Landfill, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1973

204 N.L.R.B. 544 (N.L.R.B. 1973)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landfill, Incorporated and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Local Union No. 13. Case 27-
CA-3488
June 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 28, 1972, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief; Respondent filed
cross-exceptions and a brief answering the General
Counsel and supporting the Administrative Law
Judge's Decision; and the General Counsel filed a
brief in answer to the Respondent's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Landfill, Incorporated, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge : On July
11, 12, and 19 , 1972, in Denver, Colorado, a hearing was
held in the above-entitled matter . The complaint , issued
May 17, 1972, is based on a charge filed March 3 , 1972, as
amended March 21, April 5, and May 9, 1972, by Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Local Union No . 13, herein
called the Union , and alleges violations of Section 8(a)(1)
and (3) of the National Labor Relations Act by Landfill,
Incorporated , herein called Respondent.
Upon the entire record in this proceeding , including my
observation of the witnesses and after due consideration of
the posthearing briefs , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, with its principal office in Denver, Colora-
do, is a Colorado corporation engaged in the disposal of
solid and liquid waste. Respondent supplies services to Met-
ropolitan Denver Sewage Disposal District No. 1, which
have an annual value exceeding $50,000. Metropolitan Den-
ver Sewage Disposal District No. 1, annually receives di-
rectly from points located outside the State of Colorado,
materials valued in excess of $50,000. Respondent is an
employer within the meaning of Section 2(2) of the Act
engaged in commerce and in a business affecting commerce
within the meaning of Sections 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint as amended alleges in material substance
that Respondent through its supervisors, Lee Fregeau, Pat
DeMaris, Bruce Baird, and Will Lewis, violated Section
8(a)(1) of the Act by coercive interrogation, threats of repri-
sal, and promises of benefit, and violated Section 8(a)(3) of
the Act by discharging Stanley L. Shull on April 23, 1972,
and discharging Otis W. Bottoms on May 8, 1972.
The complaint on which issue was joined July 11, 1972,
further alleged:
VIII. All employees employed by Respondent at its
Denver, Colorado location, excluding office clerical
employees , sales personnel , guards, professional em-
ployees and supervisors constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
IX. On or about February 24, 1972, a majority of the
employees [in said unit] designated the Union as their
representative for the purposes of collective bargain-
ing.
X. . . . by virtue of Section 9(a) of the Act [the Union]
is the exclusive representative of all of the employees
in said unit for the purposes of collective bargaining
XI. Since February 25, 1972 . . . the Union has re-
quested and is requesting the Respondent to bargain
collectively... .
XII. Commencing about February 29, 1972... Re-
spondent did refuse and continues to refuse to bargain
collectively with the Union... .
XV. By the acts described in paragraph XII Respon-
dent did refuse to bargain . . . and thereby did engage
204 NLRB No. 95
LANDFILL, INCORPORATED
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
Respondent's answer admitted the allegations of demand
and refusal contained in paragraphs XI and XII, supra. It
denied that the alleged unit was appropriate, denied that the
Union represented a majority, and denied any violation of
the Act.
Near the close of the first day of hearing the General
Counsel asked leave to amend his complaint by deleting
therefrom, paragraphs numbered XI, XII, and XV, and to
amend the unit description to read: "VIII. All employees
employed by Respondent at its Denver, Colorado, sludge
haul project, excluding...."
In explanation of this motion the General Counsel stated
that he was unaware, until the morning of the hearing, of
the fact that Respondent had two operations in the Denver
area, a sludge haul project in which the Union represented
a majority of the employees and a land fill project at which
the Union represented no employee. He further stated that
he would seek an order requiring Respondent to bargain
with the Union for employees in the sludge haul project
alone. On July 12, 1972, I granted leave to amend the com-
plaint and at the close of the General Counsel's case ad-
journed the hearing for I week to permit Respondent to
evaluate its position and prepare a defense to the issues
raised by the amendment.
B. The Setting
Respondent was formed in 1966 by Tom Nieman and
Robert S. Calvert. In August 1971, all of Respondent's stock
was sold to Browning-Ferris Industries of Houston, Texas,
the country's largest firm dealing solely in the handling of
waste materials. Nieman and Calvert remained with Re-
spondent as coexecutive officers. Lee Fregeau, who was and
is carried on the Browning-Ferris' Houston payroll, was
assigned to Respondent as consultant and trouble shooter
with the title of acting assistant manager. At the present
time and at least throughout 1971, Respondent operated a
sanitary landfill at 48th and Holly Streets in Commerce
City, a Denver suburb. As of February 22, 1972, it had 14
employees stationed at the landfill, operating and maintain-
ing compaction equipment, bulldozers, scrapers, and road
graders. Employees at the landfill are paid from a separate
check register.
