Mal Landfill Corp.

National Labor Relations Board - Board Decisions

Apr 23, 1974

210 N.L.R.B. 167 (N.L.R.B. 1974)

MAL LANDFILL CORPORATION Mal Landfill Corporation and Tom LaMear. Case 14-CA-7515 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER April 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 14, 1974, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JERRY B. STONE , Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on November 5, 6, and 7, 1973, at St. Louis, Missouri. The charge was filed on August 6, 1973. The cr_.iplaint in this matter was issued on September 21, 1973. The issues concern (1) whether two individuals are supervisors within the meaning of the Act and, (2) whether Respondent discharged three employees and thereby interfered with, restrained, or coerced such employees in the exercise of Section 7 rights and thereby violated Section 8(a)(1) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs filed by the General Counsel and the Respondent have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: 167 The facts herein are based upon the pleadings and admissions therein. Mal Landfill Corporation, the Respondent, is, and has been at all times material herein , a corporation duly organized under , and existing by virtue of, the laws of the State of Delaware. At all times material herein , Respondent has maintained its principal office at 1838 North Broadway in the City of St. Louis, and State of Missouri , herein called the Respondent 's office . Respondent maintains a place of business in the State of Illinois at the intersection of Highways 203 and 155. Respondent is, and has been at all times material herein , engaged in the disposal of waste and refuse. Respondent's place of business, located at the intersection of Highways 203 and 155, Illinois, is the only facility involved in this proceeding. During the year ending December 31, 1972, which period is representative of its operations during all times material herein , Respondent , in the course and conduct of its business operations, performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in, and for various enterprises located in states other than the State of Missouri. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2) and (7) of the Act. H. SUPERVISORY AGENCY STATUS The General Counsel alleged that certain individuals were supervisors and agents of the Respondent within the meaning of Section 2(11) of the Act, as is revealed by the following excerpt from the General Counsel's complaint. Excerpt from Complaint At all times material herein, the following named persons occupied positions set opposite their respective names, and have been and are now supervisors of the Respondent, within the meaning of Section 2(11) of the Act, and its agents. Kenneth S. Hartbarger-President Dale Dille-Manager David Hauser-Supervisor of United Disposal, parent corporation of Respondent Kenneth Dixon-Foreman The Respondent's answer to the foregoing allegations was as follows: "Respondent denies that at all material times David Hauser and Kenneth Dixon were supervisors of Respon- dent . So stating Respondent admits the remaining allega- tions of Paragraph 3 of said complaint." (Par. 3 of the complaint is as previously set forth above.) Thus , there is no issue , and based upon the pleadings and admissions therein, it is concluded and found that Hartbarger and Dille are supervisors and agents of the 210 NLRB No. 32 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent within the meaning of Section 2(11) of the Act. Because of the issues involved in this proceeding and the responsibilities of Hauser and Dixon, it does not really appear necessary to make findings with regard to the status of Hauser and Dixon . However, the facts clearly reveal that Dixon was a supervisor for the Respondent, that he directed work and gave orders , and was responsible for direct supervision of the landfill . As Dille credibly testified, Dille gave instructions to Dixon to enforce a rule prohibiting drinking on the premises or on the job. I conclude and find that Dixon was a supervisor and agent of the Respondent within the meaning of Section 2(11) of the Act. Hauser, as supervisor of United Disposal, was at the landfill on August 4, 1973, during the critical events of this proceeding . Hauser and Hartbarger had a telephone conversation during such events . Hartbarger instructed Hauser to act for him with regard to the events involved. It is not necessary to determine whether Hauser was a supervisor for the Respondent. The facts clearly reveal that he was made an agent for such actions as he took during the critical events involved. It is so found. M. THE ALLEGED UNFAIR LABOR PRACTICES The issues in this case concern the Respondent's motivation for the discharge on August 6, 1973, of three employees who worked at Respondent's Milam landfill. The relevant facts and conclusions relating to such issues may be summarized as follows:1 A. Background 1. Mal Landfill Corporation, the Respondent, operates several landfills and in such operation is engaged in the business of disposal of trash, waste, and refuse . One of the landfills operated by the Respondent is known as the Milani landfill (herein sometimes called Milani). The Milani landfill is the Respondent 's only facility involved in this proceeding. 