Sacramento Recycling & Transfer Station

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 564 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 39
564
BLT Enterprises of Sacramento, Inc., d/b/a Sacra-
mento Recycling and Transfer Station and
Chauffeurs, Teamsters and Helpers Local Union
No. 150, International Brotherhood of Team-
sters.1 Cases 20–CA–30455–1, 20–CA–30455–4,
20–CA–30455–5, and 20–CA–30455–6
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Administrative Law Judge Jay R. Pollack issued the at-
tached decision on January 31, 2003. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 as modified below and to adopt
the recommended Order as modified.

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act by: denying an employee the right to
representation at an interview which the employee reasonably believed
might result in disciplinary action; interrogating employees about their
union activities and the union activities of other employees; threatening
employees with subcontracting, loss of work assignments, and loss of
employment; announcing and granting wage increases and a bonus
program; and, by imposing restrictions on the rights of employees to
discuss unions or other protected concerted activities.
We affirm pro forma, in the absence of timely exceptions, the first-
mentioned violation found by the judge. Had there been timely excep-
tions, we would have reversed the judge and dismissed the allegation,
retroactively applying IBM Corp., 341 NLRB 1288 (2004), where a
Board majority reversed Epilepsy Foundation, 331 NLRB 676 (2000),
enfd. in part 268 F.3d 1095 (D.C. Cir. 2001), and held that employees
in a nonunionized workplace do not have a right to representation at a
disciplinary interview. While we affirm the finding of a violation pro
forma, we decline to order a remedy. Under Epilepsy Foundation, the
only remedy for a denial of a request for the presence of a witness at a
disciplinary investigation would be an order to cease and desist from
such conduct in the future. Because IBM now permits such denials, it
would be futile to order the Respondent to cease and desist from doing
what it is now permitted to do. This approach is consistent with the
Board’s authority to consider remedial issues sua sponte. See, e.g.,
Indian Hills Care Center, 321 NLRB 144 fn. 3 (1996).
In the circumstances here, Member Schaumber would not adopt the
judge’s finding of a violation.
The judge found that, several weeks after the Union
filed a petition seeking to represent the Respondent’s
truckdrivers, Shawn Guttersen, the Respondent’s vice
president, asked employee Gary Wickey why the drivers
wanted a union and what it would take to make the driv-
ers happy. The complaint alleged this matter as a viola-
tion of Section 8(a)(1) of the Act. The judge did not
make a finding on this allegation. The General Counsel
excepts, contending that the judge should have found a
violation. We find merit in this exception.
Guttersen’s inquiry, in the context of the union cam-
paign, constituted an unlawful solicitation of grievances
and implicit promise to remedy them.4 See, e.g., S. E.
Nichols, Inc., 284 NLRB 556 (1987), enfd. in relevant
part 862 F.2d 952 (2d Cir. 1988), cert. denied 490 U.S.
1108 (1989). We find that, by this inquiry, the Respon-
dent violated Section 8(a)(l).5
The judge also found that, on December 4, 2001, the
Respondent held meetings with its drivers to discuss the
upcoming representation election. Guttersen told em-
ployees that the Respondent wanted to give the drivers a
raise but could not do so because the Union had filed a
petition. At another meeting with employees, on De-
cember 10, Guttersen again said that the Respondent
could not grant a raise because of the petition. He said
that the Respondent had considered granting a raise but

4 In light of the judge’s uncontested finding that the Respondent,
through dispatcher Chenoweth, unlawfully interrogated employees, we
find it unnecessary to pass on the complaint allegation that Guttersen’s
inquiry constituted an unlawful interrogation. To find a violation on
this allegation would be cumulative and would not affect the remedy.
5 We therefore find it unnecessary to pass on the allegations that
Guttersen on another occasion unlawfully told employees he had an
“open door” and that the Respondent’s president, Bernie Hubberman,
unlawfully asked an employee why the Respondent’s drivers were
unhappy. Findings that these incidents also involved violations of Sec.
8(a)(1) would be cumulative and would not affect the remedy. Simi-
larly, in light of the judge’s finding that the Respondent unlawfully
interrogated employees about their union activities and the union activi-
ties of other employees, we find it unnecessary to pass on the allegation
that Mary Lou Nuno, the Respondent’s human resources and safety
manager, unlawfully interrogated employee Gary Wickey.
The complaint alleged that Supervisor Gilbert Pineda, after deliver-
ing a check to employee Wickey, who had previously asked Vice Presi-
dent Guttersen about wages owed Wickey by the Respondent’s prede-
cessor, told Wickey that there would probably be more checks for
Wickey if he voted against the Union. Pineda denied making that
statement. The General Counsel correctly points out that the judge did
not make a finding as to whether Pineda actually made the statement at
issue. We need not resolve the credibility issue. Even if the statement
was made, and even if it was a promise to remedy a grievance by pay-
ing employees additional paychecks to cover amounts owed to them by
their previous employer, we note that Guttersen, on another occasion,
made an unlawful promise to remedy grievances when he asked
Wickey why the drivers wanted a union and what it would take to make
them happy. Accordingly, another finding of violation would be cumu-
lative.
SACRAMENTO RECYCLING & TRANSFER STATION 565
could not do so because it would be considered a bribe to
defeat the Union.
The complaint alleged these two incidents as violations
of Section 8(a)(1). The judge did not make findings on
these allegations. The General Counsel excepts, arguing
that the judge should have found the violations alleged.
We find merit in these exceptions.
The Respondent, through Guttersen, attributed the
withholding of the raise to the petition, thus, unlawfully
placing the onus for the denial of these benefits on the
Union. See, e.g., Marshall Durbin Poultry Co., 310
NLRB 68 fn. 2 (1993). In doing so, the Respondent vio-
lated Section 8(a)(1).6
We do not, however, find merit in the General Coun-
sel’s contentions that other additional violations of Sec-
tion 8(a)(1) should be found. Thus, the General Counsel
maintains that the Respondent’s transportation manager,
Steve Albin, violated Section 8(a)(1) by telling employ-
ees on November 8 that there would not be any more
discharges (the Respondent discharged five drivers on
November 7) unless someone “pissed him off.” The
General Counsel submits that this statement constituted
an unlawful implicit threat to discharge prounion em-
ployees. However, we have affirmed the judge’s find-
ings that the Respondent was unaware of its employees’
union activities until November 16, and that the Novem-
ber 7 discharges were lawful. In these circumstances, we
do not find Albin’s statement violative of Section
8(a)(1). For the same reasons, we also find lawful Gut-
tersen’s November 8 statement that the Respondent knew
the employees were unhappy with their pay rates and that
the Respondent might be able to increase them. Accord-
ingly, we dismiss the allegations pertaining to the No-
vember 8 statements by Albin and Guttersen.
We also dismiss the allegation that Guttersen’s early
December statement to Wickey, “I understand you are
one of the guys that were involved in starting the Union,”
unlawfully created an impression of surveillance. There
is no evidence to support the proposition that Wickey
would reasonably infer from this statement that the Re-
spondent was spying on him. To the contrary, by the
time this incident occurred, the Respondent had learned
of a confrontation between Wickey and another em-
ployee that arose in part from Wickey’s strong support
for the Union. In these circumstances, we conclude that

6 Chairman Battista finds those statements to be truthful and lawful
expressions of the Respondent’s concern about the potential conse-
quences of granting a raise. Indeed, the Respondent has been found to
have violated the Act by ultimately doing so. Inasmuch as the grant of
the wage increase was unlawful, Chairman Battista would not find that
the Respondent’s expressed and correct concern that this would be so
was unlawful.
Guttersen’s statement to Wickey would not reasonably
have caused the latter to believe that his union activities
were under surveillance.7
Nor do we find merit in the General Counsel’s conten-
tion that the Respondent threatened employees with dis-
charge in a December 17, 2001 letter. In that letter, dis-
tributed shortly before the December 21 election, the
Respondent, referring to its predecessor, Waste Transport
Company, stated in part:
[Waste Transport] failed and is out of business because
it did not maintain efficient schedules and utilize its
equipment efficiently. The drivers who left our em-
ployment are the ones who refused to cooperate in
making this an efficient operation. We believe that
those drivers who remain, our current Class A drivers,
understand the reasonable business needs for schedules
and efficiency in utilization of equipment. We are sure
that no one wants [Respondent] to fail and have to lay
off employees as did [Waste Transport]. All [Waste
Transport] drivers that completed our orientation and
pre-hire process were offered driving positions with
Sacramento Recycling.
The General Counsel, placing particular emphasis on
the reference to drivers who “refused to cooperate,” ar-
gues that the letter contained an unlawful implied threat
of discharge. We do not agree. As noted above, we have
affirmed the judge’s finding that the November 7 dis-
charges were lawful. Thus, we decline to interpret the
references to drivers who “refused to cooperate” as code
for prounion drivers. We also note the judge’s finding
that, unrelated to any union considerations, the Respon-
dent was attempting to improve on the inefficient opera-
tions of Waste Transport. We therefore conclude that the
letter did not contain an unlawful implied threat of dis-
charge, and we dismiss this allegation.
We affirm the judge’s conclusion that the General
Counsel did not establish 8(a)(3) violations with respect
to the five employees discharged on November 7. In this
regard, the judge found, and we agree, that the General
Counsel failed to establish the requisite knowledge on
the Respondent’s part. Accordingly, the judge dismissed
the allegation that the Respondent unlawfully discharged
five truckdrivers. We agree with the judge. We disagree
with our colleague.

7 Similarly, we dismiss the allegation that dispatcher Walt
Chenoweth unlawfully told employee James Gowan that he knew Go-
wan had been one of the employees who started the organizing effort,
as well as the allegation that Chenoweth unlawfully told employee
Wickey that management believed Wickey and Gowan had started the
Union. In all of these instances, by the time the allegedly unlawful
statements were made, knowledge of union activity was common and
pervasive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
The Respondent took over the operation from the
predecessor on September 24. We assume arguendo that
the Respondent knew of efforts to unionize the predeces-
sor employer. However, the only employees as to whom
there was specific knowledge were employees Doremus
and Edwards.