The plant of Metropolitan Denver Sewage Disposal Dis-
trict No. 1, extracts the solid matter from sewage and re-
duces it to a consistency resembling that of river bottom
mud. Until some time in 1971, this resulting sludge was
burned at the plant in large incinerators. In cooperation
with the Universities of Colorado and Chicago, a process
was developed which would convert the sludge into agricul-
tural fertilizer and the incinerators were shut down. For a
brief period the District itself hauled the sludge to Lowry
Bombing Range.
On November 1, 1971, Respondent took over from the
district the operation of transferring sludge from disposal
plant to bombing range, distributing the product on the
ground, and preparing the land for planting. Upon being
awarded the contract, Respondent purchased five trailers,
two road tractors, one hostler tractor to move and position
545
the trailers at the plant, one manure spreader, one harrow,
one caterpillar bulldozer, one John Deere tractor, and one
used Auto-Car dump truck which was specially adapted to
handle the spreader. At some later date a second used dump
truck was purchased and similarly adapted to handle the
manure spreader at the range.
During the week ending February 29, 1972, 13 employees
were carried on the separate sludge haul check register, and
Respondent was operating two 10-hour shifts. On each shift
there was one loader at the plant, two truck-tractors trans-
porting loaded trailers from the plant to a hopper on the
range, and one dump truck operating on the range distribut-
ing the sludge through the manure spreader. On one shift
the John Deere, pulling a harrow, plowed the sludge into the
ground, leaving it ready to be planted with grass. The opera-
tion was directly supervised through February 29 by Patrick
DeMaris. After February 29 it was directly supervised by
Bruce Baird.
C. Sequence of Events
Otis Bottoms was hired December 3, 1971, as a driver by
Lee Fregeau . On Thursday, February 24, 1972, he called at
the office of the Union , signed an authorization for repre-
sentation card, and obtained 11 blank cards . On the same
date he obtained the signatures of five of his fellow employ-
ees on the sludge haul project . On February 25, Bottoms
obtained the signature of four additional sludge haul em-
ployees , and the signature of an employee of B & L Wreck-
ing Company who was performing maintenance work on
Respondent's equipment on that date .' The last to sign was
Bruce Baird at 11:15 p.m. on Friday night . Baird had re-
turned to the plant empty from his last trip to the bombing
range and found Bottoms' van blocking the plant driveway.
Near the end of the day shift on Friday evening , February
25, loader David Fullmore told his supervisor , Patrick De-
Maris:
Everybody at Landfill signed cards but you and Jim
James , and if you don't get up there and sign them you
are going to be out of a job , because they 're going to
bring some union guys in to take care of your place.
At 9 p.m. and again at midnight , Fullmore telephoned De-
Marts at his home and reminded him that if he and James
did not sign union authorizations they would lose their jobs.
At 2 a.m. on February 26, when Mrs. DeMaris answered the
telephone , Fullmore said something which reduced her to
tears, and then told DeMaris that the Union was investigat-
ing his employment record in San Diego.
On Saturday , February 26, the Respondent received from
the Union a certified letter , postmarked " 1 PM 25 FEB"
addressed to its landfill in Commerce City, reciting:
This is to advise your company that the undersigned
labor organization has been authorized by a majority
of "All employees employed by Land Fill, Inc., but
excluding all office clerical employees, sales personnel,
1 B & L Wrecking Company is a demolition firm owned by Nieman Its
employees are supervised by Fregeau On occasion it has had a contract with
Operating Engineers International Union When its employees are used on
Respondent's work, Respondent is charged for the service
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards , professional employees and supervisors as de-
fined in the Act," to represent them on all matters
pertaining to their wages , hours of work and other
terms and conditions of employment.
This letter is also to advise your company that we are
in a position to prove that we represent the above-
described unit of employees.
Further, as the bargaining agent for said employees, we
request that your company meet with us for the pur-
pose of negotiating the terms of a labor agreement
covering their wages, hours of work and other terms
and conditions of employment with your company.
