Advance Waste Systems

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1020 (N.L.R.B. 1992)

1020
306 NLRB No. 208
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Teamsters International has been changed to re-
flect the new official name.
2 There were no exceptions to the judge’s recommendation that At-
torney Bochner be warned regarding his conduct at the hearing. A
warning is included in the Order, infra. Contrary to our colleague,
we are satisfied, on the basis of the record here, that this disciplinary
measure—which is precisely that recommended by the judge in
whose courtroom the conduct occurred—is sufficient.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 951). We have carefully examined the record and
find no basis for reversing the findings.
Assuming for argument’s sake that the General Counsel did estab-
lish a prima facie case with regard to employees Harris and Torres,
we agree with the judge’s finding that the Respondent met its burden
of showing that it would have discharged both those employees even
in the absence of any union or other protected activity. Similarly, in
the case of employee Martucci, even if the General Counsel estab-
lished a prima facie case, we find based on the credited evidence,
that the Respondent effectively rebutted it by showing that Martucci
would not have been rehired even in the absence of any union activ-
ity on his part. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
4 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.’’
Advance Waste Systems, Inc. and Private Sanitation
Union, Local 813, a/w International Brother-
hood of Teamsters, AFL–CIO1 and Vincent
Harris. Cases 2–CA–24382, 2–CA–24507, 2–
RC–20854, and 2–CA–24447
March 31, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On August 13, 1991, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
General Counsel and the Union filed exceptions and
supporting briefs, and the Respondent filed an answer-
ing brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions as modified and to adopt the recommended
Order as modified.
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act when Vice President Paul
Filipelli interrogated employee Vincent Harris about
the Union because the conversation occurred in an in-
formal setting, the two were friendly, and Filipelli did
not press the point. We disagree for the reasons set
forth below.
In April 1990, while driving a garbage truck,
Filipelli asked Harris how the Union was getting
along. Harris did not reply. Filipelli then stated that he
did not need the Union and that he was upset with em-
ployee Martucci for bringing in the Union.
Filipelli, the vice president, is one of the highest
ranking officials in the Company. He questioned Harris
one-on-one in a moving truck, and, contrary to the
judge’s finding, Filipelli did not drop the issue when
Harris remained silent. Rather Filipelli stated that he
did not need the Union and that he was upset with
Martucci because of his organizing effort.
We find, contrary to the judge, that under these cir-
cumstances Filipelli’s interrogation was unlawful. See
Rossmore House, 269 NLRB 1176 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985); Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Given
Filipelli’s high company rank, the place of the ques-
tioning in an enclosed, moving truck with no other in-
dividuals present, and the expression of hostility to-
ward the Union and disapproval of an employee’s or-
ganizing activity immediately following his question,
we find the interrogation coercive and therefore a vio-
lation of Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ad-
vance Waste Systems, Inc., Garrison, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about
their union activities and desires.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Garrison, New York facility copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
1021ADVANCE WASTE SYSTEMS
1 After the hearing closed, counsel for the General Counsel sub-
mitted a motion to amend the complaint in Case 2–CA–24382 to de-
lete par. 7(b) relating to an alleged promise of a wage increase. Gen-
eral Counsel’s motion is hereby granted. In addition, counsel for the
General Counsel withdrew in her brief the allegation that Respond-
Continued
IT IS FURTHER ORDERED that the remaining com-
plaint allegations are dismissed.
IT IS FURTHER ORDERED that the challenges to Har-
ris’ and Martucci’s ballots are sustained.
IT IS FURTHER ORDERED that Attorney Bochner is
warned that he must not interrupt counsel, the wit-
nesses, or the judge, that he must follow instructions,
and that a failure to comply at future hearings will re-
sult in sanctions being imposed by the Board.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Private Sanitation Union, Local
813, a/w International Brotherhood of Teamsters,
AFL–CIO, and that it is not the exclusive representa-
tive of the bargaining unit employees.
MEMBER RAUDABAUGH, dissenting in part.
I would not simply issue a warning. Rather, I would
issue a Notice to Show Cause why more severe sanc-
tions should not be imposed. In this regard, I note that
this is the second time that Bochner has engaged in ap-
parent misconduct. See De Jana Industries, Cases 29–
CA–14349, et al., Board order dated October 19, 1990.
(Bochner issued an apology, sanctions not imposed.) In
addition, based on the judge’s account in the instant
case, there is at least reasonable basis for a conclusion
that Bochner’s actions constituted aggravated mis-
conduct within the meaning of Section 102.44 of the
Board’s Rules. In these circumstances, I am not con-
tent with a mere warning.
My colleagues rely on the fact that the judge rec-
ommended only a warning. In my view, the Board
should show deference to the immediate efforts of the
judge to restore order in the hearing. Hence, I agree
that the judge acted properly in ousting Bochner from
the proceedings. However, there is a separate issue as
to what, if anything, should be done subsequently to
punish the alleged misconduct. In my view, that is a
responsibility of this Board. For the reasons indicated
above, I do not believe that a mere warning is suffi-
cient.
I also wish to express my disappointment con-
cerning the fact that counsels for the General Counsel
did not support, indeed they opposed, the judge’s re-
moval of Bochner from the proceedings. Concededly,
the General Counsel was on the same ‘‘side’’ as the
Charging Party in this case. However, counsels for the
General Counsel are also officers of this Board and
members of the Bar. As such, in my view, they had
an obligation to support, not oppose, the judge’s admi-
rable effort to restore decorum in the proceedings.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate you regarding
your union activities and desires.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
ADVANCE WASTE SYSTEMS, INC.
Mindy E. Landow, Esq. and David A. Pollack, Esq., for the
General Counsel.
Andrew A. Peterson, Esq., and Michael J. Stief III, Esq.,
(Jackson, Lewis, Schnitzler & Krupman), of White Plains,
New York, for the Respondent.
Stuart Bochner, Esq., of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on February 12, 13,
14, and 15, 1991. The complaint alleges that Respondent, in
violation of Section 8(a)(1) and (3) of the Act, interrogated
its employees, discharged its employee Peter Martucci, dis-
charged its employee Vincent Harris, and imposed more on-
erous working conditions on, and discharged its employee
Nestor Torres. The hearing on the unfair labor practice com-
plaint was consolidated with a hearing on challenges to the
ballots cast by Martucci and Harris in an election conducted
in Case 2–RC–20854 on May 18, 1990. Respondent denies
that it has violated the Act.1
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent eliminated the privilege of Torres to make personal stops during
the workday.
2 The reporting service delivered a record of the proceedings in
February 1991. Errors in the transcript have been noted and cor-
rected.
3 The chaser truck cannot be dumped without making use of cer-
tain equipment on the larger truck which is designed to lift and
dump the chaser truck container.
4 The record does not disclose what the Company does with the
residential refuse it collects on its normal Monday routes.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in April
1991, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a domestic corporation, with its principal of-
fice in Garrison, New York, is engaged in the operation of
a private sanitation company providing refuse collection
services and containers used for debris removal. Respondent
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Catherine DiSalvo, the owner and president of Respond-
ent, is married to Paul Filipelli, the vice president of the
Company. DiSalvo and Filipelli run the business from their
home. The company office is attached to their residence and
the garbage trucks are parked in an area near the house.
Filipelli has been in the refuse collection industry since the
age of 18 and has been a member of Local 813. DiSalvo’s
family was in the business as well.
The record establishes that DiSalvo purchased the Com-
pany in 1986. In February 1989, certain questions were
raised in the surrounding community relating to the proper
zoning of the property on which the business is conducted
and whether a refuse company could be conducted on the
property. Although a refuse collection business had been lo-
cated on the property for a number of years, the Company
was obliged to prepare and submit to the town planning
board a proposed site plan showing, inter alia, the various
uses to which the property would be put and limiting the ac-
tivities which could be carried on there. There was substan-
tial community opposition to the carrying on of a refuse
business at the Company’s location both on esthetic grounds
and due to fear of contamination of the ground water.
DiSalvo attended several meetings of the town planning
board beginning in November 1989, at which the Company’s
proposed site plan was discussed, public comments were re-
ceived, and changes were debated. The site plan was finally
approved by the town planning board in December 1990 or
January 1991. In order to obtain board approval of the site
plan, DiSalvo had to respond to a large number of objections
to the Company’s mode of running its business and DiSalvo
had to incorporate into the site plan her promises that certain
changes would be made and certain practices abandoned. The
planning board required numerous commitments by the Com-
pany; the two that are relevant to this proceeding related to
the storage of garbage in trucks on the company property and
the transfer of garbage from one truck to another on the
property.
In the conduct of its business, Respondent uses a large
garbage truck which is operated by a driver and a helper.
There is also a smaller truck, called a chaser or satellite
truck, which is operated by a single driver. The chaser truck
can maneuver into smaller spaces than the large garbage
truck and it can be driven over certain country roads that
would be difficult for a larger truck to negotiate. Since the
chaser truck has a limited capacity, it must dump its load of
refuse several times a day. This is done when the chaser
truck makes radio contact with the large truck and arranges
to meet it somewhere on its route in order to dump into the
larger truck.3 The routes for the large truck and the chaser
truck are coordinated so that the chaser can dump regularly
into the larger truck. Respondent owns a rolloff truck which
is used to deliver construction debris containers and pick up
the containers when they are no longer required. The rolloff
is operated by a single driver. Respondent also operates a re-
cycling truck, but the record does not contain details as to
its operation.