Respondent was not aware that unionization efforts
continued after the takeover from the predecessor. Nor is
there a showing that the Respondent was aware of em-
ployee discussions, after the takeover, about working
conditions. And, even if the Respondent was so aware,
such discussions are not the same thing as efforts to un-
ionize. Indeed, employees did not meet with the Union
until November 4, and did not sign cards until November
5 and 6. There is a lack of any direct evidence that the
Respondent knew that the employees met with the Union
on November 4, that authorization cards were distributed
on November 5 and 6 by several drivers (none of whom
was discharged), that one of those drivers spoke to six
other employees about the Union on November 6, or that
at least six or seven employees (only one of whom was
discharged) signed cards.
It was the General Counsel’s burden to establish the
requisite knowledge on the Respondent’s part, not the
Respondent’s burden to establish lack of knowledge.
The judge evaluated the surrounding circumstances and
concluded that, on the record before him, the General
Counsel had not met the burden. This conclusion was
correct, and we affirm it.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, BLT
Enterprises of Sacramento, Inc., d/b/a Sacramento Recy-
cling and Transfer Station, Sacramento, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(e) and
reletter the subsequent paragraph as paragraph 1(g).
“(e) Soliciting grievances, or promising to remedy
them, in order to discourage union membership or sup-
port.”
2. Insert the following as paragraph 1(f).
“(f) Telling employees that it cannot increase wages or
other benefits, because of union activity, in order to dis-
courage union membership or support.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER LIEBMAN, dissenting in part.
The record here easily supports the inference that the
Respondent knew about the union activities of the five
employees it discharged—promptly after employees dis-
tributed and signed union authorization cards at work.
Contrary to the judge and the majority, I would find that
the General Counsel established the Respondent’s
knowledge, as well as the other elements of his initial
burden of proof under Wright Line.1 But because the
judge failed to make findings with respect to the Re-
spondent’s assertedly lawful reasons for the discharges,
its Wright Line defense, I would remand the case.
I.
On September 24, 2001, the Respondent took over op-
eration of the trash hauling component of its trash recy-
cling business, replacing a subcontractor at the jobsite.
When it did so, the Respondent was well aware that the
trash hauling employees recently had discussed unioniza-
tion while employed by the subcontractor. Thus, as early
as July 2001, employee Tammie Edwards told the Re-
spondent’s general manager, Jeff Donlevy, that employ-
ees were talking with a union representative. Addition-
ally, employee Ted Doremus told Donlevy that employ-
ees needed a union. In mid-September, Edwards told
Transportation Manager Steve Albin that employees had
been talking to a union. After the Respondent took over
the trash hauling operation, employees continued to dis-
cuss, among themselves, working conditions at the facil-
ity. They did so in the truck yard, at the landfills, at a
staging area, on CB radios, and in the drivers’ room ad-
jacent to the dispatch office used by supervisors. All of
this discussion—between employees and the Respon-
dent’s managers and among employees with one another
at the jobsite—culminated on November 5 and 6 when
employees distributed and signed union authorization
cards at the jobsite.
The next day, November 7, the Respondent discharged
five employees, including Doremus. The discharged
employees were not given specific reasons for the disci-
pline, other than that they “didn’t fit in.” On November
8, Transportation Manager Albin told assembled em-
ployees that there would be no more discharges—that is,
unless somebody “pissed him off.” Thereafter, the Re-
spondent, among other things, unlawfully threatened
employees with loss of work assignments and employ-
ment because of their union activities, imposed restric-
tions on their right to discuss unionization, granted wage
increases and a bonus program, interrogated employees
about their union activities, and solicited grievances and
promised to remedy them to discourage unionization.

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in Transportation
Management Corp. v. NLRB, 462 U.S. 393 (1983).
SACRAMENTO RECYCLING & TRANSFER STATION 567
II.
The judge found that when employees told high-level
management officials that they had been talking to a un-
ion and needed a union, this was nothing more than
“vague talk.” The majority affirms that finding and
adopts the judge’s conclusion that the Respondent lacked
knowledge of employees’ union activities and senti-
ments. I disagree. When employees tell their general
manager that employees are talking with a union repre-
sentative, this is likely to be perceived by management as
an indication that employees are, indeed, talking with a
union representative. This perception is likely to be bol-
stered when, some time later, the transportation manager
is told the same thing. There is nothing “vague” about
this. It is quite specific and direct.
True, these comments to the Respondent’s high man-
agement officials were made before it took over the trash
hauling operation. But, as the judge found, employees
continued to complain openly to each other about work-
ing conditions after the takeover. More important, the
Respondent had no reason to believe that anything of
consequence had changed or that its employees were
suddenly content. Thus, what the Respondent was told
from July to September about unionization presumably
still was true in November: that employees felt they
needed a union and were talking with union representa-
tives.
To find an absence of knowledge, the majority must
infer: (1) that management officials ignored what they
were told about unionization; (2) that management pre-
sumed that things had changed when it took over the
trash hauling operation, even though employees were
talking and complaining about working conditions all
over the jobsite, including in the drivers’ room located
adjacent to a supervisory office, and (3) that—
notwithstanding the commission of numerous unfair la-
bor practices designed to thwart unionization—the tim-
ing of the discharges 1 day after the on-site distribution
of union authorization cards tells us nothing about the
Respondent’s knowledge of unionization efforts among
employees.
Contrary to the majority, I would find in these circum-
stances that the Respondent had knowledge of employ-
ees’ union activities and sentiments. See generally D &
F Industries, 339 NLRB 618, 622 (2003) (describing
circumstances in which Board infers knowledge of em-
ployee’s union activities). I would also find that there
were actual union activities, animus against employees’
union sentiments and activities, and contemporaneous
timing between these activities and the alleged unlawful
discharges.
Unfortunately, however, the judge gave short shrift to
the Respondent’s defenses pertaining to the specific rea-
sons for each of the five discharges alleged to be unlaw-
ful, in light of his incorrect finding that the Respondent
did not have knowledge of union activities. Accordingly,
I would remand this proceeding to the judge for consid-
eration of the Respondent’s defenses.2
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees about their union
activities or the union activities of other employees.
WE WILL NOT threaten subcontracting of our trash
hauling operation, loss of work assignments, or loss of
employment in order to discourage union membership or
activities.
WE WILL NOT announce or grant wage increases or a
bonus program, in order to discourage union member-
ship.
WE WILL NOT impose unlawful restrictions on the
rights of employees to discuss unions or other protected
concerted activities.
WE WILL NOT solicit grievances, or promise to remedy
them, in order to discourage union membership or sup-
port.
WE WILL NOT tell employees that we cannot increase
wages or benefits because of union activity, in order to
discourage union membership or support.

2 Contrary to the majority, I would not presently consider, in the ab-
sence of a remand, those 8(a)(1) allegations dismissed by my col-
leagues that are factually related to the 8(a)(3) discharge allegations. I
would find, however, that the Respondent violated Sec. 8(a)(1) by
unlawfully soliciting grievances and promising to remedy them, by
telling employees that it cannot increase wages and other benefits be-
cause of the Union, and I would find cumulative those allegations that
are similar to other violations, as specified in the majority decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
BLT ENTERPRISES OF SACRAMENTO, INC., D/B/A
SACRAMENTO RECYCLING AND TRANSFER
STATION
Marilyn O’Rourke and Michael Smith, Esqs., for the General
Counsel.
Dennis R. Murphy (Murphy, Austin, Adams & Schoenfeld), of
Sacramento, California, for the Respondent.
Matthew J. Gauger (Van Bourg, Weinburg, Roger &
Rosenfeld), of Sacramento, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Sacramento, California, on September 16–20 and
23–25, 2002. On November 27, 2001, Chauffeurs, Teamsters
and Helpers, Local No. 150, International, Brotherhood of
Teamsters, AFL–CIO (the Union) filed the charge in Case 20–
CA–30455–1 alleging that BLT Enterprises of Sacramento,
Inc., d/b/a Sacramento Recycling and Transfer Station (Re-
spondent) committed certain violations of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). The Union
filed the charge in Case 20–CA–30455–4 on December 20,
2001. That charge was amended on April 30, 2002. On Janu-
ary 3, 2002, the Union filed the charge in Case 20–CA–30455–
5. That charge was amended on April 30, 2002. The Union
filed the charge in Case 20–CA–30455–6 on February 4, 2002.
On May 16, 2002, the Regional Director for Region 20 of the
National Labor Relations Board (the Board) issued a complaint
and notice of hearing against Respondent in all four cases alleg-
ing that Respondent violated Section 8(a)(1) and (3) of the Act.
Respondent filed a timely answer to the complaint denying all
wrongdoing. The Regional Director amended the consolidated
complaint at the hearing.
The Union filed a representation petition, on November 14,
2001, in Case 20–RC–17713 seeking to represent Respondent’s
truckdriving employees. An election was held on December
21, 2001.1 The tally of ballots shows 19 for and 13 against the
Union, with 4 challenged ballots, an insufficient number to
affect the results. The Union and Respondent each filed timely
objections to the conduct of the election. A hearing on the
Respondent’s objections was held on March 14, 2002. On
April 30, 2002, a hearing officer’s report and recommendations
on objections issued. In her report, the hearing officer recom-
mended that the Respondent’s objections be overruled. The

1 The election was held in the following appropriate collective-
bargaining unit:
All full-time and regular part-time truck drivers employed by Respon-
dent at its 849 Fruitridge Road, Sacramento, California facility; ex-
cluding foremen, office clerical employees, Class B yard driver, sort-
ers, janitors, machine operators, weight masters, rakers, traffic control-
lers, laborers, maintenance employees, guards, and supervisors as de-
fined in the Act.
Employer filed timely exceptions to the hearing officer’s report.
On July 25, 2002, the Board remanded the representation case
to the hearing officer for further consideration. On August 2,
2002, the Board rescinded the remand order of July 25,
adopted the hearing officer’s findings and recommendations
and issued a Decision, Order, and Certification of Representa-
tive. The Board certified the Union as the exclusive collective-
bargaining agent of Respondent’s truckdrivers at its Sacra-
mento, California facility.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record,2 from my
observation of the demeanor of the witnesses3 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with an office and
place of business in Sacramento, California, where it is engaged
in the business of processing recyclable materials. During the
12 months prior to issuance of the complaint, Respondent pro-
vided services valued in excess of $50,000 to the city of Sac-
ramento, an entity that meets one of the Board’s standards for
the assertion of jurisdiction on a direct basis. Respondent ad-
mits and I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The complaint alleges that dispatcher Walter Chenoweth
unlawfully threatened employees that Respondent would sub-
contract bargaining unit work if the employees selected union
representation, created the impression that Respondent kept the
union activities of employees under surveillance, interrogated
employees about their union activities, and threatened employ-
ees that they would not receive work assignments because of
their union activities. The complaint alleges and the answer
denies that Chenoweth is an agent of Respondent within the
meaning of the Act.
