Covanta Bristol, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 2010

356 N.L.R.B. 246 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
Covanta Bristol, Inc. and Luis Mota. Case 34–CA–
12339
December 3, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On June 16, 2010, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility 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.
In adopting the judge’s finding that the Respondent, by Facilities
Manager Leon Plumer, violated Sec. 8(a)(1) by threatening unspecified
reprisals, we do not rely on the judge’s analysis under Atlantic Steel
Co., 245 NLRB 814 (1979). Even if Plumer’s statement—“You want
to see intimidation? I’ll show you intimidation”—was provoked by
Union Steward Kerry Hils’ insulting remarks uttered in the course of
Hils’ performance of his duties as steward, Plumer’s threat of retalia-
tion was not limited to redressing Hils’ remarks. Nothing Plumer said
or did indicated that he was threatening to take action against Hils
solely for insulting him (Plumer) and not also to retaliate against Hils’
protected union conduct. In these circumstances, Plumer’s broad threat
reasonably would have been understood by both Hils and employee
Sean Ryan, who was also present, as a threat of retaliation for engaging
in protected union activity.
Precedent relating to disparaging remarks in the “heat of labor rela-
tions,” such as Success Village Apartments, 347 NLRB 1065 (2006),
cited by our colleague, is distinguishable. In Success Village, the issue
was whether the employer undermined the union by making disparag-
ing statements to and about a union representative. In finding those
statements not unlawful, the Board found that they “reflected [the
speaker’s] personal dissatisfaction” with the union representative, but
“did not suggest the futility of union representation or convey any
express or implicit threats against union activity.” Supra, 347 NLRB at
1066. Here, by contrast, Plumer did not criticize Hils. Rather, his
statement would reasonably have been understood as a broad threat
based on Hils’ union activity.
Member Hayes would not find an unlawful threat. Manager Plumer
and Steward Hils took part in an escalating, vulgarity laced exchange of
critical remarks, including Hils’ allegation that Plumer could not con-
trol his supervisors and Plumer’s accusation that Hils tried to intimidate
a safety coordinator. At one point, Plumer made the “I’ll show you
intimidation” statement that the majority finds to be an unlawful threat.
Under the circumstances here, Member Hayes finds these remarks to be
“vituperative speech in the heat of labor relations.” See Success Village
Apartments, 347 NLRB 1065, 1066 (2006) (citations omitted), which
modified, to modify his remedy,2 and to adopt the rec-
ommended Order as modified and set forth in full be-
low.3
ORDER
The National Labor Relations Board orders that the
Respondent, Covanta Bristol, Inc., Bristol, Connecticut,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
because they engaged in union and other protected con-
certed activities.
(b) Discharging or otherwise discriminating against
any employee for supporting Local 30, International Un-
ion of Operating Engineers or any other union.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Luis Mota full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Luis Mota whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the judge’s decision, plus daily compound interest as
would not reasonably be viewed by employee witnesses as a threat for
engaging in protected activities.
In the absence of relevant exceptions, we also adopt the judge’s find-
ing that the Respondent violated Sec. 8(a)(3) by discharging employee
Luis Mota for his union activity. Even assuming the Respondent im-
pliedly excepted to that finding, it failed to provide any supporting
argument in its brief that union activity was not a motivating factor in
Mota’s discharge or that, even if it was, Mota would have discharged
even in the absence of his union activity. Therefore, in accordance with
Sec. 102.46(b)(2) of the Board’s Rules and Regulations, we disregard
any such implied exception. Holsum de Puerto Rico, Inc., 344 NLRB
694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
Finally, we find it unnecessary to pass on the judge’s finding that
Mota’s discharge was also motivated by his protected concerted filing
of “near miss reports,” and therefore that the discharge also violated
Sec. 8(a)(1). Such a finding would not materially affect the remedies
ordered below.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s recommended remedy by
requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis.
3 We shall modify the judge’s recommended Order to conform to the
violations found and to provide for the posting of the notice in accord
with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in
his dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice. We shall substitute a new
notice to conform to the modified Order.
356 NLRB No. 46

COVANTA BRISTOL, INC. 247
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter, notify Mota in writing that
this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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 Bristol, Connecticut facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 34,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since April 1, 2009.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
4 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.”
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 threaten you with unspecified reprisals
because you engage in union and other protected con-
certed activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 30, International
Union of Operating Engineers or any other union.
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.
WE WILL, within 14 days from the date of the Board’s
Order, offer Luis Mota full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Mota whole for any loss of earnings
and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Mota’s
unlawful discharge, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that
the discharge will not be used against him in any way.

COVANTA BRISTOL, INC.

