Waste Management, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 2000

330 N.L.R.B. 634 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
Waste Management, Inc. and Teamsters Local No.
463, affiliated with the International Brother-
hood of Teamsters, AFL–CIO, Petitioner. Case
4–RC–19571

February 14, 2000

DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held December 18, 1998, and the hearing officer’s report
recommending disposition of them (pertinent portions
are attached as an appendix). The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 70 for and 108 against the Peti-
tioner with 10 challenged ballots, a number insufficient
to affect the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations, and finds that the elec-
tion must be set aside and a new election held.2
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting.
Contrary to my colleagues and the hearing officer, I
would overrule all of the Petitioner’s objections and cer-
tify the results of the election.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the Petitioner’s Objections 1, 3, 5,
and 6 (except for that portion related to a threat of discharge), and 9.
2 We agree, for the reasons stated by the hearing officer, that the
Employer’s bulletin board policy, both on its face and as applied, con-
stituted objectionable conduct (Objections 2 and 10). We stress that
the hearing officer’s analysis is in accord with well-established Board
precedent, cited by the hearing officer, and that our dissenting col-
league’s analysis would require that that precedent be overruled.
Further, we adopt the hearing officer’s recommendation to sustain
the Petitioner’s Objection 6 regarding Supervisor Ronald McClain’s
threat to discharge employee Paul Trueman because he had defaced a
piece of the Employer’s antiunion campaign literature. We do not
agree with our dissenting colleague that the threat was not sufficiently
disseminated to have affected the election results. In fact, the hearing
officer found that “several” other employees were present when the
threat was made, and Trueman identified three of those employees. In
addition, employee Frable immediately learned of the threat either from
Trueman or from one of the employees who witnessed the threat. One
of those employees, David Rice, and Frable immediately went inside to
the dispatch room and when Trueman arrived there, Rice, Frable, and
several other employees were all arguing about the antiunion cards
distributed by the Employer, which were the subject of the threat of
discharge made to Trueman. In these circumstances, although we do
not know the exact number of employees involved, we have no trouble
inferring that the threat was immediately a subject of conversation
among many employees. As the hearing officer correctly observed, a
threat of discharge of this sort is highly coercive and one of the most
serious forms of employer misconduct. See Lakehaven Nursing Home,
325 NLRB 250, 251 (1997). Accordingly, we adopt the hearing offi-
cer’s conclusion that this threat was objectionable conduct warranting a
second election.
My colleagues conclude that the Employer’s refusal to
permit employees to use the Employer’s bulletin board
for union materials was objectionable. In the circum-
stances of this case, I cannot agree.1
Significantly, in my view, the hearing officer found
that the Employer did not change its bulletin board pol-
icy in response to the union campaign. Thus, the policy
was not motivated by that campaign. Further, the policy,
on its face, does not refer to union-related materials.
Rather, the policy and the practice is to ban all contro-
versial material (e.g., sexual material), not just union-
related material. Finally, since the Employer regards
union-related materials as controversial, the Employer
bans both prounion and antiunion materials.
In short, this case does not involve a policy motivated
by union activity. Nor does it involve discrimination
against union-related material or against prounion mate-
rial. In these circumstances, I would not condemn the
policy as objectionable.2
My colleagues also find objectionable the conduct of
Supervisor Ronald McClain, who told employee Paul
Trueman that he would be discharged for defacing a
piece of procompany campaign literature. I assume ar-
guendo that this threat would be objectionable if it were
disseminated to a determinative number of voters. The
tally of ballots here shows 70 for the Petitioner, 108
against, with 10 challenged votes. Although there was
some dissemination of the threat, it clearly was not dis-
seminated to a sufficient number of voters to have af-
fected the results of the election.3 See, e.g., Westek Fab-
ricating, 293 NLRB 879 (1989).

