Trash Removers, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1981

257 N.L.R.B. 945 (N.L.R.B. 1981)

TRASH REMOVERS, INC.
Trash Removers, Inc. and General Teamsters Local
Union 326 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 4-CA-1 1027
August 24, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 1, 1981, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Trash Remov-
ers, Inc., New Castle, Delaware, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The General Counsel and the Respondent have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950). enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: A hear-
ing in this proceeding was held on January 5 and 6,
1981, in Wilmington, Delaware, on complaint of the
General Counsel of the National Labor Relations Board
against Trash Removers, Inc., herein called the Respond-
ent or the Company. The complaint was issued on June
27, 1980, upon a charge filed on April 22, 1980, by Gen-
eral Teamsters Local Union 326 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Teamsters
Local 326 or the Union. The issues presented are wheth-
257 NLRB No. 139
er the Respondent in fact committed a number of viola-
tions of Section 8(a)(1) of the National Labor Relations
Act, as amended. Briefs were filed after the close of the
hearing by the General Counsel and the Respondent.
Upon the entire record, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Trash Removers, Inc., a Delaware corporation, is en-
gaged in the business of commercial and industrial trash
removal at its New Castle, Delaware, location. During
the year preceding issuance of the complaint, in the
course of its operations at this location the Respondent
performed services valued in excess of $50,000 for firms
each of which annually receives more than $50,000 for
selling goods directly to points outside the State of Dela-
ware. I find that the Respondent is engaged in commerce
within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that General Teamsters Local Union 326 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In a 3-day period-March 26-28, 1980-13 of the ap-
proximately 20 production and maintenance employees
of the Respondent signed regular authorization cards for
representation by Teamsters Local 326. On April 7 the
Union filed a petition with the Board seeking an election
in that unit. Within a week after the employees had
signed the cards a number of them put their signatures to
a statement which said that they no longer wished to be
represented by the Union. On April 22 the Union filed
the charge in this case, alleging that the Respondent had
engaged in illegally coercive conduct against its employ-
ees upon learning of their prounion activities.
The complaint lists a number of acts, all allegedly
committed by Frank Piluso, the Respondent's general
manager, as violations of the statute: Interrogations,
threats of reprisals, solicitation of grievances, etc. The
only section of the statute said to have been violated is
Section 8(a)(1). There is much repetitive language in the
complaint, creating an artificial picture of multiple viola-
tions where in fact the same incidents, or phrases, are
merely restated. The complaint also speaks of employees'
having been told that they were discharged because of
their union activity, but there is no contention, in the
complaint or otherwise, of any violations of Section
8(a)(3). At the hearing the General Counsel sometimes
said that an employee was fired with an illegal motive,
and sometimes said that he was not making that conten-
tion.
As in most cases of this kind, there is much dispute in
the testimony as to exactly what the manager said, or
did, during the critical period in question-Piluso denied
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much of what the General Counsel's witnesses attributed
to him, and employee witnesses gave conflicting testimo-
ny among themselves and even changed their individual
stories as they went from direct examination to cross-ex-
amination. However, the real issue of this case goes to
something else. The complaint alleges that the Union in
fact represented a majority of the employees in an appro-
priate unit when the manager took steps to put a stop to
the union activities. It does not allege that the Union de-
manded bargaining rights, that it was refused recogni-
tion, or that there was any violation of Section 8(a)(5).
Nevertheless, the complaint requests, to remedy the
8(a)(1) violations that were committed, that the Respond-
ent now be ordered to bargain with the Union upon re-
quest.
The Respondent denies the commission of any unfair
labor practices. It also disputes the appropriateness of the
bargaining unit as defined by the General Counsel, rais-
ing issues as to its correct composition, and disputes the
asserted majority representative status of the Union.
This is essentially a Gissel type case.' The primary
issue is whether the Company committed such egregious
and outrageous unfair labor practices that it must be
found that a fair election can no longer take place and
that an immediate order to bargain is warranted even
without an election among the employees.
B. The Evidence-Analysis
As will be detailed below, I find that Manager Piluso
did commit a number of violations of Section 8(a)(1) in
his reaction to the employees' union activities, but I also
find, upon evaluation of the record in its entirety, that
the unfair labor practices in this case are not of such a
nature that it necessarily follows that there cannot be a
perfectly proper Board election, after the posting of the
usual notices, if the Union cares to pursue the representa-
tion proceeding. In the circumstances, whether the
Union in fact ever represented a majority in an appropri-
ate bargaining unit is of no moment. That question be-
comes academic when no affirmative bargaining order is
involved. Nevertheless, in the interests of clarity, I shall
forthwith determine the Union's status.
C. Majority Status
The parties stipulated that during the day on March
31-i.e., before evening-there were 19 rank-and-file
production and maintenance employees working for the
Respondent. There is a dispute as to four of these.
Peter Madic and Robert Gardner: Madic is a brother of
Mr. Piluso's wife, and Gardner is the husband of Mrs.