Thomas E. Quigley, Esq., for the General Counsel.
Raymond J. Carey, Esq. (Foley & Lardner LLP), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Hartford, Connecticut, on November 3 and 4,
2009. Luis Mota, an Individual, filed the charge in Case No.
34–CA–12339 on May 6, 2009, and a complaint issued on July
31, 2009 alleging that Covanta Bristol, Inc., the Respondent,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
discharged him in violation of Sections 8(a)(1) and (3) of the
Act on April 29, 2009.1 On June 24, Mota filed the charge in
Case No. 34–CA–12378 and a complaint issued in that case on
August 24, alleging that the Respondent violated Section
8(a)(1) of the Act on April 1 by threatening employees with
unspecified reprisals for engaging in union and other protected
concerted activity. The cases were consolidated for hearing by
order dated August 24.
The Respondent filed answers to the complaints on August
13 and September 4, respectively, denying the commision of
any unfair labor practices and asserting, inter alia, that Mota
was, at all times, an “at will” employee, that the Respondent
had cause for termination and that any statements by supervi-
sors were protected by Section 8(c) of the Act.
As framed by the pleadings, the issues presented in this case
are: (1) whether the Respondent terminated Mota during his
probationary period because he had made safety complaints,
thereby invoking rights under a collective-bargaining agree-
ment between the Respondent and the union representing its
employees and/or because he supported the union and its stew-
ard, Kerry Hils; and (2) whether statements made by the Re-
spondent’s facility manager Leon Plumer during a grievance
meeting on April 1 constituted a threat of unspecified reprisals
in violation of Section 8(a)(1) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a waste-to-energy
processing plant at its facility in Bristol, Connecticut, where it
annually purchases and receives goods valued in excess of
$50,000 directly from points located outside the State of Con-
necticut. The Respondent admits and I find that it is an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that Local 30, International Union of
Operating Engineers, the Union involved in this proceeding, is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent is part of Covanta Energy, a corporation in-
volved nationwide in the process of converting municipal waste
to energy. The facility in Bristol, Connecticut involved in this
proceeding is one of several in that state but the only one with a
union representing its employees. Local 30, the Union, repre-
sents about 20 employees in the operations and maintenance
department. Kerry Hils, an electrician employed by the Re-
spondent for 18 years, is the Union’s chief steward. Plumer, the
facility manager, is the Respondent’s highest ranking officer at
the facility. Dana Andrews, the chief engineer, and Scott Ger-
rard, the safety coordinator, report directly to him. The Re-
1 All dates are in 2009 unless otherwise indicated.
spondent has admitted that Plumer, Andrews and Gerrard are
statutory supervisors and its agents.
At this and other similar facilities, waste is hauled to the fa-
cility from surrounding municipalities and dumped into large
boilers. The waste is then combusted to generate steam which
powers turbines creating electricity that is returned to the local
power grid. This process creates ash and other debris that col-
lects on the sides and tubing within the boilers. The Respondent
shuts down its two boilers at the facility twice a year to perform
a thorough cleaning and maintenance operation. The Respond-
ent’s regular employees customarily work 12-hour days during
these shutdowns. In order to accomplish this work in as short a
time as possible, the Respondent will also hire temporary em-
ployees to supplement its regular crew.
As noted above, the Respondent’s operations and mainte-
nance employees are represented by Local 30. The collective-
bargaining agreement in effect at the time involved here was
effective for the period May 1, 2006, through April 30, 2009.
The collective-bargaining agreement contained, at Article 34,
the following provision regarding health and safety:

The Company shall maintain safe, sanitary and healthful con-
ditions and shall provide first aid equipment to take care of
employees in case of accident or illness. The Company and
the Union shall cooperate to promote employee safety and ac-
cident prevention in and around all operations and premises.
It shall be the responsibility of each employee to maintain his
place of work in a clean and orderly condition. Employees
shall be required to observe safety rules and regulations estab-
lished by the Company, including the use of prescribed safety
equipment or clothing. Employees are to report any safety or
health problem to the company whenever such a problem is
observed.
As a condition of employment all employees shall be required
to conform to all reasonable work rules and regulations that
may be issued by the Company from time to time pertaining
to the operations, health and safety. Before implementation of
work rules the Company shall provide notice to the Union.

Under this provision, a joint labor/management health and safe-
ty committee was established to meet regularly and review
operation, accidents and injuries, etc.
As part of its safety program, the Respondent utilized a form
known as a “Facility Near Miss/Communication Report” which
employees were expected to use to report any accidents or safe-
ty issues they observed. The Respondent’s witnesses testified
that the Respondent encouraged employees to file such reports,
rewarding those who did, and using the reports as a basis for
discussion at regular safety meetings. In fact, the Respondent
expects its hourly and/or management employees to submit a
minimum of five near miss reports a week. The Respondent also
offered evidence showing that hundreds of such reports are
filed annually. Mota and Hils, the chief steward, acknowledged
that this is the Respondent’s stated policy and practice. The
General Counsel offered no evidence, other than that related to
Mota, to establish that the Respondent had ever disciplined an
employee for filing a near miss/communication report.
Mota, the Charging Party, was hired by the Respondent after
being referred by Chief Steward Hils and interviewed by the

COVANTA BRISTOL, INC. 249
Respondent’s Chief Engineer Andrews. Although Mota had ten
years experience as a diesel mechanic, he had never worked in
a power plant before and had no experience in the waste-to-
energy operation performed at this facility. His first day of
employment was March 16. There is no dispute that, as a new
employee, Mota was subject to a probationary period. Article
23 of the collective-bargaining agreement establishes the proba-
tionary period:

Newly hired employees shall be on probation for the first six-
ty (60) work days of employment. During this period, em-
ployees shall receive the rates of pay provided herein, but
shall not be entitled to any other benefits under this Agree-
ment. During the probationary period, the Company may dis-
cipline or discharge any employee for any reason without re-
course to the grievance procedure. Upon completion of the
probationary period benefits shall be paid back to date of hire.

Mota also signed a document on his first day that acknowl-
edged that he was on probation for 60 working days and ex-
plained, in detail, what that meant:

. . . During this time, your supervisor as well as the Facility
Manager will monitor and evaluate how well you perform
your job assignments and meet the overall requirements of
your position on the plant staff.

Each employee will be fairly evaluated, promptly informed of
less than satisfactory performance and given an opportunity to
correct any problem areas. However, the employee may be
discharged at any time during the Probationary Period if the
Facility Manager determines that the employee cannot adjust
to the job requirements, has furnished incorrect or false in-
formation in his application or for any reason cannot properly
perform the job in a safe manner.