1 The Employer’s policy was as follows:
SECTION XIV—BULLETIN BOARDS
A. The bulleting boards are available for the posting on non-
controversial items by employees. Any item desired to be
posted must be submitted to the Human Resources Department
for approval.
2 See, e.g., Cleveland Real Estate Partners v. NLRB, 95 F.3d 457,
465 (6th Cir. 1996) (discrimination not found, even though employer
prohibited union solicitation, and permitted nonunion-related solicita-
tions); NLRB v. Riesbeck Food Markets, 91 F.2d 132 (4th Cir. 1996)
(unpublished decision) (discrimination not found, even though em-
ployer prohibited a union “do not patronize” solicitation, and permitted
nonunion-related solicitations).
In view of the above, I find nothing objectionable in the Em-
ployer’s informing employee Woolf that he was subject to discipline if
he failed to remove a union notice from the bulletin board.
3 According to my colleagues, the threat of discharge was heard by
three identified employees and was disseminated to one other em-
ployee. Thus, the Union has established only that four employees were
aware of the threat. Although several other employees discussed the
Employer’s antiunion cards, this is not the same as discussing the threat
of discharge (the allegedly objectionable conduct). In these circum-
stances, and given the large differential in the vote, I do not believe that
the Union has established a basis for overturning the election.
330 NLRB No. 96
WASTE MANAGEMENT, INC. 635
APPENDIX
REGIONAL DIRECTOR’S REPORT ON OBJECTIONS
. . . .
OBJECTIONS 2, 3 AND 10
The above objections can be appropriately amalgamated for
discussion insofar as all relate to Petitioner’s contention that the
Employer, during the critical period, changed its policy on ac-
cess to the employee bulletin board (Objection 3), promulgating
in its place a policy that treated protected postings in an imper-
missible manner (Objection 10) and that, as a consequence, at
least one employee was threatened with discipline (Objection
2).
Undergirding this discussion lies the Employer’s policy on
bulletin boards as set forth in the employee handbook which
was, as the Employer acknowledges, in effect at all relevant
times here, including the period leading up to the election. The
policy is set forth below:

SECTION XIV–BULLETIN BOARDS
A. The bulletin boards. are available for the posting of
noncontroversial items by employees. Any item desire to
be posted must be submitted to the Human Resources De-
partment for approval.

There was one bulletin board designated for employee use in
the cafeteria and there is no dispute that employees had access
to this board for posting personal notices,10 a policy that con-
tinued after the filing of the petition. At some point it appears in
late November, and after the November 16 petition filing, em-
ployee Franklin Woolf attempted to post some prounion litera-
ture on this bulletin board. For several days running, Woolf
would post the literature on the bulletin board in the morning,
and when he returned to the facility in the afternoon after com-
pleting his work in the field the materials would have been
taken down. He assumed it was done by employees who were
not sympathetic to the Union, and he actually saw on one occa-
sion an employee take the materials down, though Woolf did
not make an issue of it.
After several days of this ritual, Woolf decided to repost the
documents in the afternoon when he returned after finishing his
route. After doing so, he was told by the dispatcher, William
Black, that this was not permitted.11 Woolf informed Black he
was not going to remove what he had posted and proceeded to
take a seat in the cafeteria. Within a few minutes Joseph Mur-
phy, company vice president and plant general manager,
walked into the cafeteria accompanied by several members of
supervision.
There is agreement that after entering the cafeteria Murphy
instructed Woolf that he could not post his union literature on
the employee bulletin board. While there is general accord as to
what happened next, the two protagonists retold the story with
marginally different emphases. Woolf acknowledged that he
immediately took exception to this directive and questioned
Murphy why he had been able to post other items on the bulle-

10 Typical of such postings were notices concerning the sale of items
such as pets, automobiles, and household products as well as an-
nouncements of picnics and candy sales.
11 The parties could not agree as to Black’s employee status but it is
an issue that does not have to be resolved in light of what subsequently
occurred in the cafeteria.
tin board. Murphy, at that point, took the literature off the bul-
letin board, whereupon an obviously agitated Woolf told him
to:

Go, ahead, f—king rip it down. I’ll turn around and put an-
other one back up there. He said, we’re going to write you up
for insubordination. I said, you do what you want. I said, I am
on my own time, doing my—the things the way I’m supposed
to do it, by the book, and you’re giving me a hard time about
it.”12

