Recycle America

National Labor Relations Board - Board Decisions

Jul 28, 1992

308 N.L.R.B. 50 (N.L.R.B. 1992)

51
308 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Board therefore rejected the argument that the complaint al-
legations were not ‘‘closely related’’ to the charge. Well-Bred Loaf,
supra. In many of our cases involving the relation between charge
and complaint, we have used the term ‘‘closely related’’ (see, e.g.,
Redd-I, Inc., 290 NLRB 1115 (1988); Whitewood Maintenance Co.,
292 NLRB 1159, 1169–1170 (1989), enfd. sub nom. Texas World
Service v. NLRB, 928 F.2d 1426, 1436–1437 (5th Cir. 1991)). In
others, e.g., Well-Bred Loaf and Nickles Bakery, we have spoken of
a sufficient ‘‘nexus’’ or have used the terms interchangeably. None-
theless, whatever the terminology used, our precedents make clear
that complaint allegations of coercive acts aimed at thwarting a
union campaign may be deemed closely related to—or having a suf-
ficient nexus with—charge allegations of coercive acts in resistance
to that campaign. This is so whether or not the acts are of precisely
the same kind and whether or not the charge specifically alleges the
existence of an overall plan on the part of the employer. Jennie-O
Foods, Inc., 301 NLRB 305 (1991). We therefore do not adopt the
judge’s statement in the present case that ‘‘the allegations of the
complaint clearly bear no specific relationship to the allegations of
the charge.’’
3 Well-Bred Loaf, supra; NLRB v. Braswell Motor Freight Lines,
486 F.2d 743, 746 (7th Cir. 1973).
4 Redd-I, Inc., supra, 290 NLRB at 1118.
5 The Respondent contends that Nippondenso Mfg. U.S.A., 299
NLRB 545 (1990), compels dismissal of the complaint. Nippondenso
is distinguishable from the instant case, and from Well-Bred Loaf,
Inc., because in Nippondenso neither the allegations of the charge
nor the complaint placed at issue acts that were all part of an overall
plan to resist union organization.
Waste Management of Santa Clara Co., Inc., d/b/a
Recycle America and Sanitary Truck Drivers
& Helpers Local 350, International Brother-
hood of Teamsters, AFL–CIO.1 Case 32–CA–
11622
July 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 27, 1991, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The Respondent contends that the allegations of the
complaint should be dismissed under Section 10(b) of
the Act because they are not closely related to the alle-
gations contained in the charge. In agreement with the
judge, we find no merit to this contention for the fol-
lowing reasons.
The charge consisted of specific allegations of un-
lawful grants of wage increases and threats of retalia-
tion against employees for their support of the Union;
but it referred to these as part of the Respondent’s
‘‘interfer[ence] with the freedom of the employees to
make a fair choice of representation’’ during ‘‘the
course of an election campaign related to Case No.
32–RC–3344.’’ Although the complaint alleged acts of
interference different from those specifically alleged in
the charge, the reference in the charge to the Respond-
ent’s interference with the particular organizational
campaign was sufficient to support the complaint alle-
gations that the Respondent sought to undermine and
discourage employee support for the Union by interro-
gating employees, soliciting grievances and impliedly
promising to remedy them, and soliciting employees to
campaign against the Union. As the Board held in
Well-Bred Loaf, Inc., 303 NLRB 1016 fn. 1 (1991), a
sufficient nexus between charge and complaint is es-
tablished when all the allegations involve ‘‘part of an
overall plan to resist organization,’’ citing Nickles Bak-
ery, 296 NLRB 927 at 928 fn. 7 (1989).2 That is the
case here.
The charge put in motion an investigation into
whether, as alleged in the charge, the Respondent, in
violation of Section 8(a)(1), sought to resist union or-
ganization by certain threats and a wage increase dur-
ing the election campaign. Although the Region evi-
dently discovered during the investigation that the
threat and wage increase allegations lacked merit, the
Region nevertheless determined that the Respondent
sought to resist union organization by other forms of
conduct violative of Section 8(a)(1), i.e., those spelled
out in the complaint. The charge itself—putting at
issue the Respondent’s conduct in allegedly interfering
with the freedom of employees to fairly choose their
bargaining representative—advised the Respondent that
it was being accused under Section 8(a)(1) of interfer-
ing with its employees’ statutory rights arising from
the Respondent’s efforts to resist organization. The
8(a)(1) acts alleged in the complaint were part of the
Respondent’s efforts to resist organization. In addition,
we note that the conduct alleged in the charge and
complaint occurred within the same general time pe-
riod.3 Finally, the allegations of the charge and com-
plaint concern the same subsection of the Act, viz.,
independent violations of Section 8(a)(1).4 In these cir-
cumstances, the allegations of the complaint are close-
ly related to the allegations of the charge.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates or time periods are within 1990 unless otherwise indi-
cated.
orders that the Respondent, Waste Management of
Santa Clara Co., Inc., d/b/a Recycle America, San
Jose, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Virginia Jordan, Esq., for the General Counsel.
