Oklahoma City Collection District of Browning-Ferris, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 79 (N.L.R.B. 1982)

OKLAHOMA CITY COLLECTION
Oklahoma City Collection District of Browning-
Ferris, Inc. and American Federation of State,
County and Municipal Employees, Local 2406,
AFL-CIO. Cases 16-CA-9412 and 16-RC-
8198
July 30, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On September 3, 1981, Administrative Law
Judge Richard J. Linton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Oklahoma City
Collection District of Browning-Ferris, Inc., Okla-
homa City, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vincesa us that the resolutions are incorrect. Standard Dry Wall Products
Ine, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
s In the absence of exceptions we adopt, pro forma, the Administrative
Law Judge's overruling of Petitioner's Objection 4.
In adopting the Administrative Law Judge's conclusions that the
speech delivered by District Manager Solheid on October 30, 1980. and
his followup letter of October 31 constituted objectionable conduct, we
find it unnecessary to decide whether such conduct would, if alleged as
such, constitute a violation of Sec. 8(a)() of the Act. We do find that
Respondent's repeated references to strikers in other companies and in
other divisions of its parent company and the resulting loss of jobs to the
strikers, made in the context of other objectionable conduct including
threats, "had a coercive impact on employees by tending to create the
impression that such adverse consequences would be a direct result of
unionization." Liquid Tramnspoers Inc., 257 NLRB 345 (1981). Accord:
General Dynamics Corporation, 250 NLRB 719, 722-723 (1980).
Member Hunter agrees with the Administrative Law Judge that Peti-
tioner's Objection 6 should be sustained and, accordingly, finds it unnec-
esary to pas on his disposition of Objection 7.
The Administrative Law Judge inadvertently omitted from his Conclu-
sion of Law 3 Respondent's creation of the impression of surveillance as
a violation of Sec. 8(aXI).
263 NLRB No. 12
IT IS FURTHER ORDERED that the election con-
ducted in Case 16-RC-8198 be, and it hereby is,
set aside and that a new election be conducted as
set forth in the direction below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge:
These consolidated cases were heard before me in Okla-
homa City, Oklahoma, on July 16, 1981, pursuant to a
complaint, dated November 25, 1980, issued by the Gen-
eral Counsel of the National Labor Relations Board
through the Acting Regional Director for Region 16 of
the Board in Case 16-CA-9412, and the December 18,
1980, order consolidating cases and directing hearing
issued by the Acting Regional Director for Region 16 in
Case 16-RC-8198.
The complaint is based on a charge filed by American
Federation of State, County and Municipal Employees,
Local 2406, AFL-CIO (herein called Local 2406, the
Union or the Petitioner), against Oklahoma City Collec-
tion District of Browning-Ferris, Inc. (herein referred to
as Respondent, Employer, or BFI). In the complaint the
General Counsel alleges that Respondent has violated
Section 8(aX1) of the Act by interrogating employees,
threatening employees with loss of benefits, creating an
impression of surveillance, and soliciting employee griev-
ances to be solved without the help of a union.
By its answer, Respondent admits certain allegations,
but denies that it has violated the Act in any manner.
The petition in Case 16-RC-8198 was filed September
5, 1980,1 and, pursuant to a Stipulation for Certification
Upon Consent Election approved on October 6, 1980, an
election by secret ballot was conducted on November 6,
1980, among the employees in the unit stipulated to be
appropriate. 2
Upon conclusion of the balloting, the parties were fur-
nished a copy of the tally of ballots which shows that of
approximately 115 eligible voters, 50 cast ballots for the
Petitioner and 52 cast ballots against the labor organiza-
tion. There were no void or challenged ballots. The Peti-
tioner filed timely objections, seven in number, to con-
duct affecting results of the election.
