De Jana Industries

National Labor Relations Board - Board Decisions

Dec 13, 1991

305 N.L.R.B. 845 (N.L.R.B. 1991)

845
305 NLRB No. 122
DE JANA INDUSTRIES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In the section of the judge’s decision entitled ‘‘Hatcher’s Claim
for a Christmas Bonus and Vacation Pay,’’ the second sentence of
the second paragraph should read: ‘‘Hatcher further testified that
Lapham said that it was important that he vote and that he would
be receiving a Christmas bonus.’’ Also, the judge made several inad-
vertent references to the Respondent’s ‘‘Port Jefferson facility’’
when in fact the facility at issue is in Port Washington, New York.
None of these errors affect the results.
4 The judge’s recommended Order does not contain remedial pro-
visions corresponding with his conclusion, which we affirm, that the
Respondent unlawfully imposed on its solid waste division employ-
ees stricter work rules and disciplinary procedures, and new restric-
tions on employee access to certain parts of its facility. Accordingly,
we will modify the recommended Order to include a cease-and-de-
sist remedy, and a requirement to rescind both the new rules and
procedures, reflected in a 4-page document added to the Respond-
ent’s employee handbook, and the restrictions on access to the Re-
spondent’s main office, mechanics’ shop, yard, and field trailer. See,
e.g., John Cuneo, Inc., 253 NLRB 1025, 1028–1029 (1981), enfd.
sub nom. Plumbers Local 669 v. NLRB, 681 F.2d 11 (D.C. Cir.
1982).
De Jana Industries, Inc. and Local 813, Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 29–CA–14349, 29–CA–14352, 29–
CA–14583, and 29–CA–14604
December 13, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 14, 1991, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
The judge found, inter alia, that the Respondent
discriminatorily discharged employee Anthony Barton
in violation of Section 8(a)(3) and (1). Barton, a driver
in the Respondent’s solid waste division, did not pos-
sess a valid driver’s license at the time of the hearing.
Acknowledging this, and pursuant to the Board’s Order
in Future Ambulette, 293 NLRB 884 (1989), enfd. as
modified 903 F.2d 140 (2d Cir. 1990), the judge rec-
ommended that he be made whole and that the Re-
spondent be required to offer him reinstatement to a
driver position when he establishes that he has a valid
driver’s license. The judge further recommended that,
should Barton be unable to obtain a valid license with-
in a reasonable time from the date of the Board’s De-
cision and Order, the Respondent be required to offer
him a substantially equivalent position and, if none ex-
ists, to make him whole until he acquires substantially
equivalent employment elsewhere.
We adopt the judge’s recommendations in this re-
gard. In light of the Second Circuit’s modification of
the Board’s Order in Future Ambulette, supra, we
think it appropriate to discuss some of the implications
of our Order in the instant case. First and foremost,
Barton, like all discriminatees who have been unlaw-
fully discharged, has a duty to mitigate the damages
resulting from the Respondent’s unlawful conduct. See,
e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901
(1984); Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
198 (1941). Thus, he must with reasonable diligence:
seek interim employment from the time of his dis-
charge until his reinstatement; attempt to secure an ap-
propriate driver’s license; and, if necessary, seek sub-
stantially equivalent employment elsewhere. See, e.g.,
American Bottling Co., 116 NLRB 1303, 1307 (1956).
The measure of Barton’s mitigatory efforts is a matter
for compliance. See, e.g., Great Chinese American
Sewing Co. v. NLRB, 578 F.2d 251, 255–256 (9th Cir.
1978), enfg. 227 NLRB 1670 (1977). See also Sure-
Tan, supra at 902.
Further, nothing in our Order requires the Respond-
ent to engage in illegal conduct, nor should the Order
be interpreted to encourage such conduct. Thus, the
Respondent has no obligation to reinstate Barton as a
driver until he demonstrates that he has an appropriate
driver’s license. To the extent our Order may require
that the Respondent offer him employment even with-
out a driver’s license, we note that the record estab-
lishes that there are two basic classifications in the Re-
spondent’s solid waste division: driver and loader. The
loader, or helper, is the second man on a truck and,
although the issue has not been conclusively litigated,
it is apparent that a helper’s official job duties do not
include driving the truck. We also note that Barton’s
testimony indicates that he worked for the Respondent
as a helper in addition to working as a driver. If Bar-
ton is unable through reasonable diligence to obtain a
driver’s license, then the Respondent’s possible obliga-
tion to offer him substantially equivalent employment
will become a relevant issue to be addressed in a com-
pliance proceeding.
Finally, we view the instant remedy as an appro-
priate, measured exercise of our affirmative remedial
authority, specifically designed to carry out our statu-
tory obligation to effectuate the policies of the Act. In
this case, Barton was a union adherent discharged be-
cause of his statutorily protected activity and in order
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 For example, on the day of his discharge the Respondent’s vice
president told Barton he could have his job back if he withdrew his
union authorization card.
