CBF, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1994

314 N.L.R.B. 1064 (N.L.R.B. 1994)

1064
314 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We do not pass on the judge’s discussion of the single employer
issue or the issue of derivative liability as unnecessary to the dis-
position of the unfair labor practice allegations.
2 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. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We also find no merit in the Respondent’s allegations of bias and
prejudice on the part of the judge. Thus, we find no evidence that
the judge prejudged the case, made prejudicial rulings, or dem-
onstrated a bias against the Respondent in his analysis or discussion
of the evidence. Similarly, there is no basis for finding that bias and
prejudice exist merely because the judge resolved important factual
conflicts in favor of the General Counsel’s witnesses. NLRB v. Pitts-
burgh Steamship Co., 337 U.S. 656, 659 (1949).
We agree with the judge’s conclusion that the Respondent had
knowledge of union activity when it began its campaign of unlawful
activity, but we do not rely on the judge’s finding of unlawful im-
pressions of surveillance by Supervisor Joseph Persely on July 10
and 25. We disagree with the judge that Persely’s actions on those
two occasions created the impression that employees’ union activi-
ties were under surveillance. We note that, in any event, the viola-
tions would be cumulative and do not affect the remedy or the
Order.
We correct the following inadvertent factual misstatements by the
judge: John Michael Stout, Steve Stout, and James Byers were laid
off on July 12, 1991, not June 12; Jacob Hartmen was laid off on
July 13, 1991, not June 13; David Romito was discharged on July
25, 1991, not July 26; and the Respondent instituted drug testing on
July 19, 1991, not June 19.
Finally, we deny the Respondent’s motion for oral argument as the
record, exceptions, and briefs adequately present the issues and posi-
tions of the parties.
3 The Order is modified to reflect the traditional language used to
order reinstatement and backpay.
CBF, Inc., and/or Charles Santangelo, Single Em-
ployers and United Mine Workers of America,
AFL–CIO. Cases 6–CA–23769, 6–CA–24186, 6–
CA–24646, and 6–CA–24804
September 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 23, 1993, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and an answering brief in opposition to the General
Counsel’s cross-exceptions, the General Counsel filed
cross-exceptions and an answering brief in opposition
to the Respondent’s exceptions, and the Charging Party
filed a response in opposition to the Respondent’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
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,1 findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, CBF,
Inc., and/or Charles Santangelo, Single Employers,
McClellandtown, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer to Robert Belch, James Byers, Jacob
Hartmen, Dennis Hornbeck, David Romito, Wesley
Shaffer, John Michael Stout, Steven Stout, and Marion
Strosnider immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed.’’
2. Insert the following as paragraph 2(b), and reletter
the subsequent paragraphs.
‘‘(b) Make whole employees Robert Belch, James
Byers, Jacob Hartmen, Dennis Hornbeck, David
Romito, Wesley Shaffer, John Michael Stout, Steven
Stout, Glenn O. Franks, and Marion Strosnider for any
losses they suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act by interrogating employees about
union support or union activities, by creating the im-
pression employees’ union activities are under surveil-
1065CBF, INC.
1 All following dates will be in 1991 unless otherwise indicated.
2 The General Counsel’s brief embraces a motion to correct certain
errors in the transcript. The corrections requested are appropriate and
the motion is granted.
lance, by threatening plant closure, layoffs, discharge,
loss of overtime, and vandalism of employees’ prop-
erty, by threatening unspecified reprisals, by soliciting
grievances and promising benefits, by stating that an
employee would be the first laid off or terminated be-
cause he attended a Board hearing, and by implying
that an employee would not have been terminated for
failing a drug test were it not for the Union.
WE WILL NOT terminate, lay off, or reduce any em-
ployees’ overtime opportunities, fail to recall employ-
ees from layoff, or institute a drug testing program for
all employees or otherwise discriminate against them
because of or in retaliation for their engaging in union
activities or other protected concerted activity.
WE WILL NOT unilaterally implement changes in
terms and conditions of employment without bar-
gaining in good faith.
WE WILL NOT unilaterally change contractual provi-
sions previously agreed to, fail and delay to provide
requested information relevant to the Union’s collec-
tive-bargaining duties, and fail and refuse to bargain
collectively with the Union with regard to layoff and
tenure, and fail and refuse to meet or to bargain collec-
tively because of a union’s filing of charges with the
Board or for any other invalid reason.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer Robert Belch, James Byers, Jacob
Hartmen, Dennis Hornbeck, David Romito, Wesley
Shaffer, John Michael Stout, Steven Stout, and Marion
Strosnider immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority and other rights and privileges pre-
viously enjoyed and WE WILL make them and Glenn
O. Franks whole for any loss of earnings and other
benefits resulting from their discharge or layoff, less
any net interim earnings, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to the discharges and lay-
offs and that these discharges and layoffs will not be
used against them in any way.
WE WILL, on request, supply the Union with the in-
formation it requested and on request rescind the drug
testing program and health care plan previously insti-
tuted and implemented and on request bargain in good
faith with the Union as the exclusive bargaining agent
of our employees with respect to their wages, hours,
and other terms and conditions of employment and em-
body any understanding reached in a signed agreement.
CBF, INC., AND/OR CHARLES SANTAN-
GELO, SINGLE EMPLOYERS
Leone P. Paradise, Esq., for the General Counsel.
Francis Recchuiti, Esq., of Norristown, Pennsylvania, for the
Respondent.
Thomas E. Waters Jr., Esq., of Blue Bell, Pennsylvania, for
Respondents as alleged single employers.
William Marion, Esq., of Washington, Pennyslvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Pittsburgh, Pennsylvania, beginning De-
cember 7 and concluding December 18, 1992. Subsequent to
an extension in the filing date, briefs were filed by the Gen-
eral Counsel and Respondent. The proceeding is based on a
series of charges first filed on July 25, 1991,1 by United
Mine Workers of America, AFL–CIO. The Regional Direc-
tor’s third consolidated amended complaint dated October 5,
1992, alleges that Respondent, CBF, Inc., of
McClellandtown, Pennsylvania, violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act by threatening
closure of its operations and interrogation and surveillance of
employees and creating an impression their union activities
were under surveillance; soliciting employee grievances; tell-
ing employees that termination for failing a drug test was re-
lated to union organizing; threatening employees with prop-
erty damage and bodily harm, denial of wages and unspec-
ified reprisals, discharging or laying off and failing to recall
or reemploy employees; reducing an employee’s overtime
hours; and instituting a drug-testing program because of
union organizational actions by employees. It is further al-
leged that Respondent unilaterally extended health care cov-
erage to certain employees and took actions regarding layoff
and recall without notice to or bargaining with the Union,
unilaterally changed previously agreed-on contract provi-
sions, failed and refused to provide the Union with requested
information, and has refused to meet and bargain in good
faith with the Union, all in violation of Secton 8(a)(1) and
(5) of the Act.
On a review of the entire record2 in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in operating a sani-
tary landfill in Western Pennsylvania.
It annually provides services valued in excess of $50,000
to other enterprises directly engaged in interstate commerce
and it admits that at all times material it has been an em-
ployer engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also ad-
mits that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. MOTION TO FURTHER AMEND COMPLAINT AND TO
REOPEN CASE
During the course of the hearing certain testimony was
presented which tends to indicate that Charles Santangelo,
president and owner of Respondent CBF Inc. (as well as his
mother, Helen Santangelo), has had an interest or affiliation
with several other business enterprises each with an office of
place of business in Norristown, Pennsylvania. At the close
of the hearing Respondent also stipulated that Charles
Santangelo, an individual, is a single employer with CBF,
Inc. The General Counsel’s motion alleges that Santangelo
Hauling, Inc., and Keystone Hauling, Inc. (both engaged in
transporting garbage), S.H. Bio, Inc. (transporting medical
waste), Santangelo Transfer, Inc. (transporting and storing
garbage), Gold Star Leasing, Inc. (equipment leasing to other
enterprises), and Gold Star Financial, Inc. (financial services
for the other enterprises), have been affiliated business enter-
prises with common officers, ownership, directors, manage-
ment, and supervision; have formulated and administered a
common labor policy; have shared common premises and fa-
cilities; have provided services for and made sales to each
other; have interchanged personnel with each other; and have
disregarded the corporate form of the entities and held them-
selves out to the public as single-integrated business enter-
prises, and that based on its operations as described, Re-
spondents CBF, Inc., Santangelo Hauling, Inc., Keystone
Hauling, Inc., S.H. Bio, Inc., Santangelo Transfer, Inc., Gold
Star Leasing, Inc., and Gold Star Financial, Inc. constitute a
single-integrated business enterprise and a single employer
within the meaning of the Act.
Respondent CBF, Inc. points out during the related rep-
resentation proceedings, CBF sought to have it and some of
the companies in Eastern Pennsylvania treated as the appro-
priate bargaining unit, but the Union objected and the parties,
with the approval of the Regional Director, agreed that only
CBF, Inc. was a proper party to the representation pro-
ceedings and that much of the financial information testified
to at the hearing was provided, in different form, to the
Board’s investigator more than a year before the trial pro-
vided the General Counsel with knowledge of such enter-
prises well prior to the time General Counsel rested and well
prior to the proffered amendment after Respondent was well
into its defense and it urges denial of the General Counsel’s
motion. Counsel for the named additional Respondents has
entered an appearance and protest the inclusion of the single-
employer issue in the case at this juncture.
The court of appeals in NLRB v. Browning-Ferris Indus-
tries, 691 F.2d 1117, 1122 (3d Cir. 1982), offered this fol-
lowing definition:
A ‘‘single employer’’ relationship exists where two
nominally separate entities are actually part of a single
integrated enteprise so that, for all purposes, there is in
fact only a ‘‘single employer.’’ The question in the
‘‘single employer’’ situation, then, is whether the two
nominally independent enterprises, in reality, constitute
only one integrated enterprise. . . . In answering ques-
tions of this type, the Board considers the four factors
approved by the Radio Union court. (380 U.S. at 256,
85 S.Ct. at 877): (1) functional integration of oper-
ations; (2) centralized control of labor relations; (3)
common management; and (4) common ownership.
. . . ‘‘Single employer’’ status ultimately depends on
all the circumstances of the case and is characterized as
an absence of an ‘‘arm’s length relationship found
among unintegrated companies.’’ [Citation omitted.]
In the instant hearing Respondent’s principal made certain
remarks concerning the long-term financial viability of its
landfill operations and, accordingly, the General Counsel, al-
though with apparent prior knowledge of the existence of at
least some of the other allegedly affiliated entities, became
concerned over the Respondents future ability to remedy any
backpay liability found warranted and has alerted Respondent
and these apparently affiliated entities to the possibility that
they may be derivatively responsible to remedy any financial
liability arising from unfair labor practices found in the pro-
ceeding. It is noted that it is the usual practice of the Board
to consider the issue of derivative liability at the compliance
stage of proceeding and, accordingly, the allegedly affiliated
Respondents are not required to attend or present a position
at the time of the initial hearing. By the same token, how-
ever, they cannot assert a lack of knowledge when they sub-
sequently are charged with derivative liability in order to sat-
isfy any unsatisfied liability charged to an affiliated entity
found to have engaged in unfair labor practices.
Here, there is no need to resolve the single-employer ques-
tion in order to establish the Board’s jurisdiction over the
primary Respondent and there is no corresponding necessity
to do so in order to determine the proper collective-bar-
gaining unit or to change the appropriate entity affected by
a collective-bargaining obligation. To attempt to pursue the
derivative liability issue at this stage of the proceeding, espe-
cially through a reopening of the General Counsel’s case in
chief and further hearing, is unnecessary and unduly burden-
some to the record, and otherwise needlessly interruptive and
untimely. The record and the allegations of the proffered
fourth amended complaint are basically sufficient for a
threshold showing of single-employer status that can be liti-
gated, if neccessary, and rebutted if warranted, at a possible
future compliance stage, supplemental proceeding. The alleg-
edly affiliated single-employer entities are on notice of that
possibility and they are further made aware that the Board
can and will disregard the corporate veil and that they can
be held accountable regardless of any subsequent event such
as a Chapter 11 bankruptcy proceeding involving CBF, Inc.,
or any division of assets to avoid backpay liability. See Hon-
eycomb Plastics Corp., 304 NLRB 570 (1991).