As is more fully discussed below, the record shows that
Filipelli drove the rolloff truck until a per diem rolloff driver
was hired in June 1989, that he drove other trucks when nec-
essary, that he did some work for the Company in the office,
and that he tried to sign up new customers for the business.
After the rolloff driver was hired, Filipelli had more time for
sales and for office work, although he continued to drive the
Company’s vehicles whenever necessary.
The large garbage truck and the chaser truck have daily
residential pickup routes. The rolloff truck is operated ac-
cording to customer demand, which fluctuates according to
construction industry activity as determined by the weather
and the economy. In addition to the scheduled residential
routes, the Company also performs ‘‘special’’ pickups for
customers who have a large item such as a sofa or refrig-
erator to be hauled away. A special pickup is scheduled
when the customer calls Respondent’s office and makes the
arrangements; tickets are posted next to the timeclock show-
ing the date and time of the special pickups. Since the local
landfill is closed on Mondays, the Company does not sched-
ule large special pickups for Mondays because extra expense
would be incurred if refuse had to be hauled to a landfill far-
ther away.4
Before the Company was involved in the site plan ap-
proval process before the town planning board, the chaser
truck would often transfer its load of refuse to the larger
truck while on the company property and in full view of any
passing townspeople. In addition, the chaser truck would be
left full of refuse overnight on the property. Both of these
practices came in for heavy criticism while Respondent was
seeking site plan approval from the planning board. DiSalvo
made repeated promises to the planning board and to com-
munity residents attending board meetings that garbage
would no longer be transferred on the property and that gar-
bage would no longer be stored on the property overnight.
The record shows that after DiSalvo made these promises,
1023ADVANCE WASTE SYSTEMS
5 The petition was filed on March 6, 1990.
members of the board and of the community observed Re-
spondent’s property and the conduct of its business and that
they complained if they saw refuse being transferred or
stored on the premises.
The first meeting of the planning board which DiSalvo at-
tended in connection with approval of the site plan took
place in September 1989. At a subsequent meeting, held on
November 16, 1989, questions were asked whether garbage
was stored on the property, and DiSalvo assured the board
that although it had happened in the past, garbage would no
longer be stored in trucks on the Company’s premises. At a
planning board meeting held on March 22, 1990, Respond-
ent’s site plan was discussed again. The chairman of the
planning board said that on March 13, he had watched gar-
bage being transferred on the property from a container into
a garbage truck and he stated that the truck was still on the
same spot at 5 p.m. The chairman stated that garbage was
still being transferred and stored on the Company’s premises.
DiSalvo responded that Respondent would not store garbage
in the trucks and that garbage would not be transferred on
the premises. She also agreed that other activities prohibited
by the site plan would not be carried out; these included
washing the trucks, performing maintenance and repairs, and
fueling trucks.
DiSalvo testified that the Company was entitled to take 1
year to bring itself into conformity with the site plan. At the
time of the instant hearing, there was still a fuel pump lo-
cated on the property to which diesel fuel was regularly de-
livered and at which the trucks used to fill up. In addition,
DiSalvo admitted that employees changed flat tires on the
Company’s premises, and added oil to the trucks. However,
DiSalvo maintained that the planning board was more con-
cerned that large overhauls not take place on the property
than it was with minor work.
According to DiSalvo, after the November 1989, planning
board meeting she told her employees that garbage could no
longer be stored or transferred on the company property.
DiSalvo testified that if garbage was stored on the property
after that time, it was because the garbage truck was out of
order and the chaser truck could not be dumped.
B. Alleged Interrogation and Discharge of
Vincent Harris
Vincent Harris testified that he worked for Respondent as
a part-time employee in 1986 and 1987. Harris stated that he
was called to fill in when employees Robert Brown and
Daryll Lassic were absent. Harris maintained that if he was
needed he would be called between 7 and 7:30 a.m. on the
day he was required to work. This occurred about once or
twice a week. Harris stated that he did not receive a weekly
salary, he was paid by the day. Sometime in 1987, Harris in-
formed Filipelli that he intended to return to school and that
he would be quitting. In the event, Harris quit but instead of
attending school he worked for a manufacturer. In March
1988, the Company hired Harris as a full-time helper on the
garbage truck. Harris not only helped on the garbage truck,
but he also did special residential pickups.
Respondent’s payroll records show that Harris was hired
in March 1987 and that he was paid a weekly salary of $280
and received an increase to $300 per week in May 1987. He
quit in August to go to school and was rehired in March
1988, at $300 per week and was given regular raises there-
after. DiSalvo denied that Harris was ever a per diem em-
ployee. I credit DiSalvo based on her testimony as supported
by the payroll records.
In February or March 1990, Harris learned from his fellow
employee Peter Martucci that the latter was in contact with
Local 813. Harris attended a meeting with a union represent-
ative at the Reef & Beef Diner in Peekskill and he signed
an authorization card.
Harris testified that in April 1990, after the filing of the
Union’s petition, he was working on the garbage truck with
Filipelli.5 Filipelli asked how the Union was going along.
Then Filipelli stated that he didn’t need the Union and that
he was upset with Martucci for bringing in the Union. Harris
testified that before that occasion, Filipelli had made similar
comments, but he was not specific as to the time or the
place. Harris stated that he got along well with Filipelli; they
had often worked together on the garbage truck, especially
when Harris first worked for Respondent and Filipelli was
more involved in the operation of the Company. Filipelli
could not recall if he had asked Harris about the Union.
After the filing of the Union’s petition, DiSalvo conducted
meetings at the office at which she expressed her opposition
to the Union and handed out informational leaflets. General
Counsel does not contend that Respondent engaged in any
unlawful activity in connection with these meetings. Accord-
ing to Harris, he spoke at the meetings, saying that the Union
was good for the family because it provided benefits. Harris’
affidavit given to a Board agent in connection with the in-
stant proceeding does not refer to the fact that Harris spoke
up at any meetings. Harris stated that in early May 1990,
DiSalvo called Harris and fellow employee Nestor Torres to
the office; she told them that Martucci had come in to see
her and that Martucci had told her that he was going to vote
against the Union.
Soon after this, Harris called DiSalvo one evening and told
her that he wanted to leave early the next day as he had an
appointment with a lawyer concerning a child custody mat-
ter. According to Harris, DiSalvo said he would be paid if
‘‘the work is done or up to par.’’ After speaking to DiSalvo,
Harris decided to meet with the lawyer earlier in the day and
he called DiSalvo back that evening to inform her that he
would not be coming in at all the next day. Harris testified
that when he called DiSalvo no one picked up the telephone.
Harris then called Torres, with whom he usually rode to
work in the morning, and Harris asked Torres to inform
Filipelli in the morning that Harris would not be at work.
Harris testified that he began work at 6:30 a.m. and that
Torres arrived at work at 6 or 6:30 a.m., and that this would
give the Company enough time to arrange for a replacement.
Harris stated that on the evening of the day he did not re-
port for work, he called DiSalvo to see if she had gotten his
message that morning and if the work had been done. Ac-
cording to Harris, DiSalvo screamed a profanity at him and
he and DiSalvo had an argument over the telephone. Then
DiSalvo said that Harris had encouraged the men to go
Union and that he was the one who kept the guys going on
with the Union. Harris told DiSalvo that they should discuss
this face to face. DiSalvo told Harris not to take days off
without calling her and letting her know whether he was
coming in or not coming in. Harris testified that there had
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Torres testified that when he told Filipelli that Harris would not
be coming to work on May 9 and that Harris had tried to telephone
the Company the night before, Filipelli replied that ‘‘we were home
all evening.’’
7 I note that Harris testified that there was no answer when he tele-
phoned DiSalvo, not that the line was engaged.
8 The only exception to this rule was in case an employee woke
up sick in the morning; then, he would call DiSalvo in the morning
to say he could not work due to illness.
been arguments in the past when DiSalvo shouted and cursed
about things that went wrong at the Company.
DiSalvo testified that on May 8, Harris had asked for the
next afternoon off. Harris wanted to work only until 11 a.m.
the next day and he asked DiSalvo if he would be paid.
DiSalvo said he would be paid and that he should come in
and see what he could do on the route before 11 a.m. But
Harris did not come to work at all on May 9. Later DiSalvo
heard that Torres told Filipelli that Harris was not coming to
work that day. DiSalvo spoke to Harris after this and asked
him why he had not called the Company to say he would
not be there. Harris told DiSalvo he had tried to telephone
her but that no one answered. DiSalvo told Harris that she
had been home all evening; DiSalvo has two small children
and she was home taking care of them.6 In addition, the tele-
phone has a ‘‘call waiting’’ feature so she would have
known if someone was trying to reach her while she was
speaking on the telephone.7 After DiSalvo told Harris that
she had been home all evening, a heated discussion ensued.
DiSalvo denied that she mentioned anything about the Union
during this discussion.
Filipelli testified that he and DiSalvo discussed Harris’
failure to report to work on May 9. Filipelli had had to work
on the truck himself that day. He and DiSalvo decided that
Harris should be discharged.
