Oahu Refuse Collection Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 224 (N.L.R.B. 1974)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oahu Refuse Collection Co., Inc. and Construction and
General Laborers ' Union, Local 368, AFL-CIO.
Cases 37-CA-840-2 and 37-CA-863
June 28, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 29, 1973, Administrative Law Judge Henry
S. Sahm issued the attached Decision in this proceed-
ing. Thereafter, counsel for General Counsel and
counsel for the Charging Party filed exceptions and
supporting briefs and counsel for Respondent 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 autori-
ty in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent herewith.
The amended consolidated complaint alleged vio-
lations of Section 8(a)(1), (3), and (5) of the Act
against Respondent, Oahu Refuse Collection Compa-
ny, Inc. While the Administrative Law Judge found
that Respondent was guilty of a single violation of
Section 8(a)(1) of the Act and a single violation of
Section 8(a)(3), he dismissed numerous other alleged
violations of Section 8(a)(1) and also dismissed the
8(a)(5) allegation of the complaint. Counsel for Gen-
eral Counsel has excepted to the Administrative Law
Judge's failure to find the further 8(a)(1) violations
alleged and the failure to issue a bargaining order as
requested, while counsel for Respondent has cross-
excepted to the findings of violations by the Adminis-
trative Law Judge. We find merit in numberous ex-
ceptions of counsel for General Counsel, including
the exception to the Administrative Law Judge's fail-
ure to issue a bargaining order. In light of our decision
herein, we find it necessary to set out the facts of this
case at some length.
In July 1972, the Union began attempts to organize
employees of Respondent. Some 17 authorization
cards had been signed by the employees by August 30
and September 1, 1972, the days on which the Union
requested recognition and bargaining with Respon-
dent.' Respondent refused recognition on these days
and on August 31 stated that it desired a Board-con-
i Between the dates of the demand and the election herein, the Union
acquired another three cards
ducted election to determine the Union's representa-
tive status. On September 1, the parties entered into
an Agreement for Consent Election? The Union lost
the election 3 but filed timely objections to its con-
duct .4 The hearing before, the Administrative Law
Judge encompassed the violations alleged in the
amended consolidated complaint, the objections to
the election, and the challenged ballots. In his Deci-
sion, the Administrative Law Judge made various rec-
ommendations on the objections and challenges and
thereafter the representation case was, severed from
the unfair labor practice cases and was remanded to
the Regional Director for further processing pursuant
to the Agreement for Consent Election.5 The Admin-
istrative Law Judge also made various findings on the
violations alleged in the amended consolidated com-
plaint and it is to these findings that counsel for Gen-
eral Counsel has excepted. The violations allegedly
occurred: (1) before the Union's demand; (2) during
the time after the demand and before the election;
and (3) on the day of the election.
1. Incidents alleged before the dates of demand. As
noted above, the Union requested recognition of
Respondent's president and co-owner, Robert Henri-
ques, on August 30 and September 1, 1972.6 Prior to
that time, on August 17 or 18, Henriques had called
Johnson Kalawa, one of Respondent's foremen, into
his office and asked Kalawa if he had signed a union
card? Kalawa replied that he.had not signed a card
and Henriques stated, according to Kalawa's uncon-
tradicted testimony, that "he thought it was the help-
ers, and if he found out . . . anyone who signed cards
to join the union, he would fire them." Kalawa stated
that he told employees John Napulou and Jerry Sam-
bajon what Henriques had said that same day.'
Counsel for General Counsel alleged that Kalawa
was a supervisor and that his communication of Hen-
riques' threat to the employees was a violation of Sec-
2 Case 37-RC-1784
3 The election was held on September 20, 1972, and the tally of ballots
showed that of approximately 33 eligible voters, there were 30 votes cast, of
which 4 votes were for the Union , 8 were against , and 18 votes were chal-
lenged The challenges were sufficient to affect the election 's results
° On February 1, 1973, the Regional Director for Region 20 issued his
Report on Objections and Challenged Ballots in which he sustained the
challenges to five ballots and overruled one of the Union's objections. The
Regional Director bound over for heanng the remaining 13 challenges and
4 objections and, since certain issues in the representation proceeding were
also involved in the unfair labor practice proceedings on which a consolidat-
ed complaint had already issued , the Regional Director consolidated the 2
proceedings for hearing
5 On October 17, 1973, the Regional Director issued a Supplemental Re-
port on Challenged Ballots and Objections , in which he made various deter-
minations on the challenges and objections, and directed that , if the revised
tally of ballots showed that the Union had not received a majority of the valid
ballots,cast , the election be set aside . On October 29, 1973, a revised tally of
ballots showed 8 votes were cast for , and 15 votes were cast against, the
Union with I undetermined challenged ballot
6 All dates are 1972 unless otherwise indicated
7 The first union authorization cards were signed on August 15.
8 Henriques did not testify at the heanng
212 NLRB No. 51
OAHU REFUSE COLLECTION CO., INC. 225
tion 8(a)(1). The Administrative Law Judge, however,
found that Kalawa was neither a supervisor nor an
agent of Respondent and dismissed this allegation of
the complaint.
Kalawa, who was a working foreman for Respon-
dent, testified that, in providing refuse services to cus-
tomers, Respondent has three major routes: the
central route, the airport route, and the Waikiki route.
Kalawa was in charge of the Waikiki route .9 Kalawa
testified that he received a salary of $820 a month and
had five or six employees working under his supervi-
sion. Kalawa said that Henriques had expressly given
him and the other foremen the authority to hire and
fire employees although Kalawa had not done so.
Kalawa stated that he attended management meet-
ings and processed grievances on behalf of employees.
In the payroll periods for July and August, Kalawa
was being paid $150 more in each 2-week payroll
period than the highest admitted employee. We find
that Kalawa was a supervisor under the Act and thus
we find that Respondent violated Section 8(a)(1) of
the Act by Kalawa's repetition to employees Napulou
and Sambajon of Henriques' threat to fire anyone
who signed a union card.
2. Incidents between the dates of the demand and
the election. (A) David Silva, an employee of Respon-
dent, testified that, on or about September 11, Henri-
ques called Silva into his office and told Silva he was
going to change his status and make him a serviceman
and give him a few pennies more. Henriques then
asked Silva to sign a piece of paper that he had and
told Silva that some of the boys had signed the paper.
But Silva refused to sign. Silva testified that he later
found out the paper was a deauthorization slip to
withdraw from the Union.
The Administrative Law Judge made no finding
with respect to these actions of Henriques. We find,
however, that Henriques solicited Silva to withdraw
from the Union and, to encourage him to do so, of-
fered Silva an increase in salary. Both actions were
clear violations of Section 8(a)(1) and we so find.
(B) During the election campaign, Respondent
held a number of meetings for its employees. Various
employees testified about statements made by Henri-
ques at meetings held on September 11, 16, and 19.
September 11 meeting. Charles Ridings testified that
Henriques stated that he understood the employees
were trying to organize at Respondent and that, if
they were doing so, they should also try to organize
the other rubbish companies. Henriques said that if
the employees tried to organize at Respondent he
would fire the employees and run the Company with
9 Norman Jung handled the central route and Richard Germano handled
the airport route
his family. Henriques said that he wouldn't let the
Union in because he could not afford to pay "union
scale" and, if the Union did come in, he would have
to close down for that reason.
Employee Brian Boteiho testified that Henriques
said that, if the Union got in, it probably would drive
him out of business since other rubbish companies
would be nonunion and he could not afford to pay
"union scale." Henriques told them that he would try
to run the business himself, but if he did not he would
just close the gates. Botelho testified that Henriques
also mentioned something about a raise, but said he
couldn't give one because of the union election.
Employee George Ahia stated that Henriques said
the employees should have a raise. But Henriques also
stated that, if the Union came in, the Company would
close down and Henriques' family would run the busi-
ness. Henriques said he had to stay in competition
with the other companies, but stated as the reason for
having to close up that, if the Union got in, and he had
to pay the higher wages that the Union wanted, he
would go broke.
Employee John Napulou also testified that at this
meeting Henriques said that, if the Union came in, he
was going to close down the Company and would
probably run it by himself.
September 16 meeting. Charles Ridings testified that
at this meeting Henriques said that if the employees
continued on with their organizing efforts that he
would let them all go and operate without them. Hen-
riques again reminded the employees that he could
not pay higher wages than what he was now paying
and, if he were forced to do so, he would have to close
up. Henriques did say though that the drivers would
get a raise to $3 per hour but not immediately since
he could not afford to pay the raise then and to give
one at that time would look like a bribe.
George Ahia testified that Henriques said the driv-
ers should have a raise. But Henriques also said that,
if the Union got in, he was going to close the gates and
let his family run the operation.
David Silva testified that Henriques stated at this
meeting that whether the Union did or did not get in
that he held no grudges. Henriques informed the em-
ployees that he knew most of them had signed cards,
but he stated that this did not obligate them to vote
for the Union. Henriques stated he was not antiunion,
but said that, if the Union got in, he would last 3
months and then would have to shut down. Henriques
also said that, if the Union got in, most of the employ-
ees would not be there the next time.
Frank Verece, who initially was the employee lead-
er in securing authorization cards, but who later
signed a deauthorization slip withdrawing from the
Union, testified about this meeting also. Verece relat-
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that Henriques said that because Henriques could
not come with "union wages" that "he would have to
close his doors and work with his family and if he
can't he would close his doors."