2. Briefly stated, the operation of Respondent's Milam landfill and disposal operation may be described as follows : Trucks from other companies bring trash, waste and refuse, including barrels to the Milani gate entrance. There such loads are checked , and the drivers of such trucks are directed to certain locations to dump the contents of their loads. 3. Respondent's Milam employees and the owners and drivers of trucks bringing trash and refuse to Milani are instructed to have general trash dumped and placed on the main general area of the landfill. Respondent's Milam employees and the owners and drivers of trucks bringing trash and refuse to Milam are instructed to dump or place barrels on the landfill in a separate area fenced off for deposit of such barrels. Many trucks bringing trash and refuse contain barrels only. There appears to be no problem when such barrels are placed in the properly designated area . The problem exists, however, that barrels may be in trucks having a load consisting generally of regular trash and refuse. Such barrels may go undetected and end up in being dumped with trash on the main part of the landfill. Thus, such barrels would not be placed in the barrel area and would be mingled with general trash? 4. The Respondent 's procedure and regular practice is to empty and place barrels in a special fenced off area of the landfill . General trash and refuse is placed as designated in spots on the main area of the landfill. By placement of such general trash in designated areas of the landfill, by use of bulldozers and other equipment to push and compact such trash, waste, and refuse in a designated area, and by pushing and packing dirt on and around such trash , Respondent accomplished both the disposal of such trash, waste, and refuse and the making of a landfill. 5. The operation of a landfill as described above has an accompanying problem of fires . The very nature of the variety of items and products that are received in trash, waste, and refuse contribute to potential causes of fire. Thus, paper, chemicals, or various other items, exposed to the elements and to each other, may cause fires . Addition- ally, some of the truckloads may be hot and contain smoldering fire. 6. The Respondent has safety and fire prevention or extinguishment procedures designed to minimize the possibility of fires and to expedite the extinguishment of fires . Thus, the Respondent has certain procedures designed with respect to the emptying and handling of barrels. Many of the "barrels" disposed of by the Respondent had been used by a company to hold chemical fluid or powder. The major procedure, designed for safety and fire prevention as to such barrels , is the one of having such barrels placed in a separate fenced off area. The Respondent has fire extinguisher equipment, bull- dozers, and earth scrapers, a truck with a water tank, and the use of available pond water . The major procedure for fire extinguishment, however, envisions the combination use of fire extinguishers and the placing of sand and dirt on such fires. Essentially, the Respondent's employees use their bulldozers to push dirt on the flames of the fire as a means of putting the fire out at its source. The Respondent's fire and safety procedures are those normally used on landfill and disposal type operations and meet acceptable Federal and state standards. 7. Respondent's president, Hartbarger, is responsible for the operation of a number of landfills. Dale Dille is Respondent's general manager. Dille is responsible for the operation of the Milam landfill as well as other landfills. During the time involved in the events of this proceeding, supervisor Kenneth Dixon was responsible for the day by day operation of the Milani landfill. The facts are clear that President Hartbarger generally utilized a chain of command type of operation. Thus, generally the details of the Milam operation were left for General Manager Dille to handle himself or through Supervisor Dixon. It is clear, however, that Hartbarger occasionally visited the Milani landfill ; and if he saw something to his dissatisfaction, he acted. Thus, during the period of time preceding August 1973 , Hartbarger had t The facts are based upon a composite of the credited aspects of the evidence . The testimony of any witness inconsistent therewith is discredited. Nstimony of all witnesses , exhibits, and a bgtcal consistency of the 2 The Respondent apparently sells such barrels as are in good condition. MAL LANDFILL CORPORATION 169 twice fired employee Scott because Hartbarger believed him to be under the influence of alcoholic beverage at work. During such time Hartbarger, on one occasion at least, saw employee LaMear and had questioned LaMear as to whether he had been drinking alcoholic beverage. Further, the facts reveal that Hartbarger discharged Supervisor Dixon as part of the aftermath of the events in this proceeding because he felt Dixon had not been carrying out company policy. As to other matters, it appears that Hartbarger did not feel that he should be bothered with details that could be handled by his general manager or the Milam supervisor. Thus, when employee Gallamore had a problem about one of his paychecks and spoke to President Hartbarger, Hartbarger referred him to his supervisor. The supervisor disposed of this problem to Gallamore's satisfaction. As indicated, General