Objections I and 2 were withdrawn. In his December
18, 1980, report on objections, the Acting Regional Di-
rector observed that 'The issues raised by Petitioner's
Objections 3, 4, 5, and 6 are coextensive with the unfair
labor practice allegations" contained in the November
25, 1980, complaint issued in Case 16-CA-9412. He
therefore consolidated these objections with the com-
plaint case for hearing. Although the Petitioner's objec-
t Such date opens the preelection "critical" period. Goodyear Tire and
Rubber Company, 138 NLRB 453 (1962).
' The stipulated appropriate unit is:
All drivers, mechanics, helpers and shop employees employed by the
Employer at its facility in Oklahoma City, Oklahoma, excluding all
other employees, office clerical employees. managerial employees.
professional employees, guards and supervisors as defined in the Act.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions also include, as count number 7, an "other acts" al-
legation, at the hearing it announced, at the General
Counsel's resting, that it had no further evidence to offer
in either the "C" case or on the objections, and it rested.
Upon the entire record in this consolidated proceed-
ing, including my observation of the demeanor of the
witnesses, and after due consideration of the briefs filed
by counsel, 3 I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with a solid
waste management facility located in Oklahoma City,
Oklahoma, is engaged in the business of solid waste dis-
posal. Its operation utilizes two basic divisions, residen-
tial and commercial, plus a shop with mechanics to serv-
ice its vehicles. During the preceding 12 months, Re-
spondent purchased and received goods valued in excess
of $50,000 directly from points outside the State of Okla-
homa. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
Respondent admits, and I find, that Local 2406 is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
There are five complaint allegations of unlawful inter-
ference, restraint, and coercion. Three pertain to Assist-
ant District Manager Philip Miesner and one each to
District Manager Lee Solheid and Operations Manager
Terry Laffoon.
Miesner primarily oversees the residential operation.
He has two route supervisors in charge of the drivers.
Nevertheless, Miesner apparently has substantial direct
contact with the residential employees, for driver-collec-
tor Claude L. Jackson testified that if he has any work
problems, he goes to Miesner and feels at ease discussing
matters with him. Operations Manager Terry Laffoon
primarily oversees the commercial division.
B. Background of Organizing Campaign
Formal organizing among Respondent's employees
began when driver-collector Claude L. Jackson contact-
ed a union steward for Oklahoma City. The steward ad-
vised Jackson to contact Emileo Molleda, Jr., business
agent for Local 2406, and Jackson did so. Molleda gave
him cards to get signed. Between then and the election,
there were five union meetings with the initial one being
held on Wednesday, August 27, at which 18 employees
attended.
' The Charging Party's representatives filed no brief.
C. Incidents of Interference, Restraint, and Coercion
1. Assistant District Manager Philip Miesner
a. Late August 1980 telephone call to Oliver
It is undisputed that in late August 19804 Miesner tele-
phoned residential truckdriver Spencer Oliver at home
and briefly spoke with him. Miesner contends that he
called Oliver to arrange for him to work the following
day. If the complaint allegation of August 29 is correct,
the next day would have been a Saturday. The record
reflects that the regular workweek is Monday-Tuesday
and Thursday-Friday. Oliver concedes that the call
could have been on a Tuesday, although arrangements to
work on off days are almost always discussed at the
job.5
I credit Oliver's testimony that nothing was said about
his working the following day. In resolving this credibil-
ity issue I have considered Oliver's possible bias from the
fact he was discharged by Respondent on September 26.
Oliver testified in a forthright fashion and stated that he
harbors no ill feeling against BFI over his termination.
Oliver and Miesner agree that the latter did ask Oliver
if he knew of a union organizing among the employees.
Miesner testified, and I credit this portion of his testimo-
ny, that he had heard rumors of union card signing and
so he therefore asked Oliver about it. Oliver responded,
untruthfully, that he knew nothing of any such activity.
Miesner asked whether Oliver was telling the truth, and
the latter responded, "Why should I lie?"
In fact, Oliver was active in the card signing, but he
responded untruthfully to Miesner because he felt the
matter was none of Miesner's business. On cross-exami-
nation Oliver admitted that the tone of the conversation
was friendly. 6
Although Miesner expressed no threats in his conver-
sation with Oliver, the absence of such is immaterial.
