LM Waste Services, Corp.

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2234 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 194
2234
LM Waste Service, Corp. and Union de Tronquistas
de Puerto Rico, Local 901, IBT and Marvin J.
Cardona and DS Employment Agency, Inc.,
Party in Interest. Cases 24–CA–010837 and 24–
CA–010894
December 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On October 22, 2010, Administrative Law Judge Kelt-
ner W. Locke issued the attached supplemental decision
on remand.1 The Respondent filed exceptions and a sup-
porting brief, the Acting General Counsel filed excep-
tions and a supporting brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,2
findings,3 and conclusions,4 and to adopt the recom-
mended Order as modified and set forth in full below.5

1 On June 10, 2009, the judge issued his original decision in this
matter. On May 11, 2010, the Board remanded this case to the judge to
reconsider certain issues specifically discussed therein. The Board held
in abeyance all remaining issues pending the judge’s supplemental
decision on remand. This decision thus addresses findings in both
judge’s decisions.
We note that the judge relied on Gelita USA Inc., 352 NLRB 406
(2008), in his original decision and Food & Commercial Workers Local
4 (Safeway, Inc.), 353 NLRB 469 (2008), in his supplemental decision
on remand. These cases were considered by three-member panels of
the Board which reached the same outcomes, see 356 NLRB 467
(2011), and 355 NLRB 634 (2010), respectively.
2 The Respondent contends that some of the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
In analyzing the discharge of Raphael Maldonado, the judge rejected
the Acting General Counsel’s exhibits consisting of the Respondent’s
attorney’s statements submitted to the Region during the investigation
of the charges. The Acting General Counsel excepted to the judge’s
rejection of these exhibits. We find it unnecessary to pass on this issue
in light of the judge’s finding, which we adopt, that the Respondent
discharged Maldonado unlawfully.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
4 There were no exceptions to the judge’s dismissal of 8(a)(1) allega-
tions that: Operations Manager Armando Ramos interrogated employ-
ees and solicited them to get rid of the Union on January 11, 2008;
Operations Coordinator Lilliam Curret surveilled employees’ union
activities on January 13, 2008; and Supervisor Jose Santiago interrogat-
ed Rafael Cruz on January 15, 2008. In addition, there were no excep-
tions to the judge’s finding that DS Employment Agency, Inc. (DS) and
For the reasons stated by the judge, and contrary to our
dissenting colleague, we6 find that the Respondent un-
lawfully discharged Felipe Espada. Under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), the General
Counsel’s initial burden in 8(a)(3) discharge cases re-
quires a “showing that (1) the employee was engaged in
protected activity, (2) the employer had knowledge of the
protected activity, and (3) the employer bore animus to-
ward the employee’s protected activity.” See, e.g.,
Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1185
(2011).7 The judge found that the General Counsel car-
ried this initial burden and that the Respondent’s prof-
fered explanation for the discharge—Espada’s alleged
failure to obtain the requisite driver’s license—was pre-
textual. Consequently, the Respondent necessarily failed
to show that it would have taken the same action even
absent Espada’s protected conduct. See Golden State
Foods, 340 NLRB 382, 385 (2003) (citing Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). Thus, we adopt the judge’s finding
that Espada’s discharge violated Section 8(a)(3).8

the Respondent were joint employers and that DS President Dinelia
Santiago was the Respondent’s agent.
5 We shall modify the judge’s recommended Order and substitute a
new notice to accord with traditional remedial language for the viola-
tions found. In accordance with our decision in Kentucky River Medi-
cal 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. Also, we shall modify
the judge’s recommended Order to provide for the posting of the notice
in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the rea-
sons stated in his dissenting opinion in J. Picini Flooring, Member
Hayes would not require electronic distribution of the notice.
6 Chairman Pearce and Member Becker; Member Hayes dissenting.
7 Wright Line does not include a fourth element, set forth by the
judge, that the General Counsel establish a link or nexus between the
employee’s protected activity and the adverse employment action. Id.
8 Member Hayes would find that the Respondent lawfully discharged
Felipe Espada. Espada was hired as a driver, but his driver’s license
was suspended in June 2007. Thereafter, the Respondent transferred
him to a helper position but warned Espada that he must obtain a cate-
gory eight or nine license within 6months or face discharge. Espada
acknowledged that his helper position was temporary; that he failed to
obtain the required license in the 6-month period, and that the Re-
spondent informed him at the time of his January 14, 2008 discharge,
that he was discharged “because [he] did not have the proper license to
drive a truck.” The Respondent thus followed a consistent and clearly
forewarned procedure of allowing Espada a 6-month grace period to
rectify his lack of a license, and discharging him when he failed to do
so. Under these circumstances, Member Hayes would find that the lack
of a license was a legitimate motivating factor for the discharge and
that the Respondent met its Wright Line rebuttal burden of proving it
would have taken the same action in reliance on Espada’s failure to
meet an essential requirement of his permanent job even in the absence
of any protected, concerted activities. See Hospital Dr. Susoni, Inc.,
337 NLRB 537, 537–540 (2002) (no violation where employer termi-
nated employee because he failed to renew his professional license).
LM WASTE SERVICE, CORP. 2235
With respect to Marvin Cardona’s discharge, the judge
found, and we9 agree, that the Respondent lawfully dis-
charged Cardona. Assuming the judge correctly found
that the Acting General Counsel met his initial Wright
Line burden, we do not agree with our dissenting col-
league that there was a “strong prima facie showing of
discrimination.” We note particularly that Cardona did
not engage in union activity; that the Respondent dis-
charged Cardona approximately 2 months after union
activity commenced at the facility and without concur-
rently discharging other employees; and that while Su-
pervisor Santiago made statements about union activity
to Cardona both at the time of the discharge of employ-
ees Maldonado, Espada, Cruz, and Santiago, and 2
months later, immediately after Cardona’s discharge,
there is no direct evidence concerning either Supervisor
Santiago’s involvement in the Respondent’s decision to
discharge Cardona or Santiago’s knowledge of the rea-
son for Cardona’s discharge.
Finally, we agree with the judge that the Respondent
met its rebuttal burden of showing that it had legitimate
reasons and would have discharged Cardona even absent
any belief that he engaged in union activity. We particu-
larly note that at this time, Cardona’s temporary DS con-
tract had expired, subject to possible renewal. Under
these circumstances, we find, contrary to the dissent, that
it was appropriate for the Respondent to review Cardo-
na’s entire employment history and to assess any mis-
conduct which might have occurred, even if it had not
occasioned contemporaneous discipline, or had occurred
some time ago. The Respondent’s supervisor, Julio
Torres, who was credited by the judge, testified that he
discharged Cardona because of his poor job performance.
Torres’ citation of job performance as his reason for dis-
charging Cardona included Cardona’s unauthorized de-
viation from his established routes. As relied on by the
judge, Cardona admitted to this misconduct and also ad-
mitted that he had thrown water on a customer’s dog.
Moreover, customers had complained to the Respondent
about these incidents. Under these circumstances, we
agree with the judge that the Respondent would have
taken the same action based on Cardona’s misconduct
even without reference to any protected concerted activi-
ty. See, e.g., Ark Las Vegas Restaurant Corp., 335
NLRB 1284, 1300–1301 (2001), enfd. 334 F.3d 99 (D.C.
Cir. 2003) (employer’s discipline lawful where employ-
ee’s misconduct undisputed). Thus, we adopt the judge’s
dismissal of the 8(a)(3) allegation concerning Cardona.10

