Laidlaw Waste Systems

National Labor Relations Board - Board Decisions

Feb 8, 1994

313 N.L.R.B. 680 (N.L.R.B. 1994)

680
313 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 judge found that the exact date of sale was unclear from the
record, and she accordingly recommended that this issue be resolved
during compliance proceedings. The Respondent contends that the
judge erred and that the sale was effective August 31, 1990. We
agree with the judge. At the hearing, the parties stipulated that the
portable toilet business was sold on or about August 31, 1991. The
Respondent claims that the reference to ‘‘1991’’ instead of ‘‘1990’’
was simply a mistake. However, the sales agreement executed by the
Respondent was dated April 23, 1991, and indicated that installment
payments from the purchaser were to commence in August 1990.
Thus, we are unable to determine on the basis of this evidence when
these operations were discontinued by the Respondent.
The Respondent also excepts to the judge’s implication that its de-
cision to sell the portable toilet business may have been unlawfully
motivated. We find merit in this exception because the General
Counsel did not allege that the sale itself was discriminatorily moti-
vated. Therefore, in adopting the judge’s findings regarding the
Jepperson brothers, we do not rely on any suggestion that the reason
for the sale may have been unlawful.
4 Christensen and Lastowski gave the Respondent a form in which
each stated, ‘‘I wish to apply for any job opening at Laidlaw for
which I am qualified.’’ The form submitted to the Respondent by
Elliott and the Jepperson brothers indicated that they were ‘‘prepared
to work as of August 27, 1990.’’ The credited testimony of Clark
Romeril, the Respondent’s district manager in charge of the Sandy
and Pleasant Grove facilities, shows that the Respondent treated both
forms the same, i.e., as an application for reinstatement to any job
with the Company for which the striker was qualified.
5 The parties agreed that the Respondent hired Ardell Conder as
a new residential driver at the Pleasant Grove facility on September
3, 1991. They also stipulated that the following new drivers were
hired at the Sandy facility for the position and on the date indicated
beside their respective names listed below:
Steve Thacker—rolloff
driver August 27, 1990
Larry Mace—delivery/
swing driver February 4, 1991
Fred Rasmussen—delivery
driver February 27, 1991
Troy Jones—rolloff driver August 12, 1991
Gary Humes—rolloff
driver August 22, 1991
John Jamison—rolloff
driver November 18, 1991
Lee Greer—swing driver December 3, 1991
6 Prior to the strike, they operated a 1-ton truck with a tank on
the back and a drop tailgate. Their job duties included the delivery,
cleaning, and removal of portable toilets from various sites.
Laidlaw Waste Systems, Inc. and International
Brotherhood of Teamsters, AFL–CIO,1 Local
No. 222. Case 27–CA–11621
February 22, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 22, 1992, Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
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,2 and conclusions as modified and to
adopt the recommended Order as modified.
The Respondent operates solid waste removal facili-
ties throughout the United States, including Sandy and
Pleasant Grove, Utah. At Pleasant Grove, it also sup-
plied and serviced portable toilets to customers at var-
ious sites until sometime after August 27, 1990, when
this portion of its business was sold to another com-
pany.3
On August 6, 1990, the Union who represented the
Respondent’s truckdrivers began an economic strike at
the Sandy and Pleasant Grove facilities. On August 27,
1990, Tony Christensen, Mike Lastowski, Timothy El-
liott, Korey Jepperson, and Kyle Jepperson were
among those strikers who unconditionally offered to
return to work. Prior to the strike, they had worked as
drivers at the Pleasant Grove facility. In addition to
seeking their prestrike jobs, Christensen, Lastowski,
Elliott, and the Jepperson brothers applied for any job
opening at the Company for which they were quali-
fied.4 Between August 27, 1990, and December 4,
1991, the Respondent hired one new truckdriver at the
Pleasant Grove facility and seven new truckdrivers at
the Sandy facility.5 As of the date of the hearing,
Christensen, Lastowski, Elliott, and the Jepperson
brothers had not returned to work.
The judge found that the Respondent had violated
Section 8(a)(3) and (1) of the Act by failing to recall
Christensen, Lastowski, Elliott, and the Jepperson
brothers on or after August 27, 1990. She found that
the Jepperson brothers were entitled to their prestrike
jobs as portable toilet drivers.6 She also found that all
five returning strikers were entitled to the eight driver
jobs that became vacant on August 27, 1990, and
thereafter because these jobs were substantially equiva-
lent to the strikers’ prestrike jobs at Pleasant Grove. In
the alternative, the judge found that the Respondent
engaged in hiring discrimination—i.e., made decisions
motivated by animus against the strikers’ protected ac-
tivity—when it hired new drivers into those vacated
driver jobs rather than the five returning strikers and
thereby departed from its prestrike practice of hiring
from the outside only if there were no suitable employ-
ees within its ranks who sought transfers into such
jobs.
The Respondent argues for reversal of the judge’s
decision on the following grounds. First, the Jepperson
brothers were not entitled to their prestrike jobs be-
cause the portable toilet business had been sold. Sec-
681LAIDLAW WASTE SYSTEMS
7 See fn. 3 above.
8 The rolloff driver delivers and removes large waste containers
generally from construction sites. By the use of a winch, he pulls
the container onto the bed of the truck, and then takes the container
to the landfill for emptying like a dump truck. The front load driver
empties large containers at commercial establishments. He operates
a vehicle which has forks on the front and are inserted into pockets
on the side of the container which is then lifted and dumped through
an opening in the top of the truck. The residential driver operates
side-loading trucks and picks up waste from residential customers.
The delivery driver picks up and delivers large containers after they
have been reconditioned. He operates either a truck with a crane
called a ‘‘cherry picker’’ (at Sandy) or a truck with a fork on the
back that lifts and holds the container (at Pleasant Grove).
9 District Manager Romeril testified that separate seniority lists are
kept at Sandy and Pleasant Grove and a more senior employee at
one facility may not bump into a position held by a less senior em-
ployee at the other facility. The Respondent argues that the lack of
any bumping rights confines its obligation to the five strikers solely
to Pleasant Grove job openings. We disagree. This is not a situation
in which the returning striker at Pleasant Grove would displace an
incumbent employee at Sandy. Rather, the positions in question are
vacant positions, and the Respondent’s practice is to promote em-
ployees from within regardless of current facility assignment. In ad-
dition, we observe that the company employee handbook indicates
that seniority for an individual employee is determined based on his
‘‘service date.’’ ‘‘Service date’’ is defined by the handbook as the
date on which the employee begins full-time work with the Com-
pany. Thus, it appears that an employee’s seniority is plantwide and
is carried forward with any transfer or reassignment.
10 For this reason, we find that it is unnecessary to pass on the
Respondent’s argument that Christensen forfeited his reinstatement
rights on August 17, 1990. The putative offer to Christensen in-
volved a residential driver position which we find nonequivalent to
the delivery driver position, his prestrike job. Thus, Christensen was
entitled to turn down offers to nonequivalent jobs.
ond, Christensen forfeited his reinstatement rights by
declining an offer for a residential driver position at
the Pleasant Grove facility on August 17, 1990. Third,
the vacant positions at the Sandy facility were not sub-
stantially equivalent to the prestrike jobs at Pleasant
Grove held by Christensen, Lastowski, Elliott, and the
Jepperson brothers. Finally, the Respondent’s hiring
criteria was not applied in a discriminatory manner
when the eight new drivers were preferred over the
five returning strikers.
According to the well-established principle enun-
ciated in Laidlaw Corp., 171 NLRB 1366 (1968), eco-
nomic strikers who submit unconditional offers to re-
turn to work have reinstatement rights to their former
or substantially equivalent positions. In Rose Printing
Co., 304 NLRB 1076, 1078 (1991), cited by the judge,
the Board stated that as an economic striker has no ob-
ligation to accept an offer of reinstatement to a posi-
tion which is not the same or substantially equivalent
to his prestrike position, Laidlaw and its progeny do
not require an employer to offer nonequivalent jobs to
former strikers as part of its reinstatement obligation.
However, the Board also stated that an employer may
not prefer new applicants over former strikers who
apply for nonequivalent jobs simply because the latter
have been on strike and were on the Laidlaw reinstate-
ment list for their jobs.
Applying these principles to the facts of the instant
case, we adopt the judge’s finding that the Jepperson
brothers were unlawfully denied reinstatement to their
prestrike positions as portable toilet drivers. Addition-
ally, although we reverse the judge’s finding that the
eight vacant driver positions were substantially equiva-
lent to the prestrike jobs of the alleged discriminatees,
we agree with her conclusion that the Respondent un-
lawfully discriminated against all five strikers by fail-
ing to offer them the vacant driver positions filled by
the new hires.
Regarding the Jepperson brothers, the Respondent
does not dispute that the poststrike portable toilet jobs
are substantially equivalent but rather contends that it
denied reinstatement to the brothers because its port-
able toilet business was sold on August 31, 1990. Even
assuming arguendo that the sale occurred on this date,7
this does not justify the Respondent’s failure to rein-
state the Jepperson brothers on August 27, 1990, when
they submitted their unconditional offers. The record
shows, and the Respondent does not claim otherwise,
that the Jeppersons’ jobs were not eliminated until
after the sale. Thus, they were entitled to recall on Au-
gust 27, 1990.
With respect to the question of whether the vacan-
cies were substantially equivalent to the prestrike jobs
of Christensen, Lastowski, and Elliott, we agree with
the judge that the record shows that there is no mate-
rial difference in the duties and functions performed by
drivers with the same job classification at either the
Sandy or Pleasant Grove facilities. At each facility, the
Respondent assigns its drivers different kinds of
trucks—rolloff, front load, residential, and delivery—
depending on the type of collection service involved.8
The drivers of both facilities are included in the same
bargaining unit, receive the same or similar wages and
fringe benefits, maintain plantwide seniority,9 and are
subject to the same overtime system, probationary pe-
riod, and overall supervision by the district manager.
The Respondent has also permitted permanent and
temporary employee transfers between the two facili-
ties which are located about 25 miles apart from each
other. Accordingly, for the reasons given by the judge,
we find that the Respondent could not refuse to con-
sider a returning striker for vacant Sandy positions
bearing the same classification as his prestrike job on
the sole basis that he had been previously assigned to
the Pleasant Grove facility prior to the strike.
However, we do find merit in the exceptions to the
extent that the Respondent argues that the different
driver classifications at each facility are nonequivalent
positions.10 Here, the record shows that the drivers op-
erate different vehicles subject to different licensing
and training requirements and they perform different
collection services with different physical demands and
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 We leave to the compliance stage of this proceeding the deter-
mination of which of the eight driver positions vacant on August 27,
1990, and thereafter would have been filled by these five returning
strikers had there been no discrimination.
job tasks. For example, a residential driver’s vehicle is
not equipped to perform tasks assigned to the rolloff
driver and can only perform regular residential collec-
tion duties. The same is true for the other driver classi-
fications. In this sense, the tasks assigned to the roll-
off, front load, residential, and delivery drivers are not
interchangeable. Cf. Outboard Marine Corp., 307
NLRB 1333, 1344–1346 (1992) (classifications with
the same labor grade found to be substantially equiva-
lent positions for reinstatement purposes). Thus, we
find that the rolloff, front load, residential, and deliv-
ery driver positions are nonequivalent jobs.
As set forth above, however, the five strikers applied
for reinstatement to any job, and the Respondent was
not free to discriminate against them when filling the
nonequivalent vacant driver jobs. In this regard, the
judge found the Respondent’s discriminatory intent
evidenced by the departure from its normal hiring
practices to fill the vacant driver positions with less
qualified new employees. Thus, prior to the strike, the
Respondent’s customary practice was to fill a vacant
rolloff, front load, residential, or delivery driver job
with an incumbent driver in another classification and
later provide the necessary training if the driver lacked
the requisite work experience. In fact, the company
employee handbook encourages promotions from with-
in company ranks. Transferees who did not possess the
appropriate driving license were afforded the requisite
training and opportunity to take the test to obtain the
proper license. Assuming there were no available exist-
ing drivers who wanted the vacant position, the Re-
spondent then preferred to hire fully qualified individ-
uals with good driving records and favorable back-
ground checks.