Gossen Company, a Division of the United States Gypsum
Company, 254 NLRB 339 (1981); PPG Industries, Inc.,
Lexington Plant, Fiber Glass Division, 251 NLRB 1146
(1980). Accordingly, I find that Respondent violated
Section 8(a)(1) of the Act by Miesner's late August inter-
rogation of Oliver as alleged in complaint paragraph
7(a). As the event predated the opening of the critical
period, it may not serve as a basis for setting aside the
election. Goodyear Tire and Rubber Company, supra.
b. Office conversation with Oliver in late August 1980
Still hearing rumors of union activity, including Oliver
association with the activity, Miesner, about 3 days after
the telephone conversation, 7 called Oliver into an office
and inquired into the matter again. Just the two were
present. While Miesner could not remember what he
4 All dates are in 1980, unless otherwise indicated.
5 Oliver testified that Miesner had called him at home only once previ-
ously concerning working the next day.
a Interrogation is no less coercive simply because the tone is friendly.
Cagle's Inc., 234 NLRB 1148, 1150 (1978), enfd. in pertinent part 588
F.2d 943 (5th Cir. 1979).
7 This second conversation could have been in the first 2 or 3 days of
September.
so80
OKLAHOMA CITY COLLECTION
asked Oliver, the latter testified that Miesner asked him
whether he was sure that nobody was trying to start a
union, for Oliver's name had come up as the one trying
to organize it.
This time Oliver told him that some employees were
in fact trying to start a union. Miesner inquired whether
he could sit down and talk with the employees to see
what they need and whether Miesner could give them
what they needed. Oliver replied that he did not think so
because the employees needed too much. Oliver also told
Miesner he should quit pushing people or he would have
a suit filed against him. Oliver had no particular legal
action in mind, but said that just to get Miesner off his
back.
Miesner's version is that Oliver responded to the
former's question by saying he was not initiating any-
thing and did not want to get involved. Miesner con-
tends that the conversation about the Union ended at
that point-although he admits it lasted a couple of min-
utes. Miesner did not impress me favorably, and I do not
credit him.
Although Oliver testified on cross-examination that he
did not feel coerced by the office interrogation, actual
coercion is not the test of whether an interrogation (or
other employer conduct) violates Section 8(a)(1) of the
Act. The test is whether the employer engaged in con-
duct which, it may reasonably be said, tends to interfere
with the free exercise of employees' rights under the
Act. Continental Chemical Company, 232 NLRB 705,
706, fn. 4 (1977). Accordingly, I find that Respondent
violated Section 8(a)(1) of the Act by the late August-
early September office interrogation of Oliver by
Miesner as alleged in complaint paragraph 7(b). 8
Respecting the solicitation of grievances, the subject of
paragraph 7(c), I credit Oliver and I find that Respond-
ent violated Section 8(a)(1) of the Act by Miesner's
office conversation with Oliver in which Miesner solicit-
ed employee grievances with the implied promise of cor-
recting them. Continental Kitchen Corporation, 246
NLRB 611 (1979).
c. Route conversation with Jackson
Claude L. Jackson has been a driver-collector with
Respondent for 5 or 6 years. Miesner admits that he had
a conversation about the Union with Jackson on the lat-
ter's route, but he could not recall even approximately
when it was. Although Jackson initially placed the con-
versation in late September or early October, because it
was "right before the election," he later admitted that he
had stated in his October 8 pretrial affidavit (Resp. Exh.
1) that his conversation with Miesner occurred "soon
after" the first union meeting of August 27. He testimon-
ially confirmed the accuracy of his affidavit, but con-
tended that "soon after" was not a "couple of days" and
I Although par. 7(b) alleges the event to have occurred about Septem-
ber 7, the evidence reflects that the incident occurred before September
5. The event therefore predates the critical period. Finally, the time is
sufficiently close to the complaint allegation insofar as notice to Respond-
ent is concerned.
could have been a month later.9 As Jackson gave his
pretrial affidavit on October 8, 1 find it more probable
than not that the "soon after" the August 27 union meet-
ing meant no more than a handful of days. Had it been a
month later, the phrasing in the affidavit no doubt would
have been language such as "a week or so ago...."
