De Jana Industries

National Labor Relations Board - Board Decisions

Sep 14, 1993

312 N.L.R.B. 87 (N.L.R.B. 1993)

87
312 NLRB No. 25
DE JANA INDUSTRIES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent’s unopposed motion to correct errors in the tran-
script is granted.
3 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 9l NLRB 544 (l950), enfd.
l88 F.2d 362 (3d Cir. l95l). We have carefully examined the record
and find no basis for reversing the findings.
1 Respondent’s motion to correct transcript is granted.
De Jana Industries, Inc. and Local 831, Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Case 29–CA–l5726
September 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 20, l992, Administrative Law Judge
D. Barry Morris issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief answering the General
Counsel’s exceptions.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,3 and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Rosalind Rowen, Esq., for the General Counsel.
Stanley Israel, Esq. (Israel & Bray), of New York, New
York, for the Respondent.
Michael S. Lieber, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on June 30
and July 1, 1992. Upon a charge filed on May 10, 1991, a
complaint was issued on July 9, 1991, alleging that De Jana,
Industries, Inc. (Respondent) violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act), by refusing
to recall two former employees. Respondent filed an answer
denying the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondent.
On the entire record of the case,1 including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in Port Washington, New York, is in the
business of providing private sanitation and trash removal
and related services. Respondent admits, and I so find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Respondent also ad-
mits, and I so find, that it meets the Board’s standard for the
assertion of jurisdiction. In addition, it has been admitted,
and I so find, that Local 813, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (Local 813 or the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
On October 10, 1989, the Union filed a representation pe-
tition to represent Respondent’s drivers and helpers at the
Port Washington facility. A secret-ballot election was held on
December 22, 1989. The revised tally of ballots showed that
the Union won the election by a vote of 9 to 5. On March
14, 1991, Administrative Law Judge James F. Morton issued
a decision finding that Respondent engaged in various unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act during the period September 1989 through January 1990.
The Board affirmed Judge Morton’s decision. De Jana In-
dustries, 305 NLRB 845 (1991).
2. George Middlebrook
George Middlebrook began his employment with Respond-
ent in May 1989. He testified that when he applied for the
position he put on his application that he worked for another
garbage company in 1988, the Donno Company. Middle-
brook stated that Steven Lapham, the manager of the solid
waste division, was ‘‘aware that Donno was a union shop
and you had to join the union in order to work there.’’ Mid-
dlebrook testified that 2 weeks before the election he had a
conversation with Barry Zapellius, another driver, at which
time Zapellius asked him ‘‘what I thought of the union and
I told him . . . it is probably going to benefit us, it looks
like it is good for us, it is going to give us good benefits
. . . .’’ Subsequent to the election, Zapellius became a su-
pervisor. During the second week of December 1989, Mid-
dlebrook signed a union authorization card and he voted for
the Union in the election.
Middlebrook testified that in May 1990 he had a meeting
with Lapham and Zapellius, at which time he was told that
Respondent was losing the Kingspoint route and that there-
fore it was necessary that he be moved to the Plandome
Heights route. Middlebrook testified that during June he
worked on the Plandome Heights route for approximately 2
weeks, after which Lapham told him that he was going to
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Even were I to conclude that a prima facie showing had been
made, I believe that the employer has demonstrated that the ‘‘same
action would have taken place even in the absence of the protected
conduct.’’ Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
be ‘‘demoted’’ to the position of tree spraying. Middlebrook
stated that he worked for 1 day on tree spraying and the next
2 days it rained and he was sent home. Middlebrook testified
that his supervisor told him ‘‘when we need you, we will
call you. And I never got a call back and that was it.’’ Mid-
dlebrook applied for a position with Respondent in Septem-
ber 1990 and again in May 1991 but he was not hired. On
cross-examination Middlebrook conceded that while he was
employed at Respondent he was involved in several auto-
mobile accidents in which he backed into a police car and
also damaged a mailbox. He also conceded that in an affida-
vit given to a Board agent on May 31, 1991, he stated ‘‘I
do not know if the employer was ever aware that I had
joined or otherwise supported the Union at any time while
working there.’’ In the same affidavit he also stated that he
was not ‘‘open or outspoken about my support for the
union.’’
Lapham testified that since May 1990 he hired two em-
ployees who had previously worked for the Donno Company.
He stated that he was aware that Donno was a ‘‘union com-
pany.’’ He further testified that Respondent does not have a
recall policy and that seniority plays no role with respect to
the hiring of employees. He testified that he had not been
aware that Middlebrook signed a union authorization card
nor did he know how Middlebrook voted in the union elec-
tion. He stated that in May 1990, Middlebrook had been
working on the Kingspoint route and that Respondent was
losing that route. Lapham testified that the company tried out
Middlebrook for a day or two on the Plandome Heights route
but decided instead to use another driver for that route.
Lapham then offered Middlebrook a position in the spray di-
vision. Lapham credibly testified that Middlebrook told him
he was concerned about the inhalation of the chemicals
‘‘whether they were toxic or not.’’ Lapham testified that in
May 1991, Middlebrook applied for a position. Lapham stat-
ed that there were approximately 70 applicants and the rea-
son why Middlebrook was not rehired was ‘‘I guess I would
term it immaturity and recklessness . . . he did have his ac-
cident with a police car.’’ Lapham stated ‘‘I made a judg-