The complaint alleges that Supervisor Steve Albin, threat-
ened to discharge employees because of their union activities,
and promised wage increases in order to discourage union ac-
tivities. The complaint alleges that Shawn Gutterson, vice

2 General Counsel filed a motion to correct the transcript on Novem-
ber 23, 2002. As the motion was unopposed, the motion is granted and
the corrections therein are received in evidence as ALJ Exh. 1.
3 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
SACRAMENTO RECYCLING & TRANSFER STATION 569
president, promised wage increases, interrogated employees,
created the impression of surveillance, threatened to subcon-
tract work, solicited employee grievances and impliedly prom-
ised to remedy said grievances, threatened to freeze employee
wages, and granted a wage increase, in order to discourage
union activities.
The complaint also alleges that Gilbert Pineda, transportation
manager, threatened to withhold holiday pay, promised in-
creased wages, promulgated a rule against remaining on Re-
spondent’s premises, and promulgated an English-speaking
only rule. The complaint further alleges that Jeff Donlevy,
general manager, promulgated a rule against remaining on Re-
spondent’s premises and a rule against employee conversations.
The complaint also alleges that President Bernie Hubberman,
interrogated employees and solicited employee grievances and
impliedly promised to remedy the grievances. The complaint
alleges that Mary Lou Nuno, human resources supervisor, inter-
rogated employees about their union activities.
Further, the complaint alleges that Respondent refused the
request of employee Gary Wickey to be represented by a co-
worker during an interview at which Wickey reasonably be-
lieved would result in disciplinary action. The complaint al-
leges that Respondent unlawfully withheld holiday pay for
Thanksgiving in 2001. The complaint alleges that Respondent
unlawfully granted a wage increase on December 18, 2001, and
unlawfully granted a bonus on December 20, 2001.
Further the complaint alleges that Respondent discriminato-
rily discharged truckdrivers Ralph Adams, Theodore Doremus,
Arthur McClure, John Murphy, and William Vasconsellas for
union activities on November 7, 2001.
B. The Unfair Labor Practices
1. Background
Respondent is engaged in the business of processing recy-
clable materials and hauling trash for the city of Sacramento to
landfills in Lockwood, Nevada, and Anderson and Stockton,
California. From April 1999, until September 23, 2001, Re-
spondent subcontracted the trash hauling (trucking) operation to
a company named Waste Transport. Respondent owned and
maintained the trucks and trailers. Waste Transport employed
approximately 40 employees who drove trash from Respon-
dent’s facility or yard to the landfills.
By the summer of 2001, Respondent was experiencing prob-
lems with the manner in which Waste Transport was managing
the driving operations. Waste Transport was not moving the
trash out in a timely manner, not using the equipment effi-
ciently, and was having financial problems. Waste Transport
was at times failing to pay its employees and vendors. The
truckdrivers were also experiencing problems with Waste
Transport regarding wages, benefits, and hours of employment.
During the summer of 2001, the drivers employed by Waste
Transport discussed the possibility of union representation.
These discussions took place in the truckyard at Respondent’s
facility, on CB radios while the drivers were driving their
routes and at restaurants. In an attempt to show knowledge of
these conversations by Respondent, the General Counsel of-
fered the testimony of former driver Tammie Edwards. Ed-
wards testified that in July 2001, prior to the takeover of the
hauling operations by Respondent, she told Jeff Donlevy, Re-
spondent’s general manager, that the drivers were unhappy with
Waste Transport and were talking with a union representative.
According to Edwards about a month later, Donlevy asked
whether things were getting any better. Edwards told Donlevy
that it was not getting better and that she might take a union job
elsewhere. Donlevy told Edwards that Respondent was “look-
ing at taking over” the trucking operation from Waste Transport
and asked Edwards to stay.
The General Counsel also presented the testimony of former
driver Ted Doremus. According to Doremus, Donlevy told him
that things would get better once Respondent took over the
trucking operations from Waste Transport. Doremus answered
that he hoped Respondent was “not just blowing smoke up our
asses again.” According to Doremus, he told Donlevy that the
employees needed a union because Waste Transport was re-
quiring drivers to drive too many hours and too fast.
In mid-September, Steve Albin, transportation manager,
asked employees about their problems with Waste Transport.
Albin had been assigned to help the Sacramento facility with
the transition of the driving operations from Waste Transport to
Respondent. Albin asked the employees for suggestions re-
garding improving the truckdriving operation. Edwards told
Albin that she hoped the operation would improve when Re-
spondent took over. Edwards also told Albin that the employ-
ees had been talking to a union, but that she would rather see
the operation be nonunion, if the employees received compara-
ble benefits.
On September 14 and 22, Respondent held orientation meet-
ings with the truckdrivers whom it intended to employ. Re-
spondent advised the drivers that it intended to operate with one
and one-half runs to the Lockwood, Nevada landfill each day.4
Waste Transport had been requiring, or at least permitting two
round trips a day. Two round trips a day would by necessity
require a driver to exceed the legal number of hours permitted
by the Department of Transportation. Respondent notified the
drivers that it would require drivers to drive one and one-half
loads a day and do so on strict schedules. The drivers were
paid by load and not by the hour. Respondent announced a pay
schedule, which paid a premium to drivers who drove one and
one-half loads as opposed to a single load. Respondent rented a
parking lot at Dutch Flat, California, approximately half way
between its Sacramento yard and the Lockwood landfill.
At the orientation meetings, Respondent distributed its em-
ployment policies, safety program, and sexual harassment pro-
gram. At this meeting the initial pay rates were handed out and
Respondent advised the employees that it would be reviewing
the rates during the transition period. Employees were required
to fill out job applications with Respondent as well as other
employment forms.
On September 24, Respondent took over the driving opera-
tions that it had previously subcontracted to Waste Transport.

4 A “run” is a round trip from Respondent’s facility to a landfill with
a return. “One and one-half runs” is a trip to Lockwood, a return to
Dutch Flat, a trip to Lockwood, and a return to Sacramento, or a trip to
Dutch Flat (a staging area), a return to Sacramento, followed by a re-
turn trip to Lockwood.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
Respondent brought in Albin and Tom Hamilton, transportation
supervisor, from its Southern California facilities to supervise
the transition. The employees of Waste Transport were hired
by Respondent and continued to perform the same work at the
same facility, using the same equipment as they had when em-
ployed by Waste Transport.
Shortly after the takeover by Respondent, Respondent’s
truckdrivers began complaining to each other about working
conditions. Discussions occurred in the truckyard, at the land-
fills, Dutch Flat, and in the drivers’ room. The drivers’ room is
near the dispatch office used by Chenoweth and Supervisor
Gilbert Pineda. There is insufficient evidence that Respondent
overheard any of these conversations.
The General Counsel contends that in October, drivers Jim
Gowan and Gary Wickey talked to driver Fred Sarey about
obtaining union representation. Sarey told Pineda about the
conversation and that he did not want a union. I find that these
events occurred in November, after the employees were dis-
charged.
The drivers spoke about the Union on their CB radios. The
General Counsel argues that the conversations about the Union
took place on public airwaves and that anyone with a CB radio
could have overheard the conversations. However, these CB
radios only have a range of 1 to 2 miles. There is no evidence
that Respondent’s supervisors or managers were in a position to
overhear any of these conversations.
On the evening of Sunday, November 4, 2001, drivers James
Gowan, Allan Howton, Terry Kent, and Rick Simpson attended
a meeting with Union Representative Chris Folkman. The next
day, Simpson went to the Union’s offices and obtained union
authorization cards. Simpson brought the union cards to work
and left cards in the cars of Gowan, Kent, and Howton, so that
they could obtain signatures from other drivers. Simpson
handed out cards to three other employees on November 5, and
received one signed card back that day. Gowan also handed
out union authorization cards that day and observed five or six
employees sign cards for the Union. On November 6, Gowan
spoke to another six employees about the Union. Howton also
distributed cards on November 5 and 6.
On November 7, 2001, Respondent discharged five truck-
drivers. When Adams arrived at work that morning, he was
told by Pineda that Albin and Donlevy wanted to see him in the
office. Adams went to the office and met with Albin, Donlevy,
and Mary Lou Nuno, human resources and safety manager.
Albin told Adams that his services were no longer required.
When Adams asked what Albin meant, Albin answered that
Adams did not “fit into the scheme of things.” Adams said he
had to know the real reason. Albin repeated that Adams did not
fit into the scheme of things and told Adams that Respondent
was an “at will company” and could do what it wanted. Albin
asked Adams to sign a termination notice and Adams signed.
The termination notice gives no reason for the discharge. Ad-
ams asked Donlevy what was happening and Donlevy told
Adams that the employee just did not fit into the scheme of
things. Adams signed a card for the Union on November 6.
Adams had no previous disciplinary history.
William Vasconsellas was also discharged on the morning of
November 7. Vasconsellas met with Albin, Donlevy, and
Nuno. Vasconsellas was told that his services were no longer
required and that he did not “fit in.” Vasconsellas replied that
he was being given an excuse and not a reason. Vasconsellas
signed the termination notice that he was given. The termina-
tion notice gave no reason for the discharge. Similar to Adams,
Vasconsellas had no prior disciplinary history.
Ted Doremus arrived for work after noon on November 7.
Doremus also met with Albin, Donlevy, and Nuno. Albin told
Doremus that his services were no longer required. Doremus
asked why and Albin answered that Doremus did not “fit in” to
the organization. Albin told Doremus that Respondent did not
need a reason because Doremus had not yet completed his pro-
bationary period. The termination letter gave no reason for the
discharge. Doremus had no discipline in his personnel file but,
as will be seen below, had previously been warned that he was
not to take his dog with him while driving for Respondent.
Notwithstanding these warnings, Doremus continued to take his
dog on his driving runs.
John Murphy began work at midnight, drove a load to Dutch
Flat and returned for another load for Lockwood. After com-
pleting a round trip to Lockwood, Murphy was called into the
office. Albin told Murphy that his services were no longer
needed. Murphy asked why and Donlevy answered that Mur-
phy did not “fit in.” Murphy asked why he did not fit in and
was told that Respondent “ did not want to get into it.” Murphy
refused to sign his termination notice. The termination letter
gives no reason for the discharge. Unlike the other employees,
Murphy had received a written warning. On October 26, 2001,
Murphy along with three other employees, had received a
warning from Albin for driving too closely with the other driv-
ers. At the time that Pineda handed Murphy the written warn-
ing, he told Murphy that the warning did not mean a lot.