Accordingly, the General Counsel’s motion is denied and
this decision will be based on the allegations of this third
amended complaint.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent’s president, Charles Santangelo, purchased a
preexisting sanitary landfill facility (with four employees) in
McCellandtown (in Western Pennsylvania) in 1988, and a re-
lated trash collection business (with seven employees) the
following year. For many years Santangelo had been actively
operating Santangelo Hauling, a trash disposal company serv-
ing Norristown and Montgomery County (in Eastern Penn-
sylvania). His mother, Helen Santangelo, is president and
majority shareholder of that entity. CBF, Inc. was created in
1988 to operate this new landfill; however, Santangelo’s ini-
tial plans to utilize this facility for disposal of trash from his
1067CBF, INC.
3 On brief, the Respondent appears to renew its objection to a rul-
ing enforcing the exclusion of Manager Dean Mori from the hearing
room. On the fourth day of the General Counsel’s presentation of
witnesses, while the 16th witness, James Byers, was on the stand,
Mori entered the hearing room and was instructed to leave in ac-
cordance with the sequestration order, which was granted when Re-
spondent’s counsel requested ‘‘a sequestration of the witnesses,’’
Owner Santangelo was present through the hearing as Respondent’s
representative while alleged discriminatee John Michael Stout was
Charging Party’s representative and Union Representative John
Barnhart was selected as the General Counsel’s representative. Three
more witnesses appeared for the General Counsel after that ruling;
however, the Respondent fails to point to any testimony adduced that
could have been affected by the absence of Manager Mori to advise
counsel. Respondent otherwise fails to request any particular relief
and it fails to show how or why Mori’s presence at this late juncture
was ‘‘essential’’ to the presentation of its cause or how his exclusion
(until such times as he was called to testify) was prejudicial in any
respect. Accordingly, my ruling at the hearing is affirmed.
Montgomery County operation was precluded by the passage
of new regulations in Pennsylvania’s 1988 Waste Flow Act.
These regulations also set new standards (including double
liners in landfills) and required re-permitting of all facilities.
Construction of a new cell in accordance with state require-
ment proceeded in 1990; however delays and problems oc-
curred which extended the ‘‘cell’’ construction into 1991 and
engendered cash flow problems which required that CBF,
Inc. be subsidized by major loans from Santangelo Hauling
and Helen Santangelo personally, as well as from a group of
private investors. At times as many as 30 persons were em-
ployed until cell 1 construction was completed in June 1991.
Construction of a second lined cell was planned but was con-
tingent on obtaining financing. Certain layoffs of employees
began in July after cell 1 was completed.
The Union began an organizing campaign in early June
after an employee discussed with Union District 4 Secretary-
Treasurer Joe Volansky the possibility of organizing Re-
spondent’s employees. Shortly thereafter, John Michael
Stout, Wesley Shaffer, David Romito, and Robert Belch met
with Volansky and discussed organizing Respondent’s em-
ployees. These employees, along with Glenn Franks, became
the Union’s most vigorous supporters. Other meetings were
held which drew the attention of alleged ‘‘foreman’’ and Su-
pervisor Joseph Persely. Stephen Duranko, another ‘‘fore-
man,’’ also is alleged to be a supervisor. Dean Mori,3 who
initially worked at the facility as a consultant engineer, be-
came Respondent’s operations manager in the beginning of
1991. Miller Fahrig is an ‘‘agent’’ of the Respondent who
assisted and advised the Company on labor matters and ne-
gotiations.
On July 11, the Union filed a petition in Case 6–RC–
10644 and Respondent received a copy of the petition on
July 12 in the mail.
About noon on July 12, Respondent’s secretary (Sharon
Brewer) called Santangelo on a two-way radio and told him,
‘‘Well, we just got something. Something just came in and
I don’t think you’re going to like it.’’ Santangelo testified
that he was at the landfill on July 12, and did not deny re-
ceiving the call.
Mike Stout and Steven Stout (cousins) and James Byers
were laid off June 12 and the following Monday, June 13,
Hartman was also laid off. Meanwhile, some less-experi-
enced employees were retained. Meanwhile, certain other
events (described in the Discussion section herein) occurred,
many of which are alleged to have been unfair labor prac-
tices.
On July 18, in the early afternoon, insurance agent Mat-
thew Walsh faxed a letter to Respondent reminding Respond-
ent of the importance of establishing a drug-testing policy
and procedure for its truckdrivers. At 4 p.m. that same day,
Respondent assembled all of its employees for a meeting.
Santangelo told them that two employees would be fired for
stealing and that Respondent would not tolerate thieves.
Santangelo then stated that he did not understand why the
employees went to the Union instead of coming to him with
their problems, that he thought they were ‘‘all just one big
happy family.’’ He further explained that Respondent was
‘‘operating in the red,’’ that he could not afford to buy his
children school clothes, and that he was going to lose his
home over the union organizing campaign. Santangelo then
announced that drug testing of all employees would begin
immediately and that any employee who failed the drug test
or refused to take the drug test would be fired. Drug testing
of employees was implemented the next day and again on
July 25.
On July 26 employee David Romito was discharged fol-
lowing a discussion with Persely for allegedly stating that he
(Romito) was ‘‘going to close the place down.’’
A representation hearing in Case 6–RC–10640 was held
the morning of July 26. Employee Wesley Shaffer attended
as a subpoenaed witness for the Union. Shaffer arrived at the
hearing about 9 a.m. and sat with Union Officials Volansky
and Clemmy Allan and Union Attorney William Manion but
did not testify because the Union and Respondent signed a
Stipulated Election Agreement.
When Shaffer returned to work about 1 or 2 p.m.,
Santangelo asked him why he had not called on July 25 to
report off work for July 26. Shaffer explained that he did not
know until the night before that he was subpoenaed to appear
at the representation hearing. Santangelo told him he still
should have called and that if work ever got slow Shaffer
would ‘‘be the first one to go because he showed no inter-
est’’ in Respondent.
Respondent’s secretary then told Shaffer that Mori wanted
to speak to him before he left. Shortly thereafter, Mori re-
turned and told Shaffer that Respondent had just received
positive results on his drug test, and that he was discharged.
On August 8, Santangelo and Mori approached Belch at
the landfill and Santangelo told Belch that he had bad news,
that Belch had failed the drug test. Belch told Santangelo and
Mori that there was no way he could have failed but
Santangelo said he had it in black and white and would have
to terminate him. Santangelo told Belch that he was a very
good worker and that Respondent wished it did not have to
terminate him because he was a ‘‘no vote’’ for the Union but
that if he did not terminate Belch, the Union would find out
and that Respondent had already terminated one employee
for a positive result. Respondent said he could not keep
Belch on the payroll but that, depending on the outcome of
the election, if the Union did not win, Respondent would
consider retesting Belch and rehiring him. In mid-August be-
fore the election, Persely also advised Belch to ‘‘keep his
nose clean’’ and that, after the election, Respondent would
consider retesting him.
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent supervisors and agent had a number of con-
versations (described in the Discussion, below), with employ-
ees in the several weeks prior to the election, the election
was held on August 22. Employee Glenn Franks served as
the union observer. The final count was 10 for the Union and
7 against.
The day after the election Santangelo drove over to where
Franks was working and told him to get in his truck. He pro-
ceeded to tell Franks that Franks had ‘‘done him in’’ and
that it was all Franks’ fault that Respondent had lost the
election. Santangelo said that Duranko and Persely were
‘‘no’’ votes and, if their votes were counted, the tally of bal-
lots would have been 9 to 9 and if Franks had voted against
the Union, Respondent would have won the election.
Santangelo explained that maybe he should not blame
Franks for Respondent losing the election but that is what he
was doing and that it was all Franks’ fault. Santangelo told
Franks he did not understand how Franks could believe the
Union rather than him and that he felt as though Franks had
betrayed their friendship. Santangelo said he didn’t care if
someone blew up the landfill. He mentioned that he knew
Franks had been at the Union party after the election and
asked if he had heard the Union making any plans against
him. Santangelo then said he felt like someone had died, that
he would no longer talk to Franks and that Franks should
now return to work.
The same day Duranko told employee William Rummel to
tell Franks that he was no longer permitted to operate equip-
ment, that Franks was just a laborer and that two new hires
were permitted to operate the equipment but that Rummel
and Franks were not.
A week later on about August 29, before noon, Mori drove
over to Franks at the landfill and roughly handed Franks a
copy of the unfair labor practice charge filed by the Union
in Case 6–CA–23859. Mori told Franks that these are the
‘‘assholes that you voted to represent you’’ and that if the
Union is going to take that attitude, Respondent and the
Union are not going to be able to work things out.
The Union and Respondent began negotiations for a col-
lective-bargaining agreement in September. The Union’s ne-
gotiating team consisted of Volansky, Franks, and employee
Richard Hagner. Respondent’s negotiating team consisted of
Fahrig, as principal negotiator, and Mori. The parties met
about five times in September and October, and negotiated
a number of noneconomic issues, many of which were
agreed on. They also discussed the reinstatement of the six
employees who had been discharged and Respondent pro-
vided the Union with a seniority roster.
At the October 31 negotiating session, Union Deputy Re-
gional Director for Region 1 Keith Barnhart replaced
Volansky as the chief negotiator for the Union and the par-
ties discussed procedural guidelines for bargaining (Fahrig
admittedly was unfamiliar with labor negotiation), reviewed
the contractual provisions previously discussed and agreed on
certain of them.
Thereafter, the parties met for negotiations about eight
times between October 31 and April 29, 1992.
At the November 2 negotiating sessions, the parties agreed
and signed off on guidelines for negotiations and before the
next November 21 negotiating session and Barnhart sub-
mitted a number of contractual proposals for Respondent’s
review.
At the next meeting the parties reviewed, agreed on, and
signed off on 21 contractual articles and reviewed the
Union’s economic proposals, and also discussed the Union’s
assistance to Respondent in securing contracts with various
potential customers. Fahrig frequently responded that Re-
spondent simply could not afford the Union’s economic pro-
posals.
Barnhart told Fahrig that the Union, without seeing Re-
spondent’s financial documents, could only await Respond-
ent’s counterproposals and said that if Respondent did not
provide the Union with financial statements, Barnhart doubt-
ed that the bargaining unit employees would accept Respond-
ent’s claim of financial hardship. The parties also discussed
a health care plan for the employees and Barnhart asked
Fahrig if the Union were able to obtain more extensive
health care coverage for the employees for less money,
would Respondent be willing to consider such coverage.
Fahrig agreed and also advised Barnhart that Respondent did
not have a problem with the union-security clause, but that
Respondent’s agreement to that provision would be the quid
pro quo for the Union’s agreement to allow Santangelo’s
children to work at the landfill.
In mid-December, Barnhart called Fahrig because Re-
spondent had canceled the two negotiating sessions set for
December 11 and 12, and asked Fahrig what the problem
was. Fahrig replied that Respondent had received two more
unfair labor practice charges and added that ‘‘it’s real hard
to negotiate when you keep filing these god damn charges.’’
Employees Steven Stout, Byers, and Strosnider were laid
off in December. Despite an exchange of phone calls be-
tween Fahrig and Barnhart during this period, Respondent
admitted that it did not notify the Union or afford it an op-
portunity to bargain regarding these layoffs.
In mid-January 1992, the parties agreed to a contract pro-
vision that allows Santangelo’s children to perform work at
Respondent; however, on January 16, subsequent to the filing
of a charge involving the December layoffs, Respondent sent
a letter to the Union, that Respondent viewed a recent unfair
labor practice charge filed by the Union as ‘‘counter produc-
tive’’ and would ‘‘consider’’ the unfair labor practice
charges when the parties ‘‘discuss the financial side’’ of the
contract.
Meetings and exchanges occurred in January and February
including an abortive meeting between Santangelo and Union
officer Donald Redman in which Santangelo immediately
launched a profane tirade against the Union with frequent
references to the Union’s filing of additional charges.
March and April meetings included discussions of health
care benefits and Respondent’s economic condition and an
agreement on a seniority list for recalls and layoffs.