6 In considering the application of the Board’s remedy in Future
Ambulette, supra, to this case, we note that the Board did not address
the effect of a failure on the part of the discharged driver to take
reasonable steps to secure an appropriate license. Should Barton not
be diligent in attempting to get his license, it would have an impact
on his right to reinstatement as a driver, in that without a license
he would not be qualified to drive the Respondent’s trucks. We fur-
ther note that a failure on Barton’s part to act diligently in this re-
gard would not bar him from showing overall reasonable efforts at
obtaining interim employment. Backpay rights are not dependent on
efforts to seek precisely the same type of employment from which
the discriminatee was discharged. See Associated Grocers, 295
NLRB 806 (1989). Finally, should Barton fail to take reasonable
steps to secure a license, his reinstatement and consequent gross
backpay rights would be based on his entitlement to employment as
a truckdriver’s helper, a position he had held in the past and could
have continued to hold even without a license, were it not for the
Respondent’s discrimination against him. Compare Providence Med-
ical Center, 243 NLRB 714, 738, 744–746 (1979) (employee
Holzman).
to discourage other employees from supporting the
Union. The Respondent’s contention that he was dis-
charged because he did not possess a driver’s license
was proved to be the sheerest of pretexts.5 Con-
sequently, absent the unlawful discrimination directed
against him, Barton would, so far as the record shows,
still be working for the Respondent, either as a driver
or in some other capacity. Accordingly, because Barton
has been unlawfully deprived of his job, his right to
reinstatement and corresponding right to backpay, both
as discussed above, become effective on the date he
was discharged. Our remedy is thus fashioned specifi-
cally to restore the status quo ante to the extent reason-
ably possible. Sure-Tan, supra at 900; Phelps Dodge,
supra at 194.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, De
Jana Industries, Inc., Port Washington, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(j) and reletter
the subsequent paragraph accordingly:
‘‘(j) Imposing stricter work rules and disciplinary
procedures on its solid waste division employees and
restricting their access to previously open areas of the
Respondent’s Port Washington facility in order to dis-
courage them from supporting the Union.’’
2. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs accordingly:
‘‘(d) Rescind the discriminatory work rules and dis-
ciplinary procedures reflected in the four-page docu-
ment entitled ‘Disciplinary Procedures–-Solid Waste
Division’ which was added to the Respondent’s em-
ployee handbook, and rescind the discriminatory re-
strictions on employee access to the main office, me-
chanics’ shop, yard, and field trailer at the Respond-
ent’s Port Washington facility.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question our employees as
to their support for Local 813, International Brother-
hood of Teamsters, AFL–CIO.
WE WILL NOT threaten to close down or discontinue
our solid waste division operations in order to discour-
age our employees from supporting the Union.
WE WILL NOT warn our employees that their wages
will be reduced if they support the Union.
WE WILL NOT threaten to impose on them more on-
erous working conditions or stricter work rules, in
order to discourage their support for the Union.
WE WILL NOT grant a loan to any employee to dis-
courage support of the Union.
WE WILL NOT issue written warnings to employees
to discourage them from supporting the Union.
WE WILL NOT fail to pay any employee a Christmas
bonus or accrued vacation moneys in order to discour-
age support for the Union.
WE WILL NOT offer to reinstate any employee to his
job on condition that he withdraw his support of the
Union.
WE WILL NOT discharge any employee in order to
discourage support for the Union.
WE WILL NOT impose stricter work rules and dis-
ciplinary procedures on our solid waste division em-
ployees, and WE WILL NOT restrict their access to pre-
viously open areas of our Port Washington facility, in
order to discourage them from supporting the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
847DE JANA INDUSTRIES
1 I issued a supplemental report in Case 29–RC–7443, JD(NY)–
122–90.
WE WILL offer Eric Industrious, Willie Hatcher, and
Nicola Diaz immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and WE
WILL make them whole for any loss of pay and other
benefits resulting from their discharges, with interest
thereon, including moneys due Willie Hatcher for his
1989 Christmas bonus and accrued vacation pay.
WE WILL offer Anthony Barton full reinstatement to
his former job on the presentation by him of a valid
license. If he is unable to do so within a reasonable
period of time from the date of the Board’s Decision
and Order in this case,
WE WILL offer to reinstate him to a substantially
equivalent position, without prejudice to his seniority
and other rights and privileges and WE WILL make him
whole for any loss of pay and other benefits resulting
from his discharge, with interest thereon.
WE WILL remove from our files all references to the
discriminatory discharges of these four employees and
to the two written warnings issued to Willie Hatcher
on December 29, 1989, and WE WILL notify each of
these four employees in writing that this has been done
and that the unlawful conduct on our part will not be
a basis for future personnel action against them.
WE WILL rescind the discriminatory work rules and
disciplinary procedures reflected in the 4-page docu-
ment entitled ‘‘Disciplinary Procedures–-Solid Waste
Division’’ which was added to our employee hand-
book, and
WE WILL rescind the discriminatory restrictions on
employee access to the main office, mechanics’ shop,
yard, and field trailer at our Port Washington facility.
DE JANA INDUSTRIES, INC.
Craig Lawrence Cohen, Esq., for the General Counsel.
Stanley Israel, Esq. (Israel & Bray), of New York, New
York, for De Jana Industries.