Pineda said that Albin did not want the trucks to look like a
caravan.
Arthur McClure arrived at work at about 11:30 p.m.
McClure met with Albin and Tom Hamilton. Albin told
McClure that Respondent was an at will company and had de-
cided to discharge McClure. McClure signed the termination
notice. McClure said that he would be willing to work as a
relief driver if Respondent needed him. McClure had no prior
disciplinary history. He testified that in mid-October, Albin
had told him that he was doing a great job.
On November 8, Respondent held drivers’ meetings. At one
of the sessions, a driver asked whether there would be any more
discharges. Albin referred to the day of the discharges as
“black Wednesday” and said there would be not be another
“black Wednesday” or any further discharges unless somebody
“pissed him off.” Albin discussed a possible raise and also
discussed a contemplated tire, chain, and fuel bonus program.
At these meetings, Gutterson stated that Respondent was aware
that the employees were not happy with the rate of pay, and
Respondent had time to observe its operations, and that Re-
spondent might be able to raise the pay.
After the discharges, the union organizing activities in-
creased. On November 14, the Union filed its representation
petition with the Board. A copy of the petition was mailed and
faxed to Respondent on November 16.
SACRAMENTO RECYCLING & TRANSFER STATION 571
In mid-November, Chenoweth approached drivers Daniel
Mariea and Marin Mariea and asked whether they were for the
company or for the Union. Daniel Mariea did not give a
straight answer. In early December, Chenoweth asked Daniel
Mariea whether he was for the Union. Marin Mariea and
Pineda were also present. Chenoweth said, “I want a straight
answer. Are you for the Union or against the Union?” Mariea
joked that he did not want to be part of the Mafia and Pineda
and Chenoweth laughed. Chenoweth patted Daniel on the back
and said, “That’s our guy right here.”
Gowen testified that after the petition was filed Pineda ap-
proached him in the parking lot and told him, “I know what’s
going on around here, and if you want to have these discussions
regarding union propaganda, you need to do it away from the
facility and on your own time, and you have 15 minutes from
the time you log off duty and turn your paperwork in to leave
the facility.” Drivers were never told or warned about any such
rule before the union petition was filed.
Employee Gary Wickey testified that during the third week
of November, Chenoweth told him that Shawn Gutterson, Re-
spondent’s vice president, had told Chenoweth to inform the
drivers that Respondent would subcontract the driving work to
two other companies, before he would let a union come in.
Fifteen minutes later, Wickey approached Chenoweth and
asked whether Chenoweth had been joking. Chenoweth re-
sponded that he had told Wickey exactly what Gutterson had
directed him to say. Fred Sarey also testified that Gutterson
told him that if things did not work out, Respondent would sell
the trucks and subcontract the work.
Howton testified that on or about November 20, Chenoweth
told him that the subcontractor who hauled recycling for Re-
spondent was interested in subcontracting the hauling done by
the bargaining unit employees. Chenoweth said that Respon-
dent would never let the Union into the Company. According
to Howton, Chenoweth stated that the drivers made good
money and they would be sorry if the Union got in. Chenoweth
stated Respondent would probably subcontract out the trash
hauling and could sell the trucks to the subcontractor.
The truckdriver employees had been told in the orientation
meetings in September that as new employees they would not
be eligible for holiday pay at Thanksgiving. On November 21,
Chenoweth told Howton that Gutterson was working to get the
employees holiday pay for Thanksgiving. Howton, in the pres-
ence of driver Chuck Watts, asked Pineda about the holiday
pay. Pineda told the drivers that because the Union had filed
the petition, Respondent could not give the holiday pay. Pineda
explained that the drivers’ 90-day probationary period was not
yet over. Respondent had told the employees at the orientation
meetings that, as probationary employees, they would not be
eligible for holiday pay for Thanksgiving.
Gowen testified that after the petition was filed, Chenoweth
approached him at work and stated that he knew that Gowen
had been one of the employees who started the union organiz-
ing effort. Chenoweth stated that he thought the drivers did not
need a union. Chenoweth said that before the Union came in,
the drivers “would all be working elsewhere, that another com-
pany would be hauling the trash.” Similarly, Wickey testified
that Chenoweth told him in late November “management be-
lieves that you and Jim Gowen are the ones that started the
Union.” In a later conversation, Chenoweth said to Wickey,
“Hey, here comes the Union guy.” Wickey objected and
Chenoweth apologized.
Driver Ruben Martinez testified that at a meeting with Jeff
Donlevy, general manager, Pineda, and Marylou Nuno,
Donlevy told Martinez he could only be on the premises for 15
minutes before the start time, and only 10 minutes after he fin-
ished his paperwork. Martinez and employee Jesse Peavyhouse
both testified that there had been no such rule prior to the filing
of the petition.
In late November, and on several occasions until January
2002, Respondent began to prohibit its Romanian-speaking
drivers from speaking Romanian at work. At that time, Re-
spondent employed four Romanian-speaking drivers. Marin
Mariea and his son Daniel Mariea often acted as interpreters for
the other Romanian drivers. On several occasions between
November and January, Pineda told the Romanian drivers to
speak English and not Romanian. After the election, Pineda
again permitted the Romanian drivers to speak Romanian and
permitted the Marieas to translate for the other Romanian driv-
ers. In contrast, Respondent permitted its Spanish-speaking
employees to speak Spanish. Pineda and Nuno speak Spanish.
Pineda denied instructing any employee to stop speaking Ro-
manian. The testimony of Daniel Mariea and Marin Mariea is
credited over Pineda’s denials.
Wickey testified that in early December he approached Gut-
terson about wages owed to him by Waste Transport. Gutter-
son had earlier stated that Respondent would make the drivers
whole for wages not paid by Waste Transport. Gutterson said,
“I understand you are one of the guys that was involved in
starting the Union.” Wickey attempted to discuss his wage
problem. However, Gutterson asked how “the guys felt about
the Union.” Wickey responded that he could not speak for
anyone else. The conversation then returned to the pay ques-
tion. During this conversation, Gutterson stated that the sub-
contractor that hauled recycling for Respondent was interested
in obtaining the work done by the bargaining unit employees.
Wickey testified that in early December, after he spoke with
Gutterson in an attempt to recover monies owed to him by
Waste Transport, Pineda delivered a check to him. According
to Wickey, Pineda declared that if Wickey voted against the
Union, there would “probably” be more checks for Wickey.
Pineda denied making this statement.
Also in early December, Pineda told Wickey, “After you get
your truck loaded and parked, you have ten minutes to do your
paperwork and you’ve got to be off the property.” Pineda also
stated that he would notify Gowen and Howton about this rule.
Shortly thereafter, Donlevy approached Peavyhouse and told
Peavyhouse that the driver was finished with his shift and had
to leave. Donlevy said, “What’s been going on can’t go on
anymore.” Respondent admitted at trial that it communicated
to the drivers the policy prohibiting them from arriving early or
remaining more than 15 minutes after finishing their paper-
work. Respondent claimed that this was the continuation of a
previously existing policy. I find that the evidence does not
support Respondent’s claim.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
On or about December 3, Chenoweth approached Wickey
and told him, “I want to tell you I feel real bad the way man-
agement is treating you.” Wickey said that he felt that he was
being singled out. Chenoweth said, “I almost quit my job over
you.” Chenoweth then stated that Respondent’s management
had gone through Wickey’s driving logs in an attempt to find a
reason to fire him.
On December 3, Chenoweth told Wickey that driver Fred
Sarey had complained that Wickey had harassed Sarey at the
landfill in Anderson, California. Wickey denied that he had
harassed anyone. Two or 3 days later, Wickey was called to a
meeting with Donlevy, Gutterson, and Bernie Hubberman,
president of Respondent. Wickey asked if he could have a
witness other than someone from management. Donlevy de-
nied the request. According to Wickey, Hubberman asked why
the drivers were unhappy. Wickey asked Hubberman some
personal questions. Gutterson asked why the drivers wanted a
union and what it would take to make the drivers happy.
Donlevy asked what had happened between Wickey and Sarey
at the Anderson landfill. Donlevy said that Wickey was ac-
cused of threatening Sarey. Wickey admitted having a conver-
sation with Sarey but denied harassing or threatening Sarey.
Donlevy said he would have to confirm Wickey’s story. Both
Donlevy and Hubberman deny that Wickey requested a wit-
ness.
The next day, Pineda invited Wickey back into Donlevy’s
office. Wickey again requested a witness. Donlevy denied the
request. Wickey said that he and Sarey had discussed the mat-
ter and agreed that there was no problem. Donlevy responded,
“I’m going to make it very clear to you Gary, If there’s any
physical or verbal problems with Fred, we’re going to hold you
personally responsible no matter if it happens on or off the
property.” Respondent concedes that Wickey requested a wit-
ness at this meeting.
Three days later, Wickey was called into a third meeting
with Donlevy, Pineda, and Nuno. Wickey again requested a
nonmanagement witness. Again, Donlevy denied the request.
Donlevy said that Respondent wanted to resolve the situation.
Wickey answered that he already had two meetings and he felt
threatened. Nuno then ended the meeting. The harassment
allegations were finally cleared a few days later at a meeting,
which included Sarey. Sarey testified he told Nuno and
Donlevy that Wickey had not threatened him. Respondent
contends that the meetings of December 7 and 8 were held in
response to a complaint made by Wickey against Sarey.
In mid-December Chenoweth questioned Sarey about the
Union. He gave Sarey five names and asked whether those
employees supported the Union. Chenoweth mentioned
Wickey, Gowen, Marin Mariea, Daniel Mariea, and Allan
Howton.
On December 4, Respondent held meetings with its drivers
to discuss the upcoming election. Gutterson told employees
that Respondent wanted to give the drivers a raise but could not
do so because the Union had filed a petition. Gutterson also
said Respondent could not make changes in benefits. Gutterson
told the employees that he had an open door policy and that any
of the drivers could come to him at any time. The General
Counsel contends that there was no prior open-door policy.
Gutterson apologized for the rumors about subcontracting of
the trash hauling but stated that subcontracting was not new and
had always been an option.