The Respondent did not adequately explain or jus-
tify its reason for its deviation from those practices. In
this regard, the Respondent did not show that the new
hires at Sandy and Pleasant Grove had qualifications
comparable to or better than Christensen, Lastowski,
Elliott, and the Jepperson brothers. Thus, the judge
reasonably inferred that the changes were made be-
cause the former strikers had been engaged in pro-
tected concerted activity. We adopt the judge’s find-
ings.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Laidlaw Waste Systems, Inc., Sandy and Pleasant
Grove, Utah, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a) and
reletter the subsequent paragraph as 1(c).
‘‘(a) Refusing to offer to reinstate our former strik-
ing employees Korey Jepperson and Kyle Jepperson to
their prestrike positions or substantially equivalent po-
sitions when those positions became available com-
mencing August 27, 1990.
‘‘(b) Refusing to offer the former striking employees
Tony Christensen, Mike Lastowski, Timothy Elliott,
Korey Jepperson, and Kyle Jepperson work in other
jobs for which they were qualified and had applied be-
cause of their status as former strikers.’’
2. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.
‘‘(a) Offer Korey Jepperson and Kyle Jepperson full
and immediate reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions of employment, without prejudice to their se-
niority or any other rights or privileges, discharging, if
necessary, any employee hired as a replacement in any
positions formerly worked by such employee from Au-
gust 27, 1990, to the present.
‘‘(b) Offer Tony Christensen, Mike Lastowski, Tim-
othy Elliott, Korey Jepperson, and Kyle Jepperson
driver positions at the Sandy and Pleasant Grove facili-
ties for which they are qualified and which became
available on or after August 27, 1990, or if those jobs
no longer exist, substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges, discharging, if necessary, any employee
hired for these positions which became vacant from
August 27, 1990, to the present.
‘‘(c) Make whole Korey Jepperson, Kyle Jepperson,
Tony Christensen, Mike Lastowski, and Timothy El-
liott for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of the
judge’s 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
683LAIDLAW WASTE SYSTEMS
1 All dates are in 1990 unless otherwise indicated.
2 The parties stipulated the strike is to be considered an economic
strike for the purposes of determining the employees’ reinstatement
rights.
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 refuse to offer to reinstate our former
striking employees Korey Jepperson and Kyle
Jepperson to their prestrike positions or substantially
equivalent positions when those positions become
available.
WE WILL NOT refuse to offer our former striking
employees Tony Christensen, Mike Lastowski, Timo-
thy Elliott, Korey Jepperson, and Kyle Jepperson work
in other jobs for which they are qualified because of
their status as former strikers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Korey Jepperson and Kyle Jepperson
full and immediate reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions of employment, without prejudice to
their seniority or other rights and privileges, discharg-
ing, if necessary, any employee hired as a replacement
in any positions formerly worked by such employee
from August 27, 1990, to the present.
WE WILL offer, in a nondiscriminatory manner,
Tony Christensen, Mike Lastowski, Timothy Elliott,
Korey Jepperson, and Kyle Jepperson driver positions
at the Sandy and Pleasant Grove facilities for which
they are qualified, without prejudice to their seniority
or other rights and privileges, discharging, if necessary,
any employee hired for these driver positions that be-
came available from August 27, 1990, to the present.
WE WILL make whole Korey Jepperson, Kyle
Jepperson, Tony Christensen, Mike Lastowski, and
Timothy Elliott for any loss of earnings and other ben-
efits resulting from our discrimination, less any net in-
terim earnings, plus interest.
LAIDLAW WASTE SYSTEMS, INC.
William J. Daly, Esq., for the General Counsel.
Julius M. Steiner, Esq. (Obermeyer, Rebmann, Maxwell &
Hippel), of Philadelphia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried on March 12, 1992,1 at Salt Lake City, Utah. The
charge was filed by the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 222 (the Charging Party or the Union) on Feb-
ruary 27, 1991, against Laidlaw Waste Systems, Inc. (Re-
spondent or the Company). On April 26, 1991, the Regional
Director for Region 27 of the National Labor Relations
Board, issued a complaint and notice of hearing against Re-
spondent, which was amended. The amended complaint al-
leges Respondent violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act by failing and refusing to rein-
state former employees who had made unconditional offers
to return to work after an economic strike2 because these em-
ployees engaged in protected concerted activities.
Respondent’s timely filed answer to the amended com-
plaint, as amended, admits certain allegations, denies others,
and denies any wrongdoing.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based on the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent’s answer to the complaint admits, and I find,
they meet one of the Board’s jurisdictional standards and that
the Union is a statutory labor organization.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Matters
Paragraph 5(c) of the complaint alleges Respondent vio-
lated Section 8(a)(1) of the Act, as follows:
On and after August 27, 1990, the Respondent took the
position that any striking employee who did not com-
plete a form stating a preference for work positions had
thereby indicated an intent to only be considered for
his/her former position.
The General Counsel moves to withdraw this allegation ad-
mitting on brief ‘‘there is no evidence to show that Respond-
ent communicated such a position to any employee.’’
The General Counsel also moves to withdraw paragraph
5(d) of the complaint, which alleges:
On or about mid-February, 1991, Respondent hired
Larry Mace, a person who was not a former employee
who had unconditionally offered to return to work, and
thereafter transferred Mace to a position for which
striking employees were qualified and available.
The General Counsel claims the hiring of Mace as a new
hire ‘‘is relevant to the allegations of the refusal to offer re-
instatement to strikers and the refusal to hire certain striking
employees;’’ he does not contend that such activity con-
stitutes an independent violation of Section 8(a)(1) . . . .
and move(d) to withdraw paragraph 5(d) of the complaint.
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to Romeril, a rolloff driver delivers and removes from
15 to 50 containers from large stores and, generally, construction
sites. The truck backs up to the container, a cable is hooked to the
front of the container to secure the load, and by use of a winch, the
container is pulled up onto the bed of the truck. The container is
then taken to a landfill where it is emptied like a dump truck. The
empty container is then returned to the customer location.
A front-load driver operates a vehicle which has forks on the
front. The forks are inserted into pockets on the side of the container
and the container is lifted and dumped through an opening in the
top of the truck.
The record fails to support these allegations and the mo-
tions to withdraw, which are unopposed, should be and are
granted.
B. Background
Respondent is a national company, and in Utah is engaged
in nontoxic solid waste removal from residential customers
and commercial businesses and operations incidental to these
functions such as repair and maintenance of trucks and con-
tainers. Laidlaw has four facilities in Utah located at Ogden,
St. George, Sandy, and Pleasant Grove. The Utah district is
supervised by Clark Romeril, district manager. The Ogden
facility does not employ any drivers. Sandy is in or near Salt
Lake City and is about 25 miles from Pleasant Grove. St.
George is about 278 miles from Pleasant Grove and 300
miles from Sandy. This proceeding involves only the Sandy
and Pleasant Grove operations.
Respondent uses three different types of trucks to service
its customers; front-load and rolloff trucks are used to deliver
and pick-up large waste containers3 and a residential truck
which is loaded from the side and is used to collect waste
from residential customers. The residential trucks only re-
quire one employee to operate a route, as do the rolloff,
front-load and delivery trucks. Residential service is provided
only at the Pleasant Grove facility, Sandy does not provide
any residential service. Sandy and Pleasant Grove have
trucks that pick up and deliver large containers after they
have been reconditioned. The Sandy delivery truck is a truck
with a crane, also called a ‘‘cherry picker’’ and the Pleasant
Grove delivery truck has a fork on the back that lifts the
waste container and maintains it in place. Pleasant Grove op-
erates a waste container maintenance and repair facility
which is operated by one employee.
Respondent also operated a portable toilet business at
Pleasant Grove. This operation placed and serviced portable
toilets at various sites. The parties stipulated ‘‘that on or
about August 31, 1991, or September 1, 1991, the portable
toilet business was sold to the John & Company.’’ There is
no evidence John & Company has any affiliation with Re-
spondent. The portable toilet operation had a staff which in-
cluded two brothers as drivers, Korey and Kyle Jepperson.
These employees drove a 1-ton truck which had a tank on
the back of the truck and a drop tailgate. These employees
delivered and removed portable toilets from ‘‘various types
of sites. And when he is servicing the toilets, pulls up to
them, he has a hose that sucks the refuse out of the toilet
and another hose refills it with a new chemical and he cleans
up the toilet, makes sure all the supplies are there and goes
on to the next site.’’ There is no evidence Respondent in-
tends to resume a portable toilet operation.
C. Events
It is undisputed on August 6, 1990, some of Respondent’s
employees began striking at both Sandy and Pleasant Grove.
The parties stipulated the following employees were em-
ployed by Respondent immediately prior to strike: at Sandy;
Robert Andrew, front load; Lynn Barry, front load; Tom
Bremer, roll off; John Ferrando, roll off; Marvin Hansen, roll
off; Ray Johnson, roll off; Robert Kelly, roll off; John Kelly,
front load; John Maycock, delivery; Paul Miller, front load;
David Moore, roll off; Steve Rasmussen, roll off; Joe Robert-
son, roll off; Jay Sievert, front load; Rex Tanner, mechanic;
and Rick Vierra, delivery; at Pleasant Grove: Dale Baxter,
residential; Tony Beard, front load; David Carter, residential;
Brian Chipman, front load; Tony Christensen, delivery-
container repair; Tim Elliott, residential; Cameron Frampton,
swing; Alberto Gonzales, mechanic; Ed Goodwin, residential;
Don Hayes, residential; Mickey Joe Howard, residential;
Kyle Jepperson, portable toilets; Korey Jepperson, portable
toilets; Blake Johnson, residential; Randy Johnson, mechanic;
Herman Kehl, roll off; Mike Lastowski, residential; Fred
Rasmussen, front load; Wes Smith, welder; Keith
Syndegaard, front load; Randy Teal, portable toilets; and
Shawn Williams, front load.
On or about August 27, 1990, Marvin Hanson, David
Moore, Tony Christensen, Mickey Joe Howard, Tony Beard,
Blake Johnson, Don Hayes, Mike Lastowski, T. Elliott,
Korey Jepperson, Kyle Jepperson, and Wes Smith filed one
or more form letters expressing their unconditional willing-
ness to return to work. Christensen, as discussed in greater
detail, infra, initially made an unconditional offer to return
to work on August 17, 1990. It was stipulated Respondent
reinstated striking employees to positions on the indicated
dates at Sandy as follows: Marvin Hansen, February 5, 1991,
roll off; and, David Moore, May 21, 1991, roll off. At Pleas-
ant Grove, Respondent reinstated the following striking em-
ployees on the indicated dates: Mickey Joe Howard, Septem-
ber 3, 1990, residential; Tony Beard, September 4, 1990,
front load; Don Hayes, December 21, 1990, residential; and
Blake Johnson, January 9, 1991, residential.
The parties stipulated Respondent hired new employees, as
follows:
Steve Thacker, August 27, 1990, roll off at Sandy;
Larry Mace, February 4, 1991, delivery/swing at Sandy;
Fred Rasmussen, February 27, 1991, delivery at Sandy;
Don Allen, June 20, 1991, welder at Pleasant Grove;
Troy Jones, August 12, 1991, roll off at Sandy; Gary
Humes, August 22, 1991, roll off at Sandy; Ardell
Conder, September 3, 1991, residential at Pleasant
Grove; John Jamison, November 18, 1991, roll off, at
Sandy; Lee Greer, December 4, 1991, swing at Sandy.
As of the date of the hearing, the General Counsel claims,
without refutation, the following striking employees had not
been offered reinstatement: Tony Christensen, Mike
Lastowski, Timothy Elliott, Korey Jepperson, and Kyle
Jepperson. Respondent avers Christensen had been offered
reinstatement on or about August 17, 1990.