Stuart Bochner, Esq., of New York, New York, for Local
813.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. These
cases had been consolidated with Case 29–RC–7443 which
was severed at the conclusion of the hearing.1 The consoli-
dated complaint alleged that De Jana Industries, Inc. (Re-
spondent), to discourage its employees from supporting Local
813, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (Union),
unlawfully interrogated them as to their support for the
Union, threatened and warned them, imposed more onerous
work rules, granted loans, withheld bonuses and accrued va-
cation pay, unlawfully conditioned a reinstatement offer and
discharged four employees. Respondent is alleged thereby to
have engaged in unfair labor practices as defined in Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (the Act).
Respondent, by its answer, denies that it committed any of
the alleged unfair labor practices.
The hearing was held before me in New York City in June
and July 1990. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after due consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. COMMERCE AND LABOR ORGANIZATION STATUS
The pleadings establish, and I find, that Respondent pro-
vides trash removal and related services pursuant to its con-
tracts with various municipalities and that, in its operations
annually, it meets the Board’s standard for the assertion of
jurisdiction. The pleadings also establish and I further find
that the Union is a labor organization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent has about 14 employees, drivers and helpers,
in its solid waste division. They work out of Respondent’s
facility in Port Washington, New York, and are the only
group of its employees involved in this case. They collect
garbage and trash from private residences in the municipali-
ties under contract with Respondent. These employees were
unrepresented for purposes of collective bargaining when one
of the Union’s business representatives, Sylvester Needham,
undertook to organize them in 1989. All dates below are for
1989 unless stated otherwise.
On about September 6, Needham sought out these drivers
on their routes. On September 11, he talked with two of
them Anthony Barton and Robert Anchelowitz. They signed
authorization cards that day and were given additional cards
to distribute to their coworkers. William Hatcher, a driver,
signed an authorization card that day. Eric Industrious, an-
other driver, signed a card on September 12.
Alleged Unlawful Interrogation and Warnings Between
September 12 and 20
Eric Industrious, when asked by General Counsel about
any conversation he had after September 12 while out on his
route, testified that Steve Lapham, the manager of Respond-
ent’s solid waste division, asked him if he had seen ‘‘Syl-
vester.’’ Industrious related that he asked Lapham who Syl-
vester was and that Lapham responded that Sylvester was a
union representative. Industrious further testified that Lapham
then told him that ‘‘if you all want to join the [U]nion, it
will be fine [but the] only benefit you will get is dental . . .
and besides pay will be cut and so you won’t be gaining
nothing.’’ Later, in the course of his testimony, Industrious
related that Lapham made those remarks before he signed his
authorization card. He was not asked how long before but I
understood, from the overall context, his testimony to be was
that the discussion took place shortly before he signed his
union card.
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 One of General Counsel’s witnesses, Willie Hatcher, testified that
De Jana made a similar threat at employee meetings held prior to
the election in December in Case 29–RC–7043. There is no com-
plaint allegation relating to that testimony and General Counsel does
not rely on it in the arguments he has made. Accordingly, I attribute
no weight to that testimony.
Lapham testified that he had heard from more than one
driver that ‘‘Sylvester’’ or ‘‘the Union’’ had stopped them
enroute and that he, Lapham, probably would have asked the
drivers if Sylvester had stopped them. He related that he had
no specific recollection of any particular conversation he had
with any of the drivers. He denied that he told any driver
that his pay would be cut. He also testified that he did tell
the drivers, shortly before the election referred to below, that
their wages could go up or down, depending on negotiations
with the Union, if it won.
Industrious’ account impressed me as candid and, as dis-
cussed below in other sections of this decision, I found other
aspects of Lapham’s testimony to be unpersuasive. I credit
Industrious’ testimony.
As Lapham’s questioning of Industrious was specifically
aimed at soliciting information as to the extent of employee
activity relative to the Union and as the questioning was in
the context of a warning that drivers’ wages would be re-
duced if they selected the union as their representative, Re-
spondent, by Lapham’s statement, interfered with employee
rights protected by Section 7 of the Act. See Cannon Indus-
tries, 291 NLRB 632 (1988).
The Discharge of Anthony Barton—Related Allegations
Barton, as noted above, had signed a union authorization
card while on his route on September 11. Also, as just noted,
Lapham had on September 12 questioned and warned Indus-
trious while he was on his route.
On September 18, Lapham informed Barton that he was
discharged because he did not have, and would not soon get,
a valid driver’s license.
Barton testified that he spoke with Respondent’s vice
president, Vincent De Jana, later on September 18 and asked
how could he have been fired with Christmas coming up.
Barton related that De Jana replied that he, Barton, had
signed a union card behind his back and that Barton was the
one who was going around having employees sign union
cards. According to Barton, he told De Jana that it was Rob-
ert Anchelowitz, not him, who was passing out union cards.
At that point, according to Barton, De Jana told him that, if
he wanted his job back, he should get his union card back.
De Jana also said, according to Barton, that if the Union
came in, he would honor his contracts but, when they ex-
pired, that would be the end of the garbage business for Re-
spondent.