In the December 10 meeting to discuss the Union, Gutterson
again announced that Respondent could not grant a raise be-
cause of the union petition. Gutterson said that Respondent had
considered granting a raise but could not because that would be
considered a bribe to defeat the Union.
At the December 18 meeting, Gutterson announced that after
meeting with Respondent’s lawyer, Respondent had decided to
give the truckdrivers the raise it had previously stated that it
could not give. The raise was retroactive to December 10. The
rate for a single run from Sacramento to Lockwood was raised
from $114 to $120. The rate for a run and one half run was
raised from $178 to $190. In addition, Donlevy announced the
specifics of a new tire, chain, and fleet fuel bonus program.
Although the program was placed in effect, no bonuses have
been earned under this new program.
The General Counsel contends that Respondent violated the
Act by publishing a letter on December 17 and 18, which stated
inter alia,
[Waste Transport] failed and is out of business because it did
not maintain efficient schedules and utilize its equipment effi-
ciently. The drivers who left our employment are the ones
who refused to cooperate in making this an efficient opera-
tion. We believe that those drivers who remain, our current
Class A drivers, understand the reasonable business needs for
schedules and efficiency in utilization of equipment. We are
sure that no one wants [Respondent] to fail and have to lay off
employees as did [Waste Transport]. All [Waste Transport]
drivers that completed our orientation and pre-hire process
were offered driving positions with Sacramento Recycling.
On December 20 and 21, Respondent granted Christmas bo-
nuses to the truckdrivers. The drivers were given $50 Christ-
mas bonuses. Employee Rick Simpson testified that when
Donlevy gave him his bonus check, Donlevy asked whether
Simpson was voting in the election. Simpson answered that he
was going to vote and Donlevy replied, “Just remember, we
don’t want the Union being voted in here.” In the past, Re-
spondent had given Christmas bonuses to its production and
maintenance employees at its Sacramento facility. The drivers,
however, had still not passed their 90-day probationary period.
Wickey testified that on the afternoon of the December 21
election, he told Gutterson that he was an observer. Gutterson
asked for whom Wickey was observing and Wickey answered
that he was there for the Union. After Wickey asked how Gut-
terson was doing, Gutterson replied, “I don’t appreciate you
putting me through this and I will remember this.” Gutterson
denied this testimony.
In January 2002, Donlevy observed Ruben Martinez talking
to another driver. Donlevy later approached Martinez and said
that Martinez did not need to be talking to other drivers in the
yard.
In early January, Marin Mariea approached Chenoweth and
asked why he was not getting Saturday loads to drive, while
new employees appeared to be getting Saturday loads,
Chenoweth responded, “You guys who f— around with the
SACRAMENTO RECYCLING & TRANSFER STATION 573
Union. I’ll let you know Union. You guys are on the Sunday
list.”
In January 2002, Nuno called Wickey into her office and
asked whether Wickey had harassed driver Steve Crothers.
Nuno asked if there had been a conversation between Crothers
and Wickey. Wickey answered that there had been. According
to Wickey, Nuno asked whether there had been a conversation
about Crothers voting against the Union. Wickey denied that
accusation. Nuno then asked whether Wickey had harassed
Crothers about missing a union meeting. Wickey denied doing
so. Wickey told Nuno that he had a conversation with Crothers
in which Crothers apologized for missing a union meeting.
On February 18, 2002, Martinez complained to Gutterson
about Pineda and Donlevy. Gutterson replied, “Ruben, what’s
wrong with you?” Gutterson stated that Martinez could not get
along with Albin, Donlevy, or Pineda. He said that Martinez
was not happy working for Respondent and that Martinez
should quit. He asked why Martinez did not quit and get an-
other job. Gutterson complained that Martinez had cost the
company $20,000 a month for the last 2 months.5 Martinez
answered that he was just trying to do his job. Gutterson only
admitted telling Martinez, “the grass is greener on the other
side.” Gutterson denied accusing Martinez of costing the com-
pany money. Martinez’ version of these events is credited.
Gowen testified that on March 28, 2002, he was looking at a
copy of a newspaper article left in the dispatch office. The
article concerned the union organizing drive and contained
pictures of current employees and union officials. Gowen told
Chenoweth that he would not want his name connected with the
article, that it might cause problems. Chenoweth answered that
was the smartest comment he had heard about the article.
Chenoweth then declared that the people in the article and the
union activity “would be haunted the rest of their short exis-
tence at Sacramento Recycling, and wherever else they’d go,
wherever they may be.”
2. Respondent’s defense
Respondent contends that it was unaware of any union activ-
ity until it received a facsimile copy of the petition on the after-
noon of Friday, November 16, 2001. Thus, Respondent argues
that the five discharges at issue herein could not have been
motivated by the employees’ union activities.
Respondent contends that it discharged the five employees
for legitimate business reasons. Respondent’s evidence indi-
cates that the decision to discharge the employees was made on
November 1 or 2. Replacement drivers were hired to begin
work on November 5, 2001. Respondent was attempting to
convert the sloppy operation run by Waste Transport into a
more efficient operation. According to Albin and Donlevy,
Respondent decided to conduct a 30-day review of the driving
operation. In early November, Albin discussed the drivers with
Hamilton, Pineda, Donlevy, Nuno, and Mario Quezada, corpo-
rate human resources director.
According to Respondent, the employees selected for termi-
nation were objecting to and not cooperating in Respondent’s
schedule changes. Hamilton testified that Adams refused to

5 Martinez had become a union steward.
drive a load and a one-half. According to Donlevy, on 12 occa-
sions Adams was scheduled to drive a load and one-half but
only drove a single load. On November 2, the day the termina-
tion decision was made, Adams was scheduled to drive a load
and one-half but only drove a single load. In addition to dictat-
ing the amount of hours that he would drive, Adams also in-
sisted on a particular start time. While Adams could have cho-
sen a start time that coincided with a single load, he chose a
start time that Respondent had scheduled for a load and a half.
Finally, Adams had stated on numerous occasions that he
would not drive with snow chains. Adams was discharged
prior to the time that snow conditions became an issue.
Doremus was warned on several occasions not to drive with
his dog in his truck. Gutterson, Hamilton, Donlevy, and Albin
all instructed Doremus that he could not bring his dog with him
on his trips. Notwithstanding these warnings, Doremus contin-
ued to bring his dog on his driving trips. On November 2,
when Respondent was conducting its review of the drivers,
Albin found Doremus at the Dutch Flat parking lot with his
dog. Doremus compounded this infraction by telling Albin to
“go f— yourself.”
Pineda testified that McClure originally was willing to drive
a load and one-half load. However, after a period of time
McClure began to miss work without calling in. On one occa-
sion, McClure missed his midnight shift, but showed up later to
collect his paycheck. On other occasions, McClure drove only
a single load even though he had been scheduled to run a load
and a half. On November 1 and 2, when Respondent was re-
viewing the drivers, McClure drove only a single load despite
being scheduled to drive a load and a half.
Murphy testified that on October 14 and 18, 2001, he did not
drive his scheduled route. According to Murphy, someone had
taken his assigned truck and so he went home. He admitted
that he did not report this to any dispatcher or supervisor.
Thus, Respondent believed that Murphy did report to work and
did not call in on those occasions. On November 1, Murphy
told Pineda that he had already driven his allotted hours and
could not drive his assigned route on November 2. Pineda
asked Murphy to review his log sheets and call Pineda back.
Murphy did not call Pineda back. Thereafter, Pineda reviewed
Respondent’s records and found that Murphy had enough al-
lowable hours to drive on November 2.
Vasconcellas admitted that he drove only a single load in
spite of Respondent’s intent on having drivers drive one and a
half loads. Vasconcellas admitted that after he completed his
route, he was required to “load, tarp and weigh” the truck.
Hamilton testified that he instructed Vasconcellas a number of
times to load and tarp his truck before leaving. Notwithstand-
ing these instructions, Vasconcellas, on several occasions, left
work without loading and tarping. Two such occasions oc-
curred on October 30 and 31, 2001.
Respondent contends that it simply maintained the statues
quo with respect to Thanksgiving holiday pay, Christmas bo-
nuses, its wage increases, and tire bonuses. At the orientation
meetings in September, Respondent announced that the em-
ployees were probationary employees for 90 days and that holi-
day benefits would not be paid during that 90-day period. Re-
spondent specifically declared that the first holiday that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
drivers would be eligible for would be Christmas. Thereafter in
November, drivers did attempt to obtain holiday pay for
Thanksgiving and Respondent answered that during the elec-
tion period it had to maintain the status quo.
Respondent has had a past practice of paying Christmas bo-
nuses to its employees. Respondent previously paid similar
bonuses to its production and maintenance employees. The
amount of the bonus ($50) was consistent with that paid pro-
duction employees. Further, Respondent showed that employ-
ees, who worked less than 90 days for Respondent, nonetheless
received the Christmas bonus. The bonuses have regularly
been given in the pay period preceding Christmas.
With respect to the increase in pay, Respondent indicated to
the employees in September that adjustments to the pay sched-
ule would be made. Changes to the rate schedule were also
mentioned at the meetings on November 8. However, no spe-
cifics were given. Respondent raised the possibility of tire and
chain bonuses in September and again in November but no
specifics were given until the December 15 meeting.
C. The Agency Status of Walt Chenoweth
Chenoweth was a driver with Waste Transport and became a
driver for Respondent effective September 24, 2001.
Chenoweth applied for and was awarded the position of dis-
patcher effective November 11. Chenoweth continues to drive
for Respondent as needed but his main responsibility is dis-
patching. Chenoweth was not included in the bargaining unit.
The General Counsel does not contend that Chenoweth is a
supervisor within the meaning of the Act. Chenoweth’s direct
supervisor is Pineda, Respondent’s transportation supervisor.
For several hours a day, Chenoweth is the highest-ranking
employee at the facility. That is because Chenoweth and sev-
eral drivers begin work before the supervisors report to work.
Respondent passed out cards to employees containing impor-
tant phone numbers. On these cards Chenoweth was listed as a
supervisor. Chenoweth was also listed along with all Respon-
dent’s statutory supervisors on a memorandum distributed for
the Thanksgiving holiday. Chenoweth also signed the season
greetings notice signed by the statutory supervisors and distrib-
uted to employees in December 2001.