Piluso's sister. The Company would exclude these two
men solely on the ground that they are related to the
general manager. I deem the argument without merit and
find both of these men to be properly counted in the
unit. The basic theory underlying those decisions in
which the Board has excluded relatives of the boss is
that they are shown, by the record, to be aligned with
management, as distinguished from being antimanage-
ment or prounion. That is why it is always the union that
requests their exclusion. Here, there is not a scintilla of
' N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
evidence indicating either exercise of managerial authori-
ty by these two men, or such treatment of them as to
give rise to a presumption that they would be prejudiced
against the Union. Indeed, the record shows exactly the
opposite. Madic and Gardner were among the more
active protagonists in favor of the Union. If the record
clearly shows anything it is that they were absolutely an-
timanagement.
Lawrence Horwath: The General Counsel would ex-
clude Horwath on the ground that he was a clerical em-
ployee at the end of March. The Union adds the argu-
ment that he was also a supervisor at that time. Horwath
worked as a regular truckdriver when he was hired in
1976. He continued so working until January 1980 when
he became disabled and went on leave for a month. He
returned late in February to do only "light-duty," work,
as he testified without contradiction, because of his con-
tinuing illness. On April 28 he had to leave work again
and stayed out sick until September when he returned to
his regular truckdriving chores. During March and April
he did all kinds of things-picked up and delivered
refuse containers, answered the phone, and ran all kinds
of necessary errands-and reported for work as early in
the morning as did all the other rank-and-file employees.
The exclusion contention rests primarily upon the testi-
mony of Madic, whose story is greatly colored by his
obvious distaste for Horwath. Among other things,
Madic said that Horwath occasionally did dispatching,
like the regular dispatcher, June Williams: "I don't think
there was any difference. I think he acts just as cute as
she does . . . just as snotty; same type of attitude."
During the interim period when he performed light-duty
work Horwath did a route analysis job. This involved
riding on a truck along a scheduled route with a regular
driver recording the time and location of all stops. It is a
function that is performed every 6 months or so. With-
out need to go into details, the evidence shows clearly
that others also did this work at times, including other
regular drivers who were named on the record. It is un-
disputed that other than the foregoing Horwath never
exercised any supervisory or managerial authority at all.
I find that he is to be included in the unit count.
Lowell Schoonmaker: This is the only certified welder
in the welding shop. Others sometimes work there doing
sanding or painting as helpers to Schoonmaker, who
earns $2 more per hour than the rest because of his spe-
cial expertise. Again, it is admitted that he does not have,
and never had, any authority to hire or fire anyone, to
schedule work, to issue reprimands, or to in any manner
exercise supervisory authority. I find, over the objections
of the General Counsel, that Schoonmaker, too, is to be
included in the unit count.
This means that 13 out of 19 employees had authorized
the Union to represent them by the morning of March
31. The Company would include, over the objections of
the other parties, four other employees. Chuck Williams
first worked for the Respondent starting at 11 p.m. on
March 31. L. S. Netta, John Netta, and Duane Robertson
first started working for the Respondent the next day.
Were I to add these four, the Union would still be
shown to have had a majority during the day of March
946
TRASH REMOVERS, INC.
31-i.e., 13 cards out of a total of 23-but I find that
these 4 men ought to be excluded insofar as this case is
concerned. Other than Piluso's unsupported statement
that he had arranged before that time to hire these men,
there is no probative evidence to that effect. None of
them appeared at the hearing. Given Piluso's antiunion
activities of March 31, as related below, before any of
these four men started to work, I cannot deem his self-
serving, conclusionary statements on this point convinc-
ing.
I find that on March 31 the Union was authorized to
act as their bargaining agent by a majority of the em-
ployees in the appropriate bargaining unit.
D. The (a)(l) Violations
Madic was among the two or three employees who
started the union campaign in the first place, and, as
stated, all 13 cards were signed by March 28. In the
afternoon of March 31 Piluso posted a notice calling em-
ployees to a meeting in the conference room that eve-
ning. It seems that most of the employees were there. At
the hearing Piluso said that he took this action because
he had heard "rumors" of union activity. The first thing
he did, in facing the employees that evening, was write
in large letters on a blackboard the words, "Union-
Pete-Doc." "Pete" was Madic, and "Doc" was a nick-
name for Gardner. My first finding, of course, is that
Piluso called that meeting for the precise purpose of con-
fronting the employees with his reaction to their union
activities. Whatever he said or did at that meeting must
therefore be viewed as intended to pass a very pointed
message. With this his first act that night as a starter, the
attempted explanation of the meeting, both during cross-
examination of employee witnesses and in the Company's
brief, as no more than a recurrence of an old custom of
listening to the gripes of employees once a month fails.
Piluso also said later in his testimony that he had no idea
that evening that any one at all had signed cards in favor
of the Union, and that he only learned about that the
next day. The simple fact that he so dramatically pin-
pointed two principal activists by name effectively con-
tradicts that belated assertion. His statement at the hear-
ing that he picked these two names out of the many for
such emphasis only "to clear my family name" is irrele-
vant to the fact that he revealed to all his personal
knowledge as to who the main unioneers were.
That evening meeting on March 31 lasted about an
hour and a half; there was continuing argument, much of
it in antagonistic tone, between Piluso and several em-
ployees over a number of conditions of employment. Of
the employees then present, three testified in support of
the complaint and four on behalf of the Respondent. As
was to be expected, much of the testimony is couched in
conclusionary terms, impressions received, and para-
phrasing of words spoken by others. However, one thing
is clear, both because of the total record and because
Piluso did not really deny it, and that is that Piluso asked
the employees to speak up as to what had caused the
union movement to come about at all.
