Laidlaw Waste Systems

National Labor Relations Board - Board Decisions

Jul 10, 1992

307 N.L.R.B. 1211 (N.L.R.B. 1992)

1211
307 NLRB No. 178
LAIDLAW WASTE SYSTEMS
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
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.
3 The Respondent contends that the bargaining order should be
limited because of a decertification election which, it claims, was
held on March 3, 1990. Even assuming the election was held on that
date, we find no merit in the Respondent’s contention. Thus, an elec-
tion held that day would have been conducted in the presence of the
unfair labor practices which we have found, and any loss by the
Union would not represent the uncoerced sentiment of the employees
on the issue of their continued representation by the Union.
4 E.g., Hajoca Corp., 291 NLRB 104, 105 (1988), enfd. 872 F.2d
1169 (3d Cir. 1989), and cases cited therein.
5 See Bolton-Emerson, Inc., supra; Kelly’s Private Car Service,
289 NLRB 30, 42 (1988), enfd. 919 F.2d 839 (2d Cir. 1990).
6 See, e.g., Harowe Servo Controls, 250 NLRB 958 (1980); Long-
shoremen ILA Local 1291 (National Sugar), 142 NLRB 257, 258
(1963), enfd. 332 F.2d 559 (3d Cir. 1964).
7 As that opinion further notes (id. at 254), the standard of proof
for the affirmative defense at issue in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 400, 403 (1983), is the normal pre-
ponderance standard rather than the ‘‘clear and convincing’’ stand-
ard.
8 See also Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir. 1975),
in which the court explained that the two means by which an em-
ployer defending a withdrawal of recognition can rebut the presump-
tion of majority are ‘‘showing sufficient evidence to support a rea-
sonable good faith doubt’’ or ‘‘proving by a preponderance of all
evidence available at the time of the hearing that the Union in fact
did not have majority support on [the date recognition is with-
drawn].’’ The court described the evidence which an employer must
produce as objective considerations for its good-faith doubt as evi-
dence that is ‘‘clear, cogent and convincing.’’ Id., quoting NLRB v.
Tragniew, Inc., 470 F.2d 669, 674–675 (9th Cir. 1972).
Laidlaw Waste Systems, Inc. and General Team-
sters Union, Local 406, International Brother-
hood of Teamsters, AFL–CIO1 and William
Bignall. Cases 7–CA–30378 and 7–CA–30286
July 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The principal issue in this case is whether the Re-
spondent lawfully withdrew recognition from the in-
cumbent Union.
On July 30, 1991, Administrative Law Judge Harold
Bernard Jr. issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,2 findings, and con-
clusions as modified and to adopt the judge’s rec-
ommended Order.3
In finding that the Respondent violated Section
8(a)(5) and (1) by withdrawing recognition from the
Union, the judge stated that an employer may lawfully
end its bargaining relationship with an incumbent
union by overcoming the presumption of a union’s
continuing majority status with a ‘‘clear, cogent, and
convincing’’ showing of either actual loss of majority
status or of objective factors sufficient to support a
reasonable and good-faith doubt of the union’s major-
ity. However, the judge cited cases which appear to be
in conflict on whether the quoted standard of proof is
appropriate. Cf. Hutchinson-Hayes International, 264
NLRB 1300 (1982), and Westbrook Bowl, 293 NLRB
1000, 1001 (1989), with Bolton-Emerson, Inc., 293
NLRB 1124 fn. 2 (1989), enfd. 899 F.2d 104 (1st Cir.
1990).
It is well settled that an employer may rebut an in-
cumbent union’s presumption of majority status by
demonstrating, at an appropriate time, that the union in
fact no longer enjoys majority support or that the em-
ployer has a good-faith and reasonably grounded doubt
of the union’s majority status.4 The most recent Board
decision and decisions prior thereto have not required
an employer to meet a ‘‘clear, cogent, and convinc-
ing’’ standard in order to establish these defenses.5 To
the extent that Westbrook Bowl, supra, and Hutchison-
Hayes International, supra, impose that standard, they
are overruled. The Board’s usual standard of proof is
a preponderance of the evidence.6 Indeed, a ‘‘conven-
tional’’ rule of civil litigation generally is that parties
to such litigation ‘‘need only prove their case by a pre-
ponderance of the evidence’’; and exceptions to that
standard are ‘‘uncommon.’’ Price Waterhouse v. Hop-
kins, 490 U.S. 228, 253 (1989) (citations omitted) (plu-
rality opinion.)7 We see no reason to apply a different
standard to the affirmative defense involved here. Ac-
cordingly, we find that in order to rebut the presump-
tion of an incumbent union’s majority status, an em-
ployer must show by a preponderance of the evidence
either actual loss of majority support or objective fac-
tors sufficient to support a reasonable and good-faith
doubt of the union’s majority.