We request , therefore , that this meeting be held at
10:00 a .m. on February 29, 1972, in our office , located
at 3245 Eliot Street , Denver , Colorado.
On Saturday, February 26, Fregeau asked driver Kettler
whether he had signed a card and received an affirmative
reply. He asked spreader operator Midkirk how many had
signed cards and received the reply "ten or eleven." In
response to Fregeau 's question "Who signed?' Midkirk an-
swered that he did not remember. After his investigation,
which did not include speaking to Bottoms or to Fullmore,
Fregeau told driver Lynn Butler:
that he didn't know why we had done it, but that ev-
erything was okay, there were no hard feelings between
the company and he hoped there were none on the part
of the employees.
Butler told him that he had signed the card "for representa-
tion , also for better benefits ." Fregeau then reminded Butler
that Respondent had, the previous week, obtained from
each employee information for medical insurance , and stat-
ed that "now [the employees ] had signed the union cards
that we could not have it until everything was settled."
At about 4:30 p.m. on Saturday, February 26, as Bottoms
was leaving the Metro plant on his first trip of the day,
DeMaris, whose shift was ending , walked up to the cab of
Bottoms ' truck , opened the door , and with vulgar emphasis,
threatened to drag Bottoms out of the truck and beat him.
Bottoms closed the door , without comment and took his
load to the bombing range.
Immediately thereafter DeMaris told Midkirk, "You are
just starting something ," and that he "was a chicken for
signing up."
A few days later, after he had been replaced by Baird as
supervisor , DeMaris told Bottoms: "Look , Otis , I'm sorry
for jumping at you. I was tired and I was kept up all night
and I was in a bad mood . I apologize ." Bottoms replied, "I
accept your apology."
On Monday, February 28, Respondent telegraphed the
Union:
In response to your letter dated February 25, 72, this
is to advise you that Landfill Inc. does not feel that it
is necessary to meet at this time with Teamsters Local
13 at 10 AM on February 29, 1972.
Respondent followed this with a second telegram on Febru-
ary 29, reciting:
Please be advised that we have a good faith doubt that
you do in fact represent an uncoerced majority of all
employees in an appropriate collective bargaining unit
and we therefore suggest that you use the processes of
the National Labor Relations Board in order to de-
termine this question.
The Union did file a petition. It also filed, on March 4,
1972, the original charge in the instant proceeding.
About March 21, Nieman, having learned either from the
Union directly , or through some Board agent , that the
Union planned to strike , called a meeting of the sludge haul
employees at the Metro plant and:
I told them that their union activities really, I didn't
care about, whether they were for or against a union,
was pretty much up to them, what they wanted to do.
The thing I wanted to emphasize with them is the crit-
ical nature of the hauling of the sludge, that no matter
what happened, whether they went on strike, that the
plant would stay in operation and that we would have
to stay in operation and that we would have to replace
any of the drivers or other employees with substitute
employees if they did go on strike.
About 6 p.m. on Thursday, March 24, the Union sta-
tioned pickets at the loading area of the disposal plant.
Baird immediately asked the employees individually "if
they were continuing to work or if they were going to the
picket line." Baird testified:
my duties were to find out who was staying and who
was going because I had to replace the men that were
going, and I didn 't have time, like a day or two to
replace them. I had to replace them on the spot.
In response to Baird's telephoned inquiry, Wheeler, who
was not scheduled to work Thursday or Friday, said he was
going fishing and would make up his mind later. When
Baird telephoned again on Saturday, Wheeler said he was
staying out . In one or both of these conversations Baird
stated that if Wheeler would cross the picket line he could
have his choice of trucks and shifts, and Respondent would
pay for a "comprehensive" rider on Wheeler's car insur-
ance. Baird had been authorized by Respondent's comptrol-
ler, Will I. Lewis, to promise any employee, who continued
to work during the strike, paid insurance to cover damage
to the employee's property caused by vandalism, fire, or
bomb.
Richards arrived at the Metro plant shortly after the pick-
et line had been set up. He had brought one of the dump
trucks into Denver for repair and had been promised a ride
back to his car at the bombing range by Fregeau. Richards,
who had been operating the spreader, had previously asked
to be transferred to driving. Fregeau said he could have the
drivingjob if he would cross the picket line. When Richards
declined the offer, Fregeau said "I'll get you back there
somehow," but he never did.