De Jana testified as follows respecting Barton’s asking
him on September 18 for his job back. He asked Barton
where ‘‘he had been several days before . . . [but] he had
no explanation.’’ He asked Burton if he had been so drunk
recently that he could not work. He asked Barton ‘‘if he had
gotten his license together’’ although he, De Jana, knew that
Barton had not. He told Burton that he could not keep him
unless he, Barton, could get his license immediately. De Jana
knew that Barton could not do that. De Jana denied that he
discussed the Union with Barton in any way.
I credit Barton’s account as it seems unlikely that he
would concoct a story that he named a coworker as the union
activist in exchange for keeping his job. De Jana’s testimony
struck me as a summary of Respondent’s contentions, dis-
cussed below, rather than as a believable account of a con-
versation he had with an employee who came to him for help
in keeping his job.
Based on the credited testimony, I find that Respondent,
by De Jana, unlawfully interrogated Barton as to his having
signed a union card, threatened to close down its operations,2
and coerced Barton in an attempt to have him withdraw his
support of the Union.
I turn now to the complaint allegation that Barton’s dis-
charge was discriminatorily motivated. The credited evidence
demonstrates that Barton supported the Union, that Respond-
ent was aware of that, that Respondent engaged in conduct
clearly disclosing its union animus and that Barton was dis-
charged at the very outset of the Union’s organizational
drive. In addition, General Counsel has produced evidence
that Respondent had known for over a year prior to Sep-
tember 1989 that Burton did not possess a valid license and
that Respondent had, until the Union began its drive, merely
urged him to rectify the matter. It was only after the Union
appeared that Respondent showed any urgency on the matter
of Barton’s license.
All these factors satisfy me that General Counsel has es-
tablished a prima facie showing that Burton was discharged
to discourage support for the Union among its solid waste di-
vision employees. The burden then is on Respondent to es-
tablish that, regardless, Barton’s employment would have
been terminated on September 18. See Wright Line, 251
NLRB 1093 (1980). Respondent has offered no persuasive
basis on which I could find that, notwithstanding, it still
would have discharged Burton. Rather, its recital of Barton’s
varied work derelictions during his employment, as alluded
to in part by De Jana’s testimony recounted above, suggests
only that it could have discharged Barton for cause at almost
any time. The credited evidence, however, discloses that,
while it could have discharged Barton for not being able to
produce a valid license, it chose instead to condition his em-
ployment status on his withdrawing his support for the
Union.
I therefore find that Barton was discharged by Respondent
in order to discourage its employees from joining or sup-
porting the Union.
Discharge of Eric Industrious
Industrious began driving for Respondent on July 17,
1988. As noted above, he had signed an authorization card
for the Union and had been unlawfully interrogated and
warned by Lapham as to the efforts of union representatives
to solicit his support. On September 20, he attended a union
meeting. He was informed on the following morning by Re-
spondent’s vice president, De Jana, that he was discharged
because he had missed picking up garbage on September 18
at homes on a whole street of his route.
Industrious testified that he had received a telephone call
on September 18 from Lapham who asked if he was aware
that he had missed a number of pickups. Industrious replied
that he was not. According to Industrious, he and Lapham
discussed how he had run his route that day and that Lapham
then told him that it was ‘‘all right’’ as he, Lapham, had
849DE JANA INDUSTRIES
3 Anchelowitz was named by Anthony Barton, as discussed above,
as the employee who was passing out union authorization cards to
other drivers. Anchelowitz had signed a union card on September
11. The route on which he worked was operated pursuant to a con-
tract with a municipality and that contract expired sometime after the
election in December. Anchelowitz received a Christmas bonus in
1989 and was offered a different route when his regular route ceased
to operate upon the contract expiration. Respondent urges that its
treatment of Anchelowitz, apparently one of the strongest union sup-
porters, negates a finding that it harbored any union animus.
Anchelowitz left Respondent’s employ of his own volition; there is
no complaint allegation of discrimination against him. The limited
evidence relative to Anchelowitz is hardly a basis to disregard the
ample evidence of animus in this case.
taken care of the missing stops. Industrious worked on Sep-
tember 19 and 20 without incident.
The facts above show that Industrious was discharged after
having been subjected to unlawfully interrogation and a re-
lated warning against supporting the Union, that his dis-
charge occurred on the morning after he had attended a
union meeting and that the reason given for his discharge ap-
pears to be an afterthought on Respondent’s part. On that last
point, I note that it was De Jana who told Industrious he was
discharged, not Lapham who handles the day-to-day oper-
ations of the solid waste division. I note too that the basis
cited by de Jana was an event that took place 3 days pre-
viously and that Industrious had worked without incident in
the interim. I note also that Lapham had indicated that he
had condoned Industrious’ lapse on September 18.
The suddenness of Industrious’ discharge, its timing in re-
lation to the onset of the Union’s organizational campaign
and to his attendance the preceding night at a union meeting,
the pretextual nature of the reason proferred by Respondent
for his discharge and the coercive interrogation of, and the
threat to him on September 12 establish a prima facie show-
ing that he was discharged as part of Respondent’s efforts to
undermine support for the Union among its solid waste divi-
sion employees. While there is no direct evidence that Re-
spondent was aware that Industrious was a union supporter,
it is equally true that such knowledge may readily be inferred
from the surrounding circumstances. See, for example, Dr.
