a meeting with Sombrotto and Cruz. Som-
brotto gave them a “Local 621” cap and Cruz told them to do
what was right for the Employer since the Employer signs their
checks. Frank made some remarks which Dominic did not hear.
As set forth above, at that meeting which Frank Madden said
was attended also by Rizzo, Cruz mentioned the contract be-
tween the Employer and Local 621, and Frank asked how there
could be a contract if he did not vote on one. Cruz replied that it
was an agreement between the Employer and Local 621. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Maddens then left the room. Rizzo told Frank that he was being
taken off his route, and beginning Monday his route would be
dispatched from Brooklyn. Rizzo did not deny that he was pre-
sent at the meeting.
Dominic stated that when he asked Rizzo who would be
driving the route that Dominic was on, Rizzo put an envelope
on the counter and did not reply. The letter, dated January 10,
stated that he was being terminated “as a result of your inability
to learn the position.” Dominic stated that prior to that evening,
no supervisor asked him whether he knew the route, and denied
that his brother or any supervisor said anything to him about
not learning his route. Frank testified that he gave Dominic the
recorder, and denied telling Rizzo that Dominic was having
trouble learning the stops. Frank stated that it took him about
one month to learn a Manhattan route. Their route contained
about 100 stops with additions and deletions of stops being
made each day.
O’Donnell testified that Dominic read the letter, and
O’Donnell reminded him of the times when he was transferred
to another truck because he did not know the route. Dominic
replied that he knows the route now and O’Donnell replied that
he said that before, and that he should have known the route by
now, advising that his brother told him that he did not know the
route. At hearing, O’Donnell testified that he is stricter than
others and “gives people usually 30 days to learn a route.”
Rizzo stated that Dominic asked him why he was fired.
Rizzo replied that he did not know the route. Dominic asked for
an explanation and Rizzo said that he had two days to prove he
knew the route and he did not do so.
Alfano stated that Rizzo decided that Dominic should be dis-
charged because he did not know his assigned route after work-
ing on the route for more than two months. According to Al-
fano, Dominic’s brother Frank told him that he did not know
the route. Frank denied telling anyone that his brother did not
know the route. Alfano stated that Dominic called him after he
was fired and asked for a “chance” to show him that he knew
the route. Alfano told him to speak to Frank because he was the
one who said he did not know the route.
Dominic voted in the election after his discharge. He testi-
fied that while he was on the premises on the day of the elec-
tion, he and Alfano had a casual conversation about Dominic’s
children and things that were occurring in their lives. He was
told by Alfano that he had been fired “because of my brother’s
vocal opinion about 813. I was terminated because they could
not terminate my brother or something to that effect.” This
statement was not included in Dominic’s pre-trial affidavit
which was taken two weeks after the election because he was
more concerned with a problem and incident which he had with
another employee, and that there were many things that he did
not discuss with the Board agent who took his affidavit because
he did not remember them.
O’Donnell testified that he recommended that Gadson be
demoted from regular helper to shape status because he did not
learn his route. He stated that Dominic was not given that op-
tion because he was not hired originally as a shape worker.
Similarly, Rizzo testified that Dominic was not offered the
opportunity to become a shape worker because he was hired as
a regular employee based on the fact that he would learn the
route and work with his brother.
Analysis and Discussion
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference with Employee Rights
The complaint alleges essentially that the Employer interro-
gated employees about their union sympathies; promised em-
ployees benefits if they supported Local 621 and if they refused
to support Local 813; created an impression among its employ-
ees that their union activities were under surveillance; and
threatened employees with reprisals if they supported Local
813 and if they failed to support Local 621.
I begin this discussion with the undisputed fact that the Em-
ployer supported Local 621 and was opposed to Local 813
becoming the employees’ representative. It mounted a cam-
paign to persuade the unit workers to vote for Local 621, retain-
ing a labor consultant to speak to the workers while they were
working and gave them literature. In addition, Employer offi-
cial Glauda’s letter shortly before the election strongly sup-
ported Local 621. There is nothing illegal about this conduct
but it provides the background for the allegations set forth
above.
I find, as set forth above and as testified by Meadows, Al-
fano told him that whoever “goes to” Local 813 would lose
their job, and thereafter, when Alfano asked him if he wanted a
Local 621 hat. When Meadows replied that he was going to
Local 813, Alfano said that he would lose his job. Thereafter,
Meadows refused Alfano’s request that he sign a Local 621
contract. I also find, as testified by Gadson, that Alfano told
him that if he did not vote for Local 621 or if he voted for Local
813 he would be fired.
I cannot credit Alfano’s denials of those statements. He con-
ceded that he told shape workers that Local 813 and Waste
Management did not employ shape employees and that there
would be no more shape up program if Local 813 was elected. I
do not believe that Alfano engaged in such a careful description
of those two organizations’ employment practices. It is more
likely that Alfano bluntly told Meadows, as I find, that if Local
813 became the representative he would lose his job with the
Employer because Local 813 does not recognize the job cate-
gory of shape employees and that there would be no more
shape program. I find that he made that comment consistent
with the Employer’s undisputed efforts to persuade its employ-
ees to reject Local 813 in the election.
I also note that Alfano admitted being with Gadson when the
alleged unlawful statements were made and significantly testi-
fied that he told Gadson that “things would definitely be differ-
ent” if Local 813 was elected, specifically he would no longer
give leeway to employee’s personal situations or extend per-
sonal courtesies to them. I cannot credit Alfano’s explanation
that he was simply describing how things worked at Waste
Management and not how working conditions would change at
the Employer. First, Alfano never worked at Waste Manage-
ment and there was no showing as to how he knew the working
relationship between Local 813 and that employer. Signifi-
ACTION CARTING ENVIRONMENTAL SERVICES 15
cantly, he admitted that the relationship between employees and
the Employer would suffer if Local 813 was selected.
I therefore find that Alfano’s statements to the employees
constitute threats violative of Section 8(a)(1) of the Act.
I further find that the reply by Rizzo and Staada given to
Frank Madden’s question whether a new truck would be as-
signed to him constituted a promise of benefits if Madden voted
in favor of Local 621. Rizzo and Staada both said that if Mad-
den did right by the Employer the Employer would “do right
by you”. It is undisputed that a new truck is a benefit to the
employee assigned it. Those comments occurred in the context
of Rizzo’s asking him how he felt about Local 813 and Staada’s
and Cruz’ attempts to persuade Madden to vote for Local 621.
Clearly at the time that Staada spoke to Madden he was aware
that Madden supported Local 813 because he told him that
other drivers mentioned that Madden had spoken to them about
joining Local 813.
The credibility of Rizzo and Staada were harmed by their
testimony that Cruz’ purpose was simply to educate the work-
ers about the union situation. Cruz’ statements to the employees
in the presence of both men strongly supported Local 621 and
denigrated Local 813.
Madden replied to Rizzo that he did not need a union as his
work stands for itself. It is logical that Rizzo would answer, as I
find that he did, that Madden should stand by his own union, in
effect saying that even if he did not need a union he should
support the union currently recognized by the Employer. The
promise made by Rizzo and Staada that if Madden did the right
thing the Employer would reciprocate clearly tended to inter-
fere with Madden’s right to vote for Local 813. Staada’s denial
of the promise does not ring true. He conceded speaking to
Madden at that time about his own truck which was in poor
condition. It is logical that while speaking about his vehicle
Madden would have asked about the new truck and therefore it
makes sense that Staada would have attempted to induce Mad-
den to support Local 621 through an offer of a new truck. I
therefore find that the promise of a new truck violated Section
8(a)(1) of the Act.