ment that other people would be better suited for the level
of service I wished to provide our customers.’’
3. Pasquale Bicchetti
Pasquale Bicchetti began his employment with Respondent
in July 1989. He was a helper on the Kingspoint route in
which Middlebrook was the driver. In January 1990 he was
switched to the Thomaston route where he was the helper
and Robert Anchelowitz was the the driver. While he ob-
tained a learner’s permit, he never obtained a license to be
able to drive the trucks. He testified that in February 1990
he was informed by Lapham that Respondent lost the con-
tract for Thomaston and there was ‘‘no other work at the
present time.’’ Bicchetti was laid off in February. Bicchetti
testified that in September 1989 he signed a union authoriza-
tion card and that he voted for the Union in the election. He
testified that prior to the election he discussed the Union
with two fellow employees, Middlebrook and Anchelowitz.
He further testified that in January or February 1990 Lapham
told him that ‘‘I’ll be needing drivers’’ and that it would be
necessary for him to obtain a Class 3 license.
Lapham was asked the reason why Bicchetti was not of-
fered a position after December 20, 1990. He testified ‘‘Mr.
Bicchetti does not have . . . as far as I know has never had
a Class C or a Class B or a Class Three license which is
what we needed. And when I’ve been hiring subsequently I
require people to have a Class B license. He doesn’t have
it.’’ Lapham also testified that he had no knowledge whether
Bicchetti had signed a union authorization card or whether
he voted for or against the Union.
B. Discussion and Conclusions
1. Complaint allegations
The complaint does not allege that Middlebrook’s termi-
nation in June 1990 or that Bicchetti’s termination in Feb-
ruary 1990 in any way violated the Act. The only allegation
in the complaint is that since December 20, 1990, Respond-
ent has refused to recall or reemploy Middlebrook and
Bicchetti. General Counsel’s theory of the case was stated at
the hearing as follows:
MS. ROWEN: . . . It is our theory that the retaliatory
plan engaged in by this employer was not directed to
specific individuals who were known leaders for the
union. Rather, it is our theory that the employer was
systematically eliminating from its staff anybody who
voted in the election in December of 1989, to insure no
union supporters would be left.
ADMINISTRATIVE LAW JUDGE: Now are you saying
that anybody who voted, irrespective of whether the
person voted for the union or against the union?
MS. ROWEN: Yes, Your Honor . . . .
2. Middlebrook
I credit Lapham’s testimony that he did not know that
Middlebrook had signed a union authorization card nor did
he know how Middlebrook had voted in the union election.
Indeed, in an affidavit given to a Board agent, Middlebrook
conceded that he was never ‘‘open or outspoken about my
support for the union.’’ Middlebrook conceded that he was
involved in several automobile accidents, in one of which he
backed into a police car. I credit Lapham’s testimony that
Middlebrook’s application was considered along with ap-
proximately 70 other applications and that Middlebrook was
not rehired because of his prior driving record which Lapham
regarded as ‘‘reckless.’’ I find that General Counsel has not
established a prima facie showing that union activity was a
motivating factor in the decision not to rehire Middlebrook.2
3. Bicchetti
I credit Lapham’s testimony that he was not aware of
Bicchetti’s having signed the union authorization card nor
did he know how Bicchetti voted in the union election.
Bicchetti testified that he never observed anyone from man-
agement having knowledge of his union activities. Prior to
Bicchetti’s termination, Lapham told Bicchetti that it was
necessary to obtain a Class 3 license. I credit Lapham’s testi-
mony that Bicchetti was not rehired because he did not have
89DE JANA INDUSTRIES
3 As in the case of Middlebrook, even were I to have found a
prima facie showing, I believe that the employer has demonstrated
that the ‘‘same action would have taken place even in the absence
of the protected conduct.’’ See Wright Line, supra at 1089.
4 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.
the necessary license to drive the trucks. Accordingly, I find
that General Counsel has not established a prima facie show-
ing that union activity was a motivating factor in the decision
not to rehire Bicchetti.3
4. Legal principles
As noted earlier, General Counsel’s theory is that ‘‘the
employer was systematically eliminating from its staff any-
body who voted in the election in December of 1989, to in-
sure that no union supporters would be left.’’ In her brief,
General Counsel cites Link Mfg. Co., 281 NLRB 294, 299
fn. 8 (1986), which states, as follows:
The Respondent’s reaction was thus in the nature of
a ‘‘power display’’ in response to the advent of the
Union and was unlawful without regard to specific
knowledge of the prounion activities of particular em-
ployees. See Majestic Molded Products v. NLRB, 330
F.2d 603, 606 (2d Cir. 1964) . . . .
General Counsel further clarified her position by stating that
Respondent was intent on eliminating anyone who voted in
the election, irrespective of whether they voted for or against
the Union. General Counsel appears to rely on the fact that
the election took place in December 1989 and the finding
that Respondent engaged in certain unfair labor practices
during the period September 1989 through January 1990.
Other than those unfair labor practices, General Counsel has
not pointed to any evidence which would indicate a desire
or intention on the part of Respondent to engage in a ‘‘power
display.’’ Indeed, subsequent to the election Respondent
hired two employees who, while at Donno, were members of
Local 813. Had Respondent wished to ‘‘insure [that] no
union supporters would be left’’ it would hardly have hired
two employees who had been members of Local 813. In ad-
dition, it should be noted that in Link Mfg. Co., supra, the
unfair labor practices were committed prior to, and imme-
diately after, the election. In the instant proceeding, the elec-
tion took place on December 22, 1989. The alleged unfair
labor practice, however, took place 1 year later, on Decem-
ber 20, 1990. Under the circumstances, I believe General
Counsel has not satisfied its burden of showing that Re-
spondent engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act. Accordingly, the
allegations are dismissed.
CONCLUSIONS OF LAW
1. De Jana Industries, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The complaint is dismissed.