By Woolf’s account, the episode ended with Murphy walk-
ing off. No discipline was ever received but he never again
attempted to post his campaign matter on the board. In Mur-
phy’s version, after he told Woolf he could not place his mate-
rial on the bulletin board, he received the response that Woolf
would hang the material “some other f—king place”13 and then,
his inquiry whether Woolf was finished with work that day was
met with a reply that Woolf was “waiting for his f—king
ride.”14 This language prompted Murphy to caution Woolf that
he was getting close to being considered insubordinate where-
upon Woolf encouraged Murphy to “write me the f—k up and
I’ll sign it.”15 To defuse the situation, Murphy then walked off
and no discipline issued. It does appear that several other em-
ployees were present during the exchange between Murphy and
Woolf.16
It was Murphy’s testimony that at all times, both before and
after the campaign, he was guided by the language in the em-
ployee handbook and removed “controversial” materials from
the employee bulletin board. Unrelated to the issue of the union
campaign, he recalled that on occasions prior to the filing of the
petition, he removed materials that he considered marred by
inappropriate sexual references. During the campaign, he inter-
preted employer policy as meaning any document “pro” or
“anti” union was controversial and would remove literature
from either perspective. He gave the specific example of re-
moving several “anti” pieces of literature that identified Woolf
as a union leader and targeted him as object of derision. Mur-
phy made clear that the policy was not extended elsewhere in
the lunch area where campaign literature was frequently in
evidence. The testimony is inconclusive, however, whether
campaign literature was regularly distributed in the cafeteria,
though certainly there is no evidence to suggest management
extended its ban to this area, apart from the bulletin board, and
it appears that at least some materials were left in this area.
There is support as to Murphy’s point that the employee bulle-
tin board was off limits to both sides for campaign purposes.17
In terms of analysis, there is simply no way that the section
XIV of the employee handbook both as written and as admit-
tedly applied by Murphy can pass statutory muster. It has long
been held that an employer violates the Act if it prohibits “the
posting of material relating to and in the course of concerted
activity of its employees, while having previously allowed the
posting of other miscellaneous matters by the employees.” Vin-
12 Tr. 20.
13 Tr. 238.
14 Tr. 238.
15 Tr. 239.
16 Woolf identified three employees by name who were present, and
believed there were others as well. Murphy just recalled that there were
a “number” of employees present (Tr. 239).
17 See Woolf’s testimony, Tr. 40.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
cent’s Steak House, 216 NLRB 647 (1975). See also Benteler
Industries, 323 NLRB 712 (1997); Eaton Technologies, Inc.,
322 NLRB 848 (1997); and Central Vermont Hospital, 288
NLRB 514 (1988). The Employer’s motivation in this regard,
no matter how well meant, is irrelevant. Honeywell, Inc., 262
NLRB 1402 (1982). It is also irrelevant as to how the Employer
treats antiunion literature, once it is established that other em-
ployee notices are treated disparately from prounion notices.
Ford Motor Co., 315 NLRB 609, 615 (1994); Stanley Furniture
Co., 244 NLRB 589 (1979).
While agreeing with the Petitioner as to the validity, or lack
thereof, of the policy, I do take issue with its view that the bul-
letin board policy changed during the critical period. I would
credit Murphy’s very logical testimony that he consistently
applied the rule to materials he deemed controversial, not being
until November 1998 that he had to apply the guideline to un-
ion campaign material. All this means, however, that the Em-
ployer cannot be found to have engaged in objectionable con-
duct by changing its policy on bulletin board access. It does not
alter the fact that the policy both facially18 and as practiced
constituted an improper infringement on the rights of employ-
ees to engage in Section 7 activity. This is the type of denial of
employee access to an important medium of communication
during a campaign that has been considered objectionable by
the Board. Ford Motor Co., supra, at 615; Bon Marche, 308
NLRB 184 (1992).19 I would, therefore, find both the existence
as well as the enforcement of the policy as justification for
setting aside the election.
This finding is only strengthening by the threat of discipline
directed at Woolf when he objected, albeit inelegantly, to Mur-
phy’s edict on bulletin board access.20 The Employer’s posi-
tion is that Murphy only raised the possibility of insubordina-
tion in response to Woolf’s use of profanity. The profanity,
however, was inextricably bound up in Woolf’s protest, and
cannot be separated from the protected nature of this activity.
The expletives used by Woolf did not remove his provoked
outbursts from the Act’s protection. Health Care & Retirement
Corp. of Americas, 306 NLRB 63 (1992); Coors Container
Co., 238 NLRB 1312, 1320 (1978). For these reasons, the