I find that Rizzo’s question to Frank Madden as to how he
“felt” about Local 813, and Alfano’s question to Gadson as to
which union he was supporting, whether he would support
Local 621, and if he signed the Local 621 contract were im-
proper interrogation of both employees. Similarly, Alfano’s
statement that he heard that Gadson was telling everyone to
vote for Local 813 was also the creation of the impression of
surveillance and also a form of interrogation requiring that
Gadson explain whether he supported Local 813 or not.
Interrogation is not, by itself, a per se violation of Section
8(a)(1) of the Act. The test for determining the legality of em-
ployee interrogation regarding union sympathies is whether
under all the circumstances the interrogation reasonably tends
to restrain, coerce, or interfere with rights guaranteed employ-
ees by the Act. Under this totality of circumstances approach
consideration is given to whether the interrogated employee is
an open or active supporter of the union, the background sur-
rounding the interrogation, the nature and purpose of the infor-
mation sought, the identity of the questioner, the place and/or
method of the interrogation, and the truthfulness of any reply
by the questioned employee. Rossmore House, 269 NLRB
1176, 1177 (1984), enfd. sub. nom. HERE Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). These factors are not to be me-
chanically applied but rather are useful indicia that serve as a
starting point for assessing the totality of the circumstances.
The totality of the circumstances present here persuade me that
Frank Madden and Gadson were unlawfully interrogated. They
were not open supporters of Local 813, they were questioned
by supervisory personnel, the information sought from them
was intended to learn whether they supported Local 813, and
they did not express their true opinion as to which union they
supported.
Alfano told Meadows following the election that he knew
“who went 813…” Meadows’ follow-up question inquiring
how he knew was not answered. I cannot credit Alfano’s denial
of that statement. He conceded that he told Meadows at that
time that it did not matter who voted for Local 813 because
Local 621 won the election. Alfano did not explain why he
made that comment. It is reasonable to infer that after Meadows
asked the question, Alfano ignored it and said that it did not
matter because Local 621 won. Accordingly, it is quite logical
to find that Alfano told Meadows that he knew who voted for
Local 813 and, in an effort to add to the mystery of how he
knew, Alfano simply stated that it did not matter since Local
621 won anyway.
The Board’s test for determining whether an employer has
created an impression of surveillance is whether the employee
would reasonably assume from the statement in question that
his or her union activities have been placed under surveillance.
When an employer creates the impression among its employees
that it is watching or spying on their union activities, or em-
ployees’ future union activities, their future exercise of their
Section 7 rights tend to be inhibited. Link Mfg., 281 NLRB 294
(1986), enfd. mem., 840 F.2d 17 (6th Cir. 1988), cert. denied
488 U.S. 854 (1988). The idea behind finding an impression of
surveillance as a violation of Section 8(a)(1) of the Act is em-
ployees should be free to participate in union organizing cam-
paigns without fearing members of management are peering
over their shoulders, taking note of who is involved in union
activities, and in what particular ways.
I accordingly find that Alfano’s statement constitutes the
creation of the impression of surveillance of Meadows’ union
activities. Similarly, I credit Frank Madden’s testimony that
Staada told him that he understood from other people that he
was soliciting for Local 813 and that he knew where Madden’s
vote was. Staada conceded being told by other employees that
Madden sought to have them support Local 813 and admitted
asking whether Madden was soliciting them. This too consti-
tutes the creation of the impression of surveillance.
B. Discrimination Against Employees
1. David Zengewald
Zengewald was an experienced driver who engaged in activi-
ties in behalf of Local 813 by distributing about 20 authoriza-
tion cards and speaking to employees in behalf of that union.
He also attended meetings with Local 813 agents on working
time. His membership in Local 813 was known to Rizzo. At a
meeting with Cruz and supervisors Alfano and Rizzo, Zenge-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
wald announced that he was not interested in hearing about
Local 621 and that he was a long-term member of Local 813.
He conceded telling the men that he did not care about the
company or the unions and was not interested in joining the
unions, adding that if he was offered a job by an electrical con-
tractor he would quit. That evening, Zengewald accused Cruz
of being misinformed when he said that Local 813’s pension
fund was bankrupt.
Two days later, December 19, Zengewald was fired. The
discharge took place only five days after Local 813 filed its
petition with the Board. This case must be analyzed under the
standards set forth in Wright Line, 251 NLRB 1083 (1980).
Under Wright Line, the General Counsel bears the burden of
proving by a preponderance of the evidence that the employees’
protected conduct was a motivating factor in the adverse em-
ployment actions. If the General Counsel makes a showing of
discriminatory motivation by proving protected activity, the
employer’s knowledge of that activity, and animus against pro-
tected conduct, then the burden of persuasion shifts to the em-
ployer to prove that it would have taken the same actions even
in the absence of the protected conduct. See Donaldson Bros.
Ready Mix, 341 NLRB 958, 961 (2004).
First, it is clear that Zengewald engaged in protected ac-
tivity by soliciting cards and speaking to employees in an
effort to encourage them to join Local 813. Although it has
not been shown that those activities were specifically known
by the Employer, it is undisputed that employer official
Rizzo was aware that Zengewald was a member in long
standing of that union. The Employer’s knowledge of his
membership and its animus toward the protected activity of
employees who support Local 813 as demonstrated above
by the interrogations, threats of discharge, promises of bene-
fit and creation of the impression of surveillance of employ-
ees’ union activities, provides a firm foundation for finding
that Zengewald’s protected conduct was a motivating factor
in his discharge.
The burden then shifts to the Employer to prove that it
would have discharged Zengewald even in the absence of
his protected activity. I find that the Employer has not met
its burden. Zengewald was discharged allegedly because he
was irate and could not be trusted driving a truck, and be-
cause he intended to leave the Employer’s employ and it did
not wish to “invest” any more time in him.
As to his being irate, Zengewald admits that he spoke
about his lack of interest in the company and the unions in a
slightly raised voice. His upset at being confronted by two
supervisors and Cruz immediately after finishing his route is
understandable. As he testified, he was uncomfortable in
being put on the spot at that time. At that time he had fin-
ished driving his route and presumably would have had time
to become calm before driving again the next day. In addi-
tion, the Employer did not stop him from driving again the
next day. Rizzo admitted that Zengewald is not an angry
person, and Alfano stated that “everybody is upset” because
of the nature of the job. Moreover, Zengewald apologized
for his conduct and told the officials that he did not mean to
imply that he was not interested in the employer, only that
he did not want to be involved in the discussion about un-
ions.
Other employees received less discipline for engaging in
more violent conduct. Thus, Frank Madden was suspended
for one day due to a physical fight with another worker.
Johnson argued with a helper and was transferred to a dif-
ferent route. There clearly is no precedent for this discharge.
Rizzo’s reason for not preventing him from driving the
next day because he wanted to speak to him in person is
without merit since he could have left word with him or
another supervisor that he was suspended for one day until
they spoke.
As to the claim that since Zengewald intended to quit, the
Employer could not invest any more time in him, Zenge-
wald credibly testified without dispute that he was already
trained, was driving the same route he had when he was at
Waste Management and had no disciplinary problems in the
two months he had been with the Employer. Indeed, Rizzo
confirmed this by stating that Zengewald was a good em-
ployee and he knew the route for which he needed no train-
ing, a benefit to the Employer. In addition, he told the Em-
ployer’s officials that the offer of a job with an electrical
contractor was speculative – the contractor had to first recall
to work certain laid off workers and then a position must
open up, and then if he was offered a job he had to decide
whether to accept it. In addition, as the Employer’s testified,
it needed drivers who were experienced with Waste Man-
agement’s routes.
