Pollution Control Industries of Indiana

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 455 (N.L.R.B. 1995)

455
316 NLRB No. 85
POLLUTION CONTROL INDUSTRIES OF INDIANA
1 The Respondent urges the Board to receive further evidence on
the propriety of the order to restore its tank cleaning operations. The
General Counsel argues that the Respondent’s motion should be de-
nied because the Respondent had an opportunity to present evidence
on this issue at the hearing and has not demonstrated that additional
evidence is newly discovered or was unavailable at the hearing. We
find merit in the General Counsel’s contention. Accordingly, we
deny the Respondent’s motion to reopen the record.
2 Blankenship’s motion refers to the section of the General Coun-
sel’s brief which argues in support of the judge’s admission of tran-
scripts of Blankenship’s speeches to unit employees. We deny
Blankenship’s motion as lacking in merit. Apart from the reasons
stated by the judge for admission of the transcripts, we note that
Blankenship admitted at the hearing that the transcripts were an ac-
curate account of statements he made to unit employees at two meet-
ings held before the election. Thus, Blankenship stated that the tran-
scripts were those which he had submitted to the General Counsel
during the investigation of the charges in this proceeding as evidence
to rebut the allegations that certain statements made by him violated
Sec. 8(a)(1) of the Act.
3 The General Counsel’s motion is denied in the circumstances of
this case where Blankenship participated in the hearing in which al-
legations concerning his conduct as an agent of the Respondent were
litigated.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
5 The parties are free to introduce at the compliance stage of this
proceeding any evidence relevant to the appropriateness of the res-
toration and reinstatement portions of this Order, provided that such
evidence was not available at the time of hearing on the unfair labor
practices alleged and found in this decision. See We Can, Inc., 315
NLRB 170 (1994), and Lear Siegler, Inc., 295 NLRB 857 (1989).
Pollution Control Industries of Indiana and United
Steelworkers of America, AFL–CIO–CLC and
Employee Committee, Party in Interest. Cases
13–CA–31894, 13–CA–31924, 13–CA–32031,
13–CA–32048, 13–CA–32078, and 13–CA–32207
February 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On August 30, 1994, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent and Rayford T. Blankenship filed exceptions
and supporting briefs. The General Counsel filed an
answering brief to the Respondent’s exceptions. The
Respondent filed a motion to reopen the record and re-
ceive further evidence on the issue of remedy. The
General Counsel filed a response in opposition to the
Respondent’s motion, and the Respondent filed a reply
in support of its motion.1 Rayford T. Blankenship filed
a motion to strike a section of the General Counsel’s
brief in response to the Respondent’s exceptions, and
the General Counsel filed a response to the motion.2
The General Counsel filed a motion opposing
Blankenship’s filing of exceptions to the judge’s deci-
sion.3
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,4 and con-
clusions and to adopt the recommended Order.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pollution Control Indus-
tries of Indiana, East Chicago, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Librado Arreola and Howard Malkin, Esqs., for the General
Counsel.
Rayford Blankenship, John Panico, and Steven LePage, for
the Respondent.
Singleton, Crist, Patterson, Austgen & Lyman, Esqs., for the
Respondent.
DeWitt Walton, Esq., for the Charging Party.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges and amended charges were filed in the
above proceedings on July 30, August 16, September 27, Oc-
tober 7 and 25, and December 17 and 21, 1993. An amended
consolidated complaint and a separate complaint and an
order further consolidating the above cases issued on January
6, 24, and 31, 1994, respectively. The complaints were fur-
ther amended at the hearing. The General Counsel alleged in
Cases 13–CA–31894, 13–CA–31924, 13–CA–32031, 13–
CA–32048, and 13–CA–32078 that Respondent Employer
violated Section 8(a)(1) of the National Labor Relations Act
by, inter alia, threatening employees with discharge, layoffs,
closing of its facility, loss of their incentive program, loss of
their pay raises and benefits, and other reprisals because of
their union and protected concerted activities; by creating an
impression among its employees that their union and pro-
tected concerted activities were under surveillance; by coer-
cively interrogating employees about employee union and
protected concerted activities; and by telling its employees
that it would be futile for them to select the Union as their
collective-bargaining representative.
The General Counsel further alleged that Respondent Em-
ployer violated Section 8(a)(1) and (3) of the Act by
discriminatorily delaying the granting of pay raises to its em-
ployees; by discriminatorily discharging employee Jimmy
Brooks; by discriminatorily discontinuing its tank cleaning
operation, subcontracting the work of its tank cleaning oper-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The discriminatorily discharged tank cleaning crew employees, as
alleged, include Ernesto Irezarry, Cornell Jude, Michael Kelly, Mark
Markusic, Jose Osorio, Joseph Peterson, Miguel Ramos, and Rene
Rios.
2 The appropriate bargaining unit, as alleged, consists of:
All full time and regular part time production and maintenance
employees, including laborers, equipment operators, and envi-
ronmental technicians employed by the Employer at its facility
presently located at 4343 Kennedy Avenue, East Chicago, Indi-
ana; but excluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act. 3 See fn. 2, supra.
ation, and discharging its tank cleaning crew employees;1 by
later discriminatorily discharging tank cleaning crew em-
ployee Joe Aldaz; and by discriminatorily suspending and
then discharging employee Larry Henderson. In addition, the
General Counsel also alleged that Respondent Employer vio-
lated Section 8(a)(1) and (5) of the Act by failing and refus-
ing to bargain in good faith with the Union, as the exclusive
collective-bargaining agent of an appropriate unit of its em-
ployees,2 by unilaterally and without prior notice sub-
contracting its tank cleaning crew operation and discharging
its tank cleaning crew employees.
The General Counsel alleged in Case 13–CA–32207 that
Respondent Employer further violated Section 8(a)(1) of the
Act by issuing a memorandum to its employees threatening
to discontinue all pay raises and other benefits pending con-
tract negotiations with the Union. In addition, the General
Counsel also alleged that Respondent Employer violated Sec-
tion 8(a)(1) and (2) of the Act by creating an ‘‘employee
committee’’ to deal with the Employer concerning wages,
hours, and other terms and conditions of employment; by es-
tablishing policies and procedures and participating in the af-
fairs and meetings of the ‘‘employee committee’’; by render-
ing assistance and support to the ‘‘employee committee’’ by
paying employee representatives to the ‘‘employee commit-
tee’’ for time spent at ‘‘employee committee’’ meetings; and
by recognizing and bargaining with the ‘‘employee commit-
tee’’ as the collective-bargaining representative of its em-
ployees in the above appropriate unit.
And, finally, the General Counsel alleged that Respondent
Employer violated Section 8(a)(1) and (5) of the Act by fail-
ing and refusing to bargain in good faith with the Union by
bypassing the Union and dealing directly with its employees
in the above unit by negotiating with the ‘‘employee com-
mittee’’ concerning terms and conditions of employment; and
by unilaterally and without prior notice implementing the fol-
lowing changes in terms and conditions of employment for
its unit employees: Changing its policy requiring employees
to clock in and out prior to using toilet facilities; requiring
all employees to pass a new literacy test; granting employees
1 day off with pay for each 90-day period an employee
would work without being absent for sick leave, without any
safety writeup, and without being tardy more than once while
working a full 40-hour regular time workweek; reducing the
total weekly work hours required of employees from 58 to
56 hours; adding ‘‘grandparents’’ to the list of relatives the
death of whom made an employee eligible for funeral leave;
and increasing the employees’ ‘‘monthly bonus pot’’ by
$100 if more than 30 employees were to share in the ‘‘bonus
pot.’’
Respondent Employer, in its answers, as discussed below,
admitted and denied various allegations of the amended con-
solidated complaints. Accordingly, a hearing was held on the
issues raised on June 13, 14, and 15, 1994, in Chicago, Illi-
nois. On the entire record thus made, including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
Respondent Employer is engaged in the recovery and recy-
cling of fuels at its facility in East Chicago, Indiana, and is
admittedly engaged in commerce as alleged. Charging Party
Union is admittedly a labor organization as alleged. On Sep-
tember 3, 1993, a majority of the Employer’s employees in
an appropriate unit3 selected the Union in a Board-conducted
representative election as their exclusive collective-bargain-
ing agent. On December 2, the Union was certified by the
Board as the exclusive collective-bargaining agent of the unit
employees. The Union admittedly has been the exclusive col-
lective-bargaining agent of the above unit employees since
September 3, 1993. See G.C. Exhs. 1(t), 1(y), and 1(gg).
Further, it is admitted that the Employer, in opposing the
Union’s attempt to represent its employees, engaged in the
following conduct (see G.C. Exhs. 1(t), 1(y), and 1(gg)): The
Employer, by its agents and supervisors, during late July,
August, and early September 1993, threatened employees
with discharge because of their activities on behalf of the
Union; threatened employees with the closing of its facility
because of their activities on behalf of the Union; threatened
employees with the closing of its facility and discharge be-
cause of their activities on behalf of the Union; threatened
employees with discharge if the Union became the bargain-
ing representative of the employees; threatened employees
with the loss of their incentive program because of their sup-
port for the Union; threatened employees with plant closure
and discharge if the employees continued their support of the
Union; threatened employees with the loss of their pay raises
because of their support for the Union; threatened employees
with the closing of its facility if the Union organized the em-
ployees; threatened employees with layoffs because of all
their activities concerning the Union; created the impression
among its employees that their union activities were under
surveillance by the Employer; interrogated various employees
about employee union sympathies and activities; and threat-
ened employees with reprisals if they continued to wear hats
with union insignia.
It is further admitted (see G.C. Exhs. 1(t), 1(y), and 1(gg))
that the Employer, by its agents and supervisors, about Octo-
ber 28, 1993, created at its facility an ‘‘employee commit-
tee’’ to deal with the Employer concerning wages, hours, and
other terms and conditions of employment; and from about
November 1 to December 3, 1993, established policies and
procedures and participated in the affairs and meetings of the
‘‘employee committee,’’ rendered assistance and support to
the ‘‘employee committee’’ by paying representatives to the
‘‘employee committee’’ for time spent at ‘‘employee com-
mittee’’ meetings, and recognized and bargained with the
‘‘employee committee’’ as the collective-bargaining rep-
resentative of its employees in the above unit. In addition,
it is similarly admitted that the Employer, from about No-
vember 1 to December 3, 1993, bypassed the Union and
dealt directly with its unit employees by negotiating with the
457POLLUTION CONTROL INDUSTRIES OF INDIANA
4 Aldaz also recalled, with reference to the alleged discriminatory
discharge of employee Larry Henderson (discussed below), that a
forklift operator named David Moreno had driven his forklift
‘‘through a 55 gallon drum’’ containing a ‘‘chemical’’ resulting in
a ‘‘spill,’’ and ‘‘continued to work the next day.’’