The next day, both DiSalvo and Filipelli spoke to Harris
early in the morning when he reported for work. According
to Harris, Filipelli told Harris that he was going to discharge
him because he was losing sleep over what Harris had said
and his wife was nagging him. According to Filipelli, he told
Harris that he could not plan his work if Harris did not re-
port to work as scheduled and that Harris was being dis-
charged. Harris said he was sorry and that it would not hap-
pen again, but Filipelli said it had happened in the past and
that he would not accept this. Filipelli told Harris that early
morning notice through Torres was not acceptable. If Harris
had changed his mind about working the day before, he
should have called DiSalvo again. Both Filipelli and DiSalvo
testified that Harris was fired for failing to call the Company
when he did not intend to come to work the next day; they
denied that union activity had anything to do with the dis-
charge.
Harris testified that earlier in 1990 he had missed a day
of work without calling in. Harris had assumed that Martin
Luther King Jr. Day was a holiday and he had not come to
work. The next day, Filipelli told him he should have called
and that Harris must let the Company know if he was not
coming to work. Harris was not paid for the day he missed.
Harris acknowledged that it was very important to call the
Company if he were going to be absent from work; he re-
called that when Filipelli hired him in 1988, Filipelli said
that the helper’s job was important and that he needed Harris
there every day. Harris stated that he always calls if he plans
to be absent the next day.
DiSalvo testified that twice in 1989, Harris had not come
to work and had not called the Company to say he would
not be in. On both occasions, Harris had been arrested and
circumstances had made it impossible for Harris to reach a
telephone. But aside from those occasions, Harris always
called the night before if he could not come to work.8
DiSalvo denied that during Harris’ employment she had ever
received a message from another employee as the morning
shift was beginning to the effect that Harris would not be
coming to work. The Company needs time to find a replace-
ment worker and it is not acceptable for DiSalvo to be told
at 6:30 a.m. that an employee will not be reporting for work
that day.
According to Harris, it was common practice at the Com-
pany for employees to notify management in the morning
that they will not be at work that very day. Harris testified
that he has carried similar messages for former employees
Steve Romano and Daryll Lassic, and he has called Torres
in the past to tell him that he would not be going to work
that morning. In addition, he has left messages at the deli
next door to the Company to the effect that he would not
be coming to work. Harris did not specify whether these oc-
casions when he and other employees were absent were days
that he or the others were sick, were arrested, or were taking
a day off for other reasons. In the absence of any specific
details, it is not possible to evaluate the supposed practices
testified to by Harris. Further, without any details concerning
the absences of Romano and Lassic, I cannot determine
whether they were similar to the facts of the absence leading
to Harris’ discharge and whether the discharge was an occa-
sion of disparate treatment by Respondent. I shall not rely
on Harris’ testimony concerning the purported common prac-
tice at the Company.
Torres testified that when he could not come to work, he
would call the Company and notify management that he
planned to be absent. But Torres also testified that there were
times he called Harris and asked Harris to give the Company
a message that he would not be coming in to work that day.
Torres denied that he was supposed to notify the Company
personally the day before a planned absence. However,
Torres acknowledged that he was absent only twice during
all the time he worked at the Company. I find it hard to
credit his testimony that sometimes he notified the Company
before an absence and sometimes he just sent a message via
Harris. If Torres was absent only two times it is impossible
to believe that he had so much experience with different
methods of making his absence known to management. I
shall not rely on Torres’ testimony with respect to this issue.
General Counsel presented the testimony of Daryll Lassic
concerning the practices at the Company relating to the obli-
gation of employees to call in prior to being absent from
work. Lassic’s employment ended in 1988. Lassic testified
that employee Robbie Brown was fired for failing to report
to work everyday. Lassic also testified that he used to call
in if he were going to be absent from work but that Filipelli
told him not to do that anymore for fear of waking DiSalvo.
After that, according to Lassic, he sent word via a coworker
or left a message. Lassic did not specify what time of day
these calls were made, when the calls were made in relation
to a proposed absence nor what he meant by leaving mes-
1025ADVANCE WASTE SYSTEMS
9 I do not rely on Harris’ vague testimony that on previous unspec-
ified occasions Filipelli had asked a similar question.
sages when he planned to be absent. Lassic’s testimony did
not provide any details linking Lassic’s practices to the ac-
tual facts at issue in this case; thus, Lassic’s testimony could
mean almost anything. I shall not rely on Lassic’s testimony
because practices in effect in 1988, at the latest, are too re-
mote from the circumstances of Harris’ discharge in 1990
and because Lassic’s testimony was not specific enough to
be of any value. I do find it significant, however, that Re-
spondent has fired at least one employee in the past for fail-
ure to report to work.
In the absence of a denial by Filipelli, I credit Harris’ tes-
timony that in April 1990, while Harris and Filipelli were
working on the garbage truck together, Filipelli asked Harris
how the Union was going along.9 Filipelli also stated that he
did not need the Union and was upset with Martucci for
bringing in the Union. General Counsel urges that Filipelli’s
question about how the Union was going along was coercive
and violated the Act. It is well established that in evaluating
an alleged interrogation a ‘‘totality of circumstances test’’
must be used. Sunnyvale Medical Clinic, 277 NLRB 1217
(1985). In the instant case, the Company is small and family
run; Harris had often worked side by side with Filipelli on
a garbage truck and the two men got along well. Although
Filipelli is the vice president of the Company and married to
the owner, these bare facts do not make him a formidable
figure to Harris in light of the actual friendly and working
relationship between Harris and Filipelli. Employees may
generally be credited with the knowledge that no employer
wants or welcomes a union, and this was true of the Com-
pany herein as expressed by Filipelli’s comments; but the
Company has no history of antiunion hostility or discrimina-
tion. Filipelli asked his question of Harris in a garbage truck
where the two were working side by side. The location was
thus the least formal setting for an interrogation one could
imagine and hardly a place where Harris would likely feel
intimidated. Finally, Filipelli did not ask for specific infor-
mation; he merely asked a general question as to how the
Union was going along and he did not press the point at all.
There is no basis for General Counsel’s contention that the
question was designed to elicit information about which em-
ployees had signed union cards. Filipelli’s question was cas-
ual and under the circumstances I find that it was not unlaw-
ful. I do not find that Respondent violated Section 8(a)(1) of
the Act in this instance.
I find that Respondent has established that it had a practice
of requiring its employees to notify management in advance
of a planned absence so that Filipelli could schedule his
workday and so that a replacement worker could be obtained
if necessary. Harris testified that he always calls if he is
going to be absent the next day and that he knows it is im-
portant to call the Company with advance notice. DiSalvo
testified that the only exceptions to this rule have to do with
sudden illness on the morning of the workday or with cir-
cumstances where the employee is physically unable to make
a telephone call. Harris had been warned in January 1990,
that he must not be absent without informing the Company
in advance. The Company has in the past discharged an em-
ployee for absenteeism. As set forth above, I do not credit
the testimony of Harris, Torres or Lassic that it was permis-
sible to give the Company last minute notice of a planned
absence from work.
The facts show that Harris notified DiSalvo on May 8,
1990, of his intention to work a short day on May 9. After
speaking to DiSalvo, Harris decided not to work at all on
May 9. Although Harris testified that he tried to phone
DiSalvo but got no answer, both DiSalvo and Filipelli stated
that they were home all evening but received no telephone
call. Whether or not Harris did in fact attempt to reach the
Company, it is clear that he did not speak to DiSalvo or
Filipelli on the evening of May 8. I find that DiSalvo and
Filipelli were sincere in their belief that they were home all
evening and that Harris did not call them.
General Counsel relies on Harris’ testimony that on the
night of May 9, DiSalvo screamed at him for being absent,
told him not to take days off without letting her know and
said that Harris was the one who kept the guys going on
with the Union. DiSalvo denies mentioning the Union in this
conversation. I credit DiSalvo concerning the subject of this
conversation. The record establishes that it was not unusual
for DiSalvo to engage in screaming matches with her em-
ployees and she does not deny it. My observation of DiSalvo
convinces me that she was a truthful witness; she attempted
to testify accurately despite strong challenges from counsel
for the other parties. Further, although Harris stated that he
spoke up for the union benefits at a meeting held by
DiSalvo, there is no evidence that he kept the men going
with the Union and DiSalvo’s purported comment would
thus make no sense. Harris’ testimony does not show how
the subject of the Union came up during this screaming
match with DiSalvo when DiSalvo was justifiably exercised
by a legitimate complaint against Harris. In short, Harris’
testimony is not such as to shake me from a conviction that
DiSalvo was telling the truth. Thus, I find that DiSalvo did
not mention the Union to Harris the day before he was fired.
Finally, I credit Filipelli as to the conversation he had with
Harris when he fired him.