I accordingly find that the Employer has not met its bur-
den of proving that it would have discharged Zengewald
even in the absence of his union activities, and that his ter-
mination violated the Act.
2. Shafi Gadson
Gadson began as a shape employee and then, because of
his excellent performance, was made a regular helper. As
evidence of this, he was given uniforms, received health
insurance benefits, safety bonuses and holiday pay, all bene-
fits provided for regular helpers but not shape workers.
Apparently because of performance problems including
his absence from work, even after being assigned to a truck,
he was taken off his regular route and demoted to shape
worker in December, 2007. Shortly thereafter in early Janu-
ary, as set forth above, Alfano unlawfully threatened to fire
Gadson if he did not support Local 621 or voted for Local
813, and then a few days later Alfano asked him to sign the
Local 621 contract and unlawfully said that he was aware
that he was urging other employees to support Local 813.
Only a few days later, by letter dated January 7, Gadson was
discharged.
Alfano clearly believed that Gadson solicited support for
Local 813 and threatened him because of such activities and
if he did not change his support to Local 621. Accordingly,
the General Counsel has established that Gadson’s dis-
ACTION CARTING ENVIRONMENTAL SERVICES 17
charge, coming so soon after his activity in behalf of Local
813, was motivated by his conduct in support of Local 813.
Wright Line, above.
The written reason given for the discharge, lack of work,
was admitted by Rizzo, the author of the letter, to be false.
Rizzo’s reason for the letter was that he was permitting
Gadson to collect unemployment insurance yet there was no
evidence that other employees were given the same benefit.
Rather, letters of termination for other employees, such as
Frank Madden, were specific and detailed as to the reasons
for discharge.
Employer officials testified to the alleged reason for the
discharge – that Gadson did not appear for work, his atten-
dance was “inconsistent,” and that he would “disappear”
when he was assigned to a truck. These reasons do not with-
stand scrutiny. First, the Employer’s witnesses could not
identify any driver who Gadson was assigned to work with
but then disappeared from the scene. In addition, Gadson
engaged in the same alleged misconduct for three months,
from October to December, 2007 before he was demoted to
shape worker but no discipline was imposed on him.
As a shape worker at the time of his discharge Gadson
was to be present at the yard and wait for an assignment. If
one was not forthcoming he left. The Employer’s records
which showed that Gadson did not work a full week at vari-
ous times show only that Gadson was not assigned to a
truck more often. They did not show that his appearance
was inconsistent, or how often he was at the yard as a shape
worker waiting for an assignment.
Discharge for this reason was inconsistent with that given
to employee Meadows. He too was a shape employee and
when he did not appear for work after a period of time he
was not discharged and no action was taken against him. I
accordingly find that the Employer has not met its Wright
Line burden of proving that it would have discharged Gad-
son even in the absence of his union activities.
The Employer alleged that it discovered, after it termi-
nated Gadson, that he was scanning in for work and scan-
ning out without actually working, thereby receiving pay for
time not worked. Because the Employer came upon this
alleged information after Gadson’s discharge it is not rele-
vant to the above discussion of the reasons for his termina-
tion. However, it may be relevant to a compliance proceed-
ing. I do not believe that this issue is appropriate for deci-
sion at this time because the Employer has not asserted that,
assuming that Gadson’s termination was deemed unlawful
he is not eligible for reinstatement because of such conduct.
In addition, this allegation has not been fully litigated at the
hearing. Accordingly, it may be raised in a compliance pro-
ceeding subsequent to this decision.
3. Kevin Meadows
I have found above that Meadows was threatened with dis-
charge by supervisor Alfano, and was told that he (Alfano)
knew who voted for Local 813, and that only six days after that
Alfano told him not to return to the yard because the dispatcher
would not assign him to a truck.
It appears that Meadows was a valued shape worker who
was assigned a regular route but was then demoted to shape
employee when he did not learn the route after a period of time.
It is undisputed that Meadows was criticized when it was dis-
covered that he did not know the route when a substitute driver
replaced the regular driver. Meadows admitted that following
this incident he was sent out less often.
The first question is whether Meadows was discharged, as
alleged, or just failed to come to the yard after a period of time.
Meadows admits that he was assigned to a truck infrequently
after the incident in which he was found to have not learned the
route. The Employer denies that it discharged Meadows, argu-
ing that he simply did not return to the yard.
I cannot credit the Employer’s witnesses’ testimony that
Meadows was not discharged. Meadows credibly testified that
shortly after the election Alfano told him that the dispatcher
would not assign him to a truck and therefore he should not
return. Such a direction that an employee should not come to
work is a discharge. Rizzo testified that he had no reason to
discharge a shape employee because such a worker comes and
goes as he wishes, waiting for a night’s assignment – “a shape
guy just stops coming in.” However, such testimony is clearly
contradicted in the fact that Gadson, a shape worker also, was
discharged. Accordingly it is clear that the Employer did dis-
charge shape employees. Further, why would Meadows return
to the yard, as Alfano testified, and ask for a letter stating that
he was discharged if he was not, in fact, discharged?
I have found above that Alfano threatened Meadows with
discharge if he joined Local 813, and later when Meadows told
him that he was supporting that union, Alfano replied that
“you’re going to lose your job.” Further, Meadows refused to
sign a Local 621 contract and Alfano told him shortly after the
election that he knew who “went 813….” Shortly after that
Alfano told him that he should not return to work. The Em-
ployer’s knowledge that Meadows supported Local 813, its
animus toward that union and its supporters combined with a
direct threat that Meadows would be fired if he supported Local
813 and the close timing between the threat to discharge and his
discharge support a finding that Meadows was discharged be-
cause of his support for Local 813.
The Employer’s argument that Meadows was not discharged
but just failed to come to work does not withstand scrutiny.
Notwithstanding the Employer’s argument that it does not dis-
charge shape employees it had fired shape worker Gadson. If
the Employer’s argument is true that Meadows simply failed to
appear at the yard for work, it need not have fired him.
I accordingly find and conclude that the Employer dis-
charged Meadows in violation of the Act.
4. Frank Madden
a. The Unlawful Transfer and Changes of Route and Hours
The complaint alleges that the Employer unlawfully
transferred and changed the start time and route assigned to
Frank Madden, and then caused his constructive discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
As set forth above, Madden was an active supporter of
Local 813 by distributing cards for that union. I have found
that Rizzo unlawfully interrogated him by asking how he
felt about Local 813 and that he and Staada promised him a
new truck if he supported Local 621. Madden’s interest in
Local 813 was known to the Employer since Staada admit-
tedly told him that he heard that he was soliciting workers to
join that union.
Madden was originally assigned to the vegetation route
which was dispatched from Newark and made stops in
Manhattan. At a meeting on January 10, Madden disputed
labor consultant Cruz’ assertion that the Employer had a
valid contract with Local 621. Rizzo was at that meeting
and immediately told Madden that he was being taken off
his route and given Johnson’s route which made stops
mostly in Brooklyn, and that his route would be dispatched
from Brooklyn. Madden further testified and I find that the
time his route began was changed from 6:00 or 7:00 p.m. to
8:00 p.m. increasing the time it would take to get to his first
stop because of greater traffic at that later time.
The fact that Madden was a known Local 813 supporter,
combined with the Employer’s unlawful interrogation and
promise of a new truck coming immediately after Madden
disputed Cruz’ assertion about the contract supports a find-
ing that Madden’s transfer from Newark to Brooklyn was
motivated by his union activities. Wright Line, above.