Frederick Davidowitz, 277 NLRB 1046 (1985).
Respondent endeavored to show that its discharge of In-
dustrious was consistent with its past practice. The several
instances it cited are not persuasive as the employees in-
volved in those instances had voluntarily abandoned their
jobs whereas Industrious had, as noted earlier, continued to
work after September 18, without incident, until discharged.
Accordingly, I find that Respondent has not rebutted the
prima facie case and that its discharge of Industrious was
therefore discriminatorily motivated.
The Loan to Willie Hatcher
Hatcher began working for Respondent in its solid waste
division in August 1987. On September 11, he signed a
union authorization card given him by Anchelowitz.3 On
September 20, Lapham unexpectedly gave him $500 as a
loan to be used to pay fines he owned and which had to be
paid before he could obtain a renewal of his driver’s license.
Hatcher had requested such a loan some 6 months pre-
viously when he had been arrested for driving with a sus-
pended license and bailed out by Respondent. His request
then was denied on the ground that it was against company
policy to grant loans. (Incidentally, Lapham since March,
changed Hatcher’s route so that he would not have to drive
in the township in which he had been arrested for not having
a valid license. That treatment contrasts markedly with that
accorded Barton in September when he was discharged pur-
portedly for not being able to produce immediately a valid
driver’s license.)
General Counsel’s contention, respecting that loan to
Hatcher, is that Respondent, on September 20, was unaware
that Hatcher supported the Union and that Respondent’s sud-
den reversal then of its no-loan policy was intended to in-
duce Hatcher to forego supporting the Union. In further sup-
port of that contention, Hatcher testified credibly as found
infra, that after the election in December, De Jana berated
him saying that Hatcher had betrayed him by voting for the
Union after he, De Jana, had given him a loan to straighten
out his license.
Respondent offered Lapham’s testimony as to the basis for
its granting Hatcher a loan in September. Lapham testified
that Hatcher had asked for the loan then and as his license
could be obtained simply by an advance of money, his re-
quest was granted.
Hatcher’s account as to the circumstances and timing of
the loan is convincing and I accept it. The sudden granting
of the loan, its timing in relation to the Union’s organiza-
tional effort, the unexplained reversal of company policy and
the later remarks of De Jana all establish quite clearly that
the belated honoring of Hatcher’s request for a loan was di-
rected towards discouraging employees from supporting the
Union.
Alleged Unlawful Interrogation by Lapham in October
Hatcher testified that, in October, while he was out on his
route, Lapham met him and asked if he was happy now that
he had a steady route. Lapham, according to Hatcher, also
asked him then if he had talked to any union representative
and if he had signed a union authorization card.
Lapham, as earlier noted, testified that he had asked driv-
ers if Sylvester Needham, the Union’s representative had
stopped them on their routes.
I credit Hatcher’s account.
Hatcher’s Claim for a Christmas Bonus and
Vacation Pay
The complaint alleges that Respondent unlawfully failed to
pay Hatcher a Christmas bonus for 1989 and his vacation
pay.
Hatcher testified that, on December 21, he received a tele-
phone call from Lapham who reminded him to be on time
the next morning to vote in the election to be held in Case
29–RC–7443 among the solid waste division employees.
Hatcher further testified that it was important that he vote
and that he would be receiving a Christmas bonus. Hatcher
related that he then asked Lapham if he would get paid for
his vacation weeks and that Lapham said that he would have
no problem, that he would get his money in the first or sec-
ond week of January 1990.
Hatcher voted in the election on December 22 and left on
his route. The tally of ballots in Case 29–RC–7443 disclosed
that the Union received a majority of the votes cast. Later,
upon returning to Respondent’s facility, Hatcher was handed
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his paycheck by Respondent’s vice president, De Jana.
Hatcher testified that De Jana then said to him, ‘‘[T]hank
you very much, but you f—d me by voting for the [U]nion.’’
Hatcher testified that he asked how did De Jana know how
he voted and that De Jana replied that he knows his friends,
that Hatcher is not one of them and that Hatcher had repaid
the kindness shown him, in having been given a loan, by
voting for the Union. Hatcher related that De Jana then said
that there will be changes made.
Hatcher did not receive a Christmas bonus for 1989 nor
pay for his vacation weeks.
Lapham testified that he telephoned all eligible voters on
December 21 to remind them to vote and denied discussing
with any of them the subjects of a Christmas bonus or vaca-
tion pay. He testified that in 1988 he recommended that all
drivers be given Christmas bonuses and that, in 1989, only
several. He testified that he did not follow up to find out if
his recommendations were followed and that he does not
know which employees received bonuses.
De Jana testified that he has little day-to-day contact with
the drivers involved in this case and that, while he relied on
Lapham’s recommendations, he himself decided the amounts
of the bonuses.
I find it difficult to accept Lapham’s account that he, the
person in direct charge of these employees, did not bother
to learn if the recommendations he made respecting their bo-
nuses were accepted, particularly as some in 1989 got rel-
atively huge bonuses compared to the ones they had received
in 1988 and as others got no bonuses in 1989 after having
received bonuses in 1988.