Mota was hired as a utility operator, an entry-level laborer posi-
tion. Because of his mechanical experience, however, he was
assigned additional duties involving inspection and mainte-
nance of company vehicles.
The second week of Mota’s employment coincided with one
of the Respondent semi-annual plant shutdowns for cleaning
and maintenance of the boilers. Sometime between 4 and 4:30
pm on March 23, the first day of the shutdown, an accident
occurred which resulted in a head injury to Sean Ryan, the
employee with whom Mota was working that day. Although the
facts as to how the accident occurred and who was at fault are
in dispute, it is not necessary to resolve those issues to render a
decision in this matter.
As part of the cleaning process, the Respondent conducts
blasting inside the boilers to loosen ash that has hardened and
become attached to the walls and tubes. Employees and tempo-
rary help will then remove the ash and other debris that collects
at the bottom of the boiler. In addition, employees are required
to build scaffolding inside the boiler to allow employees to
reach upper levels for maintenance and cleaning. Ryan, Mota,
and Joe Carroll, another of the Respondent’s employees, were
working on a crew with several temporary laborers that day.
Blasting had occurred throughout the day and another blast was
scheduled for 4 pm. According to Ryan and Mota, after taking a
break, they were assigned to enter the boiler to begin building a
“dance floor”, i.e. the foundation upon which scaffolding is
built, inside the convection room hopper. Carroll was assigned
to be the “hole watch” or lookout at the entry, a requirement
whenever employees are working in confined spaces. Another
requirement for such work is that a confined space permit has
to be issued by the control room operator and posted by the
entry before an employee can enter. The permit ensures that the
space has been checked and it is safe to enter. The shift super-
visors on duty at the time were Mike Pastore and Shane Soulia,
who were working at a level above where Ryan and Mota were
assigned.
Ryan testified that, while in the break room, Gerrard, the
safety coordinator, told him and his crew to “get going” after
the 4 pm blast, that “they were ready.” Gerrard disputes Ryan’s
testimony, claiming that he did not know who assigned Ryan’s
crew to enter the hopper at that time. There is no dispute that at
the time Ryan and his crew began entering the hopper, there
was no confined spaces permit posted at the door. According to
Ryan, he spoke to the control room operator on duty, Mike
Tallon, who told him that “the holes were sniffed” and he was
on his way with the permit. Mota testified that Ryan relayed
Tallon’s statement to him. Tallon did not testify and, although
the Respondent’s witnesses claimed that Tallon was inter-
viewed as part of its investigation of the accident and disputed
Ryan’s version of their conversation, no written statement from
him was offered into evidence.
There is no dispute that, notwithstanding the absence of a
permit at the door to the convection room hopper, Ryan and his
crew began to enter to lay the planks needed to build the dance
floor. The door is only 2’ x 2’. As Ryan entered, he looked up
and was hit in the head by a chunk of hardened ash that fell
from above. He was momentarily knocked unconscious and
was bleeding from a head wound when he was removed from
the hopper. Mota was immediately behind Ryan when he poked
his head through the door and assisted him after the accident.
There is no dispute that Gerrard, who was called to the scene,
took Ryan to an occupational injury clinic frequented by the
Respondent rather than to a hospital emergency room. Gerrard
and Ryan arrived as the clinic was about to close for the day.
The doctor who greeted them looked at Ryan’s injury and
called for an ambulance. At Ryan’s request, the ambulance took
him to Waterbury Hospital, near his home, rather than the hos-
pital closest to the Respondent’s facility and the clinic. These
facts are undisputed. Ryan was out of work the following day
and returned on March 25. In the meantime, the Respondent
had initiated an investigation of the accident and Mota, as an
eyewitness, was interviewed on March 24.
With respect to the March 23 accident, Mota testified that,
after Gerrard took Ryan away, Tallon, the control room opera-
tor, arrived at the hopper and asked if the accident occurred
before or after the permit had arrived. Mota confirmed that they
entered the hopper before the permit was posted. According to
Mota, he then retrieved another confined spaces permit that was
posted by the “barn door,” another entry point below the hopper
and posted it at the convection zone hopper. Mota testified that,
at the time, he believed that “any permit was better than no
permit.” Mota also testified that he was unaware of the proper
procedures at the time. He signed the barn door permit and had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
another employee, Rick Cassese also sign it, before posting it at
the convection zone hopper. Cassese was not identified as be-
ing part of the crew with Ryan and Carroll. Mota did not ex-
plain why he chose to have Cassese sign the permit.
On March 24, Facility Manager Plumer asked Mota to pro-
vide a written statement regarding what happened. Mota wrote
his statement in Plumer’s office with Hils present. The state-
ment, which is in evidence, merely recites what happened when
Ryan poked his head through the door to check out the hopper
before the crew began its assigned task. He did not mention
moving the barn door permit to the convection hopper. The
next day, March 25, Plumer again interviewed Mota. Plumer
testified that Mota told him “there should have been more di-
rection and supervision during the entire build-up to the acci-
dent.” Plumer recalled that Mota also complained that there
should have been a contingency plan in place and someone
responsible for the job to make a decision how to proceed.
Plumer acknowledged interpreting Mota’s remarks as suggest-
ing that getting the job done quickly was more important to the
Respondent than getting the job done safely. Ryan also provid-
ed a written statement to Plumer on March 25.2
About a week later, on March 31, Gerrard asked Mota to
give another statement. Gerrard was responsible for completing
the accident investigation and apparently was under a time
constraint. According to Mota, Gerrard asked him what he had
seen and, as Mota responded, Gerrard typed the statement on
his computer. Later that day, Mota asked Gerrard if Hils, the
union steward should see the statement before Mota signed it.
When Gerrard told him, “no,” Mota signed the statement.
When Mota reported this to Hils, Hils told him to go back and
ask Gerrard for a copy of the statement. Mota did as Hils in-
structed. Although Gerrard initially said he would get Mota a
copy of the statement, he did not do so. Instead, about 10
minutes later, Chief Engineer Andrews called Mota to his of-
fice. Gerrard was also present. Andrews asked if Mota had
asked Gerrard for a copy of his statement. When Mota con-
firmed that he had, Andrews asked, with a stern look, “Why do
you want a copy of it?” When Mota replied that he wanted a
copy because his name was on it, Andrews asked if Mota had
any ulterior motive for wanting a copy. Mota said he did not, he
just wanted it because it had his name on it. Andrews told Mota
that he would have to get a copy from Plumer who was already
gone for the day. Mota’s testimony regarding this conversation
was uncontradicted.
The same day, Gerrard also asked Ryan to give another
statement. When Gerrard asked Ryan to sign the statement he
had prepared based on Ryan’s answers to his questions, Ryan
told Gerrard that he wanted the steward, Hils, to see it first.
Ryan left Gerrard’s office to get Hils. When Hils arrived at
Gerrard’s office and read the statement Gerrard prepared, he
protested that this statement made it look like the accident was
all Ryan’s fault. He instructed Ryan not to sign the statement
and asked Gerrard for a copy of the statement so he could show
it to the Union’s Business Agent, Tony Calendrino. According
to Hils and Ryan, Gerrard became upset when Ryan refused to
sign the statement. Gerrard complained that he wasn’t feeling
2 Ryan’s March 25 statement is not in evidence.
well, had a bad month and just wanted to finish the report. Hils
then complained about how the Gerrard had handled the injury
to Ryan, i.e. not calling an ambulance and taking him to the
clinic instead. The conversation escalated with Hils and Gerrard
both becoming agitated to the point that Gerrard began throw-
ing chairs around the room. At one point, while Hils was out of
the room retrieving a copy of the statement from a printer down
the hall, Gerrard told Ryan, “I’m sick of that f—ing asshole.”
Also on March 31, according to Mota, he filled out his first
“near miss/communication report” based on an incident that
occurred while working with Cassese. Mota testified that he
was working with Cassese at the A–3 bag house when Cassese
instructed him to enter a confined space even though there was
no permit posted. On the near miss report, Mota described the
incident as follows:

While working on unit A–3 baghouse, I was told to enter a
confined space to start removing bags. There was no confined
space entry permit on site or even drawn at that point. Again
this was a “we have to get this done” situation, and we have
experienced employees not following protocol, making learn-
ing protocol that much harder for newer employees.

In the section calling for a recommendation for corrective ac-
tion, Mota wrote: “We need to follow protocol. We just went
through this with an injured employee as a result.” Although
Mota dated the report March 31, he admittedly did not submit it
until the next day, April 1, under circumstances to be described
next.
On April 1, Mota was called to Plumer’s office again and
questioned about the March 23 accident. Chief Engineer An-
drews and Mota’s immediate supervisor, Richard Moll, were
also present. There is no dispute that Plumer told Mota that the
Respondent had found “inconsistencies” in the reports Plumer
had received regarding the incident. He showed Mota a copy of
the barn door permit that Mota had transferred to the convec-
tion hopper. Mota admitted making a mistake by moving the
permit and explained why he had done so. Plumer thanked
Mota for his “honesty” and instructed him to go with Andrews
to his office so Andrews could express the importance of hon-
esty at Covanta. In his testimony, Plumer acknowledged that he
thanked Mota for being honest and confirmed that he believed
Mota’s conduct in this regard was due to lack of knowledge and
experience.
It was en route to Andrew’s office that Mota decided to
submit the near miss report he had prepared the day before.
According to Mota, Andrews told him, in the office, that it was
good that Plumer believed him, that if Plumer thought Mota
had been lying, he would not have a job anymore. Mota testi-
fied that Andrews also discussed with him some upcoming job
opportunities at the plant for which Mota might be considered.
At some point during the meeting, Mota handed Andrews the
near miss report. After reading the report, Andrews asked who
had ordered Mota into the hole. Mota told Andrews it was
Cassese. Andrews told Mota not to take direction from Cassese,
but only from a shift supervisor. According to Mota, Andrews
told him he had done the right thing insisting on a permit before
entering a confined space. This is also noted in the supervisor’s
response section of Mota’s near miss report. Andrews did not