The Employer’s defenses that Johnson asked for Mad-
den’s route and that he had greater seniority than Madden
have not been proven to be valid. First, Johnson testified
that he had been asking for that route for nearly three years,
since 2005, and that he wanted it because he heard that a
new truck would be assigned to that route. Why was he as-
signed to the route so much longer after his original request?
The obvious answer was that the Employer wanted to make
it more difficult for Madden who lived in New Jersey to
commute to Brooklyn rather than be dispatched from the
Newark yard. Rizzo also stated that he was inclined to grant
Johnson’s request because he had never asked for anything.
However, Johnson had asked to be taken off the cardboard
route after working it for two years and that request was
granted although it is the Employer’s policy to keep drivers
on the route that they have been doing. Further, seniority
has never been a factor in an Employer’s assignment of a
route to a driver. In addition, Johnson never actually took
Madden’s route. First, supervisor Alfano drove it with the
new truck and then a new driver, Houston, took that route.
Both Madden and Johnson lived in New Jersey and being
dispatched from that state was easier for both men because
they lived near the Newark yard. One had to be chosen for
transfer to Brooklyn. It is clear that Madden was chosen
because of his activity in support of Local 813.
Moreover, the timing of Madden’s transfer, even from a
business point of view, is suspect. At the time of the trans-
fer, the Employer was aware that it had only a limited
amount of time in the former Waste Management Brooklyn
yard before it had to vacate that facility. The Employer
could have continued to run the route out of Newark as it
had in the past.
Additional burdens were placed on Madden as a result of
the transfer. Because he had a shorter route he had to take
the truck to the dump in Connecticut whereas on his former,
Brooklyn route he did not have that responsibility. Accord-
ing to his undisputed testimony he was required to take the
truck to the dump every day whereas Johnson, who formerly
had the route, took the truck to the dump every other day.
Further, Madden’s starting time was delayed by the Em-
ployer causing him to travel in heavier traffic to Manhattan.
The transfer to Brooklyn caused created a longer and
costlier commute. Prior to the Madden’s transfer he lived in
New Jersey and had a short commute to the Newark yard
where he was dispatched. After the transfer, he had to drive
his personal vehicle to the Brooklyn yard from which he
was dispatched with additional costs for fuel and tolls.
Accordingly, I find that the transfer of Madden to Brook-
lyn, the change of his route and start time constitute unlaw-
ful changes in Madden’s working conditions.
b. The Constructive Discharge
The General Counsel alleges that Madden was construc-
tively discharged because the cumulative effect of the
changes set forth above caused him to quit his employment.
The Board requires two elements to be shown to establish a
constructive discharge. First, the burdens imposed on the em-
ployee must cause, and be intended to cause, a change in work-
ing conditions so difficult or unpleasant as to force the em-
ployee to resign. Second, the burdens must have been imposed
because of the employee’s protected activities. North Carolina
Prisoner Legal Services, 351 NLRB 464, 470 (2007); Crystal
Princeton Refining Co., 222 NLRB 1068, 1069 (1976). The
Board has held that the intent element will be satisfied so long
as the employer “reasonably should have foreseen” that its
actions would cause an employee to quit. American Licorice
Co., 299 NLRB 145, 148 (1990).
The Board has found that transferring employees and requir-
ing them to travel longer distances in the performance of their
work are grounds for finding a constructive discharge. CWI of
Maryland, Inc., 321 NLRB 698, 707-708 91996); See Safety
Kleen Oil Services, 308 NLRB 208, 222-223 (1992). Madden’s
increased commuting costs, the distance he had to travel from
home and the selection of Madden over Johnson as being the
one who would be transferred to Brooklyn, particularly where it
has been shown that the Employer’s reasons for choosing Mad-
den were not based in fact, establish that the transfer caused,
and were intended to cause a change in working conditions so
difficult or unpleasant as to force Madden to resign. It has also
been shown, above, that the transfer was made immediately
after Madden disputed Cruz’ assertion that the Employer and
Local 621 had a valid contract, and Madden’s being the victim
of unlawful threats and promises. Accordingly it has been
proven that these burdens were imposed because of Madden’s
protected support of Local 813. Wright Line, above.
ACTION CARTING ENVIRONMENTAL SERVICES 19
Further, as Rizzo admitted, after Madden had driven the new
route from Brooklyn, he told Rizzo that the commute was too
far for him. Rizzo replied “I need you to drive that route.”
Given Madden’s complaint that the commute was too far, and
the fact that the Employer knew that Madden had to commute
from Newark to Brooklyn with the increased costs and time
involved, a fair finding may be made that the Employer rea-
sonably should have foreseen that its actions would cause Mad-
den to quit.
The question then becomes whether Madden resigned be-
cause of the unlawful transfer to Brooklyn and the changes in
his route and time of departure. The evidence is clear that those
changes were not the reason for the quit. The transfer to Brook-
lyn and the increased commuting time had nothing to do with
Madden’s decision to quit. He was in the Bronx for nearly three
weeks when he quit. The prior transfer to Brooklyn and
changes in his route and departure time were thus weeks before
he quit, and he had been transferred to the Bronx when he de-
cided to quit.
It is clear that the confrontation with Johnson and Alfano
was the precipitating reason for the resignation. Madden testi-
fied that he had no intention of quitting before the confronta-
tion. Accordingly, the changes described above had nothing to
do with his decision to quit.
Thus, as set forth above, Madden was angry at Johnson for
being late to the Bronx yard where they would ride together on
the route. Johnson’s testimony that Madden was the cause of
his lateness was not denied by Madden and I credit it. Thus,
Johnson stated that Madden had agreed to pick him up in New
Jersey and did not do so. Accordingly, Madden caused John-
son’s lateness. Thus, it cannot be said that Madden was “set up”
as he claimed. Apparently, Alfano did not deliberately cause
Johnson’s late arrival. It was either due to Madden’s failure to
pick up Johnson or Alfano’s typical transport of other workers
to Manhattan and then his delivery of Johnson to the Bronx to
meet Madden.
I have also considered the General Counsel’s contention that
Johnson’s lateness was the “last straw” which drove Madden to
quit. However, as set forth above, the changes had taken place
weeks before and Madden had no intention of quitting before
that evening.
In addition, I have also weighed the theory that but for Mad-
den’s unlawful transfer to Brooklyn he would still have been in
Newark and the confrontation would not have occurred because
he would have arrived at the Newark yard, ready to drive his
original route, on his own. Such a theory is purely speculative,
however, and cannot substitute for the actual facts here. Such
facts support a finding that the confrontation between Madden
and Johnson was the sole reason that Madden resigned.
Accordingly I will recommend dismissal of the allegation
that Madden was constructively discharged.
5. Dominic Madden
Dominic Madden was hired as the helper for his brother
Frank. It is undisputed that he was directed to learn the route
and that he did not do so. It has been established that it is
essential for a helper to learn the route so that if his regular
driver was absent he would be able to tell the substitute
driver where the stops were.
It is true that in late December, no action was taken
against him when it was discovered that he did not know the
route. Instead another helper, who knew the route, was as-
signed. However one week later, on January 3 and 4 when
Frank was absent two consecutive nights, Dominic had to be
replaced with a helper who knew the route. The substitu-
tions resulted in a loss of time to the Employer and to the
driver in picking up the waste.
Apparently no action was taken against Dominic until
January 10 when the Maddens attended a meeting with Cruz
and Rizzo and in which, as set forth above, Frank ques-
tioned the validity of the Local 621 contract. I cannot credit
Dominic’s testimony that he was told by Alfano that he was
fired because of Frank’s support of Local 813, and because
he could not terminate Frank. The last statement makes no
sense. The Employer could have discharged Frank. Further,
that important comment was not included in Dominic’s pre-
trial affidavit taken only two weeks after the comment was
allegedly made.