Moreover, the pertinent complaint allegation is para-
graph 7(c),' ° and it alleges the event to have occurred
about August 29--a time predating the critical period. I
find such date to be substantially accurate.
As for the substance of the conversation, Jackson testi-
fied that Miesner pulled him aside from the other em-
ployee on the truck that day and asked him whether the
employees were trying to organize a union and (if so)
that he would like to work something out with them.
Jackson told him it was up to the men. He admits that
Miesner did not promise to take care of any concerns of
the employees, that the tone of the conversation was
friendly, and that he regularly and freely discusses work
problems with Miesner. On the other hand, Jackson testi-
fied that Miesner usually does not come by checking
with Jackson.
Miesner testified that he told Jackson he was aware of
rumors of union activity, and he asked Jackson if he
knew why the employees felt that they needed someone
to represent them. He also asked what the employees felt
they were not getting. According to Miesner, Jackson
responded that wages and sick pay were two major items
the employees wanted improved. He testified that he did
not intend to give Jackson any impression that these mat-
ters would be taken care of by a higher official. He also
testified that he asked Jackson whether the Union had
made any promises on the subjects of wages and sick pay
and that his purpose in so asking was to inform Jackson
that no one can make such promises. Jackson's answer, if
any, was not described by Miesner. The conversation
lasted but a couple of minutes.
I credit Jackson rather than Miesner, although under
either version an unlawful interrogation occurred as al-
leged in paragraph 7(c). Miesner's asking to work some-
thing out with the employees also constitutes the solicita-
tion of employee grievances with an implied promise of
correcting them. Such conduct is unlawful as also al-
leged in paragraph 7(c) of the complaint, and I find that
Respondent violated Section 8(a)(1) of the Act by such
conduct.
2. Operations Manager Terry Laffoon
Driver Spencer Oliver also described a remark by Op-
erations Manager Terry Laffoon. As Oliver was passing
the garage area before noon about 3 weeks before his
September 26 discharge (or about Friday, September 5),
Laffoon remarked, "There goes that union man." Two
or three mechanics were working in the vicinity, but
Oliver does not know whether they heard Laffoon. Al-
though Oliver admitted that Laffoon was smiling when
he uttered the remark, he also testified that one does not
I It is understandable that the witnesses had difficulty recalling the
dates of events, for at the time of this heanng almost a year had elapsed
since the initial union meeting.
'O As represented by the General Counsel.
-
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know when Laffoon is joking and that he is not really
known to joke around. When asked on cross-examination
whether he felt threatened by Laffoon's remark, Oliver
testified, "Sir, I don't feel threatened by anything." Laf-
foon denied making any such remark to Oliver and testi-
fied that they have a friendly relationship.
There is no evidence that Oliver was wearing a union
button or had otherwise made public his union activities.
I find, as alleged in complaint paragraph 7(e), that on
September 5 (within the critical period) Operations Man-
ager Laffoon did make a remark to Oliver, singling out
his union activities, thereby tending to create the impres-
sion that Oliver's union activities were under surveillance
by Respondent.
A similar incident occurred in The Gates Rubber Com-
pany, 182 NLRB 95, 97 (1970), and the allegation was
dismissed. I would find Gates Rubber, cited by Respond-
ent, persuasive except for the fact that it no longer ap-
plies in light of cases such as PPG Industries, Inc., supra,
251 NLRB 1146 (1980).
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by such conduct. Franklin Fouts,
d/b/a B & F Cartage, 251 NLRB 645 (1980)."
3. District Manager Lee Solheid
a. Late September or October 9 speech to employees
Driver Claude Jackson also described a speech Dis-
trict Manager Solheid gave to the employees in groups.