This is not to say that the terms ‘‘clear, cogent, and
convincing’’ have no significance at all in withdrawal
of recognition cases. At least one court has suggested
that when an employer’s defense is based on ‘‘good
faith reasonable doubt’’ of union majority, those terms
are ‘‘primarily directed to the type of evidence relied
upon . . . .’’ NLRB v. Tahoe Nugget, 584 F.2d 293,
297 fn. 13 (9th Cir. 1978), cert. denied 442 U.S. 921
(1979).8 This makes sense given the types of evidence
on which employers typically rely in good-faith doubt
cases—statements by employees to supervisors reflect-
ing varying degrees of hostility or indifference to the
union, changes in affirmative support for the union,
such as cessation of dues checkoff, and the like. It is
fair to say that the Board will not find that an em-
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Member Raudabaugh believes that the phrase ‘‘clear, cogent and
convincing,’’ as used by his colleagues, casts unnecessary doubt on
the law in this area. In his view, there are two analytically distinct
questions to be asked in cases where an employer relies on objective
evidence to support a good-faith doubt of majority status. These
questions are: (1) what type of evidence may be relied on by the
employer; and (2) how much such evidence must the employer ad-
duce in order to prevail. The discussion above does not modify, or
even deal with, the law as to the first question. Since the issue is
not raised herein, and since the law remains the same on this point,
Member Raudabaugh would not confuse matters by seeking to char-
acterize extant law by use of the phrase ‘‘clear, cogent and con-
vincing.’’
With respect to the second question, the instant case does clarify
the law and holds that a preponderance of the evidence will estab-
lish the employer’s defense.
10 The judge incorrectly stated that Division Manager Jeff Hughes
first testified that he counted employees off the payroll, then ‘‘later
admitted that Fixari and Bussiere did this.’’ Actually, Hughes testi-
fied, in the second instance, that he, Fixari, Bussiere, and the ac-
counting department did this together. This error is nonprejudicial to
the judge’s finding that the Respondent failed to establish at the
hearing the exact number of unit employees at the time of the decer-
tification petition or the withdrawal of recognition.
11 In adopting the judge’s finding that the Respondent violated
Sec. 8(a)(5) and (1) by withdrawing recognition from the Union, we
do not rely on that part of the judge’s analysis in which he relies
on the hastiness of the Respondent’s withdrawal of recognition after
becoming aware of the decertification petition. Further, we find it
unnecessary to pass on that part of the judge’s analysis which relies
on the existing collective-bargaining agreements.
ployer has supported its defense by a preponderance of
the evidence if the employee statements and conduct
relied on are not clear and cogent rejections of the
union as a bargaining agent, i.e., are simply not con-
vincing manifestations, taken as a whole, of a loss of
majority support. The opposite of ‘‘clear, cogent, and
convincing’’ evidence in this regard might be fairly de-
scribed as ‘‘speculative, conjectural, and vague’’—evi-
dence that plainly does not meet the preponderance-of-
the-evidence burden of proof. NLRB v. Tahoe Nugget,
supra, 584 F.2d at 305.9
Applying this standard to the facts in this case, we
agree with the judge that the Respondent has not effec-
tively rebutted the presumption of the Union’s majority
status at the time of the Respondent’s withdrawal of
recognition. In summary, the credited facts are as fol-
lows. On February 15, 1990, employee Ronald Wool-
worth filed a decertification petition, with 15 signa-
tures, with the Board. The next day, he told Operations
Manager Christopher Fixari and Division Manager
Brian Bussiere, ‘‘that what I considered a majority of
the people had signed a petition to vote on a union.’’
Woolworth did not tell these two persons the number
or names of the employees on the petition. He testified
that he was unsure of the number of employees in the
unit ‘‘but figured anywhere between 25 and 30.’’ He
further testified that the petition ‘‘said that I am taking
the petition to find out if the majority of Laidlaw em-
ployees would like to take a vote in the union.’’ The
Respondent also failed to establish at the hearing the
exact number of employees in the unit at the time the
petition was filed.10
We agree with the judge that there is insufficient
evidence to establish that the Union did not enjoy ma-
jority status at the time of the withdrawal of recogni-
tion. The petition did not say that the 15 signers did
not desire union representation. In addition, since the
size of the unit was not established, it has not been
shown that there were 30 or fewer employees in the
unit.
As to whether the Respondent had a reasonably
based doubt of the Union’s majority status, we note
that, at the time of the withdrawal of recognition, the
Respondent did not know the number or names of the
employees on the petition. Further, the Respondent
was informed only that the petition signers wanted ‘‘to
vote on a union.’’ The evidence is insufficient to meet
the Respondent’s burden to demonstrate by a prepon-
derance of the evidence objective factors sufficient to
support a reasonable and good-faith doubt of the
Union’s majority.