Employee and union negotiating team member Franks was
laid off for 5 days on April 6, 8, and 13 and May 8 and 23,
1992, by Mori, who told Franks there was no work available
because the backhoe was not working. Franks was not as-
signed to work mine loads by hand as had occurred on other
occasions when equipment was not operative.
On May 5, 1992, Respondent, by letter, submitted a num-
ber of contract proposals to the Union and, on May 18,
Barnhart advised Fahrig that the Union had received health
care benefits information and that the cost would be $400 in
excess of Respondent’s current health care cost per em-
ployee. Fahrig said that would not be a problem, but that the
1069CBF, INC.
entire contract was contingent on the Union ratifying the
wages. The Union advised Respondent that it would accept
Respondent’s wage proposal and that the membership would
ratify the entire agreement.
On May 19, 1992, the Union faxed and mailed to Re-
spondent information concerning health care benefits and life
insurance and on May 20, mailed Respondent a collective-
bargaining agreement enbodying the provisions the Union
believed the parties had agreed on. It then faxed Respondent
the outstanding contractual provisions which the parties had
orally agreed to, but had not signed off on.
Late that same afternoon, Fahrig called Barnhart and re-
viewed with Barnhart some differences in Respondent’s un-
derstanding of the contractual provisions agreed on. Barnhart
suggested that Respondent make the appropriate modifica-
tions to the contract, sign off, and return the contract to the
Union. On June 1, Barnhart called Fahrig and asked him
about the status of the contract but Fahrig told Barnhart that
he and Santangelo had agreed that it was going to be very
difficult for Respondent to work with the Union because the
Union was continually trying to ‘‘fuck’’ Respondent by fil-
ing unfair labor practice charges.
On June 4, Case 6–CA–24600 was filed by Duranko (not
the Union), alleging that he was discharged on April 27,
1992, in violation of the Act.
Meanwhile, employee and truckdriver Dennis Hornbeck,
an early union supporter, was elected president of the local
unit in May. He previously had been involved in 1991 in a
nonwork-related motor vehicle accident near Respondent’s
landfill. While absent from work and in the hospital, he was
visited by Forman Persely. Hornbeck asked Persely what
would happen if he lost his license because of the accident.
Persely told Hornbeck that he could take a chance and drive
without a license or Respondent would try to work some-
thing out by assigning Hornbeck to work in the landfill until
he got his license back.
On June 5, 1992, Hornbeck was notified that he was re-
quired to surrender his driver’s license for 30 days and so
advised Union Representative Volansky. Volansky imme-
diately telephoned Mori to request a meeting regarding the
revocation of Hornbeck’s license. Later in the afternoon Mori
met with Volansky and District 4 President Ed Yankovich.
After a discussion of the revocation of Hornbeck’s license
for 30 days, Mori told Volansky that while the Union wanted
assistance from Respondent in the Hornbeck matter, the
Union did not offer much assistance to Respondent. They
then discussed what the Union could do to assist Respondent
in maintaining some of its trash collection contracts and
Yankovich told Mori that the Union would do everything
within its power to assist Respondent to secure and keep
contracts and offered to write letters to various township and
borough officials in support of Respondent.
Mori advised the Union that he had no problem assigning
Hornbeck to either the landfill as a laborer or to the garbage
trucks as a helper and stated, ‘‘30 days is not that long a pe-
riod of time. He is a real good worker and we would hate
to lose him. Tell Dennis to report to work on Monday at 7
a.m. and we’ll find something for him to do. We’ll make ar-
rangements then as to what he can do for this 30 day period
of time.’’
When Hornbeck reported to work on Monday, June 8,
1992, Mori told Hornbeck that he did not think it would ever
come to this but that Mori had to terminate him. Mori then
advised Hornbeck to come back next week to talk to
Santangelo but not to bring the Union with him as
Santangelo did not like anyone telling him what to do and
that Santangelo might assign Hornbeck to work as a laborer
in the landfill. Except as discussed above, no notice or bar-
gaining occurred over the discharge decision.
On June 8, Barnhart called Fahrig again and was told that
Respondent had received two more unfair labor practice
charges and that it was going to be impossible to reach
agreement on a contract because the Union was continually
filing unfair labor practice charges. Also on June 8 Respond-
ent sent the Union a letter saying that the ‘‘Union’s contin-
uous filings of frivolous cases is also a strain on negotiations
and that it would promptly implement health care coverage
for Respondent’s employees not presently receiving health
care benefits.
On June 10, the Union notified Respondent, by letter, that
it would agree to health care coverage for bargaining unit
employees as long as the health care coverage was that pro-
vided in the Blue Cross/Blue Shield plan, that the Union had
submitted to Respondent on May 19, 1992, or another plan
that provide the same coverage.
On June 19, Respondent notified the Union, by letter, that,
it would implement health care coverage for Respondent’s
six bargaining unit employees who were without health care
coverage and stated that these employees would receive the
same health care coverage that Respondent’s other employ-
ees received.
Barnhart requested a copy of the health plan. After it was
not provided ‘‘within the next few days’’ as promised, a
charge related to that request was filed by the Union on June
24. On June 26, 1992, the Union requested, by letter, infor-
mation showing the health care coverage provided to the bar-
gaining unit employees and the costs of that coverage in
order for the Union to evaluate the health care plan and to
determine if the health care coverage implemented by Re-
spondent was substantially identical to the coverage the par-
ties had agreed upon. The Union also required financial in-
formation relating to the parties’ negotiations of the Enabling
Clause Agreement.
On July 28, Respondent submitted 25 contractual provi-
sions, previously agreed to by the Union which included uni-
lateral changes by Respondent to articles 1, 3, 6, 11, 15–17,
21, and 25 and appendix D.
On Tuesday, August 4, after giving notice to Persely and
receiving approval, Franks took off from work to meet with
a Board attorney. On Friday August 7, he inquired if he was
scheduled for his frequently assigned Saturday overtime
work but was told there was nothing for him. He questioned
Mori about the matter after learning that all other employees
had worked overtime that day. Mori said that Franks had his
‘‘priorities mixed up,’’ and had messed up Mori’s schedule
and, therefore, he messed up Franks’ schedule. Mori said he
had been told by employees that Franks was at the union hall
on August 4 on union business. Mori told Franks Respondent
was not going to reward him with time and one-half when
he was ‘‘in the enemy camp’’ on union business. Franks ex-
plained, in more detail, why he had been off on August 4
and Mori said that if he had known Franks was meeting with
the Board attorney it might have made a difference or it
might not have, but that as far as Mori was concerned,
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Franks was off on union business and that is why he was
denied overtime on August 8.
On August 14, Respondent, by letter to the Union, ac-
knowledges that Respondent had ‘‘revised’’ the articles pre-
viously agreed to by the parties. On August 19, the Union
requested Respondent to set aside dates for collective bar-
gaining and on September 3, Respondent advised the Union
that the Union’s ‘‘continual filing’’ of unfair labor practice
charges, which Respondent viewed as ‘‘frivolous and unwar-
ranted’’ did ‘‘not help’’ the collective-bargaining process.
The Union, by letter, again asked Respondent to provide the
information previously requested and to establish dates on
which the parties could meet face-to-face to negotiate.
Since September 1992, Respondent has not contacted the
Union to resume contract negotiations and the parties have
not met to negotiate since April 1992. The Union did not re-
ceive either the health care or financial information that it re-
quested except to the extent that after the hearing opened
such information was embraced in the documentation made
available in response to the General Counsel’s subpoena.
IV. DISCUSSION
The issues in this case arose during a brief union organiza-
tion drive starting in June 1991 that culminated in a union
election victory on August 22. The Union drive coincided
with the Employer’s completion of construction on one phase
or ‘‘cell’’ of its landfill operation as well as with the Em-
ployer’s decision to implement a drug-testing program, both
of which generated the layoff or termination of employees.
The Employer also took certain actions both during and after
the union organizational drive, that are alleged to be unfair
labor practices and, in addition, it failed to sucessfully com-
plete negotiations for an initial collective-bargaining agree-
ment with the Union under circumstances that are alleged to
be indicative of bad-faith bargaining. The Respondent’s de-
fense of its actions is based on its assertation that it is a
small employer and that the dismissals were for ligitimate
business reasons and that the Union is at fault and has failed
to bargain in good faith. Otherwise, Respondent’s brief and
argument on brief generally fails to tie in its requested find-
ings of facts and citations of authority with specific allega-
tions of the complaint.
A. Supervisory Status of Persely and Duranko
Section 2(11) of the Act defines a supervisor as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsible to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
It is not necessary that an individual possess all the indicia
identified in Section 2(11) of the Act to be considered a su-
pervisor. Here, the record shows that Persely was salaried
and enjoyed the use of a company vehicle and he shared use
of the office used by Owner Santangelo and Manager Mori.
He was the only supervisor present between 5 and 8:30 a.m.
and he had the responsibility to direct and assign truckdrivers
and helpers to specific garbage routes and to transfer them
to other routes or work when such reassignment became nec-
essary. Persely hired or effectively recommended the hiring
of numerous employees and he disciplined employees, giving
them oral and written warnings as well as suspensions, and
Mori told employees, who had asked Mori who they were
supposed to report to, that Persely was in charge of the
truckdrivers and garbage trucks.
Duranko, who was not called by Respondent as a witness,
was in day-to-day onsite charge of construction at the land-
fill; he arrived at work about 6:30 a.m. and was the highest-
ranking personnel at Respondent’s facility with responsibility
for laborers and equipment oprators for 2 hours or more
every morning. Duranko assigned employees work on a daily
basis, telling them what to do and where to work. He would
assign the employees additional work and transfer employees
from job to job during the day and Mori told employees that
Duranko was ‘‘in charge’’ when they were working in the
landfill.
The Respondent’s proposed findings of fact assert that
both Duranko and Persely operated equipment and did not
have the power to hire, fire, or discipline, however, Respond-
ent’s argument fails to pursue the issue or to offer any posi-
tion or authority for the evaluation of their supervisory sta-
tus. The record shows that Persely in fact did discipline em-
ployees and made effective recommendations on hiring and,
moreover, at the time of the election, both Duranko and
Persely were excluded from the unit because of their appar-
ent supervisory status. Although Duranko’s responsibilities
may have deminished in the latter part of 1991, and Persely
became more involved in truck operations, the record shows
that both Duranko and Persely exercised the use of inde-
pendent judgment in directing employees in their respective
areas during the critical time period involved and the em-
ployees reasonably believed that both were authorized to act
on behalf of management as their supervisors.
The mere fact that they spent a portion of their time on
manual, nonsupervisory labor and that the manager or owner
would sometime countermand their actions is not controlling.
Both made independent judgments in directing employees,
and both were the highest-ranking employee in their respec-
tive areas and were held out by management to be the boses
of day-to-day operation and no higher manager was ever on
the premises for up to 3 hours or more at the start of each
day. Santangelo was not at the facility on a daily basis and
it is clear that Mori prinicipally was involved in the engi-
neering, technical, and regulatory aspects of landfill oper-
ations rather than the day-to-day collection and disposal of
trash or the day-to-day grading and basic site preparations
also involved and he would have been the only onsite super-
visor were it not for the presense of Persely and Duranko.
Under these circumstances, I find that the overall record
shows that both Persely and Duranko exercised functions as
statutory supervisors under Section 2(11) of the Act, see
Schmuck Markets v. NLRB, 961 F.2d 700, 706 (8th Cir.
1992), and cases cited therein and, accordingly, their conduct
in relation to Respondent’s employees properly is attributable
to the Respondent, see United Artist Circuit, 277 NLRB 115,
121 (1985).
1071CBF, INC.
B. Alleged Violations of Section 8(a)(1)
It is well established that Section 8(a)(1) of the Act pro-
hibits interference, restraint, or coercion of employees in the
exercise of their right to self-organization and that an em-
ployer’s threats to take actions against employees if they se-
lect a union as their collective-bargaining representative or
related actions during a union campaign in interrogation or
surveillance of employees or in solicitation of grievances and
promises of benefits are classic examples of behavior that
interferes with employee Section 7 rights.