‘‘employee committee’’ concerning terms and conditions of
employment.
Further, it is admitted (see G.C. Exhs. 1(t), 1(y), and
1(gg)) that the Employer discharged employee Jimmy Brooks
about August 10, 1993; discontinued its tank cleaning oper-
ation, subcontracted the work of its tank cleaning operation,
and discharged eight tank cleaning crew employees (named
in fn. 1, supra) about September 8, 1993; discharged tank
cleaning crew employee Joe Aldaz about September 10,
1993; and suspended employee Larry Henderson about Sep-
tember 28 and discharged the employee about October 1,
1993. And, at the hearing (see Tr. 11–12), the Employer also
admitted implementing the following changes in terms and
conditions of employment for its unit employees: About Oc-
tober 1993, it changed its policy with respect to requiring
employees to clock in and out prior to using the toilet facili-
ties; about November 1, 1993, it granted employees 1 day off
with pay for each 90-day period an employee would work
without being absent for sick leave, without any safety write-
up, and without being tardy more than twice while working
a full 40-hour regular time workweek; about November 1,
1993, it reduced the total weekly hours of work required of
employees from 58 to 56 hours; and about November 14,
1993, it increased the monthly bonus pot by $100 if more
than 30 employees were to share in the bonus pot.
Joseph Peterson, one of the Employer’s terminated tank
crew employees (see fn. 1, supra), explained that his job du-
ties included cleaning ‘‘rail cars’’ at the Employer’s facility
and ‘‘tanks’’ at a customer’s facility. (See Tr. 107 to 109.)
He testified that Pollution Control did not previously notify
him ‘‘that it was doing away with the tank crew.’’ He re-
called that he had ‘‘receive[d] notice that [September 9,
1993] was [his] last day’’ on ‘‘September 9, after [he]
punched out.’’
See General Counsel’s Exhibit 5, a notice from the Em-
ployer to the tank crew employees, dated September 8, 1993,
stating:
We regret to inform you that we have decided to dis-
continue the tank cleaning operation. Therefore, as of
today, September 8, 1993, you will be terminated.
. . . .
You will receive one week two days severance pay.
If you have any vacation pay coming you will also re-
ceive that, plus if you turn in your uniforms on Friday
you will also receive your deposit.
This will be given to you on Friday September 10,
1993.
Thank you for your dependable service.
See also General Counsel’s Exhibit 10 and transcript 255 to
257.
Joseph Aldaz, a tank crew employee discharged about
September 10, 1993, also related his duties in cleaning
‘‘cars’’ and ‘‘tanks’’ for the Employer. (See Tr. 116 to 118.)
He went on ‘‘vacation’’ on September 3 (the day of the
Board-conducted representation election) and, when he re-
turned on September 10, he received the above notification
of his termination. (See G.C. Exh. 5.4)
Arturo Cadena, employed by Respondent, testified that he
‘‘was given a test in December 1992’’ and ‘‘January 1993’’
involving ‘‘math, English and reading’’; ‘‘if you did not pass
the test you were not hired.’’ He was not then told that he
would be ‘‘retested’’ later. However, on November 2, 1993,
after the Board-conducted representation election, he was ap-
prised by management that ‘‘if you didn’t pass [this] test you
are going to be laid off or you have to go back to school.’’
‘‘It was another literacy test’’ instituted for all the employ-
ees.
Mark Markusic, one of the terminated tank crew employ-
ees, similarly explained how he ‘‘would clean out rail cars’’
at the Employer’s premises and ‘‘storage tanks’’ away from
the Employer’s premises. See Tr. 76 to 81. ‘‘Right after the
[representation] election,’’ as Markusic testified, he was
given and wore at work a union hat with the Steelworkers’
name on it. His coworkers in the ‘‘tank crew’’ also wore
these union hats. He had never observed ‘‘other PCI employ-
ees,’’ ‘‘other than the tank crew,’’ ‘‘wear Union hats and
paraphernalia.’’ Earlier, before the Board-conducted rep-
resentation election, Company Supervisor Jesus Bautista (also
appearing in the transcript as Jesse Batista) had the following
conversation with him at work about the Union:
He [Bautista] told me that if PCI did get the Union in
. . . the tank crew wouldn’t have nothing to do with
the Union because the tank crew wasn’t employed by
PCI. . . . I [Markusic] told him if I wasn’t employed
by PCI, how come I wear a PCI uniform and my pay-
checks are drawn by PCI every week.
See also the related coercive statements and conduct admit-
tedly engaged in by the Employer’s supervisors and agents,
including Bautista, as summarized above.
Larry Henderson testified that he started working for the
Employer in March 1991; he worked on the ‘‘loading dock’’
during July 1993; his job duties there included taking ‘‘sam-
ples,’’ ‘‘hooking up trucks,’’ and ‘‘opening and closing
valves’’; and his supervisor at the time was Mike Gray. Hen-
derson was chiefly instrumental in initiating the Union’s or-
ganizational campaign at the Employer’s facility during
1993. He ‘‘talked with everybody; everybody was for it; so
[he] contacted the Union.’’ The Union thereafter held ‘‘meet-
ings’’ with the employees which he attended. He signed a
union membership card, distributed such cards to his cowork-
ers at home and at work, and received signed cards from his
coworkers. He had received from his coworkers some 32
signed union membership cards in a unit of approximately 36
employees. Later, on September 3, Henderson served as ‘‘ob-
server’’ for the Union and signed the tally of ballots during
the Board-conducted representation election, which the Union
won by a vote of approximately 34 to 2.
The Employer, in opposing this union organizational drive,
in addition to the admitted coercive statements and conduct
summarized above, held two meetings with the unit employ-
ees prior to the September 3 Board-conducted representation
election. As Henderson testified, the Employer’s officials and
its admitted agent Rayford Blankenship were present at these
meetings. Blankenship and associates represented the Em-
ployer in this proceeding. Blankenship addressed the employ-
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Tr. 182–194, and G.C. Exhs. 7 and 8, discussed further infra.
ees at both meetings and his ‘‘associate’’ tape recorded his
comments.5 In addition, as Henderson further noted, he also
had received a $1-an-hour pay increase ‘‘a couple of weeks
before the election.’’
Henderson next recalled that there had been ‘‘two major
spills’’ of solvents or chemicals by his coworkers at the Em-
ployer’s facility in 1992, and the employees involved in the
‘‘spills’’ had not been terminated. However, on September
28, 1993, Henderson was suspended and later discharged by
the Employer because he had been involved in a ‘‘spill.’’
Henderson testified:
Q. What happened that day?
A. There was a spill in our area which involved me,
Wayne [Squire, also spelled Schweider in the record,]
and [Supervisor] Michael [Gray].
Q. How did the spill occur?
A. There were two trucks on the dock. One needed
to be loaded and off-loaded and the engine was run-
ning. Mike Gray was in between the trucks. Me and
Wayne Squire were by the desk and Mike [Gray] said
open it up. At the time I thought that he meant the
dome. So Wayne [Squire] went up to the top of the
tank and opened the dome . . . and then Wayne
[Squire] came back by the desk . . . and Mike [Gray]
said open it up . . . and Mike [Gray] had the hose in
his hand, he took the cap off the hose and the water
just spilled out.
Q. Do you recall how long the water was squirting
out . . . ?
A. I think it went for about a minute.
Q. And what kind of liquid was it that spilled out?
A. It was F-series water . . . they say it is non-haz-
ardous water.
Q. Compared with the two other major spills . . .
earlier, was this amount of liquid that was spilled near
to those spills?
A. No.
Supervisor Gray then apprised Henderson that ‘‘he had to
send [Henderson] home.’’ Safety Director Frank Johnny, at
the time, also spoke to Gray, Squire, and Henderson and
took statements concerning the incident.
Henderson punched out, as instructed, and went home. He
was later telephoned by Director Johnny and told that he was
‘‘suspended until an investigation could be done.’’ Hender-
son went back to the Employer’s facility that same day and
again spoke with Director Johnny. Johnny again apprised
Henderson that he ‘‘was suspended until an internal inves-
tigation could be done.’’ On the next day, Henderson tele-
phoned the Employer and was apprised by Director Johnny
that ‘‘they were not done with the investigation.’’ Henderson
‘‘kept calling’’ and was ultimately told by Kevin Prunski, the
chairman of the Employer’s board of directors, that he was
‘‘fired because of the spill’’; ‘‘it was very unsafe and they
couldn’t have that.’’ Wayne Squire, also involved in the
‘‘spill,’’ was not ‘‘discharged’’ and in fact was permitted to
return to work ‘‘two days later.’’ See also General Counsel’s
Exhibits 11 and 12, ‘‘Employee Warning Reports,’’ issued to
other employees involved in ‘‘spills.’’
On cross-examination, Henderson acknowledged signing
on December 18, 1992, a receipt for Respondent’s ‘‘Em-
ployee Handbook.’’ The employee handbook provides, inter
alia, that ‘‘habitual absenteeism or tardiness’’ and ‘‘violation
of safety rules or practices’’ ‘‘may result in disciplinary ac-
tion or discharge.’’ See R. Exhs. 4 and 12. Henderson admit-
tedly had received ‘‘warnings for excessive absenteeism’’
and ‘‘violating safety practices’’ from the Employer. Re-
spondent’s Exhibit 13 contains ‘‘Employee Warning Re-
ports’’ assertedly issued to Henderson. According to Re-
spondent’s Exhibit 13, Henderson was given a warning on
January 1, 1993, because he ‘‘was a no show’’ and ‘‘did not
call in.’’ He was given a warning on April 13 for not having
‘‘safety glasses’’ and a ‘‘respirator.’’ He was given a warn-
ing on July 10 ‘‘for leaving work before notifying super-
visor’’ with a ‘‘three day suspension.’’ He was given a warn-
ing on August 25 for ‘‘unauthorized absence and attend-
ance’’ with ‘‘one week off,’’ a ‘‘30 day probation’’ and ref-
erence to possible ‘‘termination.’’ He claimed that he ‘‘was
not suspended for five days’’ and had ‘‘told them a day
ahead of that time that I would be off that day.’’ He was
given a warning on September 3 because of his ‘‘attend-
ance.’’ He was given a warning on September 8, because he
had ‘‘no safety glasses over an open drum.’’ He was given
a warning on September 14 for failing ‘‘to wear protective
clothes . . . while taking a sample from a tanker with haz-
ardous material.’’ He was given a similar ‘‘safety’’ warning
on September 22. Henderson explained that he did not re-
ceive various cited warnings and disputed their accuracy.