Based on the above, we adopt the judge’s finding
that by withdrawing recognition on February 16, 1990,
the Respondent violated Section 8(a)(5) and (1).11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laidlaw Waste Systems,
Inc., Coopersville, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Tinamarie Pappas, Esq., for the General Counsel.
Susan K. Grebeldinger, Esq., of Denver, Colorado, for the
Respondent.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I heard
this case on October 30, 31, 1990, in Grand Rapids, Michi-
gan, pursuant to a consolidated complaint issued May 29,
1990, alleging that Respondent terminated William Bignall
and refused to bargain with and withdrew recognition from
the Union as the employees’ collective-bargaining representa-
tive in violation of Section 8(a)(1), (3), and (5) of the Act.
On the entire record, including my observations of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation engaged in trash
collection and disposal at its location in Coopersville, Michi-
gan. Respondent’s annual gross revenues exceed $500,000
and it annually purchases goods valued in excess of $50,000
1213LAIDLAW WASTE SYSTEMS
1 Questioned about the date when negotiations had resumed since
the parties’ last meeting, Union Representative Gary Case, using this
date as a framework of references referred to the agreement’s ‘‘expi-
ration’’ date of May 31, 1989. Case in no way was making a legal
conclusion but rather his comment had to do with placing a date in
response to counsel’s question, and in context no other interpretation
is warranted.
2 There is no allegation that the Union made a request for informa-
tion regarding a fifth grievance over the discharge of Emil Culp.
and received at Coopersville, Michigan, directly from outside
Michigan. As admitted, Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and the Union is a labor organization as defined
by Section 2(5) in the Act.
II. THE UNFAIR LABOR PRACTICES
Respondent purchased two ongoing trash collection and
disposal firms owned by GSX Corporation in Grand Rapids,
Michigan, where GSX did business as Bell Pick-Up Service,
and 39 miles away, Muskegon, Michigan—where GSX did
business as Independent Collection—in October 1986. The
Union represented employees at Grand Rapids under a con-
tract with GSX in effect at the time of Respondent’s pur-
chase, and it is stipulated that Respondent then ‘‘succeeded
to and adopted’’ the agreement. (G.C. Exh. 3.) As further
agreed, Respondent and the Union entered into a collective-
bargaining agreement for the Muskegon facility employees
effective December 1, 1986. (G.C. Exh. 4.) Each agreement
covered a bargaining unit of drivers, helpers, and mechanics.
The Grand Rapids agreement contains an automatic renewal
provision specifically allowing the parties to give each other
notice to reopen for negotiations without forestalling the
agreement’s renewal, a significant term discussed below.
(G.C. Exh. 3, p. 10.)
Respondent entirely moved its operations from the above
two cities into a single facility located in Coopersville,
Michigan, which lies alongside Interstate Highway 96 which
nearly directly connects Grand Rapids and Muskegon, and is
a mid-point—some 19 or so miles—from each former loca-
tion, on August 1, 1988. The parties agreed that there were
no unit employees at Coopersville prior to and up to the date
of the move. They further agreed that the employees
‘‘merged’’ into the new location from Grand Rapids were
covered by the Grand Rapids contract, the employees
‘‘merged’’ into the Coopersville facility from Muskegon
were covered by the Muskegon agreement, that employees
hired by Respondent subsequent to August 1, 1988, were
covered by the Grand Rapids contract, at least until May 31,
1989; and that both contracts remained in effect for the
Coopersville facility as of the date of the merger. The parties
further stipulated that on or about August 4, 1988, the Union
was the majority representative for the Coopersville facility
employees in the unit described in the complaint.
There is no dispute that the effective dates for the Mus-
kegon contract are December 1, 1986, through November 30,
1990. The Grand Rapids contract bears an effective date June
1, 1986, until May 31, 1989, but provides for automatic 1-
year renewal absent notice by either party to ‘‘cancel or ter-
minate this Agreement.’’ (G.C. Exh. 3, p. 10.) The same pro-
vision specifically permits on timely notice by one party to
the other at least 60 days prior to May 31, 1990, negotiation
of specific changes while desiring to continue the agreement
absent such notice to cancel or terminate. The Union sent no-
tice to Respondent by letter dated March 24, 1989, of its
‘‘desire to continue the Agreement’’ while requesting nego-
tiations on some changes or revisions in some terms. (G.C.
Exh. 6.) It is admitted that neither side sent the other a notice
to cancel or terminate. Since the Union’s timely notice to
Respondent specifically communicated only the desire to
continue this contract with a request to negotiate revisions,
a right expressly guaranteed by the parties’ agreement, I find
that agreement, absent any notice to forestall automatic re-
newal, renewed for another year until at least May 31, 1990.
Empire Screen Printing, 249 NLRB 718 (1980).1
The parties met for negotiations on June 6, July 20, and
December 19, 1989, aiming towards a possibly overall or
consolidated agreement, and discussed wages, uniform allow-
ance, mechanic certification standards, down time pay, and
an incentive plan, without reaching agreement.