Madic's beginning testimony was that, as soon as
Piluso had written the two names on the blackboard, he
asked the group, "Is that about right . . . what do you
think a union can do for you that I can't?" As Bacot, the
next employee witness, recalled it, Piluso asked, "[I]s
that about it?" When Bacot said that it was he and
Madic who had "started it," the manager continued
with, "[W]hat can a union do for you that I can't."
At this point a long discussion took place between the
manager and the employees about a number of aspects of
the conditions of employment with which the employees
were dissatisfied and which they wanted changed.
Before considering the testimony as to the general dis-
cussion, I find that, by telling the employees that he
knew who two of the union ringleaders were, by asking,
obliquely, who the others were, and by soliciting their
grievances at that moment for the purpose of attempting
to dissuade the entire group from their prounion resolve,
Piluso, for the Respondent, violated Section 8(a)(l) of
the Act. The manager did not deny asking the assembly
whether he had correctly identified the ringleaders. This
was but an indirect way of asking them whether there
were others personally involved, and, pursuant to the
manager's request, Bacot answered him with more pre-
cise information. It was illegal interrogation pure and
simple. Keller Manufacturing Company, Inc., 237 NLRB
712, 731 (1978). It also passed on a direct message of sur-
veillance. Further, of course, when Piluso invited all to
voice the grievances which had led them to join the
Union, he was without question getting the idea across
that he would do what he could to satisfy their demands,
and thereby achieve his purpose of killing off the union
campaign.
Among the improvements the employees asked for
were: (I) job security; (2) more vacation time; (3) better
holiday pay; (4) no more mandatory hours; (5) a dental
plan; (6) safety equipment; (7) replacement of the existing
incentive system of pay with regular hourly rates assur-
ing them of a raise from $6 an hour to $8 an hour; etc.
Piluso responded during the hour and a half of talk on
these subjects, but there is a serious conflict in testimony
as to what he said. Before looking closely at the diversi-
fied testimony of what was said during the general meet-
ing in the conference room, however, it is important to
clarify a very confusing element, thrown into the case by
the General Counsel, about other things that happened
that same day. As already stated, there is no 8(aX3) alle-
gation anywhere in the complaint. Yet the General
Counsel offered evidence now said to prove that two
employees were illegally discharged on March 31-
Bacot and Estep. I do not find that the so-called evi-
dence of unlawful intent in Piluso's treatment of these
two men suffices to satisfy the affirmative burden of
proof resting upon the General Counsel if he really in-
tended to prove prohibited discharges.2 If anything, the
manager's ultimate attitude towards them tends to lessen
the effect of what violations of Section 8(aX1) he did
commit.
2 At the hearing the General Counsel equivocated as to exactly what
his contention was. First he said that the illegal act with respect to Bacot
was "[n]ot to lay him off." He followed this by contending "that the lay
off of that man was illegally motivated." Moreover, a major part of his
brief spells out a very comprehensive case against the Company alleging
that both Bacot and Estep were actually fired because of their union ac-
tivity.
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 31 was a Monday, the first day of the work-
week. In the afternoon at the end of their shifts, the
timecards of Bacot and Estep were removed from the
rack. At the hearing Piluso testified that he decided to
release Bacot because the driver whose departure had
occasioned Bacot's hiring in the first place had returned
and there was no longer a need for him. In fact, he told
Williams, the dispatcher, to so inform Bacot and, when
she did tell him at the end of his shift that he was "termi-
nated," he made no comment; he just sat and "finished
[his] coffee." When he was finished, he went to Piluso's
office to talk about it and the manager said that it was
because "we just don't have work for you." As to what
was said after that, Bacot and Piluso disagreed at the
hearing.
With respect to Estep, Piluso's contention is that he
had Estep's timecard removed because he had been hired
for a special delivery job which had almost been com-
pleted, and therefore he had to be laid off. Estep noticed
his card was missing from the rack after he had finished
for the day, but did nothing about it; he just went into
the group meeting as did all the rest. After the meeting
ended, Piluso spoke to these two men in his office but,
before reaching those encounters, it is necessary to men-
tion something else that was said on this subject during
the meeting in everybody's presence.
In the heated arguing as Piluso was accused of treating
the employees badly, Madic was the most vituperative
and outspoken. When Piluso at one point asked for "one
example of something bad that I have done to one of
you guys," Madic told his brother-in-law, "[Y]ou laid
this man right here off, Mr. Bacot. He hadn't done a
thing wrong to the company; he's a good worker, a
good driver, and I said, why did you lay him off." To
this the manager's answer was, "I want to talk to Mr.
Bacot after this meeting."
After the meeting Piluso met with Bacot in his office,
and, according to Piluso, "I told him I would forget the
fact that I did lay him off, that I wanted him to report to
work the next day." Asked why he did that, Piluso testi-
fied that it was because "I didn't want anybody feeling
that I laid him off because of the movement." Bacot
never left and never lost a moment's pay; he was still on
the job at the time of the hearing 10 months later.