September 19 meeting. John Napulou testified that
Henriques said at this meeting that he did not want
the Union to come in and if it did he was going to
close his shop. Henriques also said he was going to fire
anyone who signed a union card. Napulou replied
"yes" in answer to a question by Respondent's coun-
sel whether Henriques said at the meeting that he
could tell who signed union cards because, when the
Union came in, he would be able to see who was "out
there picketing." Lastly, Napulou testified that Henri-
ques said at that meeting that whoever wanted to get
out of the Union could sign papers he had in his
office.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) of the Act at the
September 11 and 16 meetings when Henriques
threatened the employees that he would terminate
them for the specific acts of signing a union card or
voting for the Union in the election. We agree that at
the September 11 and 16 meetings Henriques threat-
ened to fire the employees, but we find, based on the
testimony of employee Ridings, that Henriques
threatened such action on the general sanction that
the employees continued their organizing activities.
We do find, however, based on the testimony of em-
ployee Napulou, that at the September 19 meeting
Henriques violated Section 8(a)(1) by threatening spe-
cifically that whoever signed union cards would be
fired.
The Administrative Law Judge failed to find that
Henriques further violated the Act at these meetings
since he apparently found Henriques' comments on
closing the plant to have been merely "ingenious and
often rhetorical." Unlike the Administrative Law
Judge, we find that Respondent also violated Section
8(a)(1) of the Act at the September 11 and 16 meetings
when it threatened that it would have to close if the
Union got in due to an alleged inability to pay the
wages the Union would supposedly seek . Although
the various employees' recollections of the meetings
are not precisely the same, we think it clear from their
testimony that Henriques stated, at the least, that, if
the Union came in, he would have to close down
because he could not pay the higher wages, i.e., the
often quoted "Union scale" wages, that the Union
would demand.10
10 We note that some of the employees further testified that when Henri-
ques said he would close the business to the employees he also said he would
try to run it with his family. We do not pass on this statement since what we
have found Henriques said at those meetings is sufficient to support a finding
of a violation here.
An employer may speak freely to his employees
regarding issues that arise in connection with a union
organizational campaign, so long as his statements do
not contain a threat of reprisal or force or promise of
benefit. However, the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc.," set forth certain standards
to which an employer's statements, when they consti-
tute predictions of the effect unionization will have on
the employees, must conform in order not to be found
threatening. The Court stated that, although an em-
ployer is free to make a prediction as to the precise
effects he believes unionization will have on his com-
pany, he must carefully phrase that prediction on the
basis of objective fact to convey his belief as to the
demonstrably probable consequences beyond his
control or to convey a management decision already
arrived at to close the plant in case of unionization.'
Further, the Court noted that " `conveyance of the
employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not
a statement of fact unless, which is most improbable,
the eventuality of closing is capable of proof.' " 13
Judging Henriques' statements that Respondent
would have to close if the Union came in in light of
these standards, we find those statements were not
protected expressions of opinion but were threats of
retaliation in violation of Section 8(a)(1). They are so
because Respondent introduced no reliable evidence
to prove that the statements were based on fact or that
the eventuality of plant closing was a demonstrably
probable consequence of such fact. Respondent intro-
duced no proof showing that "union scale" wages
were and, in fact, it is clear that no wage or other
economical proposal had been presented by the
Union when these remarks were made.14 But Henri-
ques' statement implied that if the union got in, it
would automatically insist on "union scale" wages,
allegedly higher than what Henriques could afford,
which would automatically result in Respondent's
closing down. Balanced against this "certainty" that
the Union's coming would force Respondent out of
business , Henriques, at least at the September 16
meeting, offered the employees the promise of a small
raise after the election. Henriques' statements thus
faced the employees with the "dilemma" of selecting
the Union and seeing their jobs disappear or rejecting
11 395 U.S 575 ( 1969).
12 Gissel, supra at 618.
13 Gissel, supra at 618 , quoting from the circuit court's decision to Sinclair
at 397 F 2d 160
14 We do note , however, that at the time of the Union's request for recogni-
tion Henriques told Albert Keamo , the Union's representative, that he was
afraid that if the Union came in he would have to close his operation Keamo
replied , however, that the Union had no history of running companies out
of business and that, if recognized , the Union would negotiate a contract
suited to Respondent's financial situation.
OAHU REFUSE COLLECTION CO., INC. 227
the Union and obtaining an increase in pay. Under all
the surrounding circumstances, we find Henriques'
statement at the September 11 and 16 meetings that
Respondent would have to close if the Union came in
to be a violation of Section 8(a)(1) of the Act.15
We also find, based on the testimony of employee
Napulou, that at the September 19 meeting Henriques
solicited employees to withdraw from the Union.
While we do not overrule the Administrative Law
Judge's determination that employees Verece and
Buck, who signed withdrawal slips from the Union,
were not coerced into doing so by Respondent, we do
find, in line with paragraph 6(g) of the complaint and
Napulou's testimony, that, on September 19, Henri-
ques' general solicitation of the employees to with-
draw from the Union constituted a violation of
Section 8(a)(l).16
(C) The Administrative Law Judge found that Re-
spondent discharged and refused to reinstate Charles
Ridings on September 18 because of his union activi-
ties and that this was in violation of Section 8(a)(3) of
the Act. We find that Respondent violated the Act
that day with respect to Ridings, but we find that the
violation occurred with respect to Respondent's refus-
al to reinstate Ridings rather than its firing of him.
Ridings testified that early in September he told
Eddie Kahanui, Respondent's dispatcher, that he was
taking a 2-week leave of absence to aid his wife who
was expecting a baby and Kahanui granted his leave
of absence. Ridings was ultimately called back to
work by Kahanui and reported on September 18.
Henriques notified Ridings that day that he was dis-
charged for his failure to inform either Henriques or
his copartner or anyone in the Company that he was
taking leave. Ridings told him that he had told Kaha-
nui about the leave and Henriques said he had not
known that. But Henriques then said that, although
he wanted Ridings to return to work, he had been
advised not to hire Ridings back until after the elec-
tion. Ridings did not return to work until September
23, 3 days after the election.
We do not think that counsel for General Counsel
has proven that Ridings' discharge was motivated by
discriminatory reasons. There is no evidence to refute
Henriques' statement to Ridings that he had not
known that Ridings had informed Kahanui that he
was taking a leave of absence prior to his doing so.
Henriques' discharge of Ridings for this supposed
failure to inform anyone in the Company was thus
nondiscriminatory.
However, the evidence does clearly show that Hen-
riques' sole reason for refusing to reinstate Ridings
before the election was to try to prevent him from
voting in the election or to prevent having his vote
counted." By such action, Respondent violated Sec-
tion 8(a)(1). Further, we infer that Respondent's sole
reason for trying to keep Ridings from voting was its
thought that Ridings would cast a vote for the
Union.18 Thus, we also find Respondent's action to
have been a violation of Section 8(a)(3) of the Act.
3. Incidents on the day of the election. Henry Silva
testified that he was to act as an observer for the
Union at the election. Silva, who had called in sick on
election day, arrived at the company premises a few
hours before the election and had been talking to a
few employees when Henriques came, in Silva's
words, "storming out" of his office and told Silva to
stop harassing the men. Henriques told Silva to get off
his property or he would "shoot" Silva off the proper-
ty. Silva then started to walk out of the yard when
Henriques called him back. The two then went into
Henriques' office where Henriques apologized to Sil-
va for his action. Henriques then told Silva that he did
not want any trouble with him and told Silva he had
confidence in him. Henriques told Silva of his finan-
cial problems, i.e., that he could not pay union scale,
and reminded him of the raise he was to get. He also
told Silva again that if the Union got in he would lock
the employees out and try to run the trucks himself
and if he could not then "that is it.""
The Administrative Law Judge found that Silva
had used the word "shoot" as merely an expression
not meant to indicate that Henriques had intended to
inflict bodily harm on Silva, but rather that Henriques
would eject Silva from the yard. The Administrative
Law Judge thus dismissed that allegation of the com-
plaint which alleged that Henriques had threatened to
shoot Silva. Counsel for General Counsel had not
specifically alleged the meeting immediately follow-
ing this incident as a violation and, although the issue
of this meeting was fully litigated at the hearing, the
Administrative Law Judge made no finding on it.
We find, however, that Respondent violated Sec-
tion 8(a)(1) of the Act in the meeting Henriques had
with Silva after threatening him since at that meeting
Henriques repeated the threat to close that he had
previously made to Silva in the first week of Septem-
ber and to the employees at the meetings of Septem-
ber 11 and 16. For the reasons noted in our discussion
of those meetings, we find Respondent violated the
Act here.19
15 For the reasons noted above , we find that Henriques also violated Sec 17 Ridings did vote in the election and his ballot was challenged.
8(a)(1) when he told Silva in the first week of September that if the Union 18 There would have been no other rational reason for Hennques' action
got in he would last 3 months and then would have to close up since Hennques considered Ridings a good worker and wanted him back.
16 Del E. Webb Corporation, Harry Rosenzweig, and Newton Rosenzweig, 19 At para VI(d) of the amended complaint , it had been alleged that
Co-Partners d/b/a North Central Development Co, 204 NLRB No 158. Continued
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the Administrative Law Judge, we also
find that Henriques' threat to shoot Silva was a viola-
tion of Section 8(a)(1). First, we find that Henriques'
statement was clearly taken by Silva to be a threat of
physical harm against him. The Administrative Law
Judge found that Silva did not intend to convey such
a meaning, but we note Silva's direct testimony to the
contrary that Henriques "threatened my life there."
Silva testified that Henriques told him after the inci-
dent that he knew Silva was going to be a union
observer and, with that as background, in the context
of Henriques' conversation with Silva thereafter
wherein the sole topic was the Union, we find that
Henriques' threat to shoot Silva was an attempt to
dissuade him, in Henriques' mind, from fostering the
Union's cause and was thus in violation of Section
8(a)(1).