9 Members Becker and Hayes; Chairman Pearce dissenting.
10 Contrary to his colleagues, Chairman Pearce would reverse the
judge and find that the Respondent violated Sec. 8(a)(3) and (1) by
discharging DS employee Marvin Cardona. Chairman Pearce agrees
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, LM Waste Service, Corp., Juana Diaz, Puer-
to Rico, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Creating the impression among employees that
their union activities are under surveillance.
(b) Threatening employees with discharge if they con-
tinue their support for the Union.
(c) Informing employees that they are discharged be-
cause of their activities on behalf of the Union.
(d) Discharging employees because they formed,
joined, or assisted a union or encouraged support for any
labor organization.
(e) 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
Rafael Maldonado, Rafael Cruz, Felipe Espada, and
Reinaldo Santiago full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-

with the judge that the Acting General Counsel met his initial Wright
Line burden of proving unlawful motivation for the discharge. There is
ample evidence of the Respondent’s union animus and its belief that
Cardona had engaged in union activity. On January 14, 2008, the day
that the Respondent unlawfully discharged employees Maldonado,
Espada, Cruz, and Reinaldo Santiago, Cardona received an unexpected
visit from his supervisor, Jose Santiago. Santiago told Cardona about
the discharge of the four employees and stated that “[Maldonado] was
the leader. He’s the one who brought the union movement to the [Re-
spondent].” Santiago then asked Cardona if he had attended the union
meetings. When Cardona replied that he had not, Santiago said he
needed proof of Cardona’s nonattendance. Further, after Cardona was
informed of his discharge on March 17, 2008, Supervisor Santiago told
him that he had been discharged for the same reason as Maldonado and
Espada—because he was participating in the Union. The judge reject-
ed, as “implausible,” testimony that Santiago had no role in the dis-
charge.
In light of this strong prima facie showing of discrimination, Chair-
man Pearce would find, contrary to the judge and his colleagues, that
the Respondent did not meet its rebuttal burden of showing that it
would have discharged Cardona even absent its belief that he engaged
in union activity. Although the Respondent asserts two grounds for the
discharge: (1) Cardona’s deviation from assigned trash collection
routes; and (2) an incident in which he threw water on a customer’s
dog, the Respondent knew of these incidents 2 and 10 months respec-
tively, before the discharge, and had never counseled or disciplined him
for either. Nor did the Respondent present any evidence of prior con-
sistent discipline. The fact that DS had assigned Cardona to drive the
truck under a temporary contract is immaterial. As the Respondent’s
joint employer, DS did not merely permit this contract to expire by its
terms, but affirmatively discharged Cardona from further employment
with it and the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2236
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Rafael Maldonado, Rafael Cruz, Felipe Es-
pada, and Reinaldo Santiago whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them, in the manner set forth in the reme-
dy section of the judge’s decision as amended in this
decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of Rafael Maldonado, Rafael Cruz, Felipe Espa-
da, and Reinaldo Santiago 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
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 facilities in Juana Diaz, Puerto Rico, copies of the
attached notice marked “Appendix”11 in both English and
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 24, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since November 11, 2008.

11 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 24 a sworn certifi-
cation of a responsible official on a form provided by the
Regional Director attesting to the steps that the Respond-
ent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board had 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 create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT threaten you with discharge if you con-
tinue your support for the Union.
WE WILL NOT inform you that you are discharged be-
cause of your activities on behalf of the Union.
WE WILL NOT discharge you because you formed,
joined, or assisted a union or to discourage membership
in any labor organization.
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 Rafael Maldonado, Rafael Cruz, Felipe Es-
pada, and Reinaldo Santiago full reinstatement to their
former jobs, or if those jobs no longer exist, to substan-
tially equivalent positions without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Rafael Maldonado, Rafael Cruz, Felipe
Espada, and Reinaldo Santiago whole for any loss of
earnings and other benefits resulting from their discharg-
es, 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 the unlaw-
ful discharges of Rafael Maldonado, Rafael Cruz, Felipe
Espada, and Reinaldo Santiago, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
LM WASTE SERVICE, CORP. 2237

LM WASTE SERVICE CORP.