John D. McLachlan, Esq. and Margaret Banas, Esq. (Fisher
& Phillips), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in San Jose, California, on July 12, 1991. The charge was
filed by Sanitary Truck Drivers & Helpers Local 350, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL–CIO (the Union) on Janu-
ary 24, 1991. Thereafter, on March 29, 1991, the Regional
Director for Region 32 of the National Labor Relations
Board (the Board) issued a complaint and notice of hearing
alleging violations by Waste Management of Santa Clara
Co., Inc., d/b/a Recycle America (the Respondent) of Section
8(a)(1) of the National Labor Relations Act, as amended (the
Act). On June 28, 1991, the Regional Director issued an
amendment to complaint. The Respondent’s answers to the
complaint and amended complaint, duly filed, deny the com-
mission of any unfair labor practices.
The body of the charge alleges violations of Section
8(a)(1) of the Act as follows:
During the course of an election campaign related to
Case No. 32–RC–3344 the employer has interfered with
the freedom of the employees to make a fair choice of
representation by unilaterally granting a wage increase,
by making threats of retaliation in the event the union
were to win the election, and by threatening punitive
action against employees because of their support for
the Union.
The original complaint, in pertinent part, alleges that the
Respondent, at an employee meeting, solicited employee
grievances and promised to remedy them, in order to under-
mine employee support for the Union. The amendment to the
complaint, in pertinent part, alleges that on various other oc-
casions the Respondent interrogated employees concerning
their and other employees’ union sympathies and activities;
solicited grievances from employees and solicited the em-
ployees to solicit grievances from other employees and
impliedly promised to remedy the grievances in order to dis-
courage employee support for the Union; and solicited em-
ployees to campaign against the Union in order to undermine
employee support for the Union.
The parties were afforded a full opportunity to be heard,
to call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel
and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with an office
and place of business located in San Jose, California, where
it is engaged in the business of collecting recyclable or other
refuse materials pursuant to a contract with the city of San
Jose, California. In the course and conduct of its business op-
erations the Respondent annually purchases and receives
goods or services valued in excess of $50,000 from suppliers
located outside the State of California.
It is admitted, and I find, that the Respondent is now, and
at all times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the above-named Union is,
and at all material times has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are (1) wheth-
er the complaint, as amended, should be dismissed on proce-
dural grounds because, as alleged by the Respondent, it bears
a legally insufficient relationship to the underlying charge,
and (2) whether the Respondent engaged in conduct violative
of Section 8(a)(1) of the Act.
B. The Facts
The alleged conduct violative of Section 8(a)(1) of the act
occurred during a preelection campaign. The charge was
filed the day before the scheduled election. The election was
held on January 25, 1991, and the ballots have been im-
pounded pending a resolution of the instant unfair labor prac-
tice charges.
John Cook, a current employee, has worked for the Re-
spondent as a route driver for 4 years. Cook testified that fol-
lowing the filing of a representation petition by the Union on
November 7, 1990,1 the Respondent conducted a series of
approximately 10 employee meetings. The first meeting was
held approximately 2 weeks after the petition was filed.
About 35 or 40 employees were in attendance. Frank
Barbera, human resources employee relations manager for
Waste Management of North America, the parent corporation
of the Respondent, conducted the meeting for the Respond-
ent.
According to Cook, Barbera began the meeting by stating
that he understood that some of the people wanted to join
the Union, and he was there to rectify any problems that we
had; he wanted the employees to tell him their problems, ‘‘so
this wouldn’t occur.’’ One employee described a situation in-
volving a racist remark from a supervisor. Barbera, according
to Cook, seemed ‘‘kind of shocked’’ that something like that
had occurred. Several employees complained about unequal
distribution of routes, and Barbera said, ‘‘I will see what I
53RECYCLE AMERICA
can do.’’ Cook complained that employees did not receive
enough sick leave, and Barbera made no reply. Barbera ap-
peared to be writing down the employees’ concerns on a note
pad. Cook recalled no further complaints or items brought up
by the employees during the hour-long meeting, although he
testified that almost the entire meeting was taken up by em-
ployees who aired their grievances. Cook initially testified
that at the conclusion of the meeting Barbera said he would
see what he could do about the problems presented; on cross-
examination Cook testified that Barbera said he would look
into those issues, and did not say that he would do anything
else.