Even if I find that Dominic was discharged because of his
union activities, I find that the Employer has established that
it would have discharged him even in the absence of his
union activities. Thus, the requirement that he learn his
route within six weeks was known to Dominic. He did not
know the route within six weeks. On three occasions he
demonstrated that he did not know the route which forced
the Employer to transfer him to another truck and assign a
helper who knew the route to his route.
I accordingly find and conclude that Dominic Madden
was not unlawfully discharged.
C. The Alleged Failure to Represent Shafi Gadson
The complaint alleges that Local 621 failed to process a
grievance over the discharge of Shafi Gadson for reasons
that are unfair, invidious and has breached its fiduciary duty
to Gadson.
It is admitted that Local 621 represents the unit employ-
ees. As set forth above, Gadson was discharged and asked
Local 621 president Sombrotto to represent him. Sombrotto
phoned Rizzo and asked to meet. Rizzo said he was too
busy. That was the last time he spoke to Rizzo. Sombrotto
then did some research and learned that at the time of his
discharge Gadson was a shape employee who was not cov-
ered by the contract and not entitled to utilize the grievance
provision of the contract. Sombrotto was somewhat con-
fused at this discovery because he knew that Gadson was on
the voting eligibility list. However, Sombrotto signed up
shape employees and they became members of the union,
admitting that at one point Gadson was a full dues-paying
member. Accordingly, Sombrotto decided that he did not
have to represent Gadson because he was a shape employee.
The contract excludes “on-call” and “temporary” employees
from its coverage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Section 8(b)(1)(A) requires that a union owes represented
employees a duty of fair representation. Miranda Fuel Co., 140
NLRB 181 (1962). To establish a breach of that duty, the Gen-
eral Counsel must show that the union’s conduct towards him
was “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes,
386 U.S. 171, 190 (1967); Air Line Pilots Ass’n v. O’Neill, 499
U.S. 65 (1991). For representation purposes, a union’s conduct
is “arbitrary” only if, “in light of the factual and legal landscape
at the time of the union’s actions, the union’s behavior is so far
outside a wide range of reasonableness as to be irrational.”
O’Neill, above, at 67. Stage Employees IATSE Local 720, 332
NLRB 1, 2 (2000). This stringent test applies to review of a
union decision not to file a grievance or to settle a grievance
short of arbitration. Vaca, 386 U.S. at 191. In reviewing union
decisions regarding handling of grievances, a court or the
Board may not substitute its judgment for that of the union,
instead, courts apply a “highly deferential” standard of review,
“recognizing the wide latitude that [unions] need for the effec-
tive performance of their bargaining responsibilities.” O’Neill,
above, at 78; General Motors Corp., 297 NLRB 31, 32 (1989).
Mere union negligence does not breach the duty of representa-
tion. United Steelworkers of America v. Rawson, 495 U.S. 362,
372-73 (1990). To establish “discriminatory” conduct violative
of the duty of fair representation, a plaintiff must establish that
the union discriminated on “invidious” grounds, “O’Neill,
above, at 81.
I do not believe that the General Counsel has established that
Local 621 has discriminated against Gadson on “invidious
grounds.” The evidence does not establish that Sombrotto re-
fused to represent Gadson because of his innocuous question to
Sombrotto as to who elected him president. In addition, Som-
brotto did not tell Gadson that he would not represent him. The
cases cited by General Counsel, Newport News Shipbuilding &
Dry Dock, 236 NLRB 1470, 1471 (1978) and Service Employ-
ees Intl. Union, Local 579, 229 NLRB 692 (1977), involved
cases where the unions based their decisions not to process
grievances virtually totally on the employers’ versions of the
incidents involving the employees.
Here, in contrast, Sombrotto considered the question of
whether Gadson was a regular employee and consulted the
Employer’s records in order to determine the question. He in-
vestigated the matter and believed, in good faith, that, at the
time of his discharge, Gadson was a shape employee and not a
member of the bargaining unit or a regular employee who was
covered by the collective-bargaining agreement. Sombrotto’s
conduct therefore fell within the “wide range of reasonable-
ness” permitted a union’s conduct.
I will therefore recommend that this allegation be dismissed.
III. THE REPRESENTATION CASE
A. The Objections to the Election
Relevant Principles
When an objection is filed asserting that the “laboratory con-
ditions” of an election were violated by a party to an election,
the decisional standard is whether “the conduct reasonably
tends to interfere with the employees’ free and uncoerced
choice in the election. Baja’s Place, Inc., 268 NLRB 868, 868
(1984). As the objecting party, Local 813 has the burden of
proving interference with the election. See Jensen Pre-Cast,
290 NLRB 547 (1988). The test, an objective one, is whether
the employer’s conduct has the tendency to interfere with the
employees’ freedom of choice. See Taylor Wharton Division,
336 NLRB 157, 158 (2001).
1. Objection No. 2
This Objection, in relevant part, states that the Employer
committed objectionable conduct by “paying to all its employ-
ees during the week prior to the date of the election ‘safety
bonuses’ of at least $400 per employee. These payments were
not scheduled to occur during the election period and the Em-
ployer has never regularly paid to its employees such bonuses.
… The Employer also told the employees [sic] the week prior
to the election they would regularly received [sic] bonuses four
times a year from now on.”
Operations Manager Rizzo testified that the Employer began
a “safety bonus” program in 2005. The program was suggested
by the Employer’s insurance agent to reduce the number of
vehicle accidents and to encourage safety among the drivers
and their helpers, who operate as a team. A notice to employees
at the time stated that it would be a “monthly bonus” pursuant
to which a driver would receive $100 and a helper $50 if their
vehicle had no accidents which were their fault, be involved in
no hit and run accidents, and receive no “unnecessary” traffic
tickets. Accidents which were not the fault of the driver would
not be counted against the driver or helper. The notice stated
that the employees “will each receive a bonus every month” if
they have no accidents, etc.
As stated in the notice, employees were supposed to be is-
sued a check each month based on their prior month’s perform-
ance. Rizzo stated, however, that so much time was consumed
in determining whether the employee was entitled to the bonus
that the payments were delayed for months at a time. Employee
Frank Madden testified that he did not receive a safety bonus
check for two to five months, Rizzo telling him that he had not
“caught up” with the paperwork.
For example, accident reports were sent to the Employer’s
administrator who decided who is eligible for the bonus. The
administrator investigates the matter by obtaining the police
reports to see if the driver was at fault in causing the accident.
By the time the report was received and examined, the month in
which the bonus was due had past. Often, a payment of $200 or
$300 was made to a driver for two or three months’ accident-
free work. Rizzo testified that when the checks were delayed,
“all” the drivers asked when they would be receiving their
payment.
Rizzo stated that in late August or early September, 2007, he
spoke with Ken Levine, the Employer’s controller about chang-
ing the bonus program so that more time would be permitted to
obtain the data necessary to determine whether the employee
earned his bonus. They decided that payments would be made
on a quarterly basis every three months rather than monthly.
The amount and the basis of the bonus remained the same: the
employee would earn a monthly bonus based on his perform-
ance that month, but the payment would be made quarterly.
Rizzo testified that he informed two drivers, Freddie Gonzalez
ACTION CARTING ENVIRONMENTAL SERVICES 21
and Jamie Matos, of this change.8 Local 621 president Som-
brotto testified that the matter of the change in distribution of
the payments was not raised during collective-bargaining nego-
tiations which were ongoing at that time.
