WB SERVICES LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 9, 2012

04-CA-077889 (N.L.R.B. Nov. 9, 2012)

JD–63–12
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WB SERVICES, LLC
And Case No. 4-CA-077889
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 542,
AFL-CIO
David Rodriguez and Henry Protas, Esqs.
for the General Counsel.
Paul Ordynski, Pro Se,
for the Respondent.
Louis Agre, Esq .(Fort Washington, Pennsylvania)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on September 19, 2012. The Charging Party, Local 542 of the International Union
of Operating Engineers filed the charge on March 30, 2012. The General Counsel issued the
complaint on July 18, 2012. The General Counsel alleges that Respondent, WB Services, LLC,
discharged its employee, Herminio Rivera, on March 16, 2012 because he engaged in union
activities. Thus the General Counsel alleges that Rivera’s discharge violates Section 8(a)(3) and
(1) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party
make the following
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2
FINDINGS OF FACT
I. JURISDICTION
Respondent, WB Services, LLC, transports waste in Pennsylvania and Delaware and 5
other states. It annually purchases and receives goods at its Philadelphia, Pennsylvania facility
valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union,
International Union of Operating Engineers, Local 542, is a labor organization within the
meaning of Section 2(5) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
In August or early September 2011 the Union began an organizing drive at WB Services’
Philadelphia facility. On September 11, it filed a representation petition. A representation 15
election was conducted on about October 21, 2011. The Union won this election by a vote of 19-
6, and was certified as the exclusive bargaining representative of a unit of Respondent’s
employees, which included drivers of Respondent’s trucks.
The Union submitted a request for information to the Respondent on November 1, 2011, 20
GC Exh. 5. Among the items requested were the names of all current employees, the date of the
completion of any probationary period and any records of discipline. Respondent provided this
information on February 28, 2012, after the Union had filed an unfair labor charge alleging a
violation of Respondent’s duty to bargain with respect to the information request.
25
The Union and Respondent began collective bargaining negotiations on December 14,
2011. As of September 19, 2012, approximately 12-15 bargaining session had been held but the
parties had not reached agreement on a collective bargaining agreement. Respondent in its brief
states that the parties reached agreement on a contract on October 26, 2012 and that unit
employees ratified the agreement on November 1, 2012. I take this representation at face value 30
although it is not record evidence.
On December 5, 2011, Herminio Rivera began working for Respondent as a truck driver.
Rivera had previously belonged to a Teamsters Local. He contacted Local 542 Organizer Frank
Bankard in January offering to serve as a conduit between the Union and Respondent’s 35
employees, particularly those whose principal language is Spanish. Rivera and Bankard
discussed scheduling a meeting between bargaining unit members and Local 542 representatives.
Respondent’s February 28 response to the Union’s information request indicated that
Rivera’s probationary period would expire on March 4, 2012. It also indicated that Rivera had 40
received only one discipline warning, for being late to work on February 21, 2012.
On March 10, 2012, the Union held a meeting, as discussed previously by Rivera and
Frank Bankard. Rivera distributed flyers to at a landfill and the yard to which the drivers
reported, informing other unit employees of the meeting. There is no direct evidence that 45
Respondent was aware that Rivera was distributing these flyers. Ten to twelve employees
attended the meeting, including Herminio Rivera. During the meeting Rivera translated some
JD–63–12
3
material into Spanish. There is no evidence that Respondent was aware that Rivera attended the
meeting.
On March 13, Liz Buckley, an administrative employee of Respondent, sent an email to
Respondent’s Chief Financial Officer, Paul Ordynski, GC Exh. 3. In this email, she noted that 5
Herminio Rivera’s probation was up on March 4, so that he should not be paid as a probationary
employee. However, she noted, “Rafael [Bulawa, Respondent’s maintenance manager] does not
want to remove him from probation yet. I don’t want us to have issues going forward because of
this, is that ok?”
10
There is no evidence that Paul Ordynski responded to Buckley. There is also no evidence
that Respondent in fact extended or put Rivera back on probation.
Respondent scheduled a safety meeting for the late afternoon on Friday, March 16, 2012
at its facility. It invited several union representatives to attend this meeting. The union 15
representatives arrived at Respondent’s facility at about 4:20 p.m. At about 4:45 Herminio
Rivera approached the union representatives and engaged them in conversation. Respondent’s
Chief Financial Officer, Paul Ordynski, observed Rivera talking to the union representatives.
The safety meeting started shortly after 5:00 p.m. 20-25 of Respondent’s drivers, four 20
representatives of the Union, and four members of management attended the meeting. When
seated in Respondent’s conference room, Bart Houck, who was to service Respondent for the
Union, offered the drivers union stickers. Rivera was the first employee to take one.
Paul Ordynski conducted the meeting and discussed the need for drivers to wear seat 25
belts. Rivera translated some of what Ordynski into Spanish. The meeting may have lasted as
long as an hour to an hour and a half.
As soon as the meeting ended, Ordynski went to his office and summoned Rivera. Rafael
Bulawa, Respondent’s maintenance manager, was also in the office. Ordynski was aware that 30
Bulawa had suggested extending or reinstating Rivera’s probationary period. Bulawa repeated
that suggestion after the safety meeting on March 16. However, Ordynski told Bulawa he was
going to terminate Rivera’s employment instead.
When Rivera arrived at the office, Ordynski fired him and refused to give Rivera a reason 35
for his termination.
We called him in the office. I told him he was terminated. He asked me why. I
said because you’re on probation and therefore there doesn’t have to be a reason why.
He pressed me why. He asked Rafael why. Rafael said it’s Paul’s decision. He 40
pressed me why again. I said you’re on probation. We don’t—I—at that point I didn’t
really know the reason why, because I hadn’t even looked in Herminio’s personnel file.
I really knew what was—nothing that was going on. All I knew was that his
probation was going to be extended. I didn’t think that made sense. So I made the
decision to terminate him. 45
JD–63–12
4
Tr. 157.1
Later on the evening of March 16, union representatives went to dinner with
representatives of management. Prior to going to dinner, Paul Ordynski reviewed Rivera’s
personnel file for the first time, Tr. 158-59.2 At dinner union organizer Frank Bankard asked 5
Ordynski why he fired Rivera. Ordynski told Bankard that Rivera had had an accident. Bankard
responded that Respondent did not provide information regarding an accident in its February 28,
2012 response to the Union’s information request. There was also some discussion as to whether
Rivera’s probationary period had ended.
10
On March 20, four days after Ordynski fired Rivera, Ordynski sent the Union an email
with several attachments. One was a handwritten note purporting to be a record of Rivera’s
tardiness between January 24, 2012 and March 9, 2012. This note listed 18 instances of
tardiness, but indicated that Respondent issued Rivera a warning on only one of these occasions.
The note also listed a no call/no show on February 27, 2012.3 Respondent also attached an 15
unsigned notice referencing this alleged violation. There are no similar notes for other drivers
despite the fact that if they exist they would have had to have been produced pursuant to the
General Counsel’s and Union’s subpoenas. Based on this fact, I infer that such notes were
prepared only for Rivera.
20
Also attached to the email was a notification signed by Rivera regarding an incident in
which he backed into another vehicle on January 10, 20124 and a notification/verbal warning
about going to a site in Delaware to which he had not been dispatched. Respondent’s
dispatcher, Mohammed Diawara, prepared the list of tardiness instances at the request of Paul
Ordynski. While Diawara could not recall the date that the list was prepared I infer that it was 25
prepared after Ordynski fired Rivera, GC Exh. 11, Tr. 193.
None of the information attached to the March 20 email was produced by Respondent in
its February 28, 2012 response to the Union’s November 1, 2011 information request. Finally, I
credit Herminio Rivera’s uncontradicted testimony that management, in the person of 30
Mohammed Diawara, spoke to him about being tardy on only one occasion, Tr. 167.5 Diawara
complained to his superior, Rafael Bulawa, only once about Rivera being tardy, Tr. 214.