Manager Dille directs operations at Respondent's various landfills, including the Milam landfill. Dille visited the Milam landfill frequently. The facts indicate that Dille got along well with the Milam employees. Part of this good rapport may stem from the fact that Dille transmitted orders of correction essentially through supervisor Dixon. Thus, on one occasion, after working hours, several employees commenced drinking alcoholic beverage in front of Dille. Such employees told Dille in effect that they could now drink since they were not on working time. Dille made no comment to such employees. However, Dille later told supervisor Dixon\,^to check the men to see that they were not under the influence of alcohol while working. Dixon later told some of the employees that he had to start smelling the men's breath before they went to work. Scott credibly testified to the effect that pnor to August 1973 he had told General Manager Dille about the danger arising from undetected barrels being hidden in the general trash area . Scott's testimony further indicated that he had similarly spoken to President Hartbarger. Dille testified that he did not recall such conversation but that it may have occurred. The facts indicate that no action was undertaken by Respondent in response to Scott' s remarks. Scott's testimony revealed that he was not & ushy" person, that he was careful in his remarks and them so as to not be offensive. It is clear and I conclude and find that his remarks appeared to Dille and Hartbarger as mere comments not rising to a grievance or warranting a response . I am persuaded that they believed that their safety and barrel handling procedures were adequate and that such fires as occurred were inevitable as a matter of percentage of possibility. Gallamore credibly testified to a conversation occurring before August 1973 with a truckdriver named Rich. Such conversation in effect is revealed by the following credited excerpts from Gallamore's testimony.3 A. He told me that he told Hartbarger, that he had been dumping a load in the barrel area, and Hartbarger had been there, and he told Hartbarger that he should figure out some other way to handle those drums, and 3 Hartbarger , in the credited aspects of his testimony , denied that he had made such remarks to Rich 4 Employee Scott was discharged on two occasions pnor to August 1973 because President Hartbarger suspected that he was under the influence of Hartbarger told him that they had been dumping them drums before he started to work for them and they would be dumping them after he was gone. A. We had been told that Mr. Hartbarger had been warned about the dangerous stuff in the drums on the barrel area, and that he said, he told the man that warned him about it that they had been dumping them drums there before he started working there and they would be dumping them after he was gone; and he said, "Well, somebody is going to get killed with it.,, And Mr. Hartbarger told him let him worry about that when it happens. 8. Although there is no evidence of a written rule by Respondent with respect to the use of alcoholic beverages, or the working of an employee while being under the influence of intoxicated beverages, the facts clearly reveal that the Respondent's rules and practice proscribed the drinking of alcoholic beverages while at work or working while intoxicated.4 Similarly, I find it clear that insofar as President Hartbarger knew and intended, Respondent's policy and rules proscribed the use or presence of alcoholic beverages at any time on Respondent's premises. Hartbarger credibly testified to the effect that the "lease" had a specific provision in such regard. At first blush, one might wonder why anyone would be concerned about the mere presence of alcoholic beverages at a place such as a landfill. Considering the matter in broad terms, however, one can envision that the owners of such land might be concerned that the landfill would become a hangout for persons drinking, and that criminal or other laws for regulation of such matters would not be sufficient to prevent the same. Further, if one is concerned in the operation of business involving the operation of "bulldozers" and other motor- ized equipment, such a rule seems reasonable in design. Thus, I credit Hartbarger's testimony to such effect. Further, Hartbarger's testimony as to the Respondent's policy against drinking alcoholic beverage or being intoxicated on the job and against having alcoholic beverage on the premises is corroborated by the credited testimony of Rhodes. Thus, Rhodes credibly testified to the effect that he, Edward Davis, and Junior Thompson were advised by President Hartbarger and General Manager Dille several years before August 1973, as to such policy.5 Although all of the employees seem clearly aware of the policy prohibiting drinking alcoholic beverages or being under the influence of alcohol while working, a failure in communications appears to have created confusion as to the rule concerning not having alcohol on the company premises. Thus, when Dille failed to correct employee Gallamore and others on the occasion, prior to August 1973, when such employees, after working hours, had alcoholic beverages and were drinking the same , such employees alcohol while working S Further, employee Scott testified that he was "caught" at the landfill on a "Sunday" when not scheduled to work. This is indicative that Respondent did not want employees on the landfill when not working. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could reasonably have believed that there was not a rule, or at least that Dille was not enforcing such rule, against having alcoholic beverage on the premises or drinking the same while not working. It is clear that in the process of Dille's communication to Supervisor Dixon and Dixon's remarks to employees about smelling their breath, employ- ees could believe that Respondent's only concern was about their drinking alcoholic beverage while working or being under the influence of alcoholic beverages while working. B. Events of August 3, 1973 9. A fire occurred at the Milam landfill around 3:30 p.m. on August 3, 1973. While some employees, Scott, Gallamore, King, and Supervisor Dixon, were working and attempting to extinguish said fire , flames flared up around the cab of Dixon's bulldozer. Dixon apparently jumped from the bulldozer cab immediately and escaped serious injury. The hair on his neck and arms, however, was singed . Ultimately, by around 4:15 p.m., the employees had extinguished the fire by use of fire extinguishers, sand, and pushing dirt upon the flames. Between 4 : 15 and quitting time at 4:30 p.m. several of the employees congregated near the site of the fire, discussed the fire or fires and what they believed to be the cause of the fire or fires, and their belief that working conditions were unsafe. The same employees continued such discussion after 4:30 when they had gone to the tool shed to check out. Among such employees were Galla- more, Scott, and King who had been working at the time of the fire and who had extinguished the fire. Another employee, LaMear, participated in such discussions. LaMear had left work at 2 p.m., had returned later, but had ito involvement in the fire or firefighting. LaMear had had some alcoholic beverage, either on or off the premises, by the time he engaged in such discussions .6 Gallamore took a drink of alcoholic beverage handed him by an unidentified person at some point of time between 4 :15 and 4:30 p.m. The employees discussed a belief that the fires were caused by undetected barrels (containing chemicals) being in the landfill area . Thus, the employees believed that the fires had been caused by bulldozers striking such barrels and either causing the same to explode or the contents to be exposed to air with the result of a fire. The employees discussed their belief that Dixon had escaped serious in jury only because he was able to jump off the bulldozer as fast as he had. The employees discussed their belief that the dumping of undetected barrels (with chemicals) in the general landfill area created a safety hazard. These employees discussed prior conversations with management concerning the handling of barrels and dangers therefrom, and the fact that President Hartbarger allegedly had told driver Rich, in response to a similar type s I credit Rhodes' testimony to such effect. The employees met on August 4, 1973, and closed the gates at the entrance way to the Milani landfill . As I view the facts, the background facts do not reveal Respondent 's conduct of such a nature as to justify the employee misconduct in closing the gate on August 4, 1973. Nor am I persuaded that the employees on August 3, 1973, believed that Supervisor Dixon , General Manager Dille, or President Hartbarger would not listen to any complaint that they had. Certainly , it would appear that Supervisor conversation, that Respondent would continue to handle barrels. The employees decided that the way to get constructive action from President Hartbarger was for such employees to meet at the "landfill" the next day and to "close" the gates . The employees believed that this would force President Hartbarger, Yust, president of United Disposal, and a man who was Respondent's safety director to listen to their demands.? Although others may have been in agreement also, it is clear that LaMear, Gallamore, and Scott agreed to meet on August 4, 1973, and to close Respondent's Milam gate entrance as a means to get President Hartbarger , President Larry Yust from United Disposal, and another person who was Respondent's safety director to meet with them concerning what they considered to be a "safety" and "fire" problem as regards undetected barrels being placed on the main landfill area. C. The Events of August 4, 1973 10. Scott, LaMear, and Gallamore met, as they had agreed, around 6 a.m. on August 4, 1973, at the Milam landfill. Neither Scott nor LaMear were scheduled for work on August 4, 1973. Gallamore was scheduled to go to work at 8 a.m. on August 4, 1973. The question of whether Scott, LaMear, and Gallamore appeared to others to be under the influence of alcoholic beverages on the morning of August 4, 1973, is presented as having a bearing upon the Respondent's ultimate motivation for their discharge on August 6, 1973. It is sufficient to say that Gallamore had a drink of alcoholic beverage around 4:30 on August 3, 1973 , drank several beers during the evening hours of August 3, 1973, and had a drink of gin at the landfill premises sometime after 6 a.m. on August 4, 1973. Scott had several drinks of whiskey during the evening of August 3, 1973, was up until I a.m., and