Estep's story continues that when, during the group
meeting, he learned that Bacot had been fired, it oc-
curred to him that perhaps the reason that his card was
missing from the rack may have been because he, too,
was discharged, and that therefore "I went to Frank
[Piluso] . . . and asked him why my card was missing."
What this statement clearly shows is that up to that
moment, after the employee meeting had been conclud-
ed, Estep had never even for a moment thought that he
had been discharged. However, Madic testified that earli-
er, in the afternoon at or about 4 o'clock, he had gath-
ered some employees in a nearby bar to discuss their
problems because Bacot had told him that he and Estep
"had gotten laid off." The question is, if Estep had no
such idea, how could Bacot have had it? These witnesses
were not telling the truth at the hearing.
As in the case of Bacot, Estep, too, was told by Piluso
that he was being laid off, but in his case it was because
the manager understood that Estep was returning to his
regular job at General Motors. Further, before it was
over, again as with Bacot, Estep also was told that he
could stay if he wished, and he did, notwithstanding that
he went back to work full time at General Motors the
next morning. He continued to work for the Respondent
as a part-timer for 2 more weeks and then decided to
quit altogether.
Both Bacot and Estep quoted Piluso as having voiced
antiunion sentiments during their talks with him that day.
Piluso denied that there was any mention of the Union at
that time. All things considered, I believe him instead of
them.
According to Bacot, after Piluso told him that the
reason for the discharge was because there was no work
for him, he argued seniority and Piluso answered, "Se-
niority only counts in a union shop .... It's not a union
place and it's never going to be a union shop." As they
talked, still according to Bacot, he volunteered, "[I]f this
is about the card I signed, every driver in here signed
these cards." Piluso then asked, as Bacot would have it,
"[W]ho approached you to sign it," but Bacot refused to
say. In the end, still according to Bacot, Piluso told him,
"[W]ell, you're laid off... keep your nose clean and
we'll be calling you back in a couple of weeks."
Estep gave two versions of his talk with Piluso about
his missing card. The first was, "I went to Frank [Piluso]
. . . and asked why my card was missing." Later the
witness testified that Piluso said to him, "You were laid
off. . . that's what I want to talk to you about." Was it
he who started the conversation with the manager, or
was it the manager who called him to discuss his status
of the moment? On another, more significant point,
Estep's testimony changed still again. A group of em-
ployees had decided, before Piluso's talk to the group in
the conference room, to meet and discuss the union busi-
ness at Estep's house that night. Estep first testified that
Piluso said to him, "I understand you had a meeting set
for your house," and the employee answered, "Yes."
Later the witness said, "I just told him we planned on
having it at my house." One of the elements of the infer-
ence case urged by the prosecution is that Piluso knew
of the planned union meeting at Estep's house, and that
that was why he removed the man's card from the rack
and, indeed, even why he held the mass meeting of em-
ployees at that time. However, if Piluso knew about it,
why did Estep have to tell him it was set for his house
as his second version reads? This sort of change in testi-
mony does not enhance a witness' credibility.
Next, it is a fact that Bacot had been hired initially to
replace a driver who had left, that the driver had re-
turned before March 31, and that thereafter Bacot had
been assigned a variety of duties to keep him busy.
Indeed, after Piluso changed his mind and decided to let
him stay, Bacot was put "on a rotating shift, driving a
different route every day," in his own words. This state-
ment lends credence to the assertion that there was
really not enough work for him at the time.
It is also a fact that Estep had been hired for a particu-
lar job that had to be done and for which he had special
experience. Piluso's statement that the job was almost
948
TRASH REMOVERS, INC.
completed stands uncontradicted. More important is the
further fact that Estep was working for the Respondent
only while waiting to be recalled at General Motors.
Piluso testified that during the employee meeting there
was a telephone call for Estep, and that Estep stepped
out of room to take it. Later, when the two were talking
in the office, Estep said, still according to Piluso, "I sup-
pose you're wondering what that phone call was about,"
and, when the manager said that he thought it was the
driver's wife, Estep said, "I might be getting my job
back at General Motors." It was at this point, as Piluso
said, that he told Estep, "[T]hat's great, because I was
thinking about laying you off anyway." Estep denied this
part of Piluso's story, or having received any call during
the meeting. However, both witnesses agreed that the
phone rang while the two were talking; it was Estep's
union representative at General Motors, who told him to
report for duty at General Motors the next morning.
Estep also said the union agent "had been trying to get a
hold of me all day long," but that this was the first that
he heard of any possibility of going back to his regular
job.
The picture must be taken in the total context, includ-
ing all related factors, even on this question of credibil-
ity. If Piluso's purpose in laying Bacot off in the first
place was to intimidate the rest of the employees, the last
thing he would do, during the very meeting he called to
put that point across, would be to take Bacot back.
Indeed, the General Counsel could just as well argue
that, by reversing himself and extending a courtesy to
Bacot at the request of the employees, Piluso was giving
a benefit, a bribe to induce abandonment of the union
movement. On this record, this would be a better theory
of illegality. The very fact that the Company did not
harm Bacot at all serves more than anything else both to
defeat the allegation of wrongdoing and to credit the
manager's testimony. Moreover, for Piluso to testify, as
he did at the hearing, that the reason that he changed his
mind about Bacot was to offset any thought of union
animus in the minds of the employees was the most rea-
sonable and persuasive statement of all. The implied sug-
gestion that, by this statement the manager obliquely ad-
mitted illegal intent, is the purest circular reasoning.