I find that General Counsel has not made out a prima facie
case that Harris was discharged for union activity. I can find
no antiunion animus in any of the Company’s dealings with
Harris and there is no evidence that Harris’ support for the
Union or the fact that he mentioned union benefits at a meet-
ing were motivating factors in the Company’s decision to
discharge him. Moreover, had General Counsel shown that
Harris’ protected activities were a motivating factor, I would
find that the Company would have fired Harris for being ab-
sent without prior notice even if he had not engaged in any
union activity. The Company has previously discharged an
employee for absenteeism, Harris himself had been warned
a few months before that he must not be absent without no-
tice and Harris had told DiSalvo on May 8 that he would
be present the next day to work at least a partial day but then
had failed to show up at all. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
C. Departure of Peter Martucci
There are many points at issue concerning Peter
Martucci’s hiring, his job duties, his disability and his failure
to return to work. The witnesses disagreed about many facts
relating to all of these issues.
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The record establishes without contradiction that the containers
could weigh 300 to 400 pounds.
11 Martucci had informed Filipelli of this fact when he was hired.
12 The Union had filed its petition on March 6, 1990. Subse-
quently, hearings were held and the Decision and Direction of Elec-
tion issued on April 20, 1990.
13 The only specific reference to a union meeting in the record
places it not in the deli across from the company property but at a
restaurant in Peekskill.
Martucci testified that Filipelli hired him to drive the roll-
off truck in the spring of 1989. He was paid $500 per week
and then granted a raise to $600 per week in September
1989. Martucci’s hours were from 6:30 a.m. until whatever
time was required for completion of his duties. Martucci
picked up and delivered steel containers to construction sites,
hospitals and the like.10 According to Martucci, he was re-
quired to jump 4 to 6 feet to put the cover on the container,
to open the container door when dumping the trash and to
lift refuse into the container when necessary. Occasionally,
Martucci drove the large garbage truck. When this happened,
Martucci and the helper on the garbage truck would have to
roll the steel containers to the truck in order to dump them.
Contrary to Martucci’s testimony, DiSalvo testified that
Martucci was hired as a per diem employee. The rolloff
work was not consistent, and when the demand for con-
tainers was slight, Filipelli was able to perform this work
himself. When there were a lot of rolloff jobs, Martucci
would be called in to work. Martucci’s payroll card shows
that he began work in June 1989, earning $100 per day and
that in August 1989, he was raised to $120 per day. In 1989,
he worked a full week for 14 out of the 26 weeks after he
was hired. In 1990, he worked a full week for only 1 week
out of the 7 weeks that went by until he injured himself on
February 13, 1990. DiSalvo testified that the rolloff business
declined after January 1990.
Based on the Company’s payroll records and on DiSalvo’s
testimony, which I credit, I find that Martucci was a per
diem employee.
Martucci was a member of Local 813 and he had obtained
a withdrawal card from the Union.11 In February 1990,
Martucci contacted Local 813 in order to organize the Com-
pany: he spoke to the other employees about the Union and
they signed cards.
On February 13, 1990, Martucci fell from the top of a
container and injured his neck and back. Martucci went on
medical disability. He consulted the Brewster Medical Group
and then he was referred to Dr. Fauser, a specialist in
orthopaedic medicine. The medical notes and other records
in evidence show that through some time in the spring of
1990, Martucci’s doctors held that the date of his eventual
return to work was ‘‘undetermined.’’ However, Martucci told
DiSalvo that he would be able to return to work on Monday,
February 26. On that day, Martucci worked a few hours; but
his neck soon started hurting and he left work.
On March 14, DiSalvo wrote to Martucci saying that she
had been trying to get in touch with him about returning to
work but that his number had been changed. On March 22,
Martucci called DiSalvo and said he was feeling better.
DiSalvo said she wanted a doctor’s note indicating that he
could perform his job duties. According to DiSalvo, whom
I credit as to this issue, on about March 26, 1990, she re-
ceived from Martucci a number of medical notes: these con-
sisted of forms dated from February 15 to March 23 stating
that Martucci’s ability to return to work was undetermined.
DiSalvo also received forms from the worker’s compensation
system showing that during this time Martucci was rated to-
tally disabled and that his date of return to work was unde-
termined. The last such form was signed by Martucci’s doc-
tor on March 23, 1990.
On March 22, 1990, DiSalvo wrote to Martucci’s doctor
at the Brewster Medical Group requesting assurance that
Martucci could perform his job. The letter listed certain tasks
as pertaining to the job, including ‘‘to push smaller con-
tainers that can weigh as much as 300-400 lbs.’’ Filipelli
supplied DiSalvo with the description of tasks. DiSalvo testi-
fied that at this time the construction industry was slow and
there was a lot less rolloff work than there had been in 1989.
Filipelli was able to perform whatever rolloff work was
available. Filipelli had been driving the large truck, but the
Company wished to hire a truckdriver. A truckdriver was re-
sponsible for, among other jobs, dumping containers into the
large garbage truck. DiSalvo informed Martucci that she had
sent the letter and she told him that as soon as she received
a response, Martucci could come back to work if there was
still a position available. Martucci denied knowledge of the
March 22 letter; however, it is clear from a letter to the
Company from Martucci’s physical therapist that Martucci
had possession of copies of the March 22 letter and that he
hand carried a copy to the physical therapist in May 1990.
I find that Martucci’s recollection and testimony concerning
the documentation is unreliable and I credit DiSalvo’s testi-
mony on this issue.
On April 4, 1990, DiSalvo spoke to Martucci again. He
told her that he would be going to a physical therapist for
3 weeks. He did not say he was able to go back to work.
Martucci testified that on April 11, 1990, he went to the
Company and met with DiSalvo in her kitchen.12 Martucci
testified that he wanted to discuss DiSalvo’s opinion of the
Union and of the Union coming in to Advanced Waste.
Martucci testified that he wanted DiSalvo’s position on the
Union before a decision was made. According to Martucci,
when he told DiSalvo that he wanted her opinion on how she
felt about Local 813 being part of Respondent’s operation
she replied that he was costing her a lot of money in legal
fees and that he was causing problems with her neighbors
because the discussions were taking place in the deli.13
Martucci testified that he apologized to DiSalvo ‘‘for any in-
convenience that we may have been causing but we needed
to know for our own personal vote how she felt about’’ the
Union ‘‘to compare with what we had learned about the
Union.’’ According to Martucci, DiSalvo said that it was im-
portant to have a unanimous ‘‘no’’ vote and that she wanted
the Union totally out of the Company and not allowed back.
DiSalvo testified that Martucci stopped by and wanted to
talk about the Union. Martucci told DiSalvo that he had
signed a union card and that he was not the only one.
DiSalvo said she knew the Union needed 30 percent to pro-
ceed. Then, Martucci said he was sorry for signing the card,
that he was trying to solve his financial problems through the
Company and that he would vote ‘‘no’’ in the election.
DiSalvo said that was good and that she hoped for a unani-
mous vote.
1027ADVANCE WASTE SYSTEMS
14 DiSalvo stated that the truckdriver position was eventually filled
on April 25, 1990.
15 The April 24 note is a small piece of paper with a short form
apparently filled in by the doctor’s secretary and stamped with his
signature: it contains no details specific to Martucci’s condition or
treatment and it does not refer to any specific job or job duties
Martucci may have had to perform.
16 These letters are the one dated March 22 referred to above and
similar letters sent in May 1990, described below.
17 This was Harris’ old job. DiSalvo received a letter dated May
15, from Martucci’s therapist stating that Martucci had just given
him DiSalvo’s letter dated March 22 listing the job tasks. The thera-
pist said that although Martucci could perform the other job tasks,
he could not push containers weighing 300 to 400 pounds. DiSalvo
also received a letter dated May 25 from Dr. Fauser stating that
Martucci ‘‘is able to return to work at full activity with the excep-
tion of pushing smaller containers that can weigh as much as 300-
400 lbs.’’
18 The record shows that a new employee was hired on June 21
and two new employees were hired on August 20, 1990. The record
does not reveal what jobs these new employees performed.
19 Because the construction industry had slowed down, there was
a lot less rolloff work in 1990 than there had been in 1989. In May
1990, Filipelli drove the rolloff truck as necessary. Also in May, the
Company hired Christopher McNamara, an old friend of Filipelli’s,
to haul rock and fill in an old pond on the property. In June, McNa-
mara drove the rolloff for 14 days.
I find Martucci’s testimony about the April 11 meeting
with DiSalvo incredible. Martucci was an experienced Local
813 member and he was the employee responsible for bring-
ing the Union to the Company. Martucci has not explained
why, as an experienced union member and the union orga-
nizer at the Company, he would need or want DiSalvo’s
opinion. The idea that he would seek DiSalvo’s opinion be-
fore deciding how to vote is laughable. I do not believe that
Martucci went to see DiSalvo for the purpose of asking her
opinion of the Union and I therefore do not credit his version
of the conversation. I credit DiSalvo’s testimony that
Martucci told her he had financial problems and that he
would vote against the Union. Likely, Martucci wished to in-
gratiate himself with the owner of the Company while he
was on disability and perhaps Martucci hoped that some fi-
nancial reward would come his way.
During this conversation, DiSalvo asked Martucci when he
would be able to return to work; there was still a truckdriver
job open at this time. Filipelli was driving the garbage truck
because the rolloff work was not heavy and Filipelli had
ample time to do whatever rolloff work was necessary.14 At
the instant hearing, Martucci produced a note from Dr.