The Request for a Bargaining Order
Counsel for General Counsel urged the Adminis-
trative Law Judge to find that Respondent's actions
were so flagrant that a bargaining order was the only
appropriate remedy under the teachings of Gissel. The
Administrative Law Judge declined to so find but,
instead, recommended to the Regional Director that
the election held on September 20 be set aside and a
second election be held. Because of this recommenda-
tion, the Administrative Law Judge did not make any
specific findings as to the appropriateness of the unit
sought to be represented, the number of employees
within the unit, and the number of employees in that
unit who had signed valid authorization cards on the
days the Union demanded recognition of Respond-
ent. We now set out our findings in these areas.
All the parties stipulated that the Union requested
recognition of Respondent on August 30 and Septem-
ber 1. Respondent in its amended answer, however,
denied the approrpiateness of the unit set out in the
amended consolidated complaint, although it did ad-
mit that this was the unit for which it refused to grant
the Union recognition on August 31 and thereafter.
Paragraph VII of the amended complaint sets out the
unit as:
All employees of the Employer on the Island of
Oahu, in the State of Hawaii, excluding office
clerical employees, confidential employees, pro-
fessional employees, guards and/or watchmen
and supervisors as defined in the Act.
Henriques at various unknown times from August 1, 1972, to on or about
September 20, 1972, at the premises of Respondent had threatened employ-
ees that, if the employees selected the Union, Respondent would close its
operation . Thus this allegation fully covers the violation here found
Notwithstanding Respondent's denial in its amended
answer, the unit set forth above is a presumptively
appropriate unit, and we so find.
The parties stipulated that the following employees
were employed in the unit on the days of the demand:
George Ahia
Bryan Botelho
Joseph Buck
Jason Costa
Marshall Costello
Clayton Demello
Alfred Ekau
Charles Honokaupu
Michael Kaahanui
Alexander Kauanui
Steven Knight
Samuel Malama
Alexander Mercado
Ron Mannow
John Napulou
Henry Nuuanu
Jim Nicholson
Mike Nicholson
Charles Ridings
Jerry Sambajon
Ivan Santos
David Silva
Herman Smith
Jason Tai
Frank Verece
Richard Wong
The record shows that Robert Perez was also working
in the unit on the days of the demand.
The parties stipulated that various employees
whose names appear on Respondent's payroll records
at relevant times should be excluded from the unit
because they were hired after the demand,20 left be-
fore the demand,21 were sons of Henriques,22 were
outside the unit,23 or were casual employees.24
The various stipulations of the parties leave the
following employees whose status is still in doubt:
Joseph Alana, David McClain, Johnson Kalawa,
Richard Germano, Norman Jung, and Eddie Kaha-
nui.
Joseph Alana. After initially stipulating that Alana
was an employee on the dates of the demand, counsel
for Respondent changed his position on the represen-
tation that Respondent's payroll records last show
Alana working for the payroll period ending August
25. The payroll records bear out this contention. In
light of this, we exclude Alana from the unit.
David McClain. McClain was employed at Re-
spondent from August 29 to September 11 and Re-
spondent contends he was a regular employee at the
20 Ricarte Albayant, Leonard Kaih, Roger Sanico , Smauel Towles , Saburo
Worl
21 Harvey Makekau, Alan Makekau, James Shizuru, Jr
22 Robert Henriques , Jr, Joseph Henriques.
23 Frank Enright , a salesman. We note also that the Union and Respon-
dent at the time they signed the Agreement for Consent Election agreed that
the following persons were properly excluded from the unit. Kathaleen Cos-
ta, Janet Kaninau , Marylou Stazskow, Barbara Cervantes
24 Robert Smith After arguing at the hearing that Jules Demello should
be included in the unit , counsel for General Counsel in his brief now states
Jules Demello should be excluded as a casual employee Respondent had
argued this at the hearing We accept the parties' disposition on Jules Demel-
lo
OAHU REFUSE COLLECTION CO., INC. 229
time. Respondent has submitted no further evidence
to support its contention and we find that McClain is
a casual employee who is excluded from the unit.
Johnson Kalawa, Richard Germano, Norman Jung.
Kalawa was found to be a supervisor supra and is thus
excluded from the unit. At the hearing, all parties
stipulated that at all times material the job responsi-
bilities of Kalawa, Germano, and Jung were the same
and that a determination on Kalawa's status would
govern the findings on Germano and Jung. We thus
find Germano and Jung to be supervisors and we
exclude them from the unit.'s
Eddie Kahanui. Kahanui was Respondent's dis-
patcher, and counsel for General Counsel alleges that
he is a supervisor. Kahanui was salaried and earned
approximately $130 more in each 2-week pay period
in July and August than the highest admitted employ-
ee. According to Kalawa, Kahanui attended manage-
ment meetings .26 Kahanui is the individual to whom
the employees call in if they are to be out of work for
a while since neither Henriques nor his copartner are
present at work early in the morning. Kahanui's gen-
eral duties are to relay messages to the drivers con-
cerning pickups, but we note that Ridings testified
that it was Kahanui who granted him the leave of
absence. This action, plus his salary and his atten-
dance at management meetings convinces us he is a
supervisor, and thus we exclude him from the unit.27
We therefore find that, on the days of the demand,
the unit numbered 27 employees. This includes the 26
agreed-upon employees and employee Robert Perez.
When the Union requested bargaining of Respond-
ent, 17 employees had signed authorization cards.
Two of those employees, however, were Joseph Ala-
na, whom we have found was not working at Respon-
dent on the days of the demand, and Jules Demello,
whom the parties agreed should be excluded as a cas-
ual employee. This leaves 15 cards as possibly valid.
The following 13 employees signed cards before the
25 We note that Richard Germano voted in the election held on September
20, and that m his Supplemental Report on Challenged Ballots and Objec-
tions the Regional Director adopted the Administrative Law Judge's recom-
mendation that the challenge to the ballot of Richard Germano be overruled
and his ballot counted . While the Regional Director 's disposition of
Germano's ballot is determinative in the representation case by virtue of his
powers under the agreement for consent election , we are not precluded from
considering Germano's status as it relates to the unit in which the Union
alleges majority status since a determination on the Union 's claim of majority
is here the predicate to a determination of whether a bargaining order is
warranted . This issue, which is presently before us, is necessarily , a matter
for Board resolution. In such circumstances, we deem it irrelevant that we
have reached a decision on Germano 's status that is different from that of
the Regional Director.
26 Kahanui did not testify.
27 We note that Kahanui, like Germano, voted in the election , had his
ballot challenged , and that the Regional Director over-ruled the challenge to
his ballot and counted it . For the reasons expressed in footnote 25 above, we
do not consider the Regional Director's decision as to Kahanui's status
determinative of the issue herein.
demand dates and. Respondent does not question the
validity of their cards: George Ahia, Joseph Buck,
Charles Honokaupu, Michael Kaahanui, Alexander
Kauanui, Alexander Mercado, John Napulou, Henry
Nuuanu, Robert Perez, Jerry Sambajon, David Silva,
Jason Tai, and Frank Verece. Respondent, however,
does argue that the cards of Bryan Botelho and Steven
Knight, both of whom signed before the demand
dates, are invalid since these employees were deceived
as to the purpose of the cards.
The authorization cards that all the employees
signed stated:
I, the undersigned, hereby designate Local
Union No. 368 of the of the Laborers' Interna-
tional Union of North America, affiliated with
AFL-CIO, as my collective bargaining represen-
tative in all matters pertaining to labor condi-
tions, wages and hours of employment, and (if
not yet a member,) I do hereby apply for member-
ship in Local Union No. 368 affiliated with the
above International Union and agree to abide by
all the provisions of the Constitution and By-
Laws of said Local and the International Union.
Brian Botelho answered affirmatively to the follow-
ing leading question asked him on cross-examination
by counsel for Respondent: "Did Mr. Verece tell you
that the only reason for signing the card was to get an
election for the employees to see if they wanted to
have a Union? " Seemingly, it is on the basis of
Botelho's affirmative response that Respondent ob-
jects to his card. Botelho testified further, however,
that he knew what the card said when he signed it.
When asked on redirect by counsel for General Coun-
sel to state again what Verece said, Botelho stated this
time that Verece "said it was for an election. And he
said if the election did go through it was sort of like
an application. I guess. I mean, it was like you were
in the Union, something like that." Botelho also testi-
fied that Stephen Knight signed a card at the same
time as he did and he thought Verece told Knight
what he had told him since the two were standing
together.
Knight, however, said that Verece had asked him if
he wanted more money and, when he said he did,
Verece then said, "Okay, here is a card, join the
Union." Verece also told Knight that if he signed the
card he would become eligible for the benefits of the
Union's health and welfare fund. Knight never men-
tioned that Verece had said the card was only to get
an election.
It is clear that Stephen Knight was in no way de-
ceived as to the purpose of the card he signed and his
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card is counted. So also is the card of Bryan Botelho.
We note that the card he signed stated clearly and
unambiguously on its face that the signer designated
the Union as his representative. We note Botelho's
statement that he knew what the card said when he
signed it. Finally, we do not think it has been^demon-
strated that the language of the card was "deliberately
ahd clearly cancelled" with words calculated to direct
Botelho to disregard and forget the words of the
card 28 We do not think it has been shown that Botel-
ho was told his card was to be used solely to secure
an election and, in such circumstances, we think Bo-
telho should be bound by the clear language of what
he signed.29
Accordingly, we find that on August 30 and Sep-
tember 1, when the Union requested bargaining with
Respondent, 15 employees in a unit of 27 employees
had signed valid authorization cards and that the
Union was thus the collective-bargaining representa-
tive of the employees in that unit. Further, in the
circumstances of this case, we conclude that a bar-
gaining order, rather than a second election, is clearly
warranted.