1 Although it is not clear from the record, Ordynski apparently works in Chicago. He flew to
Philadelphia the afternoon of March 16, to attend the safety meeting.
2 I do not credit Paul Ordynski’s testimony at Tr. 159 that he discovered that Rivera had been late a
number of times when he reviewed Rivera’s personnel file on March 16. There is no evidence that there
was any documentation other than the February 21 warning in Rivera’s file on March 16. The list of
other occasions of tardiness in G.C. 11 was prepared by Mohammed Diawara afterwards, Tr. 193.
Respondent’s brief also suggests that Ordynski did not know that the employee who Ordynski
observed talking to union representatives prior to the meeting, translating for the Spanish employees and
requesting the union sticker was Rivera. I infer that Ordynski did know this before he fired Rivera.
3 If a driver calls in after his shift has started, Respondent considers this to be a no call/no show, Tr.
190-91.
4 This incident was sufficiently inconsequential that Diawara, who gave the written notification to
Rivera, could not remember any specifics regarding the accident, Tr. 188.
5 I also credit Rivera’s testimony that he called Diawara before his arrival at work to tell
Diawara that he would be late.
JD–63–12
5
Respondent recalled Herminio Rivera to work in August 2012, apparently without paying
him backpay for the five months he was apparently out of work. Moreover, this case is far from
moot due to the possibility that Respondent will terminate Rivera again for discriminatory and
pretextual reasons.
5
Analysis
In order to establish a violation of Section 8(a)(3) and (1), the Board generally requires
the General Counsel to make an initial showing sufficient to support an inference that the alleged
discriminatee’s protected conduct was a ‘motivating factor’ in the employer’s decision. Then the 10
burden shifts to the employer to demonstrate that the same action would have taken place even in
the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983); American Gardens Management Co., 338 NLRB 644
(2002). 15
The General Counsel’s initial showing usually requires him to prove that (1) the
employee was engaged in protected activity; (2) the employer was aware of the activity; and (3)
that animus towards the protected activity was a substantial or motivating reason for the
employer’s action. The National Labor Relations Board may infer discriminatory motive from 20
the record as a whole and under certain circumstances, indeed not uncommonly, infers
discrimination in the absence of direct evidence.
There is no question that Herminio Rivera engaged in union activity by talking to union
representatives before the March 16, 2012 meeting and asking or accepting the offer of a union 25
sticker. Respondent knew of this activity in that it occurred right in front of management,
including Paul Ordynski, who made the decision to fire Rivera immediately after the meeting.6 I
infer animus and discriminatory motivation from the timing of Rivera’s discharge and the
absence of any credible nondiscriminatory explanation. Montgomery Ward & Co., 316 NLRB
1248, 1254 (1995).7 30
The fact that Respondent, by Rafael Bulawa, was considering extending or reimposing
Rivera’s probationary period, but that Ordynski terminated Rivera instead, is critical evidence
that Ordynski knew that it was Rivera who engaged in union activities in his presence. It is also