Fauser’s office dated April 24, 1990, stating that Martucci
could return to work on April 30. DiSalvo testified that she
had never been given such a note.15 Martucci testified that
he gave DiSalvo the note during the week of April 24. He
also testified that he had never seen the letters DiSalvo sent
to his doctors requesting information as to his fitness to per-
form his job duties.16 However, the evidence shows that
Martucci himself handcarried at least once such letter to a
doctor and DiSalvo testified credibly that she had informed
Martucci that she had prepared such a letter. I also find it
significant that in February 1990, Martucci told DiSalvo that
he could return to work and that he did return for part of
1 day even though his doctor had not cleared him to return
to work. It seems that Martucci was not exact in his own
mind concerning his ability to work, the content and dates
of the documents relating to his disability, the necessity of
obtaining and adhering to advice from doctors and the like.
Because of Martucci’s inexact recollection, a recollection that
is often at variance with the documentary evidence, I am
convinced that Martucci did not recall accurately the facts re-
lating to the various forms and notes concerning his dis-
ability. Therefore, I credit DiSalvo that she had never been
given the form dated April 24 from Dr. Fauser’s office.
On May 3, 1990, Martucci called DiSalvo and said he was
ready to return to work. DiSalvo asked for a doctor’s note
to that effect. She sent a copy of the letter of March 22 to
Dr. Fauser and to the physical therapist requesting assurances
that Martucci could safely perform his job duties and she in-
formed Martucci that she had done so. On May 12, DiSalvo
telephoned Martucci and offered him the helper’s job on the
garbage truck.17 The helper’s job was full time but it paid
less than a driver’s job. There was not enough rolloff work
to justify hiring a rolloff driver. DiSalvo told Martucci she
would need a doctor’s note before he could come to work.
Martucci told DiSalvo that ‘‘a job is a job’’ and that he
would go to the doctor himself in order to obtain a note stat-
ing that he was able to return to work. On Monday, May 14,
Martucci called DiSalvo and said the doctor was too busy to
write a note and that he would do so soon. Although some-
one else was interested in the helper’s job, DiSalvo wanted
to hold it open for Martucci. However, on May 15, DiSalvo
got a message from Martucci to the effect that he did not
know when the doctor would be sending a letter permitting
his return to work. At this point, DiSalvo hired the other can-
didate.
DiSalvo testified that she had asked Martucci for written
medical authorization to return to work because he had told
her he could do his job in February but had become inca-
pacitated after only a few hours work. DiSalvo stated that
her request for medical releases was not made as a result of
Martucci’s union activities.
Martucci testified that he did push containers weighing
300 to 400 pounds when he was on the large garbage truck.
He stated that the containers have wheels, that the driver and
helper together push the containers and that the truck is
equipped with a winch to raise containers and dump them.
Martucci denied that he ever had to push a container without
wheels. Harris testified that as a helper he pushed the con-
tainers by himself and that it was not unusual for the con-
tainers to lack wheels. In these cases, the container had to
be maneuvered by pushing it from side to side. Harris also
testified that sometimes when he drove the truck he had no
helper at all. Filipelli testified to the same effect as Harris:
the wheels on the containers may be broken or jammed and
they are very hard to move.
DiSalvo stated that after she hired a helper for the large
truck on May 16, there were no more job openings at the
Company.18 There was no need to hire a rolloff driver since
the small amount of rolloff work performed by the Company
could easily be done by Filipelli.19 As of the day of the elec-
tion on May 18, 1990, Martucci was ‘‘permanently laid off’’
because Respondent did not expect a position to be available
for him. After the election, DiSalvo asked Martucci to return
the company uniforms and keys in his possession.
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The rolloff driver is not required to push containers in the same
manner as the members of the crew who work on the large garbage
truck.
21 Contrary to the General Counsel, I find that the record estab-
lishes that in May 1990, McNamara hauled rock and did not drive
the rolloff.
22 Although, as described above, the Company hired new employ-
ees in June and August 1990, there is no evidence concerning their
job duties. There is no basis for assuming they were performing
work that should have been offered to Martucci.
General Counsel maintains that Respondent refused to give
Martucci back his job because of his support for the Union
and that Respondent used Martucci’s disability to mask its
unwillingness to permit him to return to work. General
Counsel urges that there was enough rolloff work for
Martucci, and that, in any case, Martucci could have driven
the large truck or helped on the large truck without being re-
quired to push 300 to 400 pound containers. General Counsel
sees a nefarious motive in DiSalvo’s insistence that
Martucci’s doctors certify his ability to push such containers.
I find that DiSalvo was amply justified in requiring
Martucci to submit medical opinion that he could indeed re-
turn to work. In February, Martucci had returned to work
prematurely when he was still certified as totally disabled.
Contrary to General Counsel’s assertion that by returning
Martucci was acting in a responsible manner and sheltering
Respondent from increasing insurance liability, Martucci in
fact was acting recklessly and setting up the Respondent for
the possibility of much greater liability if he should aggra-
vate his injuries. DiSalvo was trying to protect her business
as well as incidentally protecting Martucci when she required
medical clearance for him to return to work.
I further find that the ability to push containers weighing
up to 300 or 400 pounds was required in order to perform
the truckdriver and helper jobs. I credit the testimony of
Filipelli, Harris, and Martucci himself that the containers had
to be manhandled by the men. Further, both Filipelli and
Harris stated that the containers sometimes were lacking
wheels and were very difficult to push. Thus, I find that in
order to return to work as a driver or helper, Martucci had
to show that he could push these containers.
DiSalvo credibly testified that she told Martucci he could
come to work as a driver in March 1990 with the proper
medical clearance and again on April 11 she told Martucci
the driver position was still open. Martucci did not produce
the necessary medical clearance. The Company thus made a
good-faith effort to return Martucci to work in a driver posi-
tion. After this position was filled on April 25, the Company
again offered to return Martucci to work in mid-May as a
helper and it requested medical clearance from Martucci’s
doctor and physical therapist. Martucci wanted the job: he
told DiSalvo ‘‘a job is a job’’ and he apparently made efforts
to have his doctor write to DiSalvo in response to her inquiry
about his ability to perform the job. However, the last time
DiSalvo heard from Martucci in connection with the helper’s
job the message was that Martucci did not know when the
doctor would write the letter.
Although DiSalvo knew about Martucci’s support for the
Union by April 11, she still offered Martucci the driver’s job
on that date and she offered Martucci the helper job in mid-
May. The only condition was the eminently reasonable one
that Martucci produce medical clearance. I find that General
Counsel has not shown that Respondent was motivated by
Martucci’s support for the Union when it failed to give him
the driver’s or helper’s jobs. Wright Line, supra.
General Counsel urges that Respondent should have given
Martucci a job as a rolloff driver and that it was motivated
by his protected activities in its failure to do so.20 General
Counsel’s argument is based on the contention that there was
rolloff work to be done. As discussed above, Martucci had
never worked full time at his rolloff position. Further, on
some of the days he worked for the Company, he filled in
for other employees as a driver or helper on the large gar-
bage truck. The uncontradicted testimony shows that rolloff
work was in a decline in 1990 due to the economy; the con-
struction industry was slow and there was less call for con-
tainers used to hold construction industry debris. General
Counsel has not controverted this evidence. Rather, General
Counsel’s position is that Filipelli should have ceased doing
the rolloff work and instead given it to Martucci. But Gen-
eral Counsel’s position ignores the fact that Filipelli had
been doing the rolloff work since Martucci was injured in
February 1990, and that he was able to accomplish it him-
self. Although the Company did employ McNamara to drive
the rolloff in June 1990, this was for 14 days only and there
is no reliable evidence that McNamara worked on the rolloff
at any other time.21 General Counsel’s brief is full of innu-
endo and conclusions, but I cannot ignore the fact that the
record shows that Filipelli performed the rolloff work on all
but 14 days in 1990 after Martucci was injured. Confining
my findings to facts actually in the record, it is clear that
Filipelli had done the rolloff work before Martucci was
hired, that Filipelli and DiSalvo hired Martucci when the
rolloff work increased and Filipelli decided to devote more
of his time to a search for new customers and office work,
but that when rolloff work decreased Filipelli was able to
perform it himself for the most part. There are simply not
enough facts in the record for me to find that there was as
much rolloff work in the spring of 1990 as there had been
when Martucci was hired by the Company in 1989. Although
General Counsel refers to the performance of certain
amounts of rolloff work in 1990, no comparison is permitted
by the actual record before me of the number of rolloff calls
in any given period in 1990 as compared with 1989. If Gen-
eral Counsel had wished me to make such a comparison, it
would have been necessary to place an adequate factual basis
in the record. Not only can I not find any antiunion motiva-
tion in the Company’s failure to give Martucci a job as a
rolloff driver in the spring or summer of 1990, I cannot find
that there was a job open for a rolloff driver at that time.
Nor is there any evidence that a rolloff job will be available
in the future.22 In summary, General Counsel has not made
a prima facie showing that Respondent was motivated by
antiunion animus when it did not offer Martucci a position
as a rolloff driver.
D. Discharge of Nestor Torres
Nestor Torres was hired by Filipelli in August 1987, to
drive the chaser truck. At that time Torres’ cousin, Daryll
Lassic, was employed by the Company.
In February 1990, Martucci told Torres that he was orga-
nizing for Local 813 because the Company did not pay for
1029ADVANCE WASTE SYSTEMS
23 The evidence shows that the Company paid for health coverage
for the individual employees, but that employees had to pay for cov-
erage for members of their families.