I credit Hatcher’s testimony as to his discussions with
Lapham and De Jana.
Based on the credited testimony, I find that Respondent
failed to give Hatcher a bonus in 1989 and failed to pay him
for his vacation weeks and that Respondent failed to do so
because its vice president believed that Hatcher had voted for
the Union. Further, Respondent, by De Jana’s comments on
December 22 to Hatcher, threatened to make changes in
working conditions in retaliation for the employees having
voted for the Union.
Work Rules
The complaint alleges that on about December 29 and 30,
Respondent imposed more onerous working conditions and
established stricter work rules for its solid waste division em-
ployees in order to discourage them from engaging in activi-
ties protected by the Act.
On December 29, Respondent promulgated written work
rules applicable to the solid waste division employees. These
rules were later incorporated in a four-page document enti-
tled ‘‘Disciplinary Procedures Solid Waste Division,’’ which
was added to Respondent’s employee handbook. The hand-
book does not contain a similar document applicable to em-
ployees in Respondent’s other divisions. The four-page docu-
ment outlines procedures for the issuance of written discipli-
nary warnings, proscribed acts and penalties therefor, and de-
tailed general conduct guidelines along with a statement that
those listed guidelines are not to be considered complete.
On December 29, at a meeting of solid waste division em-
ployees, Respondent informed them that henceforth many
parts of the Port Jefferson facility to which they previously
had ready access were now off limits to them. On the fol-
lowing morning, William Hatcher was handed two written
warnings based on incidents of asserted job carelessness
which occurred during the preceding months.
The sudden promulgation, only a week after De Jana had
warned Natcher that they would be retaliatory changes in
working conditions as recounted above, of detailed discipli-
nary procedures applicable expressly to solid waste division
employees; the summary restriction imposed on these em-
ployees as to their access to areas previously open to them;
and the written warnings to Hatcher citing events long past—
all make out a prima facie case that those actions were un-
dertaken by Respondent as part of its effort to undermine the
Union’s majority status.
Lapham testified for Respondent that the four-page docu-
ment was simply a formal codification of existing rules and
that the document was issued as part of Respondent’s normal
efforts to ensure that the drivers continue to perform as con-
scientiously as they had been in the latter part of the year
when they normally receive Christmas gifts from home-
owners on their respective routes. That testimony does not
seem to comport with Respondent’s previous practice in tol-
erating many of the derelictions as to licenses, drinking, at-
tendance and other matters contained in the record in this
case. As to the restrictions on access to different areas of the
facility, Lapham attributed those restrictions are essential to
deter thefts. In that regard, he noted that one of Respondent’s
trucks had been stolen in early December; it was however
only after the election on December 22 that Respondent saw
a need to restrict employee access.
I find unpersuasive the explanations offered by Lapham to
rebut the prima facie case presented by General Counsel. I
therefore find that the disciplinary procedures as spelled out
in the four-page document, the restriction on access, and the
written warnings to Hatcher were unlawfully aimed at dis-
couraging the solid waste division employees from sup-
porting the Union.
Discharge of Hatcher
Hatcher began working for Respondent in August 1987.
He signed a union authorization card on September l. As
noted previously, he was told by De Jana on December 22
that he, in effect, had double-crossed Respondent by voting
for the Union that day. That same day he was given two
written warnings, found above to have been issued by Re-
spondent in order to undermine employee support for the
Union. He was unlawfully passed over for a Christmas bonus
and he was discriminatorily denied vacation pay.
Hatcher hurt himself on December 30 when he slipped on
an icy patch and was unable to work thereafter for several
days. He notified his supervisor of his absence and, when he
reported back on January 4, 1990, he had a doctor’s note
with him. His supervisor asked him if he had a doctor’s note
and, when he replied that he had, he was told to wait for
Lapham to arrive.
Lapham came in later and informed Hatcher that his em-
ployment was terminated for failing to report an accident in-
volving his truck. Hatcher asked what he was referring to.
Lapham stated ‘‘the house on East Shore Road.’’ Hatcher
disclaimed responsibility. This discussion referred to an inci-
dent that took place on December 28 on Hatcher’s route.
Hatcher gave this account. He observed on December 28
a cesspool truck leaving a driveway of a house on East Shore
851DE JANA INDUSTRIES
Road. When he entered the driveway, he noted that there was
some brick chipped off the side of the house. On his return
to the Port Jefferson facility later that day, he reported this
incident to Lapham. He did this because a couple of cus-
tomers had, in the past, complained that Respondent’s drivers
had caused damage when they had not.
Lapham testified that Hatcher had reported to him that a
house on his route had been ‘‘demolished’’ and that Hatcher
‘‘wanted [him] to know that he didn’t do it.’’ Lapham testi-
fied also that he went to the home and after looking at the
damage and later examining Hatcher’s truck, he concluded
that ‘‘it was at least probable or possible’’ that Hatcher was
responsible. Lapham further testified that, on further exam-
ination of Hatcher’s truck, [he found] brick on the truck,
‘‘red brick.’’ His further investigation he related, convinced
him that Hatcher’s truck had caused the damage and he de-
cided, ‘‘based on [his] policy of honesty and dishonesty . . .
that Hatcher was being dishonest . . . [and] was dismissed.’’