COVANTA BRISTOL, INC. 251
dispute most of Mota’s testimony regarding this meeting. He
did deny discussing any promotional opportunities with Mota.
Andrews also claimed that he told Mota that it was unfortunate
he had started “in a hole in this facility” and that he would have
to gain the trust and respect of supervisors and prove himself if
he wanted to make it through his probationary period. This last
testimony was disputed by Mota.
Ryan was also called into Plumer’s office on April 1. Also
present were Andrews, Moll, and the Union’s steward, Hils.
Plumer told Ryan that there were inconsistencies in the reports
regarding the accident, that Tallon disputed Ryan’s claim about
the permit and that Gerrard denied telling Ryan to start work
after the 4 o’clock blast. Plumer accused Ryan of making “false
statements.” There is no dispute that Hils was not happy with
the Respondent attempting to blame Ryan for the accident. Hils
responded by criticizing management’s role in the events of
March 23, including the presence of the two supervisors in the
boiler above Ryan’s crew, knocking down ash while employees
were supposed to be working below . He also chastised man-
agement for not calling for an ambulance to take Ryan directly
to the hospital. There is no dispute that Hils used colorful lan-
guage in making his criticism, telling Plumer he had to get
control over his supervisors. According to Andrews, what Hils
told Plumer was that he had to “get his head out of his ass” and
take the reins of management.
At some point in the meeting, Plumer brought up the meeting
the day before in Gerrard’s office, accusing Hils of trying to
intimidate Gerrard. This made Hils angry and he admitted tell-
ing Plumer to stop wiping the asses of his supervisors. Andrews
spoke up and said he had enough and “didn’t have to listen to
this shit.” As Andrews started to leave, Plumer stood up, said
“enough!,” slapped the table and shouted at Hils: “You want to
see intimidation? I’ll show you intimidation.” Hils asked
Plumer to calm down. As a result of this meeting, Ryan was
suspended indefinitely for failing to be truthful in the investiga-
tion and Hils was suspended for “holding up the investigation.”
Plumer did not contradict this testimony. Andrews, whose
memory was good in other respects, claimed he could not recall
anything else Plumer said after he slammed the desk and said
“enough.”
Following the April 1 meetings, Hils prepared and filed four
grievances, two regarding the suspensions he and Ryan had
received and two regarding Mota. The Mota grievances chal-
lenged the Respondent having interviewed Mota without repre-
sentation. There is no dispute that the grievances were not filed
until a meeting on April 7 that involved the Union’s Business
agent, Calendrino, and a regional human resources representa-
tive for Covanta, Dave Anechiarico. All the usual suspects were
also there, including Mota who was paged to come to the meet-
ing about a half hour after it started. Hils testified that, after
submitting the grievances to the Respondent’s representatives
at the meeting, the parties discussed the March 23 accident.
According to Hils, the Respondent was still attempting to
blame Ryan for the accident. Ryan responded by telling the
Respondent’s officials, “everyone knows in that shop that I
didn’t jump off that chair from the lunchroom and start a job on
my own.” Hils voiced his anger at the Respondent’s attempt to
shift the blame rather than taking responsibility for what he
believed was poor supervision of the job. He specifically asked
why the two supervisors on duty, Pastore and Soulia, were not
being held accountable. It was during the discussion of the
accident that Mota was called to the meeting.
After reviewing the accident, John Walker, a regional vice
president for the Respondent, said it was clear they needed to
review the permit process at the facility. The parties then shift-
ed focus to the events of March 31 and April 1, i.e. Hils con-
duct at the meeting with Gerrard and Plumer’s alleged threat
the following day. Hils testified that he re-enacted Plumer’s
“I’ll show you intimidation” outburst and asked Andrews and
Moll, who had been at the April 1 meeting, if that was how it
went. According to Hils, Andrews replied, “Yep, that’s about
right.” This testimony was corroborated by Mota and Ryan.
None of the Respondent’s witnesses who were at this meeting
were asked any questions about it by the Respondent’s counsel.
The testimony of General Counsel’s witnesses is thus uncon-
tradicted.
There was also a discussion of the four grievances filed by
the Union that day. As a result of these discussions, the Re-
spondent rescinded the suspensions of Ryan and Hils and re-
turned them to work with full pay for the time lost. With re-
spect to the grievances filed on behalf of Mota, Andrews ques-
tioned whether Mota, as a probationary employee, was entitled
to union representation. The Union’s business agent, Calen-
drino, argued that, although he was not yet a member of the
unit, he was entitled to representation during the investigation.
Mota testified that, after hearing Andrews question his right to
representation, he spoke up, saying, “[w[ait a minute, hold on
here folks, I’m not the guy that got hurt and I’m not the guy
that hurt him, and what Dana just said scared the crap out of
me.” No one responded to Mota’s comment.3
On April 16, Mota filed his second near miss/communication
report for an incident that occurred the previous day. Mota was
again working with Cassese.4 Mota testified that Cassese was
trying to untangle some gantry hook chains three stories in the
air, without any fall protection. According to Mota, Cassese
actions created an air leak that Mota had to repair. Mota testi-
fied that he also noticed that a coworker had placed two of four
heavy locks upside down on a bag house cover. That same day,
according to Mota, he observed that Cassese had installed some
bags in the bag house improperly. Despite all these problems
Mota observed on April 15, his near miss only addresses the
upside down gantry hooks. Specifically, Mota wrote, regarding
the near miss:

Gantry chain hooks were attached to the Bag House cover up-
side down. Two hooks were attached correctly and two were
upside down. The hooks being upside down can over-stress
the hooks causing them to snap. This would be ugly.

3 Although Hils recalled the discussion between Calendrino and An-
drews regarding Mota’s right to representation, he did not recall Mota’s
statement.
4 There was some testimony from General Counsel’s witnesses that
Cassese was a problem employee, frequently causing accidents and
damage to equipment or property. According to these witnesses, he had
acquired the nickname in the shop of “Ricky Wreck It.” Respondent’s
witnesses acknowledged that Cassese had this reputation.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
More attention to detail has to happen.

The Near Miss report shows that Gerrard, Andrews, and Plumer
all reviewed it. In the Supervisor’s response section, Gerrard
wrote: “will discuss with day shift personnel what is proper
hook placement.” Nothing in the report submitted by Mota
identifies Cassese as the employee responsible for the hooks
being upside down and there is no evidence that Mota ever told
Gerrard, Andrews or any other supervisor that Cassese was
responsible.
There is no dispute that Mota continued to work at the facili-
ty until April 29 without any supervisor or representative of
management criticizing his work, warning him that his perfor-
mance was not up to par, or otherwise indicating that his job
was in jeopardy. On April 29, without any warning, Mota was
called into Plumer’s office and terminated. Andrews, Chip
Robertson, one of the Respondent’s supervisors, and alternate
steward Mark Sausanovitch were present with Plumer and Mo-
ta for this meeting. Conveniently, Hils was off that day, his first
day off since his return from suspension.
Plumer told Mota that he was 45 days into his 60-day proba-
tionary period and that they had decided to terminate him. Mota
asked supervisor Robertson if there was anything he had been
asked to do that he had not done, or had done wrong. Robertson
replied that Mota had not done anything wrong. Andrews told
Mota, “we just decided that you are not a good fit.” Mota
signed a form acknowledging his termination. The form con-
tains no specific reason for termination. Andrews admitted that,
despite several request from Mota for an explanation why he
was being terminated, none of the Respondent’s representatives
at the meeting gave him one.
The record contains evidence of only one employee in the
previous 5 years who was terminated during probation, Jason
McCauley. The only record regarding this employee that was
produced by the Respondent was a termination letter, dated
July 14, 2004, which stated that McCauley was terminated “for
failure to follow direction during your probationary period.”
There are no records nor other evidence indicating how long
McCauley worked before he was terminated.
Plumer testified that, as the facility manager, he made the
decision to terminate Mota. However, in doing so, he relied
exclusively on a memo prepared by Chief Engineer Andrews
recommending the termination. Andrews testified regarding the
circumstances and reasons for Mota’s termination. According
to Andrews, he emailed several supervisors in mid-April seek-
ing input regarding how Mota was doing. Specifically, he solic-
ited input from Safety Coordinator Gerrard and shift supervi-
sors Pastore, Soulia, Sam Logsdon, and Robertson. He com-
piled their responses in an undated memo he sent to Plumer. In
the memo, Andrews reported receiving the following response
from Logsdon:

I think it might be best if we get rid of Lou as soon as we can.
I feel he is a troublemaker. If you look at the Near misses he
fills out, they seem to be written in the hopes of getting Rick
in trouble. I just don’t trust him.