The same reality applies to Estep. If Piluso had decid-
ed to get him out of the place just to weaken the Union's
strength, why would he favor Estep by letting him stay
on, as a personal courtesy, as long as he wished? When
Estep left 2 weeks later it was because he chose to go,
not because the Company ordered him out. It is a mixed-
up story that does not hold water. I make no finding of
illegality in anything the Respondent did with respect to
either Bacot or Estep.
We now revert to what happened during the employee
meeting in the evening of March 31. The testimony as to
what was said there must be appraised together with fur-
ther talks Piluso had with a number of employees during
the next workday and also in his home on the evening of
April 1. In the morning of April 1 Piluso called Thomas
Tucker in Illinois; Tucker is the employee relations man-
ager of Waste Management, the parent organization
which owns the Respondent. Tucker came to Piluso's
house in Wilmington where Piluso talked to him during
the day. Later, in the afternoon, Piluso invited a number
of employees to his home for a meeting; about nine went
there that evening where both Piluso and Tucker talked
with them. There is a relationship between what was dis-
cussed at each of the two evening meetings.
The principal witnesses for the General Counsel as to
the March 31 meeting were Madic, Bacot, and Estep.
Their testimony as to Piluso's words kept changing, was
often couched in conclusionary phrases, or was even in-
consistent among themselves. No useful purpose would
be served by detailing here everything they said--it was
so repetitive and vague on direct examination. It will be
the substance that governs. Some things are clear. (1)
Piluso did ask them to state their demands. Witness Brin-
ton, called by the Respondent itself, testified: "What was
said was that he [Piluso] thought that, you know, the
men should get together and you know decide what they
thought they wanted and they could talk about it." (2)
The manager said that he would leave the Company by
resigning if the union movement persisted. (3) There was
talk about a possible strike, and in connection with that
Piluso said that the Company would, in that event, find a
way of bringing strike replacements from other branches
of the parent company to keep Respondent's branch
going. (4) Piluso told everybody that with a union con-
tract in effect he would no longer be able to favor his
relatives, and ignore their misconduct or derelictions of
duties; that is, enforce the working rules uniformly as to
the total group while permitting employees like Madic
and Gardner to do as they pleased. Beyond this, there is
conflict.
Did Piluso threaten to fire employees because of their
union activity? Did he threaten to fire them if they
struck? Did he threaten to take away the benefits they
had in pure retaliation? Did he say the Respondent
would under no circumstances sign a union contract?
Did he promise them outright improvements in working
conditions? The burden of the testimony of most of the
prosecution's witnesses was to establish affirmative an-
swers to each of these questions. Piluso denied every one
of the conclusionary assertions. Considering all of the
testimony I do not think the record warrants the positive
findings against the Respondent which the complaint
seeks on these particular allegations.
On direct examination Madic quoted Piluso as saying,
"They can't afford $8 an hour, that they would shut
down the doors, shut the Company down .... If you
guys want to strike . . . you guys would never get your
jobs back. .... If the union came in, we would close the
doors." When another employee complained that the dis-
patcher, Williams, issued too many reprimands, Piluso
said, still according to Madic, that he would put a stop
to that and thereafter only he would consider issuing any
reprimands. As to the incentive system of payment, the
witness recalled Piluso's answering by saying that he
would discontinue that system for a month and try a
straight hourly pay in its place, and that, if at the end of
such a trial period it did not cost the Company more, he
would leave it that way, but, "We [he] would never
agree to a union contract." Piluso further stated, accord-
ing to Madic:
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[I]f the Union gets in here, you guys are going to
lose your uniforms, we're going to take away your
uniforms, we're going to take away your Blue
Cross, we're going to throw the pension right out
the door and he pointed toward the door and he
says, your uniforms, your Christmas bonus, the
Company's going to take away your Christmas
bonus and . . . that's all I remember from that.
The trouble with this is that Madic's testimony also
contains the following:
Q. Mr. Piluso said, did he not, that if the employ-
ees went on strike, that he would bring in drivers
from elsewhere to perform the duties?
A. That's correct.
Q. And therefore that the Company would con-
tinue to operate?
A. That's correct.
Q. He never said, did he, Mr. Madic, that he
would fire all of the employees?
A. No, he never said that.
Q. With respect to your request . . . that the em-
ployees receive $8 an hour as opposed to what they
were making . . . Mr. Piluso's response was that
the Company could not afford to pay that; is that
correct?
A. Correct.
Q. So he did not promise you a wage increase;
did he? At the March 31 meeting?
A.. .. no, he didn't promise a wage increase at
that meeting, no.
Q. . . . do you remember Frank Piluso saying to
you in connection with the wage discussion, that
corporate makes these decisions and he couldn't
promise you anything.?
A. Yeah, his hands were tied.
After Madic's repeated statements that the manager
made clear that he would close the doors-"We
wouldn't even look at a contract"-came the following:
Q. Again, with respect to the work rules, you do
then recall Mr. Piluso stating that if the union came
in with a contract, I'd have no alternative but to
follow all the rules strictly.