We have found that upon the advent of the Union's
organizing efforts Respondent's president and co-
owner, Robert Henriques, by means of individual
conversations and group meetings with employees,
engaged in a number of 8(a)(1) violations and a viola-
tion of Section 8(a)(3). The evidence shows that Hen-
riques threatened numerous times to close down
and/or lockout the employees if the Union got in;
threatened to fire the employees if they continued in
their organizing efforts or if he found out they had
signed authorization cards; solicited employees to re-
voke their union authorizations; and refused to rein-
state an employee until after the election in order to
prevent that employee's voting.
The threats and actions described above may, of
course, be presumed to have had a severe initial im-
pact on the employees. We also conclude that these
actions may be presumed to have had an impact that
has destroyed the likelihood that a true picture of
employee sentiment may now be obtained through
the election process. Thus, we note that the actions of
Respondent's president included not one but a series
of serious threats which were communicated to the
employees as a group and on an individual basis on
numerous occasions. We note that the threats, if car-
ried out, would have affected every employee in the
28 Gissel, supra at 606.
29 Gissel, supra at 606-607.
Member Kennedy would not count Botelho's card He is persuaded that
the evidence establishes that Botelho was told that "the only reason for
signing the card was to get an election ." Member Kennedy agrees , however,
that the Union had a majority without Botelho's card and that a bargaining
order is warranted
unit and that the threats included nothing short of
complete termination of employment, whether by
Henriques' threatened firing of the employees or his
closing down his operation. Finally, we note that
Henriques, as president and co-owner of Respondent,
was in a position eminently suited to carrying out the
threats he made, and that it is thus reasonable to
assume that the employees took his threats seriously.
Thus, we find that the actions of Respondent have
rendered a fair second election a slight possibility at
best. We conclude that the unambiguous cards validly
executed by a majority of the employees in the unit
represent a more reliable measure of employee desires
on the issue of representation than would a second
election and that the policies of the Act will be best
effectuated by our entering an order requiring Re-
spondent, upon request, to bargain with the Union.
However,, consistent with our opinion in Steel-Fab,
Inc.,30 we predicate this bargaining order solely on our
finding of the numerous 8(a)(1) violations and the
8(a)(3) violation set forth above. We dismiss that part
of the amended consolidated complaint which alleges
an 8(a)(5) violation based on Respondent' s commis-
sion of the various unfair labor practices we have
found. As we noted in Steel-Fab, Inc., it is not essen-
tial to make 8(a)(5) findings in order to insure a, bar-
gaining order and we prefer to ground our issuance of
the bargaining order on the more desirable analysis of
the Employer's 8(a)(1) and/or 8(a)(3) conduct. Hav-
ing concluded that analysis, we reiterate that a bar-
gaining order is appropriate here.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By Respondent President Henriques' threat,
communicated to employees Napulou and Sambajon
by Respondent's supervisor, Kalawa, that Henriques
would fire anyone he found had signed a union card,
Respondent violated Section 8(a)(1) of the Act.
4. By Respondent President Henriques' threat to
employee Silva that Respondent would close down if
the Union got in, Respondent violated Section 8(a)(1)
of the Act.
5. By Respondent President Henriques' solicita-
tion of Silva to sign a withdrawal slip from the Union
and his offering an increase in salary to Silva, Re-
spondent violated Section 8(a)(1) of the Act.
6. By Respondent President Henriques' threat to
the employees who were present at the meetings of
September 11 and 16 that he would fire the employees
30212 NLRB No 25.
OAHU REFUSE COLLECTION CO., INC. 231
if they continued their organizing activities, Respond-
ent violated Section 8(a)(1) of the Act.
7. By Respondent President Henriques' threat to
the employees who were present at the September I 1
and 16 meetings that Respondent would close down
if the Union came in, Respondent violated Section
8(a)(1) of the Act.
8. By Respondent President Henriques' solicita-
tion of the employees at the September 19 meeting to
withdraw from the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
9. By Respondent President Henriques' threat at
the September 19 meeting to fire anyone who signed
a union card, Respondent violated Section 8(a)(1) of
the Act.
10. By Respondent President Henriques' election
day threat to Silva that Respondent would close down
if the Union came in and his threat to shoot Silva,
Respondent violated Section 8(a)(1) of the Act.
11. By Respondent President Henriques' refusal to
reinstate employee Ridings in an attempt to prevent
him from voting in the election or to prevent having
his ballot counted, Respondent violated Section
8(a)(1) and (3) of the Act.
12. An appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act is:
All employees of the Employer on the Island of
Oahu, in the State of Hawaii, excluding office
clerical employees, confidential employees, pro-
fessional employees, guards and/or watchmen
and supervisors as defined in the Act.
13. On August 30, 1972, and September 1, 1972, the
Union represented a majority of the employees in the
above unit and was, and is now, the exclusive repre-
sentative of all employees in the unit above for the
purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
14. The above-mentioned unfair labor practices af-
fect commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Oahu
Refuse Collection Co., Inc., Honolulu, Hawaii, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees that it would close
down if the Union got in.
(b) Threatening its employees that it would fire
anyone whom it found had signed a union card or
who was engaged in organizing activities.
(c) Soliciting its employees to withdraw from the
Union.
(d) Threatening to shoot an employee to dissuade
him from engaging in activities it thinks were pro-
union.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment, as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the
Union as the exclusive collective-bargaining represen-
tative of its employees in the unit found appropriate
above.
(b) Make Charles Ridings whole for any loss of pay
he suffered by reason of the refusal to reinstate him
in the manner set forth in the section of the Adminis-
trative Law Judge's Decision entitled "The Remedy."
(c) Preserve and, upon 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.
(d) Post at its place of business at Honolulu, Oahu,
Hawaii, copies of the attached notice marked "Ap-
pendix." 31 Copies of said notice, on forms provided
by the Regional Director for Region 20, after being
duly signed by the Respondent's representative, shall
be posted by 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 Respond-
ent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Decision,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the amended consolidat-
ed complaint be dismissed insofar as it alleges viola-
tions of the Act not found herein.
3 1 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with my colleagues in the majority that Re-
spondent engaged in egregious violations of Section
8(a)(1) and a violation of Section 8(a)(3) of the Act
and that a bargaining order to remedy such violations
is warranted in this case. However, as stated in my
dissent in Steel-Fab, Inc., 212 NLRB No. 25, 1 would
continue, in accordance with the Supreme Court's de-
cision in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), to base the issuance of such bargaining
orders on findings of violations of Section 8(a)(5). In
this case I would find that Respondent has violated
Section 8(a)(5) and that a bargaining order should
issue dating from August 30, 1972, the date of the
Union's initial request for recognition and
Respondent's refusal.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
watchmen , and supervisors as defined in the
Act.
WE WILL make Charles Ridings whole for any
loss of pay he suffered by reason of our discrimi-
natory refusal to rehire him.
OAHU REFUSE COLLECTION
CO, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1311 Kapiolani Boulevard, Suite 308,
Honolulu, Hawaii 96814, Telephone 808-546-5100.
WE WILL NOT threaten our employees that we
will close down if the Union, Construction and
General Laborers ' Union, Local 368 , AFL-CIO,
gets into our operation.
WE WILL NOT threaten our employees that we
will fire anyone whom we find out signed a union
card or participated in organizing activities.
WE WILL NOT solicit our employees to withdraw
from the Union.
WE WILL NOT threaten to shoot any employee to
dissuade him from engaging in activities we think
are prounion.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act, except to the extent that such rights may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of
the Act.
WE WILL, upon request , bargain in good faith
with the Union as the exclusive collective-bar-
gaining representative of the employees in the
following appropriate unit:
All employees of the Employer, on the island
of Oahu, in the State of Hawaii, excluding of-
fice clerical employees, confidential employ-
ees, professional employees, guards and/or
DECISION AND REPORT ON OBJECTIONS
HENRY S. SAHM, Administrative Law Judge: These cases
arose as a result of a union organizational campaign, insti-
tuted in July 1972 by the Construction and General Labor-
ers' Union, Local 368, AFL-CIO, herein called the Union,
among Respondent's employees who were engaged in col-
lecting refuse.' Twenty of the either 33 or 34 unit employees
signed authorization cards between August 15 and Septem-
ber 14, inclusive, which designated the Union to act as their
bargaining agent for the eventual purpose of having the
Union represent the said employees in collective-bargaining
negotiations with Respondent, Oahu Refuse Collection Co.,
Inc., hereinafter called the Company By letter dated Au-
gust 22, the Union notified Respondent that "several" of its
employees had indicated an interest in authorizing the
Union to represent them. The Union filed a representation
petition with the Board on August 23. On August 30 and
September I, the Union claimed that it represented a major-
ity of Respondent's employees who hauled refuse and orally
requested recognition. Respondent refused to grant recogni-
tion but an agreement for a consent election was entered
into on September I, pursuant to which an election was held
from 5 to 5:30 p.m. at the company premises on September
20. The tally of ballots showed that there were 33 eligible
voters and that 30 votes were cast, of which 4 votes were for
the Union and 8 against the Union. There were no void
ballots and 18 were challenged. The challenged ballots are
sufficient in number to affect the results of the election.
Thereafter, on September 26, the Union filed timely objec-
All dates are 1972 unless otherwise indicated
OAHU REFUSE COLLECTION CO, INC 233
tions to the conduct of the election, based on alleged im-
proper company conduct Charges were filed by the Union
on September 27 and December 5, 1972, and the trial began
on March 8, 1973. Briefs were filed on April 19 and 23, 1973.
REPORT ON OBJECTIONS 2
The objections to be considered allege-
1. That on September 19, 1972, the Employer engaged in
antiunion activity by obtaining from several employees
written statements revoking previously granted authority to
the Union to represent said employees.