In performing his dispatching duties, Chenoweth on occasion
changes employees’ schedules, authorizes pay for delay time,
and authorizes pay for show up time. Although Chenoweth is
not directly involved in discipline, he makes reports to Pineda
which may result in discipline.
The Board applies the common law principles of agency
when determining whether an employee is an agent of the em-
ployer. Southern Bag Corp., 315 NLRB 725 (1994). Apparent
authority results from a manifestation by the principal to the
third party that creates a reasonable basis for the latter to be-
lieve that the principal has authorized the alleged agent to per-
form the acts in question. Southern Bag Corp., 315 NLRB 725
(1994); Beaird Industries, 311 NLRB 768 (1993); Albertsons,
Inc., 307 NLRB (1992). The test is whether, under all of the
circumstances, the employees would reasonably believe that the
alleged agent was reflecting company policy and speaking and
acting for management. Waterbed World, 286 NLRB 425,
426–427 (1987). Stated in a more subjective manner, “an em-
ployer can be responsible for the conduct of an employee, as an
agent, where under all the circumstances the employees would
reasonably believe that the individual was reflecting company
policy and acting on behalf of management.” Kosher Plaza
Supermarket, 313 NLRB 74, 85 (1993). As stated in Section
2(13) of the Act, when making an agency determination, “the
question of whether the specific acts were actually authorized
or subsequently ratified shall not be controlling.” GM Elec-
trics, 323 NLRB 125 (1997); Southern Bag Corp., id.
I find that Respondent used Chenoweth as a “conduit” of in-
formation from management to employees with respect to such
important matters as job assignments, work rules and instruc-
tions, and management’s views. See, for example: Speed Mail
Service, 251 NLRB 476 (1980); Sears Roebuck de Puerto Rico,
284 NLRB 258, 259 (1987); Victor’s Café, 321 NLRB 504
(1996); Zimmerman Plumbing & Heating Co., 325 NLRB 106
(1997), enfd. in pertinent part 188 F.3d 508 (6th Cir. 1999).
Further, Respondent held Chenoweth out as a supervisor and
part of the management team.
Thus, I find that Chenoweth possessed the apparent authority
to speak on the Respondent’s behalf and, therefore, spoke as
Respondent’s agent. See Electronic Data Systems Corp., 305
NLRB 219 (1991) (the Board found in agreement with the ad-
ministrative law judge that a dispatcher was the Respondent’s
agent, cloaked with apparent authority, when she unlawfully
interrogated and made coercive statements to employees).
D. Analysis and Conclusions
1. The alleged discriminatory discharges of November 7
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. Upon such a showing, the burden shifts
to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The
United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 399–403 (1983).
It has long been held that there are five principal elements
that constitute a prima facie case insofar as Section 8(a)(3) and
(1) are concerned. The first is that the employee alleged to be
unlawfully disciplined must have engaged in union or protected
activities. The second is that the employer knew about those
protected activities. Third, there must be evidence that the
employer harbored animus against those individuals because of
such activities. Fourth, the employer must discriminate in
terms of employment. Finally, the discipline must usually be
connected to the protected activity in terms of timing. See, e.g.,
Goodyear Tire & Rubber Co., 312 NLRB 674 (1993).
It is axiomatic that an employer cannot have been “moti-
vated” by an employee’s prounion activities or sympathies to
take action affecting that employee’s status if the employer did
not know or have a belief about the employee’s activities or
sympathies. Indeed, credible evidence of “employer knowl-
SACRAMENTO RECYCLING & TRANSFER STATION 575
edge” is a necessary part of the General Counsel’s burden, and
without it, the complaint cannot survive. Stanford Linear Ac-
celerator Center, 328 NLRB 464 (1999); American Postal
Workers (Postal Service), 278 NLRB 751, 752–753 (1986).
The General Counsel contends that Respondent had general
knowledge of union organizing prior to the discharges. The
evidence indicates that Respondent had knowledge that the
employees were unhappy with working conditions under Waste
Transport. Further, Respondent was aware that there was
vague talk of unions by the Waste Transport employees. Not-
withstanding these facts, Respondent hired all of the former
employees of Waste Transport. Further, Respondent was aware
that all the problems had not yet been resolved by early No-
vember. However, Respondent was working on setting regular
driving schedules and making more efficient use of its equip-
ment. It is clear that, unrelated to any union considerations,
Respondent was attempting to improve on the inefficient, and
sometimes unlawful, operations of Waste Transport. There is
no direct evidence that Respondent was aware that the vague
talk of unions had turned into action on November 4, 2001.
Nor is there any direct evidence that Respondent was aware of
the activities that took place on November 5. As the General
Counsel correctly argues, knowledge of union activities need
not be established directly, “but may rest on circumstantial
evidence from which a reasonable inference of knowledge may
be drawn.” Montgomery Ward & Co., 316 NLRB 1248, 1253
(1995).
Knowledge of the employees’ union activity can be implied
from the Board’s small plant doctrine. The small plant doctrine
may be applied where the facility is small and open, the work
force is small, the employees made no great effort to conceal
their union conversations, and management personnel are lo-
cated in the immediate vicinity of the protected activity. Health
Care Logistics, 784 F.2d 232 (6th Cir. 1986). The small plant
doctrine is an application of circumstantial evidence. The mere
fact that an employer’s plant is of a small size does not permit a
finding that the employer had knowledge of the union activities
of specific employees, absent supporting evidence that the un-
ion activities were carried on in such a manner, or at times that
in the normal course of events, the employer must have known
about them. See, e.g., NLRB v. Mid States Sportswear, 412
F.2d 537, 540 (5th Cir. 1969), quoting NLRB v. Joseph Antell,
Inc., 358 F.2d 880 (1st Cir. 1966).
The facts of this case do not establish the applicability of the
small plant doctrine. The employees’ activities took place in
Respondent’s truckyard, at landfills used by Respondent and
over the CB radios while the drivers were driving their loads.
The work force is small, approximately 35 employees. How-
ever, the truckyard is large with wide open areas far away from
Respondent’s supervisors. Respondent’s supervisors are usu-
ally not present at the landfills. There is no credible evidence
that Respondent’s supervisors were in range to hear CB conver-
sations, or even had access to a CB radio. The employees were
discrete about their union meeting and attempted to conceal the
signing of union cards. The union activities increased dramati-
cally after the five employees were discharged. Under all these
facts and circumstances, I conclude that the small plant doctrine
is inapplicable and does not establish that Respondent had
knowledge of the employees’ activity prior to the discharges.
Other circumstantial evidence seems to confirm Respon-
dent’s assertion that it did not learn of the organizing campaign
until November 16. When Gutterson received the petition on
the afternoon of November 16, he immediately asked
Chenoweth what the dispatcher knew about the petition and the
Union. Shortly thereafter, Chenoweth began interrogating em-
ployees about the Union. When employee Sarey told
Chenoweth about being asked to sign for the Union,
Chenoweth told Sarey that Respondent first learned about the
Union when it received the petition by fax on November 16.
Although Respondent made numerous statements in an attempt
to defeat the Union, none of these statements were made until
after November 16.
While the General Counsel argues that I should draw an in-
ference of discrimination from Respondent’s failure to give the
employees a specific reason for discharge, I refuse to draw such
an inference in this case. Respondent informed the employees
at the time of hire that it was an “at will employer.” Further,
Respondent notified the employees that they were probationary
employees for a period of 90 days. While it may not be the best
personnel policy, it has not been shown to be discriminatory for
Respondent to give a generic reason for the discharges. It can-
not under these facts be discriminatory for Respondent to tell
the discharged employees that it was an at will employer. Re-
spondent did present evidence that the five employees were not,
in its opinion, cooperating with its attempts to improve the
efficiency of the newly acquired operation. Each of the em-
ployees engaged in, what Respondent considered to be, mis-
conduct in the period from October 30 to November 2; the very
time that Respondent’s supervisors were reviewing the driving
operation.
The General Counsel argues that Albin’s statement of No-
vember 8 that there would be no further discharges unless
somebody “pissed him off” was a threat of discharge for union
activities because employees did not know what would “piss
off” Albin. Again, this appears not to be the best personnel
policy, however, it also appears to be unconnected to union
activity. As discussed above, it does not appear that Respon-
dent had knowledge of the union activities until it received a
copy of the Union’s petition on November 16.
Under these facts and circumstances, I find that the General
Counsel has failed to establish a prima facie case with regard to
the discharge of the five employees. More specifically, I find
that the evidence does not establish that the Respondent had
knowledge of any union activities on the part of any of its em-
ployees when it discharged Adams, Murphy, Doremus,
McClure, and Vasconsellas on November 7, 2002.
2. The alleged interrogations
An employer violates Section 8(a)(1) of the Act by interro-
gating employees about their union activities or that of other
employees under coercive circumstances. NLRB v. Prineville
Stud Co., 578 F.2d 1292 (9th Cir. 1978); Bremol Electric, Inc.,
271 NLRB 1557 (1984); Pacemaker Driver Services, 269
NLRB 971, 977–978 (1984). Interrogation of employees is not
unlawful per se. In determining whether or not an interrogation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD576
violates Section 8(a)(1) of the Act, the Board looks at whether
under all the circumstances the interrogation reasonably tends
to interfere with, restrain, or coerce employees in the exercise
of their Section 7 rights. Rossmore House, 269 NLRB 1176
(1984); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Relevant factors include the background, the nature of the in-
formation sought, the identity of the questioner, and the place
and method of conversation. Sunnyvale Medical Clinic, 277
NLRB at 1218.
Shortly after Respondent received the petition, Chenoweth
approached drivers Daniel Mariea and Marin Mariea and asked
whether they were for the Company or for the Union. Daniel
Mariea did not give a straight answer. In early December,
Chenoweth again asked Daniel Mariea whether he was for the
Union. Chenoweth said, “I want a straight answer. Are you for
the Union or against the Union?” Mariea joked that he did not
want to be part of the Mafia and Pineda and Chenoweth
laughed. Chenoweth patted Daniel on the back and said,
“That’s our guy right here.” In mid-December Chenoweth
questioned Sarey about the Union. Sarey expressed his opposi-
tion to the Union. Chenoweth gave Sarey the names of five
union supporters and asked whether those employees supported
the Union.