slept only about 4 hours before he was up for breakfast around 5 a.m. on August 4, 1973. The facts relating to LaMear indicate that he had been drinking between 2 p.m. and 4:30 p.m. on August 3, 1973. There was no evidence, one way or the other, as to whether LaMear drank anything between 4:30 p.m. on August 3, 1973, and 6 a.m. on August 4, 1973. LaMear, however, brought a case of beer and a bottle of gin with him on August 4, 1973, and openly displayed the same. The facts reveal that Gallamore took a drink from the bottle of gin brought to the premises. The facts reveal that LaMear, at least , drank some beer on the premises on August 4, 1973. The facts reveal that Scott did not drink on the Respondent's premises on the morning of August 4, 1973. There were varying accounts by witnesses relating to their observation of LaMear, Scott, and Gallamore with respect to their condition (as related to alcohol). It is sufficient to say that, considering all of the facts relating to drinking of alcohol, I conclude and find that LaMear Dixon would have had an attentive ear. Further , the facts reveal, in my opinion, that the employees had good rapport with General Manager Dille. The facts also reveal that President Hartbarger would have listened to a serous complaint . Rather, I am persuaded that the employees believed that in order to get the results that they wanted , they had to use the pressure of the gate closing. Part of the employees ' motivation in the planned "gate closing" was to create a confrontation of all employees with management. MAL LANDFILL CORPORATION 171 appeared to be strongly under the influence of alcohol, that Gallamore appeared definitely to have been drinking alcohol, and that Scott appeared to at least have had a drink within the near past period of time. In addition to Scott, LaMear, and Gallamore, there were several other employees who were at the landfill entrance around the same time . Thus, Scott had brought employee Edward Davis with him to the premises. Employee King, scheduled to start work at 10 a.m., was also at the landfill during the events that occurred on August 4, 1973. After Scott, LaMear, and Gallamore arrived at the Milam landfill , Gallamore and LaMear went around and solicited support for the plan to close the gate from employees who were working. Most of such employees left their job and congregated with Scott, LaMear, and Gallamore at the Milani landfill entrance. Around this time, apparently 10 to 15 minutes past 6 a.m., LaMear announced that it was time to close the Milam landfill entrance (and exit) gate . LaMear and Gallamore then closed the Milani landfill entrance (and exit) gate. After LaMear and Gallamore had closed the Milani landfill entrance (and exit) gate, the driver of a United Disposal truck, which had been inside dumping refuse, drove to the gate and stopped. LaMear and Gallamore explained to the driver why they had closed the gate and their desire to get President Hartbarger and others to talk to them about the safety and fire problem they believed existed from undetected barrels being in the main area of the landfill. The driver of the United Disposal truck called lus dispatcher on his radio and related to the dispatcher what was occurring. It appears that the dispatcher relayed or had relayed this information to Respondent's President Hartbarger. Shortly thereafter President Hartbarger told LaMear over the telephone that he (Hartbarger) was coming to the Milam landfill. Upon receipt of this information , LaMear went out and opened the Milam landfill entrance (and exit) gate. During the conversation that Hartbarger had with LaMear, Hartbarger asked LaMear if he were drunk and told him that he would have to be drunk to have closed the gate . LaMear replied that he was not drunk but had been drinking. LaMear told Hartbarger that they had decided to close the gate to change the conditions with the way the landfill was run. Hartbarger told LaMear that he would be out to the landfill .8 Around this time Hauser, supervisor of United Disposal, arrived on the scene and discovered that the gate was now opened. Around this time Hartbarger and Hauser engaged in a telephone conversation. Hauser informed Hartbarger that the gate was now open. Hartbarger told Hauser to tell the employees to either go to work or to leave the landfill. Hauser relayed this message to the congregated employees but with no result. During the time that the Milam landfill entrance (and 8 LaMear did not testify in this proceeding . Hartbarger 's testimony appeared to confuse the timing of his conversation with LaMear Considering Hauser's testimony , the timing of the opening of the gate, and the logical consistency of the facts and a fair inference therefrom , I find the facts as set out. 9 The facts clearly reveal that Hauser had noted the smell of alcohol on exit) gate was closed, approximately three trucks awaiting to leave the landfill and nine trucks awaiting to enter the landfill were stopped. As best gathered from all of the facts, the time that the landfill gate was closed was approximately 20 minutes. President Hartbarger appeared at the Milam landfill approximately 20 to 30 minutes after the entrance (and exit) gate was initially closed. When Hartbarger arrived, the Milam employees were still congregated near the gate entrance. In or near the scene were