In addition, Respondent’s Exhibit 14 contains Respond-
ent’s ‘‘Employee Absence/Late/Early Quit Reports’’ for Hen-
derson. Compare Respondent’s Exhibit 41, Henderson’s
‘‘time cards’’ during the above time period. According to
Respondent’s Exhibit 14, on March 24 and April 29, 1993,
he was assertedly a ‘‘late arrival.’’ On May 5 he was a ‘‘late
arrival’’ and ‘‘absent.’’ On May 13 he was ‘‘absent.’’ On
June 7 he was a ‘‘late arrival.’’ On June 21 he was a ‘‘late
arrival.’’ On June 25 he was a ‘‘late arrival.’’ On July 10
he ‘‘left site without notifying supervisor.’’ On August 5 he
‘‘called in and said he will be late’’ and ‘‘called back and
said he [was] not coming in.’’ On August 24 he was ‘‘ab-
sent’’ having ‘‘called in at 12:37.’’ He was a ‘‘late arrival’’
on August 26. He took an ‘‘early quit’’ on September 7. On
September 8 he was ‘‘absent’’ ‘‘sick.’’ On September 14 he
was a ‘‘late arrival.’’ On September 27 he ‘‘called that he
will be late’’ because he ‘‘ took his daughter to hospital.’’
He explained that he had not received or seen various of
these cited reports. He also observed that ‘‘everybody at PCI
had attendance problems.’’
Jimmy Brooks testified that he started working for the Em-
ployer in August 1991; that he ‘‘operated the dry shredder’’
and also ‘‘worked in the tail pits’’; and that his supervisor
was Mike Kurec. The Union’s organizational drive at the
Employer’s facility started about June 1993. Brooks attended
two union organizational meetings and signed a union mem-
bership card. He ‘‘did not pass out any cards or talk to any-
body about the Union.’’
Later, on August 9, as Brooks recalled,
When I came to work, I changed, and I went to my
foreman and told my foreman that I wasn’t feeling too
well . . . . And he said that if you are sick . . . just
459POLLUTION CONTROL INDUSTRIES OF INDIANA
go home. I said are you sure because I don’t want any
trouble. He said yes . . . I will tell just tell them that
you are sick and went home. So, I went home.
Brooks did not ‘‘punch in that day.’’ On the following morn-
ing, August 10, he ‘‘returned to work . . . on time and ready
to work.’’ He was then told to ‘‘see’’ Company Safety Di-
rector Frank Johnny. There, Johnny and he had the following
conversation:
He [Johnny] asked me what happened yesterday, and I
[Brooks] told him that the foreman sent me home. He
said okay let me go out in the yard and verify
that. . . . He came back, and when he came back I
asked him did he talk to [the foreman] and he said yes.
Then after that he said hold on, let me make a call, so
he told me to step out of his office. . . . Then he got
off the phone and he came back and told me I’m sorry;
they got their mind made up; we are going to have to
let you go.
Brooks assertedly was never ‘‘told by any supervisor’’ that
if he was ‘‘absent from work too much’’ he ‘‘would be
fired.’’
On cross-examination, Brooks acknowledged that he too
had signed a receipt for a copy of Respondent’s Exhibit 4,
the Respondent’s employee handbook, on December 18,
1992. The employee handbook, as noted, provides, inter alia,
that ‘‘habitual absenteeism or tardiness’’ ‘‘may result in dis-
ciplinary action or discharge.’’ Brooks claimed that he
‘‘didn’t understand this.’’ In addition, Respondent’s Exhibit
1 contains ‘‘Employee Absence/Late/Early Quit Reports’’ for
employee Brooks. According to these records, Brooks was
absent on April 14, 1993, when he ‘‘called in and said he
will be late, but [was a] no show.’’ He was absent on April
28, because he was ‘‘sick.’’ He was absent on April 29 and
‘‘went to the Hospital’’ with ‘‘bronchitis.’’ He was ‘‘late’’
on May 6 without making a ‘‘call.’’ He was absent on May
25 and ‘‘called in and said [he] will be late’’ but did not
‘‘show.’’ He was absent on May 26 and given a 1-day sus-
pension. He was absent on May 27 as a ‘‘no show.’’ He was
absent on June 3. He was a ‘‘late arrival’’ on June 9. He
was given ‘‘three days suspension’’ for ‘‘safety’’ reasons on
June 11. He was a ‘‘late arrival’’ on June 23. He was absent
on June 30. He was a ‘‘no show/no call’’ on July 8. He was
a ‘‘late arrival’’ on July 17 and was given ‘‘five days off.’’
He was a ‘‘late arrival’’ on July 28 and 30 and ‘‘sent home’’
on July 30. And, finally, he was absent on August 9 with
his last day of work being August 6. This record shows that
he had been ‘‘sick’’ and ‘‘sent home.’’ Respondent’s Exhibit
2 is Brooks’ ‘‘Unemployment Compensation Management
Separation Record,’’ citing ‘‘poor attendance’’ as the reason
for his ‘‘separation.’’
Brooks, when questioned about the above attendance
records, asserted, inter alia,
Any time I didn’t come to work I would call ahead
of time. The majority of times, if I was off, I had a
doctor’s excuse.
. . . .
The ones I haven’t signed I don’t remember.
Brooks could not ‘‘recall’’ and then denied ‘‘ever get[ting]
a one day suspension.’’ He denied various record entries,
claiming, inter alia, that ‘‘didn’t happen.’’ He added: ‘‘I
didn’t sign all these. These pages without my signature are
rumors.’’ Brooks testified:
Q. Does that show that your supervisor gave you
five days off because you arrived late again?
A. That is not what happened, no. . . . That is what
the document says, but that didn’t happen . . . .
Brooks also assertedly had never seen Respondent’s Exhibit
2, his ‘‘Unemployment Compensation Management Separa-
tion Record,’’ citing ‘‘poor attendance’’ as the reason for his
‘‘separation.’’ He claimed that ‘‘nobody’’ had told him that
he was ‘‘being terminated for excessive absenteeism.’’ He
assertedly had never received ‘‘any kind of warnings regard-
ing [his] absenteeism.’’
Kevin Prunski, the Employer’s chairman of the board, tes-
tified that his Company recycles ‘‘discarded chemicals from
chemical manufacturers and we make fuel out of it’’ at the
Company’s facility in East Chicago, Indiana. The Employer’s
operations include ‘‘our drum processing area where we take
in the drums from the chemical manufacturers and use that
in our fuel.’’ According to Prunski, in August 1993, the Em-
ployer’s ‘‘drum processing’’ operation also included its
‘‘tank cleaning operation.’’ The tank crew was assertedly
‘‘disbanded’’ ‘‘in August 1993.’’ The ‘‘decision’’ to ‘‘dis-
band’’ the ‘‘tank crew’’ was made by the Employer’s board
of directors, including Prunski. Prunski testified:
Q. Now, after the board made the decision to dis-
band the tank crew, was the Union ever notified of
your decision?
A. I believe they were. I don’t recall if they were or
not. . . .
Q. Did you ever pick up a telephone and call some-
one at the Union?
A. No, I personally did not.
Q. Did you write any letters to let them know of that
decision?
A. No, I did not. No.
Q. Since the tank crew was disbanded, who performs
those operations?
A. We have an outside contractor that does it.
Q. Did you enter into a contract with that contractor?
A. No. It is an as needed basis. . . .
Q. Exactly what operation do they perform?
A. Rail cars enter our facility and they may have res-
idue in them which needs to be removed before it can
leave our plant, They have their people go on inside of
those rail cars using their equipment to vacuum the
contents out. . . .
Q. Do they go outside the facility?
A. We do use them if our customers may have a
tank cleaned or may need some remedial work.
Q. Is this operation basically the same duties that
were performed by the tank crew when they were em-
ployed by you?
A. Yes. . . .
Q. Now, when the board made its decision to dis-
band the tank crew, what were some of the underlying
reasons?
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Prunski elsewhere generally asserted:
We would have had to buy a truck with the cost of between
$150,000 and $200,000 and numerous safety equipment, which
the total bill would have been in excess of $250,000. At the
time, we could not afford it.
7 As Johnny testified, R. Exh. 1 contains ‘‘Employee
Absence/Late/Early Quit Reports’’ for employee Brooks. R. Exh. 2
is Brooks’ ‘‘Unemployment Compensation Management Separation
Record,’’ citing ‘‘poor attendance’’ as the reason for his ‘‘separa-
tion.’’ R. Exh. 4 is the Employer’s employee handbook noting, inter
alia, that ‘‘habitual absenteeism or tardiness’’ ‘‘may result in dis-
ciplinary action or discharge.’’ R. Exh. 5 is Brooks’ signed ‘‘re-
ceipt’’ of his employee handbook, dated December 18, 1992. And
R. Exhs. 6 and 7 pertain to the separations of employees David
Shane and Michael Howard, respectively, as a consequence of their
attendance problems.
A. The main reason was our Company was being
written about in the local newspaper in regard to safety.
These employees were part of the article and indicated
that there was a safety problem at our plant. We were
very concerned about that and we felt the best thing we
could do would be to hire the experts to come in in-
stead of us doing it ourselves. And also at the time . . .
there was a great deal of equipment that would have to
be purchased to be able to do this process and we could
not afford it.6
Q. How long was the tank crew in operation before
it was disbanded?
A. . . . I believe a year with respect to the cleaning
of rail cars.
Q. How long was it in operation in cleaning off site
tanks for your customers?
A. Probably since 1988, I believe. . . .
Although Prunski, as noted above, had claimed that the
tank crew was ‘‘disbanded’’ ‘‘in August 1993,’’ it was else-
where admitted that the Employer had in fact discontinued
its tank cleaning operation, subcontracted the work of its
tank cleaning operation, and discharged eight tank cleaning
crew employees (named in fn. 1, supra) about September 8,
1993, and discharged tank cleaning crew employee Joe Aldaz
about September 10, 1993, shortly after the unit employees
had selected the Union as their exclusive bargaining agent in
a Board-conducted representation election. Prunski admit-
tedly did not ‘‘consult with the Union’’ with respect to the
‘‘decision to disband the tank crew.’’ Further, Prunski also
admittedly had ‘‘made an amendment to our Company pol-
icy’’ pertaining to including ‘‘grandparents’’ in its employee
‘‘funeral leave’’ benefit during this same time period. This
subject was admittedly ‘‘discussed at an employee committee
meeting’’ ‘‘after the election.’’ Prunski asserted:
We had made an amendment to our Company policy
only because in error we failed to put grandparents in
there, but that was all that was discussed.