1. Surveillance and interrogation
On July 10, the night of the first union organizing meet-
ing, Persely drove to employee Belch’s home and asked his
wife if he was at home. When informed that Belch was out,
Persely drove off without leaving a message or further expla-
nation. Near the same time, employee Romito received a
telephone call from an individual who did not leave his name
or a message.
I credit the testimony of employee Byers that on July 25,
the night of the second union organizing meeting, Persely
telephoned him and asked if his ‘‘buddies are having a union
meeting tonight?’’ When Byers told Persely he did not know,
Persely persisted and asked, ‘‘you do not know where they
went either?’’ No legitimate business reason for Persely’s
question was offered and as Persely’s comment did not con-
tain any assurances against reprisal, Byers’ refusal to divulge
any information is indicative of the coercive effect of the
questions. These questions, on the night of the second union
meeting, also indicate that Persely had a similar and im-
proper motive for his unexplained visit to an employee’s
house on the night of the first meeting. Persely admitted that
once or twice another employee had told him that a union
meeting was going on and otherwise he did not rebutt or oth-
erwise explain these occurrences. Under these circumstances,
I conclude that these employees could reasonably assume
from Persely’s actions that their union activities had been
placed under surveillance. See Hudson Oxygen Therapy Sales
Co., 264 NLRB 61 (1982).
On July 13, the day after Respondent received the petition
in Case 6–RC–10640, Persely drove his truck up to where
Franks and Shaffer were working, jumped out, and asked
them, ‘‘Who in the hell started this bull shit union?’’ and
stated that if he found out who started the Union he would
burn that employee’s house, car, and everything else. Re-
spondent subsequently apologized to Franks and Shaffer for
Persely’s threat. Although Persely had denied making them,
he was ‘‘chewed out’’ by Manager Mori and told to listen
to what Mori had to say and to keep his mouth shut.
On August 23, the day after the election, Santangelo told
Franks that it was all Franks’ fault that Respondent had lost
the election, then analyzed the election results and told
Franks that if Franks had voted against the Union, Respond-
ent could have won the election (if Persely and Duranko had
not been challenged as supervisors). Santangelo then told
Franks that he knew Franks had been at the union party after
the election and asked if he had heard the Union making any
plans against him. Santangelo’s statements to Franks implied
surveillance of the employees’ union activities and his ques-
tions, even though made to an open union supporter, were
about the union activities of other employees and were made
in the context of a highly coercive and confrontational con-
versation. Subsequently, on August 10, 1992, Mori had occa-
sion to comment to Franks that he was ‘‘in the enemy
camp’’ and that he knew Franks had been at the union hall
on union business. This statement clearly warns the em-
ployee that his union activities are being watched even after
the election is long over, yet at a time when contract negotia-
tions have been unsuccessful and, as found below, have been
unlawfully discontinued.
These incidents of interrogations and surveillance, and in
giving the impression of surveillance, were not random oc-
currences nor were they merely innoculous casual conversa-
tions. They occurred repeatedly and before and after the elec-
tion and while contract negotiations should have been ongo-
ing. They occurred not in a vacuum but under circumstances
that included threats and other illegal conduct and they thus
display the necessary indicia of coercion and I find that in
each of the incidents discussed above Respondent’s conduct
is shown to have violated Section 8(a)(1) of the Act, as al-
leged, compare Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
2. Threats
The credible testimony of employees Franks and Steven
Stout shows that on several occasions in June, July, and Au-
gust 1991 Supervisors Mori and Duranko each made remarks
to the effect that Respondent could not afford a union, and
that if the employees elected the Union there would be cut-
backs or layoffs and that Respondent might close down or
sell out.
As will be noted later, of particular significance is Steven
Stout’s testimony (unrebutted by Duranko) that in July,
Duranko told Stout that he had been talking to Santangelo
who said he would sell the Company if the employees elect-
ed the Union to represent them and that Santangelo was
going to ‘‘hire six niggers’’ to do the work of six employees
who already had been laid off and/or discharged instead of
recalling or reinstating them.
As noted above, Franks (and Shaffer) credibly testified
that when Persely aggressively questioned them about ‘‘who
in the hell’’ started the Union he also threatened that if he
found out, he would burn their house or car. It is observed
that the record shows Persely regularly carried a firearm (a
.357 Magnum), at the landfill and that his demeanor while
testifying was blunt and aggressive and fully consistent and
in character with the conduct attributed to him.
These threats tellingly indicate to the employees that they
will lose their job, be laid off and replaced, or subjected to
vandalism of their property if they persist in attempting to
obtain union representation. Accordingly, I concluded that
these threatened reprisals have interfered with and coerced
employees in their attempted exercise of their Section 7 right
and I find that Respondent is shown to have violated Section
8(a)(1) of the Act in these respects, as alleged.
Subsequent to the election Duranko was terminated by the
Respondent and he filed a charge, not a part of those pro-
ceedings, with the Board. In June 1992, Mori told Franks,
the Union’s vice president, that he had heard Franks was
helping Duranko get his job back and then warned: ‘‘I am
telling you right now, that if you or anybody else tries to
help Steve get his job back, they are going to be in serious
trouble and have serious problems.’’ This event was wit-
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nessed by employee Richard Hagner (a current employee of
Respondent who has never been laid off) who recalled that
he heard Mori tell Franks that ‘‘anyone trying to help Steve
get his job back, would be in serious trouble with him.’’
Hagner testified that he thought Mori meant that person
would be discharged.
On August 10, 1992, Mori also told Franks, that he was
not assigned overtime on August 8 because Franks had ‘‘his
priorities mixed up,’’ had taken off work on union business,
and would not reward Franks with time and one-half. This
action constitutes a threat to withhold from Franks the oppor-
tunity to engage in regularly available overtime and in each
instance the threat is related to Franks’ participation in union
activities and, for the reasons noted above, coercively inter-
feres with employee rights in violation of Section 8(a)(1) of
the Act, as alleged.
3. Solicitation of grievance and complaints and
promising of benefits
In mid-July, prior to the election, Mori asked Belch why
employees were supporting the Union. After Belch said he
thought employees were mistreated, Mori asked why that
was the case and why the employees did not come to him
with their problems. Mori asked Belch to tell the employees
to come to him with their problems instead of ‘‘dragging the
Union in on it’’ because Respondent ‘‘didn’t need a third
party telling them how to run their business.’’ This question
constitutes an unlawful solicitation of grievances with the
implied promise to favorably act on the complaints if the em-
ployees bypass the Union, and I find that it violates Section
8(a)(1) of the Act, as alleged.
4. Advising employees that, but for the union
organizing campaign, employees would not have been
terminated for failing the drug test
On August 8, Santangelo told Belch that he was termi-
nated because he had failed the drug test. Belch credibly tes-
tified that Santangelo said he was a good employee and that
Santangelo wished he did not have to terminate Belch be-
cause he was a ‘‘no vote’’ for the Union but that Respondent
could not keep him on the payroll because the Union would
find out and Respondent had already terminated one em-
ployee for a positive result. Santangelo then suggested that,
if the Union lost the election, Respondent would consider re-
testing him. The effect of this statement is to make it plain
that, but for the union organizing campaign, good employees
would not have been terminated as the consequence of one
drug test and that if most of the employees vote against the
Union he might well be rehired.
Accordingly, Respondent’s conduct is shown to interfere
with employee rights and I find that it is a violation of Sec-
tion 8(a)(1) of the Act, as alleged.
C. Layoffs, Terminations, and Other Alleged Violations
of Section 8(a)(3)
In a layoff or discharge case of this nature, applicable law
requires that the General Counsel meet an initial burden of
presenting sufficient evidence to support an inference that the
employees’ union or other protected, concerted activities
were a motivating factor in the employer’s decision to termi-
nate them. Here, the record shows that Respondent’s owner
was well aware of union activity and that he personally, as
well as his supervisors and agents, also had engaged in cer-
tain unfair labor practices, otherwise discussed above, in an
attempt to interfere with their free exercise of their right to
select a union as their bargaining representative if they so
chose.
While the record shows that owner Santangelo is justifi-
ably proud of having developed his various business interest
and the prinicipal Respondent company, CBF, Inc. (taken
from the first names of his three children), it also shows that
he was especially challenged by state regulatory burdens, fi-
nancial burdens (at least partially attributable to the general
economy), and competition from a large, nationwide waste
management concern. Having successfully completed the reg-
ulated construction of one new cell, he also was faced with
the need to proceed with the planning for the development
and financing of the next cell, in June 1991, and he suddenly
was faced with employee involvement in the organization of
a union.
He did not quietly accept this challenge. Statements and
conduct attributed to him (much of it not seriously con-
troverted) show that he rigorously, intemperently, and
profanely responded regarding his perceived rights, but with
little regard for the possible rights of others. This conduct
continued after the election and during the period of negotia-
tions and reinforce the indication that Santangelo consistently
expressed union animus both before and after the union elec-
tion and it all strongly supports an inference that this animus
was a motivating factor behind Respondent’s layoffs, termi-
nations, and sudden implementation of drug testing and other
retaliatory actions. In this connection, I especially find
Santangelo’s assertion that he didn’t open the mail on July
12 (which included the union petition) until the next day to
be unbelievable in view of the credible testimony that he was
told at noon on July 12 by his secretary that he had some
mail he ‘‘wouldn’t like.’’ Respondent’s animus, combined
with the timing of these principal actions shortly after the or-
ganization notice was received by Respondent and prior to
the election, as well as the contemporaneous commission of
the various illegal practices discussed above, all provide
ample evidence to establish a prima facie showing that Re-
spondent’s actions were unlawfully motivated. I also find
that the record shows that Respondent was discriminatorily
motivated against all of its employees because of the Union
(for example, Respondent’s indications to Belch that it
couldn’t keep him on the payroll even though he was ex-
pected to be a ‘‘no’’ vote, because it already had terminated
one person as a result of the drug test, and the Union would
find out), and specific proof of an awareness of each individ-
uals union activity is not required under such circumstances.
See American Warehousing Services, 311 NLRB 371 (1993).
Although it is true that the ultimate burden rest with the
General Counsel, once the General Counsel establishes a
prima facie case, the burden shifts to the Respondent to show
that it would have taken the same action even in the absence
of union considerations. See 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). Accordingly, the testi-
mony will be discussed and the record evaluated to consider
Respondent’s defense and, in the light thereof, whether the
General Counsel has carried his overall burden.
1073CBF, INC.
Respondent contends that union activity didn’t begin until
younger, newer employees ‘‘realized’’ that when construction
(of cell 1) ended, so would their jobs. Somewhat incongru-
ously, it then notes that layoffs are not required to proceed
along seniority lines, a factor that ‘‘younger, newer employ-
ees’’ would seemingly not be opposed to.
There is evidence that Persely engaged in surveillance of
employee Belch the night of the first formal union organizing
meeting on July 10, a meeting that was attended by many
of those involved in Respondent’s alleged retaliatory actions
(previous to this time, employees Mike Stout, Shaffer,
Romito, and Belch had began discussing a union with others
at this rather small facility). Clearly, however, Santangelo
was notified at noon on July 12, prior to the issuance of any
layoffs, that ‘‘something’’ he wouldn’t like (the Union’s peti-
tion) had arrived. Accordingly, I specifically discredit
Santangelo’s testimony that he didn’t learn of the union ac-
tivity and organizational drive until after the first layoff (on
Friday, July 12).
Between 3 and 3:30 p.m., select employees were told to
report to Santangelo or Mori before leaving. These included
M. Stout, Steve Stout, and Byers; Hartman was told the fol-
lowing Monday. None of the employees had any advance no-
tice or warning prior that any layoff would occur then and,
in response to a question by Steve Stout, Mori said the selec-
tions were determined by seniority and the versatility of the
equipment operators.
Although Respondent’s proposed findings of fact included
some probative and credible information about Respondent’s
financial condition, the completion of cell 1, delays in devel-
opment of cell 2, and a reduced need for employees, its argu-
ments on brief fail to tie these facts in with any aspects of
the need for or manner of implementation of the layoffs. Al-
though Respondent contends that over 30 persons were
working ‘‘at the landfill’’ at some point prior to the comple-
tion of cell 1, it appears that this number included those who
were involved in installation of the ‘‘liners’’ required by
state regulations.