Seven employees respected the picket line. These were:
drivers Butler, Wheeler, Kettler, and Bottoms, loader Full-
more, and spreader operators Shull and Richards. Respon-
LANDFILL, INCORPORATED
dent continued to operate with nonstrikers and replace-
ments.
On March 30, 1972, Respondent sent certified letters to
each of the strikers , above named , reciting:
Dear Mr:
Please be advised that this company intends to contin-
ue operations and you are welcome to come back to
work if you want to do so. However, if you elect to
remain on strike a permanent replacement will be hired
to fill your vacated position.
Accordingly, if you do not report to work by April 3,
1972, a permanent replacement will be hired in your
place.
Landfill, Inc.
By Will I. Lewis, Jr.
Will I. Lewis, Jr.
Project Manager
Shull was discharged by telephone on April 3, 1972. All
other strikers returned to work in their former positions on
their former shifts on either April 3 or April 4, 1972.
On April 4, 1972, the following certified letter was mailed
to Shull:
On or about February 22, 1972, the main transmission
became locked in the Mack truck which you were driv-
ing, resulting in its repair.
On February 25, 1972, the oil chain box on the spreader
attachment on the Mack truck which you were driving
hit the ground, resulting in repair and replacement.
On March 4, 1972, the Auto-Car which you were dnv-
ing was driven with the PTO in gear , resulting in its
repair and partial replacement.
On March 15, 1972, the power divider on the Mack
truck you were driving failed , resulting in its replace-
ment.
The total repair cost of these four items is $3,081.85.
A letter, received on March 31, 1972, from the firm that
repaired the equipment , states that in the first instance
there was apparent driver error. The 4th instance, the
power divider, was the definite fault of the driver.
We are therefore terminating your employment as of
this date.
Very truly yours,
Landfill, Inc.
Tom Nieman
Tom Nieman
On May 8, 1972, the following letter was handed to Otis
547
Bottoms by Bruce Baird:
Re: Termination of Employment
Effective May 8, 1972, your employment with Landfill,
Inc., Metro Sewer District Sludge Project, has been
terminated. The reason for this termination is you were
observed on May 8, 1972 on Highway 1-70 going east
of Highway 225 which is not the assigned route for the
truck.
Bruce Baird
Bruce Baird
D. The Discharge of Stanley L. Shull
Shull was hired in January, 1972, and worked as a spread-
er operator at the bombing range until he went on strike,
March 24. Nieman testified that the decision to discharge
Shull was based on reports from Baird and Fregeau and
examination of repair bills and:
Well, the reasons for the termination of he and former
employees and subsequent employees has been pretty
much a policy of our company since we originally start-
ed, that if there seems to be an excessive amount of
equipment damaged by any employee, then it's just
logic that his employment be terminated. In this partic-
ular instance, a review of the equipment repairs and
those that were necessary during the time that Mr.
Shull was operating indicated that there was an exces-
sive amount of damage, that Mr. Shull had been
warned of previously, and it's just a logical termination
of employment.
The Auto-Car and the Mack were ordinary, all purpose
three-axle dump trucks. They were purchased as used
equipment and were modified in Denver to adapt them for
use with manure spreaders. They were incapable of propell-
ing themselves through mud and, in wet conditions, they
were pulled by a caterpiller bulldozer operated by an em-
ployee on the sanitary landfill check register. Breakdowns
were -frequent, and the mechanic permanently stationed at
the landfill was frequently required to spend half of his time
working at the bombing range. The mechanic employed by
B & L Wrecking also worked on the trucks, and it was
frequently necessary to tow them into Denver for major
repairs. It was rarely that both trucks were in operable
condition at the same time.
Raymond Bestwick, a nonstriker, testified that while he
was driving the Mack it stuck in gear in fourth speed auxili-
ary transmission. Shull testified that when he reported for
work on February 22, Bestwick told him that the transmis-
sion on the Mack was stuck and that he had reported the
fact to the management. Respondent's records demonstrate
that Shull did not drive the Mack on February 22, but did
operate the Auto-Car on that date. The first reason stated
in Shull's discharge letter is false.
Bestwick testified that "The chain box is loaded low to
the ground, you go through a ravine or anything and it hits."
Shull testified without contradiction that the chain gearbox
on the Mack was ruined when Jess Midkirk, a nonstriker,
backed into a bank. Respondent's records show that Shull
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drove the Auto-Car on February 25 and did not drive the
Mack. The second stated reason in Shull's discharge letter
is false.