Jackson initially was vague about the date of the meet-
ing, but cross-examination based on his pretrial affidavit
(Resp. Exh. 1) of October 8 established that the meeting
was held I or 2 weeks before he gave the affidavit.' 2
Solheid already was speaking to about 15 to 20 employ-
ees in the office area when Jackson arrived. According
to Jackson, whom I credit, Solheid was telling the em-
ployees that he had heard they were getting a union to-
gether and that he did not approve of it, that the em-
ployees would lose their Christmas bonus, wages would
probably drop to minimum wage if the Union came in
and bargaining would startfrom there.
I At p. 16 of its brief, Respondent asserts that even if I find that Laf-
foon made the remark, the matter is moot since Oliver was terminated
before the election, and there is no evidence Oliver mentioned the matter
to other employees. To the extent this argument goes to the pending ob-
jections, Respondent appears to be correct. The Board presumes that un-
lawful statements of a serious nature (i.e., discharge, plant closure, etc.)
are disseminated among employees, and the burden in such cases is on
the employer to show that no dissemination occurred. Richard Tischler,
Martin Bader and Donald Connelly Sr., a limited partnership d/b/a Devon
Gables Nursing Home; Richard Tischler. Martin Bader and Donald Connel-
ly Sr., a limited parnership d/b/a Devon Gables Lodge d Apartments. 237
NLRB 775, 776-777 (1978), enfd. 615 F.2d 509 (9th Cir. 1980). Laffoon's
remark would not appear to fall within the definition of "serious." I con-
clude that it is not entitled to a presumption of dissemination, and there-
fore does not serve as a ground for setting aside the election as alleged in
Objection 4.
12 Complaint par. 7(d), the pertinent allegation, alleges that "Respond-
ent, by Lee Solheid, on or about October 1, threatened the employees
with a loss of benefits and reduction of wage rates if the Union was
voted in." Although October I, having been a Wednesday, is not the cor-
rect date, it apparently is close enough to the actual date. Respondent
disputes the date, asserting that it occurred about October 9. As I find
infra, whether these were different speeches is immaterial.
On cross-examination Jackson confirmed the accuracy
of the version in his pretrial affidavit:
He [Solheid] said he had received a notice from the
union an election would be held. Solheid said that if
the union came in our wages would drop to mini-
mum wage and that we would lose all our benefits,
including the Christmas bonus. He told us about 18
per cent of the population belongs to unions.
Jackson testified that Solheid had a sheet of paper
which he referred to, as was his custom whenever he ad-
dressed the employees, but that he just glanced at it a
few times. He denied that Solheid said that wages and
benefits were subject to negotiation, and repeated his tes-
timony that Solheid said wages would drop to minimum
wage if the Union came in, that bargaining would start
from there and that the employees would lose their
Christmas bonus.
Jackson testified that there were no questions asked by
employees in his group at the end of Solheid's talk.
Driver Terry M. Webster placed the meeting in early
October and explained that it was a special meeting and
not the regular monthly safety meeting. He testified that
the meeting was held before his October 8 affidavit. He
was present for Solheid's entire speech; he stated he was
in the second group called to the front office lobby and
that about 20 employees were present.13 Webster testi-
fied that Solheid told them that he had heard they were
trying to get a union in; that he wanted the employees to
vote the way they wished; and that if the Union came in,
all their benefits and everything would be gone and ne-
gotiations would start at minimum wage.
Respondent elicited the following from Webster on
cross-examination: That Webster had received literature
mailed by BFI to employees during the campaign, in-
cluding a letter dated October 14 (Resp. Exh. 20);14 that
Solheid said there would be no guarantees of any certain
wages or benefits if the Union came in; and that wages
would be subject to negotiation. After again testifying
that Solheid said bargaining on wages would start from
the minimum wage, counsel secured Webster's acknowl-
edgement that what Solheid said at the meeting is
"pretty much the same" as that which is contained in the
third paragraph of the October 14 letter, to wit:
The law of the United States of America says that if
the union gets the most votes in a proper election,
the Company representative must sit down and bar-
gain, in good faith, on all proper subjects-includ-
ing wages, holidays, uniforms, Christmas bonuses
and hours of work, just to name a few-that are
conditions of employment. That doesn't mean you
will keep the same benefits or that you will get
more or less. It means only that we-the Company,
me and our lawyer-will bargain, in good faith,
over all these subjects.
i Jackson stated that he was in the second or third group.