D. Discussion and Conclusion
The complaint specifically alleges Respondent violated
Section 8(a)(3) and (1) of the Act by failing and refusing to
685LAIDLAW WASTE SYSTEMS
reinstate former striking employees who had made uncondi-
tional offers to return to work and continues to fail and
refuse to reinstate these employees to positions for which
they are qualified and available because these employees en-
gaged in concerted protected activities and to discourage em-
ployees from engaging in similar or other concerted pro-
tected activities. The General Counsel claims Respondent’s
failure to reinstate the five named striking employees is con-
duct inherently destructive of employee rights.
The Court held in NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378–381 (1967):
Section 2(3) of the Act . . . provides that an individ-
ual whose work ceased as a consequence of a labor dis-
pute continues to be an employee if he has not obtained
regular and substantially equivalent employment. If,
after conclusion of the strike, the employer refuses to
reinstate striking employees, the effect is to discourage
employees from exercising their rights to organize and
to strike guaranteed by Sections 7 and 13 of the Act.
. . . Under Section 8(a)(1) and (3) it is an unfair labor
practice to interfere with the exercise of these rights.
Accordingly, unless the employer who refuses to rein-
state strikers can show that his action was due to ‘‘le-
gitimate and substantial business justifications,’’ he is
guilty of an unfair labor practice. NLRB v. Great Dane
Trailers, 388 U.S. 26, 34 (1967). The burden of prov-
ing justification is on the employer.
In some situations, ‘‘legitimate and substantial busi-
ness justifications’’ for refusing to reinstate employees
who engaged in an economic strike have been recog-
nized. One is when the jobs claimed by the strikers are
occupied by workers hired as permanent replacements
during the strike in order to continue operations. NLRB
v. Mackay Radio and Telegraph Co., 304 U.S. 333,
345–346 (1938); NLRB v. Plastilite Corp., 375 F.2d
343 (8th Cir. 1967); Brown & Root, 132 NLRB 486
(1961).
A second basis for justification is suggested by the
Board—when the striker’s job has been eliminated for
substantial and bona fide reasons other than consider-
ations relating to labor relations: for example, ‘‘the
need to adapt to changes in business conditions to im-
prove efficiency.’’
[I]n NLRB v. Great Dane Trailers, supra . . . we held
that proof of antiunion motivation is unnecessary when
the employer’s conduct ‘‘could have adversely affected
employee rights to some extent’’ and when the em-
ployer does not meet his burden of establishing ‘‘that
he was motivated by legitimate objectives.’’ Id. at 34.
. . . The right to reinstatement does not depend upon
technicalities relating to application. On the contrary,
the status of the striker as an employee continues until
he has obtained ‘‘other regular and substantially equiva-
lent employment.’’
A principal Board decision applying the Supreme Court’s
decisions, Laidlaw Corp., 171 NLRB 1366, 1369 (1968),
found, consonant with prior precedent:
[T]he Supreme Court in Fleetwood and Great Dane has
now held that the right to the job does not depend on
its availability at the precise moment of application, and
that strikers retain their status as employees who are en-
titled to reinstatement absent substantial business jus-
tification, and regardless of union animus.
The underlying principal in both Fleetwood and
Great Dane, supra, is that certain employer conduct,
standing alone, is so inherently destructive of employee
rights that evidence of specific antiunion motivation is
not needed. Specifically, in Fleetwood, the Court found
that hiring new employees in the face of outstanding
applications for reinstatement from striking employees
is presumptively a violation of the Act, irrespective of
intent unless the employer sustains his burden by show-
ing legitimate and substantial reasons for his failure to
hire the strikers. A similar parallel exists here which re-
quires application of the same principle. When job va-
cancies arose as the result of the departure of perma-
nent replacements, Respondent could not lawfully ig-
nore outstanding applications for reinstatement from
strikers and hire new applicants absent legitimate and
substantial business reasons, irrespective of intent.
Moreover, we find . . . that Respondent was in fact
discriminatorily motivated when it implemented its
avowed policy of not considering or hiring strikers once
they have been replaced or if no vacancy existed on the
date of application.
We hold, therefore, that economic strikers who un-
conditionally apply for reinstatement at a time when
their positions are filled by permanent replacements: (1)
remain employees; and (2) are entitled to full reinstate-
ment upon the departure of replacements unless they
have in the meantime acquired regular and substantially
equivalent employment, or the employer can sustain his
burden of proof that the failure to offer full reinstate-
ment was for legitimate and substantial business rea-
sons. [Citations omitted.]
Respondent claims it lawfully failed to offer reinstatement
to the named employees for ‘‘legitimate and substantial busi-
ness reasons.’’ Respondent argues it hired permanent replace-
ments to the positions previously occupied by the five strik-
ers. The positions of Kyle and Korey Jepperson were elimi-
nated when the portable toilet business was sold on or about
August 31, 1991, which Respondent avers to be ‘‘substantial
and bona fide reasons other than considerations relating to
labor relations,’’ citing Fleetwood, supra. Moreover, accord-
ing to Respondent, Kyle and Korey Jepperson were not
qualified to perform any other truckdriving jobs performed
by employees at either Sandy or Pleasant Grove.
Since the employees who have not been reinstated all are
employees from Pleasant Grove, Respondent contends they
have no entitlement to employment in any positions available
at its Sandy facility, where there is no evidence any of them
ever worked on either a permanent or temporary basis. Also,
Respondent claims Elliott and Lastowski are not qualified to
drive rolloff and front-load trucks and are not entitled to re-
instatement to positions as drivers of these vehicles. Re-
spondent also argues it offered Christensen reinstatement to
his former position of residential truckdriver, which he re-
fused because of a back injury. Finally, Respondent argues
the General Counsel ‘‘presented no evidence that Laidlaw
was motivated by Union animus in any of its decisions re-
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
garding reinstatement of strikers.’’ As quoted above,
Fleetwood, and Laidlaw decisions specifically found striking
employees are entitled to reinstatement ‘‘regardless of union
animus.’’
1. The issues of location and licensing
Respondent asserts the strikers did not meet conditions
precedent to eligibility for the positions available after the
strike; they did not have the requisite operators’ licenses. In
particular, Respondent focused on Christensen, who was only
19 years old on August 20, 1990, and thus, they aver, he
could not have acquired the necessary operating license
which required the applicant had to be 21 years old. As an
additional defense, Respondent avers it offered Christensen
reinstatement as a residential driver on or about August 17,
1990. Christensen, immediately prior to the strike, was em-
ployed as delivery driver/container.
Interestingly, Respondent argues Christensen, who had
performed the job as residential driver in the past, was quali-
fied, while, as discussed below, the Jeppersons, Lastowski,
and Elliott were not offered the asserted job; despite the un-
disputed fact both Elliott and Lastowski were residential
drivers before they went out on strike. Respondent failed to
show this position was filled during the approximately 10
days between August 17 and the offers to return to work by
the Jeppersons, Lastowski, and Elliott. As noted above, Re-
spondent has the burden of proving there were no vacancies
on and after August 27, 1990. The only driver hired on Au-
gust 27 was Steve Thacker as a rolloff driver. There was no
evidence concerning the date Thacker applied for employ-
ment with Respondent and the date Respondent promised
him permanent employment. Also, on September 3, 1991,
Respondent hired a residential driver at Pleasant Grove rather
than reinstating a striking employee. Respondent failed to ex-
plain why a striking employee was not reinstated to this posi-
tion.
Moreover, I find Respondent modified its normal practice
in hiring new employees after August 27, 1990, to fill rolloff
and front-load positions. Randy Wilkinson, Respondent’s op-
eration supervisor at Pleasant Grove, testified, if there is a
rolloff driver position open, it ‘‘goes to our residential driv-
ers,’’ who are then trained. Wilkinson also testified Respond-
ent trains its residential and front-load truckdrivers. There are
two rolloff driver positions in Pleasant Grove. Assuming
there are no residential drivers Respondent prefers to hire
fully qualified individuals with good driving records and fa-
vorable background checks. Respondent failed to indicate
how often fully qualified drivers meeting all their criteria are
available for employment and applied for employment with
Respondent at Sandy and Pleasant Grove in the past and
after August 27, 1990. Respondent hired four rolloff drivers
on and after August 27. There is no evidence Respondent did
not similarly fill front-load and delivery vacancies in a simi-
lar manner. With the exception of Christensen, all the other
striking employees were over 21 years old and Lastowski
and Elliott were residential drivers who would normally have
been preferred by Respondent in filling rolloff driver vacan-
cies. Based on Wilkinson’s testimony, I conclude Respondent
did not follow its normal practice in considering the striking
residential drivers first for any driving positions after August
27, 1990. Thus, Respondent’s only colorably valid business
claim is that the only driving positions available were those
at Sandy. As discussed below, I find this is not a legitimate
and substantial business consideration.
2. The failure to reinstate Christensen
I conclude, based on the credited evidence, that Respond-
ent did not offer Christensen the position of residential driver
on August 17. Financial exigencies drove Christensen to re-
quest Respondent return him to work and he signed the offer
to return to work. Christensen first spoke with Randy
Wilkinson and then with both Wilkinson and Romeril.
Christensen credibly testified:
I told Clark [Romeril] that I needed to come back to
work. He asked me what it was that I did. I told him
I was the container maintenance driver. And he told me
that there was a gentleman from Sandy who had trans-
ferred from Sandy and was doing that job and that it
had been filled. And he asked me if I’d be interested
in any other job. I told him that I would. I’d do pretty
much anything. And then we started talking about the
strike and what we could do to resolve it or get it over
with.
After we had talked about the strike, me and Randy
had gotten up and were going to leave and Clark said—
or asked me how I would feel about doing a residential
route. And I told him that I couldn’t do residential full
time because I’d hurt my back on a residential route
and couldn’t do it full time. I could do it as fill in or,
you know, when they—on occasional times when they
needed help, but I could not do residential full time.
And Randy acknowledged the fact that was true. I did
hurt my back.
Q. What, if anything, did Randy say or do to ac-
knowledge that?
A. I think he just told Clark that—he just looked at
Clark and said, that’s right.
Q. Was there any mention by Mr. Romeril in that
meeting about a specific job?
A. No, there was not.
Q. Was any kind of a starting date or anything like
that mentioned?
A. No.
Romeril claims he offered Christensen a position as a resi-
dential driver but Christensen declined the offer saying ‘‘his
back would not allow him to do residential.’’ Wilkinson was
present during the meeting between Romeril and Christensen,
and he testified Romeril offered Christensen a job as a resi-
dential driver. I find Christensen’s detailed rendition of this
meeting the more credible version. Christensen’s recitation of
events was accomplished with considerably persuasive detail;
he gave the strong impression he was making an honest at-
tempt to accurately recall the facts.
Romeril exhibited poor recall, a portion of his testimony
was elicited through the device of leading questions; his tes-
timony was self-serving, exaggerated, and he appeared more
interested in supporting a litigation theory than in testifying
candidly about the events. When pressed about an answer, he
often admitted he did not recall or did not know the answer
and on several occasions engaged in speculation, had incon-
sistent testimony, and at times was disingenuous. For exam-
ple, he testified a division manager could refrain from dis-
687LAIDLAW WASTE SYSTEMS
4 Christensen’s unrefuted testimony referred to the doctor as
‘‘Laidlaw’s doctor.’’ At the time of the accident, Christensen filed
with Respondent an accident report. The doctor told Christensen he
had severely pulled back muscles and needed to be off from work
for 2 weeks and have physical therapy. About 3 or 4 days after the
accident, Cameron Tolman, Respondent’s operations manager at
Pleasant Grove, requested Christensen return to work and he did
under the condition he merely drive his route and Respondent would
provide someone to throw the garbage into the truck. Respondent
provided a helper to throw the garbage for about 5 days and then
Christensen resumed full activities until reinjuring his back about 2
weeks after his initial accident. Tolman sent Christensen back to the
doctor. The doctor informed Tolman if Christensen continued to
throw garbage his back would never heal. At that time Respondent
transferred Christensen to the job of container maintenance/delivery,
which was the job he held immediately prior to the strike.