18 Even if the issue of enforcement had not been joined, the wording
of the clause, while not specifically prohibiting the posting of protected
literature limits the postings to “noncontroversial items” a phrase that is
unnecessarily ambiguous and could restrain employees in the exercise
of protected rights. Ford Motor Co., supra at 610.
19 In Bon Marches, the Board goes to some length to distinguish an-
other case, Heartland of Keyser, 275 NLRB 168 (1985), that bears at
least a passing resemblance to the instant set of facts in that the Em-
ployer practiced an even handed policy towards prounion and antiunion
literature. The Board noted, however, that in Heartland the employer
did not change its policy in response to the campaign and there were no
other meritorious objections, two distinctions from Bon Marche. In this
case, while the Employer may not have changed policy as a conse-
quence of the campaign, it did engage in other objectionable conduct.
Further, in Heartland, the “evenhanded” policy was initially to remove
union and nonunion literature from the bulletin board, and then, 3
weeks before the election, the policy changed to allow both types of
propaganda to remain on the bulletin board for 3 or 4 days. Obviously,
this is different from the total ban placed on such literature here, with
another critical difference being that the Heartland policy was found to
be a valid rule by the Board, and no such blessing could be given to this
Employer’s sec. XIV.
20 For purposes of this discussion, Murphy’s version will be that
credited though I would find that the distinctions between the two ac-
counts are without substantive difference.
threat to find Woolf insubordinate was further conduct by the
Employer that would warrant setting aside the election, espe-
cially where there the threat was made in the presence of addi-
tional employees. In view of the foregoing, while I recommend
that Objection 3 be overruled, I recommend that Objections 2
and 10 be sustained.
OBJECTION 6
Objection 6 is based on a complex chain of events raising al-
legations of surveillance, threats of discharge, and other forms
of prohibited interference. It was all precipitated by the Em-
ployer’s distribution of a piece of campaign literature a few
weeks before the election. It appears that the Employer regu-
larly distributed to its employees literature at work and, in the
case of their drivers, would in the morning place the distribu-
tions on their clipboards along with route assignments. Regard-
ing the literature at issue, it was postcard size and carried a
rather commonplace Employer message that the real reason a
union wanted employee support was to gain their dues money.
It is not the wording on the card that Petitioner excepts to.
Rather, it was the fact that one of the supervisors, Ron
McClain, placed the initials of all the employees in the recy-
cling division on the cards he distributed.21 These initials were
written in pencil, in approximately the same size as the type
face, just above a “Vote No” imprint that appeared on the bot-
tom of the card. One of the Petitioner witnesses, Paul Trueman,
testified that he did not happen to see his initials on the card
when he went to the dispatch room to get his clipboard on the
date in question. He did read the card and apparently was not
persuaded as he wrote on it “F—k You” and “Teamsters, Vote
Yes.” Trueman then stated that he threw the card on the floor as
he had seen others do.
Trueman then returned to his truck to prepare for the day’s
activities. Shortly thereafter, McClain approached and told him
he was fired as he defaced a piece of campaign literature.
McClain also said that he knew it was Trueman because the
soiled card bore his initials. While Trueman believed McClain
did not have the authority to terminate him, he testified that
McClain went on to say that he was going to take it to Chuck
Jewel, a higher management official, and that Jewel was going
to fire him over it. Trueman told McClain that he could not
discharge him and the conversation appeared to end. Trueman
performed his route that day, and continued to work with the
incident never being raised again by anyone from management.
He identified three other employees who were present during
his exchange with McClain, one of whom was David Rice.
Subsequently, that morning, it appeared that Rice went to
another employee, Rhonda Frable, and told her about the cards
being initialed. She also appeared to have learned of the threat
to Trueman, though it is not clear whether he told her this, or if
she heard it from Rice. Frable, like Trueman, had received the
“vote no” card that morning but did not realize that it was
marked with her initials. After talking to Rice she became con-
cerned as she had left hers on a table in the dispatch room.
Frable’s testimony was that she then went inside the cafeteria
area, which adjoins the dispatch room. She saw a number of
employees sitting at a table going through the cards, passing
comments such as “this one is fired, that one is fired. This one
is going to go. I can’t wait to screw this one.”22 She then ap-
21 It appears that approximately 2 dozen employees were under his
supervision and may have received the initialed cards.
22 Tr. 70.
WASTE MANAGEMENT, INC. 637
proached the table and attempted to grab the cards but was
stopped by Supervisor Terry LaRose who was also sitting
there.23 It appears that LaRose and Frable commenced a heated
discussion with LaRose expressing concern over some recent
newspaper articles that had appeared locally. Frable noted that
LaRose was upset because employees had made the campaign
public business and asked insistently “who wrote the article”24
and threatened that “they were going to be fired also.”25 At
some point Frable left, never having found her card.
The Employer did offer Terry LaRose as a rebuttal witness
to at least as to some of the allegations raised by the objection.
He acknowledged that he was in the cafeteria when Frable en-
tered and that she was clearly upset. He remembered that she
started screaming as to the whereabouts of her card and that she
found it in the trash. She then, as he remembered, confronted
him about the initials and how the Employer was unfair.
LaRose countered by telling her he thought it was unfair for the
Union to take their issues to the newspaper. He was referring to
two articles that had appeared in the local press, one of which
was entered by the Employer as an exhibit. He denied having
asked who wrote the articles, and denied making any attendant
threats of discharge. He stated that there would have been no
reason to inquire as to the author as the employee source was
mentioned in the body of the story. LaRose further went on to
explain that he realized it was McClain who had placed the
initials on the cards, as the initials were those only of employ-
ees under his supervision. He claimed that he later spoke to
McClain about it and was given the explanation that it was
done only to make sure that everyone got the information. As
for McClain, he was not called to testify.
It is the Petitioner’s argument that the Employer engaged in
some form of surveillance and/or polling by distributing anti-
union literature bearing employee initials. It cites Circuit City
Stores, 324 NLRB 147 (1997), for the proposition that an em-
ployer may not issue antiunion paraphernalia or materials in a
manner that pressures the employee to make or reject the em-
ployer’s proffer thereby revealing their union sentiments. In
that case the employer offered coffee mugs to employees im-
printed with the words “Vote No” and “Just Vote No.” Em-
ployees were placed in the situation where they would reasona-
bly believe that a refusal to accept a mug would be construed as
a rejection of the employer’s campaign position.
The facts under review are distinguishable from the Circuit
City line of cases. Here, the Employer distributed the “vote no”
cards to all employees and did not ask for them to be returned
or exhibited in some manner that would have established em-
ployee preferences. Perhaps McClain was ill advised to place
employee initials on the material but to find a violation one
would have to ascribe to McClain the almost divine foreknowl-
edge that employees would throw these cards over the floor,
leaving a telltale trail. I cannot reach such a conclusion, espe-
cially where the employees were under no compulsion to leave
these cards behind.26