Ayesha K. Villegas Estrada, Esq. and Maria M. Fernan-
dez, Esq., for the General Counsel.
Carlos George, Esq. (O’Neill & Borges), for the Re-
spondent.
Jose Budet, for the Charging Party.
SUPPLEMENTAL DECISION
KELTNER W. LOCKE, Administrative Law Judge. On
June 10, 2009, I issued a decision in this matter. By Or-
der dated May 11, 2010, the Board remanded the case for
further findings and conclusions.
Complaint Paragraph 7
The Board remanded for further explanation the inter-
rogation and solicitation allegations raised in paragraphs
7(a) and (b) of the amended complaint (the complaint).
Paragraph 7(a) alleges that Respondent engaged in an
unlawful interrogation of employees and solicited their
support to get rid of the Union. Paragraph 7(b), alleges
that Respondent threatened its employees with discharge
if they continued with their support for the Union.
The Board’s remand Order stated, in part, “based on
[employees’] testimony, the judge stated that the Re-
spondent violated Section 8(a)(1) by creating the impres-
sion of surveillance, but made no express finding with
respect to the unlawful interrogation and solicitation vio-
lation alleged in the Complaint.” (Emphasis added.)
My initial decision stated, “I conclude that Respondent
violated Section 8(a)(1) by the conduct alleged in Com-
plaint paragraph 7(a), but it did not violate the Act as
alleged in Complaint paragraph 7(b) because it did not
engage in that conduct.” LM Waste Service, Corp.,
JD(ATL)–13–09, slip op. at 7, lines 11–13. Here, I revisit
and revise those conclusions.
Although the decision included an express finding with
respect to complaint paragraph 7(a), it failed to analyze
the evidence in accordance with Board precedent govern-
ing the analysis of interrogation and solicitation viola-
tions. Instead, because the allegedly unlawful statements
did not sound like questions, I applied the standards used
to analyze another type of 8(a)(1) violation, the creation
of an unlawful impression of surveillance, even though
Section 7(a) did not allege such a violation.
As already noted, complaint paragraph 7(a) alleges
that on January 11, 2008, Respondent, by its operations
manager, Armando Ramos, violated Section 8(a)(1) of
the Act by interrogating certain employees and soliciting
their support to get rid of the Union. Complaint para-
graph 7(b) alleges that, on this same day, Ramos threat-
ened employees with discharge if they continued to sup-
port the Union. The complaint identified these employ-
ees as Reinaldo Santiago, Felipe Espada, and Rafael
Maldonado. Both clarity and brevity may be served by
discussing first the threat allegation raised in complaint
paragraph 7(b) and then returning to the interrogation
and solicitation allegations in paragraph 7(a). Therefore,
I will begin with complaint paragraph 7(b).
Santiago, whose full name is Reinaldo Santiago Ro-
driguez, testified that on January 11, 2008, he was work-
ing in the shop area when Operations Manager Ramos
called him in to Ramos' office. According to Santiago,
Ramos “told me that he had received information from a
trustworthy source, that I was helping the guys with the
syndicated movement.” (The term “syndicated move-
ment” refers to the union organizing efforts.)
Santiago replied he was not doing anything illegal.
According to Santiago, Ramos then told him “to give it
thought, that work––that jobs were scarce these days, to
think about my family, and that if I had any doubts or
any situation or anything that I was concerned with, to
come to him and tell him. After that, he told me to think
about it and then he shook my hand.”
Based on my observations of the witnesses, and for the
reasons discussed in my initial decision, I credit Santia-
go's testimony. Therefore, I find that Ramos did make
the statements which Santiago attributed to him.
According to employee Rafael Maldonado Leon (Mal-
donado), Ramos called him and another employee, Fe-
lipe Espada, into Ramos’ office on January 11, 2008.
Maldonado testified “he had received information from a
good source, that I was making efforts to coordinate
something with the union, and he wanted to know if I
was clear with what I was doing, because this was a
Puerto Rican company that was beginning and that the
union did––and what the union did was actually to annoy
small companies like that.” (Maldonado testified in
Spanish. The interpreter stated that the Spanish word
rendered above as “annoy” also could be translated as
“hassle.”)
Maldonado further testified that Ramos said “to please
help him and that if I continued on with the syndicated
effort, that I could end up without a job.” The term
“syndicated effort” referred to the union organizing cam-
paign.
The other employee present, Felipe Espada, corrobo-
rated part of Maldonado’s testimony. According to Espa-
da, “Ramos asked [Maldonado] that he had a good
source informing him that he was involved in conversa-
tions with the union.” Although Espada used the verb
“asked,” the testimony otherwise does not indicate that
Ramos posed to Maldonado any specific question. Es-
pada does not corroborate Maldonado’s testimony that
Ramos “wanted to know if I was clear with what I was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2238
doing.”
Espada also does not corroborate Maldonado’s testi-
mony that Ramos said Maldonado could “end up without
a job” if he continued with the union organizing effort.
In my initial decision, I discussed a credibility problem
with this part of Maldonado’s testimony but did not ex-
plicitly state that I rejected this testimony. For the rea-
sons stated in the initial decision, I do reject it.
Espada testified that he had become “really nervous”
when Ramos began talking about the union campaign. In
the initial decision, I reasoned that this anxiety made it
more likely that Espada would remember a threat if Ra-
mos had made one: “Considering that Espada already
was apprehensive, a threat to discharge another employee
would resonate on existing fears and be difficult to for-
get.” LM Waste Service, Corp., JD(ATL)–13–09, slip op.
at 6, lines 30–31.
Also in the initial decision, I noted that Maldonado had
some reason to exaggerate his testimony because he was
an alleged discriminatee. If proven, the threat which
Maldonado attributed to Ramos would provide evidence
that Maldonado’s discharge had been unlawful.
Additionally, Ramos clearly denied making the threat.
Thus, the testimony of only one of the three participants
in the meeting supported the allegation that Ramos had
made an unlawful threat.
For these reasons, I concluded that Maldonado’s un-
corroborated testimony about the alleged threat should
not be credited, even though I did credit that portion of
his testimony corroborated by Espada. The Board has
long held that failure to credit one part of a witness’ tes-
timony does not preclude crediting other parts of the tes-
timony. Service Employees Local 1877 (American Build-
ing Maintenance), 345 NLRB 161 fn. 3 (2005).
Although the initial decision explained the reasons for
not crediting part of Maldonado’s testimony, it did not
explicitly state that I was rejecting the testimony. In-
stead, it leapfrogged to the ultimate conclusion that Re-
spondent “did not violate the Act as alleged in Complaint
paragraph 7(b) because it did not engage in that alleged
conduct.” That conclusion, however, is erroneous. Alt-
hough the government could not establish this allegation
through the testimony of Maldonado, which I did not
credit, it did through the credited testimony of Santiago.
Specifically, as discussed above, in a January 11, 2008
conversation with Santiago, Ramos brought up the sub-
ject of the union organizing campaign and then said “to
give it thought, that work––that jobs were scarce these
days, to think about my family, and that if I had any
doubts or any situation or anything that I was concerned
with, to come to him and tell him.”
Even though this statement is somewhat vague, and
does not specifically equate union activity with job loss,
still it interferes with, restrains, and coerces an employee
in the exercise of Section 7 rights. The Board has held
that similarly oblique comments amounted to unlawful