14 Jackson testified that he did not receive any mailings, and Solheid
conceded that some letters were returned by the postal service.
82
OKLAHOMA CITY COLLECTION
Solheid testified that he gave his first speech on Octo-
ber 81 in the office reception area to four groups of em-
ployees. Initially testifying that he did not depart from
his one and one-half-page text (Resp. Exh. 3), he subse-
quently conceded on cross-examination by National Rep-
resentative Patrick that he did not read it word for word
but only partially. s
The written text asserts that Solheid had declined a
recognition request by representatives of the Union some
3 weeks earlier; that since then an National Labor Rela-
tions Board election had been agreed to for November 6;
that there have been a lot of unfounded rumors; and it
contains the following paragraph:
What the election means is that if a majority of
those who vote, vote for the union, then the union
will act as your representative to sit down and ne-
gotiate with the Company's lawyer and myself to
try and agree on a contract. That is all it means.
We'll sit down and bargain, in good faith. We don't
have to agree to anything we don't want and nei-
ther does the union. Nothing is automatic. There is
no guarantee of wages ... other than the minimum
wage . . . of holidays, vacations, insurance, hours
of work or anything else. It's a whole new ball
game. I can promise you one thing-our lawyer
isn't going to agree to anything that I don't think is
in the best interest of the Company.
The text concludes by asking if there are any questions.
According to Solheid, each group inquired whether em-
ployees had to join the Union if it were voted in, and
that the second and third groups asked whether there
had been any progress on a credit union; what percent-
age of workers are unionized; and whether it was true
that the employees would not earn less than city employ-
ees. To the latter question, Solheid assertedly told them
that he was not promising anything except good-faith
bargaining, and that the only thing guaranteed by Feder-
al law is the minimum wage.
Notwithstanding the written texts set forth above, and
Solheid's testimony that he did not threaten to reduce
wages or benefits, 17 on cross-examination by National
Representative Patrick concerning what Solheid said
about the minimum wage at the October 9 meeting, Sol-
heid answered:
What brought up the point of minimum wage was
that there was no guarantee or promises and that
there had to be a starting point, and at the negotiat-
ing table that minimum wage would be the starting
point by law. [Emphasis supplied.]
On redirect examination Solheid stated that he did not
believe he referred to a starting point in his talk and that
he had adhered to the prepared text which he had used
in many hours of rehearsal. 18
is On cross-examination, he changed this to October 9 since October 8
is a Wednesday when employees normally are off work.
it Miesner and Laffoon confirm that he did not read the text word for
word.
7 Miesner and Laffoon also deny that Solheid made any such threat.
"i Yet even his answer on direct examination referred to bargaining
"beginning" at the minimum wage.
It seems clear, and I find, that Solheid became con-
fused in delivering the prepared text (which he admitted-
ly did not read word for word) and told the assembled
employees essentially what Jackson and Webster heard
him say-bargaining on wages would start from the Fed-
eral minimum wage. I also find that in such talk Solheid
also told the employees that wages would be reduced to
the minimum wage if the Union came in and that the
Christmas bonus would be eliminated.
I find it unnecessary to resolve the question of wheth-
er Solheid delivered a similar speech in late September
or around October 1. The October 8 affidavits of Jack-
son and Webster describing such a speech, and the Octo-
ber 9 speech not yet having been delivered, seem to
compel a conclusion of an earlier talk. However, as the
gist of the credited testimony applies to both speeches, I
need dwell no longer on the topic, and I shall confine
my findings to the date of October 9.