Cook testified that he had three meetings with Barbera
thereafter. The meetings were held in the operations man-
ager’s office, and no one else was present other than Cook
and Barbera. The first such meeting was held about 1 week
following the aforementioned group meeting. It lasted ap-
proximately 30 to 45 minutes. On that occasion, Barbera ap-
proached Cook in the plant area and said that he wanted to
talk to him after work. When Cook met with Barbera in the
operations manager’s office after work, Barbera at first asked
Cook how his family and children were doing. Then he
asked, according to Cook, ‘‘if he was losing it.’’ Cook asked
what he was talking about, and Barbera answered, ‘‘Losing
the election.’’ Cook said, ‘‘You know, Frank, I can’t tell you
things like that.’’ Then Barbera asked, ‘‘Why did the guys
want to go Union?’’ Cook replied that the employees had no
choice because of all the problems they have been having.
Barbera then asked him ‘‘to go talk to the guys and ask them
not to vote union.’’ Cook said he would see what he could
do. There was some discussion about changes in work rules,
and Cook requested a copy of the Company’s work rules.
Barbera said he would provide them. Barbera asked, accord-
ing to Cook, ‘‘how many people wanted to join the union
and all this?’’ Cook was unable to specifically recall
Barbera’s words, and did not testify that he made any reply
to this question.
The second meeting occurred about 2 weeks later. It also
lasted between 30 to 45 minutes. Barbera again began the
conversation by asking how Cook’s family was doing. He
then asked ‘‘if the guys were going to vote union.’’ Cook
replied that he couldn’t tell him that, and Barbera got kind
of upset. He asked, ‘‘Who started all this? Who called the
union for them to give out cards?’’ Cook said he did not
know. Then Barbera asked what he could do so that the em-
ployees would not go union. Cook said he did not know.
Then, according to Cook, Barbera ‘‘asked me to go up to the
employees and ask them for their demands. And he was
going to have a written contract with the employees. Maybe
that would have helped it out.’’ Cook said he would see
what he could do. Barbera also told Cook to, ‘‘See what de-
mands they needed,’’ and find out ‘‘stuff that was wrong
with the company.’’ Cook did not tell him that he would fol-
low his instructions.
On cross-examination, Cook testified that after the point in
the aforementioned conversation when Barbera became no-
ticeably upset, Barbera said that Cook could tell him any-
thing because it would be confidential. Cook replied, ‘‘I still
can’t tell you that.’’ Further, he asked Cook to ‘‘go to the
guys, get a list of demands, and bring them back to him.’’
The third and final meeting took place about 10 days later,
perhaps about the first week of December. It lasted only
about 10 minutes. Barbera asked Cook how he (Barbera) was
doing. Cook replied that he thought Barbera was ‘‘losing it.’’
Barbera said, ‘‘Well, I guess I will have to try harder.’’
On cross-examination Cook denied that he was one of the
chief spokesmen for the Union, or that he was an open and
active supporter of the Union. Rather, he did not express his
opinion one way or the other during the election campaign.
He has known Barbera for approximately 3 years, but has
not spoken to Barbera until the union campaign in Novem-
ber. Up to that point he had seen Barbera only about two or
three times as Barbera was walking around in the building
talking to employees. He did not recall talking to Barbera
about any complaints or problems at work prior to Novem-
ber, and did not learn until November that Barbera’s function
was that of an intermediary between the employees and the
local management.