threats. Thus, in L.W.D., Inc., 335 NLRB 241, 242
(2001), the Board found violative a statement that on the
day of the representation election, the employees should
“vote as if your job depends on it.” In Clinton Electron-
ics Corp., 332 NLRB 479 (2000), a supervisor told an
employee that “it’s my opinion that we could all be look-
ing for a job.” The Board held that the comment violated
Section 8(a)(1) of the Act.
In the present case, the supervisor went further than
merely stating that jobs were scarce. He also urged San-
tiago to think about his family. In that context, the “jobs
were scarce” comment cannot be considered merely a
casual remark about the unemployment rate. When Ra-
mos added that Santiago should think about his family,
he personalized the matter and made clear that Santiago
could endanger his employment by engaging in union
activity.
Accordingly, I conclude that the Government has
proven the allegation raised in complaint paragraph 7(b).
Further, I conclude that Respondent thereby violated
Section 8(a)(1) of the Act.
Now, I will return to complaint paragraph 7(a), which
alleges that about January 11, 2010, Respondent “inter-
rogated its employees about their Union activities and
solicited their support to get rid of the Union.” The cred-
ited testimony offered to support this allegation comes
from witnesses Santiago, Maldonado, and Espada, and
has been quoted above.
Santiago’s testimony establishes that Ramos told San-
tiago that Ramos “had received information from a
trustworthy source, that I was helping the guys” with the
union organizing effort. This comment by Ramos, alt-
hough coercive, does not fall comfortably within the def-
inition of interrogation because it doesn't ask a question.
However, the statement does, I believe, create an unlaw-
ful impression of surveillance. In particular, Ramos’
reference to a “trustworthy source” implies that man-
agement had a spy in the Union’s camp.
The credited testimony of Maldonado and Espada es-
tablishes that Ramos made a similar statement in their
presence. (One difference is that Ramos told Maldonado
and Espada that he had received information about Mal-
donado’s union activity from a “good source” rather than
a “trustworthy source.” This change of adjective, of
course, does not alter the character of the statement or the
LM WASTE SERVICE, CORP. 2239
effect it reasonably would have on employees' willing-
ness to exercise their Sec. 7 rights.)
Maldonado also testified that Ramos asked Maldonado
“to please help him and that if I continued on with the
syndicated effort, that I could end up without a job.”
However, Espada does not corroborate this portion of
Maldonado’s testimony. For the reasons discussed
above, I do not credit it.
Accordingly, for the Government to prove that Ramos
solicited an employee’s support to “get rid of the Union,”
it must rely on Santiago’s testimony, discussed above.
That testimony only establishes that Ramos asked Santi-
ago to tell him if Santiago had any doubts or concerns.
Santiago did not testify that Ramos made any request for
Santiago’s assistance in defeating the Union. Therefore,
I must conclude that credited evidence does not establish
that Respondent solicited employees' support to “get rid
of the Union,” as complaint paragraph 7(a) alleges.
Because I have difficulty finding a question in Ramos’
statements, I do not recommend that the Board find the
interrogation violation alleged in Complaint paragraph
7(a) but instead recommend that the Board conclude that
Respondent violated the Act by creating an unlawful
impression of surveillance. However, as already noted,
complaint paragraph 7(a) does not allege that Ramos’
January 11, 2008 remarks created an impression of sur-
veillance. The Board's remand Order directs me to ad-
dress the issues raised by my finding this unalleged vio-
lation.
The words Ramos spoke––that he had received infor-
mation from a “trustworthy source” that Santiago was
helping with the union organizing effort and that he had
received information from a “good source” that Maldo-
nado was involved in that effort––form the basis for the
interrogation allegation in complaint paragraph 7. Be-
cause Ramos’ remark did not ask a specific question,
characterizing it as interrogation did not appear to be
appropriate. At the same time, Ramos’ words predicta-
bly would have a chilling effect on employees’ willing-
ness to exercise their Section 7 rights because they con-
veyed that Respondent was observing their union activi-
ties.
It is well settled that the Board may find and remedy a
violation even in the absence of a specified allegation in
the complaint if the issue is closely connected to the sub-
ject matter of the complaint and has been fully litigated.
Pergament United Sales, 296 NLRB 333, 334 (1989);
Letter Carriers, Local 3825 (Postal Service), 333 NLRB
343 fn. 2 (2001); Garage Management Corp., 334 NLRB
940–941 (2001); and Earthgrains Co., 351 NLRB 733,
737 (2007). Each prong of this test will be discussed
separately.
To prove that Respondent violated Section 8(a)(1) by
conducting an unlawful interrogation, the General Coun-
sel relied on the same words which, in my view, violated
Section 8(a)(1) by creating an unlawful impression of
surveillance. This identity militates in favor of a finding
that the unalleged violation was closely connected to the
subject matter of the complaint.
Moreover, the violation found involved the same sec-
tion of the Act as the violation alleged. That, too, weighs
in favor of finding that the unalleged violation was close-
ly connected to the subject matter of the complaint.
In Food & Commercial Workers Local 4 (Safeway,
Inc.), 353 NLRB 469 (2008), the complaint alleged that
the respondent local union had violated Section
8(b)(1)(A) by failing to provide a bargaining unit em-
ployee with an adequate explanation of the discrepancy
between the international union’s total amount for
chargeable expenses and the local union’s total amount
for chargeable expenses. At the hearing, however, much
of the parties’ testimony and arguments focused on
whether the expenditure information provided by the
local union was verified sufficiently to satisfy the
Board’s standards under California Saw & Knife Works,
320 NLRB 224 (1995); and Television Artists AFTRA
(KGW Radio), 327 NLRB 474 (1999), reconsideration
denied 327 NLRB 802 (1999). The judge analyzed the
facts under the latter theory. Although the Board disa-
greed with the judge's conclusion on the merits, it held
that the judge properly addressed the unalleged issue.
In Airborne Freight Corp., 343 NLRB 580, 581
(2004), the complaint alleged that the respondent violat-
ed Section 8(a)(1) by telling an employee that he was not
being allowed to transfer to a different route because of
union activity, and violated Section 8(a)(3) of the Act by
preventing the employee from changing his route. At
hearing, the evidence established that a supervisor also
had told the employee that he was not being allowed to
transfer because he had filed unfair labor practice charg-
es with the Board. The complaint only had alleged dis-
crimination because of union activities, in violation of
Section 8(a)(3), and not discrimination because of filing
charges, in violation of Section 8(a)(4). Nonetheless, the
judge found that the respondent had violated Section
8(a)(4) as well as Section 8(a)(3), and the Board upheld
this finding.
In Park ‘N Fly, Inc., 349 NLRB 132, 133 (2007), the
Board held that a supervisor’s statement to an employee
that the respondent probably would go broke was closely
connected to other comments, in the same conversation
and alleged in the complaint, that employees would get
less money if the union came in and that the respondent’s
owner would not go for a union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2240
The unalleged violation in the present case bears at
least as close a connection to the alleged violation as
those in Food & Commercial Workers Local 4 (Safeway,
Inc.), Airborne Freight Corp., and Park ‘N Fly. Moreo-
ver, the connectedness of the two allegations becomes
even more apparent from the General Counsel's closing
argument. Specifically, the General Counsel stated:

The interrogation of employees about the union activi-
ties and solicitation of support to get rid of the union
through the discharge––employees’ union activities,
created an impression among its employees that their
union activities are under surveillance, and informing
employees that the discharge was due to employees’
union activities. On January 11th, 2008, in the midst of
the employees' organizing drive, Respondent's opera-
tion[s] manager, Armando Ramos, interrogated em-
ployees Santiago, Maldonado and Espada about their
union activities and solicited their support to get rid of
the union. [Emphasis added.]

In effect, the General Counsel argues that the words
which constituted the alleged unlawful interrogation also
created the impression of surveillance.
In sum, the unalleged violation bears a close connec-
tion to that alleged in the complaint. Accordingly, I con-
clude that the first prong of the Pergament test has been
satisfied.
To satisfy the second prong, the unalleged violation
must have been fully litigated. That determination rests
in part on whether the absence of a specific allegation
precluded a respondent from presenting exculpatory evi-
dence or whether the respondent would have altered the
conduct of its case at the hearing, had a specific allega-
tion been made. Pergament, above, 296 NLRB at 335.
Here, the same words constitute the unalleged viola-
tion and the violation alleged in the complaint. Re-
spondent denied that Ramos was a supervisor and also
presented essentially an alibi defense, eliciting testimony
from Ramos that he was somewhere else on January 11,
2008, the date he supposedly made the “trustworthy
source” and “good source” statements to Santiago and
Maldonado. Thus, Respondent’s defenses would not
change because the words were found violative under an
“impression of surveillance” theory rather than an inter-
rogation theory.
However, the Board applies somewhat different tests
in determining whether a statement constitutes an unlaw-
ful interrogation and whether it creates an unlawful im-
pression of surveillance. Therefore, I must consider
whether Respondent would have made different legal
arguments if the complaint had alleged that Ramos'
statement violated the Act by creating an unlawful im-
pression of surveillance.
In analyzing allegations of unlawful interrogation, the
Board asks whether, “under all circumstances, the inter-
rogation reasonably tends to restrain or interfere with the
employees in the exercise of rights guaranteed by the
Act.” See Rossmore House, 269 NLRB 1176 (1984).
The Board’s test for determining whether an employer
has created an impression of surveillance is whether em-
ployees would reasonably assume from the statement
that their union activities had been placed under surveil-
lance. Park ‘N Fly, Inc., above at 133, citing Register
Guard, 344 NLRB 1142, 1145 (2005), Flexsteel Indus-
tries, 311 NLRB 257 (1993).
These tests appear to be quite similar. In both, the
Board applies an objective standard to determine whether
the words in question reasonably would chill the exercise
of Section 7 rights. However, the Board has established
a separate framework, under Rossmore House, to take
into account how the circumstances surrounding the in-
terrogation affected its coercive impact. The Board con-
siders whether there is a history of employer hostility and
discrimination, the nature of the information sought, the
identity of the questioner, the place and method of inter-
rogation, and the truthfulness of the questioned employ-
ee’s reply. The Board does not apply this framework to
impression of surveillance allegations.
If this case involved the exact opposite situation, that
is, if the violation not alleged in the complaint concerned
unlawful interrogation, Respondent might argue that it
had not been placed on notice of the need to argue that
the Government’s evidence failed to satisfy the
Rossmore House criteria. However, the unalleged viola-
tion does not require evaluation under the Rossmore
House standards.
In Dilling Mechanical Contractors, 348 NLRB 98, 105
(2006), the Board, citing Piqua Steel Co., 329 NLRB 704
fn. 4 (1999), held that the presentation of evidence asso-
ciated with an alleged claim was insufficient to put the
parties on notice that another unalleged claim (for which
that evidence might also be probative) is being litigated,
especially when the two claims relied on different theo-
ries of liability. However, I conclude that the facts in
Dilling Mechanical Contractors distinguish it from the
present case.
In Dilling Mechanical Contractors, the judge had
found that the respondent violated Section 8(a)(3) by
failing to hire certain job applicants, even though the
complaint did not allege such a violation. The General
Counsel had presented evidence about this matter be-
cause the complaint had alleged that the respondent had
breached a non-Board settlement agreement and thereby
violated Section 8(a)(1). Because the Government had a
LM WASTE SERVICE, CORP. 2241
reason to present this evidence to establish the 8(a)(1)
violation, doing so would not signify to the respondent
that it had to defend against an 8(a)(3) refusal-to-hire
allegation.
Moreover, the defenses relevant to the unalleged
8(a)(3) violation went beyond what would be relevant to
the 8(a)(1) allegation. The respondent, not knowing that
it needed to present these additional defenses, suffered
prejudice. Therefore, the matter could not be considered
fully and fairly litigated.
In the present case, the General Counsel’s evidence
clearly placed Respondent on notice of the words that
allegedly violated Section 8(a)(1). Respondent defended
by asserting that Ramos had not spoken those words and
by denying his supervisory status. Alleging that these
words created an impression of surveillance would not
require Respondent to present any evidence or argument
that would not be relevant to the allegation that the words
constituted unlawful interrogation. Therefore, distin-
guishing Dilling Mechanical Contractors, I conclude that
the issue was fully and fairly litigated. See Airborne
Freight Corp., above, 343 NLRB at 581; Park ‘N Fly,
Inc., above, 349 NLRB at 133.
Accordingly, I recommend that the Board find that
Ramos’ statements to Santiago and Maldonado, dis-
cussed above, created an unlawful impression of surveil-
lance in violation of Section 8(a)(1) of the Act. As al-
ready noted, I do not find that the conduct alleged in
complaint paragraph 7(a) constituted unlawful interroga-
tion or solicitation. Additionally, for the reasons dis-
cussed above, I conclude that I erred in recommending
the dismissal of complaint paragraph 7(b). Instead, I rec-
ommend that the Board find the violation alleged.
Allegations of Unlawful Conduct By
Supervisor Santiago
In its remand Order, the Board directed me to “make
an express finding as to the credibility of [employee Ra-
fael] Cruz’s testimony, and, if credited, whether [super-
visor José] Santiago violated Section 8(a)(1) by stating
that employees were discharged because of their union
activities.”
To comply fully with the Board’s instruction to “make
an express finding as to the credibility of Cruz’s testimo-
ny,” I first must consider how the credibility determina-
tion in the initial decision was insufficient. The initial
decision discussed Cruz’ credibility for three para-
graphs––noting both some concerns and that his testimo-
ny was uncontradicted––and then concluded as follow:

My doubts about Cruz’ testimony, however, do
not outweigh the fact that it is uncontradicted. Ac-
cordingly, I credit it.

LM Waste Service Corp., JD(ATL)–13–09, slip op. at
10, lines 5–6.
The remand Order did not indicate in what way the
Board concluded that this discussion was not an “express
finding” as to the credibility of Cruz’ testimony or state
how the Board wished me to expand on it. Perhaps the
Board wishes me to explain why the uncontradicted na-
ture of the testimony outweighed, in my mind, my doubts
about it.
The Board has, on occasion, rejected uncontradicted
testimony. See Sioux City Foundry Co., 323 NLRB 1071
(1997). In this instance, however, I believe that doing so
would be inappropriate.
During the hearing, Respondent stipulated that José
Santiago was its supervisor within the meaning of Sec-
tion 2(11) of the Act and its agent within the meaning of
Section 2(13) of the Act. In the absence of evidence to
the contrary, it may be presumed that Respondent has
control over its own supervisors and can direct them to
appear at the hearing. Moreover, Respondent has the
power to subpoena witnesses, including its supervisors.
Therefore, in the absence of a showing of unavailability,
it is logical to infer from Respondent's failure to call San-
tiago that his testimony would have corroborated rather
than contradicted Cruz’ testimony. DMI Distribution of
Delaware, 334 NLRB 409, 412 (2001).
Whether to draw such an inference lies within the
judge's sound discretion. Tom Rice Buick, Pontiac &
GMC Truck, 334 NLRB 785, 786 (2001). The present
record does not suggest that Supervisor Santiago, had he
taken the witness stand, would have contradicted Cruz’
testimony. Accordingly, I conclude that it is appropriate
to credit Cruz’ testimony.
In the event I credited Cruz’ testimony, which I did,
the Board’s remand Order directed me to make a finding
as to “whether [supervisor José] Santiago violated Sec-
tion 8(a)(1) by stating that employees were discharged
because of their union activities.” The initial decision, in
paragraph 3 of its Conclusions of Law, stated as follows:

3. Respondent violated Section 8(a)(1) of the
Act by the following conduct: Interrogating em-
ployees about their Union activities and soliciting
their support to get rid of the Union; creating the im-
pression among its employees that their union activi-
ties were under surveillance; informing employees
that they were discharged because of their activities
on behalf of the Union; and discharging its employ-
ees Rafael Maldonado, Rafael Cruz, Felipe Espada,
and Reinaldo Santiago.