The Respondent cites cases for the general propositions
that an employee’s efficiency, degree of skill, versatility, se-
niority, or other factors can be a proper basis for a layoff,
yet it fails to apply any part of the record to show the appli-
cability of its citations. As noted above, the Respondent has
the burden of showing the layoffs and related actions were
based on ligitimate business reasons; however, no analysis is
made of the work available, the skills needed, and the num-
ber of employees required and there is no evidence that any
such analysis was made at or prior to July 12. And, although
Respondent asserts that cell 1 was finished at some time in
mid-June, there is no explanation or indication of why lay-
offs didn’t occur until mid-July or, if in fact the need for lay-
offs had been predetermined, why employees were suddenly
laid off without any advanced notice whatsoever.
The only apparent intervening factor that would trigger
Respondent’s actions was the receipt of the Union’s recogni-
tion petition which occurred only a few hours before the lay-
offs. The receipt of the petition apparently confirmed Re-
spondent’s preexisting knowledge that some union activity
was taking place and it triggered an apparent immediate re-
sponse.
Less then a week latter, Mike Stout’s layoff was converted
into a termination because of a report that he had made a
derogatory comment. The previous day, July 18, Respondent
had an employee meeting to announce the start of a drug-
testing program to begin the next day. Shortly thereafter,
Romito and Shaffer were terminated, the latter as a purported
result of his drug test and, on August 8, Belch was termi-
nated for the same reason.
Turning first to the four initial layoffs, I find little evi-
dence that would show that such layoff would have occurred
as they did, without any advanced notice on July 12 and 15,
regardless of the employees’ union activities and, specifi-
cally, the clear public unveiling of that activity formalized by
the Union’s recognition petition to the Board, received earlier
the same day by the Respondent.
The requested factual finding that Santangelo had no
knowledge that any of these particular employees were in-
volved in union activities is meritless under the circumstance.
I discredit his claim in that respect and find that there is
ample circumstantial evidence as well as the showing of in-
terrogation and surveillance, to infer that Santangelo or his
agents were at least suspicious that certain ‘‘younger newer
employees’’ were behind the union activity, see NLRB v.
P. E. Guerin, Inc., 999 F.2d 536 (2d Cir. 1993) (mem.).
Clearly, Mike Stout was one of these suspected employees
and, in fact, was one of the four initial organizers. Less than
1 week after his layoff, Respondent seized on some gossip
and converted Stout’s layoff into a discharge.
My evaluation of the demeanor of Mike Stout as a witness
is that he was balanced, straightforward, and credible and I
credit his testimony over that of other witnesses whose testi-
mony may in part conflict with his.
On July 19 Mike Stout went with his cousin to get his last
paycheck. Santangelo gave a check to Steve but asked to
speak privately with Mike who asked if there was a problem.
Santangelo said he hadn’t returned his uniforms yet and
when Stout said, ‘‘no problem I can bring them back,’’
Santangelo added, ‘‘I already fired one man for stealing and
you know if you don’t bring them back I could fire you on
the same grounds,’’ Santangelo then said that two people had
told him that I had called him a ‘‘fat Dago.’’ Stout said it
was not the truth, that they were lying, and he asked him
who it was and Santangelo said it was none of his business.
Santangelo then looked at Stout and pointed his finger at
him, and said, ‘‘if I find out that this is the truth, I’m coming
after you.’’
Although other laid-off employees were recalled, including
his cousin, Stout was never recalled and Respondent admits
and argues that he was justifiably terminated for making eth-
nic slurs.
Mori testified that he told Santangelo that Mike Stout had
an ‘‘attitude problem’’ and specifically that Stout had called
him ‘‘the Pillsbury Doughboy’’ and Santangelo a ‘‘fat
Dago’’ and that Santangelo became ‘‘enraged’’ when he
heard it. Mori also testified that the ‘‘Doughboy’’ comments
had occurred in the spring and that the alleged ‘‘fat Dago’’
comment had been when he came by a ‘‘whole group’’ of
operators who were congregating near the fueling tanks
‘‘close to evening’’ and ‘‘they’’ wanted to know answers
about what Respondent was doing, apparently about wages.
Stout admitted that he had referred to Mori to his face as
the ‘‘Pillsbury Doughboy’’ in jest on a few occasions in
April or March when they were working together getting the
liner into the landfill and that he just felt comfortable around
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mori and said the guys were just joking. There is nothing
to indicate that Mori took that to be insubordinate or offen-
sive conduct or that he expressed any disapproval at the
time.
As noted, Santangelo became ‘‘enraged’’ when he heard
Mori’s belated report. He made no effort to investigate the
circumstances of the ‘‘Doughboy’’ comment and, despite
Stouts denials, made no investigation of the circumstances of
the asserted ethnic remark. Inasmuch as the latter remark
came from a whole group of operators asking questions close
to evening it certainly seems possible that Mori could have
mistaken who, if anyone, had made the alleged remark and
I am not persuaded that Stout was accurately accused of the
deed. Moreover, the record otherwise fails to show that such
a comment, let alone the jesting Doughboy remark, was of
such a nature (although regrettable) in this particular work-
place setting that it would justify an employees discharge.
Credible evidence indicates that Foreman Duranko has
said that Santangelo said he would sellout if the Union won
the election and that Santangelo would hire six ‘‘niggers’’ to
do the work of the laid-off employees. This clearly discredits
the claim that Respondent would not tolerate ethnic (or ra-
cial) slurs and indicates that Respondent’s reason for con-
verting Stout’s layoff to a discharge is false and pretextual.
The pretextual nature of Respondent’s claim regarding Stout
is further amplified by its failure to tell Stout this reason at
any time prior to the hearing and belated attempt to assert
that Stout was not a good operator, because he abused equip-
ment and operated too fast. Most of the other employees tes-
tified that Mike Stout was highly skilled or was the best and
most versatile. Most specifically, the testimony by Steven
Stout that when he questioned Mori about the criteria for the
layoff Mori agreed that Mike Stout was ‘‘the most competent
and versatile equipment operator’’ stands unrebutted. Al-
though Stout was twice cautioned about driving too fast, it
is observed that this occurred at a time when Respondent as-
sertedly was rushing to meet construction deadlines and their
is little indication (one ripped liner and one routine equip-
ment problem) that his attempt to operate expeditiously had
any negative effects.
Moreover, when the Respondent initially laid off Mike
Stout, he was told he would be recalled when business im-
proved, not that he was a poor or ‘‘unproductive’’ employee.
Finally, Respondent’s justification for connecting his layoff
to a discharge is not persuasive, especially as the alleged re-
mark was made in front of Mori at least a month earlier
(without any attempt at discipline or a warning), no inves-
tigation was made of the circumstances, and, as noted above,
the circumstances indicate that Mori could have been mis-
taken and that Stout’s denial could have been accurate.
Under these circumstances it appears that Stout’s alleged
‘‘attitude problem’’ was his support of the Union and I am
not persuaded that Respondent has shown that the timing and
substance of its layoff and discharge of Mike Stout was
based on valid, nonpretextual business reasons. I conclude
that Respondent was discriminatorily motivated by Stout’s
and other employees’ union activities and I find that its ac-
tions are shown to have violated Section 8(a)(1) and (3) of
the Act, as alleged.
Steven Stout, an equipment operator and sometimes la-
borer, is alleged by Respondent to have been regarded by
others as a poor employee who was hard on equipment while
learning on the job. He supported the Union and was recog-
nized as a cousin of Mike Stout, however, his demeanor ap-
peared to be more restrained than his cousins to the extent
that he did not appear to be the type to ‘‘joke’’ with super-
visors but he did question Mori at the time of the initial lay-
off about his cousin and the layoff criteria. Despite his low
seniority and asserted lack of ability he was recalled from
layoff a few weeks latter.
Route driver Byers was laid off on July 12 but recalled
1 week later. He was laid off again December 28, recalled
in February 1992 part time, and made full time a month
later. He spoke with other employees about the Union and
became a member.
Hartman was an equipment operator who signed an author-
ization card, attended organizing meetings, and spoke with
others about the Union. He was part of the initial July layoff
and was recalled 3 or 4 weeks later.
It appears that Stout was recalled as a result of the July
26 layoffs of Romito and Shaffer and Hartman was recalled
after Belch’s August 8 layoff, each discussed below. Byer’s
recall appears to be related to the termination of the other
employees for stealing. At the time of the initial layoff, how-
ever, the record shows that both Romito and Belch were ini-
tially cultivated by Respondent as potential promanagement
votes in any election. As in the case of Mike Stout, discussed
above, these three other layoffs were not made when cell 1
was completed on June 13 but were made almost imme-
diately after the Respondent received formal notification and
conformation of the suspected union organizational drive.
They were made suddenly and without advanced notice and
were based on apparently subjective criteria or reasons which
I find to be pretextual and unpersuasive as ligitimate business
reasons that would outweigh or rebut the timing and motiva-
tional factors otherwise established on the record, and I find
that the Respondent has not shown that these specific em-
ployees would have been laid off on July 12 and 15 were
it not for the receipt of the union petition from the employ-
ees in general and Respondent’s inferred suspicion linking
these employees to the Union’s action. Accordingly, I con-
clude that these layoffs were discriminatorily motivated and
not based on the economic reasons asserted and I find that
the Respondent’s action in this respect is a violation of Sec-
tion 8(a)(1) and (3) of the Act, as alleged.
Turning to Romito’s layoff on July 26, it appears that
Santangelo had cultivated Romito’s friendship and support as
indicated by a conversation on July 19 (after the drug test).
Santangelo told Romito that if Respondent needed to lay off
employees, the layoff would not be based on seniority and
assured Romito that he had nothing to worry about because
he liked Romito, liked Romito’s work, and liked Romito be-
cause he was Italian. Santangelo said that Romito was stuck
in the middle of all the union activity and that Santangelo
wanted to make Romito a full-time equipment operator but
could not do that now, adding that the employees had picked
the wrong time to start a union. Three days later, on Mon-
day, July 22, Mori learned of and informed Santangelo about
some remarks Supervisor Duranko and head mechanic Dan
Bassinger had heard from Romito, remarks to the effect that
the place would be shut down.
It appears that Santangelo took information about
Romito’s union involvement as a personal and ethnic be-
trayal and, between July 22 and 26, when he returned to
1075CBF, INC.
4 Respondent failed to call as a witness at the hearing either
Duranko or Bassinger who, if Respondent’s assertion were to be be-
lieved, would have supported Respondent’s position. Respondent’s
failure to call either Duranko or Bassinger supports an inference that
their truthful testimony would have corroborated Romito, not the Re-
spondent.
western Pennsylvania from Norristown, persuaded himself
that the alleged statement by Romito that Respondent
‘‘would be shut down’’ was a threat that Romito would con-
tact the uncle of a girlfriend, Charles Duritza, a high official
in the State DER, and prevail on him to take some action
against Respondent that would result in the revocation of Re-
spondent’s permit to operate a landfill or some such other
significant action and that this threat justified Romito’s dis-
charge.
Romito testified that on July 19, Santangelo had chewed
out Romito, Persely, and Bassinger for standing around while
a belt was being fixed on the screaning plant and then
snapped at Romito when Persely mentioned Romito had had
car trouble that day saying ‘‘do you think I fucking did it?’’
After Santangelo left Duranko came by and asked what he
had been yelling about. Romito replied that he thought
Santangelo found out he had signed a union card and was
headhunting him. He then made a complaint about not taking
that for the amount of money he was getting and added, ‘‘I
think the place is going to end up being shut down.’’
Later, Duranko told Romito that Bassinger had informed
Santangelo of what was said. On Friday, before the termi-
nation, Santangelo called Duritza to explain the alleged re-
mark and what he was doing. Romito tried to explain he
didn’t make any ‘‘threat’’ and didn’t mean the DER, but
Santangelo said he had two employees who said he did and
told him he couldn’t keep him on the property any more and
that ‘‘I’m not laying you off, I am fucking firing you.’’
Santangelo testified that when he spoke on the phone with
Duritza, Santangelo said, ‘‘I don’t know if he [Romito]
means the DER or if he means the Union and Duritza said
to do what he had to do, he had no problem with that.’’