parked trucks and drivers of such trucks. Hartbarger commenced trying to ascertain what was going on from Hauser and from the employees. Hartbarger soon ascertained that LaMear and Gallamore had closed the entrance gate and that Scott was allied with them. Hartbarger told Scott, Gallamore, and LaMear that they had no right to close the gate, that they had been drinking, that they should punch out and go home.9 Scott and LaMear told Hartbarger that they were not scheduled to work that day. Gallamore told Hartbarger that he was scheduled to go to work at 8 a.m. Gallamore then continued with telling Hartbarger the complaint that undetected barrels on the landfill created a fire and safety hazard. Hartbarger countered with contentions with respect to the way employees were supposed to handle such problems. Ultimately, Hartbarger told Scott, Galla- more, and LaMear to go home, to sober up, and to come back on Monday and discuss the problem. None of the employees left, and Hartbarger questioned the other employees as to the safety conditions, what they thought about the conditions, and whether they wanted to go to work. All of such employees, other than Scott, Gallamore, and LaMear, and an employee named King, indicated that they had no problems and returned to work. King, one of the employees involved in fighting the August 3, 1973 fires, expressed a belief that there was some merit in LaMear, Gallamore, and Scott's complaint. King who was scheduled to go to work at 10 a.m., was told to come back before 10 a.m. for further discussions as to safety conditions. King saw Hartbarger around 10 a.m., discussed safety conditions further, and returned to work. Gallamore, LaMear, and apparently Scott, remained in the group while Hartbarger was speaking to other employees about the working conditions. Apparently Hartbarger left the premises after speaking to all of the employees. Apparently, Scott left the premises to get a tire repaired or pumped up. Gallamore and LaMear remained on the premises to help Scott with his tire. Around this time General Manager Dille came on the premises, saw LaMear and Gallamore drinking from the beer and gin that LaMear had brought on the premises. Such alcoholic beverage was openly displayed. Dille spoke to Gallamore and LaMear and, in answer to questions from them, expressed the idea that they would probably be fired.io President Hartbarger returned, and Dille related to Hartbarger what he had seen. Either around this time, or Gallamore and Scott , had reported the "gate closing" and the fact that some of the employees were "under the weather" to Hartbarger . The overall facts reveal that Hartbarger was of the opinion that LaMear , Gallamore and Scott had all been drinking when he saw them on August 4, 1973. io Gallamore returned later , spoke in similar vein to General Manager faille, and received a similar response 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earlier, Hartbarger had questioned employees as to what they thought he should do about LaMear, Gallamore, and Scott. During such discussions, he was told that the same employees had been drinking on the job and constituted a danger to others. President Hartbarger and General Manager Dille dis- cussed the events and agreed that LaMear, Gallamore, and Scott should be fired because of the gate closing and drinking involved. On Monday, August 6, 1973, when employees LaMear, Gallamore and Scott reported to the landfill, General Manager Dille gave them their checks, and told them that they were fired because of the gate closing and drinking on the premises. 11. The facts relating to Respondent 's motivation for the discharges of Gallamore, LaMear, and Scott are those which have essentially been set out above and the testimony of Hartbarger relating to his motivation. Hartbarger's testimony was to the effect that he had not initially intended to discharge LaMear, Gallamore, and Scott, after the gate closing, that he was a man of his word and that he had told them to come back on Monday. Hartbarger testified to the effect that the open display of alcohol and drinking by LaMear and Gallamore before General Manager Dille on August 4, 1973, and the reports from other employees about drinking on the job when added to the circumstances of the "gate closing" constitut- ed the motivating reasons for his discharge. Considering all of the facts, I credit Hartbarger 's testimony to such effect. Further, it is noted that the Respondent discharged its Supervisor Dixon because of his failure to carry out Respondent's policy relating to "drinking" on the job. Conclusion 12. The General Counsel contends in effect that LaMear, Gallamore, and Scott's concerted action in "closing the gates" for the purpose of causing Hartbarger and others to talk with them concerning safety and working conditions constituted concerted activities pro- tected by the Act. The General Counsel contends that the "closing of the gates" for only 20 minutes was not such an infringement upon rights of management as to remove such concerted action from the protection of the Act.lt The General Counsel argues that the facts in this case are comparable to those of a brief work stoppage and therefore protected under the Act. The Respondent contends and argues that the "closing of the gate" is comparable to those cases wherein ingress and egress is blocked by mass picketing, or wherein a plant has been seized.12 The incident of closing the gates at the Milam entrance constituted more than a brief work stoppage . There was a brief work stoppage by some of the Milam employees. However, LaMear, Scott, and Gallamore, the principal actors in the closing of the gates , were not at work and the closing of the gate was intended to and did stop all ingress and egress from the Milam landfill. Thus, the Respondent's operation was effectively shut down for around 20 minutes. 