The Union’s request for information
The parties met on January 17, 1990, to discuss grievances
over Respondent’s discharge of employee Robert Pagel for
an alleged safety violation, Bill Kooi for a false entry on his
employment application, and Rick Sullivan and William
Ogan for allegedly failing a required physical examination.2
An amalgam of the credible testimony reveals that during the
course in the parties’ discussions Respondent presented its
reasons for the actions and made files ‘‘available,’’ in a
sense, to the union representatives to review and read por-
tions aloud, but refused to make or send copies (in some in-
stances there had been earlier requests made) of the re-
quested information for the Union’s own use though, it is
clear, these grievances, and others, were forecasted for arbi-
tration if not resolved then or at anticipated additional nego-
tiations. Operations Manager Christopher Fixari testified flat
out that Respondent had offered ‘‘to make copies [for the
Union] during the meeting . . .,’’ repeating the assertion
under direct examination twice, only to admit under my
question seeking his confirmation on this issue that he had
not at any time made an offer. It is clear in each instance
that the requested information was relevant to the Union’s
representational duties, and such is not contested. But Re-
spondent witnesses testified the Union made no requests for
their own copies of the particular file documents at the Janu-
ary 17 meeting and, in any event, Respondent contends on
brief that the Respondent’s oral communications and avail-
ability of its files to the Union at the meeting suffice to sat-
isfy its duty under the Act.
Union Representative Gary Case testified that the Union
requested copies of Bill Kooi’s medical application and em-
ployment application at the meeting on January 17 and that
Respondent’s division manager, Jeff Hughes, said they would
be provided. Further, Case testified that in response to his re-
quest Respondent representatives said they would supply the
Union with the test results concerning employees Ogan and
Sullivan, the laboratory name, the initial and confirming test
results, and the levels in the chemicals found, but that no
such materials have been given to the Union. He testified
that the Union requested the safety rule or regulation involv-
ing Pagel, and that Hughes’ response was that the Company
would supply those rules.
Employee witness Robert Pagel testified that Operations
Manager Chistopher Fixari told Pagel he had violated one of
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the rules on a written list during Pagel’s termination inter-
view, ‘‘one of our safety code rules’’ and that during the
January 17 meeting Jeff Hughes apologized to Case for not
supplying the material and told Fixari ‘‘to give them the
stuff,’’ Fixari nodding in acknowledgement. Counsel for Re-
spondent left the corroborating and believable testimony of
Case and Pagel untouched during her examination of wit-
nesses Hughes and Fixari and I credit the former witnesses
that the Union asked for and has not received copies of the
described information bearing materials.
I further find that the reading of certain information from
the files by Respondent representatives aloud with an oppor-
tunity—expressly granted or implied by circumstances—for
the Union to look at unspecified materials in the files was
not sufficient provision of information as against supplying
the copies of information requested. Case could not reason-
ably be expected to memorize all the relevant information
suitable for the give and take in grievance discussions then
or for purposes of the forecasted arbitration, let alone decide
which factors were in fact relevant or helpful to under-
standing the relative merits in the parties’ positions and write
them down given the numerous grievances under consider-
ation, the substantial number of details contained in the sev-
eral documents requested and being subjected to the pressing
dynamics in live bargaining then underway. On the other
hand the burden on Respondent to supply copies of the re-
quested documents or written information was negligible and
given that its manner of allegedly supplying the information,
as described above, was burdensome and time-consuming
thus likely to impede the process of bargaining because of
the unreasonable demand on Case, I find Respondent failed
to fulfill its collective-bargaining duties under the Act. Amer-
ican Telephone Co., 250 NLRB 47, 53–54 (1980); Teamsters
Local 851 (Northern Air), 283 NLRB 922, 926 (1987); Elec-
trical Workers IBEW Local 497 (Apple City Electric), 275
NLRB 1290 (1985). Compare Roadway Express, 275 NLRB
1107 (1985) (single page letter).
Respondent’s withdrawal of recognition
Respondent withdrew recognition from the Union in a let-
ter dated February 16, 1990, sent to Union Representative
Gary Case. (G.C. Exh. 2.) Its only defense in support of this
action raised at the hearing before me is the filing of a decer-
tification petition the day before on February 15 by em-
ployee Ronald Woolworth, a second-shift mechanic at the
Coopersville facility.
Woolworth secured 15 employee signatures in support of
an RD petition he had filled out beforehand, and had kept
in his locked tool box undisclosed by him to management
before he filed the petition in the Board’s Region 7 Office
on February 15.