Romito did ‘‘date’’ Duritza’s niece and had met with him
in family situations (and this was common knowledge on the
jobsite). Romito also testified that at a union meeting on July
10 there was some discussion of some employees being
afraid to be caught signing cards and that if the Respondent
reacted they might be able to strike and close the place
down. It fairly appears that his remark was directly related
to the possibility of a union-called strike and plant shut
down. There is no credible evidence that Romito said any-
thing about the State DER4 and I find that Santangelo’s
claim that he believed and based his firing of Romito on the
speculation that a peripheral relationship such as existed be-
tween Romito and state official’s niece would cause that offi-
cial to jeopardize his position by responding to Romito’s
supposed influence and revoke or fail to issue Respondent’s
environmental permits is so tenuous as to be unbelievable
when contrasted with the more likely scenario which indi-
cates that Santangelo was upset by Romito’s ‘‘betrayal’’ in
joining the Union and his prediction or ‘‘threat’’ that the
Union could call a strike and shut down the operation.
Romito’s conduct in speaking about a possible strike was a
protected activity and his termination for engaging in that ac-
tivity, motivated as it was by the Respondent’s demonstrated
animus, is illegal. Respondent has failed to show any other
valid, nonpretextual business reason for its action and, ac-
cordingly, I find that the General Counsel has shown that
Romito’s termination was a violation of Section 8(a)(1) and
(3) of the Act, as alleged.
Employee Robert Belch was a ‘‘pretty good’’ friend of Su-
pervisor Persely but he attended the organizational meeting
and signed an authorization card. Wesley Shaffer was one of
the strongest union supporters. On July 26 Shaffer called off
work informing Persely that he had been subpoenaed for the
NLRB hearing (in the representation proceeding). He at-
tended and was seen sitting with a union representative but
was not called to testify as the parties reached a Stipulated
Election Agreement. When he returned to work, Santangelo
complained that he should have called off the night before
and Shaffer tried to explain that he didn’t know until that
previous night. Santangelo said Shaffer showed ‘‘no inter-
est’’ in Respondent and would be the first to go if work got
slow. He later was told to see Mori and was then informed
that he had failed his drug test taken July 19 and was termi-
nated.
In mid-July Mori called Belch off his machine and asked
him what he knew about the Union and why the men were
trying to organize, an indication that Respondent felt he was
trusted by management as amplified by Mori’s request that
it would be appreciated if Belch would tell the employees to
come to Mori with their problem rather than dragging the
Union in on it.
Belch took the second drug test, given on July 25. On Au-
gust 8, Santangelo and Mori went to Belch in the landfill and
told him that he had bad news, he had failed the drug test.
Belch said that there was no way he could have failed but
Santangelo said here it is—it is in black and white—and that
he would have to be terminated. Santangelo told Belch that
he was a very good worker and he wished he did not have
to terminate him because he was a ‘‘no vote’’ for the Union.
Santangelo explained that if he did not terminate Belch, the
Union would find out, that Respondent had already termi-
nated one employee for a positive result and could not keep
Belch on the payroll. Santangelo then told Belch that, de-
pending on the outcome of the election, if the Union lost,
Respondent would consider retesting Belch and rehiring him.
In mid-August, just before the election, Persely also advised
Belch to ‘‘keep his nose clean’’ and that, after the election,
Respondent would consider retesting him.
While an employee’s failure to pass a valid drug test may
provide a proper business reason for an employee’s dis-
charge, surrounding circumstances, including the timing of
the test, antiunion motivation, the reliability of this test and
its documentation, and the equality in application of the dis-
cipline all play a part in determining whether in fact those
discharge actions would have taken place notwithstanding the
employees underlying union or protected conduct.
Here the record shows that Belch initially was believed by
Respondent to be a ‘‘no vote’’ and he was reluctantly dis-
charged, being told Respondent had to do it because of the
Union as it already had discharged Shaffer for positive test
results and was further told he might be rehired if the Union
lost the election. Interestingly, Belch was told of the test re-
sults 2 weeks after taking the test, while Shaffer, the known
union activist, got his results (and was discharged), 1 week
after the test, a test that the test provider was instructed to
‘‘rush’’ with notification to be picked up by Mori. Shaffer
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was immediately terminated the day after he took off work
to be a witness for the Union at the representation hearing.
The General Counsel also introduced the findings of the em-
ployees’ unemployment compensation appeals which award-
ed benefits to both Shaffer and Belch because the Respond-
ent did not prove willful misconduct. Shaffer was in the first
group tested, even though he was a laborer and not an over-
the-road driver and thus was not in the group targeted by Re-
spondent’s insurance carrier and its asserted drug policy.
Belch also was a laborer/operator, not a truckdriver af-
fected most directly by the insurance carrier, and it is clear
that Respondent’s implementation of its drug-testing program
was based on the reason that it received a fax from its insur-
ance agent on July 18 which requested implementation ‘‘in
the near future.’’
Although Respondent had a longstanding antidrug policy,
with a slogan, ‘‘Drugs are Garbage—Just Say No,’’ on its
trash trucks and business cards, it took no other programmed
action despite the fact that, as early as September 1990, Re-
spondent’s insurance agent, Matthew Walsh, personally vis-
ited Respondent and advised Respondent of the necessity of
establishing a drug-testing program. In the winter of 1990
and the spring of 1991, Walsh again advised Respondent of
the necessity to drug test its drivers. Respondent did not in-
stitute a drug-testing program but on May 7, 1991, Respond-
ent held a substance abuse training seminar for its drivers
(Shaffer and Belch did not attend as they were not drivers).
It notified the drivers that they were going to be drug tested
but they were not.
No one was tested until 6 days after the Respondent’s re-
ceipt of the union petition and ‘‘immediately’’ after the July
18 insurance fax which request action ‘‘in the near future.’’
As noted, testing started the day after Santangelo angrily de-
nounced stealing, questioned why employees had gone to the
Union, said he had received a letter and was immediately
starting drug testing for everyone, and said he would fire
those who failed.
Under these circumstances, especially as it related to the
testing of nondrivers, I find that Respondent’s hasty and sud-
den implementation of drug testing for ‘‘all’’ its employees
was motivated by its anger at the union activity and would
not have occurred ‘‘immediately’’ on July 19 and 25 for
‘‘all’’ employees were it not for such union activity. This
conclusion is reinforced by the fact that Respondent has at-
tempted to excuse its subsequent failure to have any fol-
lowup testing for anyone, even though its insurance carrier
has requested it. Accordingly, I find that the Respondent has
failed to persuasively show that its institution of drug testing
for all employees at that immediate time was for a valid,
nonpretextual reason and I find that it was because of the
union activity and was designed to discourage employees
from such activities and therefore it violates Section 8(a)(1)
and (3) of the Act, as alleged.
Likewise, the termination of Shaffer and Belch was de-
pendent on an improperly implemented drug-testing program
that was not shown to have been validly applied to non-
drivers and I therefore find that Respondent would not have
made these two terminations were it not for the invalid test
and its antiunion motivation and I find that it had violated
Section 8(a)(1) and (3) of the Act in this respect, as alleged.
Shaffer’s termination also occurring after Santangelo had told
him that he would be the ‘‘first to go’’ because of his actions
in attending a Board hearing as a subpoenaed, prospective
witness, and I find that it therefore also violates Section
8(a)(4) of the Act, as alleged.
The next series of allegations concerns the subsequent lay-
off of Steven Stout, Byers, and Marion Strosnider on and
after December 28, 1991, and Respondent’s failure to reem-
ploy these employees. First, I recognize the record estab-
lishes that Respondent did not notify or bargain with the
Union regarding its December 28 layoffs, and thus it is a
violation of Section 8(a)(5), as alleged. See Holmes &
Narver, 309 NLRB 146 (1992).
Because there is no demonstrated tie-in of timing and be-
cause there is some rationalization for seasonal construction
conditions and a cutback in Respondent’s municipal waste
collections, the loss of the ‘‘Masontown’’ contract (11,709
tons in the last quarter of 1991 v. 10,633 tons in the first
quarter of 1992), and because contract negotiations were at
least on-going, I am not persuaded that the three December
1991 layoffs were in themselves a violation of the Act.
A different conclusion is required about Respondent’s fail-
ure to recall two of these employees. Stout was called
‘‘when the weather started getting nice’’ but did not start
work because the weather turned bad. He was told he would
be called back when the weather improved but was not. In
July 1992 Stout went to Respondent and talked with Mori
about recall. Mori told him that unfair labor practice charges
had been filed against Respondent, that the charge would
cost a lot of money, and he suggested that if Stout got the
unfair labor practice charges dropped, Respondent would
probably recall him.
Marion Strosnider, a route laborer, was one of Respond-
ent’s original employees. He supported the Union and at-
tended some union organizing meetings. At the end of Sep-
tember, Respondent employee Alex Demniak wrote a memo-
randum to Respondent advising Respondent that Strosnider
had asked him to sign a union authorization card and support
the Union. Strosnider was told he would be recalled when
things picked up but was not, except for two, 1-day, tem-
porary occasions. Respondent’s records show that in the sec-
ond quarter of 1992 municipal waste increased to 13,359
tons and total waste went up to 15,410 tons, a figure that in-
creased slightly in the third quarter of 1992.
Byers was the driver of the truck that Strosnider worked
on as a laborer. After his second layoff in December (for the
same reason given Strosnider), he was recalled part time for,
2 days a week, in February and then went on full time in
March. The record shows that several new hires were em-
ployed at Respondent after July 1, 1991, and are no longer
employed, specifically equipment operator Thomas Zavage,
and laborers Barry Skochelak, and Vogola Homely. Also,
several employees were hired by Respondent after July 1,
1991, and are currently employed: Glenn Baird, truckdriver,
equipment operator, and laborer; Robert Blaker, equipment
operator; James Collins, laborer; Scott McClelland, truck-
driver and equipment operator; Gerald Pyrock, equipment op-
erator; John Skochelak, laborer; and Ralph Cavimee, equip-
ment operator and temporary foreman. Otherwise, the Re-
spondent has failed to point out any documentary evidence
or argument to establish any specifics of its generally argued
business downtown that would explain any possible reasons
why Stout and Strosnider were not recalled to work in a
timely fashion.
1077CBF, INC.
Under these circumstances, the record is devoid of any ra-
tionalization that would indicate a valid reason for Respond-
ent’s failure to recall Stout and Strosnider, especially after
the first quarter of 1992, and, in view of the motivation
shown by the General Counsel, as otherwise discussed
above, as well as Respondent’s increasing hostility in nego-
tiation during this period of time, the record supports the
conclusion that Respondent’s failure to recall Stout and
Strosnider violates Section 8(a)(1) and (3) of the Act, as al-
leged.
Glenn Franks was a union officer and active on the union
negotiating team and, as noted above, had been the subject
of certain 8(a)(1) violations. Franks was laid off for 5 days,
on April 6, 8, and 13, 1992, and May 8 and 23, 1992, by
Mori, who told Franks there was no work available because
the backhoe was not working.
Franks, who was considered to be a good employee and
was the highest paid laborer, also filled in as a truckdriver
and equipment operator, and had never been laid off before
and he testified that in the past employees worked the mine
loads by hand on other occasions when the equipment was
not operative. Negotiations were ongoing at this time but no
notification of or bargaining about Franks’ layoff occurred,
and, as discussed above, this lack of bargaining was a viola-
tion of Section 8(a)(5) of the Act, as alleged.
In June, Franks was threatened by Mori with ‘‘serious
problems’’ if he tried to help Duranko in his effort to get
his job back and then, after Franks notified Persely early on
August 3 that he would not be at work the next day, Persely
said ‘‘okay’’ and that he ‘‘guessed this was a personal mat-
ter.’’ Later that morning, Mori acknowledged to Franks that
he understood Franks would not be at work on August 4 and
Franks said he had intended to tell Mori later that day.
On August 4, Franks met with a Board attorney at the
Union’s office.
On Friday, August 7, Franks asked Respondent’s secretary
if there was work scheduled for him for Saturday, August 8.