William Judd, a current employee, has worked for the Re-
spondent for 2 years as a commercial driver. Judd testified
that the Respondent held about four or five employee meet-
ings. At the first meeting in mid-November, attended by
about 35 or 40 employees out of a total employee com-
plement of 50 employees, Barbera said that he had heard that
the employees had signed cards to become Teamsters, and
that ‘‘he was there to try to rectify any problems so that we
wouldn’t go union.’’ He asked what the problems were, and
some of the employees brought up various concerns. One of
the employees talked about a racial slur made by a super-
visor. Barbera was astonished and said that was wrong. He
wrote something down on his note pad. Two or three drivers
mentioned that their particular routes were too burdensome,
and that they wanted a wage increase. Barbera said that he
would look into it. Judd mentioned that he thought he was
working too many hours, that the manager of the facility had
yelled at him one morning without justification, and ‘‘a few
other things.’’ Barbera, who appeared to be writing down all
the employees’ complaints on a note pad, commented to
Judd that Judd apparently wanted more respect from his su-
pervisor. Judd agreed. Barbera also said, according to Judd,
that the employees ‘‘didn’t have to go union. That we should
keep an open mind about the union thing. That we didn’t
necessarily need to go union. That it was his job to take care
of these things.’’ When asked whether Barbera at any time
said what he was going to do about the matters raised by the
employees, Judd testified that, ‘‘He was going to investigate
it, I guess. That’s the way I took it.’’
Judd testified that he met Barbera at a meeting about a
month to 6 weeks after Judd began working for the Respond-
ent. Barbera, at the meeting, asked all the employees how
everything was going, and wanted to know if everything was
okay. He said, ‘‘You know, that’s what I do. That’s why I’m
here. That’s my job.’’ Judd shook hands with him and intro-
duced himself after the meeting. Thereafter, Judd saw him at
the facility about every 3 months or so. He always came by
and was very friendly, and basically asked how things were
going. He would go around, shake hands, and talk to most
of the employees.
Judd testified that he believed that Cook was for the
Union. When asked whether Cook’s support for the Union
was ‘‘fairly open,’’ Judd replied, ‘‘Absolutely.’’ Judd testi-
fied that it was not until the first employee meeting in No-
vember that he learned that the Respondent had an 800 num-
ber for employees to call if they were having a problem.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Respondent conducted a number of em-
ployee meetings during which it presented its views about
unionization of the facility, there is no record evidence of
what transpired at any such meeting other than the first meet-
ing in November, discussed above.
Frank Barbera has worked for the Respondent’s parent
corporation, Waste Management of North America, since
1981. This corporation has 62,000 employees nationwide. It
purchased the Respondent in August 1986, at which time
Barbera met with the Respondent’s 11 or 12 employees and
advised them of the Company’s wage and benefits package.
Since 1982 the parent company has had a toll free 800 num-
ber for its employees. The number was established for the
purpose of enabling any employee to call the Oak Brook, Il-
linois corporate office with any of his or her concerns, in-
cluding personnel matters or complaints. The 800 number is
included in the monthly newsletter which is available to all
its employees. The newsletter, ‘‘WMI Report,’’ an eight-page
publication, contains a clearly defined box on the last page,
about 1 inch by 4 inches, with the heading in bold letters,
‘‘Hotlines for WMI Employees.’’ In the box are two 800
numbers, one called ‘‘Environmental, Health & Safety Hot-
line,’’ and the other called ‘‘Employee Assistance, Employee
Relations, Human Resources Hotline.’’
On being hired, employees are provided with an employee
handbook which is an informal guideline with general infor-
mation about the Company. The handbook outlines the steps
of a grievance procedure, and states that if an employee’s
grievance is not satisfactory settled, the employee may call
or write the Employee Relations Department; addresses and
phone numbers, including an 800 number, are included.
Barbera testified that he visits the Respondent’s facility on
the average of two to three times a month. Each time he vis-
its the facility he has discussions with employees with re-
spect to their problems. In the event that the employees are
dissatisfied with local management’s resolution or handling
of problems or grievances, they may either approach him
personally when he is at the facility, or they may reach him
through the 800 number, and Barbera will act as a conduit
to local management in an effort to attempt to resolve the
matter. Barbera testified at length to various matters that
were brought to his attention by employees, and that he, in
turn, attempted to resolve. Such matters included personality
conflicts among employees, job advancement and job oppor-
tunities within the Company, harassment by local super-
visors, withdrawing money from the Respondent’s profit
sharing fund, not being compensated for showing up to
work, route imbalances among employees, management’s re-
fusal to reemploy an employee after promising him reem-
ployment in the event another job did not work out, failure
to be paid the proper rate of pay, refusal of management to
assign an employee to his original route when he returned
from leave after an accident, an employee’s termination due
to excessive accidents, and wages and benefits in general.
Many of the same aforementioned grievances or problems
were brought to his attention by various employees, and he
would handle them individually.