Accordingly, I find that Respondent violated Section
8(aX 1) of the Act by Solheid's threats on October 9 as
alleged (sufficiently close in time) in paragraph 7(d) of
the complaint. Taylor-Dunn Manufacturing Company, 252
NLRB 779 (1980); Centre Engineering, Inc., 246 NLRB
632 (1979).
b. October 30 speech and October 31 letter
Solheid gave another speech (Resp. Exh. 5) at the reg-
ular safety meeting on October 30. The General Counsel
announced that she was not seeking to amend the com-
plaint to add an allegation concerning the speech Solheid
gave at the meeting. Nevertheless, I shall consider the
speech, and Solheid's October 31 followup letter, in con-
junction with the Petitioner's "other acts" objection.
In the speech Solheid spoke about a number of eco-
nomic matters and also referred to strikes. He advised
employees that Respondent would continue to operate in
the event of a strike, and (p. 2):
Naturally we'd have to hire new people-they're
called permanent replacements-to take the jobs of
all those who go on strike.... [Emphasis sup-
plied.]
And (p. 2):
The bad thing is-in a strike-almost everybody
loses-employees stand to lose their jobs ...
And further (pp. 2-3):
I wouldn't be fair to you if I let that go by without
explaining to you what BFI companies do in a
strike situation-it happened last summer in Balti-
more, Maryland-about 90 people listened to the
union and went on strike-today that company is
nonunion, only 6 of those 90 employees who were
there before the strike are still working there, and
the trash got picked up-unfortunately, almost 85
people lost their jobs to permanent replacements-a
similar thing happened about 2 years ago in St.
Louis. . ..
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Solheid's October 31 followup letter to employees reit-
erated the foregoing theme of job loss in the event of a
strike by stating (Resp. Exh. 4):
Yesterday, I explained to you that the only weapon
the union has to try to force the Company to agree
to its demands is to call you out on strike. I also
told you if a strike occurs, we will have to maintain
service and pick up the trash to keep our customers,
including the City. In the beginning, this will be
done with supervisors and other experienced people
from other BFI companies. They will train people
we will hire as permanent replacements for those
who go on strike. As I'm sure you know, we do not
want this-it is not good for the Company and cer-
tainly it is not good for any employee who loses his
job to a permanent replacement. Recently, this hap-
pened at a large BFI company in Jackson, Mississip-
pi; about a year ago in Baltimore, Maryland; and
about three years ago in St. Louis. Let's not let this
happen to us-vote NO next Thursday and keep the
outsider union out of our Company. [Emphasis sup-
plied.]
Stressing loss of jobs to permanent replacements, with
not even a reference to economic strikes, much less an
explanation of the distinction between economic strikes
and unfair labor practice strikes, or even of the residual
job rights retained by permanently replaced economic
strikers, is viewed by the Board as an illegal threat to
discharge strikers and therefore violative of Section
8(a)(1) of the Act. George Webel d/b/a Webel Feed Mills
& Pike Transit Company, 217 NLRB 815, 818 (1975).' 9 It
is well settled that conduct which is violative of Section
8(a)(1) is, a fortiori, objectionable conduct. Dal-Tex Opti-
cal Co., Inc., 137 NLRB 1782, 1786 (1962).
Accordingly, I find that the October 30 and 31 threats
of job loss constitute "other acts" of objectionable con-
duct and serve as additional grounds for setting aside the
election of November 6.
IV. THE PETITIONER'S OBJECTIONS TO THE ELECTION
The Petitioner's Objections 3, 4, and 5 relate to the
conduct of Miesner and Laffoon discussed above. None
of Miesner's conduct occurred within the critical period,
and Laffoon's September 5 remark has been found to be
unavailable as a ground for setting aside the November 6
election.
It is true that the Board has held that prepetition con-
duct may be considered in determining whether a party
has engaged in objectionable conduct where such prepe-
tition conduct lends "meaning and dimension" to post-
petition conduct. Blue Bird Body Company, 251 NLRB
1481, fi. 2 (1980). Nevertheless, the prepetition event
does not itself constitute an independent act of objection-
able conduct.