Respondent’s secretary called Mori on the two-way radio and
Franks was told there was nothing for him. After Franks
learned that all the other employees had worked overtime
that Saturday, he asked Mori if there was a reason he had
not been allowed to work. Mori said, ‘‘Yes,’’ and told
Franks that he had been told by employees that Franks was
at the union hall on August 4 on union business. Franks ex-
plained that he had given Respondent notice, and that other
employees had taken days off and had not been punished.
Mori told Franks that he had his priorities mixed up and that
he had taken off on union business and was ‘‘in the enemy
camp’’ and that Respondent was not going to reward him
with time and one-half. When Franks explained that he had
been with a Board attorney, Mori said that if he had known
that it might have made a difference or it might not have,
but that as far as Mori was concerned, Franks was off on
union business and that is why he was denied overtime on
August 4.
Under these circumstances, the layoff and failure to assign
alternative work and the denial of regular overtime, is shown
to have been for discriminatory reasons, unsupported by
valid business considerations and I conclude that both are
shown to be violations of Section 8(a)(1) and (3) of the Act,
as alleged. Mori, however, did not know of the Board’s in-
volvement in Franks’ absence on August 4 and therefore no
violation of Section 8(a)(4) occurred regardless of Mori’s
statement about whether or not his knowledge would have
made a difference.
Dennis Hornbeck was a truckdriver and laborer and was
elected Local president in May 1992. In January 1991,
Hornbeck was involved and injured in a nonwork-related ve-
hicle accident, was absent from work for about 1 week, and
was visited in the hospital, by Persely.
In February Hornbeck asked Persely what would happen
if he lost his license because of the accident. Persely told
Hornbeck that he could take a chance and drive without a
license or Respondent would try to work something out by
working him in the landfill until he got his license back.
Also, when Hornbeck was hired he was told that he could
also work in the landfill to get extra hours and he usually
worked in the landfill operating equipment or picking mine
piles about 6 to 8 hours per week.
In August 1991, after the election, Santangelo asked about
the status of his license and told him that if he did not have
a license he could not drive and frequently thereafter
Santangelo made a status check. Nothing was said, however,
that would indicate that he faced discharge if he lost his driv-
er’s license. To the contrary, after Hornbeck was notified on
June 5, 1992, that he was required to surrender his driver’s
license for 30 days and Union Representative Volansky im-
mediately requested a meeting with Mori, and on that same
afternoon met and discussed the 30-day revocation of
Hornbeck’s license. I credit Volansky’s testimony that Mori
told him that while the Union wanted assistance from Re-
spondent in the Hornbeck matter, the Union did not offer
much assistance to Respondent. Mori and District 4 President
Ed Yanyovick, who was also present, began to review what
the Union could do to assist Respondent in maintaining some
of its trash collection contracts. Yankovich told Mori that the
Union would do everything within its power to assist Re-
spondent to secure and keep contracts and offered to write
letters to various township and borough officials in support
of Respondent. Mori said that he had no problem assigning
Hornbeck to either the landfill as a laborer or to the garbage
trucks as a helper, stating: ‘‘I’m sure we can work with Den-
nis. Thirty days is not that long a period of time. He is real
good worker and we would hate to lose him. Tell Dennis to
report to work on Monday at 7 a.m. and we’ll find some-
thing for him to do.’’
Hornbeck credibly testified that when he reported in on
Monday, June 8, Mori said that he did not think it would
ever come to this but that he had to terminate him, then ad-
vised him to come back next week to talk to Santangelo, ex-
plaining that he might have a chance to work in the landfill
if he did not bring the Union in because Santangelo did not
like anyone telling him what to do.
Otherwise, however, the record shows that former truck-
driver William Rummel was assigned to work as a helper
and laborer by Santangelo after Rummel’s license was re-
voked (apparently at a time prior to any union activity), and
he continued to work for lengthy periods until he was termi-
nated for other reasons.
As otherwise discussed below, by May 20, 1992, contract
negotiations had moved to a stage where the Union had
marked and faxed to the Respondent provisions apparently
agreed to, including provisions agreed to and which Re-
spondent was expected to sign off on. On June 1 company
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
negotiator Fahrig told union negotiator Barnhart that he and
Santangelo had agreed that it was going to be very difficult
for Respondent to work with the Union because the Union
was continually trying to ‘‘fuck’’ Respondent by filing unfair
labor practice charges. Then on June 8, when Barnhart called
Fahrig to inquire about the status of the contract, Fahrig stat-
ed that Respondent had received two more unfair labor prac-
tice charges and that it was going to be impossible to reach
agreement on a contract because the Union was continually
filing unfair labor practice charges.
Here, in addition to the basic motivational conclusions
reached above, the record shows that at the time of
Hornbeck’s discharge the Respondent had become hostile
about pursuing contract negotiation and had become critically
irritated by the Union’s filing of charges. The timing of the
discharge and the surrounding circumstances strongly rein-
force the inference that Respondent’s action was motivated
by union animus and, accordingly, I find that the General
Counsel has made a strong prima facie showing and that Re-
spondent has a substantial burden to show that it would have
taken the same action even in the absence of antiunion con-
siderations.
Despite its burden, Respondent’s argument on brief fails to
specifically address the Hornbeck discharge. Respondent pro-
posed findings of fact assert that: ‘‘Hornbeck was informed
he would be fired if he lost his operator’s license, because
of insurance requirements, in the presence of CBF’s lawyer
and the NLRB’s investigator, Robert Edison. [90, 1239–
1241, 1386–1387.]’’
First, page 90 of the transcript has nothing that would sup-
port this assertation. At page 1240 Santangelo testified that
he told Hornbeck that when you lose your license ‘‘you are
terminated from here,’’ explaining that his insurance com-
pany and his attorney said he can’t drive without a license.
At page 1387 Mori confirmed the ‘‘termination’’ statement.
These self-serving statements, even if true, do not refute
Hornbeck’s and Barnhart’s testimony that the Respondent
also discussed a logical alternative to termination, namely re-
assignment to a nondriver position. Moreover, in view of Re-
spondent’s other use of employee ‘‘layoff’’ as a frequent
practice and its past practice under similar circumstances
with driver Rummel of reassignment as helper/laborer, there
is no justifiable reason shown why Hornbeck was not merely
laid off for the 30 days of his license suspension or reas-
signed as others had been and as had been discussed and, in
effect, promised by Manager Mori. Here, the record supports
the conclusion that Mori was overruled by Owner Santangelo
because of Santangelo’s irritation over Hornbeck’s recent
election as union president and the status of contract negotia-
tions and anger at the Union’s filing of additional unfair
labor practice charges.
Accordingly, I find that the General Counsel has carried
its ultimate burden of proof and I conclude that Respondent
is shown to have violated Section 8(a)(1), (3), and (5) of the
Act, as alleged by both its termination of Hornbeck and its
failure to bargain with the Union about its decision to termi-
nate.
D. Alleged Refusal to Bargain and Related Charges
It is admitted that the following unit:
All hourly production and maintenance employees em-
ployed by Respondent CBF at its McClellandtown,
Pennsylvania, facility; excluding all other employees
and professional employees, guards and supervisors as
defined in the Act.
is an appropriate unit for the purpose of collective bargaining
that on September 3, 1991, the Union was certified as the
exclusive collective-bargaining representative of the unit and
that, since that time, the Union has been the collective-bar-
gaining representative of the unit.
1. Unilateral action on health care benefits
As noted above, the parties discussed health care benefit
proposals for employees during collective-bargaining negotia-
tions. Respondent had health care coverage in effect for cer-
tain of its bargaining unit employees at the beginning of ne-
gotiations but not for others. The parties did not reach agree-
ment during negotiations. But, on June 8, 1992, Respondent
notified the Union that it was providing health care coverage
for all bargaining unit employees. On June 10, the Union ad-
vised Respondent that it would agree to Respondent’s imple-
mentation of health care coverage only if such coverage was
either the health care plan submitted to Respondent by the
Union or health care coverage that provided equivalent.
On June 19, Respondent advised the Union that they were
at impasse and that it would implement health care coverage
to the six uncovered bargaining unit employees.
The issue here is not whether the Union wisely argued
about the terms of the proposed coverage but whether Re-
spondent’s unilaterally implementing on a mandatory subject
of bargaining was justified despite the Union’s request to
bargain.
The Respondent addressed this subject on brief by pro-
posing as a finding of fact that ‘‘after CBF realized the nego-
tiations were not going anywhere, it provided insurance to
the uninsured employees so all employees would have health
insurance as previously promised to them.’’
This does not show waiver by the Union, actual impasse
in negotiation, or anything else that might rebut the General
Counsel’s allegations in this regard and, as a review of the
record otherwise discloses no facts tht would require a con-
trary finding, it must be concluded that Respondent violated
Section 8(a)(1) and (5) of the Act when it unilaterally ex-
tended health care coverage to certain bargaining unit em-
ployees without bargaining over it with the Union, as al-
leged.
2. Failure to provide requested information
On brief the Respondent addresses this issue by arguing
that the Union’s request didn’t come until July 1992, well
after it knew of Respondent’s difficult financial situation and
the loss of its Masontown contract and alleging that in any
event, all such information was provided at the hearing.
It is well established that the duty of an employer to bar-
gain in good faith includes the obligation to disclose to its
employees’ collective-bargaining representative data relevant
and reasonably necessary to its role as bargaining agent.
Here, there is no serious question that the information relat-
ing to employees’ health care benefits and the employer’s fi-
nancial status. See A. Aiudi & Sons, 287 NLRB No. 133
1079CBF, INC.
(Feb. 28, 1988) (not reported in Board volumes), and Nielson
Lithographing Co., 305 NLRB 697 (1991).
The fact that some of the information came out at the
hearing in the General Counsel’s subpoenaed documents is
not the equivalent of compliance with the Union’s request for
information, it must be communicated specifically to the re-
questing party. Moreover, an unreasonable delay (as here) in
furnishing requested information is as much a violation as a
flat refusal, Bundy Corp., 292 NLRB 671 (1989), and pos-
sible subsequent compliance does not render a complaint
moot. See Teamsters Local 921 (San Francisco Newspaper),
309 NLRB 901 (1992).
Accordingly, I conclude that the Respondent has failed and
refused to provide the information requested by the Union in
its letters dated June 26 and August 11, 1992, and has there-
by violated Section 8(a)(1) and (5) of the Act, as alleged.
3. Failure to bargain because of continued
union charges
An employer who has a collective-bargaining relationship
has an enforceable obligation to engage in bargaining until
such time as a valid impasse is reached and that obligation
otherwise is not negated or excused by pending court pro-
ceedings. See Peat Mfg. Co., 261 NLRB 240 (1982), or the
filing of charges by one party against a another. See Dane
County Dairy, 273 NLRB 1711 (1985).
Here, the Respondent has gone beyond using the filing of
charge by the Union as an ‘‘excuse’’ and has elevated this
reason to a ‘‘cause’’ for discontinuing negotiations. The
record shows that during the course of negotiations Company
Representative Fahrig, in December 1991, complained that it
was ‘‘real hard to negotiate’’ when the Union kept filing
these ‘‘God damn unfair labor practice charges.’’ Union Rep-
resentative Barnhart explained that Respondent could not
lawfully refuse to negotiate because the Union had filed un-
fair labor practice charges, but again in January 1992, at a
negotiating session, Fahrig advised the Union that it was dif-
ficult for Respondent to continue to negotiate when the
Union continued to file ‘‘God damn’’ unfair labor practice
charges.
On January 16, 1992, by letter, Respondent said it consid-
ered the unfair labor practice charges as ‘‘spurious counter
productive’’ and would ‘‘consider them’’ when the parties
discussed the economic package.
At a meeting on February 20, 1992, Santangelo angrily
told the Union, that ‘‘you people have fucked me for over
a year and you keep filing these God damn unfair labor prac-
tice charges and you expect me to negotiate.’’
Fahrig admitted that he subsequently told the union negoti-
ating team that the Union’s filing of unfair labor practices
was an ‘‘immense hurdle’’ to negotiating a collective-bar-
gaining agreement. Then, on June 8, Fahrig told Barnhart
that Respondent had received two more unfair labor practice
charges and that it was going to be impossible for Respond-
ent to come to an agreement with the Union because the
Union kept filing unfair labor practice charges is undisputed
and undenied.