2. That between the time of the filing of the agreement
for consent election by the parties on September I, 1972,
and the time of the election held on September 20, 1972, the
Employer substantially changed the membership of the bar-
gaining unit by firing and otherwise pressuring and coercing
employees to quit These employees were subsequently re-
placed by antiunion workers.
3 That the Employer threatened to close down the plant
with resulting loss of jobs if the Union won the election.
4. That the Employer's representatives influenced the
election by being in the immediate vicinity of the balloting
area at the time of the election.
No evidence, as such, was produced at the hearing by the
General Counsel in support of the objections. He stated that
"the issues in the representation case are not a part of the
General Counsel's case." However, Charging Party main-
tained that the objections were substantially the same as
those alleged in the complaint. The unfair labor practices
alleged in the complaint are discussed in later sections of
this Decision and disposition made of them.
On°January 16, 1973, the Regional Director issued an
order directing that the hearing on objections (Case 37-
RC-1784) be consolidated with the unfair labor practices
allegations (Cases 37-CA-840-2 and 37-CA-863), and the
three cases were set for hearing on March 8, 1973. The order
of consolidation requested that a report be made by the
undersigned, consisting of findings of fact and recommen-
dations as to the disposition of the above objections and
challenged ballots. Briefs were filed on April 19 and 23. The
Respondent answered by a general denial which disclaimed
commission of any unfair labor practices.
FINDINGS OF FACT
THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a Hawaii corporation, is engaged at Hono-
lulu, Hawaii, in the collection of refuse. For the year ending
July 31, 1972, Respondent's gross revenues were
$1,096,335.85 and Respondent purchased and received
goods and supplies valued in excess of $50,000 from sup-
pliers located outside the State of Hawaii. Upon the above
admitted facts, it is found that Respondent is an employer
engaged in an activity affecting commerce within the mean-
2 Objection 1, alleging that employer met with the employees and discussed
the Union within 24 hours prior to the election , was dismissed by the Region-
al Director See p 3 of G C Exh 1(k)
ing of Section 2(6) and (7) of the Act J It is further found
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Respondent did not summon any witnesses in this pro-
ceeding The testimony elicited from the General Counsel's
witnesses , therefore, is uncontroverted. Accordingly, the
facts as they related them under oath are found to be true
and the Respondent is precluded from challenging them.
The complaint alleges Respondent violated Section
8(a)(l) of the Act by interrogating, threatening, and promis-
ing benefits to employees to induce them to abandon the
Union, and soliciting them to revoke union authorization
cards which they had previously signed. Furthermore, the
complaint alleges that Respondent has violated Section
8(a)(5) by refusing to meet and bargain with the Union and,
additionally, by refusing to reinstate an employee because
of his union activities in violation of Section 8(a)(3) of the
Act.
The testimony concerning the chronology of some inci-
dents involved is contradictory, ambiguous, and incomplete
regarding what occurred where due in part to various wit-
nesses' difficulty with English. Findings of fact made herein,
therefore, result from an attempt to reconcile the evidence
to determine not only when particular events occurred but
what occurred. In attempting to supply coheience to both
those statements which in some instances approach incoher-
ence, and acts which are ambiguous because of a paucity of
evidence or, in some instances, a failure of proof, necessary
recourse has been made to the context of other facts and
circumstances in an effort to determine what was meant or
occurred.
Alleged Section 8(a)(1) Violations
Employees of the Respondent 4 testified that Robert
Henriques, President of the Company, spoke to them about
the Union at two meetings held on or about September 11
and 16, at the Company's premises. At these two meetings,
Henriques told the assembled employees that he was against
the Union and he did not want the Union He said he could
not afford to pay his employees the union wage scale, and
if they were "to vote in the Union," he would be forced to
close his business. Henriques also warned the employees
that if they signed a union card or voted for the Union in
the Board election on September 20, he would fire all of
them. Henriques continued that his was the only refuse
company in Honolulu whose employees were being orga-
nized by the Union, and if the Union was successful and he
had to pay the union wage scale and his competitors did not,
it would force him to close down his business because of his
poor financial situation.
At the second meeting on September 16, which was held
4 days before the election, John Napulou, who worked for
the Respondent, testified that Henriques announced to the
employees that whoever wished to get out of the Union
J It was stipulated that Respondent purchased fuel and other related prod-
ucts from Standard Oil Company in the approximate amount of $48,000
annually
4 Steven Knight, Charles Ridings, Bryan Botelho, George Ahia, David
Silva, John Napulou, Jerry Sambajon, Frank Verese, Joseph Buck, and John-
son Kalawa
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should come to his office and sign a paper. Two employees,
Verese and Buck, both testified that they voluntarily and on
their own initiative went, at different times, on September 19
to Henriques' office and inquired separately of him how
they could withdraw from the Union, whereupon they
signed a "paper" which was handed them.5
At the meeting on September 16, Verese told all the em-
ployees present, after Henriques had left the meeting, that
he was withdrawing from the Union because the employees
of Respondent's business competitors were not being orga-
nized by the Union. This he implied was unfair to Respon-
dent.
Silva, an employee, corroborated Verese. He testified that
at the September 16 meeting, Verese apologized to the em-
ployees "for the mistake he made .. . in getting the boys
involved with union activity . . . he was the one that held
the meeting over to his house . . . He was the one that
passed cards around; he was the one that told everybody to
vote yes for the Union." 6 Silva continued that Verese told
the assembled employees he was "very sorry" for his union
activities, as Mr. Henriques had been so good to him as
evidenced by him loaning Verese money in the past.
Buck signed the withdrawal paper in Henriques' pres-
ence, and there was no discussion between him and Henri-
ques. ". . . I just wanted to pull out."
Silva testified that Henriques called him into his office
around September 11, and informed him "he was going to
... change myjob . . . and he was going to give me a few
pennies more. . . . He had a piece of paper . . . and told
me that some of the boys had signed this paper, that he
would want me to sign it too." Silva refused and "walked
out." He continued that he later learned at the "union hall
. .. that if I was to sign that paper that I would give my
authorization to dump the Union."
The complaint alleges that Respondent promised em-
ployees a wage increase and "improved working condi-
tions." There is no evidence that Henriques promised them
improved working conditions. All of the witnesses, except
Ridings, testified that Henriques stated he would like to give
them a pay raise but he could not afford it. Ridings, the
alleged discrimmatee, testified that Henriques told the em-
ployees at the September 16 meeting that "if he gave us a
raise now that the Union would think that he was trying to
bribe us into favoring him on the election. . . . He said he
would like to give us a raise. . . . And that we would get
a raise but it would be after the election."
The complaint further alleges that Henriques on the day
of the election "threatened to shoot an employee because he
had come to Respondent's place of business in order to
vote." The record reveals that on the day of the election,
David Silva, an observer for the Union, testified that he
went to Respondent's premises approximately 2 hours be-
fore the polls were to open.' While speaking to a few of his
fellow employees, Silva testified that "all of a sudden Henri-
5 G C Exhs 5 and 6
6 Verese obtained nine signatures on union authorization cards and had a
meeting at his home
7 Silva had a friendly telephone conversation with Henriques on the morn-
ing of the day the election was held, at which time Henriques inquired
whether he was going to vote
ques comes flying out, storming out of his office. He looks
at me. He says, `I want you to quit harassing the men.' .. .
so he said, `Look, I want you out of this yard or I will shoot
you out of the yard.'.. . . So I started to walk out of the
yard . . and he called me back into his office... ." A
calm conversation, Silva testified, then ensued during which
Henriques "apologiz[ed]" to him and said- "if the Union got
in he was going to lock us all out, he was going to try and
run the trucks by himself, and that if he can't run the trucks
by himself that is it." 8
On cross-examination, when Silva was asked to explain
his testimony on direct that Henriques told him he wanted
him out of the yard or he would "shoot [him] out of the
yard," Silva testified that when Henriques used the word
"shoot" -- "He flew out of the office ... like a bird .. .
He was off the ground and coming down and power land-
ing. He was nuttier than I am. . . . It is the same thing as
if I said he stormed out of the office because there was no
stormy day that evening. But that is an expression."
Discussion and Ultimate Findings and Conclusions
The burden is on the General Counsel's representative to
prove his case affirmatively against Respondent by a pre-
ponderance of the evidence,9 and not upon Respondent to
disprove it.10 The burden may be met by drawing reason-
able inference from established fact," provided it is sup-
ported by substantial evidence when viewed on the record
as a whole;12 unless there is a reasonable basis in the evi-
dence for findings of unfair labor practices, the Employer
need not excuse orjustify his action.'3 It is not the burden
of the Employer to show the absence of proscribed motiva-
tion but that of the General Counsel to establish its pres-
ence.14 The burden to sustain the allegations in the
complaint rests continuously on the General Counsel, and
does not shift to the Respondent.l5 However, the evidence
adduced here, in many instances, merely raises some specu-
lation but speculation can neither suffice for substantial
proof nor can such speculation be accepted as justifiable
inference, 1f to do so means ignoring positive evidence ar-
rayed against such mferences.16 To be sure, every reason-
able inference is permissible but suspicion must not be
allowed to take the place of proof.