"' Cases holding strike replacement remarks to be lawful involve situa-
tions where the employer gave an adequate explanation of employee rein-
statement rights, or differentiated between an economic strike and an
unfair labor practice strike, or otherwise diluted the raw impact of a
blunt remark. An example of an "explanation" case is Liberty Nursing
Homes, Inc., d/b/a Liberty House Nursing Home, 236 NLRB 456, 459
(1978).
This leaves the October speeches and letters of Dis-
trict Manager Solheid as findings of fact in support of
Objections 6 (threat of loss of benefits and a decrease in
wages) and 7 ("By the above and other acts ... .").
Based on the foregoing findings supporting Objections
6 and 7, I shall recommend that the election herein be set
aside, that the Regional Director conduct a second elec-
tion to determine the question of representation, and that
the Regional Director include in the notice of election
the Lufkin Rule paragraph set forth in attached Appen-
dix A.20
Upon the basis of the foregoing findings of fact, and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 2406 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties, soliciting their grievances with an implied promise
to correct them, and threatening to eliminate the Christ-
mas bonus benefit, and reduce wages to the Federal
minimum wage if employees selected the Union to repre-
sent them, Respondent has violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. By engaging in the conduct described above in sec-
tion IV of this Decision, Respondent has interfered with
its employees' freedom of choice in the election conduct-
ed November 6, 1980.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2 '
The Respondent, Oklahoma City Collection District of
Browning-Ferris, Inc., Oklahoma City, Oklahoma, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
membership, activities, and desires.
(b) Unlawfully soliciting employee grievances with an
implied promise of correcting same.
20 The LuFkin Rule Company, 147 NLRB 341 (1964); Bush Hog. Inc.,
161 NLRB 1575 (1966); Associated Milk Producers Inc., 255 NLRB 750
(1981).
21 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 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.
84
OKLAHOMA CITY COLLECTION
(c) Threatening its employees with elimination of their
Christmas bonus and to reduce wage rates to the Federal
minimum wage in the event they bring in American Fed-
eration of State, County and Municipal Employees,
Local 2406, AFL-CIO.
(d) Engaging in conduct tending to create the impres-
sion among employees that their union activities are
under surveillance.
(e) In any like or related manner interfering with, re-
straining, or coercing employees with respect to their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Oklahoma City, Oklahoma, facility
copies of the attached notice marked "Appendix B."22
Copies of said notice on forms provided by the Regional
Director for Region 16, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent 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 customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Regional 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held No-
vember 6, 1980, in Case 16-RC-8198 is hereby set aside
and that said case be remanded to the Regional Director
for Region 16 for the purpose of conducting a new elec-
tion, and that the paragraph set forth in attached Appen-
dix A be included in the notice of second election to be
issued by the Regional Director.
"a In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.
APPENDIX A
The election conducted on November 6, 1980, was
set aside because the National Labor Relations
Board found that certain conduct of the Employer
interfered with employees' exercise of a free and
reasoned choice. Therefore, a new election will be
held in accordance with the terms of this notice of
election. All eligible voters should understand that
the National Labor Relations Act, as amended,
gives you the right to cast your ballots as you see
fit, and protects you in the exercise of this right,
free from interference by any of the parties.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR REI ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The National Labor Relations Act gives you,
as employees, the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate you concerning your
union membership, activities, and desires.
WE WILL NOT unlawfully solicit your grievances
with an implied promise to correct them.
WE WILL NOT engage in conduct which tends to
create the impression that we have your union ac-
tivities under surveillance.
WE WILL NOT threaten to eliminate the annual
Christmas bonus or to reduce your wage rates to
the Federal minimum wages in the event you bring
in American Federation of State, County and Mu-
nicipal Employees, Local 2406, AFL-CIO, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you with respect to your rights
guaranteed by Section 7 of the National Labor Relations
Act.
OKLAHOMA CITY COLLECTION DISTRICT
OF BROWNING-FERRIS, INC.
85