LM Waste Service, Corp., JD(ATL)–13–09, slip op. at
27, lines 22–27 (emphasis added). The italicized portion
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2242
pertains both to Supervisor Santiago's statement to Cruz
that the discharged employees had brought it upon them-
selves because they decided to unionize, alleged in com-
plaint paragraph 9(a), and also to the conduct alleged in
complaint paragraph 9(c), that about March 17, 2008, the
Respondent, by José Santiago, informed an employee
that Respondent had discharged another employee be-
cause of his union activities. In its remand Order, the
Board specifically indicated that this latter allegation is
not part of the remand.
My initial decision did not, in the section discussing
the violations alleged in complaint paragraph 9(a), in-
clude a specific finding that Supervisor Santiago’s Janu-
ary 15, 2008 statement to Cruz, that the discharged em-
ployees had brought it upon themselves because they
decided to unionize, violated Section 8(a)(1). Here, I
correct that error.
Crediting Cruz’ testimony, I find that on or about Jan-
uary 15, 2008, Supervisor José Santiago told Cruz that
Cruz and other discharged employees had brought it on
themselves because they had decided to unionize, which
is tantamount to saying that the Respondent had dis-
charged the employees because of their union activities.
Accordingly, I conclude that Supervisor Santiago did
inform an employee that the employees had been dis-
charged because of their activities on behalf of the Un-
ion, as alleged in complaint paragraph 9(a)(ii). It may be
noted that although Cruz had been discharged at the time
Supervisor Santiago made the statement, the discharge
was unlawful and did not terminate Cruz’ employee sta-
tus for purposes of the Act. Therefore, these statements
interfered with, coerced and restrained an employee in
the exercise of Section 7 rights.
In sum, I conclude that the Government has proven the
allegations raised in paragraph 9(a) of the complaint, and
that Respondent thereby violated Section 8(a)(1) of the
Act.
Allegations of Unlawful Discharge
In its Order, the Board remanded the allegations raised
in complaint paragraph 11 that Respondent violated Sec-
tion 8(a)(3) by discharging employees Maldonado, Cruz,
Espada, Santiago, and Cardona. The Board directed that
I assess whether my further analysis of the 8(a)(1) allega-
tions requires clarification or modification of my analysis
of the discharge allegations. Further, the Board instruct-
ed that, with respect to the discharge of Maldonado, I
should further “determine the credibility of Joel Cruz’s
testimony and whether that testimony, if credible, has an
impact on the analysis of the allegation that Maldonado’s
discharge violated Section 8(a)(3) of the Act.”
Effect of 8(a)(1) Allegations
The further analysis of the 8(a)(1) allegations, dis-
cussed above, does not affect my conclusion that Re-
spondent’s discharge of Rafael Maldonado, Rafael Cruz,
Felipe Espada, and Reinaldo Santiago violated Section
8(a)(3) and (1) of the Act. For the reasons stated below,
it also does not affect my conclusion that Respondent did
not violate the Act by causing the termination of em-
ployment of Marvin J. Cardona, an employee of DS Em-
ployment Agency, Inc., as had been alleged in complaint
paragraph 11(b).
Because of this further analysis, I concluded above that
my initial decision erred by recommending that the
Board dismiss the allegation raised by complaint para-
graph 7(b). Additionally, in this supplemental decision, I
have found specifically that Supervisor Santiago violated
the Act by telling an employee that he and other employ-
ees had been discharged because of their union activities,
as alleged in complaint paragraph 9(a)(ii). Thus, this fur-
ther analysis has increased the number of 8(a)(1) viola-
tions.
If anything, the addition of 8(a)(1) violations would
strengthen rather than weaken the General Counsel’s
case. Moreover, my conclusion that the statements al-
leged in complaint paragraph 7(a) should be considered
as creating an unlawful impression of surveillance, rather
than an unlawful interrogation and solicitation, does not
lessen the significance of these statements as evidence of
animus. Accordingly, I adhere to the conclusions in the
initial decision that Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Maldonado, Cruz, Es-
pada, and Santiago.
Discharges of Maldonado, Cruz, Espada,
and Santiago
In its remand Order, the Board directed me to consider
further whether Respondent had met its rebuttal burden
of demonstrating that it would have discharged Maldo-
nado even absent his union activities. This further analy-
sis does not affect my conclusion that Respondent also
violated the Act by discharging Cruz and Espada, but it
does affect my reasoning in reaching that conclusion. In
the original decision, I had found that the reasons Re-
spondent gave for discharging Santiago were pretextual.
Here, I conclude that Respondent’s asserted reasons for
discharging Maldonado, Cruz, and Espada also were
pretextual.
The Board’s remand Order noted that Maldonado’s
former helper, Joel Cruz Velasquez, testified that he saw
Maldonado make unauthorized trash pickups and collect
payment for this service and that Maldonado threatened
him with physical harm when he would not accept any of
LM WASTE SERVICE, CORP. 2243
the money. (For clarity, I will refer to Joel Cruz Ve-
lasquez as “Cruz Valasquez” to distinguish him from
Rafael Cruz Cruz, referred to above simply as “Cruz.”)
The remand Order directed that “the judge shall de-
termine the credibility” of Joel Cruz Valesquez’ testimo-
ny and “whether that testimony, if credible, has an im-
pact on the analysis of the allegation that Maldonado’s
discharge violated Section 8(a)(3) of the Act.”
Cruz Velasquez testified that from June 2006 until
June 2007, he worked as a helper on the truck driven by
Rafael Maldonado. From some time in June 2007 until
October 2007 he was on leave. When he returned to
work, he became a residential driver.
According to Cruz Velasquez, while he was working
as Maldonado’s helper, Maldonado would make him
pick up garbage cans “from clients that were not listed in
the route, while he would go inside the business of the
Pomales Market and get some money and put it in his
pocket. He would offer me some of it, but I always told
him that I never accept presents from people.”
Even though Cruz Velasquez stopped being Maldona-
do’s helper in June 2007, he did not tell management
about Maldonado’s conduct until January 2008. Cruz
Velasquez testified that “Maldonado kept me under a
threat. He wanted to keep Pomales Market and get some
money and put it me with my mouth shut. He had me
intimidated and to the point that, upon my talking out, he
would give me four blows wherever could grab me.”
Respondent discharged Maldonado. (The asserted rea-
sons for the discharge will be discussed below.) Cruz
Velasquez testified that after Maldonado’s discharge,
Maldonado telephoned him “threatening me, saying that
I had been the rat who talked and that he was going––
whenever he catched with me, he was going to give me
four blows.”
Cruz Velasquez took the witness stand after Maldona-
do, who was not recalled as a rebuttal witness. Cruz Ve-
lasquez’ testimony about Maldonado’s conduct is unre-
butted. However, I have some concerns about it which
lessen its probative value.
Cruz Velasquez stopped working with Maldonado in
June 2007 but did not report Maldonado’s activities to
management until January 2008. When asked about the
half-year delay, Cruz Velasquez explained that he “could
no longer take the humiliation and the threats.” That tes-
timony would be more plausible if Maldonado and Cruz
Velasquez had been working together, but it makes little
sense considering that the two had different assignments.
After the change in Cruz Velasquez’ assignment, Mal-
donado had little opportunity to threaten him, but even
more significantly, Maldonado would have had scant
motivation to do so. Cruz Velasquez no longer was in a
position to observe Maldonado’s activities, so Maldona-
do would have had no immediate reason to threaten him
into silence.
Arguably, Maldonado might have continued to seek
out Cruz Velasquez and might have made threats to keep
Cruz Velasquez silent about the conduct he had observed
before June 2007. However, when asked on cross-
examination, Cruz Velasquez did not identify even a
single specific instance when Maldonado made such a
threat before his discharge. He only recounted the Janu-
ary 14, 2008 telephone conversation which took place
after Maldonado had been fired.
If Cruz Velasquez really “could no longer take the
humiliation and the threats,” he should have been able to
point to at least one specific occasion, after June 2007
but before Maldonado’s discharge, when Maldonado
humiliated or threatened him. However, Cruz Velasquez
did not. The generality of Cruz Velasquez’ testimony
may well mask blatant exaggeration. Accordingly, I give
little weight to his testimony, even though it is uncontra-
dicted.
The Board has established a framework for evaluating
discharges in which more than one motive prompted the
decision to terminate employment. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Under this framework,
the General Counsel bears the burden of establishing
certain elements by a preponderance of the evidence. If
the Government proves these elements, the burden of
proceeding shifts to the respondent to show that it would
have taken the same action even in the absence of pro-
tected activity.1