Accordingly, viewed as a whole, and bearing in mind that
in controversies of this kind, the paramount purpose of the
Act is to secure to the employees freedom of choice in the
selection of their collective-bargaining representative, it is
found that in the specific instances below, the General
Counsel's representative has not proved affirmatively by
8 The record reveals Respondent operated approximately 15 garbage
trucks
9 Sec 10(e) of the Act. N L R B v Cleveland Trust Co, 214 F 2d 95, 99
(C A 6) See American Flint Glass Workers' Union v N L R B, 230 F.2d 212,
216 (C A D C . 1956). cert denied 351 U S 988 (1956)
i° N L R B % Soft Water Laundry, Inc, 346 F 2d 930, 935 (C A 5, 1965)
1 N L R B v Neveda Consolidated Copper Corp, 316 U S 105, 107
12 Universal Camera Corp v N L R B, 340 U S 474
13 N L R B v Wagner Iron Works, 220 F 2d 126 (C A 7), cert denied 350
U S 981
14 New Big Creek Mining Co, 105 NLRB 97, 104
15 N L R B v Brady Aviation Corp, 224 F 2d 23, 25 (C A 5)
16 N L R B v Murray Ohio Mfg Co, 326 F 2d 509, 513 (C.A 6), N L. R B
v Ace Comb Co. 342 F 2d 841 (C A 8. 1965)
OAHU REFUSE COLLECTION CO., INC. 235
substantial evidence the allegations of the complaint. How-
ever, in other instances specified below, he has discharged
the burden of proof, which the law places upon him with
respect to other allegations of his complaint.
There is not any probative evidence that Johnson Kala-
wa, as alleged in the complaint, both interrogated an un-
specified "employee" and also informed an unnamed
"employee" that Henriques would find out which employ-
ees had signed union authorization cards and would termi-
nate any such "employees." It is true that Kalawa testified
that Henriques told him if he found out the names of any
employees who had signed a union card, he would fire them,
and that Kalawa repeated his conversation with Henriques
to employees Napulou and Sambajon; nevertheless, on
cross-examination, when asked to account for his affidavit,
which he gave to a Board investigator, not mentioning
Sambajon's name but only Napulou, Kalawa explained that
he "forgot." When asked what Napulou and Sambajon said
in response to his recital of Henriques' threat, he answered:
"They said, `Oh, yeah"' and nothing more. However, before
imputing legal responsibility to Respondent for his alleged
violation of the Act, it must be shown that Kalawa was an
agent of Respondent.17
Johnson Kalawa is alleged in the complaint not to be a
supervisor but an "agent" of Respondent within the mean-
ing of Section 2(13) of the Act, which states that "In de-
termining whether any person is acting as an `agent' of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified
shall not.be controlling." The General Counsel argues that
Kalawa was such an "agent" and therefore, Respondent is
liable for the incident detailed immediately above. Even
assuming, arguendo, that Kalawa was such an agent, his
actions did not constitute a violation of the Act under the
circumstances. Kalawa is merely one of all the drivers em-
ployed by Respondent to man its approximately 15 rubbish
trucks. Kalawa never exercised any hiring or firing power
nor recommended pay raises for his helper. Sambajon testi-
fied that Kalawa is a "worker" like himself. Keamo, a union
official, described Kalawa as "sort of a leadman." Respon-
dent had three collection routes on the island of Oahu, one
of which was handled by Kalawa and the other two routes
by truckdrivers Germano and Jung. The latter two, it is not
too unreasonable to assume, were not supervisors either, but
merely truckdrivers who had a helper to aid them in loading
the rubbish into the truck. Both the General Counsel and
Kalawa referred to Germano and Jung as "foremen." It is
found that Kalawa, Germano, and Jung were not superviso-
ry employees within the meaning of Section 2(11) of the Act.
None of them, it appears, had responsibility requiring the
exercise of independent judgment within the meaning of
Section 2(11) of the Act. Moreover, both Kalawa and his
fellow employees regarded one another as rank and file.
Furthermore, an employer is not liable for the antiunion
conduct of a nonsupervisory employee who is not so identi-
fied with management that the other employees could rea-
sonably infer that Kalawa was acting for Respondent.'$
Accordingly, it is found that Kalawa is not an agent of
Respondent within the meaning of the Act. It shall be rec-
ommended, therefore, that paragraphs VI(a), (b), and (c) of
the complaint, as amended be dismissed.
The allegation that Henriques solicited employees Verese
and Buck to revoke their union authorization cards is not
shown by the evidence to be a violation of Section 8(a)(1).
On the contrary, the evidence reveals that both Verese and
Buck went to Henriques' office on their own initiative and
voluntarily told him they wished to withdraw from the
Union. No evidence was introduced which reveals either of
these two employees were coerced or offered any proscribed
inducement to sign the "paper" whereby they revoked and
withdrew their previously signed union authorization cards.
They voluntarily wished to disaffiliate from the Union. Ac-
cordingly, it is recommended that this allegation be dis-
missed.
It is believed that when Silva used the word "shoot" it was
being used by him as "an expression" and not literally, as
he seems to indicate above, and that he did not mean to
convey that Henriques had threatened to imperil Silva's life
by the use of a lethal weapon. It is found that Henriques,
assuming he used the word "shoot," employed this word in
the sense that he would eject Silva from the premises. It is
possible also that Silva, an emotional and volatile witness,
probably misunderstood what Henriques said. Significant
also is the fact that Ridings, an alleged discriminatee, who
voted the day this incident occurred, testified that he never
heard that Henriques had threatened to shoot an employee.
It is not too unreasonable to assume that such an unusual
incident, allegedly occurring on the day of the election,
would have been known to the employees, particularly in a
small company such as Respondent.
It is recommended, therefore, that the allegations of para-
graph VI(1) of the complaint, which alleges Henriques
threatened to shoot Silva be dismissed.
Also alleged by the General Counsel as a violation of
Section 8(a)(1) is a conversation in Henriques' office be-
tween Henriques and Silva during the first week of Septem-
ber. Silva testified that Henriques told him if the Union "got
in . . . he would last three months and would have to close
down the yard." Implicit in this statement, as reflected
throughout the record, is the fact that Henriques did not
mean this as a threat but rather to indicate that his financial
condition was so bad that he would be unable to stay in
business if he were required to pay union wages in the
context of his competitors not being unionized. Silva's testi-
mony continues that Henriques stated: "He wasn't against
the Union . . . but he wanted the boys to get the right
Union.... He also mentioned about he knew who signed
cards, in other words, we weren't obligated to vote, that we
was entitled to vote, yes or no regardless of how we felt
.... He had confidence in me to do the right thing."
Not only Silva, but also other witnesses , made it clear that
Henriques did not promise employees "a wage increase in
order to persuade them to abandon their union activities,"
as alleged in paragraph VI(k) of the complaint. What Henri-
17 The General Counsel at the hearing moved to amend the complaint to
allege interrogation of Verese by Henriques 2 weeks before the election, 18 A W.C Inc., 162 NLRB 1119, 1136; Goodyear Mill No 2, 102 NLRB
which motion was granted. See p.p. 324-327 of the transcript 1329 1346; The Russell Manufacturing Co., 82 NLRB 1081
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ques told them was that he would like to increase their pay
and that he would if his financial situation improved but at
the present time he was unable to do so. These statements
do not attain the stature of an unfair labor practice. Accord-
ingly, it is recommended that paragraphs VI(i) and (k) be
dismissed.
In this proceeding, however, the bare recital of the above
facts is insufficient to show restraint , coercion , or interfer-
ence within the meaning of Section 7 or Section 8(a)(1).,
Accordingly, recourse was had and reliance placed upon
accompanying circumstances . Consideration has been giv-
en also to all the attendant circumstances in the context of
the overall perspective here presented.19
These circumstances have been considered compositely
and inferences drawn which are reasonably justified by
their cumulative, probative effects. "Events obscure, ambig-
uous, or even meaningless when viewed in isolation may,
like the component parts of an equation , become clear,
definitive and informative when considered in relation to
other action . Conduct, like language, takes its meaning from
the circumstances in which it occurs." 20 "The fact that there
is evidence considered, of and by itself, to support an ad-
ministrative decision is not sufficient where there is oppos-
ing evidence so substantial in character as to detract from
its weight and render it less than substantial on the record
as a whole." 21
With respect to the alleged violations of Section 8(a)(1),
the test is whether the conduct charged was reasonably
calculated to interfere with the employees' free choice as to
whether they desired to be represented by the Union for the
purpose of collective bargaining .22Interference , restraint, or
coercion is not measured by the employer's intent or the
effectiveness of his action, but rather by whether the con-
duct is reasonably calculated, or tends to interfere with the
free exercise of employees' rights under the Act 23
The language and legislative history of Section 8(a)(1)
show that Congress intended in banning "interference" to
proscribe any employer activity which would tend to limit
employees in the exercise of their statutory rights. The key
to interpretation of Section 8(a)(1) is the purpose of the Act
as expressed by the preamble: to preserve to employees an
atmosphere in which they have full freedom of choice with
respect to collective bargaining and the designation of a
bargaining representative. Inherent in the very nature of the
rights guaranteed by Section 7 is the concomitant right of
full freedom from employer intermeddling. Employees have
as clear a right to organize and select their representatives
for lawful purposes as the employer has to organize its
business and select its own officers and agents.
One of the purposes of the Act is to insure that employees
shall have a free choice as to the question of their represen-
tation in negotiating with an employer . This, of course, does
not preclude the employer from stating his views as to
whether or not his employees should join a union.
19 N.L R.B v Popeil Brothers, Inc, 216 F 2d 66, 68 (C.A 7).
20 Stafford Trucking, Inc, 154 NLRB 1309 at 1310
21 Universal Camera Corporation v. N.L R B, 340 U S. 474, 487.
22 N L.R B v. Wilbur H Ford, d/b/a Ford Brothers, 170 F 2d 735, 738 (C A
6).