5 According to Romeril, the container repair employee cleans con-
tainers, scrapes the interiors to ensure the removal of all debris in-
side and out, washes them, and performs minor repairs including fix-
ing lids, pounding out dents, and preparing the containers for paint-
ing.
charging an employee who was under the influence of alco-
hol when driving, even though company policy required the
driver be terminated. Only after further examination Romeril
admitted the division manager would also be violating com-
pany policy and could be terminated for the infraction. An-
other inherent inconsistency, this one directly concerning the
alleged job offer to Christensen is, if there was a residential
driver position open at Pleasant Grove on August 17, there
is no evidence it was filled by August 27, and there is no
claim the other striking employees were not qualified to per-
form the job on or after August 27, 1990, or that it was not
substantially equivalent to their prestrike positions.
I also find Wilkinson was not credible. He had occasional
lapses in recall and appeared to be tailoring his testimony to
please Respondent rather that manifesting a candid demeanor
and manner. He did not appear open and forthright; therefore
his testimony will be credited only when it is credibly cor-
roborated or an admission against Respondent’s interests.
It is undisputed Christensen injured his back twice during
and in the course of his employment with Respondent and
was attended by a physician pursuant to Respondent’s health
insurance plan.4 Both Romeril and Wilkinson disclaimed any
knowledge of Christensen’s injury and his concomitant in-
ability to operate a residential route on a full-time basis.
However, there was no claim by either Romeril or Wilkinson
that Romeril mentioned a particular route, a starting date,
terms or conditions of employment or other details of the
professed job offer.
Christensen described his container maintenance job duties
as follows:
I fixed and painted all of the garbage bins that were
out—you know, out—on service pretty much by a truck
the pockets would rip off or have holes in them besides
what come apart where the wheels were. So I would
take a good refurbished can back out to the location
where they knew of a bad one or a dirty one, bring it
back, reweld it, clean it, and then paint it.5
I conclude, based on the credited evidence, that Respond-
ent did not offer Christensen a job on August 17, 1990. As
held in Holo-Krome Co., 302 NLRB 452, 454 (1991): ‘‘It is
well settled that an offer of employment must be specific,
unequivocal, and unconditional in order to toll backpay and
satisfy a Respondent’s remedial obligation.’’ See also the
cases cited by the General Counsel, L’Ermitage Hotel, 293
NLRB 924 (1989), and Associated Grocers, 295 NLRB 806
(1989).
As the Board found in Carruthers Ready Mix, 262 NLRB
739, 749 (1982):
There is no specific rule under Board law requiring
that an offer of reinstatement take any particular form.
However, it must be reasonably calculated to commu-
nicate the offer. In order for an employer to discharge
his obligation to offer reemployment to a striking em-
ployee who has unconditionally requested reinstatement,
the employer ‘‘must present probative evidence show-
ing a good-faith effort to communicate such an offer [of
reinstatement] to all employees . . . [and] must show
that [it] has taken all measures reasonably available to
[it] to make known to the striker that he is being in-
vited to return to work.’’ J. H. Rutter-Rex Manufactur-
ing Company, Inc., 158 NLRB 1414, 1524 (1966),
enfd. as modified 399 F.2d 356 (1968), reversed 396
U.S. 258 (1969).
Romeril did not clearly inform Christensen he had a posi-
tion open on August 17, 1990, which he was then offering
to Christensen and which Christensen could assume on that
date or in the near future. In this case, Romeril merely asked
Christensen if he would be interested in a residential job, he
did not specifically offer him the position and thus it was not
an express offer of reinstatement.
Even if Romeril’s statements on August 17, 1990, were a
valid offer of employment, Christensen was entitled to rein-
statement to his former position of maintenance/delivery be-
cause of his injury. While Christensen was competent to per-
form all driving jobs at Respondent, he was physically un-
able to perform the more physically demanding residential
driver job which he was physically unable to perform. Thus,
if Christensen had refused an offer of reinstatement to a resi-
dential position on August 17, 1990, he did not lose his right
to reinstatement to his prestrike job or one which was com-
parable. Christensen testified without contradiction that the
rolloff and front-load driver jobs were much less physically
demanding than the residential driver position. As noted in
NLRB v Rockwood & Co., 834 F.2d 837, 841–842 (9th Cir.
1987), a case cited by Respondent:
The ALJ found that the glue tank cleaning job was not
substantially equivalent to Acosta’s old job. This find-
ing is supported by substantial evidence. The glue tank
cleaning job was more demanding physically, was par-
ticularly difficult for Acosta because of the hip surgery
he had undergone, and was on a more onerous shift.
See Burton Parsons & Co., 242 NLRB 487, 490
(1979). Because the glue tank cleaning job was not sub-
stantially equivalent to Acosta’s former position, he was
entitled to accept or reject it without affecting his status
as an employee under section 152(3) or his right to re-
instatement.
Respondent next argues it did not have a substantially
equivalent position for Christensen up until the day of hear-
ing. According to Respondent, in order to operate a front-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Specifically, the handbook provides:
The classification system is used to group positions sharing the
same basic duties and responsibilities into generic job ‘‘fami-
lies.’’ Each job family represents a major and clearly identifiable
area of work. Your level within a job family is identified by a
classification title and grade. Each employee is assigned a ‘‘title
and grade.’’
Respondent failed to provide the classification and grade as de-
scribed in this section of the handbook for the open positions and
for the employees who were not reinstated as of the date of trial.
According to the handbook, Respondent also encourages employees
to seek promotion, thus, if driving roll offs and front loaders is con-
sidered a promotion, Respondent favors filling those position from
within the Company and encourages qualified employees to apply
for promotion. There is no indication such promotions are limited to
particular geographical locations.
7 The handbook states:
You may be reimbursed for costs incurred while becoming
registered, licensed or certified in your field of employment. Ex-
amination site, initial registration, application fees, licensing, and
renewal fees are covered. You are allowed a maximum of three
attempts to pass the required examination.
Approval for reimbursement must be obtained by your Re-
gional Vice President before costs are incurred.
8 According to the Utah Commercial Vehicle Driver’s Manual:
Federal law requires all commercial motor vehicle operators
who drive across state lines to be at least 21 years old. Persons
between 18 and 21 years of age may be issued a commercial
drivers license with a restriction indicating their commercial
driving privileges are valid in Utah only intrastate and may not
transport passengers for hire or hazardous materials (may not
obtain a Class C, CDL). Some cargo, although transported only
inside the state by a driver may be considered interstate com-
merce and may not be transported by a driver under 21. If you
are younger than 21 and if you are uncertain about your cargo,
check with your employer or the Utah Department of Transpor-
tation.
There is no evidence Respondent or any authority considered Re-
spondent’s operations at Sandy and Pleasant Grove to be interstate
commerce. As noted above, Respondent has the obligation to prove
the concerned employees are not qualified for positions.
9 Christensen describes his use of the front-end loader on residen-
tial routes as:
I built a special can that we started with a four yard and I
cut it off and then put steps on it. And I used to pull a front-
end loader and I’d put it on the forks and then have somebody
up on the can on the step and I would just drive through the
route and put the can down by the residential stop and whoever
load or rolloff truck, the driver must be 21 years old and
possess a particular commercial operator’s license, and
Christensen did not meet these requirements. The licensing
and experience requirements for a delivery driver, if any,
were not disclosed during this proceeding. On or after Au-
gust 27, Respondent hired two delivery drivers and a swing
driver, as well as the previously mentioned rolloff and resi-
dential drivers. Admittedly, Respondent hired, as new em-
ployees, individuals who did not possess the requisite li-
censes. Respondent’s employee handbook does not specifi-
cally require particular licenses for eligibility for any posi-
tions, and provides for the classification of generic jobs into
job families.6
According to the Employee Handbook, Respondent also
pays for licensing if prior approval is obtained.7 Federal reg-
ulations, which have an effective date of April 1, 1992, re-
quire drivers of rolloff and front-load vehicles to obtain a
commercial drivers license (CDL). In order to obtain a CDL,
the applicant must be 21 years old. The company handbook
and physical qualifications criteria, do not contain an age re-
quirement. Christensen operated all of Respondent’s vehicles
prior to the strike, even though he was not 21 years old. In
August 1990, it appears the Utah Commercial Vehicle Driver
law was in effect from October 2, 1989, to the date the Fed-
eral Regulations became the operative standard in April
1992. The Utah Classified License System provided for ap-
plicants between the ages of 18 and 21 to hold Class A
and/or B commercial drivers licenses, limited to intrastate
operation, which includes all of Respondent vehicles here
pertinent.8 There is no claim or evidence any of Respond-
ent’s employees at Sandy and/or Pleasant Grove needed to
engage in the interstate operation of their vehicles.
Respondent was knowledgeable about the intrastate provi-
sions of the applicable Utah law both by Romeril’s admis-
sion and Wilkinson’s actions. According to Christensen’s
uncontroverted testimony, about 1 month before the strike,
when Christensen was 19, Wilkinson asked him to obtain a
‘‘CDL so that I could run back up on roll offs and front
ends.’’ Accordingly, I find Respondent considered
Christensen was qualified to work as a driver of both front-
load and rolloff trucks if he obtained a CDL. Christensen
was 21 years old in April 1992. Thus, Christensen’s age and
lack of a CDL from August 17 to the date he was reinstated
do not constitute substantial and legitimate business consider-
ations in the circumstances of this case.
Christensen was working at both Sandy and Pleasant
Grove. Until Respondent hired a delivery driver at Sandy,
Christensen repaired, maintained, and delivered some of the
containers used at Sandy. During this period, Christensen
worked at Pleasant Grove Monday, Wednesday, and Friday,
and at Sandy Tuesday and Thursday. The delivery driver at
Sandy, when Christensen’s truck was out of service for
maintenance for a 3-week period, came in his truck to Pleas-
ant Grove and he, along with Christensen, who knew the
area, delivered containers using the Sandy-based delivery
truck. There was no evidence concerning Christensen’s quali-
fications to drive the cherry picker delivery truck based at
Sandy.
Pleasant Grove had a maintenance shop, and the Sandy ve-
hicles that needed major repair were sent to Pleasant Grove
for mechanical work. At times, a Pleasant Grove vehicle was
substituted for the Sandy truck being repaired. Christensen
drove the vehicles from Sandy to Pleasant Grove. Respond-
ent did not controvert this evidence and since there were no
residential operations in Sandy, I conclude this testimony
substantiates Christensen’s claim he drove front-load and
rolloff trucks for Respondent prior to the strike, when he was
19 years old.
Respondent also claims his job duties, which included
driving a pal body truck on the public streets, was not sub-
stantially similar to any driver jobs available at Sandy. A pal
body truck has forks on the back and the operator backs the
truck up so the forks enter slots in the trash bins and the
driver lifts the bins with the forks to permit transport to and
from the yard. Christensen worked as container
maintenance/delivery person for about 2 or 3 months before
the strike, but on occasion was directed to fill in for absent
residential drivers using their truck or, a truck would break
down and Christensen would take a front-end loader9 to
689LAIDLAW WASTE SYSTEMS
was on the can would throw the trash in. And that’s how we
did it.
10 Christensen testified the operation of front-load and rolloff vehi-
cles are not physically demanding jobs and he could perform these
duties with his back injury. Respondent does not refute these claims.
11 As used herein, CDL refers to vehicle operators’ licenses.
12 Wilkinson denied any knowledge of Christensen driving a front
loader on residential routes. For the previously stated reasons, I do
not credit this self-serving denial. Romeril also denied Christensen
operated front-load and rolloff trucks on the streets, however, I pre-
viously found he is not a credible witness. Also, Romeril did not ex-
hibit reliable knowledge of the Pleasant Grove operation. For exam-
ple, Romeril did not believe there was an employee who was per-
forming container repair at Pleasant Grove before the strike, and
only after repeated questioning did he recall Christensen held that
position. Romeril did not know Christensen also repaired containers
from the Sandy location. Romeril did not know the working hours
of the different driver classifications at Pleasant Grove before the
strike. He also did not know the details of how the rolloff and front-
load drivers were compensated at Pleasant Grove, the rate per cubic
yard. The following excerpted testimony further demonstrates
Romeril’s lack of knowledge concerning Respondent’s policies and
practices in hiring drivers:
Q. Okay. Now let’s talk about residential driver. You have an
opening for—let’s assume you have an opening for a residential
driving position and an individual wants to come in off the
street to apply. Does that individual have to have any specific
qualifications?