Rizzo stated that in determining in August or September
when the next checks should be issued pursuant to the quarterly
distribution, he believed that the checks would be distributed in
late December, 2007 or early January, 2008. Because of this,
the quarterly checks would be for the period September through
November, 2007. Rizzo then reasoned that the Employer
should “finish the whole [annual] cycle” by issuing a check for
an additional fourth month – the month of December, and “start
fresh in January.” Accordingly checks for four months were
issued in early January in the week before the election. Frank
Madden testified that he received a bonus check on the day of
the election, but Rizzo denied distributing any bonus checks
that day but conceded distributing all of them in the week be-
fore the election.
Rizzo stated that neither union had any impact on the distri-
bution of the bonuses. However, Sombrotto stated that in early
January, shop steward Gonzales told him that he was “not
happy” that the Employer was late in distributing the safety
bonuses. Sombrotto called Employer officials Glauda and
DiBella, telling them that “you guys owe this bonus and you’ve
been giving it, why don’t you give it.” They responded that
they would “take care of it.”
The amounts of the checks varied according to whether the
employee was involved in an accident in any of the four
months. Twenty four drivers received checks of $400 each in
early January, representing a $100 safety bonus per month for
four months. According to the Employer’s records, 67 employ-
ees received safety bonus payments in January, shortly before
the election.9 Of those, 59 received a bonus check for the fourth
month, December, 2007, in January, 2008. There were 129
employees on the eligibility list.
Employer supervisor Staada testified that prior to the elec-
tion the safety bonus was one of the most frequently asked
questions by employees. Frank Madden testified that he asked
Staada about the bonuses and Staada replied that the Employer
could not distribute the bonuses at this time because it would be
a “bribe.” Rizzo stated that Frank Madden “always” asked
about the safety bonuses.
“The Board will infer that an announcement or grant of
benefits during the critical period is coercive, but the employer
may rebut the inference by establishing an explanation other
than the pending election for the timing of the announcement or
bestowal of the benefit. Uarco, Inc., 216 NLRB 1 (1974). In
making a determination, the Board will examine the size of the
benefit conferred, the number of employees receiving it, the
timing of the benefit, and how employees reasonably would
view the purpose of the benefit. See B & D Plastics, 302 NLRB
245 (1991).
Here, it is clear that the Employer had a long-standing policy
of granting safety bonuses for the legitimate reason of encour-
aging employees to drive safely and avoid accidents. The bo-

8 Gonzalez and Matos did not testify at the hearing.
9 Charging Party Exhibit 7.
nuses were earned monthly with the employees’ good safety
record, and according to the document announcing the pro-
gram, they were to “receive a bonus every month.” The Em-
ployer maintained that it was unable to pay the bonus each
month because of the time-lag in examining the reasons for
accidents. If an accident was not the employee’s fault he was
entitled to the bonus, but if the accident was the fault of the
worker, he would not receive it. The Employer explained at
hearing that obtaining a police report, examining it and deter-
mining whether an accident was the employee’s fault was time
consuming, resulting in the late payment of bonuses.
First, the Employer’s explanation as to why it changed its
payment system to a quarterly basis is suspect. The Employer
claims that it did so because it could not obtain police reports to
establish an employee’s responsibility for an accident early
enough to enable it to make the bonus payment in the month
following the month it was due. However, it made December’s
payments in January, but offered no explanation why it was
able to determine the employee’s eligibility for December’s
payment so quickly. I accordingly find that the Employer’s
change in its payment system to a quarterly system was objec-
tionable.
Further objectionable conduct is the Employer’s payments of
the bonuses in the week of the election and the fact that a fourth
month, December, 2007, was included in the quarterly payment
made at that time. According to the changed policy, only three
months of bonus payments were to be made at one time, how-
ever, allegedly in order to “finish the cycle” and “start fresh” in
January, a fourth month’s payment was made at that time. Re-
gardless of the legitimacy of those explanations, the additional
month’s payment must have been viewed as an extraordinary
and unprecedented payment by the employees.
Thus, the timing of the payment, the amount paid, and the
number of employees receiving the payment that is objection-
able. The size of the bonus, $400 to 24 employees whereas the
maximum they should have been paid according to the changed
policy was $300, was substantial and unprecedented. Star, Inc.,
337 NLRB 962, 963 (2002). A total of 67 of 129 employees
eligible to vote received some bonus payment in January, and
59 received a bonus check for the fourth month, December,
2007 shortly before the election.
In addition, no announcement was made in advance of the
distribution of the checks that the manner of the payment was
changed – either as to the timing of the distribution on a quar-
terly basis or that a fourth month would be included. The two
employees who Rizzo stated he told of the change did not tes-
tify. Even if they did, apparently none of the other 127 eligible
employees were told of the change. An employer cannot time
the payment of a bonus in order to discourage union support.
Mercy Hospital, 338 NRLB 545, 545 (2002).
It is clear that the payment of the bonuses in January, in the
week before the election, or on the day of the election as testi-
fied by Frank Madden, would reasonably be viewed by em-
ployees as tending to influence their choice in the election.
The Employer has not established a legitimate reason for the
payment of the bonuses so close to the election. Its claim that it
wanted to finish the cycle and start fresh in January are not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
justifications for the unprecedented payments made in the week
of the election.
I accordingly find and conclude that the bonus payments
made in January, 2008 had a tendency to interfere with em-
ployees’ free choice in the election and such conduct was ob-
jectionable. I accordingly will recommend that Objection No. 2
be sustained.
2. Objection No. 3
This Objection, in relevant part, states that the Employer and
Local 621 committed objectionable conduct by “preparing and
distributing to the employees a forged letter less than one week
before the election date purporting to come from Local 813’s
president. This forged letter…contained alleged statements
from Local 813 on matters of concern to eligible employees,
namely their seniority rights if Local 813 won the election,
which were never made.”
The letter, dated January 14, 2008, written on Local 813’s
letterhead and bearing the purported signature of Sylvester
Needham, president of Local 813, and addressed to Michael
DiBella, an official of the Employer, states as follows:
I am writing this letter on behalf of the many members of this
Local Union that are in your employ in Brooklyn, NY, and
also members of this Local Union who have been transferred
to Newark. These Local 813 members have vast experience in
the garbage industry and have put their time in on the streets
of New York. Many are concerned about where they will
stand at your company in Newark.
We strongly urge you to consider recognizing their seniority
on the job and within our local union, and ensure that all of
these employees have positions to work in Newark. To start
these employees with “New Hire” Seniority is completely un-
acceptable to our Local Union, and when we are successful in
gaining bargaining rights we fully intend to protect the rights
of Local 813 IBT members and their families, through any
and all legal means including strike action.
Employee Frank Madden testified that he was given the let-
ter by Local 621 steward Gonzalez a couple of days before the
January 23 election. Madden testified inconsistently that he also
saw the Employer’s supervisor Staada handing out the letter,
and then stated that he did not know if that was the case. Staada
denied seeing the letter before the hearing or distributing it.
Madden also saw the letter posted on a bulletin board near the
Employer’s dispatch office and on the counter of the dispatch
office. Employees report to the dispatch office each evening for
their assignments.
Madden gave the letter to Local 813 representative Cliff
Lewis who told him that one of the individuals listed on the
letterhead was deceased, and that the letter was not issued by
Local 813. The names of Local 813’s trustees listed on the
January 14 letterhead are Joseph Chaloupka, Pedro Nieves, and
Louis Romeo.