On March 4, 1972, Shull did drive the Auto-Car. The
power-take-off did not give out on any truck while Shull was
driving it. No testimony was offered concerning the circum-
stances of the PTO breakdown or its repair. Baird and Fre-
geau did testify that they had observed Shull driving from
the hopper to the spreading area with the PTO in gear, and
that this would have a tendency to weaken the mechanism,
and cause it to give out at some later time. Bestwick testified
that both he and Shull had been warned that this was an
undesirable practice.
On some date in late February or early March, Bestwick
started operating one of the trucks at about 6:00 p.m. All
witnesses agree that it was the obligation of the operator at
the beginning of his shift to check the oil and grease and
hydraulic fluid in the truck. On his first trip, Bestwick noted
that there was something wrong. He thought it was a dry
line. On the second trip out he smelled something burning,
but continued to operate the truck until it quit. The next
morning, by daylight, Bestwick observed that the grease had
all run out of the transmission . When asked for his opinion
of how the grease got out of the transmission Bestwick
testified : "The power-take-off got wore out and the bush-
ings went out of the shaft that holds the gears and the grease
all ran out of it."
Baird testified that the cost of repairing the transmission
was "around $3,500."
It is plain that the damage to the transmission was caused
by Bestwick continuing to operate the truck, after he noted
that "something was wrong ," and particularly after he
smelled something burning ." While Shull 's failure to disen-
gage the PTO when driving between the hopper and the
spreading area may have been a contributing cause, it was
not the proximate cause of the damage to the transmission.
The transmission damage caused by running without grease
was not mentioned in Shull's discharge letter.
I conclude that the third stated reason for Shull's dis-
charge was also false.
On March 15, on his first trip with the Mack, Shull noted
that it was pulling back and letting go, and it felt as if the
brakes were giving out. He had distributed only about 15%
of his load when he decided to shut off the spreader and
bring the truck back to the hopper. He made several at-
tempts to reach Baird on the car radio . While he was at-
tempting to reach Baird , Fred Kettler arrived with a load of
sludge and he and Shull checked over the truck. Finally
Shull reached Baird on the car radio which was in his pickup
parked in front of Baird's home. Shull reported that it
sounded like the rear end. Baird asked Kettler if it would
be safe to continue to drive the truck and Kettler replied:
If you want him to tear up the transmission or the rear
end, go ahead . If it was up to me, no.
Baird , ignoring this advice, told Shull to go ahead and and
finish his shift. Baird then called Bestwick and asked him
to go out to the range and look at the truck.
Shull, following instructions, distributed the rest of his
load. Bestwick arrived at the hopper as Shull was returning
empty and inspected the truck. Bestwick drove the truck
and determined by the noise it made that the rear end was
out. Shull resumed spreading using the John Deere Tractor.
Bestwick removed the front rear axle from the truck so it
could be towed to the shop without further damage.
The only testimony as to the cause of this breakdown is
the purely imaginative testimony of Baird and Fregeau that
Shull had stuck the truck in the mud and in attempting to
get it out under its own power had overloaded the power
divider. In normal operation the truck is driven by the rear
wheels alone. If the rear wheels start to slip, the power
divider automatically engages and delivers power to the
forward pair of rear wheels. All spreader operators were
under strict instructions to leave the truck whenever it be-
came stuck in the mud and call the caterpillar bulldozer to
pull it out. The Mack did not become stuck at any time on
the night of March 16. Shull did not violate any instruction
on the night of March 16. There is no testimony, other than
the discharge letter itself, that Shull was blamed or criticized
in any way for the March 16 breakdown.
I conclude that the fourth reason stated in Shull's dis-
charge letter is false.
This case presents the relatively rare instance of two em-
ployees, with identical jobs, equal in experience, having
virtually identical mechanical difficulties. Shull's conduct
was exemplary and designed to minimize any damage to the
machinery. Bestwick's conduct, in running his truck until it
broke down entirely, can only be characterized as reckless.
Bestwick , although he did sign a Union authorization card,
continued to work for Respondent during the strike and was
still employed by Respondent on July 19, 1972.
I conclude and find that but for the fact that he respected
the Union picket line, and did not work during the strike,
Shull would still be employed by Respondent. The dis-
charge of Shull on April 23, 1972, was motivated by
Respondent's intent to discourage legitimate union activity
and had the necessary and foreseeable effect of discourag-
ing such activity.