24 Apparently, this was a practice adopted so that the Company
could avoid transferring refuse in its yard and thus remain in compli-
ance with its new site plan and the promises made there under.
health benefits.23 In April 1990, according to Torres, Filipelli
asked him if he knew who was the ‘‘foreman’’ for the
Union. When Torres denied knowledge on this subject,
Filipelli said he would ask everyone who was the ‘‘foreman’’
for the Union. Then Filipelli said it was Martucci because
Martucci had been asking for health benefits for his family.
Also during this conversation, according to Torres, Filipelli
told him that Martucci had been to see him and that he was
not voting for the Union: Martucci was sorry for everything
he had done and he would vote ‘‘no.’’ Torres later changed
his testimony to say that it was DiSalvo who told him that
Martucci had changed his mind and would vote against the
Union. Filipelli testified that he recalled asking Torres if he
knew anything about the Union when the Company first re-
ceived notice that the Union was organizing the men. Torres
replied that he knew nothing about it.
Torres testified that on May 11, 1989, DiSalvo conducted
a meeting after work. She said she hoped they would vote
‘‘no’’ in the election and she handed out certain documents.
Torres did not speak at this meeting.
According to Torres, after he attended a meeting at the
Board’s Regional Office, the Company changed its practice
relating to customers who had not put their garbage out on
time for pickup by Torres as he performed his daily route.
Torres also testified that the change took place after the elec-
tion at which he served as an observer for the Union. Torres
explained that it sometimes happened that customers would
not have their garbage ready for pickup at the appointed hour
and that he would not be able to collect their refuse. When
this occurred, Torres would inform Filipelli that certain cus-
tomers had not had their garbage out when he went on his
route. Filipelli would call the customers and remind them of
the hour by which they should have put their garbage out for
pickup. Filipelli would make a decision on those occasions
whether Torres should go back out in the chaser truck to
make the missed pickup. It might be that Torres would return
to make the pickup in order to avoid having a lot of garbage
next time he went to that location. If the customer had a
good excuse for not putting the garbage out on time or if
Filipelli wished to please the customer, then Filipelli would
instruct Torres to go back and make the pickup. On occasion,
Filipelli went back with Torres to pick up the missed refuse.
Torres testified that DiSalvo became more involved with the
men and the running of the Company in 1990. DiSalvo
began to make the decision whether Torres had to go back
over his route to pick up refuse from people who had ne-
glected to put out their garbage on time. But DiSalvo did not
explain things in a nice way as Filipelli had done. Instead
of explaining the situation to Torres, DiSalvo just came out
and told Torres ‘‘go back and get these customers.’’
DiSalvo testified that Torres was reluctant to go over his
route a second time to collect garbage from customers who
had not been timely in putting their refuse out for collection.
Torres tried to convince DiSalvo that he was never required
to go back for this purpose. DiSalvo was angry with Torres
because he was paid for a full week’s work and it was not
for him to decide what work he would and would not do.
In June 1990, Filipelli was driving the rolloff truck and he
noticed that Torres had not picked up garbage from some
customers on his route. He told the dispatcher to instruct
Torres to collect the refuse. After Torres returned to the yard,
Filipelli saw DiSalvo speaking to Torres and telling him that
he must go back and get the garbage from the customers as
instructed by management. While DiSalvo was still speaking
to Torres, the latter rudely turned his back on her and walked
away. Filipelli then went over to Torres and remonstrated
with him. Filipelli told Torres that he should have gone back
to pick up the garbage from the customers when he had first
been instructed to do so. At that point, Torres said he would
take the truck out but Filipelli sent him home instead.
Torres testified that generally when his chaser truck was
full he would radio the driver of the large garbage truck and
arrange to meet it somewhere on its route in order to dump
his load into the large truck. On occasion, according to
Torres, he was told to leave the chaser in the Company yard
so that it could be dumped into the larger truck when that
truck returned to the yard. This was so that the large truck
could continue on its route without interruption. Torres stated
that it was not unusual for him to be instructed to leave the
chaser in the yard until the large truck arrived; then, the
chaser would be taken across the street to the area adjacent
to the deli and it would dump its load into the truck in that
location.24 For years, he left his chaser full for others to
dump, and it was not unusual for him and Filipelli to go
across to the deli to dump the chaser. Torres acknowledged
that he was told not to leave the truck full of refuse in the
company yard overnight.
Harris testified that Torres met the large truck three or
four times a day in order to dump his chaser truck. If Torres
was finished with his rounds in the chaser truck and he
found that the large truck was out of town, then Torres
would be told to leave his chaser truck in the yard and it
would be dumped later.
DiSalvo testified that on the Friday of the Memorial Day
weekend in 1990, Torres brought the chaser truck fully load-
ed into the Company yard and that he then punched out and
left for the day. DiSalvo was not on the premises when this
occurred, but she saw the truck as she came home that after-
noon. On the next Tuesday, she told Torres that garbage can-
not be stored on the property. She explained that she was
trying to get a site plan approved and that he could not con-
tinue to work for the Company if he did not follow instruc-
tions. Filipelli testified about this incident to the same effect
as DiSalvo. He stated that when he arrived at the company
yard that evening, he drove the chaser truck across the street
and dumped it into the large truck. This was not an ideal so-
lution, however, because the local dump was closed and it
was also closed on Monday. When he spoke to Torres after
the weekend, he told him not to bring his truck back to the
yard without first dumping it into the large truck.
Torres at first stated that he did not recall bringing his
fully loaded chaser truck back to the yard on the Friday of
Memorial Day in 1990. He did not recall that DiSalvo and
Filipelli spoke to him on Tuesday, May 29, about his truck
and he did not recall being told that he was not permitted
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 McNamara testified that he heard the conversation between
Torres and the driver of the truck. He heard Torres ask the location
of the large truck and heard the reply. Then Torres ended the com-
munication by saying ‘‘10-4’’ and told McNamara ‘‘I got to go, I
got to go.’’ Torres punched out and left.
to leave his loaded truck in the yard. Then, Torres did recall
that he left his truck with garbage still in it overnight, but
he was not sure if that had happened in May or June. Al-
though Torres testified that he was indeed told not to leave
the loaded chaser in the yard overnight, he maintained that
he was not warned in connection with this incident.
Torres testified that one policy change was made in that
management instructed the employees that refuse could not
be transferred on the property. Torres stated that even though
it was forbidden, the Company still transferred garbage on
the premises. He stated that this had happened in 1990, but
he could not recall when it happened with reference to any
date or other event. I do not credit Torres; I find that he had
no reliable memory whether the garbage was transferred in
1990 or in a prior year.
Filipelli testified that on Monday, June 18, 1990, Torres
did a special pickup at the Kingsley residence. When Torres
returned to the yard with his loaded chaser truck, Filipelli
told him that there was no ticket for that special pickup and
that it was unauthorized. According to Filipelli, Torres’ atti-
tude during this incident was arrogant; he replied that Kings-
ley had wanted the job done. Filipelli told Torres that he
must not do this sort of thing again. He reiterated that special
pickups are not done on Mondays because the local dump is
closed on Mondays. Filipelli dumped the chaser truck into
the large garbage truck that day. When he related the inci-
dent to DiSalvo, they both agreed that Torres should be
given a final warning. DiSalvo testified that when Filipelli
told her about this problem she ascertained that the Kingsley
special pickup had been on the Board for that Thursday. On
Tuesday, June 19, DiSalvo spoke to Torres. She told him
that work had to be scheduled through the office and that he
must not do work that had not been assigned to him. She
also told Torres that he must not bring a truck full of gar-
bage back to the yard and that he would no longer have a
job if he brought back a loaded truck.
Torres testified that he did indeed perform a large special
pickup for Kingsley on June 18, but he denied that he took
it upon himself to schedule this job. He stated that Filipelli
instructed him to do the work. At first Torres testified that
it was unusual to perform special pickups on Mondays, but
then Torres changed his testimony and said that Filipelli
often made mistakes and scheduled large special pickups for
Mondays. Although Torres agreed that there was good reason
not to schedule special pickups on Mondays because the
local dump was closed, he was unwilling to say that it was
unusual to have large special pickups on that day. Torres tes-
tified that neither DiSalvo nor Filipelli reprimanded him for
performing the Kingsley pickup on Monday, June 18.
Torres testified that he was fired for leaving the chaser
truck full of refuse in the company yard on July 16. DiSalvo
fired him the next morning. Torres testified that the driver
of the large garbage truck had told him to leave the chaser
in the yard and that he would dump it when he returned.
According to DiSalvo, she arrived home on July 16, 1990,
at about 3:30 p.m. and was greeted by the sight of the chaser
truck loaded to the top with garbage and parked in such a
way that it was visible from the public road. DiSalvo went
into the office and asked the dispatcher why the truck was
sitting in the yard full of garbage. The dispatcher replied that
at 12:30 p.m., Torres had brought the chaser truck back full
of garbage. When the dispatcher reminded him that DiSalvo
wanted the trucks emptied, Torres went into the office and
used the radio to communicate with the large garbage truck.