The next day he told Fixari and Brian Bussiere, division
maintenance manager, ‘‘that what I considered a majority of
the people had signed the petition to vote on a union.’’ He
convincingly insisted that he never gave either of them the
number of employees who had signed the petition, or their
names. Woolworth said he was unsure of the number in the
unit but ‘‘figured anywhere between 25 and 30’’ and said,
‘‘I never got an exact count of how many people actually
worked there.’’ At the hearing Woolworth’s testimony, after
reviewing the petition, that there were 15 signatures on it
was verified. Woolworth testified regarding the petition: ‘‘It
said that I am taking the petition to find out if the majority
of Laidlaw employees would like to take a vote on the
union.’’ Woolworth said he told Fixari and Bussiere, ‘‘I
think I have the majority of vote [sic] here so I sent the peti-
tion in,’’ and steadfastly denied mentioning any numbers.
At the hearing Respondent witnesses Fixari and Bussiere
claimed that Woolworth had told them he had 19 employees
(Bussiere said 18 or 19) to vote the Union out, to decertify
the Union; that (according to Fixari) the majority of the guys
did not want the union. Fixari then phoned Robert Arquilla,
director of human resources, and told him that Woolworth
had told him that 19 people had signed a petition not want-
ing the union anymore. (Emphasis added.) Fixari admitted
that in his affidavit concerning these conversations he no-
where said that Woolworth had stated a majority of employ-
ees did not want the Union. Arquilla testified he checked the
number of employees on a computer at his desk and found
that would be a ‘‘majority,’’ recalling there were 29, 30, or
31, then ‘‘around 30.’’ He admitted that Fixari was his sole
source of information regarding the RD petition, that he
never saw any writing or document stating employees did
not want union representation, and that no employee said
such to him, not recalling whether he ever spoke to Wool-
worth. For his part, Division Manager Jeff Hughes, under
leading questions, testified he counted unit employees on
February 16 off the payroll, later admitting that Fixari and
Bussiere did this, and that employees on sick leave might not
have been included on the payroll depending on the length
of their absence, and that he didn’t know whether or not the
list referred to earlier had all the unit employee names on it.
Finally, Respondent offered a payroll list of the week ending
February 17 and Hughes didn’t know whether that list had
all the names on it either. Since the list was unreliable,
unauthenticated, and incomplete, it was rejected. (R. Exh.
10.) I reject the testimony of Fixari and Bussiere where it
comflicts with that of Woolworth. Fixari, already caught in
an outright falsehood earlier was further shown to have un-
truthfully colored his testimony by attributing statements to
Woolworth concerning a majority not wanting the Union,
and like Bussiere, was continuously fed leading questions,
hence I credit Woolworth’s unbiasedly based and calmly
consistent account. Even doing so I note the fact that Wool-
worth candidly asserted he did not know the exact number
in the unit but figured he had at least half signed on the peti-
tion and that Respondent itself failed to establish that number
at the hearing adding even more unreliability to its defense
of relying on a majority being in support of the decertifica-
tion petition, for absent a clear accurate determination of
what the unit size was on February 15 or 16 it would be im-
possible to determine what a majority was.
Analysis
The Board has held that, it is well established that an em-
ployer that seeks to end its collective-bargaining relationship
with an incumbent union by withdrawing recognition from
the union must overcome the presumption of the union’s
continued majority status ‘‘with a ‘clear, cogent, and con-
vincing’ showing of either actual loss of majority status or
of objective factors sufficient to support a reasonable and
good-faith doubt of the union’s majority.’’ Hutchinson-Hayes
International, 264 NLRB 1300, 1304 (1982). Westbrook
Bowl, 293 NLRB 1000 (1989); compare, Bolton-Emerson,
1215LAIDLAW WASTE SYSTEMS
3 The petition was filed February 15, 1990, untimely as to the con-
tracts’ expiration dates set forth above. Abbey Medical/Abbey Rents,
264 NLRB 969 (1982).
293 NLRB 1124 fn. 2 (1989), where the ‘‘clear, cogent and
convincing standard’’ is said not to be required. In Wells
Fargo Armored Service Corp., 290 NLRB 881 (1988), the
Board adopted the administrative law judge’s decision
wherein he set forth the following ‘‘long-standing legal prin-
ciples’’ governing the withdrawal of recognition:
An employer who refuses to bargain with an incumbent
union may rebut the presumption of majority status by
establishing either (1) that at the time of the refusal to
bargain the union in fact did not enjoy majority status,
or (2) that the refusal was predicated on a good-faith
and reasonably grounded doubt, supported by objective
considerations, of the union’s majority support.