A. You’re asking if he’s going to come in and drive?
A. He would have to have the proper license.
Q. And what would that license be? Do you know?
A. I do not know.
Q. You don’t know? Okay. And the age requirement for the
residential driving position?
A. At least 18.
Q. Are you sure?
A. I don’t know.
Q. You don’t know about the age either?
A. No.
Finally, Romeril claimed he did not know the class of CDL employ-
ees needed under Utah law, prior to April 1, 1992, to drive rollof
and front-load vehicles, yet he also asserted he was familiar with the
state and Federal licensing provisions.
perform the service. He drove the front-end loader on resi-
dential routes about three or four times a month. Christensen
knew all the residential routes. When he drove a residential
route, Respondent provided for another employee to attend to
the function of throwing the garbage into the truck.
After about 3 months in the delivery/container repair job,
Christensen had a dispute with Tolman and was fired. Ap-
proximately 3 months later he returned to work and part of
his employment agreement was he would perform less work
on residential routes, but he still drove a residential route
about once or twice a month with one of these assignments,
on average, resulting in the use of a front-load truck.
Christensen’s job duties continued in this manner until the
strike.
Christensen had additional experience driving front-load
trucks using them to move containers around the yard and
has been driving them on private property since he was 16
years old. His operation of front-load vehicles on routes was
corroborated by Elliott, who worked with Christensen and
observed his operation of the vehicle on routes where a side-
loading residential truck had broken down and Christensen
had jerry-rigged a front-load truck and container combination
to function in residential service. Christensen also drove roll-
off trucks in the yard at Pleasant Grove to move containers
to the area where he repaired them. Respondent does not
contend Christensen lacks the skills and knowledge to oper-
ate rolloff and front-load vehicles; it claims he does not have
the appropriate license, is not the requisite age and there
were no openings for these positions at Pleasant Grove.10 To
acquire the appropriate license in 1990, Christensen needed
the appropriate vehicles to take the test and his lack of em-
ployment precluded this testing.
Respondent has hired individuals as drivers of residential,
rolloff, and front-load trucks, who did not possess the appro-
priate CDL11 and afforded them the requisite training and
opportunity to take the test to obtain a CDL. Christensen
knew his driving a front-loader without the requisite license
was illegal, and he asserts Wilkinson also knew it was ille-
gal,12 but Wilkinson directed Christensen to operate the
truck.
Respondent admits the permanent replacements hired after
the commencement of the strike did not have the appropriate
licenses and had to be trained, but claims the exigencies
caused by the strike necessitated this course of action. How-
ever, Respondent failed to present personnel files demonstrat-
ing Christensen and Wilkinson were in error or that it had
a policy of hiring experienced, appropriately licensed individ-
uals to operate rolloff and front-load trucks. Respondent also
failed to explain the references to licensing in the Handbook.
Moreover, Respondent failed to adduce evidence, either
through personnel files or other documentation, demonstrat-
ing an established policy of hiring only driver applicants who
are at least 21 years old and hold the requisite licenses. On
the contrary, Respondent admitted to hiring individuals who
did not have the requisite licenses, training them under a
learning permit and then having them acquire the CDL, con-
sonant with the provisions of its Employee Handbook,
quoted above. I conclude Respondent, by custom and prac-
tice, hires individuals without experience and appropriate li-
censes. Respondent failed to place into evidence any statis-
tics concerning what percentage of its work force is hired as
inexperienced and not properly licensed drivers.
Accordingly, I conclude Respondent has not established
experience and appropriate licensure were conditions prece-
dent to employment as front-load, rolloff, or any other cat-
egory of driver. Based on the references to obtaining licenses
in Respondent’s Employee Handbook, Christensen’s testi-
mony and Wilkinson’s admission Respondent tries to move
residential drivers to rolloff driver positions, corroborates
Christensen’s testimony; and requires the determination
Laidlaw hires individuals who have no experience driving
rolloff and front-load vehicles and trains them. This training
usually takes between 1 and 2 weeks.
Similarly, Respondent has not produced any clear and con-
vincing policy concerning the age of its drivers. When he
was 18 and 19 Christensen operated residential and delivery
trucks regularly and when needed, was directed to operate a
front-load vehicle on the streets to replace side-loading resi-
dential trucks that had broken down. Respondent’s lack of a
written age requirement and the absence of convincing testi-
mony it had an age requirement, lead me to conclude Re-
spondent did not have an age policy and Christensen’s age
on August 27, 1990, was not a valid basis for Respondent’s
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Thus, I find that on or about April 1, 1991, there was an open-
ing for a residential driver at Pleasant Grove, which Respondent did
not offer to any of the five striking employees. This is the second
opening at Pleasant Grove for a residential driver; on September 3,
1991, Ardell Conder was hired at Pleasant Grove to be a residential
driver.
failure to offer him a position at either Pleasant Grove or
Sandy.
The next question is whether Respondent had an obliga-
tion to offer Christensen a job at Sandy since he principally
had been employed at the Pleasant Grove location, and if so,
was the job substantially equivalent to his Pleasant Grove
position. As noted above, Respondent hired six drivers at
Sandy on or after August 27, 1990, including Larry Mace on
February 4, 1991, as ‘‘delivery/swing’’ and Fred Rasmussen
on February 4 as delivery, the same position Christensen
held at Pleasant Grove and performed on occasion at Sandy
before the strike, in addition to his container repair duties.
The General Counsel claims, while location is a relevant
consideration in determining if a job is substantially equiva-
lent, it is not a per se test and under the circumstances of
this case, the Sandy jobs are substantially equivalent to the
employees’ prestrike jobs. Further, there is no showing by
Respondent that compared to the striking employees, the re-
placements at either Sandy or Pleasant Grove had com-
parable or better qualifications.
Respondent claims it has no obligation to reinstate any
striking employee of Pleasant Grove to positions at Sandy,
where positions for which they are qualified are available.
According to Respondent, there have been only two or three
transfers of employees from Sandy to Pleasant Grove which
were pursuant to the employees request, after approval by
management. Respondent also avers there is no established
entitlement to transfers under the collective-bargaining agree-
ment or otherwise. According to Laidlaw, Sandy and Pleas-
ant Grove are two separate divisions with ‘‘separate seniority
lists and separate schedules, including vacation schedules,
and that employees of one plant are not permitted to bump
into the other.’’ Each division prepares its own payroll and
the division managers have the following operational respon-
sibilities:
A division manager on a day-to-day basis can set the
time that a driver starts; which route they handle; minor
disciplinary problems; who does what jobs; discrep-
ancies in payroll; right down to which—if he wants a
driver to take a different truck on a certain day or if
he needs to help someone else. Any item like that he
can handle himself. He does that all himself.
Respondent admits there were occasions when an employee
of one plant temporarily worked at the other facility but
maintains these instances are infrequent.
It must therefore be decided whether positions at Sandy
were substantially equivalent to that Christensen and the
other strikers held at Pleasant Grove. Respondent failed to
adduce evidence concerning the pay rates and hour of work
for the different positions at both Pleasant Grove and Sandy.
While the vehicles were different, there was no indication
compensation, benefits, and other terms and conditions of
employment were not substantially equivalent. While Re-
spondent claimed front-load drivers were paid at a piecework
rate, it did not provide actual earnings records so a compari-
son could be made. Respondent admitted employees of both
divisions receive the same fringe benefits. Romeril supervises
both divisions and has final approval of disciplinary meas-
ures and hiring decisions. Prior to the acquisition of a deliv-
ery truck at Sandy, Christensen made deliveries to both the
Pleasant Grove and Sandy areas of service. Romeril admitted
Sandy and Pleasant Grove employees were subject to the
same overtime system and probationary period as well.
Moreover, Romeril admitted Norris Northrup, a residential
driver hired at Pleasant Grove on August 6, 1990, transferred
to the Sandy location on January 7, 1991, to become a rolloff
driver. Romeril did not know if Northrup had any rolloff ex-
perience prior to his transfer to Sandy. Subsequently, on
April 1, 1991, Northrup transferred back to Pleasant Grove
to become a residential driver.13 Such transfers require
Romeril’s approval.
Another transfer involved Fred Rasmussen, who worked at
Pleasant Grove as a front-load driver. After the strike, Ras-
mussen was hired at Sandy on February 27, 1991, as a deliv-
ery driver. In March 1991, Rasmussen transferred to Pleasant
Grove as a delivery driver, the position Christensen had im-
mediately prior to the strike. Similarly, Paul Miller, prior to
the strike, was a front-load driver at Sandy and in March
1991, Respondent authorized his transfer from Sandy to
Pleasant Grove as a delivery driver and also in March 1991,
Respondent transferred Miller back to Sandy as a delivery
driver. Again these are positions which are substantially
equivalent to Christensen’s prestrike job. Respondent failed
to adduce any evidence demonstrating they were not substan-
tially equivalent. Furthermore, Respondent failed to dem-
onstrate why, if front-load drivers would transfer to delivery
and residential-driver positions, residential and delivery driv-
ers could not transfer to front-load and rolloff positions. Re-
spondent failed to demonstrate there were differences in
training, or other factors making them not substantially
equivalent to Christensen’s and the four other striking em-
ployees’ jobs.
The Board held in Rose Printing Co., 304 NLRB 1076,
1077–1078 (1991):
Thus the touchstone for determining reinstatement
rights is ascertaining whether the job is the same as, or
substantially equivalent to, the pre-strike job. To be
sure, the striker’s qualifications are not irrelevant. The
issue of whether the striker is qualified to perform the
job may shed light on whether the job is substantially
equivalent to the prestrike job. Indeed, the Board has
combined the two requirements. In Fire Alert Co., 207
NLRB 885, 886 (1973), the Board said that ‘‘the Re-
spondent’s reinstatement obligation here is not limited
to the strikers’ old positions, but rather includes rein-
statement to substantially equivalent positions which the
strikers are qualified to fill.’’ Thus, it may well be that
the job must be substantially equivalent to the prestrike
job and the striker must be qualified to fill it. But the
essential point is that mere qualification to perform the
job will not suffice.
. . . .
Our duty is to ensure that strikers who have uncondi-
tionally offered to return to work are to be treated the
same as they would have been had they not withheld
691LAIDLAW WASTE SYSTEMS
14 There is no evidence concerning who, if anyone, filled the va-
cated Pleasant Grove residential driver position relinquished by the
transfer.
15 Specifically, Romeril testified:
Q. Okay. Let me ask you again then.
An employee who submitted a form such as General Counsel
Exhibit 2-S which is a form which says, to whom it may con-
cern, essentially, I’m prepared to return to work; correct?
A. Yes.
Q. Now if an employee submitted this form, which is 2-S, and
did not submit a form which is, as an example General Counsel
Exhibit 2-A, did you still consider that employee to be applying
for reinstatement to any job that was available with Laidlaw for
which they qualified?
A. Yes.
16 The June 1989 agreement described the appropriate collective-
bargaining unit as:
All drivers, mechanics, welders and bailers employed by the
Employer at its facilities located at . . . Pleasant Grove . . . and
. . . Sandy . . . BUT EXCLUDING all management employ-
ees, office clerical employees, guards and supervisors as defined
in the Act.
17 This agreement, executed by Respondent on May 21, 1991, de-
scribes the agreed-on appropriate collective-bargaining unit as:
All roll off, front load, residential and container delivery
drivers/repairmen, mechanics, yardmen and dispatchers em-
ployed by the employer at its Pleasant Grove and Sandy, Utah
facilities, but excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act.