23 She did not hear LaRose make any of the comments regarding the
future of the employees who had left their “vote no” cards behind.
24 Tr. 72.
25 Tr. 79.
I also find that no objectionable conduct occurred in the dis-
patch or cafeteria areas. Frable was clearly agitated that morn-
ing, and her recollection of the events was very disjointed. Her
testimony that LaRose pressed her for the name of the writer of
the newspaper article made little sense. It would not have, of
course, been written by an employee, and, moreover, the source
appeared clear from the text. In contrast to Frable, LaRose was
a very impressive witness who candidly admitted being per-
turbed by the publicity that the Union had generated in the
newspapers. His denials as to questioning her about who wrote
the pieces, and as to making any threats of discharge, had the
ring of truth. I do not credit Frable, therefore, regarding any of
the observations she made regarding the events in the cafeteria
and dispatch area. All related objections would therefore fall,
including the allegations that Frable was interrogated about the
newspaper articles, that LaRose threatened the source of those
articles with discharge,27 and Petitioner’s claim that LaRose
“stood mute” while other employees reviewed the “vote no”
cards and designated which of the employees who returned the
cards would be discharged.28
As for the threat directed at Trueman, even the Employer
does not attempt to dispute the accuracy of his account. Rather,
it takes the position that McClain lacked the authority to fire
Trueman, ergo, no threat was made. Based on Trueman’s testi-
mony, and that is the only evidence of record in this regard, it
does appear that McClain by himself lacked the authority to
terminate him. However, Trueman’s testimony left the distinct
impression that McClain, a stipulated supervisor, was able to
effectively recommend such action to Chuck Jewel, another
management official, and the Employer did not attempt to rebut
this impression. Whether McClain could discharge solely on his
own initiative or whether he could only effectively recommend
such action is of little moment as he was still a supervisor
threatening the workplace’s version of capital punishment in
retaliation for Trueman’s crude, but protected, expression of
union sympathy. It was also a threat made in the presence of
several other employees with at least some dissemination. As a
threat of discharge is highly coercive and one of the most seri-
ous forms of employer misconducts,29 I would recommend that
while all other portions of this objection be overruled, Objec-
tion 6, to the extent it relies on the threat made to Trueman, be
sustained.
26 See Jefferson Stores, Inc., 201 NLRB 672 (1973), a case that also
involved the distribution of “vote no” cards which the Board found to
be noncoercive and not a basis for setting aside an election.
27 I do not have to reach under these circumstances the question as
whether the conversation between Frable and LaRose concerning the
newspaper article, conduct not specifically alleged as objectionable,
was reasonable encompassed within the scope of the objections set for
hearing.
28 Even if I had been more inclined to credit her testimony, Frable
failed to conclusively establish whether LaRose or any supervisor heard
employees make these observations.
29 NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980).