Citing Alexander Linn Hospital, 288 NLRB 103 (1988). Ap-
plying that standard, I find first that there was no evidence
that at the time of the refusal to bargain (and withdrawal of
recognition) on February 16, 1990, the Union in fact did not
enjoy majority status. Secondly, I find that Respondent did
not have a good-faith and reasonably grounded doubt sup-
ported by objective consideration of the Union’s majority
support. Without being presented with the names of employ-
ees allegedly in support of the RD petition and with no reli-
able understanding of whether a majority in fact even sup-
ported the petition, which sought only a vote on the union,
Respondent precipitously withdrew recognition without ben-
efit of waiting for the Board’s procedures to thereby resolve
any doubts it had, on the very same day it learned about
Woolworth’s actions. The hastiness alone belies any objec-
tivity. Midway Golden Dawn, 293 NLRB 152 (1989). It
never even saw the petition before breaking off the long-
standing relationship with the Union. Respondent recites on
brief that the Board has held that an employee’s report to the
employer that all 16 employees on the job had signed a state-
ment that they no longer wanted to be represented by the
Union gave the employer ‘‘objective evidence that the Union
had lost its majority status.’’ Storer Communications, 297
NLRB 296 (1989). Counsel urges that case in defense of Re-
spondent’s conduct here. There, the Board based its decision
finding the respondent violated Section 8(a)(5) by with-
drawing recognition from the union on the fact that the ac-
tion was not taken in a context free of serious unfair labor
practices, and mentioned by way of dictum the presence of
objective evidence. Not stated there was whether the Board
would have based a no-violation finding solely under the
‘‘objective evidence’’ standard as applied to those facts.
Moreover, the petition sought only an election, and proof of
majority support was lacking while in the cited case a state-
ment was accompanied by an undisputed numerical majority
of unit employees professedly no longer wanting to be rep-
resented by the Union—all the above making the cited case
most clearly distinguishable and thus uncontrolling. See
Bryan Memorial Hospital, 279 NLRB 222, 225 (1986).
There being further no legal basis for Respondent to rely
solely on the filing of the RD petition itself when it with-
drew recognition and refused to bargain with the Union, or
on Woolworth’s unverified assertion that a majority sup-
ported it, I find Respondent’s conduct violated Section
8(a)(5) of the Act. Dresser Industries, 264 NLRB 1088, 1089
(1982); Redok Enterprises, 277 NLRB 1010, 1012 (1985),
and cases cited above.
There is a further issue’s resolution that provides an addi-
tional basis for this finding that the parties did not address,
but which the record evidence and reasonable inferences
therefrom provide sufficient illumination to determine.
The findings in the opening portion of this decision at sec-
tion II above establish that the parties’ collective-bargaining
agreements by their terms remained effective following Re-
spondent’s relocation to Coopersville, indeed the parties stip-
ulated that at the time of this relocation the Union was ma-
jority representative of all the employees and they applied
their existing contracts to all employees at Coopersville,
those drawn from both Grand Rapids and Muskegon each
some 19 or so miles from Coopersville, as well as to all new
hires. The nature of Respondent’s operations collecting and
disposing trash remained the same with the natural effect
arising from a single location of a more integrated operation.
It is apparent the parties decided to seek an overall con-
tract due to the single-sited more integrated character in op-
erations, and they stipulated that a single overall unit would
be an appropriate unit at the hearing. There can be little
doubt that such facility wide unit, were the matter of appro-
priate unit to be heard de novo, would be found appropriate,
absent a controlling bargaining history. But the contract units
which settled employment terms for all the employees at
Coopersville were longstanding agreed-upon units which
were not inappropriate on their face or as containing statu-
tory exclusions and even as important, by merely entering
into efforts to negotiate such an ‘‘over-all’’ agreement nei-
ther party waived its ongoing contractual rights, nor the
Union its representational rights resting in their valid existing
and ongoing binding contracts, which had clearly survived
the Respondent’s relocation. El Torito-La Fiesta Restaurants,
295 NLRB 493 (1989). There the Board quoted, from Harte
& Co., cited below that:
[A]n existing contract will remain in effect after a relo-
cation if the operations at the new facility are substan-
tially the same as those at the old and if transferees
from the old plant constitute a substantial percentage—
approximately 40 percent or more—of the new plant
employee complement. Westwood Import Co., 251
NLRB 1213, 1214 (1980), enfd. 681 F.2d 664 (9th Cir.
1982); General Extrusion Co., 121 NLRB 1165, 1167–
1168 (1958). See also Marine Optical, 255 NLRB
1241, 1245 (1981), enfd. 671 F.2d 11 (1st Cir. 1982).
[Harte & Co., 278 NLRB at 948 (1986).]
Supra at 495. The Board also made reference to Coastal
Cargo Co., 286 NLRB 200 (1987), wherein it had found the
parties’ collective-bargaining agreement to have remained in
effect for its duration and, citing Hexton Furniture Co., 111
NLRB 342 (1955), that the Union accordingly enjoyed an
irrebuttable presumption of majority status. Id. at 495. See
also Epe, Inc. v. NLRB, 845 F.2d 483 (4th Cir. 1988). Since
the Union enjoyed an irrebuttable presumption of majority
status as of the time the RD petition was filed—untimely
with respect to both surviving contracts duration,3 manifestly
Respondent could not rely on the petition and surrounding
circumstances described above to question the Union’s
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
irrebuttable presumption of continuing majority status and for
this reason as well, on contract principles of compelling im-
portance given the value to a ‘‘national labor policy of indus-
trial peace’’ being furthered, Respondent’s action violated its
bargaining duties under Section 8(a)(5) of the Act. Id. at fn.