. . . .
We [previously had] considered them [grandparents]
to be the same as parents.
Prunski did not ‘‘notify the Union that this change was being
made.’’
Prunski also admittedly had ‘‘authored’’ the following
memorandum ‘‘after the Union election’’ (G.C. Exh. 2):
To: All Employees
From: Kevin Prunski
All raises and benefits will be on hold pending the
contract negotiations with the Steel Workers Union.
In addition, Prunski was asked:
Q. Now, where [sic] you consulted when Larry Hen-
derson was discharged?
A. Yes, I was.
Q. Who brought that to your attention?
A. I believe it was [Safety Director] Frank Johnny
that brought it to my attention.
Q. What was the reason for his discharge?
A. There was a number of things in Henderson’s
file; absenteeism, unsafe practices, just a number of
write ups in his file. . . .
Q. What was the straw that broke the camel’s back?
A. The straw that broke the camel’s back was he had
a spill at our plant. . . .
Q. Now, when Frank Johnny approached you about
this incident with Larry Henderson, did he make a rec-
ommendation to you as to what his fate should be?
A. No, he did not, not that I can recall.
Frank Johnny, previously employed by Respondent Em-
ployer as its safety director, identified General Counsel’s Ex-
hibit 4 as his signed statement explaining the reason for fir-
ing employee Jimmy Brooks during August 1993. General
Counsel’s Exhibit 4 states:
Jimmy Brooks was separated from Pollution Control
Industries of Indiana, Inc., solely for his attendance
record.
He was given permission to go home by his super-
visor because he was sick After that day, he did not
call for three days. He did not let us know if he is com-
ing back to work or not. He did not show up with a
doctor’s excuse. This is grounds for separation. This
was reviewed by the plant manager Bob Moore and
myself.
Johnny noted:
According to Company policy . . . if you are sick and
don’t call, it is a form of separating yourself from the
Company. He did not call to let us know if he was
coming back to work, or had a doctor’s excuse . . .
that he would be off of work for any given length of
time.
Johnny further noted that Brooks’ ‘‘last day of work was Au-
gust 6’’; General Counsel’s Exhibit 4 ‘‘was signed on Au-
gust 9’’; and
[after] he [Brooks] came back to start working he was
told that he was no longer employed because he did not
call in to say which direction he was going to go with
the Company.7
Johnny, although safety director for the Employer, admit-
tedly was not ‘‘told by any of the managers at Pollution
Control that the tank crew would be disbanded’’ during Sep-
461POLLUTION CONTROL INDUSTRIES OF INDIANA
8 Much of the evidence summarized above is not controverted.
There are, however, some conflicts in testimony and credibility reso-
lutions which must be made. These credibility resolutions will be
discussed below with the separate alleged violations of the Act.
tember 1993. And, Johnny, when asked what the ‘‘reason’’
was for employee Henderson’s subsequent discharge, testi-
fied:
At that particular time there was a spill that he [Hen-
derson] was involved with. If it couldn’t be that, I don’t
know.
Johnny had ‘‘brought’’ to Prunski’s attention ‘‘the spill’’ that
Larry Henderson had caused; however, Prunski assertedly did
not ‘‘consult with [Johnny] about [Henderson’s] discharge.’’
Johnny acknowledged that ‘‘there ha[d] been spills’’ in the
past and he had recommended ‘‘discipline,’’ explaining:
After the investigation sometimes we will give them
days off and they will come back to work and have
more training.
Johnny had never recommended the ‘‘discharge of any em-
ployee . . . involved in a spill.’’
Robert Campbell, president and chief executive officer of
Respondent Employer, claimed that the ‘‘chemical’’ involved
in the Henderson ‘‘spill’’ was ‘‘hazardous.’’ He next claimed
that:
The tank car cleaning [operation] is a separate portion
of our business. The business is not very lucrative and
therefore our profits were not very good, very high on
that. We would have had to put about $300,000 of new
equipment and investment into that facility were we to
continue to do it ourselves.
He claimed that his board of directors would have subcon-
tracted out the car cleaning operation even ‘‘if there had
been no Union’’ activity at the facility. Elsewhere, when
asked to relate ‘‘what considerations the Employer had when
it decided to get rid of the tank cleaning operation,’’ he testi-
fied:
I would like to refer to some articles that were writ-
ten in the Hammond Times in August of 1993. They
were very negative about our Company, in particular
the safety standards that our Company had, and it made
us as managers of the Company more aware of the
need to increase the safety equipment and the proce-
dures that we had at our facility.
Most of the employees that were interviewed by the
Hammond Times were employees from the tank clean-
ing crew, and therefore it really exacerbated our atten-
tion to the safety requirements of the crew, as I said be-
fore, the confined entry [into a tank].
There is automatic equipment available [to do this
type of job], but it is extremely expensive and it is not
completely reliable. . . . [Ace Power, to whom the unit
work was subcontracted,] had better equipment than we
did . . . .
John Newell, the Employer’s chief financial officer,
claimed that he had participated with the members of the
Employer’s board of directors in determining whether to buy
‘‘tank cleaning equipment.’’ He claimed that the Employer
‘‘would have been required to spend . . . approximately
$300,000,’’ and ‘‘we couldn’t and we didn’t.’’ When asked
‘‘when was the decision made to subcontract the work out,’’
he claimed ‘‘around’’ September or October 1993. He also
identified various Employer records pertaining to the ‘‘sepa-
ration’’ of various employees because of, inter alia, attend-
ance and performance problems. See Respondent’s Exhibits
15 through 37 and 39 through 40; and also Respondent’s Ex-
hibits 6 and 7. Compare General Counsel’s Exhibits 11
through 18.8
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain, or coerce employees in the exercise
of’’ their Section 7 rights. The ‘‘test’’ of ‘‘interference, re-
straint, and coercion under Section 8(a)(1) of the Act does
not turn on the employer’s motive or on whether the coer-
cion succeeded or failed . . . . [t]he test is whether the em-
ployer engaged in conduct, which it may reasonably be said,
tends to interfere with the free exercise of employee rights
under the Act.’’ See NLRB v. Illinois Tool Works, 153 F.2d
811, 814 (7th Cir. 1946), and Overnite Transportation Co.,
296 NLRB 669, 685–687 (1989), enfd. 938 F.2d 815 (7th
Cir. 1991).
It is admitted that the Employer, in opposing the Union’s
attempt to represent its employees, engaged in the following
conduct: The Employer, by its agents and supervisors, during
late July, August, and early September 1993, repeatedly
threatened employees with layoffs, discharge, the closing of
its facility, loss of their incentive program, and loss of pay
raises; created the impression among its employees that their
union activities were under surveillance; interrogated em-
ployees about employee union sympathies and activities; and
threatened employees with reprisals if they continued to wear
hats with union insignia. Such coercive conduct clearly tends
to impinge on employee Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
Further, as noted above, the General Counsel alleged that
Respondent Employer, by its admitted agent Rayford
Blankenship, similarly violated Section 8(a)(1) of the Act by
threatening employees with loss of their jobs and other re-
prisals if they voted in favor of the Union and by telling em-
ployees that it would be futile for them to select the Union
as their collective-bargaining representative. The undisputed
evidence of record (see Tr. 182–194 and G.C. Exhs. 7 and
8) shows that Blankenship, during the Employer’s antiunion
campaign, apprised the assembled employees, inter alia:
. . . I’m Ray Blankenship. I’m the senior partner of
the firm of Blankenship and Associates. . . . We prac-
tice labor law all over the United States. That’s why
we’re here. . . . There are rumors that this Company
is about to be sold, that’s correct. . . . [Burns Inter-
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Counsel for Respondent Employer attacks the reliability of the
secondary evidence received in support of the above finding of
threatening and coercive statements by its admitted agent
Blankenship (Br. 16–17). However, as the record shows (Tr. 182–
194 and G.C. Exhs. 7 and 8), the disputed secondary evidence was
received because Respondent Employer, represented by Blankenship,
had refused to honor an outstanding subpoena for the primary evi-
dence. As restated in American Art Industries, 166 NLRB 943, 952
(1967), enfd. in pertinent part 415 F.2d 1223 (5th Cir. 1969),
If the best evidence which could have been offered on this issue
is not before us, responsibility therefor rests with respondent
who refused to honor a subpoena by General Counsel for its
production . . . .
national Security, in a cited case,] walked in and they
fired 50 percent of the employees that worked for the
[predecessor] company that was union . . . . If that
happens here, this Company will have nothing to say
about it. It will be entirely the buyer, just like Burns.
The Supreme Court said . . . if a company destroys the
majority status . . . the company is free to tell the
union to take a hike, they don’t have to honor the union
contract . . . . We do it all the time . . . . A company
will call us up and say . . . I want to buy this company
. . . I don’t wanna be union . . . I want to buy it and
I don’t want anybody out there to have a union contract
or be a member of the union. . . . Hey, we fire the
people. . . .
. . . .
. . . Let me show you collective bargaining. . . . If
the Union won the election here . . . there is no law
in the land that will require this Company or any com-
pany to ever sign a contract with any union. The law
simply states that a company must meet with a union,
not you, at reasonable times and places for purposes of
bargaining in good faith. Now, here’s a contract as a
matter of fact that we negotiated two and a half years,
froze the wages on everybody for two and a half years,
the president was elated . . . .
. . . .
. . . Listen, I don’t want to take up anymore of your
time unnecessarily. I wanna just make that one point to
you about thinking about what’s in your best interest
and the best interest of your families. . . . . If Waste
Management comes in here . . . and buys the place, I
can tell you, if they make the decision to just simply
blow the Union away or a Union contract, at least 50
percent of you will be fired . . . . How do you destroy
majority status? You get everybody and put them in a
pool and say there’s a hundred people, I’m gonna fire
fifty-one or fifty. They automatically will do it . . . .
. . . .
. . . What is your name . . . Henderson? You
work[ed] . . . for another company where the Union
closed down, didn’t ya? . . . . I thought you did. I
thought you worked for a company the Union got in
and they sold it out and you lost your job. Is that true
or false? . . . . It’s false then. OK. I just heard that,
I just heard that . . . .
. . . .
. . . If you are purchased by Waste Management or
any other company, what’s your best chance of working
here? Union or non-Union? If the other company
make[s] up their min[d] that their going to operate this
Company non-Union, what’s your best chance of keep-
ing your job here? . . . . Frankly, I don’t care what
you do. Cause I know what I’m gonna do. Matter of
fact, I don’t represent Waste Management but I do rep-
resent these people and we already know what we ’re
going to do . . . .