Barbera testified that John Cook approached him shortly
after Cook was hired in 1987, and wanted to know why
some employees were not receiving overtime pay when they
finished their 8 hours of work and were thereafter assigned
to help on another route. Barbera looked into the situation,
and the employees were given reassignment pay. During the
time Barbera was investigating the matter, but prior to any
resolution, he told Cook that Cook could ‘‘probably look for-
ward to seeing something happen at some time.’’ Cook, ac-
cording to Barbera, expressed another concern, along with
other employees, regarding the balancing out of the routes.
Barbera told Cook he would look into the matter. Barbera
testified that between the time Cook began working for the
Respondent and the beginning of the union organizing cam-
paign in November, Barbera has had between 5 and 10 face-
to-face conversations with Cook about various matters.
Barbera testified that on occasions when the Respondent
was conducting its scheduled safety meeting, Barbera would
ask the safety director to permit him time to talk to the as-
sembled employees. He asked the employees how things
were going, and, ‘‘You know, just general, just trying to get
them to open up a little bit and to talk.’’ Other than occa-
sions when employees were gathered for group safety meet-
ings, Barbera would just walk through the plant and talk with
people individually.
In February 1988, Barbera conducted an attitude survey
among the employees. The ‘‘Employee Opinion Survey’’ has
a title sheet stating:
The work you do is important to you and our Com-
pany. Your opinions, comments and suggestions about
your work are important in determining our Company’s
success. This questionnaire is to assess how you see
your work.
. . . .
This survey is completely anonymous. Replies will
be held in the strictest confidence. You will receive a
general report on the survey findings.
The survey is a lengthy 3-page document containing 20 ques-
tions that may be answered ‘‘Yes,’’ ‘‘No,’’ or ‘‘?,’’ and con-
taining 11 additional questions with space provided for writ-
ten answers or comments. The survey is comprehensive, and
all phases of the employee-management relationship are ad-
dressed. Barbera testified that as a result of the survey he
recommended certain changes to management, namely a
more involved effort by local management in responding to
the employees’ concerns. He also advised the employees of
the results of the survey.
Barbera testified that in mid-November, he held a meeting
with all the Respondent’s hourly employees. There were be-
tween 50 and 55 people in the room. He advised them that
the Company had received a representation petition filed
with the National Labor Relations Board, that at least 30 per-
cent of the employees must have signed union cards indicat-
ing that they were desirous of having a union, and that he
hoped they knew what they were signing. He told the em-
ployees that there are various reasons why employees turn to
unions, namely, problems with wages, benefits, promotional
policy or practice, and job security; however he did not
know what problems they were concerned about. He said
that employees had not been coming to him as they had in
the past, and he therefore assumed that everything was okay;
but that this clearly was incorrect as there is a clear message
that things are not okay when people want to turn to a third
party to try to get internal matters resolved. At that point,
one employee said, ‘‘Well, you can’t do anything.’’ Barbera
55RECYCLE AMERICA
replied that, ‘‘That’s not true. Because there’s people in the
room . . . that we have responded to and for the most part
resolved some of these things.’’ Then one driver, who was
upset about a racial slur by a supervisor, stated his com-
plaint. This, according to Barbera, ‘‘open[ed] the floodgates’’
and prompted a number of complaints from other black em-
ployees with similar allegations. Then employees mentioned
the route imbalance, wage matters, and other items, including
the contention that Barbera had not been around as much. In
response to the latter remark, one employee said that was not
correct, and that, ‘‘you guys have had an opportunity to talk
to this guy for years. He’s been around for years.’’ Barbera
testified that he wrote down the items when they were
brought up as he did not want to forget any of them. Barbera
said he would look into the matters the employees had
raised.
Barbera testified that he had only one meeting with Cook
in the operations manager’s office. The meeting came about
in early to mid-December, when Cook approached him in the
warehouse and asked how soon the Respondent could get
‘‘other matters’’ fixed. Barbera asked him what he was talk-
ing about, and Cook said that he understood that Supervisor
Jeff Harrison, who had been accused of making the afore-
mentioned racial slur, had been transferred to another of the
Respondent’s facilities as a result of the complaints against
him. Barbera invited Cook upstairs to the manager’s office,
as the warehouse floor was not a convenient place for a con-
versation.