1 In fn. 3 of the remand Order, the Board stated, “We note that the
judge described the General Counsel’s initial burden in terms of four
evidentiary elements, rather than the Board’s traditional description of
three elements: union or other protected activity by the employee, em-
ployer knowledge of that activity, and antiunion animus on the part of
the employer.”
However, the four-element framework in my initial decision mirrors,
essentially verbatim, the Board's language in American Garden Man-
agement Co., 338 NLRB 644, 645 (2002), which in turn cites Tracker
Marine, 337 NLRB 644, 646 (2002). (The language in my initial deci-
sion differs from that in American Garden Management Co. in two
ways: The word “government” sometimes is used instead of “General
Counsel,” and my initial decision simply refers to a “link” rather than
a “motivational link.”)
See also Mid-Mountain Foods, 332 NLRB 229 fn. 1 (2000), in
which the judge followed the same four-element framework used in the
initial decision herein. In a footnote, the Board stated, in part, as fol-
lows: “The General Counsel excepts to the manner in which the judge
articulated the burden borne by the General Counsel in cases involving
alleged violations of Sec. 8(a)(3) of the Act. We believe that the
judge’s formulation does not depart substantively from Board doctrine.
In any event, we have reviewed these matters under the standard articu-
lated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2244
The initial decision concluded that, with respect to
Maldonado’s discharge, the General Counsel had estab-
lished the initial elements, shifting the burden of pro-
ceeding to Respondent. Nothing here changes that con-
clusion. If my assessment of Cruz Velasquez’ credibility
has any effect, it will concern whether Respondent has
met its rebuttal burden.
Although I give little weight to Cruz Velasquez’ testi-
mony, I do not doubt that, in January 2008, he made
statements to management about Maldonado similar to
his testimony at the hearing. In other words, he told
management that Maldonado had picked up trash from
businesses that were not Respondent’s customers, had
received money, presumably for the pickups, and that he
had threatened Cruz Velasquez.
In the initial decision, I concluded that “Respondent
has not presented evidence showing that it has dis-
charged other employees in circumstances similar to
those in Maldonado’s case.” LM Waste Service Corp.,
JD(ATL)–13–09, slip op. at 15, lines 34–35. A second
evaluation of the evidence does not change my conclu-
sion that Respondent has not met its rebuttal burden, but
I reach that conclusion along a somewhat different path.
The initial decision concluded that Respondent's dis-
charge of Reinaldo Santiago was 20 pretextual. Further
evaluation of the evidence now causes me to reach the
same conclusion with respect to the discharges of Mal-
donado, Cruz, and Espada.
The discharge letter which Respondent gave to Maldo-
nado did not state any reason for the termination, so it is
not helpful in determining what the decision makers con-
sidered. However, the three supervisors who participated
in the discharge decision testified about it. They were
Human Resources Manager Maria Montalvo, General
Operations Manager Armando Ramos, and Residential
Routes Supervisor Julio Torres Torres.
Human Resources Manager Montalvo testified that
Respondent discharged Maldonado in 30 part because
“some audits were carried out” regarding Maldonado’s