Andrews admitted that Logsdon did not directly supervise Mo-
ta. Logsdon was not called as a witness in this proceeding. As
noted above, neither of the near miss reports submitted by Mota
name Cassese.
Andrews, in his memo to Plumer, reported receiving the fol-
lowing input from Soulia, who was one of the supervisors on
duty at the time of the March 23 accident:

I don’t really have specific details but I don’t really have a
good feeling with this one.
I think in the long run it might not be good.

The response Andrews received from Gerrard, as reported in
the memo, was more detailed and specific. Gerrard responded
as follows:

In my opinion he has to go and here are the reasons why:

1. He has the I know it all attitude. You do not start a
new job with the attitude that you know everything after
the first week.
2. As I was explaining how to bring up bag house
cages with the simon he was trying to tell me that I was
not doing it correctly.
3. The near miss he put in regarding the removal of
bags from a hopper was aimed to point blame on a fellow
worker.
4. It has been noticed that it appears that all of a sud-
den he has a problem with a fellow employee.
5. On the 15th of April there were 2 incidents regard-
ing his displeasure of a fellow employee, the first was
Rick stayed on the bag house during lunch and finished
the installation of the bags. He made it a point to inform
me that the seams were not exactly 180º from the damper.
Just before that myself and Chip looked into the baghouse
and we both agreed it was fine. The second was when he
was asked if he wanted to stay overtime he said he would
if Dallas was. He mentioned nothing if Rick was staying.

Gerrard testified at the hearing to explain the points he made to
Andrews. In doing so, as pointed out by the General Counsel in
his brief, Gerrard contradicted himself and embellished his
testimony with additional criticisms not previously mentioned.
Robertson gave Andrews the following input, as reported in
Andrews undated memo to Plumer:

I have not had much interaction with Lou, however, the times
that I have are questionable at best. There are four specific in-
stances that I should inform you about to justify my position.

1. There was a near miss submitted pertaining to
working within a confined space. The near miss was writ-
ten for A–2 and in fact it dealt with B–2. There was a
permit issued for B–2 that space, just in a temporary
closed status. If he did ask the question then that would
have been not an issue.
2. Scott Gerrard called on April 1, 2009, inquiring
about his status on staying to crush cages from the over-
hauls. I was not sure of the status of the cage demo, but
did inform Scott that Lou was on site. The task assigned
was not accomplished, but rather assisted with a LOTO of
another baghouse. Granted that was a good training exer-
cise, but not informing the current supervisor on shift,
Mike Pastore, the expected assignment lent a degree of be-
ing misleading.
COVANTA BRISTOL, INC. 253
3. On April 15, 2009, upon securing the lid on B-9
baghouse for the day, he was informed that the lid was not
seated completely and was directed to completely seat the
lid. At the time I could see from the control room the gap
left, I was relieving the CRO at the time. Rick Cassese in-
spected the lid and reseated as Lou watched.

There was one other specific instance, but it escapes my “grey
matter” at this time, but somewhat minor. With just the spe-
cific instances listed above, he demonstrates a degree of all
knowing, bordering on arrogance, and less that a team player.
I feel retention would not be in the best interest of the Bristol
facility.

Robertson testified at the hearing. As with Gerrard, his testimo-
ny was not always consistent with what is reported in Andrews’
memo. He also sought to embellish his criticisms of Mota by
adding things not previously reported. Moreover, on cross-
examination, he was forced to admit that he was totally mistak-
en regarding the confined space near miss Mota had submitted
on April 1. His mistake about this incident is probably attribut-
ed to the fact that Robertson was working on a different shift
than Mota, had very little contact with him and only second-
hand knowledge about the incident.
Finally, Pastore’s input, as reported by Andrews, was the fol-
lowing:

I am sure he has the ability to do a fine job but I am not sure at
what the price tag is on that ability. I did spend some time
with him during the outage showing him around and I think
he will be a quick study. However, in the role we shared over
the outage it is difficult to get a feel for the guy.

Pastore did not testify.

On April 22, Andrews wrote another memo to Plumer spe-
cifically recommending Mota’s termination. After quoting the
collective-bargaining agreement provision governing proba-
tionary employees, Andrews wrote as follows:

My question is does he get Union representation or not? We
should look into this since Tony said he is entitled, but I am
not just going to take his word for it.

As far as Lou is concerned, I feel that these are the key items
that the Operation’s Management Team has come up with to
terminate his employment as a failure to complete his proba-
tionary period.

1. Has openly demonstrated discontent with a fellow
employee. A near miss that he submitted was an intention-
al jab at this employee.
2. Displays a “know it all” attitude, and is perceived
as arrogant.
3. By no means is he a team player.

He is not a good fit for the Operations department at this facil-
ity, and we would like to terminate his employment at the cur-
rent mid-point of his probationary period.