18 The Sandy delivery truck was called a cherry picker which was
described by Christensen as:
[T]he cherry picker’s got an arm sort of like a crane that folds
back behind the cab. And it swings out to where—to where the
container’s position, the one that you’re going to pick up, and
then you wrap a chain through each pocket and hook them up
into a hook on the crane.
And then you just lift it up and then move it over and set it
down on the bed of the truck.
19 Respondent, by Wilkinson, described Frampton’s duties as:
‘‘Cameron, basically, knows every job in Utah. He covers front load,
covers roll off, covers residential.’’ While indicating he does not fre-
quently work at Sandy, the Company did not present any records
and it was not clear Wilkinson was referring to the temporary trans-
fers of Frampton after August 1990. Also, there was no indication
if Respondent’s practices of temporary transfers were recently al-
tered. I have not credited Wilkinson’s testimony except where
credibly corroborated or an admission against Respondent’s interests
based on his demeanor. He appeared to be attempting to obfuscate
Continued
their service. They are therefore entitled to return to
those jobs or substantial equivalents if such positions
become vacant, and they are entitled to nondiscrim-
inatory treatment in their applications for other jobs. As
to this latter entitlement, it is clear that, while the
former strikers were not guaranteed a preference for the
nonequivalent jobs, the Respondent was not free to pre-
fer new applicants over them simply because they had
been on strike and were on the Laidlaw reinstatement
list for their old jobs.
Here, Respondent transferred a Pleasant Grove residential
driver to a rolloff driver position at Sandy,14 and the striking
residential driver employees are equally entitled to consider-
ation for similar jobs. Respondent hired three rolloff drivers
at Sandy and did not offer any of the five striking employees
the positions. There were also two delivery positions and a
swing job given to new hires at Sandy after the striking em-
ployees unconditionally offered to return to work. The new
hires’ qualifications were not shown to be any better no less
comparable to those of the striking employees. Again, Re-
spondent permitted Pleasant Grove employees to transfer be-
tween Sandy and Pleasant Grove as delivery drivers. Further,
Respondent failed to present any evidence any of the perma-
nent replacements or other nonstriking employees were ever
denied a request for transfer; transfers were encouraged in
the Employee Handbook, quoted above; in a section entitled
‘‘Your Growth and Development.’’
Many of the replaced employees, including Christensen
and Lastowski, executed a replaced employees interest form
which specifically indicated ‘‘I wish to apply for any job
opening at Laidlaw for which I am qualified.’’ The
Jeppersons and Elliott executed a form which all the other
striking employees here involved also executed which pro-
vides: ‘‘I [name], [Laidlaw employee], am prepared to return
to work as of August 27, 1990.’’ Also, Romeril testified
three other employees, who filled out only the other form,
which stated they are ‘‘prepared to work as of August 27,
1990,’’ ‘‘were applying for reinstatement to any job that was
available with Laidlaw for which they were qualified.’’15
Based on Christensen’s and Lastowski’s forms, they applied
for any job opening, and Respondent’s permission of trans-
fers to and from Sandy to positions these employees held
and/or were qualified to hold, and hired new employees after
August 27, without demonstrating the new hires were at least
as qualified as the striking employees; requires the conclu-
sion Respondent failed to accord them the same treatment as
the new hires, for there is no evidence they were given any
consideration for these positions while the new applicants
who were hired clearly were given favorable consideration.
I conclude Respondent ignored striking employees awaiting
reinstatement and failed to present legitimate and substantial
business reasons for these actions when hiring for jobs at
both Sandy and Pleasant Grove. Laidlaw Corp., supra at
1369.
The contention by Respondent Sandy and Pleasant Grove
are operated as separate and distinct divisions is not fully
supported by the record. In stipulated election agreements ex-
ecuted in 198916 and 1991,17 Respondent agreed to appro-
priate collective-bargaining units which were comprised of
the truck drivers at both Sandy and Pleasant Grove. In the
1991 agreement, the delivery drivers were grouped with re-
pairmen by designating the position ‘‘delivery drivers-
repairmen.’’ Thus, Christensen’s position as delivery-
container repair, has not been shown to justify or permit Re-
spondent’s failure to consider his application for employment
in ‘‘any job opening at Laidlaw,’’ as rendering him ineligible
for the delivery positions filled after he executed this docu-
ment supplied by Respondent on August 17, 1990.
The temporary transfers of employees between Pleasant
Grove and Sandy further dispel any visions that each divi-
sion was separate and autonomous. Christensen worked on
containers from Sandy, major mechanical repairs of Sandy
trucks were performed at Pleasant Grove, and when the
Pleasant Grove delivery truck was out of service for 3 weeks
for repairs Christensen worked with the Sandy delivery driv-
er in the Sandy delivery truck.18
Respondent admits Cameron Frampton, swing driver19 at
Pleasant Grove, substitutes for absent drivers at Sandy, in-
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any facts perceived as detrimental to Respondent’s litigation theory;
he did not seem open and honest. Supporting this conclusion is Re-
spondent’s admission it hired a new employee to be swing driver at
Sandy after August 27, who was not shown to have any specific
knowledge of Respondent’s operations in the area.
20 Hayes, a former employee of Laidlaw who was terminated on
or about November 29, 1991, testified in an open and honest man-
ner, reciting events with persuasive detail and forthrightness.
21 On cross-examination, Hayes testified Frampton was gone from
Pleasant Grove about half the time during Hayes’ employment,
which was from December 21, 1990, to November 1991. Frampton
told Hayes he was ‘‘mostly driving front-end drivers’’ at Sandy.
22 Wilkinson admitted rolloff drivers occasionally deliver bins to
Sandy but claims they do not make such deliveries ‘‘often.’’
Wilkinson did not state with specificity how often Pleasant Grove
rolloff drivers make such deliveries.
cluding during employees’ vacations for periods as long as
a week. While Romeril claims this occurs less frequently
than once a month, Edgar Don Hayes, whom I find is a cred-
ible witness,20 testified:
Q. How frequently would Mr. Frampton work in
Sandy, do you know?
A. I think what they did is they scheduled their vaca-
tions opposite weeks as us so he could go up there and
work on their vacation weeks, whatever they needed,
and then he’d come back.
Q. Well, during the period that you were employed
for Laidlaw how frequently would Mr. Frampton—let
me ask you first.
Where was Mr. Frampton assigned on a regular
basis, if you know?
A. I don’t know because, like I said, he was back
and forth so much.
Q. All right. How often would he work in Sandy, if
you know?
A. There was times where I wouldn’t see him for a
couple of weeks. And then we’d all get on the radio
and say, well, how does it feel to be back down here
among us?
And he’d say, well, sometimes it’s a lot better being
up in the Sandy yard.
Q. How frequently would he work in Pleasant
Grove?
A. Like any vacations or whatever needed to be
done. I guess that’s why they called him the relief driv-
er because he was anywhere they needed him.21
Based on Hayes’ testimony, I conclude Frampton was tem-
porarily assigned to Sandy with such frequency that the
Pleasant Grove employees could not determine which loca-
tion was his permanent duty station and which was the tem-
porary transfer. Romeril also admitted an employee at Sandy,
David Moore, was temporarily transferred to Pleasant Grove
on one occasion when his help was needed.
I conclude that the temporary transfers between Sandy and
Pleasant Grove were substantially more frequent than
claimed by Respondent, a finding supported by the testimony
of David Moore. Moore is a former employee of Respondent
who was not shown to have any animus toward Laidlaw. He
testified candidly and his testimony was straightforward and
believable. Moore was hired prior to the strike, participated
in the strike, and then was reinstated. He left Respondent for
other employment in July 1991. Moore had been a delivery
driver. It took him about 2 days to learn how to operate the
delivery truck. He then became a rolloff driver at Sandy. At
least twice a month he worked at Pleasant Grove pursuant
to the directions of his supervisor when ‘‘someone would
call in sick or when they’d get swamped or something they
would call us and then they would send me down there.’’
Respondent did not introduce payroll records, testimony from
dispatchers, or the supervisor referenced by Moore to refute
his testimony.
Hayes also recalled two rolloff drivers from Pleasant
Grove would occasionally work at Sandy when ‘‘they got
backed up or something.’’ These drivers were Herb Kehl and
Ned Williamson.22 They worked at Pleasant Grove between
two and four times during a 3-month period. Hayes did not
have a CDL license when he was hired by Respondent; he
obtained a Utah class B CDL about 1 month after he com-
menced his employment with Laidlaw. Respondent’s claim
transfers were sporadic and not indicative of a joint operation
is not persuasive. Personnel and other records maintained by
Respondent were not placed in evidence to controvert Hayes’
testimony. Respondent did not explain this failure. Respond-
ent’s failure to buttress this bare claim with its own records
warrants an adverse inference. Property Resources Corp. v.
NLRB, 863 F.2d 964 (D.C. Cir. 1988); SDC Investment, 299
NLRB 779 (1990).
However, even absent this inference, I find Respondent
operated Sandy and Pleasant Grove in a manner that per-
mitted permanent transfers at the employees’ request. There
is no record of such a transfer being denied. Temporary and
permanent transfers were made by the Respondent between
Sandy and Pleasant Grove with sufficient frequency to war-
rant a finding that the assignment of an employee to Pleasant
Grove or Sandy included the reasonable possibility they
would occasionally be temporarily assigned to work at the
other location for a few days or weeks. Thus, I conclude
Pleasant Grove employees have been subject to assignments
involving working at Sandy at Respondent’s discretion or on
their request prior to the strike and reinstatement to Sandy
would not be precluded or justified, standing alone, as dis-
similar and not substantially equivalent under the cir-
cumstances of this case.
In sum, Respondent has failed to demonstrate reinstate-
ment of striking employees who had previously been as-
signed to Pleasant Grove to the Sandy location is not sub-
stantially equivalent. As found above, new applicants were
assigned to Sandy without the proper licenses, and Respond-
ent considered all the striking employees who filed a request
to return to work to be requesting employment at any of
Laidlaw’s facilities. Respondent failed to demonstrate why
the striking employees should be treated disparately from
new applicants and be considered ineligible because they
were assigned to Pleasant Grove and/or did not possess a
CDL. Also, as noted above, Respondent transferred perma-
nent replacements, including a transfer to a residential driver
position, after the striking employees offered to return to
work. It also hired a new residential driver at Pleasant Grove
after August 27. Thus, there were at least two openings at
Pleasant Grove for a residential driver which were not given
to striking employees, rather they were given to a transferee
from Sandy and a new hire without any showing the trans-
693LAIDLAW WASTE SYSTEMS
23 As reflected above, the parties stipulated:
MR. STEINER: Your Honor, the Employer offers the following
stipulation that on or about August 31, 1991, or September 1,
1991, the portable toilet business was sold to the John & Com-
pany. And I would like to offer as evidence Respondent 1 which
is a copy of the sales agreement for that business.
MR. DALY: General Counsel will so stipulate.
THE COURT: It will be so stipulated.
I note the sales agreement provides for payments to commence in
August 1990, but the Respondent has the obligation to demonstrate
clearly when it terminated the portable toilet operation. The stipula-
tion and evidence of record fail to clearly demonstrate the portable
toilet operation was terminated by Respondent on or about August
27, 1990. The confusing evidence of record will not support such
a decision.
feree and new hire had any experience in driving a residen-
tial truck or that there were legitimate and substantial busi-
ness considerations.
Similarly, Respondent transferred one or more residential
drivers to Sandy to operate rolloff trucks without any evi-
dence the transferee had experience or otherwise could be
differentiated from the striking employees other than the
unreinstated employees were strikers. Respondent has failed
to demonstrate with clear and convincing evidence the jobs
admittedly available at Sandy were substantially different
from the jobs the striking employees held at Pleasant Grove.