23 Dixie Shirt Company, Inc., 79 NLRB 127, 128.
Also, when one considers the rather intimate and infor-
mal relationship that existed between the employees and
Henriques, the fact that they may have discussed employ-
ment problems, his financial situation, his inability to con-
tinue in business if he was forced to pay union wages while
his competitors were not, his views about the Union, and
that some of these conversations were initiated by the em-
ployees themselves, it would seem to be rather captious to
hold that under the circumstances here present , these ingen-
ious and often rhetorical discussions require a fording of an
independent violation of Section 8(a)(1) in view of the inci-
dents detailed above which are found not to have interfered
with, restrained, or coerced the employees. 24
However, it is found that Henriques did violate Section
8(a)(1) of the Act when he threatened the employees at both
the September 11 and 16 meetings that he would terminate
them if they signed a union card or voted for the Union in
the impending election.
Alleged Violation of Section 8(a)(3)
The complaint avers that Respondent refused to reinstate
Charles Ridings because of his union activities. He was
hired by Respondent in February 1972 as a rubbish pickup
helper for the truckdriver. He signed a union authorization
card on September 14.
On or about September 1, Ridings notified Respondent's
dispatcher, Eddie Kahanui, that his wife was expecting a
baby about September 8, and that he "was going to take off
for two weeks until my wife got back on her feet and was
able to take care of herself. . . . Eddie and I talked to each
other on the telephone at least every other day . . . because
he was always calling and asking how things were and how
things were and how the baby was . . . and when I was able
to come back to work. And I explained to him again, as soon
as my wife was able to get on her feet and then I would come
back." Also, Ridings attended the September 16 employees'
meeting called by Henriques at the Respondent 's premises,
while still on leave status.
Ridings returned to work on September 18, 2 days before
the election when he received a telephone call on September
17 from Kahanui, Respondent's dispatcher, who ordered
him to report for work the following morning. Kahanui
called for Ridings at his home the morning of September 18,
and drove him to work. When they arrived at Respondent's
yard, Ridings began to service his truck preparatory to col-
lecting rubbish. Shortly thereafter, Kahanui told him that
Henriques had telephoned and requested Ridings to wait
until he arrived at the yard. When Henriques arrived at 8
a.m., he told Ridings to come into his office, at-which time
he notified him that he was fired, because Ridings had failed
to notify him he was taking off 2 weeks from work. Ridings
remonstrated with Henriques , reminding him that not only
did he notify Kahanui, the dispatcher, around September 1,
but that he also kept in touch with Kahanui during the time
his wife was recuperating ; and he also reminded Henriques
he had attended the employees' meeting called by Henri-
ques on September 16. Ridings' testimony continues as fol-
24 See Howard A ero, Inc, 119 NLRB 1531; General Electric Company, 119
NLRB 1821.
OAHU REFUSE COLLECTION CO., INC. 237
lows: "Mr Henriques told me that he wanted me to come
back to work for him after the election but that his attorney
had advised him not to hire me back until after the voting
election." 25 Ridings voted on September 20, but his vote
was challenged He returned to work on September 23, but
voluntarily left Respondent's employ on October 10.
Henriques' reason for discharging Ridings on September
18 was patently antiorganizational in an effort to prevent
him from voting and contrary to Section 8(a)(3) of the Act,
which proscribes discrimination in regard to hire or tenure
of employment or any term or condition of employment in
order to discourage membership in any labor organization.
The record here speaks for itself. Henriques' motive in dis-
charging Ridings 2 days before the election was part of a
scheme whereby he hoped to prevent him from voting.
Riding's discharge during the course of the Union's organi-
zational campaign lends credence to the finding that this
was not a legitmate exercise of managerial discretion On
the contrary, Ridings' discharge 2 days before the election
and his rehiring 3 days after the election confirm that
Respondent's purported reason for discharging Ridings,
namely, his failure to notify Respondent he was taking a
leave of absence, is not only a pretext but also a patently
false fabrication motivated by illegal considerations. It is
clear that where an employer is set against a union's attempt
to organize his employees, every equivocal act that was
done may be properly viewed in the light of Respondent's
animus toward the effort to organize his employees.26 More-
over, a purportedly justifiable cause for the discharge can-
not shield discrimination in employment shown to have
been unlawfully motivated.27 Corroborative of this finding
is Henriques' senseless charade by firing Ridings 2 days
before the election and hiring him again 3 days after the
election. These cogent indicia, in conjunction with Henri-
ques' animus toward the Union, brand his conduct as illegal
and a violation of Section 8(a)(3) of the Act. Accordingly,
Respondent's illegal actions and challenge to Riding's eligi-
bility to vote prevented Ridings' ballot from being counted.
Accordingly, his ballot shall be counted.
Objections to the Election and The Alleged Violation of
Section 8(a)(5)
The Union had obtained 20 valid authorization cards
from the either 33 or 34 unit employees when it requested
recognition on August 31 and September 1.28 The appropri-
ate unit described in paragraph VII of the complaint com-
prised 20 employees who were eligible to vote on September
20, the day of the election. The status of three employees is
in dispute 29 For the reasons stated above, Johnson Kalawa
and Richard Germano, two of the three employees whose
eligibility to vote is challenged, are found not to be supervi-
sors and accordingly eligible to vote. No probative evidence
25 The same day, September 18, that Henriques fired Ridings. he loaned
him money
26 N L R B v Houston Freight Lines, 193 F 2d 394, 398 (C A 5), cent
denied 334 U S. 834
N L R B C
28 The Union' s letter dated August 22 (G C Exh 3) is found not to be a
request for recognition
9 See G C Exh 19 which is a stipulation of the parties
was introduced with respect to whether Eddie Kahanui,
who is Respondent's dispatcher, is a supervisor as alleged by
the General Counsel and counsel for the Charging Party.
The burden of proof is on the party asserting such a rela-
tionship, both as to the existence of the relationship and as
to the nature and extent of the agent's authority.30 No such
probative evidence was introduced by the General Counsel.
Consequently, there is a failure of proof, thus obviating the
possibility of making a finding with respect to the eligibility
of Kahanui 31
The remaining objections to the elections will be found
at the beginning of this Decision. Objection 1, as indicated
above, has already been overruled by the Regional Director
in his "Report on Objections and Challenged Ballots." 32
Objections 1, 2 and 3, have already been disposed of in this
Decision. Objection 4 alleges that Respondent's "representa-
tives influenced the election by being in the immediate vicinity
of the balloting area at the time of the election." There is not
a scintilla of evidence with respect to this objection. The only
remote mention is Ridings' testimony, in answer to a question
by Counsel for the Union, that he did not observe any official
of the Respondent Company "at the polling place on the
election day."
The General Counsel alleges that not only did the Re-
spondent "refuse to meet and bargain with the Union" in
violation of Section 8(a)(5), but it also committed various
unfair labor practices between the time recognition first was
requested on August 31 and September 20, the date of the
election. It should be noted that the first time that Keamo,
the union official, met with Henriques and stated he was
organizing Respondent's employees, Henriques told Keamo
that he first would have to talk to an official of the Employ-
ers' Council, Ben Akana, who represented him. Keamo later
telephoned Henriques and the latter informed Keamo that
he would not grant the Union recognition as he preferred
a Board-conducted election. Thereupon, the Union filed
with the Regional Office a representation petition on Au-
gust 23. At a meeting in the Regional Office, an agreement
70 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No 377 (All-American Stamp and Premium
Corporation of New York), 159 NLRB 1313, 1315
3 In Associated Transport, Inc, 195 NLRB 704, the Board found dispatch-
ers employed by a common carrier by truck were not supervisors A rank-
and-file employee cannot be transformed into a supervisor merely by invest-
ing him with a "title" and theoretical power to perform one or more of the
enumerated supervisory functions N L R B v Southern Bleachery & Print
Works, 257 F 2d 235, 239, (C A 4) cert denied 359 U S 911 And while the
enumerated powers listed in Sec 2(11) are to be read in the disjunctive, the
section also "states the requirement of independence of judgment in the
conjunctive with what goes before " Poultry Enterprises, Inc v N L R B, 216
F 2d 798, 802 (C A 5) Thus, the individual must consistently display true
independent judgment in performing one of the functions in Sec 2(11) The
exercise of some supervisory tasks in a merely "routine," "clerical,".. perfunc-
tory," or "sporadic" manner does not elevate a rank-and-file employee into
the supervisory ranks N LR B v Beaver Meadow Creamery, Inc, 215 F 2d
247, 251 (C A 3) The Board, however, has found dispatchers to be supervi-
sors where they exercise "independent judgment" in performing one of the
supervisory functions set out in Sec 2(11) Dixie Ohio Express, 123 NLRB
1936, 1937, Groendyke Transport, inc, 171 NLRB 997, 998 However, the
Board holds that "where the direction and control exerted by the individual
is over the movement of equipment and the direction of personnel occurs
only as an incidental result, the statutory definition of 'supervisor' does not
apply " Baltimore Transit Co, 92 NLRB 1260. 1264 Accord Carey Transpor-
tation Co, 119 NLRB 332, 335, Vangas, inc, 167 NLRB 805, 806, 807
32 See fn 2, supra. G C Exh 1(k)
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a consent election was entered into by the parties on
September 1. An election by secret ballot was conducted on
September 20, which the Union lost: 4 votes were cast for
the Union, 8 against, and 18 ballots were challenged See
supra. By stipulation (G.C. Exh. 19) the parties agreed on
May 15 and 18, 1973, that the eligibility to vote of only three
employees was in dispute, namely, Kalawa, Germano, and
Kahanui. The stipulation described Kalawa and Germano
as :'alleged foremen" and Kahanui as "alleged dispatcher
supervisor." Kalawa has been found not to be a supervisor.