E. The Discharge of Otis Bottoms
The Metro plant is northeast of the Denver city limits.
The bombing range is east of the city of Denver, about 23
miles from the plant. The route followed by the sludge
trucks is south on Route 225 to Sixth Avenue, thence east
through Lowry Air Force Base to the bombing range.
Trucks are expected to make the round trip in not more than
1 hour and 25 minutes.
On the day he was hired by Fregeau, Bottoms rode with
driver Delbert Goodin on one trip. Goodin told Bottoms
that if Sixth Avenue should be blocked he could reach the
plant by turning north about 3 miles west of the bombing
range and follow a graveled country road (Gun Club Road)
in a straight line to Interstate 70, thence west to the vicinity
of the Metro plant. The route using Gun Club Road and
Interstate 70 is either I mile or 1.3 miles farther than the
regular route using Sixth Avenue and Route 225.
During the entire period of his employment, Bottoms was
never criticized for his work or his conduct. After the strike,
when Baird decided to assign permanent shifts to drivers on
the basis of seniority and to abandon his previous system of
biweekly rotation of shifts, Bottoms waived his seniority
rights. He told Baird that since his family was grown, Baird
LANDFILL, INCORPORATED 549
could give the more desirable shifts to employees with fami-
ly responsibilities and he would take what was left. What
was left was a night shift.
On his first trip of the evening , May 8, 1972, Bottoms was
delayed in reaching the range by road work on Sixth Ave-
nue. The highway was being changed from a three-lane to
a two-lane road. Only one lane was open and traffic was
being controlled by flagmen. Bottoms , in an attempt to
avoid further delay, returned empty via Gun Club Road
and Interstate 70. This is the only time in his entire employ-
ment that he drove Gun Club Road.
Either later that night (or more probably the following
day) Baird handed to Bottoms the discharge letter dated
May 8. Bottoms remonsterated:
I'm sure you understand , Bruce Baird , that you are
wrong, because that is a classified route , as an alternate
route . . . the construction work had caused me to take
that trial on using that other road.
Baird replied,
Well, all I wanted to do was just give you a warning
letter for it, but the letter was already waiting at the
office and the check when I got up there.
I conclude and find that Respondent was determined to
rid itself of the person whom it considered primarily respon-
sible for the strike which threatened to destroy half of its
business and seized upon the May 8 incident as a pretext to
justify the discharge . The discharge of Bottoms was moti-
vated by Respondent's intent to discourage legitimate union
activity and has the necessary effect of discouraging such
activity.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth herein, oc-
curring in connection with its operations , have a close, inti-
mate , and substantial relation to trade , traffic, and
commerce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V THE REMEDY
unfair labor practices of the employer have made a fair
election impossible.
Here the General Counsel has failed on all counts. The
employer unit, in which the Union demanded recognition,
is presumptively appropriate. Although the Board might, in
a nonadversary proceeding and with a complete record, find
that a unit limited to sludge haul employees was also appro-
priate , the General Counsel has not established by a prepon-
derance of the evidence the appropriateness of the unit set
forth in the complaint as amended.
The Union has never modified its demand for recognition
in the larger unit . The charge filed by the Union March 3,
1972, gave two addresses for Respondent . One was its office
in downtown Denver . The other was the address of the
sanitary landfill , in Commerce City, Adams County, just
over the Denver line, where approximately half of
Respondent 's employees were then and are now working.
The Metropolitan Denver Disposal plant is also in Adams
County, about 4 miles from the landfill . The Union has
never represented a majority of employees in the employer
unit which , on this record, I find to be the only appropriate
unit for bargaining.
Prior to the date of the strike, Respondent has violated
the Act in only two respects . In investigating the Union's
claim of majority , it did not assure the employees ques-
tioned that there would be no reprisals , and it did threaten
to withhold a promised benefit until the question concern-
ing representation raised by the Union's letter had been
resolved . Such minor infractions in the circumstances of this
case do not make a fair election impossible . Ring Metals
Company, 198 NLRB No. 143.
A basic purpose of the Act is to obviate the necessity for
strikes for recognition by providing machinery for the reso-
lution of questions concerning representation, and the certi-
fication of representatives . The Union chose to ignore this
avenue . Its strike , designed to secure the capitulation of
Respondent by shutting down the sewage disposal system
of Metropolitan Denver , was a failure. The issuance of a
bargaining order in the circumstances of this case would
negate the policy of the Act to prevent obstructions of com-
merce by strikes for recognition.