A. I remember that.
Q. He said the union would force him to follow
the rules and the contract?
A. No, he said that the union would document
everything.
Q. Document everything?
A. Everything would be documented by the
book.
Q. And . . . did he not state to you and Doc,
who I believe is Mr. Piluso's brother-in-law, that if
the union came in, he couldn't give you preferential
treatment anymore?
A. Not in those words.
Q. What did he say?
A. He said he wouldn't be able to protect his
family any more .... Exactly what he said-
Finally, Madic admitted the following:
Q. Do you ever recall Frank saying in response
to something you said that no, you don't have to
worry about your job, the people that were in-
volved in getting the Union together three or four
years ago didn't get fired and you won't get fired
either?
A. He did say that.
On direct examination Bacot quoted Piluso as saying:
If you want $8 an hour, this company cannot afford
it. They'll close the doors. Frank said, he says the
union comes in, your pension plan will go out the
door. He said we'll do away with the uniforms....
He says your Blue Cross will go, he says we'll cut
your hours down to 30, put two new trucks on the
road, and get rid of a couple of drivers. He said
we'll cut out the Christmas bonus.... He said that
would go.
At variance with such testimony of direct threats, this
witness then recalled Piluso's saying:
Everything will have to go by the book.
Q. Do you remember Mr. Piluso stating that if
the union came in, there would be a contract and
that he would have to go strictly by the rules?
A. Yes sir.
Q. Do you recall him stating that he couldn't
protect Doc and Pete anymore?
A. Family, yes, sir ....
Q. Do you remember him saying that he would
have to negotiate with the Union?
A. He said he didn't want somebody, meaning
the union, to come in and run his company. He
didn't like an outsider holding on to his company.
Q. Once again, do you recall him stating that he
would have to sit down and negotiate with the
Union?
A. Yes, sir.
Like the other witnesses before him Estep, too, started
by saying that Piluso told the men:
[T]here was no union going to come in here and tell
him how he was going to conduct or run his busi-
ness and that he would shut the place down, lock
the doors or whatever have you, and that if the
union got in there, there was no way that he could
no longer protect his family.
Then his testimony continued:
Q. Do you recall Mr. Piluso stating that, in re-
sponse to Mr. Madic's question about getting $10 an
hour and more benefit[s], that the Company must
take a profit in order to operate?
A. Every company would have to; yes, every
company would have to make a profit.
Q. And that he said, if we don't make money, we
couldn't keep the doors opened?
950
TRASH REMOVERS, INC.
A. That's correct. I do remember him saying
something to that accord, yes.
Q. Do you recall Mr. Piluso stating that corpo-
rate makes the decisions about wages and that he
couldn't promise you anything?
A. That's correct; yes. He did say that, he had
supervisors above him.
Q. Do you recall Mr. Piluso stating that if the
union came in and we got a contract, that we'd
have to go by the book?
A. Oh, yes; he made that statement.
The testimony of other employees who were present
supports these latter admissions by the first witnesses that
Piluso really did not promise increases or threaten to
take benefits away but only said that everything would
have to be negotiated with the Union if the employees so
chose. Brinton recalled the manager's saying:
[I]f it came to a bargaining type situation, that bene-
fits would have to be negotiated for .... A uni-
form plan and our pension plan and you know, dif-
ferent things like that. They would all have to be
worked out . . . that's all something that would
have to be negotiated.
Employee Robert Ward testified:
Mr. Piluso explained that the company benefits that
we now have would all be negotiable if the union
did come in, and several points were made about
union pensions. Mr. Netta [an employee] brought up
the fact that he had paid so much money into a
union pension for years and didn't get a dime out of
it.
Q. Was there any discussion about work rules or
a contract?
A. Yeah, Mr. Piluso stated that if the union did
come in, everybody would operate according to the
rules of the contract and he wouldn't be able to
protect certain drivers after that.
Robert Gardner testified:
Q. Any discussion about following rules or going
by a contract?
A. Well, there was talk about if the Union got in,
we would have to be regulated by the bylaws of the
Union. We would have to go by the book.
Q. Did Mr. Piluso say he'd never agree to a con-
tract?
A. He said it would have to be negotiated; the
contract would have to be negotiated.
I read the total record as showing only that the man-
ager, albeit it was he who invited the men to voice their
grievances, did nothing more than say that their demands
would have to be considered by higher authority, and
that assuring them of any improvements was beyond his
authority. I also find the evidence insufficient to prove
that he told them that they would lose any present bene-
fits, or lose their jobs, if they persisted in their prounion
resolve. The talk was about unions and about union con-
tracts. For Piluso to tell them that if the Union came in
there would have to be bargaining and negotiations with
the Union about any and all conditions of employment
was a perfectly proper thing to say. I credit his version
on these subjects, supported as it is by the testimony of
some of the employees who were present.