In early December when Wickey approached Gutterson
about wages owed to him by Waste Transport. Gutterson said,
“I understand you are one of the guys that was involved in
starting the Union.” Wickey attempted to discuss his wage
problem. However, Gutterson asked how the employees felt
about the Union. Wickey responded that he could not speak for
anyone else. During this conversation, Gutterson stated that the
subcontractor that hauled recycling for Respondent was inter-
ested in subcontracting the trash hauling done by the bargaining
unit drivers.
On or about December 3, Wickey attended a meeting with
Donlevy, Gutterson, and Hubberman. Wickey asked if he
could have a witness and Donlevy denied the request. Hubber-
man asked why the drivers were unhappy and Wickey asked
Hubberman some personal questions. In this conversation,
Gutterson also asked why the drivers wanted a union and what
it would take to make the drivers happy.
Shortly before the election, when Donlevy gave Rick Simp-
son his bonus check, Donlevy asked whether Simpson was
voting in the election. Simpson answered that he was going to
vote and Donlevy replied, “Just remember, we don’t want the
Union being voted in here.”
Here, I find that the interrogations by Chenoweth tended to
interfere with and restrain the Marins and Sarey in their union
and protected concerted activities. Chenoweth interrogated
Daniel Marin on two occasions and insisted on an answer to his
question about Marin’s union sympathies. In his questioning of
Sarey, Chenoweth named five union supporters and sought
confirmation from Sarey that these employees were in fact
union supporters. Such actions raise a reasonable belief that
Respondent would take action against those employees engaged
in protected activities. The totality of the circumstances exist-
ing during this questioning requires I find the questioning of
these employees coercive and violative of Section 8(a)(1) of the
Act. Southwire Co., 282 NLRB 916, 917 (1987).
3. The granting of benefits
In NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964),
the Supreme Court stated: “The danger inherent in well timed
increases in benefits is the suggestion of a fist inside a velvet
glove. Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is not
obliged.”
In ARA Food Services, 285 NLRB 221, 222 (1987), the
Board stated:
When a benefit is granted during the critical period before an
election, the burden of showing that the timing was governed
by factors other than the pending election is on the party who
granted the benefit. The logic behind this legal principle is
clear: only the party granting the benefit can explain why it
chose to do so. An employer meets that burden if it presents
evidence which establishes justification for its action.
See also Comcast Cablevision, 313 NLRB 22 (1993); Elston
Electronics Corp., 292 NLRB 510, 525–526 (1989).
In examining whether the wage increases amounted to an ob-
jectionable promise or grant of benefit, I must apply the test set
out by the Board in B & D Plastics, 302 NLRB 245 (1991).
Under B & D Plastics, the Board examines whether granting
the benefit would tend unlawfully to influence the outcome of
the election, taking into consideration the following factors: (1)
the size of the benefit conferred in relation to the stated purpose
for granting it; (2) the number of employees receiving it; (3)
how employees reasonably would view the purpose of the
benefit; and (4) the timing of the benefit.
In the instant case, employees were told in September and on
November 8, that Respondent would possibly raise the amounts
paid for driving routes. On November 8, employees were told
of a contemplated tire, chain, and fuel bonus program. No
specific date or amounts for these possible changes was an-
nounced. After the petition was filed, on December 4 and again
on December 10, Gutterson told employees that no raises could
be given because of the pending representation petition. Gut-
terson said that Respondent was considering granting raises but
could not do so because it would be considered a bribe. How-
ever, on December 18, just three days before the representation
election, Gutterson announced that Respondent could grant pay
increases and grant the tire, chain, and fuel bonus. For the first
time the specifics of the increases for the routes were an-
nounced and the specifics of the bonus program were an-
nounced. The pay increases were made retroactive to Decem-
ber 10. The employees received the increase in the paychecks
received just prior to the election. The requirements for the
tire, chain, and fuel bonus were never met and, therefore, em-
ployees never received any monies under this bonus program.
Respondent has not met its burden of showing that the tim-
ing was governed by factors other than the pending election.
First, I find that while the possibility of raises and bonuses were
mentioned prior to the petition no specific date or amounts
were mentioned. Second, after the petition was filed, Respon-
dent repeatedly told the employees that the raises could not be
granted because of the pending petition. Respondent’s justifi-
cation for the wage increases is that the increases coincided
SACRAMENTO RECYCLING & TRANSFER STATION 577
with the end of the employees’ 90-day probationary period.
However, Respondent offered no evidence to support this ar-
gument. December 10 was 2 weeks short of the 90-day period.
Further, Respondent offered no explanation for the amounts of
the raises. No explanation was given why the raises were not
given after the election, and/or after the probationary period.
I find that the announcement of the raises was reasonably
calculated to, and did, interfere with the employees in their
freedom of choice in selecting or rejecting the Union as their
collective-bargaining representative. Thus, I find that the an-
nouncement of the raises and the granting of those wage in-
creases violated Section 8(a)(1) of the Act. I further find, that
the announcement and establishment of the bonus program
violated Section 8(a)(1) of the Act.
At the orientation meetings, Respondent made it clear to em-
ployees that they were hired subject to a 90-day probationary
period. Respondent specifically stated that the employees
would not receive holiday pay for Thanksgiving or Christmas.
Although there is some evidence that Pineda raised the possibil-
ity of holiday pay for Thanksgiving, Respondent quickly re-
solved that issue by announcing that it could not change its
policy while the petition was pending. Respondent clearly
acted lawfully in refusing to grant holiday pay in contravention
of its existing policy. If Respondent had granted the benefit, it
would have violated Section 8(a)(1) of the Act.
The undisputed evidence shows that Respondent had an es-
tablished policy of granting Christmas bonuses to its employ-
ees. The Christmas bonuses granted in this case were consis-
tent with Respondent’s past practice in the amount of the bo-
nuses and in the timing. The fact that employees received the
bonuses a few days before the 90-day probationary period was
over is not controlling because Respondent acted consistent
with its past practice in this regard as well.
4. The alleged unlawful threats
After the filing of the petition, Chenoweth told Wickey that
Gutterson had told Chenoweth to inform the drivers that Re-
spondent would subcontract the driving work to two other
companies, before he would let a union come in. Fifteen min-
utes later, Wickey approached Chenoweth and asked whether
Chenoweth had been joking. Chenoweth responded that he had
told Wickey exactly what Gutterson had directed him to say.
Sarey also testified that Gutterson told him that if things did not
work out, Respondent would sell the trucks and subcontract the
work.
On or about November 20, Chenoweth told Howton that the
subcontractor who hauled recycling for Respondent was inter-
ested in subcontracting the hauling done by the bargaining unit
employees. Chenoweth said that Respondent would never let
the Union into the Company. Chenoweth stated that the drivers
made good money and they would be sorry if the Union got in.
Chenoweth also stated that Respondent would probably sub-
contract out the trash hauling and sell its trucks to the subcon-
tractor.
After the petition was filed, Chenoweth approached Gowen
at work and stated that he knew that Gowen had been one of the
employees who started the union organizing effort. Chenoweth
added that he thought the drivers did not need a Union. Finally,
Chenoweth declared that before the Union came in, the drivers
“would all be working elsewhere, that another company would
be hauling the trash.”
On or about December 3, Chenoweth approached Wickey
and told him, “I want to tell you I feel real bad the way man-
agement is treating you.” Wickey said that he felt that he was
being singled out. Chenoweth said “I almost quit my job over
you.” Chenoweth then stated that Respondent’s management
had gone through Wickey’s driving logs in an attempt to find a
reason to fire him.
On the afternoon of the December 21 election, Wickey told
Gutterson that he was an observer for the Union. Gutterson
stated, “I don’t appreciate you putting me through this and I
will remember this.”
In early January, Marin Mariea approached Chenoweth and
asked why he was not getting Saturday loads to drive, while
new employees appeared to be getting Saturday loads.
Chenoweth responded, “You guys who f— around with the
Union. I’ll let you know Union. You guys are on the Sunday
list.”
On February 18, 2002, Martinez complained to Gutterson
about Pineda and Donlevy. Gutterson replied, “Ruben, what’s
wrong with you?” Gutterson stated that Martinez could not get
along with Albin, Donlevy, or Pineda. He said that if Martinez
was not happy working for Respondent and that Martinez
should quit. He asked why Martinez did not quit and get an-
other job. Gutterson complained that Martinez had cost the
company $20,000 a month for the last 2 months.6 Martinez
answered that he was just trying to do his job.
On March 28, 2002, Gowen was looking at a copy of a
newspaper article left in the dispatch office. The article con-
cerned the union organizing drive and contained pictures of
current employees and union officials. Gowen told Chenoweth
that he would not want his name connected with the article, that
it might cause problems. Chenoweth answered that was the
smartest comment he had heard about the article. Chenoweth
then declared that the people in the article and the union activ-
ity “would be haunted the rest of their short existence at Sacra-
mento Recycling, and wherever else they’d go, wherever they
may be.”
I find that by threatening the employees with loss of em-
ployment for engaging in union activities, Respondent through
Chenoweth and Gutterson violated Section 8(a)(1) of the Act.
Respondent’s threats of discharge, subcontracting of unit work
and the resultant loss of employment, clearly tend to restrain and
coerce employees in the exercise of their Section 7 rights. Wil-
liamhouse of California, 317 NLRB 699, 712–713 (1995); Flex-
steel Industries, 311 NLRB 257, 268–269 (1993); Teskid Alumi-
num Foundry, 311 NLRB 711, 716–717 (1993).
5. The rule against remaining on Respondent’s premises,
and the rule against speaking Romanian
After the petition was filed Pineda approached Gowen in the
parking lot and told him, “I know what’s going on around here,
and if you want to have these discussions regarding union
propaganda, you need to do it away from the facility and on

6 Martinez had become a union steward.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD578
your own time, and you have 15 minutes from the time you log
off duty and turn your paperwork in to leave the facility.”
Drivers were never told or warned about any such rule before
the union petition was filed.
During a December meeting with Martinez, Pineda, and
Nuno, Donlevy told Martinez he could only be on the premises
for 15 minutes before the start time, and only 10 minutes after
he finished his paperwork.
Also in early December, Pineda told Wickey, “After you get
your truck loaded and parked, you have ten minutes to do your
paperwork and you’ve got to be off the property.” Pineda also
stated that he would notify Gowen and Howton about this rule.
Shortly thereafter, Donlevy approached Peavyhouse (Tr. 939–
940) and told Peavyhouse that the driver was finished with his
shift and had to leave. Donlevy said, “What’s been going on
can’t go on anymore.”