In the manager’s office, after some discussion of the Har-
rison matter, Cook again asked how soon the other matters
that had been brought up in the meeting could be fixed, and
specifically referred to the imbalanced routes and the wage
increase that they did not receive in January. Barbera told
him that, ‘‘The other matters can’t get fixed’’; and he ex-
plained that the Respondent would have to wait until the
union situation was resolved one way or the other before it
could look into those things more thoroughly, because he
didn’t want it to be perceived that the Respondent was trying
to buy the favor or the vote of any employee. There was
more discussion of the Harrison matter, and Cook said he
hoped that Harrison, who was Cook’s immediate supervisor,
didn’t lose his job. Cook asked if the Respondent had con-
tracts with employees at nonunion facilities, and whether the
employees could get something in writing. Barbera replied
that the Company does have such contracts at nonunion fa-
cilities, but not within California. There was discussion about
what such a contract may contain, and Cook said that he
would like to see one. Barbera does not recall Cook asking
for a copy of the Respondent’s work rules. There was some
talk about Cook’s family, and Barbera asked Cook how his
bike riding was coming along, as he knew that Cook was in-
terested in this activity. The conversation lasted about 30
minutes.
The next conversation occurred in early January 1991.
Barbera hopped up on the running board of Cook’s truck and
asked him how things were going. He told Cook to ‘‘keep
an open mind on this thing,’’ referring to the representation
election which was scheduled for January 25, 1991. They
discussed the union situation for about 5 to 8 minutes.
Barbera testified that during the union campaign he believed
that Cook was an open supporter of the Union because, on
one earlier occasion Cook mentioned that his father was the
shop steward for Teamsters Local 350 at the Respondent’s
Comstock facility, located about 10 minutes away, and Cook
seemed to be very proud of this fact. During the instant con-
versation, Barbera told Cook that, ‘‘Just because Comstock
employees have certain benefits and work under certain rules
and conditions, that doesn’t mean it’s going to carry over to
[the Respondent].’’ There was further discussion about the
Union and the negotiating process, and Cook said that he
was going to ‘‘give it [the union] a try.’’
On another occasion, Barbera was talking to another em-
ployee outside the building. Cook came by and yelled some-
thing like, according to Barbera, ‘‘You are still putting out
your bullshit, Frank.’’ Barbera said, ‘‘Yes, come over here,
John, you might learn something.’’ Cook came over and lis-
tened for awhile and then walked away. There were no fur-
ther meetings or conversations with Cook.
Barbera testified that at no time did he ask Cook how the
Company was doing with regard to the election campaign, or
if the Company was losing the election, or whether the em-
ployees intended to vote the Union in, or why Cook wanted
the Union. He did not request Cook to get other employees
to vote against the Union, or promise that any changes for
the better would be made if the Union went away. And he
did not ask Cook to report to him about what benefits the
other employees wanted, or ask him who started the Union
or called the Union.
Barbera acknowledged that the employees were given a
wage increase in January 1991, prior to the Board election
which was held on January 25, 1991; they had been given
a bonus check in June 1990, at which time they were also
told that they would be receiving a wage increase in January
1991. Barbera was questioned on cross-examination about his
statement to Cook that nothing could be done about wages
and other matters at that time because of the pendency of the
election. Barbera at first said that wages were not foremost
in Cook’s mind at the time; he then testified that he may
have said that to Cook, but he doesn’t recall saying it, and
he did not recall Cook saying anything about wages particu-
larly; then he acknowledged that he had testified earlier that
Cook did bring up the subject of wages, and testified that,
‘‘realizing his personality and his being supportive of the
union, I was very select in what I said, particularly to him
at that meeting. I knew there was going to be something hap-
pening in January. I didn’t want to tell him that and have
him think that we are doing it only because trying [sic] to
buy his vote and other people’s.’’
Regarding Cook’s support of the Union, Barbera testified
that Cook told him this prior to any union activity; he also
testified, however, that Cook’s support of the Union came up
‘‘more directly’’ during the conversation on the runningboard
of Cook’s truck, when he reiterated the fact that his father
was happy with being a union member at the Comstock fa-
cility, and he was going to give it a try. Barbera testified on
redirect that at the first employee meeting in mid-November,
Cook demonstrated his union support when he asked why the
vacation policy at the Comstock yard was more generous
than at the Respondent’s plant. Barbera replied that, ‘‘that’s
what was negotiated for.’’ Cook then said, ‘‘Well, that’s
what we’ll negotiate when the union comes in.’’ He also said
that he and Cook never specifically discussed wage in-
creases.