Andrews testified at the hearing that the only reasons he rec-
ommended Mota for termination were the three items listed in
his April 22 memo. He specifically denied that Mota’s in-
volvement in the March 23 accident and its investigation played
any role in his decision to recommend termination. He also
denied that any union activity or support on Mota’s part was a
factor in the decision. Clearly, the filing of at least one of the
near miss reports was a factor as it is the first item mentioned in
the memo.5 Andrews acknowledged that Mota was correct in
filing the report in question and that in fact a safety violation
had been observed and was addressed by management as a
result of this near miss report. However, Andrews claimed that
it was “how the near miss was put in, not the fact that the near
miss was put in” that concerned him about Mota. Andrews
testified that he perceived this as Mota “trying to make another
employee look bad, to maybe project a good image of himself.”
B. Analysis and Conclusions
1. Alleged threat of unspecified reprisals
The complaint in Case No. 34–CA–12378 alleges that the
Respondent violated Section 8(a)(1) of the Act, through
Plumer, when he allegedly said “You want to see intimidation?
I’ll show you intimidation” in the heat of the April 1 meeting.
The Respondent, while denying that such a statement was
made, argues initially that the Board lacks jurisdiction to decide
this issue because Mota, who filed the charge, lacked standing
to make the allegation. In the Respondent’s view, because Mota
was not at the April 1 meeting and was not a witness to the
alleged threat, he could not file the charge. The Board has long
held that anyone has the right to initiate an investigation of
potential unfair labor practices by filing a charge. Apex Investi-
gation & Security Co., 302 NLRB 815, 818 (1991); Operating
Engineers Local 39 (Kaiser Foundation), 268 NLRB 115, 116
(1983). In fact, charges are routinely filed by employers or
labor organizations on behalf of employees who have been
subjected to unlawful restraint and coercion by unions and em-
ployers, respectively. Accordingly, I reject this asserted defense
and shall consider the allegation on its merits.
The General Counsel’s witnesses testified consistently in de-
scribing Plumer’s reaction to Hils’ criticism of the Respond-
ent’s supervisors and its handling of the accident. Both recalled
Plummer slamming his hand on the table and saying, “I’ll show
you intimidation.” Respondent, in its brief, argues that Plumer,
merely slapped his hands on his desk and said “enough,” or
“I’m not intimidated by you.” None of the Respondent’s wit-
nesses testified in this manner. In fact, Plumer was not even
asked about the incident and Andrews recalled Plumer saying
“enough” but could not recall what else he said. The other su-
pervisor at the meeting, Moll, did not testify.
I credit Hils and Ryan and find that the statement was made
as they described. As noted, their testimony was essentially
uncontradicted. In addition, during the April 7 meeting, when
Hils asked Andrews if this is what happened, he confirmed Hils
version of the outburst. Finally, I agree with the General Coun-
sel that Hils and Ryan, as current employees of Respondent
testifying against their employer’s interest, are particularly
reliable. See Flexsteel Industries, 316 NLRB 745 (1995).
5 Mota’s filing of near miss reports also figured prominently in some
of the input received from the supervisors, as evidenced in Andrews
undated memo quoted above.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
Having found that Plumer in fact said, during the April 1
meeting, “I’ll show you intimidation,” does not end the inquiry.
The Respondent argues that even if the statement was made, it
was not unlawful because Hils had lost the protection of the Act
by his profane, abusive and insubordinate conduct at the meet-
ing. See Verizon Wireless, 349 NLRB 640, 646 (2007); Atlantic
Steel, 245 NLRB 814, 816 (1979). There is no dispute that the
meeting became “heated” and that Hils in fact made some in-
sulting remarks to Plumer regarding his support of the supervi-
sors at the plant. In addition, Plumer called the meeting to ad-
dress what he perceived to have been Hils attempt to intimidate
Gerrard the day before during Gerrard’s meeting with Ryan.6
The Board has historically given some leeway to union stew-
ards when they are zealously representing the interests of the
unit employees and has found what might be considered offen-
sive remarks in other settings to be permissible in the context of
a grievance meeting or other similar setting. Dreis & Krumpf
Mfg., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir.
1976).
In Atlantic Steel, supra, the Board identified four factors to
consider in assessing employee behavior under these circum-
stances: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practices. Having considered these factors,
I find that Hils’ “outburst,” under either version of the meeting,
did not cross the line into unprotected conduct. I note that his
allegedly profane and abusive behavior occurred in a meeting
with the Respondent’s supervisors and only one other employee
present, not in an open work area where he could be overheard
by employees. Secondly, his conduct was in response to the
Respondent’s shameful effort to make Ryan the scapegoat for
its own failures in adequately supervising the work on March
23. Hils was also protesting the shoddy treatment accorded
Ryan immediately after the accident when no ambulance was
called and he was taken instead to an occupational injury clinic
about to close for the day. Thus his “outburst” was directly
related to protected concerted activity. The language used by
Hils, while impolite, certainly was not outside the norm of shop
talk at the facility. Finally, while not provoked by any unfair
labor practice committed by the Respondent, Hils conduct was
provoked by the Respondent’s shameful handling of the acci-
dent and its aftermath. I conclude that Plumer’s statement can-
not be excused by any alleged inappropriate conduct by Hils.
I also note that, even assuming Hils had lost the protection of
the Act, Ryan certainly had not. Ryan engaged in no inappro-
priate behavior during the meeting yet was forced to witness
the facility manager, the highest ranking official at the plant,
threaten the union steward that he would “show him intimida-
tion.” Such a statement would clearly have a tendency to inter-
fere with, restrain, and coerce an employee like Ryan in the
exercise of his right to protest unsafe working conditions or
otherwise engage in protected activities. Accordingly, I find, as
6 I note that the testimony that Gerrard had also become agitated on
March 31 and threw some chairs around was not disputed. Thus, it is
unclear who was trying to intimidate whom at that meeting.
alleged in the complaint, that the Respondent violated Section
8(a)(1) of the Act through Plumer’s April 1 conduct.
2. Mota’s Termination
The complaint in Case 34–CA–12339 alleges that the Re-
spondent terminated Mota, in violation of Section 8(a)(1) be-
cause he engaged in protected concerted activities by filing the
near miss reports on April 1 and 16 and, in violation of Section
8(a)(3), because he assisted the Union. The General Counsel
argues that the filing of the near miss reports constituted pro-
tected concerted activity because they raised safety concerns
affecting employees generally, and because they invoked the
health and safety provisions of the collective-bargaining
agreement. The Board has held that an employee who raises
safety issues with his employer is engaged in concerted activity
that is protected by Section 7 of the Act. Talsol Corp., 317
NLRB 290, 316–317 (1995). See also NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); Daniel Construction Co.,
277 NLRB 795 (1985). It is also well established that an em-
ployee’s “reasonable and honest invocation of a right provided
for in his collective bargaining agreement” constitutes protected
concerted activity, even when the employee acts alone. NLRB
v. City Disposal Systems, 465 U.S. 822 (1984). Here, the col-
lective-bargaining agreement between the Respondent and
Local 30 contained at Article 34 a provision requiring the Re-
spondent to “maintain safe, sanitary and healthful conditions.”
The Respondent argues that General Counsel has failed to
prove either that Mota was engaged in any union or other con-
certed activity protected by the Act or that such activity moti-
vated the Respondent’s decision to terminate him. The Re-
spondent relies on its right under the collective-bargaining
agreement to terminate a probationary employee like Mota for
any reason or no reason, while acknowledging that even a pro-
bationary employee may not be terminated for discriminatory
reasons. The Respondent also argues that General Counsel has
not met his burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 988
(1982).
The Board has applied the Wright Line analysis in all cases
that turn on employer motivation, such as this case. Under that
analysis, the General Counsel must first prove, by a preponder-
ance of the evidence, that employee conduct protected by the
Act was a motivating factor in the employer’s decision to ter-
minate an employee. To meet his burden, the General Counsel
must offer evidence showing that the employee engaged in
protected activity, that the employer was aware of the activity,
that the employer had animus against the activity and that there
was a causal connection between the activity and the termina-
tion. Because direct proof of unlawful motivation is seldom
available, the Board will rely on circumstantial evidence, such
as shifting reasons for a termination, disparate treatment, tim-
ing, etc., to prove the elements of General Counsel’s case. Once
the General Counsel has met his burden, the Respondent must
come forward with evidence sufficient to show that it would
have terminated the employee for the reasons asserted even in
the absence of protected activity. Id.
There is no dispute that Respondent was aware of Mota’s
conduct in filing the near miss reports. Respondent argues