Lapham’s testimony, that he discharged Hatcher the fol-
lowing morning, December 29, is an obvious error as he had
instead issued two warnings to Hatcher on that morning.
There is substantial evidence in the record in this case that
gives me considerable pause in accepting Lapham’s account
that Hatcher was discharged because he dishonestly denied
causing the December 28 accident and because his dishonest
denial contravened Respondent’s concern for honesty and in-
tegrity. Respondent had knowingly let unlicensed drivers op-
erate its vehicles and even revised one route so that a driver
would not have to pick up in a township in which he had
been arrested for driving without a license. Also, Respondent
advertised for full-time drivers when, in reality, it wanted
only part-time seasonal drivers to help in snow removal
work.
I credit Hatcher’s account that he was told when he was
discharged, that he had failed to report the December 28 in-
cident when in fact he had. I further find that the reason Re-
spondent proferred for Hatcher’s discharge, dishonesty, was
pretextual.
In view of Hatcher’s activities in support of the Union, the
animus displayed thereto by Respondent and the pretextual
basis given by Respondent for Hatcher’s discharge, I find
that Respondent terminated his employment on January 4,
1990, as part of its campaign to destroy the Union’s majority
status, as reflected in the tallying of ballots issued in Case
29–RC–7403.
Discharge of Nicola Diaz
Diaz started working for Respondent in mid-1988 and was
discharged on January 19, 1990.
There is no evidence that Diaz signed a union authoriza-
tion card or attended union meetings. He voted in the elec-
tion held on December 22 in Case 29–RC–7403. On the next
day, according to Diaz, Lapham met him on his route and
said, ‘‘[y]ou guys opened up a new world, Welcome to the
new world and now that you voted yes, you’ll be subject to
change and you all have to deal with the consequences now.
And they’ll be specific things like changes like you all have
to wear work boots and all different things, uniforms and
stuff like that.’’
Lapham testified that he probably indicated to drivers, who
would have asked about his disappointment as to the election
results, that he was not happy. He also testified that he does
not know if he told them that they had ‘‘opened up a whole
new world’’ or that he said to them, ‘‘welcome to the new
world.’’
The suggestion in Lapham’s account that various drivers
may have invited his comments by having asked him about
his disappointment with the election results does not strike
me as plausible. Diaz’ account is more probably true. It is
obvious that Diaz was not purporting to give a verbatim ac-
count of Lapham’s remarks as Lapham is quite articulate.
Rather, Diaz was paraphrasing his recollection of the sub-
stance of Lapham’s comments. I note also the finding above
that Respondent unlawfully promulgated new rules within a
week of Lapham’s comments to Diaz.
I find that Respondent, by Lapham’s comments to Diaz on
December 23, interfered with the rights of its employees to
be free to support the Union.
The General Counsel contends that Respondent’s discharge
of Diaz several weeks later was aimed at further discour-
aging its employees from supporting the Union. Respondent
asserts that Diaz was discharged because he lied in denying
that he was responsible for an accident he had while on his
route.
Diaz testified that, on January 18, 1990, Supervisor Barry
Zippelius visited him on his route and asked him if his truck
had hit one of the houses on the route. Zippelius told him
that a homeowner had made a complaint. Diaz denied having
any such accident. On the following day, Lapham discussed
the complaint with him and he again denied being respon-
sible for any accident. Lapham discharged him the following
morning, saying only that ‘‘the homeowner said that she saw
[him] do it.’’
Lapham testified that he personally examined the truck
that Diaz drove on January 18 and determined that there
were markings on its back that corresponded exactly with the
damage to the brick on the house in question. He also related
that the homeowner told him that she had heard a noise and
saw one of Respondent’s trucks pull out of the driveway.
Lapham related that Diaz was discharged for not admitting
he caused the accident. Lapham explained that honesty is es-
sential to its operations as Respondent services expensive
houses where owners are concerned about property losses
and that Respondent must ensure that it has a reputation for
integrity.
Lapham also testified that he talked to Terry Klein the
helper who was with Diaz on January 18 and said that Klein
told him that he was with Diaz when they pulled into the
driveway in question and that both he and Diaz had observed
the damage complained of. Lapham testified that he theo-
rized that Diaz, while Klein was picking up trash at another
house, had backed his truck up the driveway in question on
January 18 and hit the house. Lapham testified that he be-
lieved that, shortly afterwards, Diaz picked up Klein, re-
turned to that house and in effect pretended that he was sur-
prised to see that there was damage there.