I find and conclude that Blankenship, admittedly an agent
of Respondent Employer, violated Section 8(a)(1) of the Act
by threatening employees with loss of their jobs and other
reprisals if they voted in favor of the Union and by telling
employees that it would be futile for them to select the
Union as their collective-bargaining representative, as al-
leged. Assessed in the context of the Employer’s admitted
coercive and threatening statements and conduct as outlined
above, Blankenship, by the above and related statements to
the assembled employees, clearly engaged in conduct which
further tended to impinge on employee Section 7 rights.
The Employer cannot maintain on this record that
Blankenship’s statements to the assembled employees were
privileged under Section 8(c) of the Act. For, as restated in
Overnite Transportation Co., 296 NLRB 669, 685–687
(1989), enfd. 938 F.2d 815 (7th Cir. 1991),
. . . [An] employer is free only to tell ‘‘what he rea-
sonably believes will be the likely economic con-
sequences of unionization that are outside his control’’
and not [make] ‘‘threats of economic reprisal to be
taken solely on his own volition’’ . . . .
. . . .
. . . [An] employer . . . cannot be heard to com-
plain that he is without adequate guide for his behavior.
He can easily make his views known without engaging
in ‘‘brinkmanship’’ when it becomes all too easy to
‘‘overstep and tumble into the brink . . . .’’
This record does not provide any reasonable or legitimate
basis for Blankenship’s quoted statements to the employees;
Blankenship’s statements are instead simply more threats of
economic reprisal in clear violation of Section 8(a)(1) of the
Act.9
In addition, Section 8(a)(2) of the Act makes it an unfair
labor practice for an employer ‘‘to dominate or interfere with
the formation or administration of any labor organization or
contribute financial or other support . . . .’’ On September
3, 1993, a majority of the Employer’s employees in an ap-
propriate unit selected the Union in a Board-conducted rep-
resentation election as their exclusive collective-bargaining
agent. On December 2, the Union was certified by the Board
as the exclusive collective-bargaining agent of the unit em-
ployees. The Union admittedly has been the exclusive collec-
tive-bargaining agent of the above unit employees since Sep-
tember 3, 1993. It is conceded that the Employer, by its
agents and supervisors, about October 28, 1993, created at its
facility an ‘‘employee committee,’’ a labor organization
within the meaning of Section 2(5) of the Act, to deal with
the Employer concerning wages, hours, and other terms and
conditions of employment; and from about November 1 to
December 3, 1993, established policies and procedures and
participated in the affairs and meetings of the ‘‘employee
committee,’’ rendered assistance and support to the ‘‘em-
ployee committee’’ by paying representatives to the ‘‘em-
463POLLUTION CONTROL INDUSTRIES OF INDIANA
10 Eight of the unit employees, as noted supra, were discharged
about September 8. The ninth, who had been on leave, was dis-
charged about September 10.
11 Further, I reject counsel for Respondent Employer’s additional
argument that the Employer would have in any event subcontracted
out this unit work for lawful reasons. The credible evidence of
record also does not support this assertion.
ployee committee’’ for time spent at ‘‘employee committee’’
meetings, and recognized and bargained with the ‘‘employee
committee’’ as the collective-bargaining representative of its
employees in the above unit. Respondent Employer, by the
above conduct, has admittedly ‘‘dominated and interfered
with the formation and administration of, and has been ren-
dering unlawful assistance and support to, a labor organiza-
tion, in violation of Section 8(a)(1) and (2) of the Act.
Further, Section 8(a)(3) of the Act forbids employer ‘‘dis-
crimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization . . . .’’ And Section
8(a)(5) of the Act makes it an unfair labor practice for an
employer ‘‘to refuse to bargain collectively with the rep-
resentatives of his employees.’’ Section 8(d) of the Act ex-
plains that ‘‘to bargain collectively is the performance of the
mutual obligation of the employer and the representative of
the employees to meet at reasonable times and confer in
good faith with respect to wages, hours and other terms and
conditions of employment . . . .’’ In Fibreboard Corp. v.
NLRB, 379 U.S. 203 (1964), the United States Supreme
Court, in an opinion by Chief Justice Warren, held:
[T]he type of ‘‘contracting out’’ involved in this case—
the replacement of employees in the existing bargaining
unit with those of an independent contractor to do the
same work under similar conditions of employment—
is a statutory subject of collective bargaining under
Section 8(d). . . .
In a separate concurring opinion, Justice Stewart noted:
Analytically, this case is not far from that which would
be presented if the employer had merely discharged all
its employees and replaced them with other workers
willing to work on the same job in the same plant with-
out the various fringe benefits so costly to the com-
pany. While such a situation might well be considered
a Section 8(a)(3) violation upon a finding that the em-
ployer discriminated against the discharged employees
because of their union affiliation, it would be equally
possible to regard the employer’s action as a unilateral
act frustrating negotiation on the underlying questions
of work scheduling and remuneration, and so an inva-
sion of the duty to bargain on these questions, which
are concededly subject to compulsory collective bar-
gaining . . . .
Later, in First National Maintenance Corp. v. NLRB, 452
U.S. 666 (1981), the Supreme Court, in an opinion by Justice
Blackmun, held:
We conclude that the harm likely to be done to an em-
ployer’s need to operate freely in deciding whether to
shut down part of its business purely for economic rea-
sons outweighs the incremental benefit that might be
gained through the union’s participation in making the
decision . . . and we hold that the decision itself is not
part of Section 8(d)’s ‘‘terms and conditions’’ . . . over
which Congress has mandated bargaining. [Emphasis
added.]
The Court, in ‘‘order to illustrate the limits of [its] holding,’’
pertinently noted, inter alia, that the ‘‘union [had] made no
claim of anti-union animus.’’ See also Dubuque Packing Co.,
303 NLRB 386 (1991), and cases discussed.
In the instant case, the Employer repeatedly threatened its
employees with discharge, layoff, closedown, and related re-
prisals if they voted for union representation. On September
3, a majority of the Employer’s employees in an appropriate
unit selected the Union in a Board-conducted representation
election as their exclusive collective-bargaining agent. On
September 8, the Employer, without any prior notice to or
bargaining with the Union, summarily subcontracted out its
tank cleaning operation and discharged its nine unit tank
cleaning crew employees.10 I reject as incredible the shifting,
vague, incomplete, and essentially unsubstantiated assertions
of Company Officials Kevin Prunski, Robert Campbell, and
John Newell that, inter alia, ‘‘the main reason’’ for this sud-
den decision, concerning unit work which the Employer had
been doing for a considerable period of time, was ‘‘our
Company was being written about in the local newspaper in
regard to safety’’; ‘‘there was a great deal of equipment that
would have to be purchased’’; ‘‘we could not afford it’’; this
work ‘‘was not very lucrative’’; and ‘‘we would have had to
put about $300,000 of new equipment and investment into
that facility . . . to continue to do it ourselves . . . .’’ I find
that these asserted reasons are pretextual and that the Em-
ployer, as it had repeatedly warned its employees, was in-
stead promptly retaliating against the unit tank crew, consist-
ing of open and active union supporters, because the employ-
ees had chosen union representation.11
I find and conclude that the Employer, by subcontracting
out this unit work and terminating the nine unit employees
in retaliation for their having chosen union representation,
violated Section 8(a)(1) and (3) of the Act. Further, I find
and conclude the Employer, by this unilateral conduct, also
violated Section 8(a)(1) and (5) of the Act. The Employer,
by this discriminatorily motivated and unilateral conduct, had
replaced the employees in the existing bargaining unit with
those of an independent contractor to do the same work
under similar conditions of employment, and this is a manda-
tory subject of collective-bargaining under Section 8(d) of
the Act. The Employer had failed to bargain with the Union
over its decision and the effects of its decision to subcontract
out this unit work.
The Employer similarly ran afoul of Section 8(a)(1) and
(5) of the Act by failing and refusing to bargain in good faith
with the Union by bypassing the Union and dealing directly
with its employees in the above unit by negotiating with the
‘‘employee committee’’ concerning terms and conditions of
employment; and by unilaterally and without prior notice im-
plementing the following changes in terms and conditions of
employment for its unit employees: Changing its policy re-
quiring employees to clock in and out prior to using toilet
facilities; requiring all employees to pass a new literacy test;
granting employees 1 day off with pay for each 90-day pe-
riod an employee would work without being absent for sick
leave, without any safety writeup and without being tardy
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In making the above and related findings, I credit the essentially
undisputed testimony of Mark Markusic, Joe Peterson, Joseph Aldaz,
and Arturo Cadena as recited above. Their testimony is in significant
part mutually corroborative and they impressed me as trustworthy
witnesses.
Although the General Counsel has also alleged that the Employer
discriminatorily delayed giving pay raises to its employees from July
25 to August 26, 1993, the record does not, in my view, sufficiently
support this separate alleged violation, and I would therefore dismiss
this allegation.
more than once while working a full 40-hour regular time
workweek; reducing the total weekly work hours required of
employees from 58 to 56 hours; adding ‘‘grandparents’’ to
the list of relatives the death of whom made an employee eli-
gible for funeral leave; and increasing the employees’
‘‘monthly bonus pot’’ by $100 if more than 30 employees
were to share in the ‘‘bonus pot.’’ I reject as incredible
Kevin Prunski’s incomplete and unsubstantiated assertion
that
We had made an amendment to our Company policy
[concerning funeral leave] only because in error we
failed to put grandparents in there, but that was all that
was discussed.
. . . .
We [previously had] considered them [grandparents]
to be the same as parents.
I find and conclude instead that the Employer had here too
bypassed the Union, the exclusive bargaining agent of its
unit employees, with respect to the above mandatory subjects
of collective bargaining.
In like vein, the Employer admittedly had threatened em-
ployees with the loss of their pay raises because of their sup-
port for the Union. Its agent, Blankenship, had made clear
to the employees
Let me show you collective bargaining. If the Union
won the election here . . . there is no law in the land
that will require this Company or any company to ever
sign a contract with any union. The law simply states
that a company must meet with a union, not you, at
reasonable times and places for purposes of bargaining
in good faith. Now, here’s a contract as a matter of fact
that we negotiated two and a half years, froze the
wages on everybody for two and a half years, the presi-
dent was elated . . . .
And, after the Union had won the election, Kevin Prunski
promptly notified the unit employees:
All raises and benefits will be on hold pending the con-
tract negotiations with the Steel Workers Union.