According to the dispatcher, McNamara was in the office at
this time. DiSalvo then asked McNamara what Torres had
said on the radio. McNamara informed her that Torres told
the driver of the large truck that he was full and ready to
dump the chaser truck. The driver replied by giving his loca-
tion and Torres said ‘‘10-4.’’ Then Torres told McNamara
that he had to go and he punched out and left the office.25
DiSalvo testified that the next morning she asked Torres
why he had not emptied the chaser the night before. Torres
replied that the garbage truck crew had told him to leave the
chaser on the premises and that they would empty it for him
later. DiSalvo told Torres that it was his responsibility to
empty his own truck. DiSalvo then asked the crew members
of the large truck about the incident of the day before. The
crew members told DiSalvo that they had informed Torres of
their location so he could meet them and dump the chaser
but that they did not hear from Torres again that day. They
said that when they returned to the yard they had driven both
their truck and the chaser across the street and dumped the
chaser.
Filipelli testified that on July 16 he was out working on
the rolloff truck and that he heard over the radio the ex-
change between Torres and the crew of the large truck. He
heard Torres call the large truck on the radio, he heard the
driver give Torres the location so that Torres could meet the
truck and dump the chaser and he heard Torres reply ‘‘10-
4.’’ This is the usual procedure for Torres to dump the chas-
er truck at the end of his day. But when Filipelli returned
to the yard later that day he saw that the chaser truck was
still loaded. DiSalvo was very upset over this and she said
that they must fire Torres. Filipelli asked both the men on
the garbage truck and McNamara what had happened, and he
and DiSalvo asked Torres about the incident the next day.
Torres had no explanation for his failure to dump the chaser.
Filipelli and DiSalvo decided to discharge Torres.
DiSalvo testified that Torres was fired because he had
been warned repeatedly not to leave the chaser truck on the
premises loaded with garbage. DiSalvo stated that it was not
up to Torres to decide to leave a loaded truck on the prop-
erty. Proper procedure required Torres to meet the truck at
the end of his route in order to dump the chaser into the gar-
bage truck. According to DiSalvo there are only two cir-
cumstances when it is appropriate to bring the chaser truck
back to the yard without dumping it; if the garbage truck has
broken down and there is no way to dump the chaser and
if the garbage truck has finished its route earlier and the
chaser must come back to the yard to meet it.
General Counsel maintains that Respondent unlawfully in-
terrogated Torres, retaliated against him by giving him con-
flicting instructions and altering the procedure by which he
would be required to do additional work and then discharged
Torres because he supported the Union.
As set forth in detail above, Torres testified that in April
1990, Filipelli asked him if he knew who was the ‘‘fore-
man’’ for the Union; when Torres said he did not know,
1031ADVANCE WASTE SYSTEMS
Filipelli said he would ask everyone if they knew who was
the ‘‘foreman’’ for the Union. Torres also stated that in this
conversation Filipelli told him that Martucci came by the
other day and said he was sorry for everything and would
not vote for the Union, but then he changed his testimony
to attribute this statement to DiSalvo. It is immediately strik-
ing to anyone with even the most elementary knowledge of
labor relations that the use of the word ‘‘foreman’’ is highly
unlikely. There is no such thing as a union foreman. The fact
that Torres repeated the word ‘‘foreman’’ throughout his tes-
timony in connection with Filipelli does not inspire con-
fidence that he recalled the conversation with Filipelli accu-
rately. Filipelli has been in the refuse collection business
since he was 18 years old and has been a member of Local
813. I observed Filipelli testify and I have read the record
carefully; Filipelli is knowledgeable concerning the industry
and he is well spoken. Filipelli would never use the word
‘‘foreman.’’ Further, Torres testified that when he denied any
knowledge of a union foreman, Filipelli said that he was
going to ask everyone and that he knew it was Martucci be-
cause Martucci wanted family health benefits. It does not
make any sense that Filipelli would ask Torres for informa-
tion and announce in advance that he was going to conduct
a series of interrogations if Filipelli already knew the name
of the individual he was asking about. Finally, Torres at first
attributed DiSalvo’s statement about Martucci to Filipelli as
a part of this conversation: this also leads to grave doubts
about Torres’ ability to recall what Filipelli said to him. In
summary, based on Torres’ description of the language and
the content of the alleged interrogation, I am not convinced
that Filipelli said anything like what Torres testified to.
Filipelli himself recalled that shortly after he heard about the
Union, he asked Torres if he knew anything about the Union.
In the absence of convincing testimony by Torres as to the
content of Filipelli’s question, and in the absence of any tes-
timony concerning the place and circumstances of the con-
versation, I cannot find that the question was coercive. Most
likely, when the Union filed its petition in March 1990,
Filipelli did ask Torres if he knew anything about it, but
there is not enough evidence in the record for me to find a
violation of Section 8 (a)(1) of the Act.
Concerning the alleged change in working conditions,
Torres placed the time of the change after he attended a
meeting at the Regional Office and then he placed the
change after he acted as an observer in the election. A care-
ful reading of Torres’ testimony about the change reveals
that it amounted to a difference in style. Torres got along
with Filipelli but he did not much like dealing with DiSalvo
because she was more abrupt. Filipelli would explain why
Torres had to go back over his route to pick up garbage from
customers who were not timely whereas DiSalvo did not ex-
plain nicely, she merely instructed Torres to go back. The
evidence does not support a finding that Torres’ work actu-
ally increased as a result of DiSalvo’s involvement in giving
orders, just that Torres did not like DiSalvo’s manner. This
does not amount to a violation of the Act. General Counsel
relies on the June incident when Torres failed to go back to
pick up refuse from some customers as an example of ‘‘con-
flicting instructions.’’ In that incident, Torres refused to fol-
low instructions from Filipelli and DiSalvo and he was rude
to DiSalvo; when he finally and grudgingly told Filipelli that
he would go back out in the truck Filipelli sent him home
instead. General Counsel does not explain in what way this
incident constitutes unlawful action on the part of Respond-
ent and I cannot find a violation based on the incident.
As set forth above, Torres testified at great length about
the Company’s practice relating to the chaser truck. It is ap-
parent from both his testimony and that of others, that it was
customary to dump the chaser truck into the large truck sev-
eral times a day including when Torres was finished with his
route. However, on occasion, Torres would be instructed to
leave the chaser truck in the yard and told that when the
large truck came in, the crew would dump the chaser into
it. Torres acknowledged that the Company did not want gar-
bage stored in the chaser truck overnight. Harris also testified
that although Torres was supposed to meet the large truck
and dump the chaser into it, Torres might be instructed to
go to the yard instead and the chaser would be dumped later.
One thing is clear from this testimony—Torres was supposed
to call the large truck and arrange to meet it unless he was
specifically instructed not to meet the truck but to go back
to the yard with the loaded chaser. Both Torres and Harris
testified distinctly that the chaser was left loaded in the yard
to await the large truck on specific instructions that this
should be done.
Torres recalled at least one incident when he left the chas-
er parked in the Company yard loaded with refuse and he
was told not to leave the chaser full of garbage overnight.
Torres could not say whether this was the Memorial Day in-
cident or another incident in June 1990. Torres also recalled
the incident with the Kingsley special pickup on June 18, but
he denied being reprimanded for this incident. Torres’ testi-
mony is not reliable. I have found above that Torres did not
recall various conversations with any specificity and Torres’
testimony about the May and/or June incidents leads me to
conclude that he does not have a clear picture of these
events. I credit DiSalvo and Filipelli that Torres was told on
Memorial Day that he should not leave the chaser truck load-
ed in the yard when he punched out for the day. I also credit
them that Torres was reprimanded for picking up large
amounts of refuse from Kingsley on a Monday without being
instructed to do so and because it was not convenient to
empty the chaser into the large truck on Monday when the
local dump was closed.
Torres was discharged for leaving the chaser truck full of
refuse on July 16, 1990. I find that DiSalvo arrived home
that afternoon and saw that the chaser truck was loaded and
standing in full view of the main road. DiSalvo was sensitive
to this event because if it were reported to the planning
board she would be subject to criticism and might be ham-
pered in her efforts to obtain approval of her site plan.
Filipelli also saw the loaded chaser truck in the yard. He was
surprised because he had heard Torres radio the large truck
for its location that afternoon and he had assumed that, in
accordance with usual practice, Torres would meet the truck
and dump the chaser into it before returning to the yard.
McNamara also testified that he heard Torres radio the large
truck and ask for its location and he heard the crew of the
truck give Torres their location. McNamara heard Torres ac-
knowledge the transmission. But instead of going to meet the
truck, Torres said ‘‘I got to go’’ and then he left. When
DiSalvo questioned the crew of the large truck, they denied
telling Torres to leave the loaded chaser in the yard. The
only disputed fact is whether the crew of the large truck told
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Wright Line, 251 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981).
27 The Company’s use of McNamara to drive the rolloff for 14
days in the period from February 1990 until the date of the instant
hearing in 1991 does not show that it planned to hire a rolloff driver.