There was talk about a possible strike. According to
Madic, it was Piluso who brought up that entire subject,
and who also said that the men "would never get your
jobs back." Incredibly, Estep, present all the time, testi-
fied there was no mention of strike at all throughout the
meeting. He was lying outright. Brinton, instead, who
was also present, quoted Madic as saying, "[I]f we didn't
get a union or we didn't get a wage increase, that the
company wouldn't be able to operate because . . . there
would be pickets at the end of the driveway, they would
throw nails in the driveway." Ward gave like testimony,
"Mr. Madic said that, well, if we don't get what we
want, we'll go on strike and stand out front and close the
doors on the place."
As the talking went on Piluso did speak of how the
Company would defend against any strike, how it would
bring strike replacements from other of its operations,
and he even pointed to some men sitting there who had
gone to other facilities of the parent company precisely
to work as strikebreakers. If, then, he also said, as some
employees recalled, that possible strikers might in the
end lose their jobs as a consequence, he was articulating
no more than the sometimes unfortunate realities of in-
dustrial strife. However, there was no rational reason at
that moment for him to have started talking about a
strike to the employees given their mood of that
moment.
I also make no finding of illegality in Piluso's telling
the employees that he would quit rather than work with
a union in the place. In fact, there really is no contention
that by that threat he also committed an unfair labor
practice. He was not an owner, but just a plain employ-
ee, even though in charge as the Respondent's manager.
A more intriguing idea advanced by the General
Counsel is that Piluso violated the statute by reminding
the entire group that his past favored treatment of Madic
and Gardner, his close relatives, would have to stop
under a union contract because a union demands that all
of its members be treated alike. To place this statement
of the manager into the ambit of Board precedent, the
General Counsel ties it with Piluso's collateral statement
that with a union he would have to "go by the book."
Was this a broadside threat of "more onerous" working
conditions, to quote a classic phrase? Piluso used this
phrase when responding to the request for improvement
(a raise) in working conditions generally, making it clear
that changes of any kind would have to be according to
negotiations with a union and in keeping with a union
contract or a "book." I think it best to leave this particu-
lar allegation without further comment. I find that Piluso
did not commit an unfair labor practice when he told his
relatives that they could count on being treated no dif-
ferent from anybody else once all of the employees were
covered by a union contract.
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 2, in the manager's office, employee Brinton
wrote out in longhand a letter addressed to the Union. It
reads as follows:
Dear Sirs,
We, the undersigned, do hereby wish to express
our desire to withdraw ourselves from the authori-
zation list. We do not wish to be a member of your
union.
Brinton wrote this while sitting in the company of Piluso
and four or five other employees; five of them signed the
letter then and there. The letter was then left on a table
in the lunchroom where, during the next 2 or 3 days,
five other employees signed it. Whose idea was it that
this letter be written?
A number of employees testified that Piluso suggested
it in the first place, and the manager admitted in his own
testimony that in fact he did advise them as to proce-
dure. However, to offset the complaint allegation that by
such conduct he again violated Section 8(a)(l) of the
Act, Piluso defended on the ground that it was the em-
ployees who started it all by asking how they could get
out of the Union. I find, in light of all the related evi-
dence, that it was the manager who put the idea into the
minds of the employees that they should make a written
record of their rejection of the Union. At the hearing
Piluso drew a distinction between the idea of withdrawal
and the steps towards that end. In the circumstances of
this case, it is an attempted refinement that will not do.
Although the probative evidence does not suffice to
prove that Piluso made any direct threats of reprisals,
nothing could be clearer than the fact that his purpose in
holding the March 31 meeting was to prevail upon the
employees to give up the idea of having a union alto-
gether. It is a play on words to say now that the very
idea was born in the minds of the employees. The man-
ager wanted to check and to find out who was behind
the movement, and he made it clear that their demands-
their real reason for going to the Union in the first
place-would be satisfied one way or another, even if
not by Piluso himself. He did not hesitate to commit
unfair labor practices in that form. For him to help them
move in his direction, and to supply the details on just
how to go about it, was no more than further implemen-
tation of his antiunion motivation.
It may well be that during the March 31 meeting-
where he said he would quit if the group persisted
against his wishes-some of them had second thoughts.
In fact, the two relatives, Madic and Gardner, who were
told that they would no longer be permitted to violate
the rules with impunity, even signed the antiunion peti-
tion later. However, that Piluso was the motivating
cause that triggered the letter cannot be questioned.
When Tucker, the parent company's employee rela-
tions manager, arrived at home on April 1, Piluso asked
him, the expert, how the employees could document
their rejection of the Union. He had called Tucker for
that very purpose, and Tucker told him. Back in the
plant he then talked to Madic. Piluso testified, "I said, I
found out it's a possibility that you might be able to get a
petition up . . . if you do something like this, I want to
know nothing about it, and it cannot be done in my
office." Neverless, it was done in his office the next day
and he certainly knew about it.3 To press the message
further upon the more receptive employees, and to en-
courage them all the more to take the necessary steps,
Piluso invited a number of them to his house that eve-
ning-April I-so that they would have the added bene-
fit of Tucker, the personnel man. He said that he invited
them individually and, very significantly, all of the nine
or so who showed up were by that time disposed to
agree with him. None of the four real unioneers-Madic,
Bacot, Gardner, and Estep-was there.