I find and conclude that this conduct plainly tended to im-
pinge on employee Section 7 rights in violation of Section
8(a)(1) of the Act, as alleged.12
Remaining for consideration are the issues of whether or
not employees Larry Henderson and Jimmy Brooks were
discriminatorily discharged as alleged. Larry Henderson testi-
fied that he started working for the Employer in March 1991;
he worked on the ‘‘loading dock’’ during July 1993; his job
duties there included taking ‘‘samples,’’ ‘‘hooking up
trucks,’’ and ‘‘opening and closing valves’’ and his super-
visor at the time was Mike Gray. Henderson was chiefly in-
strumental in initiating the Union’s organizational campaign
at the Employer’s facility during 1993. He ‘‘talked with ev-
erybody; everybody was for it; so [he] contacted the Union.’’
The Union thereafter held ‘‘meetings’’ with the employees
which he attended. He signed a union membership card, dis-
tributed such cards to his coworkers at home and at work,
and received signed cards from his coworkers. He had re-
ceived from his coworkers some 32 signed union member-
ship cards in a unit of approximately 36 employees. Later,
on September 3, Henderson served as ‘‘observer’’ for the
Union and signed the tally of ballots during the Board-con-
ducted representation election, which the Union won by a
vote of approximately 34 to 2.
Henderson next recalled that there had been ‘‘two major
spills’’ of solvents or chemicals by his coworkers at the Em-
ployer’s facility in 1992, and the employees involved in the
‘‘spills’’ had not been terminated. However, on September
28, 1993, Henderson was suspended and later discharged by
the Employer because he had been involved in a ‘‘spill.’’
Henderson testified:
Q. What happened that day?
A. There was a spill in our area which involved me,
Wayne [Squire] and [Supervisor] Michael [Gray].
Q. How did the spill occur?
A. There were two trucks on the dock. One needed
to be loaded and off-loaded and the engine was run-
ning. Mike Gray was in between the trucks. Me and
Wayne Squire were by the desk and Mike [Gray] said
open it up. At the time I thought that he meant the
dome. So Wayne [Squire] went up to the top of the
tank and opened the dome . . . and then Wayne
[Squire] came back by the desk . . . and Mike [Gray]
said open it up . . . and Mike [Gray] had the hose in
his hand, he took the cap off the hose and the water
just spilled out.
Q. Do you recall how long the water was squirting
out . . . ?
A. I think it went for about a minute.
Q. And what kind of liquid was it that spilled out?
A. It was F-series water . . . they say it is non-haz-
ardous water.
Q. Compared with the two other major spills . . .
earlier, was this amount of liquid that was spilled near
to those spills?
A. No.
Supervisor Gray then apprised Henderson that ‘‘he had to
send [Henderson] home.’’ Safety Director Frank Johnny, at
the time, also spoke to Gray, Squire, and Henderson, and
took statements concerning the incident.
Henderson punched out, as instructed, and went home. He
was later telephoned by Director Johnny and told that he was
‘‘suspended until an investigation could be done.’’ Hender-
son went back to the Employer’s facility that same day and
again spoke with Director Johnny. Johnny again apprised
Henderson that he ‘‘was suspended until an internal inves-
tigation could be done.’’ On the next day, Henderson tele-
phoned the Employer and was apprised by Director Johnny
that ‘‘they were not done with the investigation.’’ Henderson
‘‘kept calling’’ and was ultimately told by the Employer’s
chairman of its board of directors, Kevin Prunski, that he
465POLLUTION CONTROL INDUSTRIES OF INDIANA
13 Counsel for the General Counsel moves in his posthearing brief
(Br. 28) to amend the consolidated and amended complaints in this
proceeding to further allege that Henderson’s earlier ‘‘placement
. . . on probation was another violation of Section 8(a)(3) and (1)
of the Act.’’ This motion is denied as both untimely and involving
an issue not sufficiently litigated at the hearing.
was ‘‘fired because of the spill’’; ‘‘it was very unsafe and
they couldn’t have that.’’ Wayne Squire, also involved in the
‘‘spill,’’ was not ‘‘discharged’’ and in fact was permitted to
return to work ‘‘two days later.’’
Former Company Safety Director Frank Johnny, when
asked what the ‘‘reason’’ was for employee Henderson’s
subsequent discharge, testified:
At that particular time there was a spill that he [Hen-
derson] was involved with. If it couldn’t be that, I don’t
know.
Johnny had ‘‘brought’’ to Prunski’s attention ‘‘the spill’’ that
Larry Henderson had caused; however, Prunski assertedly did
not ‘‘consult with [Johnny] about [Henderson’s] discharge.’’
Johnny acknowledged that ‘‘there ha[d] been spills’’ in the
past and he had recommended ‘‘discipline,’’ explaining:
After the investigation sometimes we will give them
days off and they will come back to work and have
more training.
Johnny had never recommended the ‘‘discharge of any em-
ployee . . . involved in a spill.’’
Prunski, however, testified:
Q. Now, where [sic] you consulted when Larry Hen-
derson was discharged?
A. Yes, I was.
Q. Who brought that to your attention?
A. I believe it was [Safety Director] Frank Johnny
that brought it to my attention.
Q. What was the reason for his discharge?
A. There was a number of things in Henderson’s
file; absenteeism, unsafe practices, just a number of
write ups in his file. . . .
Q. What was the straw that broke the camel’s back?
A. The straw that broke the camel’s back was he had
a spill at our plant. . . .
Q. Now, when Frank Johnny approached you about
this incident with Larry Henderson, did he make a rec-
ommendation to you as to what his fate should be?
A. No, he did not, not that I can recall.
I credit the testimony of Henderson as recited above. His
testimony, in this respect, was in large part uncontradicted
and supported by the admissions of former Safety Director
Johnny. And, insofar as the testimony of Henderson conflicts
with the testimony of Prunski and Robert Campbell, I am
persuaded on this record that the above testimony of Hender-
son is more complete, trustworthy, and reliable. I reject as
pretextual Prunski’s shifting and incredible assertion that
Henderson was fired because of ‘‘absenteeism’’ and ‘‘unsafe
practices.’’ Indeed, Henderson had been given a $1-an-hour
wage increase ‘‘a couple of weeks before the election.’’ And,
assessed in the context of the Employer’s unlawful resort to
widespread acts of interference, restraint, coercion, discrimi-
nation, and derogation of its bargaining obligation, all plainly
calculated to defeat union representation by its employees, I
am persuaded here that the real reason for Henderson’s sus-
pension and discharge was to get rid of this chief union pro-
tagonist, who had served as the Union’s observer in the
Board-conducted representation election and signed the tally
of ballots for the Union.
It is true, as Henderson acknowledged, Henderson had re-
ceived, inter alia, ‘‘warnings for excessive absenteeism’’ and
‘‘violating safety practices’’ from the Employer. However,
the record indicates that the Employer had significant em-
ployee attendance and performance problems, and its treat-
ment of these problems varied and at times appeared lax and
permissive. Further, as Henderson credibly testified, Prunski
cited only the ‘‘spill’’ to Henderson when firing him. Hen-
derson’s coworker involved in this ‘‘spill’’ was not similarly
disciplined. And Johnny, former director of safety, had not
recommended discharge for this ‘‘spill,’’ could cite no other
‘‘reason’’ for this unusual disciplinary action, and acknowl-
edged that he had never recommended the ‘‘discharge of any
employee . . . involved in a spill.’’ In sum, I find here that
Henderson was discriminatorily suspended and discharged in
retaliation for his known union activities, in violation of Sec-
tion 8(a)(1) and (3) of the Act. Moreover, I reject the Em-
ployer’s assertion to the effect that Henderson would have in
any event then been fired for lawful nondiscriminatory rea-
sons. The credible evidence of record does not support this
assertion.13
The case of employee Jimmy Brooks is different and here
I would dismiss the pertinent allegations of the amended con-
solidated complaints. Jimmy Brooks testified that he started
working for the Employer in August 1991; the Union’s orga-
nizational drive at the Employer’s facility started about June
1993; he attended two union organizational meetings and
signed a union membership card; and he ‘‘did not pass out
any cards or talk to anybody about the Union.’’ On August
9, 1993, as Brooks recalled,
When I came to work, I changed, and I went to my
foreman and told my foreman that I wasn’t feeling too
well . . . . And he said that if you are sick . . . just
go home. I said are you sure because I don’t want any
trouble. He said yes . . . I will tell just tell them that
you are sick and went home. So, I went home.
Brooks did not ‘‘punch in that day.’’ On the following morn-
ing, August 10, he ‘‘returned to work . . . on time and ready
to work.’’ He was then told to ‘‘see’’ Company Safety Di-
rector Frank Johnny. There, Johnny and he had the following
conversation:
He [Johnny] asked me what happened yesterday, and I
[Brooks] told him that the foreman sent me home. He
said okay let me go out in the yard and verify
that. . . . He came back, and when he came back I
asked him did he talk to [the foreman] and he said yes.
Then after that he said hold on, let me make a call, so
he told me to step out of his office. . . . Then he got
off the phone and he came back and told me I’m sorry;
they got their mind made up; we are going to have to
let you go.
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brooks assertedly was never ‘‘told by any supervisor’’ that
if he was ‘‘absent from work too much’’ he ‘‘would be
fired.’’
On cross-examination, Brooks acknowledged that he had
signed a receipt for a copy of Respondent’s Exhibit 4, the
Respondent’s employee handbook, on December 18, 1992.
The employee handbook, as noted, provides, inter alia, that
‘‘habitual absenteeism or tardiness’’ ‘‘may result in discipli-
nary action or discharge.’’ Brooks claimed that he ‘‘didn’t
understand this.’’ In addition, Respondent’s Exhibit 1 con-
tains ‘‘Employee Absence/Late/Early Quit Reports’’ for em-
ployee Brooks. As these records show, Brooks was absent on
April 14, 1993, when he ‘‘called in and said he will be late,
but [was a] no show.’’ He was absent on April 28, because
he was ‘‘sick.’’ He was absent on April 29 and ‘‘went to the
Hospital’’ with ‘‘bronchitis.’’ He was ‘‘late’’ on May 6 with-
out making a ‘‘call.’’ He was absent on May 25 and ‘‘called
in and said [he] will be late’’ but did not ‘‘show.’’ He was
absent on May 26 and given a 1-day suspension. He was ab-
sent on May 27 as a ‘‘no show.’’ He was absent on June
3. He was a ‘‘late arrival’’ on June 9. He was given ‘‘three
days suspension’’ for ‘‘safety’’ reasons on June 11. He was
a ‘‘late arrival’’ on June 23. He was absent on June 30. He
was a ‘‘no show/no call’’ on July 8. He was a ‘‘late arrival’’
on July 17 and was given ‘‘five days off.’’ He was a ‘‘late
arrival’’ on July 28 and 30 and ‘‘sent home’’ on July 30.