In January 2002, Donlevy observed Ruben Martinez talking
to another driver. Donlevy later approached Martinez and said
that Martinez did not need to be talking to other drivers in the
yard.
In late November and on several occasions until January
2002, Respondent began to prohibit its Romanian-speaking
drivers from speaking Romanian at work. At that time, Re-
spondent employed four Romanian-speaking drivers. Marin
and Daniel Mariea often acted as interpreters for the other Ro-
manian drivers. On several occasions between November and
January, Pineda told the Romanian drivers to speak English and
not Romanian. After the election, Pineda again permitted the
Romanian drivers to speak Romanian and permitted the
Marieas to translate for the other Romanian drivers.
It is unlawful for an employer to impose more restrictive
rules on employees’ access to the workplace in response to
union activity. V & B, Inc., 322 NLRB 996 (1997), enfd. 132
F.3d 1483 (D.C. Cir. 1997); Mediplex of Wethersfield, 320
NLRB 510, 514 (1995). See also Hickory Creek Nursing
Home, 295 NLRB 1144, 1149 (1989), enfd. 917 F.2d 1304 (6th
Cir. 1990) (violation to begin enforcing handbook rule regard-
ing employees’ presence before and after shift, in response to
union campaign).
In the instant case, Respondent began enforcing its alleged
rule on employee access to the facility after union organizing
began. Pineda revealed that the purpose for doing so was to
limit union propaganda. Further, Pineda and Donlevy made
sure to enforce the rule against the leading union adherents.
Accordingly, I find that Respondent intended to interfere with
union organizing among its employees. Thus, I find that Re-
spondent violated Section 8(a)(1) of the Act.
Similarly, the timing of the rule against speaking Romanian
appears to be in response to the union organizing. Further, the
rule was apparently aimed against union adherents Daniel and
Marin Mariea. No business justification was offered for this
rule. Finally, Respondent relaxed the rule after the representa-
tion election. Accordingly, I find that Respondent intended to
interfere with union organizing among its employees. Thus, I
find that Respondent violated Section 8(a)(1) of the Act.
6. The alleged discrimination against Gary Wickey
During the third week of November, Chenoweth told Gary
Wickey that Shawn Gutterson, Respondent’s vice president,
had told Chenoweth to inform the drivers that Respondent
would subcontract the driving work to two other companies,
before he would let a union come in. Fifteen minutes later,
Wickey approached Chenoweth and asked whether Chenoweth
had been joking. Chenoweth responded that he had told
Wickey exactly what Gutterson had directed him to say. There-
after, Chenoweth identified Wickey as a “Union guy.” Wickey
objected and Chenoweth apologized.
In early December Wickey approached Gutterson about
wages owed to him by Waste Transport. Gutterson had earlier
stated that Respondent would make the drivers whole for wages
not paid by Waste Transport. Gutterson said, “I understand you
are one of the guys that was involved in starting the Union.”
Wickey attempted to discuss his wage problem. However,
Gutterson asked how “the guys felt about the Union.” Wickey
responded that he could not speak for anyone else. The conver-
sation then returned to the pay question. During this conversa-
tion, Gutterson stated that the subcontractor that hauled recy-
cling for Respondent was interested in getting the work done by
the bargaining unit employees.
In early December, after Wickey spoke with Gutterson in an
attempt to recover monies owed to him by Waste Transport,
Pineda delivered a check to him. According to Wickey, Pineda
declared that if Wickey voted against the Union, there would
“probably” be more checks for Wickey. Pineda denied making
this statement. Also in early December, Pineda told Wickey,
“After you get your truck loaded and parked, you have ten
minutes to do your paperwork and you’ve got to be off the
property.”
On or about December 3, Chenoweth approached Wickey
and told him, “I want to tell you I feel real bad the way man-
agement is treating you.” Wickey said that he felt that he was
being singled out. Chenoweth said, “I almost quit my job over
you.” Chenoweth then stated that Respondent’s management
had gone through Wickey’s driving logs in an attempt to find a
reason to fire him. That same day, Chenoweth told Wickey that
driver Sarey had complained that Wickey had harassed Sarey at
the landfill in Anderson, California. Wickey denied that he had
harassed anyone.
On or about December 5, Wickey was called to a meeting
with Donlevy, Gutterson, and Hubberman. Wickey asked if he
could have a witness other than someone from management.
Donlevy denied the request According to Wickey, Hubberman
asked why the drivers were unhappy. Wickey asked Hubber-
man some personal questions. Gutterson asked why the drivers
wanted a union and what it would take to make the drivers
happy. Donlevy asked what had happened between Wickey
and Sarey at the Anderson landfill. Donlevy said that Wickey
was accused of threatening Sarey. Wickey admitted having a
conversation with Sarey but denied harassing or threatening
Sarey. Donlevy said he would have to confirm Wickey’s story.
The next day, Pineda invited Wickey back into Donlevy’s
office. Wickey again requested a witness. Donlevy denied the
request. Wickey said that he and Sarey had discussed the mat-
ter and agreed that there was no problem. Donlevy responded,
SACRAMENTO RECYCLING & TRANSFER STATION 579
“I’m going to make it very clear to you Gary. If there’s any
physical or verbal problems with Fred, we’re going to hold you
personally responsible no matter if it happens on or off the
property.”
Three days later, Wickey was called into a third meeting
with Donlevy, Pineda, and Nuno. Wickey again requested a
nonmanagement witness. Again, Donlevy denied the request.
Donlevy said that Respondent wanted to resolve the situation.
Wickey answered that he had already had two meetings and he
felt threatened. Nuno then ended the meeting. The harassment
allegations were finally cleared a few days later at a meeting,
which included Sarey. Sarey told Nuno and Donlevy that
Wickey had not threatened him.
Under the Supreme Court’s decision in NLRB v. J. Weingar-
ten, 420 U.S. 251 (1975), an employee’s right to union repre-
sentation arises “only in situations where the employee requests
representation,” and is “limited to situations where the em-
ployee reasonably believes that the investigation will result in
disciplinary action.” Id. at 257–258.
Once an employee makes a valid request for union represen-
tation, the employer is permitted one of three options: (1) grant
the request; (2) discontinue the interview; or (3) offer the em-
ployee the choice between continuing the interview unaccom-
panied by a union representative or having no interview at all.
Consolidated Freightways Corp., 264 NLRB 541, 542 (1982);
General Motors Co., 251 NLRB 607, 608 (1979). Under no
circumstances may the employer continue the interview without
granting the employee union representation unless the em-
ployee voluntarily agrees to remain unrepresented after having
been presented by the employer with the choices mentioned in
option (3) above, or if the employee is otherwise aware of those
choices. NLRB v. J. Weingarten, supra; Williams Pipeline Co.,
315 NLRB 1 (1994).
In Epilepsy Foundation of Northeast Ohio, 331 NLRB 676
(2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001).
The Board held that Weingarten rights are applicable in the
nonunionized workplace as well as the unionized workplace.
The Board reasoned that the Act protects the rights of employ-
ees—whether unionized or not—to act in concert for mutual aid
or protection. Thus, the right to have a coworker present at the
investigatory interview affords unrepresented employees the
opportunity to act in concert to prevent a practice of unjust
punishment. While an employer is generally free to deal with
employees individually in the absence of union representation,
an employer may not mask the obstruction of employee efforts
to exercise Section 7 rights by asserting a right to deal on an
individual basis. Epilepsy Foundation, id., citing Ontario Knife
Co. v. NLRB, 637 F.2d 840, 844–850 (2d Cir. 1980).
In the instant case, Wickey was identified as a union sup-
porter. Before being called into the first meeting with Donlevy,
Gutterson, and Hubberman, Wickey had been told that Respon-
dent was looking for a reason to discharge him. Thus, Wickey
had a reasonable belief that he was going to be disciplined.
After, denying Wickey’s request for a witness, Respondent
proceeded to interrogate him. The following day, with the
question of discipline not yet resolved, Wickey again asked for
a witness and his request was denied. Donlevy warned Wickey
against harassing Sarey and threatened discipline if anything
happened to Sarey. At the third meeting, Wickey again re-
quested a witness. This time, the meeting did not continue after
the request for a witness. Thereafter, the question of alleged
harassment was resolved.
Under these facts and circumstances, I find that Respondent
violated the Act under Epilepsy Foundation by denying
Wickey’s request for a witness at the investigatory meetings.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By denying an employee the right to representation at an
interview at which the employee reasonably believed might
result in disciplinary action, Respondent violated Section
8(a)(1) of the Act.
4. By interrogating employees about their union activities
and the union activities of other employees, Respondent vio-
lated Section 8(a)(1) of the Act.
5. By threatening employees with subcontracting, loss of
work assignments, and loss of employment, Respondent vio-
lated Section 8(a)(1) of the Act.
6. By announcing and granting wage increases and a bonus
program, Respondent violated Section 8(a)(1) of the Act.
7. By imposing restrictions on the rights of employees to
discuss unions or other protected concerted activities, Respon-
dent violated Section 8(a)(1) of the Act.
8. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended7
ORDER
Respondent, BLT Enterprises of Sacramento, Inc., d/b/a Sac-
ramento Recycling and Transfer Station, Sacramento, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities or
the union activities of other employees.
(b) Threatening employees with subcontracting, loss of work
assignments and loss of employment, in order to discourage un-
ion membership.

7 All motions inconsistent with this recommended Order are hereby
denied. In the event no exceptions are filed as provided by Sec. 102.46
of the Board’s Rules and Regulations, the findings, conclusions, and
recommended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD580
(c) Announcing and granting wage increases and a bonus
program, in order to discourage union membership.
(d) Imposing restrictions on the rights of employees to dis-
cuss unions or other protected concerted activities.
(e) Denying employees the right to representation at an in-
terview under circumstances where the employees reasonably
believe that the interview could result in disciplinary action.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Sacramento, California facilities copies, in English, Spanish,
and Romanian, of the attached notice marked “Appendix.”8

8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 20, after being signed by Respondent’s author-
ized representative, shall be posted for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure the notices are not altered, de-
faced, or covered by other material. In the event that, during
the pendency of these proceedings, the Respondent has gone
out of business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the attached notice to all current employees
and former employees employed by the Respondent at any time
since November 16, 2001.
(b) Within 21 days after service by the Region, file with the
Regional Director, a sworn certification of a responsible official
on a form provided by the Region attesting to the steps Re-
spondent has taken to comply.