NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,591, WASTE STREAM MANAGEMENT, INC. and its wholly owned subsidiary CBI STEEL, INC. and TEAMSTERS LOCAL UNION NO. 687, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO., (Dec. 22, 1994), National Labor Relations Board, (Dec 22, 1994)

WASTE STREAM MANAGEMENT, INC. and its wholly owned subsidiary CBI STEEL, INC. and TEAMSTERS LOCAL UNION NO. 687, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO.

315 NLRB No. 133.Case Nos. 3-CA-16245 and 3-RC-9695. December 22, 1994 Jesse Kleiman, Administrative Law Judge..

Before Gould, Browning and Cohen.

Thomas J. Sheridan and Robert A. Ellison, for General Counsel. Daniel S. Cohen (Evans, Bankert, Cohen, Lutz & Panzone), for Respondent. Christy Concannon (Baptiste & Wilder, P.C.), for Charging Party. [1]

Interference--Coercive Remarks--Employer’s Preelection Conduct.--During a period that immediately preceded a union representation election, an employer interfered with its employees’ right to conduct a free and fair election by committing numerous unfair labor practices. These coercive acts included interrogating employees regarding their union activities, soliciting grievances and implying that it would remedy them, soliciting employees to sign an antiunion petition, promising benefits if the union lost the election, telling employees that they were being singled out for disparate treatment because of their union support and threatening to close its facilities if the union won. Section 8(a)(1).

Back reference: ¶3770.082.

Discrimination--Antiunion Motives--Coercion During Election.--In an attempt to dissuade its employees from voting for a union during a preelection period, an employer committed unfair labor practices that discriminated against union supporters. These coercive acts included imposing more onerous working conditions on a unionist and terminating five employees because they joined or supported the union in its organizing efforts. Section 8(a)(3).

Back reference: ¶4010.408.

Agents--Fact Finding--Scope of Authority.--On the facts, an employee was an agent of an employer because he continued his antiunion petition activity after he became an assistant supervisor. Further, employees were under the impression that management would know if employees signed the supervisor’s antiunion petition and the supervisor used a computer printout provided by management to assist in his antiunion solicitation efforts. Section 2(3).

From Text of Board’s Decision

The administrative law judge in this case has found that the Respondent committed numerous violations of section 8(a)(3) and (1) of the Act during the first 4 months of 1991 and that it interfered with employee free choice in a representation election held on April 5, 1991. [2] The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [3] and conclusions, [4] as modified below, and to adopt the recommended Order, as modified.

I. Agency Status of William Henry

The judge found that the Respondent violated Section 8(a)(1) of the Act, and engaged in objectionable preelection conduct, when William Henry solicited employee signatures on an antiunion petition. According to the judge, Henry as a nonsupervisory employee who had actual and apparent authority from management to engage in such activity on the Respondent’s behalf. In so finding, the judge relied on several evidentiary factors, including: Henry’s continued petition activity after he became a full-time, nonsupervisory assistant to admitted Supervisor Michael Bisnett in mid-March 1991; the credible testimony of employee Mark Rood indicating his impression that management would know if he signed Henry’s petition; and the credible testimony of employee Verde Snyder that Henry used a computer printout which the administrative law judge inferred must have been provided by the Respondent to assist Henry’s solicitation efforts.

We agree with the judge that Henry acted as the Respondent’s agent, but we do not rely on the factors enumerated above. Although Henry’s full-time performance of duties as Bisnett’s assistant would support an agency finding, there is no affirmative evidence that he solicited signatures for the antiunion petition after he assumed these duties. Rood’s testimony indicates only a subjective belief which, even if correct, does not itself prove Henry’s agency. Finally, there is insufficient evidence about the nature or origin of the computer printout to warrant the inference that the Respondent must have provided it to Henry to facilitate the petition drive. We nevertheless agree with the judge, for the other reasons fully described in his decision, that Henry acted as the Respondent’s agent in the unlawful solicitation of signatures for the antiunion petition.

II. Impression of Surveillance

The judge also referred to several factors in support of his finding that the Respondent violated Section 8(a)(1) of the Act by creating the impression that its employees’ union activities were under surveillance. One of those factors was Rood’s aforementioned testimony about his subjective impression of surveillance. We do not rely on this evidence. Another factor was employee Harold Bush’s testimony about an occasion in late March or early April when supervisor Bisnett repeatedly said to him, “Yoo hoo, Harold, I’m watching you.” We likewise do not rely on this factor as proof of the alleged unfair labor practice because the record does not provide a sufficient context for Bisnett’s statements to warrant the inference that they were related to employees’ union activities. The remaining factors cited by the judge fully support his finding of unlawful conduct.

III. Discharge of Robert Monroe

The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by terminating driver Robert Monroe and redistributing his route to drivers Michael Miller and Robert Perry. We do not rely, however, on the judge’s use of the Wright Line [5] test of discriminatory motivation or on his use of the “small plant doctrine” to infer prior knowledge of Monroe’s union activity. The theory of violation alleged here does not require proof of discrimination aimed at the discharged employee or knowledge that the discharged employee engaged in protected concerted activity. Instead, the legal question presented is whether the Respondent’s conduct would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their rights under Section 7 of the Act.

In this regard, the Respondent’s discharge of Monroe and its redistribution of his route to Miller and Perry in March 1991 closely resembles an unlawful action undertaken by the Respondent 2 months earlier when it permanently laid off employee Eugene Prashaw and redistributed his route to employees Impanel Guiles and Edward Law. [6] In both instances, the route redistribution represented a substantial benefit to a pair of employees who, prior to the advent of the Union, had repeatedly made unavailing complaints about having to perform part of the work of a third employee whom the Respondent ultimately terminated. In both instances, particularly in light of the Respondent’s other unfair labor practices, employees would reasonably tend to view the discharge and route redistribution action as an attempt by the Respondent to redress previously ignored grievances and to confer benefits in order to dissuade employees from supporting the Union. The Respondent has not proved a legitimate and substantial business justification for its conduct. Accordingly, such conduct violates Section 8(a)(1) of the Act. [7]