And, finally, he was absent on August 9 with his last day
of work being August 6. Respondent’s Exhibit 2 is Brooks’
‘‘Unemployment Compensation Management Separation
Record,’’ citing ‘‘poor attendance’’ as the reason for his
‘‘separation.’’
Brooks, when questioned about the above attendance
records, asserted, inter alia,
Any time I didn’t come to work I would call ahead
of time. The majority of times, if I was off, I had a
doctor’s excuse.
. . . .
The ones I haven’t signed I don’t remember.
Brooks could not ‘‘recall’’ and then denied ‘‘ever get[ting]
a one day suspension.’’ He denied various record entries,
claiming, inter alia, that ‘‘didn’t happen.’’ He added: ‘‘I
didn’t sign all these. These pages without my signature are
rumors.’’ Brooks testified:
Q. Does that show that your supervisor gave you
five days off because you arrived late again?
A. That is not what happened, no. . . . That is what
the document says, but that didn’t happen . . . .
Brooks also assertedly had never seen Respondent’s Exhibit
2, his ‘‘Unemployment Compensation Management Separa-
tion Record,’’ citing ‘‘poor attendance’’ as the reason for his
‘‘separation.’’ He claimed that ‘‘nobody’’ had told him that
he was ‘‘being terminated for excessive absenteeism.’’ He
assertedly had never received ‘‘any kind of warnings regard-
ing [his] absenteeism.’’
Former Company Safety Director Frank Johnny identified
General Counsel’s Exhibit 4 as his signed statement explain-
ing the reason for firing employee Jimmy Brooks during Au-
gust 1993. General Counsel’s Exhibit 4 states:
Jimmy Brooks was separated from Pollution Control
Industries of Indiana, Inc., solely for his attendance
record.
He was given permission to go home by his super-
visor because he was sick After that day, he did not
call for three days. He did not let us know if he is com-
ing back to work or not. He did not show up with a
doctor’s excuse. This is grounds for separation. This
was reviewed by the plant manager Bob Moore and
myself.
Although the testimony of Frank Johnny was at times not
the best, I am nevertheless persuaded here that his testimony
in this respect is more reliable and trustworthy than the testi-
mony of Jimmy Brooks. Brooks’ testimony was at times un-
clear and incomplete. I was not impressed with his reliability
or trustworthiness as a witness. On this record, I do not find
a sufficient nexus between Brook’s firing and his limited
union activities. Rather, as Johnny more reliably explained
and the record shows, ‘‘Jimmy Brooks was separated from
Pollution Control Industries of Indiana, Inc., solely for his at-
tendance record.’’
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce and
Charging Party Union is a labor organization as alleged.
2. Respondent Employer has interfered with, restrained,
and coerced its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act in violation of Section
8(a)(1) of the Act, by threatening its employees with layoffs,
discharge, the closing of its facility, loss of their incentive
program, loss and delay of their pay raises, and related re-
prisals because of their support of and activities on behalf of
Charging Party Union; by creating the impression among its
employees that their union activities were under surveillance;
by coercively interrogating employees about employee union
sympathies and activities; by threatening employees with re-
prisals if they continued to wear hats with union insignia;
and by warning its employees that it would be futile for them
to select the Union as their collective-bargaining representa-
tive.
3. Respondent Employer has dominated and interfered
with the formation and administration of, and has been ren-
dering unlawful assistance and support to, a labor organiza-
tion in violation of Section 8(a)(1) and (2) of the Act, by
creating an employee committee, a labor organization within
the meaning of Section 2(5) of the Act, to deal with the Em-
ployer concerning wages, hours, and other terms and condi-
tions of employment; by establishing policies and procedures
and participating in the affairs and meetings of the employee
committee; by rendering assistance and support to the em-
ployee committee by paying representatives to the employee
committee for time spent at employee committee meetings;
and by recognizing and bargaining with the employee com-
mittee as the collective-bargaining representative of its em-
ployees in the unit described below.
4. Respondent Employer has discriminated in regard to
hire, tenure, and terms and conditions of employment to dis-
courage membership in a labor organization, Charging Party
Union, in violation of Section 8(a)(1) and (3) of the Act, by
discriminatorily discontinuing its tank cleaning operation,
subcontracting the work of its tank cleaning operation, and
467POLLUTION CONTROL INDUSTRIES OF INDIANA
14 The discriminatorily discharged tank cleaning crew employees
include Ernesto Irezarry, Cornell Jude, Michael Kelly, Mark
Markusic, Jose Osorio, Joseph Peterson, Miguel Ramos, Rene Rios,
and Joe Aldaz.
15 I have rejected as incredible the shifting, vague, incomplete, and
essentially unsubstantiated assertions of Company Officials Kevin
Prunski, Robert Campbell, and John Newell that, inter alia, ‘‘the
main reason’’ for this sudden decision, concerning unit work which
the Employer had been doing for a considerable period of time, was
‘‘our Company was being written about in the local newspaper in
regard to safety’’; ‘‘there was a great deal of equipment that would
have to be purchased’’; ‘‘we could not afford it’’; this work ‘‘was
not very lucrative’’; and ‘‘we would have had to put about $300,000
of new equipment and investment into that facility . . . to continue
to do it ourselves . . . .’’ I have instead found that these asserted
reasons are pretextual and that the Employer, as it had repeatedly
warned its employees, was instead promptly retaliating against the
unit tank crew, consisting of open and active union supporters, be-
cause the employees had chosen union representation.
16 The discriminatorily discharged tank cleaning crew employees
include Ernesto Irezarry, Cornell Jude, Michael Kelly, Mark
Markusic, Jose Osorio, Joseph Peterson, Miguel Ramos, Rene Rios,
and Joe Aldaz.
discharging its tank cleaning crew employees;14 and by
discriminatorily suspending and then discharging employee
Larry Henderson.
5. Respondent Employer has failed and refused to bargain
in good faith with Charging Party Union, the exclusive bar-
gaining agent of its employees in the appropriate bargaining
unit described below, by discriminatorily and without prior
notice to and bargaining with Charging Party Union, dis-
continuing its tank cleaning operation, subcontracting the
work of its tank cleaning operation, and discharging its tank
cleaning crew employees; by bypassing the Union and deal-
ing directly with its unit employees by negotiating with the
employee committee concerning terms and conditions of em-
ployment; and by unilaterally and without prior notice imple-
menting the following changes in terms and conditions of
employment for its unit employees: changing its policy re-
quiring employees to clock in and out prior to using toilet
facilities; requiring all employees to pass a new literacy test;
granting employees 1 day off with pay for each 90-day pe-
riod an employee would work without being absent for sick
leave, without any safety writeup and without being tardy
more than once while working a full 40-hour regular time
workweek; reducing the total weekly work hours required of
employees from 58 to 56 hours; adding grandparents to the
list of relatives the death of whom made an employee eligi-
ble for funeral leave; and increasing the employees’ monthly
bonus pot by $100 if more than 30 employees were to share
in the bonus pot. The appropriate bargaining unit consists of:
All full time and regular part time production and
maintenance employees, including laborers, equipment
operators, and environmental technicians employed by
the Employer at its facility presently located at 4343
Kennedy Avenue, East Chicago, Indiana; but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
6. The unfair labor practices found above affect commerce
as alleged.
7. The General Counsel has failed to sufficiently prove the
remaining allegations of the amended consolidated com-
plaints and therefore they are dismissed.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such unlawful conduct and like and related con-
duct and to post the attached notice. In addition, to effectuate
the purposes and policies of the Act, Respondent Employer
affirmatively will be directed to restore the status quo ante
with respect to its discriminatorily motivated and unilateral
subcontracting out of its unit tank cleaning operation, as
found unlawful above. Counsel for Respondent Employer ar-
gues (Br. 31) that such an order would be ‘‘unduly burden-
some.’’ I reject this assertion as not supported by the credi-
ble evidence of record.15 Respondent Employer, in retaliation
for its employees having chosen union representation,
discriminatorily and unilaterally subcontracted out this unit
work and discharged the unit employees. There was, how-
ever, no written subcontract. Rather, this unit work was ad-
mittedly subcontracted out on an ‘‘as needed’’ basis. Under
the circumstances, restoration of the status quo ante will rea-
sonably effectuate the purposes and policies of the Act and
will not create any undue burden on the Employer.
Accordingly, Respondent Employer will be directed to re-
establish and resume its unit tank cleaning operation as it ex-
isted prior to its conduct found unlawful here; offer imme-
diate and full reinstatement to its unlawfully discharged unit
tank crew employees16 to their former jobs or, in the event
their former jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other rights and
privileges, and make whole the employees for any loss of
earnings they may have sustained by reason of Respondent
Employer’s unlawful conduct by making payment to them of
a sum of money equal to that which they normally would
have earned from the date of Respondent’s unlawful action
to the date of its offers of reinstatement, less net earnings
during such period, with backpay to be computed as pro-
vided in F. W. Woolworth Co., 90 NLRB 651 (1977), and
interest as provided in New Horizon’s for the Retarded, 283
NLRB 1173 (1987). See generally Isis Plumbing Co., 138
NLRB 716 (1962). Respondent Employer will similarly be
directed to offer immediate and full reinstatement to
discriminatorily discharged employee Larry Henderson and
also make whole this employee with interest, as provided
above.
In addition, Respondent Employer will be directed to, on
request, bargain in good faith with Charging Party Union as
the exclusive bargaining agent for its unit employees and, if
an understanding is reached, embody that understanding in a
signed agreement. Respondent Employer will be directed to
dissolve its unlawfully created employee committee. And Re-
spondent Employer will be directed to, on request, rescind its
unlawful unilateral changes in terms and conditions of em-
ployment for its unit employees; however, such an order
should not be construed as requiring the Employer to cancel
any wage increases or other improvements in terms and con-
ditions of employment without a request from the Union. Re-
spondent Employer will be directed to make whole its unit
employees by reimbursing them for any wages and benefits
they may have lost as a result of such unilateral changes,
with interest, in accordance with Ogle Protection Service,
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
183 NLRB 682 (1970), and New Horizons for the Retarded,
supra.