Unlike Rose Printing Co., supra, here Respondent admittedly
refused to offer striking employees work at Sandy in a dis-
parate manner from new applicants and the General Counsel
litigated the case by presenting facts of such discriminatory
behavior. To hold otherwise would create an entitlement for
preferential treatment for new applicants. Based on the facts
here present I find Respondent has failed to establish it had
‘‘legitimate and substantial business justification’’ in not re-
calling any of the five strikers based on licensing and loca-
tion of job opening considerations. Laidlaw Corp., supra. As
the Court found in Fleetwood, ‘‘hiring new employees in the
face of outstanding applications for reinstatement from strik-
ing employees is presumptively a violation of the Act.’’
Laidlaw Corp., supra at 1369.
Moreover, Respondent has failed to demonstrate the posi-
tions at Sandy had different fringe benefits such as health,
retirement, vacation, retention, and promotion. The distance
between Sandy and the unreinstated strikers’ residences was
not presented nor where there any differences in working
conditions established. Thus, Respondent failed to dem-
onstrate with a preponderance of the credible evidence that
the open positions at Sandy which were filled by new hires
were not ‘‘regular and substantially equivalent employment.’’
Associated Grocers, supra. The evidence of record requires
the conclusion Respondent’s failure to reinstate Christensen
at either Sandy or Pleasant Grove when appropriate openings
occurred violated Section 8(a)(3) and (1) of the Act.
3. The failure to reinstate Korey and Kyle Jepperson
The Jeppersons worked exclusively as portable toilet driv-
ers. Recognizing its obligation to reinstate the Jeppersons, as
economic strikers, on application to their former position or
substantially equivalent positions, Respondent claims Kyle
and Korey Jepperson are not qualified to perform any other
job with Laidlaw. There is no evidence concerning the vehi-
cle licenses these employees held or any work experience
which may qualify them for other substantially equivalent
positions with Laidlaw. There is no claim the Jeppersons
were permanently replaced, only that after the strike ended,
their jobs were eliminated by the sale of the portable toilet
business.
The sales agreement between Respondent and John and
Company for the portable toilet business was dated April 23,
1991, about 9 months after the Jeppersons unconditionally
offered to return to work. The stipulation entered into by the
parties admits the sale of the portable toilet business was not
until August 1991.23 As noted above, the Court in
Fleetwood, recognizing the employer possessed the informa-
tion necessary to establish ‘‘his action was due to ‘legitimate
and substantial business justifications,’ he is guilty of an un-
fair labor practice. NLRB v. Great Dane Trailers, 388 U.S.
26, 34 (1967). The burden of proving justification is on the
employer.’’ Here, Respondent failed to adduce any evidence
concerning the date it ceased operation of the portable toilet
business, but admittedly it was after the Jeppersons uncondi-
tionally offered to return to work. Further, Respondent failed
to adduce any evidence concerning when it determined to
sell the portable toilet operation, why it made the decision,
and when negotiations for the sale commenced. There is no
evidence the decision to sell the portable toilet operation was
economically motivated or was based on ‘‘the need to adapt
to changes in business conditions or to improve efficiency;’’
it could have been motivated by the desire to eliminate the
jobs of strikers or otherwise discourage employees from ex-
ercising their rights guaranteed in Section 7 of the Act.
Fleetwood, supra.
Respondent cited Kurz-Kasch, Inc. v. NLRB, 865 F.2d 757
(6th Cir. 1989), which was quoted extensively in Administra-
tive Law Judge Wallace H. Nation’s decision of the issue of
economic justification which was remanded by the court in
Kurz-Kasch, Inc., 301 NLRB 946, 949 (1991), in part as fol-
lows:
The burden of proving vacancies cannot be placed on
the General Counsel: ‘‘Such proof is not essential to es-
tablish an unfair labor practice. It is related to justifica-
tion, and the burden of such proof is on the employer.’’
Fleetwood Trailer, 389 U.S. at 378 n.4. And the Court
explicitly opened the door to the precise justification
advanced in the present case: ‘‘the need to adapt to
changes in business conditions or improve efficiency.’’
Fleetwood Trailer, 389 U.S. at 379. The leading Su-
preme Court case therefore forecloses us from conclud-
ing, as the Board concluded in another controversy, that
‘‘[i]t is the General Counsel’s burden to show that a
striker’s former job was available.’’ Lincoln Hills Nurs-
ing Home, Inc., 257 NLRB 1145, 1158 (1981).
Subsequent cases, without explicitly addressing the
question, have assumed that the lack of vacancies falls
to the employer to prove as a business justification. The
NLRB has held that the termination of a worker ‘‘prima
facie create[s] a vacancy’’ which an employer could
rebut by demonstrating a decline in its business. K-D
Lamp Co., 229 NLRB 648, 650 (1977). A similar ‘‘le-
gitimate and substantial business justification’’ was held
to have been established where the employer proved
that, subject to its contracts with its customers, it was
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 I note there is no evidence concerning the number of replace-
ments hired by Respondent prior to the termination of the strike and
the positions they were hired to fill. I further note Respondent had
a third employee who worked as a portable toilet driver, Randy Teal.
There is no evidence concerning his status at the time of trial.
required to maintain an inventory which, in turn, made
immediate post-strike replacements unnecessary. Ran-
dall, 257 NLRB 1, 6–7 (1981) enforcement granted in
part and denied in part on other grounds sub nom. Ran-
dall Div. of Textron, Inc. v. NLRB, 687 F.2d 1240
(1982), cert. denied, 461 U.S. 914 (1983). The Eleventh
Circuit has explicitly taken Fleetwood Trailer’s invita-
tion to find justification in purely economic business
decisions, holding that a ‘‘legitimate and substantial
business justification’’ was demonstrated where an em-
ployer proved that, having eliminated a service during
the strike, it made a business judgment after the strike
that the change both pleased its customers and saved it
money. NLRB v. Southern Florida Hotel and Motel
Assn., 751 F.2d 1571, 1583 (11th Cir. 1958).
Respondent failed to advance any business justifications
for the elimination of the portable toilet business about 9
months after the Jeppersons offered to return to work. There
is no evidence Respondent was negotiating for the sale of
this business or otherwise had ‘‘substantial and legitimate
business reasons’’ for failing to reinstate the Jeppersons on
or after August 27. Furthermore, there is no evidence Re-
spondent ceased providing this service at the commencement,
during or after the strike. Thus, Respondent has failed to
show there were no vacancies which the Jeppersons were
qualified to fill. Accordingly, I find Respondent has failed to
show at the time the Jeppersons offered to return to work
they were not reinstated for ‘‘legitimate and substantial busi-
ness’’ reasons.24 See Carruthers Ready Mix, 262 NLRB 739.
There is no evidence or bare claim the Jeppersons were re-
placed with new hires promised permanent positions. Thus,
I conclude Respondent violated Section 8(a)(3) and (1) of the
Act by not offering Kyle and Korey Jepperson reinstatement
to their former positions on or after their offers to return to
work on August 27, 1990. I recommend the question of
when the portable toilet business was sold and their jobs
eliminated be deferred to the compliance phase of this pro-
ceeding.
The next issue is whether the Jeppersons were entitled to
reinstatement after the portable toilet business was sold. Re-
spondent avers there are no substantially equivalent jobs, and
if any were so deemed, it had no job openings at Pleasant
Grove and, as discussed above, is not required to reinstate
any of the Pleasant Grove employees to positions at Sandy.
As previously found, Respondent has failed to present legiti-
mate and substantial business justifications for treating strik-
ing employees differently than employees both prior to and
after the strike, by precluding them from consideration for
positions at Sandy. Respondent has also failed to demonstrate
that the jobs available at Sandy were not substantially similar
to the Jeppersons’ prior positions. The surfeit of credible evi-
dence concerning Laidlaw’s asserted business justifications
such as the failure to disclose the exact date it ceased the
portable toilet operations, any differences in wages and other
terms and conditions of employment, requires the conclusion
Respondent violated the Act by failing to offer Korey and
Kyle Jepperson reinstatement to vacant positions at either
Sandy or Pleasant Grove.
Wilkinson testified Kyle Jepperson was not interested in
other jobs at Respondent and thus did not have to be offered
another position. Wilkinson declared:
Q. Okay. Did you ever have any conversation with
Kyle or Korey Jepperson about working on any other
jobs other than the toilet job that they did?
A. Yes, I did.
Q. Who did you have the conversation with?
A. I had it with Kyle.
Q. And when did you have it?
A. Oh, it was, I’d say, probably July of ’90; July,
June, something like that. Not sure of the date.
Q. How did this conversation come up?
A. When we get into our summertime it gets heavy.
Our garbage gets really heavy. And once in a while
we’ll need somebody to go out and help—if we get a
truck breakdown or something like that we need some-
body to go out and throw. And I just mentioned it to
Kyle. I says, we ought to get you cross-trained here
some day. And he told me that, no way. I’m not a gar-
bage man. I’ll quit before I have to go out and throw.
I just said, whatever.
Q. He never did, did he?
A. No.
The record does not demonstrate Wilkinson ever related
this conversation to Romeril or other manager that made any
decisions concerning the recall of the Jeppersons. Also, this
conversation, considering the changed circumstances of the
strike, is not tantamount to a refusal to accept an offered job,
and thus does not excuse Respondent from offering Kyle
Jepperson a position. Assuming arguendo, this conversation
exculpated Respondent from any obligation to recall Kyle
Jepperson to a substantially similar position, it does not es-
tablish Korey Jepperson held the same convictions. More-
over, Wilkinson admitted Respondent had cross-training,
which reinforces my findings herein that residential drivers
have transferred to front-load and rolloff driver positions
both at Pleasant Grove and Sandy, with the transfers of loca-
tion as freely permitted as transfers in driving positions.
Thus, I conclude Respondent’s failure to reinstate the
Jeppersons to driving positions at either Sandy or Pleasant
Grove after the strike and after the sale of the portable toilet
operation is a violation of Section 8(a)(3) and (1) of the Act.
4. The failure to reinstate Mike Lastowski
As the business justifications for the failure to reinstate
Mike Lastowski, Respondent claims he did not have the
proper license, and Lastowski was training to become a po-
lice officer. The issue of Respondent’s business justifications
for failing to reinstate Lastowski has been determined to be
insufficient. The question therefor, is whether Lastowski ob-
tained ‘‘regular and substantially equivalent employment.’’
Laidlaw Corp., supra.
The Board held in Carruthers Ready Mix, 262 NLRB at
740:
Although an employer is under no obligation to offer
work to an economic striker who has obtained ‘‘regular
695LAIDLAW WASTE SYSTEMS
25 In determining whether substantially equivalent employment was
available to the striking employees or whether one or more of these
employees acquired substantially equivalent employment the criteria
applied by the Board in Little Rock Airmotive, Id. will be applied
herein, and provides:
The question of what constitutes ‘‘regular and substantially
equivalent employment’’ cannot be determined by a mechanistic
application of the literal language of the statute but must be de-
termined on an ad hoc basis by an objective appraisal of a num-
ber of factors, both tangible and intangible, and includes the de-
sire and intent of the employee concerned. Without attempting
to set hard and fast guidelines, we simply note that such factors
as fringe benefits (retirement, health, seniority for purposes of
vacation, retention, and promotion), location and distance be-
tween the location of the job and the employee’s home, dif-
ferences in working conditions, et cetera, may prompt an em-
ployee to seek to return to his old job.
26 Wilkinson testified:
Q. Did you know about his experience in Phoenix?
A. Yes, I did.
Q. Did you know he failed front-load training down there?
A. Yes, I did.
There is no evidence what was meant by ‘‘failed front-load train-
ing.’’ While Respondent provided Wilkinson with Lastowski’s per-
sonnel file, there were no documents or other reliable evidence de-
scribing or defining the term ‘‘failure.’’ It could mean Elliott failed
to complete the training period, not that he failed to acquire the ap-
propriate license or demonstrated a lack of competence to drive
front-load vehicles. Accordingly, I find this testimony fails to estab-
lish Elliott was unqualified to perform the duties of a front-load
driver or that the duties of such a position were not substantially
equivalent to his prestrike position.