In order to effectuate the purposes of the Act , I find it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found , to take certain affir-
mative action , including offering reinstatement to Otis W.
Bottoms and Stanley L. Shull with backpay computed on a
quarterly basis plus interest at 6 percent per annum, and to
post appropriate notices.
Since the discriminatory discharges found herein go to
the very heart of the Act, N. L. R. B. v. Entwistle Mfg, Co., 120
F.2d 532, 536 (C.A. 4, 1941), and reflect an attitude of
opposition by Respondent to the self-organization of its
employees , the commission of unfair labor practices in the
future is reasonably to be anticipated from Respondent's
past conduct . It is therefore necessary that Respondent be
ordered to cease and desist from in any manner infringing
on the rights of employees guaranteed by the Act.
As a general principle , a bargaining order may issue
where a union has been designated as their bargaining agent
by a majority of the employees in an appropriate unit and
CONCLUSIONS OF LAW
1. Landfill , Incorporated , Respondent herein , is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in a business affecting commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
13, the Union herein , is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By coercive interrogation of its employees, by a threat
to withhold promised benefits , and by offering financial and
other benefits to employees to induce them to refrain from
exercising their right to strike , Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Otis W. Bottoms and Stanley L. Shull , there-
by discouraging membership in the Union, Respondent has
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. By thus interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tions 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent, Landfill, Incorporated, its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership activities or sympathies.
(b) Threatening to delay grant of promised benefits as
reprisal for union activities.
(c) Promising benefits to individual employees to induce
them to refrain from lawful concerted activities.
(d) Discouraging membership in or activities on behalf
of any labor organization by discharging or refusing to rein-
state employees or in any other manner discriminating in
regard to their hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the right to self-organization, to form
labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other mutual aid or protection,
or to refrain from any or all of such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to the following named employees immediate
and full reinstatement to their former fobs or, if those fobs
no longer exist, to substantially equivalent positions:
Stanley L. Shull Otis W. Bottoms
and make them whole for any loss of earnings suffered as
a result of the discrimination against them. Backpay shall
be computed in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289, with interest added thereto in the manner set
forth in Isis Plumbing and Heating Co., 138 NLRB 716.
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, personnel records and reports, timecards, social
security payment records, and all other records necessary to
analyze the amounts of backpay due under the terms of this
Decision.
(d) Post at its office in Denver and at all of its operations
in Adams County, Colorado, and at its hopper on the Lowry
bombing range, copies of the attached notice marked "Ap-
pendix." 3 Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly signed by
an authorized representative of Respondent, shall be posted
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.4
IT Is ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Section 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes
3 In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board
4In the event this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read- "Notify
the Regional Director for Region 27, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
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, having found, after a
trial, that we violated Federal Law by questioning employ-
ees about their union activities, by threats of reprisal and
promises of benefit, and by discharging employees to dis-
courage union activities has ordered us to post this notice.
WE WILL offer Stanley L. Shull and Otis W. Bottoms full
reinstatement, and pay them for the earnings each lost
as a result of their discharges on April 23, 1972, and
May 8, 1972, respectively, plus 6 percent interest.
WE WILL NOT coercively interrogate employees concern-
ing their union membership, activities, or sentiments.
WE WILL NOT delay the grant of any benefit as reprisal
for union activities.
WE WILL NOT promise or grant benefits to employees to
induce them to refrain from union activities.
WE WILL NOT discharge or discriminate against any em-
ployee because of his membership in or activities on
behalf of any union.
WE WILL NOT unlawfully interfere with our employees'
union activities in any manner
LANDFILL , INCORPORATED 551
LANDFILL , INCORPORATED Service Act and the Universal Military Training and Service
(Employer) Act.
This is an official notice and must not be defaced by
Dated By anyone.
(Representative ) (Title) This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
WE WILL notify the above-named individuals , if presently or covered by any other material.
serving in the Armed Forces of the United States , of the Any questions concerning this notice or compliance with
right to full reinstatement , upon application after discharge its provisions may be directed to the Board 's Office, U.S.
from the Armed Forces , in accordance with the Selective Custom House, Room 260,721 19th Street , Denver , Colora-
do 80202 , Telephone 505-843-2555.