In support of the argument that the letter was forged, Local
813 counsel produced a Local 813 letterhead from November,
2006 which listed the same trustees – Chaloupka, Nieves and
Romeo. Another letterhead dated August, 2007, however, listed
the trustees as Debi Luetkemeyer, Thomas Lynaugh, and Pedro
Nieves. Apparently the argument is that Chaloupka and Romeo,
having been trustees in 2006 and apparently replaced by Luet-
kemeyer or Lynaugh in 2007, would not have been trustees in
January, 2008, when the suspect letter was issued.
Madden denied that any Local 813 representative told him
that the former Waste Management drivers are entitled to sen-
iority based on their work for that company, and in fact he testi-
fied that Lewis told him that Action Carting’s employees would
not lose their seniority if Local 813 was elected.
Local 813 distributed a flyer which stated that “Teamsters
respect your seniority; The Teamsters Union knows that your
seniority is decided by the date you started work at Action. No
one hired after you will be given higher seniority.” The letter
also contained a quote by Local 813 president Needham: “I’ve
worked in this industry. I know that protecting seniority is one
of the most important parts of a Teamster contract. When you
vote to join Teamsters Local 813, you won’t lose your seniority
– you’ll strengthen it.”10
Employer official Staada testified that employees told him
that they were “definitely concerned” that they would be laid
off since they did not have much seniority with Action Carting.
Gadson testified that Local 621 president Sombrotto told him
and other employees that if they voted for Local 813 the helpers
would be at the “bottom of the seniority list, and you would
lose your spot.”
The Objection alleges that the Employer and Local 621 pre-
pared and distributed the January 14 letter which was forged.
First, there was no evidence that the Employer or Local 621
prepared the letter. Second, Madden’s testimony on this point
that supervisor Staada distributed the letter cannot be credited
because he also testified that Staada did not distribute it. Third,
there was no evidence that the letter was forged. Its author,
Needham, did not testify. In addition, no Local 813 official or
agent testified that the letter was a forgery, that it was not writ-
ten by Needham, or that one or more of the trustees listed
thereon was deceased. Indeed there was no testimony at all by
Local 813 agents concerning the letter.
Local 621 speculates in its brief that Local 813 distributed
the letter in order to have a “built-in” objection if it lost the
election. Local 813 argues that the letter must be a forgery
since it was inconsistent with its flyer distributed prior to the
letter. First there is no evidence that the flyer was distributed
prior to the letter. Moreover, one could speculate that Local
813’s letter was an authentic, legitimate demand that the Em-
ployer recognize the seniority of its members. But then, when
other long-standing Action Carting employees objected to that
union’s assertion of greater seniority rights, Local 813 issued
its flyer agreeing that seniority should be based upon the start
of work at Action Carting.
However, I need not engage in this speculation. There is
simply no evidence that the letter was a forgery or that the Em-
ployer or Local 621 prepared or distributed it. I will recom-
mend that this Objection be overruled.

10 There was no agreement among the parties as to when this docu-
ment was distributed although Local 813 counsel stated that it was
distributed before January 14. No Local 813 witness testified as to the
date of its distribution.
ACTION CARTING ENVIRONMENTAL SERVICES 23
3. Objection No. 6
This Objection alleges that during the critical period, the
Employer discharged Shafi Gadson and Dominic Madden, and
transferred Frank Madden in retaliation for their support for
Local 813 and their failure to support Local 621. Inasmuch as I
have found that the Employer unlawfully discharged Gadson
and transferred Frank Madden in retaliation for their support for
Local 813 and their failure to support Local 621, I will recom-
mend that this Objection be sustained.
4. Objection No. 8
This Objection alleges that agents of the Employer commit-
ted objectionable conduct by having its supervisors position
themselves outside the entrance to the voting area where voters
had to pass in order to enter the voting area. The Objection also
alleges that representatives and employee-supporters of Local
621 positioned themselves in the same area. The Objection
further states that Local 621 supporters repeatedly chanted
“vote for 621” and mentioned the name of the observer for
Local 813, Shafi Gadson.”11
The election was held inside the facility’s garage which is
situated next to the dispatcher’s office. The entry to the dis-
patch office is by staircase. The entry to the garage is via a
ramp. The stair case and ramp are three feet apart, separated by
a railing. Voters had to pass the dispatcher’s office on their
way into the garage to vote. The voting table was twenty to
thirty feet from the garage entrance in the center of the garage.
Gadson was the election observer for Local 813. A pre-
election meeting was held at which Local 621 president Som-
brotto, Employer counsel Coxson, Gadson and the Board agent
were present. Gadson stated that during the election the garage
door was open and he could see and hear the activities outside
the garage.
Gadson testified that after the voting in the morning session
began he saw supervisor Alfano standing outside the doorway
to the garage for 45 to 60 minutes speaking to all the employees
who were going into the garage to vote. Gadson did not hear
what he said to the voters. Gadson further testified that he saw
Rizzo standing in that area for two to three minutes, and also
saw Sombrotto standing there for a few minutes, after which he
left the area. Gadson noted that he did not believe that Som-
brotto spoke to any voters. Gadson stated that periodically,
every 10 to 20 minutes, he heard someone shout “vote 621” but
he did not see who said that. Also standing in that area were
driver Nick Alfano and Local 621 steward Gonzalez who spoke
to a few people. Gadson did not know what Gonzalez said.
Frank Madden also testified that in the morning session he
saw Alfano and Rizzo standing near the entrance to the garage.
Madden said that Alfano and Rizzo did not speak to him as he
approached the entrance, but spoke to other employees who
were “ranting and raving.” Madden noted that another driver
yelled at him to “vote 621 or you know what’s going to hap-
pen.” Madden also saw labor consultant Cruz at the entrance.

11 The Report on Objections erroneously states that this Objection al-
leges that agents of the Employer conversed with employees and per-
mitted agents of Local 621 to converse with employees who were pre-
paring to vote, urging them to vote against Local 813 and in favor of
Local 621, and threatening them if they did not support Local 621.
Sombrotto testified that during the first voting session he
stayed inside the dispatch office. He denied speaking to em-
ployees who were there to vote, and denied congregating with
employees at the entrance to the garage or speaking to employ-
ees as they came to vote.
Gadson stated that during the second voting session, he saw
Alfano, Sombrotto, Gonzalez, Nick Alfano and employees
standing immediately outside the garage. Gadson stated that
ordinarily people congregate immediately outside the dispatch
office, and he has seen Sombrotto in that area at the start of a
shift in January, 2008, but not before that month. However, on
the night of the election, these people were standing outside the
entrance to the garage, not the dispatch office.
Gadson testified that during the second session he saw Som-
brotto carry a three foot by three foot sign that said “621” and
he posted it. Gadson noted that the sign was not visible from
where he was seated in the garage. He also heard “621” chanted
during that session.
Sombrotto testified that during that session he was in the
back of the premises 200 to 300 feet from the polling place and
in the paint shop area. He stated that a painter who supported
Local 621 painted a sheet which was four feet by five feet with
the number “621.” The painter carried the sign with another
employee in front of the polling place. Sombrotto followed
them as they tried to post it on a wall. The procession lasted
about two minutes. Sombrotto told them to get rid of it and the
painter destroyed it. Sombrotto believed that some employees
had voted by then.
Rizzo testified that during the time the polls were open he
was either in his office or in the dispatch office. Rizzo also
stood in front of the building but was not near the polls and
could not see the entrance to the garage. While outside he was
in the company of official Malinari and possibly Alfano, but
they did not speak to employees while there. He did not see
Sombrotto.
Alfano testified that at times he stood immediately outside
the dispatch office during the election, smoking and speaking to
others. He denied speaking to voters as they approached the
polls.