COVANTA BRISTOL, INC. 255
however that the filing of such report was not protected activity
and that, even if it was, the Respondent exhibited no hostility
toward such activity and, in fact, encouraged its employees to
file near miss reports, even rewarding them for doing so. I find
that the filing of a near miss report which reports a safety issue
is protected concerted activity for the reasons advanced by the
General Counsel. Although I had my doubts whether the Gen-
eral Counsel had proved animus toward employees who file
such reports, I have ultimately concluded that, at least with
respect to Mota, the Respondent was hostile to such activity.
What has convinced me of this is the memos prepared by An-
drews recommending Mota’s termination that list, as reasons,
his filing of the near miss reports. Regardless of how the Re-
spondent treated other employees who filed these reports, it
admittedly did not like the way Mota submitted them, which
the Respondent supervisors perceived to be an attack on anoth-
er employee. I find that General Counsel has proved that Mo-
ta’s filing of the near miss reports was a motivating factor in
the decision to terminate him.
I also find that Mota’s perceived support for the Union was
another motivating factor in his discharge. Andrews knew when
he hired Mota that he was aligned with Hils, who had referred
Mota for employment. After he began working at the Bristol
facility, Mota continued to demonstrate his allegiance to the
Union when, during the Respondent’s investigation of the
March 23 accident, he asked if the union steward could review
the statement prepared for him by Gerrard and then requested a
copy. The Respondent’s animus toward this request was exhib-
ited by Andrews questioning of Mota’s motives for seeking a
copy of the statement he had been asked to sign. When Hils, the
steward who had already antagonized the Respondent by his
efforts to protect employees during the investigation, filed two
grievances on Mota’s behalf, the Respondent clearly had
knowledge that Mota was a union supporter. This is evidenced
by the opinions expressed by the Respondent’s supervisors to
Andrews that Mota was likely to be a troublemaker and that it
would be best to get rid of him before it was too late, i.e. before
he finished his probationary period.
Having found that the General Counsel met his initial burden
of showing that protected activity was a motivating factor in
Mota’s discharge, I must now consider whether the Respondent
has offered evidence sufficient to establish that it would have
discharged Mota when it did even absent his protected activity
and union support. While it is true that the Respondent did not
need to have any reason for terminating a probationary employ-
ee like Mota, here the Respondent has come forward with a
litany of reasons which seemed to grow as the trial progressed.
The testimony of Andrews, Gerrard, and Robertson, attempting
to show that Mota was not satisfactorily completing his proba-
tion, was not credible. As noted above, the testimony at trial
was not consistent with the written memos prepared at the time
the discharge was being considered. Moreover, I note that all of
these witnesses acknowledged never raising any of these issues
with Mota. This is a clear violation of the Respondent’s own
policy for dealing with probationary employees, as evidenced
by the form Mota was asked to sign when hired. Rather than
provide feedback to a probationary employee so he could try to
correct any perceived problems and successfully complete his
probation, the Respondent essentially hid its objections from
him until it was too late to save his job.
Based on the above and the record as a whole, I find that Re-
spondent violated Section 8(a)(1) and (3) by discharging Mota
on April 29 because he had raised safety complaints, invoked
his contractual rights and demonstrated that he would be a un-
ion supporter.
CONCLUSIONS OF LAW
1. By threatening employees with unspecified reprisals be-
cause they engaged in union and other protected concerted
activities, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By discharging Luis Mota on April 29, 2009, because he
engaged in protected concerted activities and supported the
Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
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 discrimina-
torily discharged an employee, it must offer him reinstatement
and make him whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).7 The Respondent shall also be
ordered to post a notice to employees.
[Recommended Order omitted from publication.]
7 In his brief, General Counsel has requested, as part of the remedy,
that interest be compounded on a quarterly basis. While I find the ar-
guments advanced in favor of this persuasive, I shall defer to the Board
to make such a change in the Board’s standard remedial orders. See
Glen Rock Ham, 352 NLRB 516 fn. 1 (2008).