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cook, called by the General Counsel as a rebuttal witness,
testified that he at no time had any conversation with
Barbera concerning the fact that his father was a union stew-
ard at another facility operated by the Respondent; that he
had no conversation with Barbera on any occasion when
Barbera hopped on the runningboard of his truck; and that
he did not recall any occasion when he told Barbera to
‘‘knock off the bullshit’’ while Barbera was conversing with
other employees. Further, Cook testified that he was ‘‘pretty
sure’’ that Barbera, as well as everyone else, knew that his
father was a union steward. Regarding the various alleged
conversations on prior occasions which Barbera mentioned,
Cook testified that he never had any conversation with
Barbera concerning the reassignment pay issue in November
or December 1987; nor did he have a conversation with him
in 1988 regarding the route balancing matter.
Vincent Parker, a current employee, has worked for the
Respondent for 18 months. He has picked up copies of the
Respondent’s monthly newsletter at the facility, and is aware
of the 800 number which, according to Parker, is for anyone
who has problems that cannot be resolved. He called the
number on one occasion to get some specific information
about a different job (the sending of employees to Kuwait for
cleanup operations). He was told about the 800 number on
being hired, and the number is also posted in the breakroom
in the plant. Parker testified that Barbera comes to the plant
about once or twice a month, and that he has spoken to
Barbera on various occasions about work-related problems.
On one occasion, about 3 months after he was hired, he
phoned Barbera about a serious problem involving a con-
frontation with another driver and a supervisor. The problem
was resolved. On another occasion his complaint resulted in
a meeting with Barbera and various employees at the plant.
It, too, was resolved. Parker also suggested to other employ-
ees that they could call Barbera about their problems. Parker
testified that during the union campaign he believed that
Cook supported the Union because Cook talked about the
benefits of the Union and told him that his father was in-
volved with a union.
Richard Saiz Jr., a current employee, has worked for the
Respondent about 4 years. When the predecessor company
was purchased by the Respondent’s parent company, the em-
ployees and their families were invited to a dinner meeting
attended by various company executives. The assembled em-
ployees were advised by labor relations representatives of the
800 number they could call; and Barbera explained to Saiz,
personally, that if he had any problems he should call him
or get in touch with him. Barbera comes to the facility about
once a month, and Saiz has spoken to him about problems
that were on his mind at the time. John Cook told Saiz, as
a friend, that he was in favor of the Union. He also told him
that his father was a union official or steward at another of
the Respondent’s facilities.
Juan Corrales, currently a first-line supervisor, corrobo-
rated the testimony of the foregoing witnesses regarding
widespread use by employees of the 800 number and of their
communications with Barbera regarding problems that were
not able to be resolved without Barbera’s intervention.
Corrales also testified that Cook had mentioned to him prior
to October, when he became a supervisor, that Cook thought
it would be a good idea if the Company went union. How-
ever, after October, when Corrales became a supervisor, he
had no further conversations with Cook about the Union, and
Cook ‘‘wouldn’t even hardly’’ talk in front of him thereafter.
C. Analysis and Conclusions
The Respondent, citing Nickles Bakery of Indiana, 296
NLRB 927 (1989), and Nippondenso Mfg. U.S.A., 299 NLRB
545 (1990), maintains that the complaint should be dismissed
because the allegations of the complaint and amended com-
plaint are not sufficiently related to the allegations of the
charge filed by the Union.
The charge in this proceeding alleges that ‘‘[d]uring the
course of an election campaign related to Case No. 32–RC–
3344 the employer has interfered with the freedom of the
employees to make a fair choice of representation’’ by grant-
ing a wage increase, and by threatening employees with re-
taliation and punitive action. The complaint and amended
complaint contain no such allegations. Rather, the complaint
alleges that the Respondent interrogated employees regarding
their union activity and the union activity of other employ-
ees, solicited grievances from employees and impliedly
promised to remedy them, solicited employees to solicit
grievances from other employees and impliedly promised to
remedy them, and solicited employees to campaign against
the Union.
The allegations of the complaint clearly bear no specific
relationship to the allegations of the charge. However, both
the charge and the complaint allege that the Respondent has
committed violations of Section 8(a)(1) of the Act; and such
violations occurred, as the charge specifically states,
‘‘[d]uring the course of [the instant] election campaign.’’
In Well-Bred Loaf, Inc., 303 NLRB 1016 fn. 1 (1991), the
Board determined, in similar circumstances, that there was
‘‘a sufficient nexus between the allegations in dispute and
the charge allegations because they all occurred within the
same general time period and concern conduct which con-
stitutes an overall plan to resist the Union.’’