Respondent’s letter on the same day informed the Union,
that the Union’s continuous filing of unfair labor practice
charges with the Board was frivolous and a strain on negotia-
tions.
Finally, on July 17, Respondent, by letter, informed the
Union that the Union’s filing of unfair labor practice charges
with the Board had brought collective-bargaining to impasse
and again on September 3, Respondent wrote the Union that
the Union’s ‘‘continual filing’’ of frivolous and unwarranted
unfair labor practice charges undercuts the collective-bar-
gaining process.
Although the Union made a number of request to resume
negotiation after April 29, that was the last time the Re-
spondent met and negotiated with the Union.
Under these circumstances, it appears that Respondent’s
assertations on June 8 and July 17 that it would be ‘‘impos-
sible’’ to come to an agreement and that bargaining had been
brought to ‘‘impasse’’ because of the Union’s continuous fil-
ing of charges, constitutes a refusal to bargain that is
unpermissible and inconsistent with its obligations. See Dane
County Dairy, supra. This refusal, as well as Respondent’s
repeated and implicit threats, related to the effect of the
Union’s actions in filing charges on negotiations, also clearly
has an effect which interferes with, restrains, and coerces the
Union in the exercise of its rights and obligation to its mem-
bers and, accordingly, I find that Respondent is shown to
have violated both Section 8(a)(1) and (5) of the Act in this
respect, as alleged.
4. Unilateral changes in contract provision
previously agreed to
During negotiations in October 1991, the parties reviewed
noneconomic articles which had been discussed during the
earlier collective-bargaining sessions and the Respondent
agreed to the Union’s suggestion to Respondent that it pre-
pare the contractual articles which had been discussed and
agreed to by the parties and which could be signed off.
At negotiating sessions in November and January and in
May the parties signed off on many noneconomic articles.
After January, negotiations turned to more contentious eco-
nomic issues, however, on July 28, 1992, Respondent sub-
mitted to the Union 25 contract proposals, including unilat-
eral changes in articles 1, 3, 6, 11, 15, 16, 17, 21, and 25
and Appendix D, which had previously been agreed to and
signed off on. It is well established that such a retreat from
agreements reached constitutes a failure and refusal to bar-
gain in good faith. Milgo Industrial, 229 NLRB 25, 30
(1977), and, accordingly, I find that Respondent’s action in
unilaterally changing contractual provisions previously
agreed to with the Union violates Section 8(a)(1) and (5) of
the Act, as alleged.
5. Refusal to meet and bargain in good faith
On brief the Respondent again makes generalized argu-
ments that the Union has failed to bargain in good faith;
however, this argument is not related to any corresponding
pending charges and it is not tied in to any pertinence to Re-
spondent’s own demonstrated failure to meet and negotiate
with the Union since its negative reply to the Union’s June
10, 1992 letter.
During the course of the hearing, the Respondent at-
tempted to make much of the asserted uniqueness of its land-
fill operation and the purported lack of awareness of both the
Union and the Court about its assertedly special situation. At
the same time, however, it selected as its principal negotiator
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a person generally inexperienced in labor contract negotia-
tions. Despite Respondent’s claims, it appears that the
Union’s experience with representation of employees en-
gaged in above-ground mining operations (involving exca-
vation, site preparation, and land reclamation) is similar to
Respondent’s landfill operations and there is no showing that
inadequate or inappropriate conduct by the Union was a con-
tributing or excusable cause for Respondent’s breaking off of
its bargaining. Although the course of bargaining between
the parties was neither sure nor smooth, it is apparent that
progress was being made and that the parties were not at a
legally definable impasse, see Henry Miller Spring Mfg. Co.,
273 NLRB 472 (1984).
By letter of June 19, Respondent told the Union that:
unless the Union is prepared to back down from its im-
possible demands, further meetings are a waste of our
valuable time’’ and by letter on July 15, said that ‘‘We
have NEVER and WILL NEVER sign an agreement
that includes an enabling clause. Under separate cover,
I am sending the first 25 articles as we see them. If and
when the wage package is resolved, we will then agree
to meet again. Till that time we see this WHOLE
PROCESS at an impasse.
By letter on September 3, Respondent wrote that it was
willing to meet and bargain only after the Union had replied
in writing to Respondent’s letter of July 28. The letter en-
closed 25 contract proposals, including those found above to
be improper changes of agreed-to provisions. Insistence that
the Union respond in writing to its 25 contract proposals be-
fore Respondent would agree to meet with the Union is in-
consistent with the face-to-face collective-bargaining process
and is indicative of bad faith. Respondent’s overall conduct
in this respect precluded negotiations and demonstrates a
clear failure and refusal to engage in good-faith collective
bargaining in violation of Section 8(a)(1) and (5) of the Act,
as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and the following employees of
Respondent (the unit) has, since September 3, 1991, con-
stituted a unit appropriate for the purposes of collective bar-
gaining with the meaning of Section 9(b) of the Act:
All hourly production and maintenance employees em-
ployees employed by Respondent CBF at its
McClellandtown, Pennsylvania, facility; excluding all
other employees and professional employees, guards
and supervisors as defined in the Act.
3. At all times pertinent Joseph Persely and Stephen
Duranko were supervisors and agents within the meaning of
Section 2(11) and (13) of the Act such that their conduct in
relation to Respondent’s employees is attributable to the Re-
spondent.
4. By interrogating employees concerning their union sym-
pathies and activities or those of other employees; by cre-
ating the impression of surveillance of employees’ union ac-
tivities; by threatening employees with plant closure, layoffs,
discharge, the loss of overtime, vandalism of employees’
property, and unspecified reprisals; by soliciting grievances;
by promising benefits; and by implying that an employee
would not have been terminated for failing the drug test were
is not for the Union, Respondent has interfered with, re-
strained, and coerced employees in the exercise of their
rights guaranteed them by Section 7 of the Act, and thereby
has engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
5. By laying off employees John Michael Stout, James
Byers, and Steven Stout on July 12, 1991, and Jacob D.
Hartman on July 15, 1991, by terminating employees John
Michael Stout on July 18, 1991, David Romito and Wesley
Shaffer on July 26, 1991, Robert Belch on August 8, 1991,
and Dennis Hornbeck on June 8, 1992; and by failing to re-
call Steven Stout and Marion J. Strosnider from layoff on
and after April 1, 1992, because of employee union activities
in pursuing union affiliation for purposes of collective-bar-
gaining representation, Respondent violated Section 8(a)(3)
and (1) of the Act.
6. By telling Wesley Shaffer he would be ‘‘the first to
go’’ and terminating him because he attended a Board hear-
ing as a subpoenaed, prospective witness, Respondent vio-
lated Section 8(a)(1), (3), and (4) of the Act.
7. By laying off Glenn O. Franks on April 6, 8, and 13
and May 8 and 23, 1992, and by reducing his overtime op-
portunities because of his union activities, Respondent has
violated Section 8(a)(1) and (3) of the Act.
8. By instituting a drug-testing program for all employees
on June 19, 1991, because of and in order to discourage em-
ployee union activity, Respondent violated Section 8(a)(1)
and (3) of the Act.
9. By failing to bargain with the Union about its decisions
to lay off and terminate employees on and after September
3, 1991, Respondent violated Section 8(a)(1) and (5) of the
Act.
10. By unilaterally implementing changes in health care
coverages on June 19, 1992, and unilaterally changing con-
tractual provision previously agreed to on July 28, 1992, at
which times no bargaining impasse existed, Respondent
failed to bargain in good faith in violation of Section 8(a)(1)
and (5) of the Act.
11. By threatening to discontinue negotiations and by fail-
ing and refusing to bargain with the Union because the
Union exercised its rights and obligations to file unfair labor
practice charges before the Board by failing and refusing to
meet and negotiate with the Union on and after June 19,
1992, Respondent has failed and refused to bargain in good
faith in violation of Section 8(a)(1) and (5) of the Act.
12. By failing and delaying to provide the Union with in-
formation requested in letters dated June 26 and August 11,
1992, Respondent has violated Section 8(a)(1) and (5) of the
Act.
13. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
1081CBF, INC.
5 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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.’’
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer Robert Belch,
James Byers, Jacob Hartman, Dennis Hornbeck, David
Romito, Wesley Shaffer, John Michael Stout, Steven Stout,
and Marion Strosnider immediate and full reinstatement to
their former jobs, or substantially equivalent positions, dis-
missing, if necessary, any temporary employees or employ-
ees hired subsequently, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to them of a sum of money equal to that which they
normally would have earned from the date of the discrimina-
tion to the date of reinstatement in accordance with the meth-
od set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).5
The Respondent also shall be ordered to expunge from its
files any reference to illegal layoff or discharges and notify
them in writing that this has been done and that evidence of
the unlawful action will not be used as a basis for future per-
sonnel action against them. Respondent also shall be ordered
to bargain in good faith with the United Mine Workers of
America, AFL–CIO, for the period required by Mar-Jac
Poultry Co., 136 NLRB 785 (1962), to ensure that the Union
and the employees derive the benefit of the Union’s 9(a) sta-
tus under the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by failing to bargain in good faith by refusing
or delaying the production of described information re-
quested by the Union, by unilaterally implementing a health
plan without bargaining to impasse, by previously instituting
a drug-testing program (in violation of Section 8(a)(3) of the
Act), and by refusing or delaying the production of described
information requested by the Union it is recommended that
on request of the Union, Respondent be ordered to furnish
the information requested, to rescind all or part of the imple-
mented health care proposal and drug plan and to bargain in
good faith with the Union as the exclusive bargaining agent
of the above appropriate unit of its employees with respect
to their wages, hours, and other terms and conditions of em-
ployment and embody any understanding reached in a signed
agreement.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, CBF, Inc., and Charles Santangelo, an in-
dividual, single employer, McClellandtown, Pennyslvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act
by interrogating an employee about union support or union
activities, by creating the impression employees’ union ac-
tivities are under surveillance, by threatening plant closure,
layoffs, discharges, loss of overtime, and vandalism of em-
ployees’ property, by soliciting grievances and promising
benefit, by stating that an employee would be the first laid
off or terminated because he attended a Board hearing, and
by implying that an employee would not have been termi-
nated for failing a drug test were it not for the Union.
(b) Terminating, laying off, or reducing any employees
overtime opportunities, failing to recall employees from lay-
off, or instituting a drug-testing program for all employees
or otherwise discriminating against them because of or in re-
taliation for their engaging in protected concerted activity.
(c) Unilaterally implementing changes in terms and condi-
tions of employment without bargaining in good faith.
(d) Unilaterally changing contractual provisions previously
agreed to, failing and delaying to provide requested informa-
tion relavant to the Union’s collective-bargaining duties, and
failing and refusing to bargain collectively with the Union
with regard to layoff and tenure, and failing and refusing to
meet or to bargain collectively because of a union’s filing of
charges with the Board or for any other invalid reason.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert Belch, James Byers, Jacob Hartmen, Den-
nis Hornbeck, David Romito, Wesley Shaffer, John Michael
Stout, Steven Stout, and Marion Strosnider immediate and
full reinstatement and make them and Glenn O. Franks
whole for the losses they incurred as a result of the discrimi-
nation against them in the manner specified in the remedy
section above.
(b) Remove from its files any reference to the layoffs and
discharges of the named employees and notify them in writ-
ing that this has been done and that evidence of the
unlawfull layoofs and discharges will not be used as a basis
for future personnel actions against them.
(c) On request, supply the Union with the information re-
quested and on request rescind the drug-testing program and
health care plan previously instituted and implemented and
on request bargain in good faith with the Union as the exclu-
sive bargaining agent of the above appropriate unit of its em-
ployees with respect to their wages, hours, and other terms
and conditions of employment and embody any under-
standing reached in a signed agreement.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this decision.
(e) Post at its McClellandtown, Pennsylvania facility cop-
ies of the attached notice marked ‘‘Appendix.’’7 Copies of
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the notice, on forms provided by the Regional Director for
Region 6, after being signed by an authorized representative
of Respondent, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.