In order to determine impermissible electioneering, the
Board considers (a) whether the conduct occurred within or
near the polling place (b) the nature and extent of the alleged
electioneering (c) whether it is conducted by a party to the elec-
tion or by employees and (d) whether the electioneering is con-
ducted within a designated “no electioneering” area or contrary
to the instructions of the Board agent. Boston Insulated Wire &
Cable Co., 259 NLRB 1118, 1119 (1982).
First, the alleged impermissible conduct did not occur within
the polling place, or within a designated “no electioneering”
area or contrary to the Board agent’s instructions. It took place
outside the garage door which was 20 to 30 feet from the voting
table. The parties present included Local 621 president Som-
brotto and Alfano. Rizzo’s presence in that area for two to three
minutes during which he was not observed saying anything to
anyone is not objectionable. Significantly, there was no evi-
dence of what was said to the voters by Sombrotto or Alfano.
At most, it may be found that they were present while employ-
ees shouted “vote 621.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
There was also no evidence of “prolonged conversations be-
tween representatives of a party to the election and voters wait-
ing to cast ballots.” Milchem, Inc., 170 NLRB 362 (1968).
There were no prolonged conversations and there was no evi-
dence that voters were waiting to cast their ballots or were on
line.
Local 813 argues that the “continual presence” of party rep-
resentatives in the area where employees have to pass in order
to vote is sufficient to overturn the results of the election, citing
Nathan Katz Realty LLC v. NLRB, 251 F.3rd 981, 983 (D.C. Cir.
2001), and Electric Hose & Rubber Co., 262 NLRB 186
(1982); Performance Measurements, 148 NLRB 1657, 1659
(1964). It further argues that Sombrotto’s presence at the en-
trance to the dispatch office near the polling area for no appar-
ent purpose is objectionable. Local 813 argues that although the
dispatch area is a place where employees usually congregate,
there was no showing that Sombrotto or Alfano had every
stayed in that area for a prolonged period of time.
The first question is whether Alfano, Sombrotto and Rizzo
were continually present during the election. The precise hours
of the election were not received in evidence.12 The voting took
place in two sessions. Gadson testified that the morning elec-
tion began at 5:00 a.m. and a break was taken from 7:30 a.m. to
9:00 a.m. Accordingly, it may be assumed that the morning
session ran from 5:00 a.m. to 7:30 a.m. Gadson testified that
Alfano stood in the area for that session for 45 to 60 minutes,
Sombrotto for a few minutes only and Rizzo for two to three
minutes. Accordingly, it cannot be found that in the morning
session the agents of the parties were “continually present.”
J.P. Mascara & Sons, 345 NLRB 637, 639 (2005). There was
no testimony concerning the length of time the agents stood in
the entrance to garage during the second session.
Although there was some evidence that Alfano and Som-
brotto spoke to voters, there was no evidence that they engaged
in any electioneering or that any of their conversations related
to the election. They did not enter the voting area or violate any
instructions of the Board agent. In sum, there was no evidence
as to what Alfano or Sombrotto said to any of the voters, much
less that they engaged in electioneering. The testimony that
someone shouted “vote 621” periodically is too insubstantial to
constitute objectionable conduct. There was no evidence that
any representative of any party uttered those words or that the
electioneering took place within the polling area or was con-
trary to the Board’s agents instructions.
As to the poster, it was paraded in front of the voting place
but was not visible within the voting area. It was visible for
only a couple of minutes and then destroyed. I credit Som-
brotto’s testimony that it was destroyed and not posted. I do not
believe that Gadson was in a position inside the voting area to
see whether it was posted. It was not prepared by a party to the
election, but by employees, and was ordered to be taken down
and destroyed by Local 621. Unlike the situation in Pearson
Education, Inc., 336 NLRB 979 (2001), cited by Local 813, the
poster was not erected by a party to the election, it did not list a
series of strikes engaged in by the union and was not hung and

12 Neither the tally of ballots nor the Stipulated Election Agreement
which would have set forth the hours, were offered in evidence.
did not remain in a place in which every employee had to pass
in order to vote. Here, it was visible for only two to three min-
utes and was paraded in front of the building before it was re-
moved, and was not in a no-electioneering area.
I accordingly will recommend that this Objection be over-
ruled.
Conclusions as to the Representation Case
Inasmuch as I have recommended that Objections Nos. 2 and
6 be sustained, I will therefore recommend that the election
held on January 23, 2008 be set aside, and that the representa-
tion proceeding be remanded to the Regional Director for the
purpose of conducting a second election.
CONCLUSIONS OF LAW
1. By interrogating its employees about their union sympa-
thies, the Employer violated Section 8(a)(1) of the Act.
2. By promising its employees benefits if they supported Lo-
cal 621 and if they refused to support Local 813, the Employer
violated Section 8(a)(1) of the Act.
3. By creating an impression among its employees that their
union activities were under surveillance, the Employer violated
Section 8(a)(1) of the Act.
4. By threatening its employees with reprisals if they sup-
ported Local 813 and if they failed to support Local 621, the
Employer violated Section 8(a)(1) of the Act.
5. By unlawfully discharging David Zengewald, Shafi Gad-
son, and Kevin Meadows because of their activities in behalf of
Local 813, the Employer violated Section 8(a)(3) and (1) of the
Act.
6. By transferring Frank Madden to a location in Brooklyn,
New York, and by changing his start time and the route as-
signed to him, the Employer violated Section 8(a)(3) and (1) of
the Act.
7. The Employer has not violated the Act by discharging
Dominic Madden or by constructively discharging Frank Mad-
den, as alleged.
8. Local 621 has not violated the Act by failing to process a
grievance over the discharge of Shafi Gadson.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). Inasmuch as I have found that Frank Madden quit his
employment and has not been constructively discharged, no
remedy will be ordered for his unlawful transfer or for the
change in his route or starting time.
ACTION CARTING ENVIRONMENTAL SERVICES 25
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Action Carting Environmental Services,
Inc., Newark, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about their union
sympathies.
(b) Promising its employees benefits if they supported Local
621, United Workers of America and if they refused to support
Local 813, International Brotherhood of Teamsters.
(c) Creating an impression among its employees that their
union activities were under surveillance.
(d) Threatening its employees with reprisals if they sup-
ported Local 813 and if they failed to support Local 621.
(e) Discharging or otherwise discriminating against employ-
ees because they supported Local 813.
(f) Transferring, changing the starting time or changing the
route assignment of employees because they supported Local
813.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
David Zengewald, Shafi Gadson, and Kevin Meadows full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(b) Make David Zengewald, Shafi Gadson, and Kevin
Meadows 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 the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Newark, New Jersey, Bronx, New York, and any
other facilities, copies of the attached notice marked “Appen-

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
dix.”14 Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 1, 2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
(h) It is further ordered that Case No. 22-RC-12875 is
severed and remanded to the Regional Director for Region
22 for the purpose of conducting a second election.
Dated, Washington, D.C. May 8, 2009.
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively interrogate you about your union
sympathies.
WE WILL NOT promise you benefits if you support Local 621,
United Workers of America and if you refuse to support Local
813, International Brotherhood of Teamsters.
WE WILL NOT create an impression among you that your un-
ion activities are under surveillance.
WE WILL NOT threaten you with reprisals if you support Lo-
cal 813 and if you fail to support Local 621.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
WE WILL NOT discharge or otherwise discriminate against
you because you support Local 813.
WE WILL NOT transfer, change your starting time or change
your route assignment because you support Local 813.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer David Zengewald, Shafi Gadson, and Kevin Meadows
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make David Zengewald, Shafi Gadson, and Kevin
Meadows whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
ACTION CARTING ENVIRONMENTAL SERVICES, INC.