Merely describing Germano as a "foreman" has no mean-
ing or probative value in determining whether he is eligible
to vote. Inasmuch as the very sparse evidence elicited with
respect to Germano is limited to his having had the same job
of truck driver as Kalawa, he is found by hypothesis to be
eligible to vote. Because of the General Counsel's failure to
sustain his burden of proof with respect to Kahanui, his
ballot shall be counted. In comparing those challenged vot-
ers whose names are listed at page 2 of the Regional
Director's "Report on Objections and Challenged Ballots"
with the names of those listed in G.C. Exh 19, it is found
that the only voters at the election who were challenged and
whose eligibility are not yet determined are Marshall Cos-
tello, Joseph Enriquez, and Robert Henriques . No evidence
with respect to any of these individuals was introduced at
this hearing. In the absence of any evidence with respect
thereto, no recommendation is made as to the disposition of
these other objections.
The record reveals Respondent neither refused to recog-
nize nor refused to bargain with the Union but rather opted
for a Board election when he signed the agreement for a
consent election at which time the election was ordered to
be held on September 20. In this regard, it is pertinent to
note that the Union filed its 8(a)(5) charge on September 27.
All that Respondent did was to require the Union to prove
its majority status when there was no proof that its request
to hold an election was tinged with any bad faith. Adding
credence to this conclusion is the fact that the Union never
showed Respondent the signed authorization cards In this
posture, the legal incidence of such failure on the Union's
part was to deal the negotiations a coup de grace which the
Union's hasty filing of an unfair labor practice charge was
unable to either resuscitate or revive. All of these actions,
detailed above, on the part of the Union, removed the possi-
bility of effective negotiations and this precluded the exis-
tence of a situation in which the Respondent's own good
faith could be tested. If it cannot be tested, its absence can
hardly be found.33 Respondent, therefore, did not refuse to
bargain with the Union under the doctrine enunciated in
Aaron Brothers, 158 NLRB 1077, 1078, which held that
under the circumstances here present, Respondent' s insis-
tence on an election was not proscribed. Ordinarily when
confronted with a union's claim that it represents a majority
of the employees together with a request for collective bar-
gaining, the employer may refuse to rely on the union au-
thorization cards and insist that the Union prove its
majority in a Board election. A L Gilbert Co, 110 NLRB
2067, 2069. See Dimarc Broadcasting Corp., 204 NLRB No.
33 Time Publishing Co, 72 NLRB 676, 683
47, third and fourth paragraphs before "Conclusions of
Law" in the Administrative Law Judge' s Decision. Based
upon the foregoing facts, the General Counsel has failed to
sustain the burden of proving by a preponderance of the
evidence that the Respondent violated Section 8(a)(5) of the
Act.
The General Counsel asks that the election be set aside
and a "Grssel" order issue requiring the Respondent to bar-
gain with the Union upon request, based upon the preelec-
tion conduct which it is alleged dissipated the Union's
preelection majority status. The Counsel for the Charging
Party stated during the course of the trial that he would have
no objection to a new election being ordered in which Coun-
sel for the Respondent joined.
The General Counsel contends that Respondent' s "fla-
grant pattern of illegal 8(a)(1) conduct" and its 8(a)(3) viola-
tion warrant a bargaining order under the Gissel doctrine as
"no fair election could be held by the Board within the
foreseeable future because of Respondent' s illegal con-
duct."
The critical issue in this case, then, is whether a bargain-
ing order should be entered under the doctrine of N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In that case,
the Supreme Court sustained the Board's remedial authority
to issue a bargaining order where the union has established
its majority through authorization cards and unfair labor
practices had been committed that interfered with the elec-
tion processes and tended to preclude the holding of a fair
election .34 In Gissel, the Supreme Court indicated that a
bargaining order would be appropriate in two situations: (1)
where the employer's unfair labor practices are so "perva-
sive" and "coercive" that a bargaining order is the only
effective means of remedying those unfair labor practices;
and (2) where the unfair labor practices, though less sub-
stantial , are nonetheless such that "the Board finds that the
possibility of erasing the effects of past practices and of
ensuring a fair election by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better pro-
tected by a bargaining order." 35 The Court emphasized that
"there is still a third category of minor or less extensive
unfair labor practices, which, because of their minimal im-
pact on the election machinery, will not sustain a bargaining
order." 395 U.S. 615. The Court further held that such a
determination could be made without reference to whether
the employer's claim of doubt of the union 's majority status
was made in bad faith.
It has been established supra that Respondent did not
refuse to bargain within the holding of Aaron Brothers. The
only remaining theory upon which a Gissel order could be
predicated and which would justify a remedial bargaining
order is the unfair labor practices found above which were
committed by Respondent. Such a remedy is to be applied
cautiously because of its tendency to encroach on the em-
ployees' Section 7 right not to organize a labor union and
the Section 9(c)(1) right to a secret ballot election 36
In the proceedings at bar, the findings of unfair labor
practices detailed above were neither "outrageous," "perva-
34Id ai 594
J5 1d al 614
36 N L R B v Flomatic Corporation, 347 F 2d 74, 77-80 (C A 2)
OAHU REFUSE COLLECTION CO., INC. 239
sive," nor encompassed by the second category involving
"less pervasive practices which nonetheless still have a ten-
dency to undermine majority strength and impede the elec-
tion process." 37 And the third category, which is cited
above, of "minor or less extensive unfair labor practices
which" has a "minimal impact on the election machinery,
[and thus] will not sustain a bargaining order." Moreover,
the record reveals there is not a preponderance of evidence
to indicate Respondent rejected its collective-bargaining
obligation as evidenced by its ready response when the
Union demanded recognition that it preferred the employ-
ees' wishes to be determined by a Board-conducted election.
Prior to this time the Union had never requested recognition
nor had it submitted any evidence to Respondent with re-
spect to its majority status. Furthermore, as there was no
prior history of collective bargaining, it was incumbent on
the General Counsel to prove affirmatively that the circum-
stances herein show bad faith. The General Counsel failed
to carry this burden of proof.38 Finally, the decisions of the
Board and courts hold that the proximate result of
Respondent's commission of unfair labor practices must be
"substantial" and the cumulative effect of the proscribed
conduct should be considered and weighed in combination.
It is not believed the violations found here, in their cumula-
tive effect, are sufficiently "substantial" to justify the severe
remedy of a Gissel order. 9 When the Gissel Packing stan-
dards are applied to the facts of the instant case, it becomes
apparent that a bargaining order is not warranted. The vio-
lations of Section 8(a)(1) and (3) which the Respondent
Company committed were not of such a substantial nature,
considering all the relevant circumstances; nor do they
create a situation adversely affecting the Union's ability to
establish its representative status in a Board-conducted
election. It is uncontradicted that there is an extraordinary
rate of turnover indigenous to the Company's rubbish col-
lection business. This condition strengthens the conclusion
that the adverse effects of the Company's unfair labor prac-
tice violations should be reasonably and adequately dissi-
pated, prior to the holding of a new representation election,
through the utilization of the traditional remedies. Further-
more, those employees hired subsequently to the eligibility
date of the first election must be considered. Thus, a bar-
gaining order would impose representation upon a current
unit of employees, many of whom were not employed by
.Respondent when the violations of Section 8(a)(1) and (3)
were committed. As stated above, the effects of these unfair
labor practices are not sufficiently pervasive and lingering
to justify a determination that a subsequent election could
not be held which would be reasonably free from the ad-
verse influence of the Respondent's unlawful action. It is,
therefore, found that "the possibility of erasing the effects
of past practices and of ensuring a fair election . . . by the
use of traditional remedies" is so evident in the context of
37 N.L R.B. v. Gissel Packing Co., supra at 614 and 615.
38Aaron Brothers, 158 NLRB,1077, John P Serpa, Inc., 155 NLRB 99,
100-101.
39 Hammond & Irving, Inc., 154 NLRB 1071; Foremost Dairies, 172 NLRB
1246.
the Gissel doctrine as to warrant rejecting the General
Counsel's proposed bargaining order in favor of the "pre-
ferred" election process.40
Accordingly, it is recommended that the election held on
September 20 should be set aside that the Regional Director
for Region 20 hold a second election at such time as he
deems and circumstances permit a free choice of a bargain-
ing representative. In order to assure that all eligible voters
may have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the
election should have access to a list of voters and their
addresses which may be used to communicate with them.
Excelsior Underwear, Inc., 156 NLRB 1236; N.L.R.B. v.
Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is suggest-
ed that an election eligibility list, containing the names and
addresses of all the eligible voters, be filed by the Company
with the Regional Director for Region 20 within 7 days after
the date of issuance of the Notice of Second Election by the
Regional Director. The Regional Director should make the
list available to all parties to the election. No extension of
time to file this list should be granted by the Regional Direc-
tor except in extraordinary circumstances.
Upon the basis of the foregoing findings and conclusions
and upon the entire record in this case, there are made the
following:
CONCLUSIONS OF LAW
1. By threatening that it would terminate employees if
they signed union authorization cards or voted for the
Union in the imminent election, in order to discourage
membership in, sympathy for, and activity on behalf of the
Charging Union, Respondent violated Section 8(a)(1) of the
Act.
2. By discharging and refusing to reinstate Charles Rid-
ings because of his union activity, Respondent engaged in
unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
3. Respondent did not violate Section 8(a)(5) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices it shall be recommended that it cease and
desist therefrom and take' certain affirmative action neces-
sary to effectuate the policies of the Act. Having found that
Respondent discriminatorily terminated Charles Ridings on
September 18 and hired him again on September 23, 1972,
it will be recommended that Respondent make Ridings
whole for any loss of earnings suffered by reason of the
discrimination against him for the period of such discrimi-
nation. Backpay with interest at the rate of 6 percent per
annum shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]
40 Gissel Packing Co., supra at 602 and 614.