Respondent Employer will also be directed to preserve
and, on request, make available to the Board or its agents for
examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of
backpay due under the terms of this Order. And Respondent
Employer will be directed to expunge from its files any ref-
erences to the discriminatory discharges of its tank cleaning
crew employees and employee Henderson, and notify the
discriminatees in writing that this has been done and that evi-
dence of these discriminatory actions will not be used as a
basis for future personnel action against them, in accordance
with Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Pollution Control Industries of Indiana,
East Chicago, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interfering with, restraining, and coercing its employ-
ees in the exercise of the rights guaranteed them by Section
7 of the Act in violation of Section 8(a)(1) of the Act, by
threatening its employees with layoffs, discharge, the closing
of its facility, loss of their incentive program, loss and delay
of their pay raises, and related reprisals because of their sup-
port of and activities on behalf of United Steelworkers of
America, AFL–CIO–CLC; creating the impression among its
employees that their union activities were under surveillance;
coercively interrogating employees about employee union
sympathies and activities; threatening employees with repris-
als if they continued to wear hats with union insignia; and
warning its employees that it would be futile for them to se-
lect the Union as their collective-bargaining representative.
(b) Dominating and interfering with the formation and ad-
ministration of, and rendering unlawful assistance and sup-
port to, a labor organization in violation of Section 8(a)(1)
and (2) of the Act, by creating an employee committee, a
labor organization within the meaning of Section 2(5) of the
Act, to deal with the Employer concerning wages, hours, and
other terms and conditions of employment; establishing poli-
cies and procedures and participating in the affairs and meet-
ings of the employee committee; rendering assistance and
support to the employee committee by paying representatives
to the employee committee for time spent at employee com-
mittee meetings; and recognizing and bargaining with the
employee committee as the collective-bargaining representa-
tive of its employees in the unit described below.
(c) Discriminating in regard to hire, tenure, and terms and
conditions of employment to discourage membership in the
Union in violation of Section 8(a)(1) and (3) of the Act, by
discriminatorily discontinuing its tank cleaning operation,
subcontracting the work of its tank cleaning operation and
discharging its tank cleaning crew employees; and
discriminatorily suspending and then discharging employee
Larry Henderson. The discriminatorily discharged tank clean-
ing crew employees include Ernesto Irezarry, Cornell Jude,
Michael Kelly, Mark Markusic, Jose Osorio, Joseph Peter-
son, Miguel Ramos, Rene Rios, and Joe Aldaz.
(d) Failing and refusing to bargain in good faith with the
Union, the exclusive bargaining agent of its employees in the
appropriate bargaining unit described below, by dis-
criminatorily and without prior notice to and bargaining with
the Union, discontinuing its tank cleaning operation, sub-
contracting the work of its tank cleaning operation, and dis-
charging its tank cleaning crew employees; bypassing the
Union and dealing directly with its unit employees by nego-
tiating with the employee committee concerning terms and
conditions of employment; and unilaterally and without prior
notice implementing the following changes in terms and con-
ditions of employment for its unit employees: changing its
policy requiring employees to clock in and out prior to using
toilet facilities; requiring all employees to pass a new literacy
test; granting employees 1 day off with pay for each 90-day
period an employee would work without being absent for
sick leave, without any safety writeup, and without being
tardy more than once while working a full 40-hour regular
time workweek; reducing the total weekly work hours re-
quired of employees from 58 to 56 hours; adding grand-
parents to the list of relatives the death of whom made an
employee eligible for funeral leave; and increasing the em-
ployees’ monthly bonus pot by $100 if more than 30 em-
ployees were to share in the bonus pot. The appropriate bar-
gaining unit consists of:
All full time and regular part time production and
maintenance employees, including laborers, equipment
operators, and environmental technicians employed by
the Employer at its facility presently located at 4343
Kennedy Avenue, East Chicago, Indiana; but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reestablish and resume its unit tank cleaning operation
as it existed prior to its conduct found unlawful here and
offer immediate and full reinstatement to its unlawfully dis-
charged unit tank crew employees to their former jobs or, in
the event their former jobs no longer exist, to substantially
equivalent jobs without prejudice to their seniority or other
rights and privileges, and make whole the employees for any
loss of earnings they may have sustained by reason of Re-
spondent Employer’s unlawful conduct, with interest, as pro-
vided in the Board’s decision. The discriminatorily dis-
charged tank cleaning crew employees include Ernesto
Irezarry, Cornell Jude, Michael Kelly, Mark Markusic, Jose
Osorio, Joseph Peterson, Miguel Ramos, Rene Rios, and Joe
Aldaz.
(b) Offer immediate and full reinstatement to discrim-
inatorily discharged employee Larry Henderson to his former
job or, in the event his former job no longer exists, to a sub-
469POLLUTION CONTROL INDUSTRIES OF INDIANA
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
stantially equivalent job without prejudice to his seniority or
other rights and privileges, and make whole this employee
for any loss of earnings he may have sustained by reason of
Respondent Employer’s unlawful conduct, with interest.
(c) On request, bargain in good faith with the Union as
the exclusive bargaining agent for its unit employees and, if
an understanding is reached, embody that understanding in a
signed agreement.
(d) Dissolve its unlawfully created employee committee.
(e) On request, rescind its unlawful unilateral changes in
terms and conditions of employment for its unit employees;
however, this Order should not be construed as requiring the
Employer to cancel any wage increases or other improve-
ments in terms and conditions of employment without a re-
quest from the Union and make whole its unit employees by
reimbursing them for any wages and benefits they may have
lost as a result of such unilateral changes, with interest.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Expunge from its files any references to the discrimi-
natory discharges of its tank cleaning crew employees and
employee Henderson and notify the discriminatees in writing
that this has been done and that evidence of these discrimina-
tory actions will not be used as a basis for future personnel
action against them.
(h) Post at its facilities in East Chicago, Indiana, copies of
the attached notice marked ‘‘Appendix.’’18 Copies of the no-
tice, on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the amended consolidated
complaints are dismissed insofar as they allege violations of
the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interfere with, restrain, and coerce our em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the Act,
by threatening our employees with layoffs, discharge, the
closing of our facility, loss of their incentive program, loss
and delay of their pay raises, and related reprisals because
of their support of and activities on behalf of United Steel-
workers of America, AFL–CIO–CLC; creating the impres-
sion among our employees that their union activities were
under surveillance; coercively interrogating our employees
about employee union sympathies and activities; threatening
our employees with reprisals if they continued to wear hats
with union insignia; and warning our employees that it
would be futile for them to select the Union as their collec-
tive-bargaining representative.
WE WILL NOT dominate and interfere with the formation
and administration of, and render unlawful assistance and
support to, a labor organization in violation of Section
8(a)(1) and (2) of the Act, by creating an employee commit-
tee, a labor organization within the meaning of Section 2(5)
of the Act, to deal with this Employer concerning wages,
hours, and other terms and conditions of employment; estab-
lishing policies and procedures and participating in the af-
fairs and meetings of the employee committee; rendering as-
sistance and support to the employee committee by paying
representatives to the employee committee for time spent at
employee committee meetings; and recognizing and bargain-
ing with the employee committee as the collective-bargaining
representative of our employees in the unit described below.
WE WILL NOT discriminate in regard to hire, tenure, and
terms and conditions of employment to discourage member-
ship in the Union in violation of Section 8(a)(1) and (3) of
the Act, by discriminatorily discontinuing our tank cleaning
operation, subcontracting the work of our tank cleaning oper-
ation, and discharging our tank cleaning crew employees and
discriminatorily suspending and then discharging employee
Larry Henderson. The discriminatorily discharged tank clean-
ing crew employees include Ernesto Irezarry, Cornell Jude,
Michael Kelly, Mark Markusic, Jose Osorio, Joseph Peter-
son, Miguel Ramos, Rene Rios, and Joe Aldaz.
WE WILL NOT fail and refuse to bargain in good faith with
the Union, the exclusive bargaining agent of our employees
in the appropriate bargaining unit described below, by
discriminatorily and without prior notice to and bargaining
with the Union discontinuing our tank cleaning operation,
subcontracting the work of our tank cleaning operation, and
discharging our tank cleaning crew employees; bypassing the
Union and dealing directly with our unit employees by nego-
tiating with the employee committee concerning terms and
conditions of employment; and unilaterally and without prior
notice implementing the following changes in terms and con-
ditions of employment for our unit employees: changing our
policy requiring employees to clock in and out prior to using
toilet facilities; requiring all employees to pass a new literacy
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
test; granting employees 1 day off with pay for each 90-day
period an employee would work without being absent for
sick leave, without any safety writeup, and without being
tardy more than once while working a full 40-hour regular
time workweek; reducing the total weekly work hours re-
quired of employees from 58 to 56 hours; adding grand-
parents to the list of relatives the death of whom made an
employee eligible for funeral leave; and increasing the em-
ployees’ monthly bonus pot by $100 if more than 30 em-
ployees were to share in the bonus pot. The appropriate bar-
gaining unit consists of:
All full time and regular part time production and
maintenance employees, including laborers, equipment
operators, and environmental technicians employed by
the Employer at its facility presently located at 4343
Kennedy Avenue, East Chicago, Indiana; but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL reestablish and resume our unit tank cleaning op-
eration as it existed prior to our conduct found unlawful in
the Board’s decision; offer immediate and full reinstatement
to our unlawfully discharged unit tank crew employees to
their former jobs or, in the event their former jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and make whole
the employees for any loss of earnings they may have sus-
tained by reason of our unlawful conduct, with interest, as
provided in the Board’s decision. The discriminatorily dis-
charged tank cleaning crew employees include Ernesto
Irezarry, Cornell Jude, Michael Kelly, Mark Markusic, Jose
Osorio, Joseph Peterson, Miguel Ramos, Rene Rios, and Joe
Aldaz.
WE WILL offer immediate and full reinstatement to
discriminatorily discharged employee Larry Henderson to his
former job or, in the event his former job no longer exists,
to a substantially equivalent job, without prejudice to his se-
niority or other rights and privileges, and make whole this
employee for any loss of earnings he may have sustained by
reason of Respondent Employer’s unlawful conduct, with in-
terest.
WE WILL, on request, bargain in good faith with the Union
as the exclusive bargaining agent for our unit employees and
if an understanding is reached embody that understanding in
a signed agreement.
WE WILL dissolve our unlawfully created employee com-
mittee.
WE WILL, on request, rescind our unlawful unilateral
changes in terms and conditions of employment for our unit
employees; however, this should not be construed as requir-
ing the Employer to cancel any wage increases or other im-
provements in terms and conditions of employment without
a request from the Union; and make whole our unit employ-
ees by reimbursing them for any wages and benefits they
may have lost as a result of such unilateral changes, with in-
terest.
WE WILL expunge from our files any references to the dis-
criminatory discharges of our tank cleaning crew employees
and employee Henderson and notify the discriminatees in
writing that this has been done and that evidence of these
discriminatory actions will not be used as a basis for future
personnel action against them.
POLLUTION CONTROL INDUSTRIES OF INDIANA