27 Again, there was no evidence of Respondent denying an em-
ployee’s request for a transfer, even if the transfer involved driving
a different type of truck for which the transferred employee does not
have the requisite training and license.
and substantially equivalent employment’’ prior to the
time a position with the employer becomes available,
the employer has the burden of proving that the strik-
er’s new job was in fact substantially equivalent to the
job the striker held with the employer. . . . Respondent
had the burden to prove that the new job was substan-
tially equivalent, but it failed to present any evidence
on this issue. Therefore, we find that Fletcher is entitled
to backpay from the first day Respondent had a position
open for him after his unconditional offer to return to
work until the day . . . he expressly refused to return
to work. [Citations omitted.]
Similarly, in this case there is no substantial evidence es-
tablishing Lastowski was a police cadet. Another employee
heard he was a cadet; there is no credible evidence he in fact
was a cadet or qualified to become a full-time police officer.
The source of this information was undisclosed and there is
no means to determine the reliability of this hearsay evi-
dence. Further, assuming this hearsay evidence is reliable
and should be considered, the terms and conditions of police
cadets’ employment and, if appropriate, terms and conditions
of police officers’ employment, were not present, and like
the Carruthers case, there is no basis to permit a determina-
tion of whether Lastowski obtained ‘‘regular and substan-
tially equivalent employment.’’ Id.
The elements of ‘‘regular and substantially equivalent’’
were stated in Associated Grocers, supra, 295 NLRB at 827,
as follows:
The Board declines a ‘‘mechanistic application’’ of
such statutory language, and instead determined ad hoc
by ‘‘an objective appraisal of a number of factors, both
tangible and intangible’’ whether or not such as condi-
tion has eventuated. Among the factors noted are
‘‘fringe benefits (retirement, health, seniority for pur-
poses of vacation, retention, and promotion), location
and distance between location of the job and an em-
ployees’ home, differences in working conditions.’’ Lit-
tle Rock Airmotive, 182 NLRB 666 (1970).25
There is no evidence concerning the distance of the train-
ing from Lastowski’s residence, there is no showing the posi-
tion is regular employment, and the terms and conditions of
the position were not adduced nor were Lastowski’s wishes
concerning returning to his position at Laidlaw. The failure
of Respondent to establish Lastowski obtained ‘‘regular and
substantially equivalent employment’’ prior to a position be-
coming available at Laidlaw, requires the finding that Re-
spondent violated the Act by not offering Lastowski a driver
position at either Sandy or Pleasant Grove as a driver on the
terms and conditions it employed new hires after August 27,
1990, and Lastowski is entitled to reinstatement.
Respondent also argues Lastowski only had a temporary
CDL which expired on September 1, 1990, and thus he was
unqualified for reinstatement as a driver of front-load or roll-
off trucks. Lastowski, as is usual for other new hires, did not
have a CDL. After obtaining a temporary CDL, he partici-
pated in the strike, otherwise, he would of been scheduled
by Respondent to take the test for a permanent CDL, accord-
ing to Wilkinson. As found to be the case with the other
striking employees here under consideration, Respondent
failed to demonstrate Lastowski was not as qualified for any
of the available positions as the new employees Respondent
hired after August 27, 1990, or was otherwise unqualified to
fill one or more of these vacant jobs. Respondent violated
Section 8(a)(3) and (1) of the Act by failing to offer
Lastowski reinstatement to one of the positions which be-
came available at Pleasant Grove and Sandy on or after Au-
gust 27, 1990.
5. The failure to reinstate Timothy Elliott
Analogously, Elliott was also entitled to reinstatement to
a driver’s position when one became available. Respondent
claims Elliott failed front-load training, but relied on hearsay
rather than its own records.26 I find the record fails to estab-
lish Elliott was not qualified to assume a job as front-load
driver while employees hired after August 27, 1990, were
qualified. As previously noted, Respondent failed to intro-
duce evidence of the experience and qualifications of the
drivers hired after August 27, 1990; this failure was unex-
plained.
Elliott had a Utah class E drivers license, which permitted
him to drive front-load and rolloff trucks until the CDL re-
quirements went into effect on April 1, 1992. Also, Elliott
has experience driving a front-load truck. In May 1989, El-
liott, pursuant to his request, was transferred from Pleasant
Grove to a Laidlaw facility in Phoenix, Arizona, and was
training for the position of front-load truckdriver.27 Elliott
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Respondent merely entered into a stipulation as to when new
employees were hired, not when a vacancy occurred, and there is no
basis to assume the date of hire coincided with the date of a va-
cancy.
was fired from his Phoenix position for sleeping on the job.
After returning to Utah, Elliott applied for reemployment at
Pleasant Grove and was rehired as a residential driver, a duty
he continued to perform until the strike.
Thus, I find Respondent’s argument that Elliott lacked
‘‘the proper background for roll-off or front-load trucks at
the time the strike ended’’ is pretext. In addition to having
the appropriate license, he had several months’ experience
driving a front-load truck in Phoenix, and Respondent failed
to adduce any evidence he was incompetent to perform the
duties of a front-load driver while working several months in
Phoenix. His termination from the Phoenix job was for sleep-
ing, not for failing a test or failing to master the requisite
skills to operate a front-load vehicle. Wilkinson admitted El-
liott ‘‘was a good driver. I had no problem with Tim.’’ Fur-
ther, if transfers between Sandy and Pleasant Grove were not
routine, then the transfer of a Sandy employee to become a
residential driver at Pleasant Grove after the strike would not
have occurred and the position would have been available to
one of the striking employees. Unlike the Rose Printing Co.
case, supra, here Respondent failed to show the vacant posi-
tions at Sandy and Pleasant Grove after August 27, 1990,
were not substantially equivalent to the employees’ prestrike
positions. Respondent’s failure to reinstate Elliott, under
these circumstances, is violative of Section 8(a)(3) and (1) of
the Act.
In sum, Respondent failed to demonstrate driving positions
which became available after August 27, 1990, were not the
same as or substantially equivalent to the striking employees’
positions immediately prior to the strike. The terms and con-
ditions of the driving positions available after August 27,
1990, were not detailed. There were no detailed comparisons
of hours of work, or wages and other benefits that would
warrant a determination the vacancies were not substantially
equivalent to the strikers’ former positions. Laidlaw contin-
ued to let the employees transfer between Sandy and Pleasant
Grove after the strike, and these transfers could be and were
to different driving positions without a demonstration it al-
tered its requirements for such transfers since the strike based
on valid business considerations or for any other lawful rea-
son. The need for a CDL on and after April 1, 1992, was
not shown to have barred the reinstatement of any striker to
one or more of the vacancies filled by new hires after August
27, 1990. There was no claim of a diminution of work or
other legitimate business reason to hire new employees rather
than reinstate the striking employees. The employees hired
after August 27, 1990, were not demonstrated by Respondent
to have comparable or greater qualifications than the striking
employees.
Further, Respondent’s reliance to a great extent on self-
serving statements rather than personnel and other records re-
quires according such testimony less weight, particularly
here, where there is no claim such business records were de-
stroyed or otherwise unavailable. Kurz-Kasch, Inc., supra.
Respondent has failed to prove it had an age or license re-
quirement prior to hiring or transferring employees to drive
any of its vehicles. Respondent offered no explanation for its
failure to mention to the striking employees the positions it
transferred Sandy employees into at Pleasant Grove. This
failure bolsters the conclusion Respondent’s true reasons
were unlawful and not due to ‘‘legitimate and substantial
business justifications.’’ NLRB v. Fleetwood Trailer Co.,
supra; Holo-Krome Co., supra.
Respondent has also failed to show: the distance to Sandy
from the residences of any of the unreinstated strikers, the
effect on their seniority, if any, from offering them jobs at
Sandy rather than Pleasant Grove; how seniority is cal-
culated; there is no claim fringe benefits are different be-
tween Sandy and Pleasant Grove; the differences in working
conditions, if any; and, the desires of these employees to re-
turn to their prestrike or similar positions. Thus, I find Re-
spondent’s claim the available jobs at Sandy and Pleasant
Grove after the strike were not substantially equivalent to the
striking employees’ prestrike positions has not been sup-
ported by credible evidence. Respondent’s own transfer and
other operating practices require a conclusion the job open-
ings at Pleasant Grove and Sandy after August 27, 1990,
were substantially equivalent to the striking employees’
prestrike positions.
Assuming I found the jobs open at Sandy and Pleasant
Grove were not substantially equivalent to the striking em-
ployees’ prestrike jobs, the record requires the conclusion
Respondent treated the new hires more favorably than the
striking employees. As previously noted, Romeril admitted
he considered all the striking employees’ requests for rein-
statement as applications for employment at any facility and
three of the applicants, as previously detailed, offered to re-
turn to any opening at Laidlaw for which they are qualified.
Accordingly, I conclude Respondent’s admitted failure to
consider the striking employees for any positions at Sandy
and all but Christensen for any positions at Pleasant Grove
is because Respondent applied its hiring criteria more strictly
to the striking employees, which is discriminatory and viola-
tive of Section 8(a)(3) and (1) of the Act. Monfort of Colo-
rado, 298 NLRB 73 (1990); Laidlaw Corp., supra.
I have also determined that Respondent’s failure to offer
the striking employees positions at Sandy and Pleasant Grove
was not supported by credible reasons that permit a finding
it had ‘‘legitimate and substantial business justifications’’ for
these actions and this failure buttresses the inference Re-
spondent’s true reasons were unlawful. There is no evidence
of any changes in business or other conditions which law-
fully permitted Respondent to deviate from its established
customary and usual practice of permitting residential drivers
to transfer to rolloff and front-load driver positions without
any licensing preconditions. The new employees were not
shown to have been equally or more qualified for the posi-
tions than the striking employees; the striking employees
were qualified under the Company’s normal standards. NLRB
v. Rockwood & Co., supra.
Inasmuch as Respondent has the obligation to prove when
vacancies in driver positions occurred at Sandy and Pleasant
Grove, which it failed to do,28 any conclusions concerning
the date former strikers were entitled to reinstatement must
be left to the compliance stage of this proceeding.
697LAIDLAW WASTE SYSTEMS
29 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. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
30 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.
30 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.’’
CONCLUSIONS OF LAW
1. The Respondent, Laidlaw Waste Systems, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, Local
No. 222, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By failing and refusing to reinstate Tony Christensen,
Mike Lastowski, Timothy Elliott, and Korey and Kyle
Jepperson to their prestrike or substantially equivalent posi-
tions, in a nondiscriminatory manner, when they became
available on or after August 27, 1990, Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair
labor practices, I find it necessary to order Respondent to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found Respondent violated Section 8(a)(3) and (1)
of the Act by refusing and failing to offer reinstatement to
the replaced strikers, Tony Christensen, Mike Lastowski,
Timothy Elliott, and Korey and Kyle Jepperson, when vacan-
cies arose on and after September 27, 1990, without preju-
dice and on the same basis as new hires, I will order Re-
spondent to offer them immediate and full reinstatement to
their former or substantially equivalent positions, with back-
pay computed on a quarterly basis and interest thereon to be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and New Horizons for the Retarded,
283 NLRB 1173 (1987).29
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended30
ORDER
The Respondent, Laidlaw Waste Systems, Inc., Sandy and
Pleasant Grove, Utah, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to reinstate Tony Christensen,
Mike Lastowski, Timothy Elliott, and Korey and Kyle
Jepperson to their prestrike or substantially equivalent posi-
tions and applying discriminatory job eligibility or other em-
ployment criteria, when they became available on or after
August 27, 1990.
(b) In any like or related manner 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) Offer Tony Christensen, Mike Lastowski, Timothy El-
liott, and Korey and Kyle Jepperson immediate and full rein-
statement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges, and make each of them, including those heretofore re-
instated, whole, in the manner set forth in the remedy section
for any losses they may have suffered as a result of the Re-
spondent’s conduct found above to have been violative of
Section 8(a)(3) and (1) of the Act.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility and place of business, in Phoenix,
Arizona, copies of the attached notice marked ‘‘Appen-
dix.’’30 Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able 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.