The unfair labor practice finding here is bolstered by
the testimony of Tucker, who said that, when Piluso
called him to ask for help, he spoke of "the fact employ-
ees sometimes may initiate a petition to-in an effort to
reverse the card signing." He added that he gave the
same advice to the employees in the evening in Piluso's
house. To hear him tell it, one would believe that every
one of the employees chose, on his own, to gather at the
manager's house in order to get out of the Union. Why
should they do that? If their desires had changed, all
they had to do was nothing at that time and vote against
the Union in the election they knew the Union was plan-
ning. Besides, Tucker's explanation ignores the fact that
it was Piluso who personally invited the men to his
house.
Several men testified about the talking that went on
during April 1 and 2. The most vocal, called by the Re-
spondent, was Brinton, the man who personally wrote
the antiunion petition. His testimony was at times con-
fused, he avoided direct answers, and he had Madic sign-
ing the petition during the evening meeting in Piluso's
house while saying clearly that he never wrote it until
the next morning. There is uncontradicted testimony that
he threatened a number of employees to get them to sign
his petition. I do not credit Brinton.
I think that the most reliable statement of what hap-
pened in the manager's home was given by employee
Edward Thompson:
Mr. Piluso asked Mr. Tucker if we drew up a letter
and had all the drivers sign it, and brought it to the
local, that we did not want representation, that that
would get the cards back.
Q. And what did Mr. Tucker say about that?
A. He said there was a slight chance, but it was
worth a shot at taking it ....
Q. Did anybody else have anything to say about
this letter?
' As set out above, Madic was, generally, not a very credible witness
in this case, but on this question of the letter, or "petition," to the Union,
he must be believed. He testified that among the many things Piluso said
at the March 31 meeting was, "[Ylou can all write up a piece of paper
saying that you don't want the union." With Piluso himself admitting that
he told the men about "a possibility . . . to get a petition up," there can
be no question as to where the idea of the petition was born. I cannot
believe Piluso's story on this aspect of the case. Later in his testimony
came the following:
Q. Did you suggest to the employees at the meeting that they
submit a letter to the Union?
A. I never suggested anything to the employees.
952
TRASH REMOVERS, INC.
A.... it was brought up, the fact that it would
be better if-I believe it was Mr. Tucker that said
it-it would be better if an employee did write the
letter. Bill Brinton jumped up and said that he
would write the letter out.
The Respondent ran afoul of the statute because it ig-
nored the basic principle that the employer must keep its
hands off the union activities of its employees-they
have a right to act as they choose free of biased med-
dling by the boss. This is what is meant by employer in-
terference with the freedom accorded by the statute to
all employees. Craftool Manufacturing Co. and Craftool
Company, subsidiaries of Tandy Corporation and Tandy
Craftool Mfg. Co., 229 NLRB 634 (1977). I find that by
urging its employees to rescind their authorization of the
Union, and by assisting them to prepare a withdrawal
letter, the Respondent violated Section 8(a)(1) of the
Act.
IV. THE REMEDY
As always the Respondent must be ordered to cease
and desist from again committing the kind of unfair labor
practices that have been proved. It must also post notices
assuring the employees that they will hereafter be free
from such illegal and coercive conduct by their employ-
er.
As to the affirmative bargaining order requested by
the General Counsel, I do not think that the unfair labor
practices proved on this record justify such an extreme
remedial order. Virtually the sole agent of the Company
who made any coercive statements was the manager.
With Madic, the principal witness on behalf of the
Union, himself admitting that, in the midst of the hulla-
baloo, Piluso assured the employees that no one would
be discharged in consequence of their union activities, it
could hardly be said that an untrammeled election
cannot take place tomorrow. This, to say nothing of the
fact that the manager deliberately reversed his decision
to lay off another employee, Bacot, for the purpose of
dispelling any impression in the group as a whole that
management intended actually to hurt them economical-
ly.
v. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
I. By coercively interrogating its employees concern-
ing their union activities, by creating the impression of
surveillance of their union activities, by soliciting griev-
ances from employees for the purpose of dissuading them
from continuing their prounion activities, by urging em-
ployees to sign an antiunion provision, and by assisting
them in the preparation of such a petition, the Respond-
ent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Trash Removers, Inc., New Castle,
Delaware, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities, creating the impression that it is
surveilling its employees' union activities, soliciting
grievances for the purpose of dissuading employees from
their prounion activities, urging employees to withdraw
their union authorization cards, proposing to its employ-
ees that they sign an antiunion petition, or assisting its
employees in the preparation of an antiunion petition.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist General
Teamsters Local Union 326 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in New Castle, Dela-
ware, copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waied for all purposes.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY RECOMMENDED that the complaint be,
and it hereby is, dismissed with respect to all other alle-
gations of unfair labor practices contained therein.
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 having found, after
a hearing, that we violated the law by committing un-
lawful coercive acts against our employees:
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities.
WE WILL NOT create the impression among our
employees that we are surveilling their union activi-
ties.
WE WILL NOT solicit grievances from our em-
ployees for the purpose of dissuading them from
their prounion activities.
WE WILL NOT urge our employees to withdraw
signed union authorization cards.
WE WILL NOT propose to our employees that
they sign an antiunion petition or help them in the
preparation of such a document.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
form, join, or assist General Teamsters Local Union
326 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, to bargain col-
lectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
TRASH REMOVERS, INC.
954