Torres to leave the loaded chaser in the yard as Torres testi-
fied herein and as he asserted to DiSalvo, or whether as is
claimed by DiSalvo, Filipelli, and McNamara, the crew
merely gave Torres their location so he could meet them
with the loaded chaser. In this instance, I shall rely on the
testimony of McNamara and Filipelli. I observed McNamara
to be a conscientious and careful witness and I believe that
he did his utmost to testify accurately and truthfully. Further,
I find that Filipelli was a reliable witness and that he remem-
bered the July 16 incident very clearly. As a result, I find
that no one instructed Torres to leave the loaded chaser in
the yard. I believe that DiSalvo and Filipelli were very upset
that Torres had once again left the loaded chaser in the yard
even though he had been told on previous occasions not to
do so. I find that they fired Torres because he had been ex-
pected to follow the usual procedure by dumping the chaser
before he left for the day and because he had not been in-
structed to leave the chaser in the yard with its load intact.
General Counsel has not made out a prima facie case that
Torres was discharged for protected activity. There is no evi-
dence that antiunion animus played any part in the decision
to discharge Torres. However, if I had found that the dis-
charge was motivated by Torres’ support for the Union, I
would find that Respondent has shown that it would have
discharged Torres for cause even in the absence of protected
activity on his part.26 Torres had been warned not to leave
the loaded chaser truck in the yard without specific instruc-
tions to do so but Torres disregarded these instructions.
III. REPRESENTATION PROCEEDING
In the election, the employees voted one for and one
against union representation, with two challenged ballots. I
have found above that Harris was lawfully discharged before
the election and therefore I recommend that the challenge to
Harris’ ballot be sustained. Respondent urges that the chal-
lenge to Martucci’s ballot should be sustained because on the
day of the election Martucci had no reasonable expectation
of recall. As found above, Filipelli has been performing
Martucci’s old job on the rolloff truck; the rolloff work has
been light and at the time of the election Respondent had no
plans to hire a rolloff truckdriver. Indeed, up to the time of
the instant hearing, no rolloff driver had been hired.27 Con-
cerning Martucci’s expectation to be recalled to perform the
other jobs described in the record, I also find that Martucci
had no reasonable expectation to be recalled for any of those
positions. As set forth in detail above, I have found that the
Company had reasonably required Martucci to provide med-
ical clearance to perform the tasks pertaining to the other po-
sitions including the pushing of containers weighing 300 to
400 pounds. As far as the record shows, Martucci has not
received medical approval to perform this task; the latest
document produced by Martucci was a letter dated May 25,
1990, from Dr. Fauser stating that Martucci could not push
the containers. There is no indication that Dr. Fauser expects
that Martucci will ever be able to push the containers. If
Martucci is not capable of performing the driver or helper
jobs, he has no reasonable expectation of recall. Under the
circumstances it can be said that Martucci’s disability is
‘‘open ended’’ and that no definite timeframe has been estab-
lished for his return to work; he had no reasonable expecta-
tion of recall on the date of the election and he was not eligi-
ble to vote in the election. Sid Eland, Inc., 261 NLRB 11
(1982). I shall recommend that the challenge to Martucci’s
ballot be sustained.
IV. CONDUCT OF STUART BOCHNER, ESQUIRE
Attorney Stuart Bochner was directed to leave the court-
room on the third day of the instant hearing for the reason
that he constantly interrupted counsel for Respondent, the
witnesses and the administrative law judge despite instruc-
tions that he cease interrupting and warnings that he would
be ejected from the hearing if he persisted in interrupting.
Bochner did not leave the courtroom as directed and was re-
moved by the Federal Protective Service.
Bochner’s interruptions began when Harris was being
cross-examined by Andrew A. Peterson, Esquire, counsel for
Respondent, and the interruptions continued each time coun-
sel for Respondent attempted to cross-examine General
Counsel’s witnesses. I repeatedly warned Bochner not to in-
terrupt counsel while he was posing questions to the witness
and I repeatedly warned Bochner not to interrupt witnesses
while they were stating their answers. It was clear to me that
Bochner’s sole purpose in interrupting was to disrupt ques-
tioning by counsel for Respondent and to interfere with the
presentation of facts relating to Respondent’s defense.
Bochner also disrupted the hearing by constantly arguing
with rulings of the administrative law judge; he refused to
adhere to rulings and persisted in making his arguments even
after they had been rejected and he had been told to let the
questioning of witnesses proceed.
At the beginning of Respondent’s case, and in order that
Bochner should understand fully what past conduct of his
had been objectionable and was to be avoided in the future,
I gave Bochner an additional warning. Bochner was in-
structed not to attempt to introduce documents into evidence
when counsel for Respondent was questioning a witness, not
to pose questions to the witness unless it was his turn to
question that witness, and not to disrupt Peterson’s ques-
tioning of Respondent’s witnesses. I note that even while I
was issuing this formal warning to Bochner, he did not re-
frain from interrupting me.
Despite the warnings, Bochner persisted in interrupting
counsel for Respondent and witness DiSalvo. I observed that
this had a devastating effect upon DiSalvo and that she be-
came so flustered that every time she answered a question
she looked at Bochner to see if he was about to interrupt her.
Bochner constantly made frivolous objections, and this had
the effect of disrupting the train of thought of counsel for
Respondent and witness DiSalvo. Eventually, DiSalvo be-
came almost incoherent. Although the cold record cannot
show what I observed at the hearing, I recall quite clearly
that DiSalvo became almost unable to testify and that she
displayed an emotional reaction evincing great stress due to
the constant and unnecessary interruptions by Bochner.
Bochner was again warned not to interrupt DiSalvo in the
middle of her answers but he persisted in doing so; in fact,
Bochner then began interrupting DiSalvo to ask her whether
she was finished so that he could make his comments. Fi-
1033ADVANCE WASTE SYSTEMS
nally, while DiSalvo was responding to a question posed by
Peterson about the events leading to Torres’ discharge, she
began to relate events which she had not witnessed directly
but upon which she had based her decision to discharge the
employee. Peterson stopped DiSalvo to make clear to her
that he wished her to make a distinction between what she
had personally observed and what had been reported to her
by others. This was an attempt by Peterson to forestall objec-
tions by Bochner and to comply with the administrative law
judge’s direction that DiSalvo make this distinction in her
testimony. As DiSalvo began answering Peterson’s last ques-
tion, Bochner again interrupted her, stating, ‘‘the record is
not going to be clear if the witness is going to interrupt the
question.’’ In fact, Bochner had just interrupted the witness
again. I told Bochner to be quiet but he said ‘‘no’’ and ex-
pressed his intention to go on interrupting the witness. At
this point, I directed Bochner to leave the courtroom and told
him that he was being excluded from the hearing.
Bochner refused to leave after repeated instructions to do
so and at my request the Federal Protective Service escorted
him from the premises.
As Bochner was being led out by the Federal Protective
Service, counsel for the General Counsel stated her objection
to Bochner’s removal. On behalf of both counsels for the
General Counsel present in the courtroom she stated, ‘‘It is
our position that his zealous representation of his client does
not warrant his removal at this time.’’ Counsel for the Gen-
eral Counsel went on to say that she understood that Bochner
was amenable ‘‘to refraining from making any appropriate
objection until after the witness has spoken.’’ Not only did
Bochner fail to join in counsel’s understanding, but he actu-
ally interrupted counsel for the General Counsel’s remarks in
his behalf by telling her not to look at him while she was
speaking.
During a short recess in the hearing on the same day that
Bochner was escorted out by the Federal Protective Service,
I observed that he was engaged in an altercation with several
uniformed officers of the New York City Police Department
right outside the courtroom. The record does not disclose
how this incident came about.
Later that day, witness McNamara testified that sometime
after he had observed the Federal Protective Service escort
Bochner off the premises he again observed Bochner in the
corridor just outside the courtroom where the instant hearing
was taking place. McNamara testified that Bochner said out
loud while pointing to the courtroom, ‘‘they’re all a bunch
of fucking assholes in here and they don’t know what they’re
talking about.’’ Counsel for the General Counsel did not
state what her position was with respect to this conduct by
Bochner.
After the close of the hearing in the instant case, I became
aware of the Order of the Board dated October 19, 1990, in
De Jana Industries, in Cases 29–CA–14349 and 29–RC–
7443. In that case, Bochner engaged in uncivil conduct be-
fore another administrative law judge, but the Board found
that further proceedings were not warranted because Bochner
had issued a form of apology to the judge.
Based on Bochner’s failure to follow my instructions not
to interrupt counsel in the middle of posing questions to a
witness and his failure to follow my instructions not to inter-
rupt witnesses in the middle of answering questions, and
based further on Bochner’s position that he would persist in
these interruptions, I shall recommend that the Board issue
a warning to Bochner. Bochner should be warned that he
must not interrupt counsel, the witnesses or the administra-
tive law judge, that he must follow the judge’s instructions
to cease his interruptions and that a failure to comply at fu-
ture hearings will result in sanctions being imposed by the
Board. See generally United States v. Dinitz, 538 F.2d 1214
(5th Cir. 1976).
CONCLUSIONS OF LAW
1. The General Counsel has not proved that Respondent,
Advanced Waste Systems, Inc., violated the Act as alleged
in the complaint.
2. Peter Martucci had no reasonable expectation of recall
to work on the date of the election and Vincent Harris had
been lawfully discharged on the date of the election and the
challenges to their ballots should be sustained.
[Recommended Order for dismissal omitted from publica-
tion.]