6 At page 2 of its brief, Respondent states that Paul Ordynski had no knowledge of Rivera’s union
activities when he discharged Rivera. Talking to union representatives, participating in a meeting with
union and employer representatives and accepting a union sticker are activities protected by the Act.
Ordynski asserts he did not know that the employee who did these things in front of him was Rivera. I
find that he did know this when he terminated Rivera’s employment. For one thing, as the General
Counsel points out, Rafael Bulawa did not corroborate Ordynski’s testimony that Bulawa had to point
Rivera out to him.
7 I reject Paul Ordynski’s testimony that he was planning to terminate Rivera prior to the March 16
meeting. There is no documentation of such a decision, such as, for example, a response to Liz Buckley’s
March 13 email, or instructions to Rafael Bulawa to terminate Rivera. None of Respondent’s other
managers were aware of Ordynski’s alleged plan to discharge Rivera prior to the March 16 meeting.
Bulawa, in fact, argued for extending Rivera’s probationary period after the March 16 safety meeting.
Moreover, the termination occurred after Ordynski witnessed Rivera’s union activities.
JD–63–12
6
evidence of his animus towards Rivera’s union activities and discriminatory motive in
Ordynski’s termination of Rivera.
In this regard, GC Exhibit 7 indicates that Respondent kept a number of employees on
probation beyond 90 days of their hiring date. The decision to terminate Rivera, instead of 5
extending his probationary period, constitutes disparate treatment compared to employees who
were not known to have actively engaged in union activities. In the absence of a explanation of
why Rivera was treated disparately, I infer Ordynski’s knowledge of Rivera’s union activities,
animus towards them and discriminatory motive in terminating Rivera, New Otani Hotel &
Garden, 325 NLRB 928 fn. 2 (1998); Fluor Daniel, Inc., 304 NLRB 970 (1991); Citizens 10
Investment Services Corp., 342 NLRB 316, 330-331 (2004).
To the extent the Respondent put forth an alternative explanation, I find it to be pretextual
and therefore additional evidence of animus and discriminatory motive, LaGloria Oil & Gas Co.,
337 NLRB 1120, 1223-24 (2002). Virtually all of Paul Ordynski’s justification for Rivera’s 15
discharge is based on facts or alleged facts of which he was unaware at the time of the
discharge.8Thus, having already found that the General Counsel has made an initial showing of
discrimination, I conclude that Respondent has not met its burden of proving that it would have
fired Rivera in the absence of his union activities.
20
Whether or not Rivera was still a probationary employee or not at the time of his
discharge is irrelevant to the resolution of this case. It is just as much a violation of Section
8(a)(3) and (1) to discharge a probationary employee for union activity as it is to discharge a
non-probationary employee, Montgomery Ward & Co., 316 NLRB 1248, 1249 n. 10 (1995).
25
Conclusion of Law
By discharging Herminio Rivera on March 16, 2012, Respondent violated Section 8(a)(3)
and (1) of the Act.
30