Supreme Court in NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983), and we reach the same results reached by
the judge.” The Board’s subsequent use of the four-element test in
American Garden Management Co., above, suggests that the Board
endorsed this framework or at least found it acceptable.
If the Board prefers a three-element test I will, of course, use it.
However, I believe the four-element test the Board applied in American
Garden Management Co. provides a more precise measure. It includes
the requirement that the General Counsel prove that there has been an
“adverse employment action.” Sometimes, that fact is in dispute. See
Leiser Construction, LLC, 349 NLRB 413, 415–416 (2007), citing
Nations Rent, Inc., 342 NLRB 179 (2004). Also, reference to a “link”
rather than a “showing of antiunion animus” recognizes that animus
manifested by a supervisor not involved in the discipline decision may
not be probative of the employer’s motivation in making that decision.
route that that “some deficiencies” were found. Montal-
vo further testified that Maldonado “was administering,
for his own profit, the pickup service of a person that was
not one of LM’s clients.” However, Montalvo made no
mention of Maldonado threatening Cruz Velasquez.
General Operations Manager Ramos also participated
in the discharge decision. His testimony suggested that
Maldonado’s threat to Cruz Velasquez was a significant,
and perhaps decisive, factor in the decision to terminate
Maldonado’s employment: “We cannot allow to have an
employee with a high risk against his safety and health,
an employee that feels intimidated. And, on the other
hand, it’s a company policy and you can find it in the
employees' manual, that that sort of irregularity is to be
sanctioned at the first of those irregularities.”
Like Montalvo, but unlike Ramos, the third supervisor
involved in the decision to discharge Maldonado, Julio
Torres, did not refer to the threat when he testified. If the
managers who decided to discharge Maldonado had
based their decision on his supposed threat to Cruz Ve-
lasquez, almost certainly Human Resources Director
Montalvo and Supervisor Torres would have mentioned
it in their testimony. Workplace safety is highly im-
portant and a threat is so dramatic it likely would be re-
membered. The disparity between the reasons offered by
Montalvo and Torres, on the one hand, and Ramos, on
the other, suggests pretext.
In addition to the differences in testimony regarding
the reason for the discharge, other evidence persuades me
that the asserted reasons were pretextual. Although Re-
spondent’s witnesses denied knowing about the union
organizing campaign at the time of this decision, I have
not credited that testimony.
The initial decision found that on January 11, 2008,
Ramos told employee Reinaldo Santiago Rodriguez that
he had received information from a “trustworthy source”
that the employee was helping with the union organizing
effort. That same day, Ramos made a similar statement
to Maldonado. Three days later, Respondent discharged
both of these employees.
The timing of the discharge decision, so soon after Re-
spondent revealed both its knowledge that specific em-
ployees were involved in a union organizing effort and
its hostility to that effort, strongly suggests a connection.
Respondent manifested this hostility through the coercive
statements of its manager, Ramos, who also participated
in the discharge decision.
Ramos testified that one reason they decided to dis-
charge Maldonado concerned threats made to Cruz Ve-
lasquez. However, I have discredited Ramos’ testimony
and have found that he was not telling the truth when he
denied having knowledge of the union organizing cam-
LM WASTE SERVICE, CORP. 2245
paign on January 11, 2008. Likewise, I conclude that he
lacked candor when he testified that the decision to dis-
charge Maldonado rested, in part, on the belief that Mal-
donado had threatened Cruz Valasquez. Because Ramos
offered a specious reason, I infer that the real reason was
unlawful.
Stated another way, the untrue reason was pretextual.
A finding of pretext defeats any attempt by the Respond-
ent to show that it would have discharged the discrimi-
natees absent their union activities. Rood Trucking Co.,
342 NLRB 895, 898 (2004), citing Golden State Foods
Corp., 340 NLRB 382 (2003). Accordingly, Respondent
has not met its rebuttal burden of showing that it would
have discharged Maldonado even in the absence of pro-
tected activities.
Respondent discharged Cruz and Espada the same day
it terminated the employment of Santiago and Maldona-
do. The initial decision discussed the reasons Respond-
ent gave to discharging these two employees and why I
concluded that Respondent had failed to meet its rebuttal
burden. Were I again to examine these asserted reasons
in light of the credited evidence, I would adhere to my
original determination that Respondent had not rebutted
the General Counsel’s case. However, in view of the
timing of these discharges, and for reasons similar to
those discussed above in the case of Maldonado’s termi-
nation, I now conclude that Respondent’s ostensible rea-
sons for firing Cruz and Espada were pretextual as well.
As discussed above, a finding of pretext results in the
conclusion that Respondent has not carried its rebuttal
burden.
In the case of Rafael Cruz, I also considered it signifi-
cant that Respondent had tolerated and accommodated
this employee’s lack of a “Category 8” commercial driv-
er’s license for some time. Only after Respondent
learned of Cruz’ union activity did the absence of this
license become, supposedly, so important that it necessi-
tated his prompt discharge. Moreover, the day after
Cruz’ termination, the person who had been his immedi-
ate supervisor told him that union activities had been the
reason Respondent discharged Cruz and the other three
employees who had been terminated at the same time.
Considering these circumstances, I conclude that Re-
spondent’s asserted reasons for Cruz’ discharge were
pretextual.
Similar reasons apply to Respondent’s discharge of Fe-
lipe Espada. When the Department of Transportation
and Public Works suspended Spade’s “Category 6” driv-
er’s license, Respondent assigned him to work as a help-
er rather than as a driver. Respondent accommodated
Espada until the union organizing effort. I conclude that
Respondent’s asserted reasons for Spade’s discharge
were pretextual.
Discharge of Marvin J. Cardona
The Board’s remand Order instructed me to consider
whether my further analysis of the 8(a)(1) allegations
requires me to clarify or modify my analysis of the alle-
gations that Respondent unlawfully discharged Maldo-
nado, Cruz, Espada, Santiago, and Cardona. In the ini-
tial decision, I had concluded that the General Counsel
had established the required Wright Line elements with
respect to Marvin J. Cardona’s discharge, thus shifting
the burden of proceeding to the Respondent, but that the
Respondent had met its rebuttal burden. The analysis
above does not change this conclusion.
Cardona worked for DS Employment Agency. Com-
plaint paragraph 11(b) alleged that Respondent had
caused the termination of Cardona’s employment with
this agency on about March 17, 2008, which was 2
months after Respondent had discharged Maldonado,
Cruz, Espada, and Santiago on the same day. In the case
of these latter four employees, not only were the dis-
charges simultaneous, they also occurred just 3 days after
Respondent had revealed its knowledge of, and hostility
to, the union organizing effort.
Unlike the other four alleged discriminatees, all of
whom were discharged on the same day, Cardona’s dis-
charge stands alone and somewhat distant in time. Car-
dona credibly testified that some time in January 2008,
Supervisor Santiago told him that the Respondent had
discharged Maldonado, Espada, and two other employees
and identified Maldonado as responsible for the union
organizing campaign. Santiago also asked Cardona if he
had attended union meetings, which Cardona denied.
Cardona had not engaged in union activity. However,
after Cardona’s discharge, Supervisor Santiago told him
that he had been fired “because you were participating in
the Teamsters Union.” Based on Cardona’s credited
testimony, I concluded that Supervisor Santiago’s state-
ment satisfied both the Wright Line requirement of em-
ployer knowledge and the requirement that the Govern-
ment must establish a link between the protected activity
(or in this case, Respondent’s belief that Cardona had
engaged in protected activity) and the discharge.
Credited evidence of animus does not compel the con-
clusion that an employer’s asserted reason for a dis-
charge was pretextual. Indeed, if evidence of animus
automatically resulted in a finding of pretext, then an
employer would have no opportunity to rebut the General
Counsel’s case. Considering that a finding of pretext
precludes an employer from raising a defense, making
such a finding is a consequential matter.
Persuasive evidence––the timing of the other four dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2246
charges, which took place on the same date and soon
after Respondent manifested its hostility to the union
organizing effort, and my conclusion that Ramos was not
telling the truth about the reasons for Maldonado’s ter-
mination––convinced me that Respondent’s asserted
reasons for discharging Maldonado, Cruz, Espada, and
Santiago were pretextual. Similar circumstances did not
exist in the case of Cardona’s discharge. Accordingly, I
conclude that a finding of pretext is unwarranted and that
Respondent’s rebuttal evidence should be considered.
Further, I conclude, for the reasons explained in the ini-
tial decision, that Respondent met its rebuttal burden.
Therefore, I continue to recommend that the Board dis-
miss the allegation that Respondent, by causing the dis-
charge of Cardona, violated the Act.
Although the Board’s remand Order did not include all
issues decided in the original decision, to avoid the pos-
sible confusion that might result from having to refer to
two separate documents, the conclusions of law below
will repeat the conclusions of law set forth in the initial
decision, modified as necessary by this supplemental
decision. A similar practice will be followed with re-
spect to the recommended Order. The Board’s remand
Order did not direct me to include a proposed remedy in
the supplemental decision. I have modified the proposed
notice to employees to comport with the findings herein.
CONCLUSIONS OF LAW
1. The Respondent, LM Waste Service, Corp., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Union de Tronquistas de Puerto Rico, Local 901,
IBT is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
the following conduct: Creating the impression among
its employees that their union activities were under sur-
veillance; informing employees that they were dis-
charged because of their activities on behalf of the Un-
ion; and discharging its employees Rafael Maldonado,
Rafael Cruz, Felipe Espada, and Reinaldo Santiago.
4. Respondent violated Section 8(a)(3) of the Act by
discharging its employees Rafael Maldonado, Rafael
Cruz, Felipe Espada, and Reinaldo Santiago.
5. The unfair labor practices described above are un-
fair labor practices affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
6. Respondent did not violate the Act in any other way
alleged in the complaint.
[Recommended Order omitted from publication.]