6. On both theories Respondent’s actions recited in its letter
to the Union dated February 16, 1990, violated Section
8(a)(5) of the Act.
William Bignall’s termination
Respondent terminated garage mechanic William Bignall
on March 1, 1990, as medically unqualified for duties.
Bignall seriously injured himself while working on March
29, 1989, when a cable twisted, causing the chain to slip
from a hook and to snap back around his head. Bignall un-
derwent surgery involving anterior cervical fusion C 5, 6,
and a lumbar laminectomy. On January 5, 1990, his neuro-
surgeon wrote ‘‘At this point he is having some neck pain
and shoulder pain with any kind of exertion.’’ The doctor
placed these restrictions: no overhead lifting, should not
work with his head hyperextended, and should not have to
do repetitive bending, twisting, and stretching, nor lift objects
over 25 pounds in weight. (G.C. Exh. 20.) By April 4, 1990,
after his termination Bignall was given permanent restric-
tions as follows:
1. No excessive bending, stretching, twisting.
2. No lifting overhead (up to 25 pounds occasion-
ally).
3. No prolonged sitting.
4. Must be able to change positions frequently or as
needed.
5. No prolonged standing.
6. No lifting over 40 pounds. [G.C. Exh. 23.]
Bignall’s position as mechanic required him to work on
heavy duty dump or trash trucks 11 feet or higher, doing re-
pair work underneath while lying horizontally looking up, se-
curing spare parts from shelves over 6 feet high, operating
a pulley to work on truck engines, changing a gear box
weighing up to 600 pounds, handling and changing truck
tires weighing 40 or more pounds, and lifting starters weigh-
ing 100 pounds, sometimes by himself. He was the only me-
chanic on his shift.
The record shows that Bignall was an active member on
the Union’s negotiating committee during meetings with Re-
spondent and there is evidence of some degree of union ani-
mus by Respondent representatives on unspecified dates
‘‘early’’ in 1989 and ‘‘between February and March 1990,’’
including unexplained coldness towards him by Respondent
officials when Bignall delivered status reports concerning his
medical condition while in the injury related status and
would converse with employees,
The record shows Respondent considered Bignall for other
positions, but it determined in each instance, for example,
tire changing and early morning truck starting that it could
not risk injury to Bignall—in the latter case because if the
truck would not start Bignall would be required to repair it,
and in the former case because the tire changing was beyond
his restricted abilities. The record shows that there were no
clerical openings for Bignall and he was not shown to be
qualified as dispatcher. Counsel for the General Counsel
aptly argues that Respondent’s alleged policy based reason
not to continue employees in a workmen’s compensation cat-
egory—such as Bignall occupied after his accident—for
more than a year is shown to be unevenly enforced at best
because another employee was allowed to stay in such cat-
egory for more than 2 years and was terminated at the same
time as Bignall. Further, in a letter to Respondent its insur-
ance carrier noted Bignall appeared qualified to be a truck
washer, which communication Respondent corrected in a
later phone call to the letter writer and characterized as a
misunderstanding of the duties in such position, which re-
quired use of a high pressure hose, on a truck 12 feet 6
inches high, requiring use of a brush and pressure power
wash, hyperextending and twisting while controlling a water
pressure of 1600 to 2000 pounds per square inch. There was
no janitor position in the shop. Finally, the record does show
as pointed out by counsel for General Counsel that in past
cases of injured employees Respondent has accommodated
them in other positions until their recovery and return to duty
but these cases involved temporary impairment unlike
Bignall’s case which was obviously serious and left him im-
paired prior to his termination, and became officially perma-
nent impairment after the termination by April 4, 1990.
There was no duty on Respondent to create a new position
for Bignall. Ducane Heating Corp., 273 NLRB 1389, 1393
(1985). And while it can reasonably be argued that the in-
consistency in Respondent’s administration of the 1 year on
workmen compensation status policy and its unpersuasive ex-
planation why it did not offer Bignall the job of truck washer
as advised by its carrier as within his limitations viewed in
light of Respondent’s animus cast suspicion on Respondent’s
alleged motive for Bignall’s termination and establish a
prima facie case in support of the complaint allegation, I find
that the record clearly establishes that Respondent would
have discharged Bignall even aside from his union-connected
and protected concerted activities, thus the termination was
lawful. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I find
nothing unreasonable in Respondent’s well-supported judg-
ment that given his injury-caused impairment Bignall was
not medically qualified to work at its facility. Nor does the
timing for Respondent’s action arouse undue suspicion over
the bona fides in Respondent’s actions. Respondent’s head-
quarters staff representative out of courtesy notified a newly
hired representative at the Coopersville facility of Respond-
ent no more than 1 year on workmen’s compensation on
medical leave status policy concerning both Bignall and an-
other employee at Coopersville who had been in such cat-
egory longer (although that employee’s time in such category
was uncertain due to his coming back and departures during
the timespan involved) whereupon both employees were
shortly thereafter terminated which further indicates that
Bignall was not the victim of disparate treatment.