I find it somewhat difficult to accept Lapham’s strained
scenario. I find it even harder to accept his testimony that
Respondent puts a special premium on forthrightness and
honesty, when, as noted earlier, it has advertised deceptively
for full-time drivers when it really wanted part-time tem-
porary drivers to operate snowplows. I note also the discus-
sion above of its knowingly using unlicensed drivers.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Future Ambulette, 293 NLRB 884 (1989), enfd. 903 F.2d 140 (2d
Cir. 1990). I am required to follow Board precedent unless it is re-
versed by the U.S. Supreme Court.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
As there is no evidence that Diaz supported the Union, it
cannot be found that Respondent discharged him to retaliate
against him for having engaged in union activities. The evi-
dence however does disclose that Respondent, on the day
after Diaz voted in the election, expressed its anger to him
as to the results of the election and made it clear that it
would retaliate. Respondent had already discriminatorily dis-
charged three drivers and now was asserting what I find to
be a clearly pretextual basis for discharging Diaz. These fac-
tors warrant the inference that Diaz was a pawn, expendable
as part of Respondent’s plan to undermine the Union’s ma-
jority status and to discourage its employees from supporting
the Union. See Dawson Carbide Industries, 273 NLRB 382,
388–389 (1984).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by having:
(a) Coercively interrogated its employees as to their sup-
port for the Union.
(b) Threatened to close or discontinue its solid waste divi-
sion operations to discourage its employees from supporting
the Union.
(c) Warned employees that their wages would be reduced
if they support the Union.
(d) Threatened to impose more onerous working condi-
tions and to apply stricter work rules in order to discourage
its employees from continuing to support the Union.
(e) Granted a loan to an employee to dissuade him from
supporting the Union.
(f) Issued written warnings to an employee to discourage
support for the Union.
(g) Offered to reinstate an employee to his job on condi-
tion that he withdraw his support from the Union.
(h) Engaged in the conduct described in the next para-
graph.
4. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act by having:
(a) Failed to pay William Hatcher a Christmas bonus in
December 1989 and accrued vacation pay for that year be-
cause he supported the Union.
(b) Imposed more onerous working conditions and stricter
work rules on its solid waste division employees because
they voted for the Union and by having restricted employee
access to previously open areas of its Port Jefferson facility
to discourage employees from supporting the Union.
(c) Discharged its employees Anthony Barton, Eric Indus-
trious, Willie Hatcher and Nicola Diaz in order to discourage
its employees from joining or supporting the Union.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged Eric
Industrious, Willie Hatcher, and Nicola Diaz, I shall rec-
ommend that Respondent shall be ordered to offer them rein-
statement to their former jobs or, if these no longer exist, to
substantially equivalent positions of employment and make
them whole in accordance with the method prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizon for the Retarded, 283 NLRB 1173
(1987).
It appears that Anthony Barton did not have a valid license
as of the date of the hearing. Nonetheless, he shall be enti-
tled to be made whole in the same manner as the other three
unlawfully discharged employees but is entitled to an offer
of reinstatement only when he shows Respondent that he has
a valid driver’s license. If he is unable to obtain a valid li-
cense within a reasonable time from the date of the Board’s
Decision and Order, Respondent shall offer him a substan-
tially equivalent position. If no such position exists, the Re-
spondent shall make him whole until such time as he finds
substantially equivalent employment elsewhere.4
Respondent shall also be ordered to make Willie Hatcher
whole with interest similarly calculated, for its failure to pay
him a Christmas bonus and for vacation moneys accrued in
1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, De Jana Industries, Inc., Port Wash-
ington, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively questioning employees as to their support
for Local 813, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO.
(b) Threatening to close down or discontinue its solid
waste division operations in order to discourage employees
from supporting the Union.
(c) Warning employees that their wages will be reduced if
they support the Union.
(d) Threatening to impose on them more onerous working
conditions or stricter work rules, in order to discourage their
support for the Union.
(e) Granting a loan to any employee to discourage support
of the Union.
(f) Issuing written warnings to employees to discourage
them from supporting the Union.
(g) Failing to pay any employee a Christmas bonus or ac-
crued vacation moneys in order to discourage support for the
Union.
(h) Offering to reinstate any employee to his job on condi-
tion that he withdraw his support of the Union.
(i) Discharging any employee in order to discourage sup-
port for the Union.
853DE JANA INDUSTRIES
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action neccessary to ef-
fectuate the policies of the Act.
(a) Offer Eric Industrious, Willie Hatcher, and Nicola Diaz
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay and
other benefits resulting from their discharges, including mon-
eys due Willie Hatcher for losses incurred by him for not
giving him his Christmas bonus and vacation moneys respec-
tively. Backpay shall be computed in the manner set forth in
the remedy section of this decision.
(b) Offer Anthony Barton full reinstatement to his former
job on the presentation to Respondent of a valid driver’s li-
cense. If Barton is unable to obtain a valid license within a
reasonable period of time from the date of the Board’s Deci-
sion and Order, Respondent shall offer to reinstate him to a
substantially equivalent position. Reinstatement shall be with-
out prejudice to his seniority and other rights and privileges.
Respondent shall make Barton whole for any loss of pay and
other benefits resulting from his discharge, with backpay to
be computed in the manner set forth in the remedy section
above.
(c) Remove from its files all references to the discrimina-
tory discharges of Anthony Barton, Eric Industrious, Willie
Hatcher, and Nicola Diaz and to the written warnings issued
to Willie Hatcher on December 29, 1989, and notify each of
these employees in writing that this has been done and that
evidence of unlawful conduct will not be a basis for future
personnel actions against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Port Washington, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.