8 In addition to the evidence specifically pertaining to Herminio Rivera’s discharge there is other
uncontradicted evidence establishing Respondent’s animus towards union supporters. However, the
evidence of discriminatory motive directly relating to Rivera’s discharge is so compelling, I need not rely
on evidence pertaining to other employees in order to decide this case. One example is the uncontradicted
testimony of Noah Melton that agents of Respondent let the air out of his truck tires in retaliation for his
support of the Union, Tr. 143. Another example is Frank Bankard’s uncontradicted testimony that Paul
Ordynski told him that Ordynski fired employee Elijah Lebron because Lebron told other employees that
the Union had been responsible for his being able to take his vacation, Tr. 148.
As noted in the General Counsel’s brief, Respondent’s discriminatory motive is not disproved by the
absence of evidence of discrimination against other union supporters, Audubon Regional Medical Center,
331 NLRB 374, 376 (2000). This particularly true in the instant case where Herminio Rivera’s union
activities were far more open and notorious than that of others who supported the Union. Furthermore, as
a probationary employee he was much more vulnerable to discriminatory treatment than employees who
had worked for Respondent for a longer period of time. Finally, since 19 drivers out of 25 voted for the
Union in the representation election, Respondent could probably not have operated its business if it took
discriminatory measures against all those drivers it suspected of supporting Local 542.
JD–63–12
7
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.5
The Respondent, having discriminatorily discharged Herminio Rivera, it must make him
whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River 10
Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub.nom., Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended915
ORDER
The Respondent, WB Services, LLC, Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns, shall20
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for supporting
Local 25
542 of the International Union of Operating Engineers, or any other union.
(b) 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.30
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Make Herminio Rivera whole for any loss of earnings and other benefits suffered as 35
a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Herminio Rivera in 40
writing that this has been done and that the discharge will not be used against him any way.

9 If 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.
JD–63–12
8
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order. 5
(d) Within 14 days after service by the Region, post at its Philadelphia, Pennsylvania
facility copies of the attached notice marked “Appendix”10 in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 10
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 15
altered, defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
March 16, 2012.20
(e) 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 that
the Respondent has taken to comply.
25
Dated, Washington, D.C., November 9, 2012
____________________
Arthur J. Amchan30
Administrative Law Judge

10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting
International Union of Operating Engineers, Local 542, or any other union.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
Having already reinstated Herminio Rivera, WE WILL make Herminio Rivera whole for any
loss of earnings and other benefits resulting from his discharge and subsequent unemployment,
less any net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful[discharge of Herminio Rivera and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not be used against him in any way.
WB SERVICES, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215) 597-5354.