11 Cf. Hanes Hosiery Division, Hanes Corporation, 168 NLRB 856; Washington Aluminum Co., 126 NLRB 1410, affil . 370 U.S. 9; Polytech Incceporatei; 195 NLRB 695, Intalco Aluminum Corporobon 182 NLRB 413. 12 Cf. NLRB. v. Washinton Aluminum Co., 370 U.S. 9 (1%2); N.LR.B. The gates were not locked, but it is clear that those entering or leaving felt that they had to initiate action or pass a barrier. There is no real dispute that the closing of the gate by LaMear and Gallamore, supported by Scott, constitutes misconduct. There is dispute as to whether such miscon- duct is serious misconduct. The facts do not reveal unfair labor practices by Respondent which would justify in balance misconduct by such employees in furtherance of a desire to engage in concerted activities. Nor do the facts reveal that Respondent had a closed mind to meeting with or discussing grievances with employees. Under such circumstances, misconduct directed to close the operation down, as to all incoming and outgoing trucks, is serious misconduct for which a Respondent could lawfully discharge such employees. 13. The issue in this case is essentially one of motiva- tion. As indicated, considering all of the facts, I credit Hartbarger's testimony to the effect that he was motivated in his discharges of LaMear, Gallamore, and Scott by lawful reasons and not because they engaged in protected concerted activity. Had the Respondent immediately discharged LaMear, Gallamore, and Scott, because of the "gate closing" incident, I would have found such discharges to be lawful because the employees had engaged in "misconduct." Assuming that Respondent was motivated against the employees because of such misconduct but had not discharged such employees because of practical considera- tions of desiring to get work resumed immediately and fearing that the immediate discharges of LaMear, Galla- more, and Scott would deter such immediate resumption of work, it would follow that the ultimate discharges were because of such misconduct. The question narrows to whether Respondent was motivated against LaMear, Gallamore, and Scott because of "protected" concerted activities unrelated to the "gate closing" Respondent's very conduct in not initially discharging for the "gate closing" and "concerted activity" tends to negate such contention. Excepting for Respon- dent's actions with respect to the polling (in a group) of employees as to their attitude toward conditions, the return to work of such employees who had no "problems," and the telling of King to see them before going to work at 10 a.m., I find no circumstances to reveal why the Respondent would change and have a discriminatory intent toward LaMear, Gallamore, and Scott. Rather, the facts as to a changed intent as to a desire to discharge LaMear, Scott, and Gallamore support a finding that the discharges were for cause. The polling of employees as to their working conditions, and attitudes as to working conditions, the return to work of such employees who had no problems, and the delay and further conversation with King, who had expressed support of LaMear, Gallamore, and King's complaint, is subject to a possible interpretation that the Respondent wanted to distinguish in its attitude toward employees who v. Fansteel Metallurgical Corp., 306 U.S. 240; N.L.R.B. v. United Mine Workers District 2, and Local 6796, UMW [Mears Coal Co.]. 429 F.2d 141 (C.A. 3, 1970), among the cases cited by Respondent. MAL LANDFILL CORPORATION were supporting such complaints and those who were not. On the other hand, the facts suggest that Respondent wanted to "air", discuss and present its viewpoints as to such complaint . Considering the facts as a whole, I find the latter to appear more likely.13 In sum , I conclude and find that the facts preponderate for a finding that the Respondent discharged LaMear, Scott and Gallamore on August 6, 1973, for cause, "misconduct" in the gate closing, and Respondent's belief that said employees had been drinking on the job and had alcoholic beverages on the premises in violation of its policy . Accordingly , it will be recommended that the complaint be dismissed in such regard. Upon the basis of the above findings of fact and upon the entire record in the case , I make the following: is If such distinguishment were made , it appears more probable as support of an initial intent to discharge the employees for misconduct. 14 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 CONCLUSIONS OF LAW 173 1. Mal Landfill Corporation, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has not engaged in unfair labor practices, as alleged , within the meaning of Section 8(axl) 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: ORDER i4 The complaint in this matter is dismissed in its entirety. findings, conclusions, 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.