CONCLUSIONS OF LAW
1. Laidlaw Waste Systems, Inc. is now and at all times
material has been an employer engaged in commerce within
the meaning of Section 2(2) of the Act.
2. General Teamsters Union, Local 406, International
Brotherhood of Teamsters, Chauffeurs, Warehouseman and
Helpers of America, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
1217LAIDLAW WASTE SYSTEMS
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.
5 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.’’
3. All employees including drivers, helpers, mechanics,
container maintenance and container delivery employees em-
ployed by the Respondent at and out of its facility located
at 250 64th Avenue, Coopersville, Michigan; but excluding
all salesman, clerical employees, managerial employees, pro-
fessional employees, technical employees, confidential em-
ployees, gatemen, guards and supervisors as defined in the
Act constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material and continuing to date, the Union
has been the exclusive collective-bargaining representative of
all the Respondent’s employees employed in the unit set
forth in Conclusion of Law 3.
5. By withdrawing recognition from and refusing to bar-
gain with the Union as the exclusive collective-bargaining
representative of the employees employed in the unit set
forth in Conclusion of Law 3; and by refusing to provide the
Union with copies of documents bearing information nec-
essary and relevant to the Union’s representation duties in
the processing of employee grievances on the Union’s re-
quest, the Respondent violated Section 8(a)(1) and (5) of the
Act.
6. The acts have a close, intimate, and substantial effect
on the free flow of commerce within the meaning of Section
2(7) of the Act.
7. Respondent’s termination of William Bignall did not
violate Section 8(a)(1) or (3) of the Act.
REMEDY
Having found that the Respondent has committed various
unfair labor practice, I will recommend that it be required to
cease and desist therefrom and to take other actions designed
to effectuate the purposes and policies of the Act. I will rec-
ommend to the Board that the Respondent be required to rec-
ognize and bargain collectively in good faith with the Union
as the exclusive bargaining representative of unit employees
and that it be required, on agreement, to embody the terms
of the agreement in a signed, written contract. It will further
be recommended that the Respondent cease and desist from
refusing to provide the Union with copies of documents bear-
ing information necessary and relevant to the Union’s rep-
resentation duties. I will also recommend that Respondent be
required to post a Board notice advising its employees of
their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Laidlaw Waste Systems, Inc.,
Coopersville, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in good
faith with General Teamsters Union, Local 406, International
Brotherhood of Teamsters Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO as the exclusive collective-
bargaining representative of employees in the above-de-
scribed unit.
(b) Refusing to provide the Union with copies of docu-
ments containing information necessary and relevant to the
Union’s representation duties.
(c) In any like or related means interfering with, restrain-
ing, or coercing employees in the exercise of the 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) Recognize and, on request, bargain collectively in good
faith with General Teamsters Union, Local 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO as the exclusive representa-
tive of its Coopersville, Michigan employees, and, if agree-
ment is reached, embody the terms of the agreement in a
written signed document.
(b) Provide the Union with copies of documents con-
taining information necessary and relevant to the Union’s
representation duties in processing the grievances over their
discharges filed by Robert Pagel, Bill Kooi, Bill Ogan, and
Rick Sullivan.
(c) Post at the Respondent’s Coopersville, Michigan, facil-
ity copies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
(3) IT IS FURTHER ORDERED that the complaint allegation
that Respondent violated Section 8(a)(5) of the Act on or
about the date of December 19, 1989, and that it terminated
William Bignall in violation of Section 8(a)(1) and (3) of the
Act be and they are dismissed as unproven.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain in good
faith with General Teamsters Union, Local 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO as the exclusive collective-
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining representative in the appropriate bargaining unit
which is:
All employees including drivers, helpers, mechanics,
container maintenance and container delivery employ-
ees employed by the Respondent at and out of its facil-
ity located at 250 64th Avenue, Coopersville, Michigan;
but excluding all salesman, clerical employees, manage-
rial employees, professional employees, technical em-
ployees, confidential employees, gatemen, guards and
supervisors as defined in the Act.
WE WILL NOT refuse to provide the Union with copies of
documents containing information necessary and relevant to
the Union’s representation duties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively
with General Teamsters Union, Local 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO as the exclusive representa-
tive of employees employed at our Coopersville, Michigan
bargaining unit and, if agreement is reached, embody the
terms of that agreement in a written signed document.
WE WILL furnish the Union the copies of documents con-
taining information necessary and relevant to the Union’s
representation duties.
LAIDLAW WASTE SYSTEMS, INC.