I find the Board’s rationale in Well-Bred Loaf, supra, to
be controlling in the instant situation, and therefore I con-
clude that the Respondent’s contention that the complaint
and amended complaint be dismissed on this procedural
ground is without merit. I find no merit in the Respondent’s
argument that Well-Bred Loaf is distinguishable from the in-
stant case on the basis that the charge and complaint in the
cited case are more closely related. The Board did not ana-
lyze the specific relationship between the allegations of the
charge and those of the complaint and conclude that they
were closely related; rather, the Board determined that, gen-
erally, the charge and complaint alleged violative conduct
within the limited timeframe of an antiunion campaign. Such
is the relationship between the charge and complaint in the
instant case.
Abundant record evidence establishes that Human Re-
sources Employee Relations Manager Barbera acted as a type
of ‘‘ombudsman’’ as a buffer between employees and local
management, and that he has been actively engaged in this
endeavor for approximately 4 years prior to the instant union
campaign. He has solicited employee complaints and griev-
ances in the past, and has told employees that he will look
into them, and, on occasion, he has resolved them. Further,
such solicitation of grievances has occurred during the course
of group meetings as well as during one-on-one conversa-
tions with employees whom he happens to encounter as he
57RECYCLE AMERICA
tours the facility. In addition, the employees have been clear-
ly apprised of the fact, through the employee handbook,
monthly newsletters, and a notice posted on the bulletin
board, that they may approach higher management with their
concerns by dialing a toll free 800 number.
The meeting conducted by Barbera in mid-November was
unlike prior meetings in that it was initiated by the Respond-
ent in direct response to the Union’s filing of the representa-
tion petition. Barbera, during the course of his remarks, ad-
mittedly expressed concern about the attempt to organize the
employees, and wondered why the employees were seeking
union representation in an environment where their griev-
ances and concerns could be brought to the attention of man-
agement. He also asked what their concerns were, made
notes of the employees’ responses, and said that he would
look into them. However, he made no explicit promises to
resolve any of the matters raised by the employees.
The General Counsel argues that under the foregoing cir-
cumstances it was reasonable for employees to believe that
the juxtaposition of Barbera’s remarks with the filing of the
representation petition and the commencement of the Re-
spondent’s antiunion campaign connoted an implied promise
to actively remedy certain concerns of the employees. I con-
clude, however, that the solicitation of grievances by
Barbera, either on an individual basis or, occasionally, at
group meetings, was not an extraordinary occurrence which
would reasonable cause the employees to believe that their
grievances and concerns would be treated any differently
than they had been in the past; it appears that Barbera’s re-
marks at the meeting, including his remark that he would
look into the matters presented, were similar to and consist-
ent with his prior handling of matters brought to his attention
by the employees. In this regard there is some discrepancy
in the record regarding Barbera’s precise remarks; employees
Cook and Judd both testified that Barbera initially said he
was there to ‘‘rectify’’ the employees’ concerns, and that
Barbera also said he would ‘‘look into’’ them. This seems
to indicate that the employees understood Barbera to be say-
ing that he would look into the matters raised by the employ-
ees and that he would resolve them if it was feasible to do
so. Such statements, considered in context, do not appear to
connote a promise that the employees’ current concerns
would be treated any differently than they had in the past.
In Butler Shoes New York, 263 NLRB 1031, 1032–1033
(1982), the Board stated:
Nor do we find merit in the General Counsel’s excep-
tion to the Administrative Law Judge’s failure to find
that Lastinger’s October 4 speech contained unlawful
solicitations of grievances. Lastinger reminded employ-
ees of Respondent’s existing ‘‘open door policy where-
by the employees are encouraged to take up any prob-
lems that they may have relating to their employment
with their supervisor’’ or with higher management, and
stated that ‘‘Management sincerely wants to know what
its employees are thinking and feeling because it feels
that the comments and questions of the employees
serve as guideposts.’’ Boroughs echoed the substance of
these remarks. Solicitation of grievances, however, is
unlawful when it is a form of promise of benefit for re-
jecting a union and, therefore, may be violative when
it expressly or impliedly includes a promise to redress
such grievances as are submitted. Here, Respondent an-
nounced no new policy and did not imply that its re-
sponse to grievances would change. Accordingly, it
acted lawfully. Cf. Chester Valley, Inc., 251 NLRB
1435, 1447–1448 (1980). [Footnote omitted.]
See also Logo 7 Inc., 284 NLRB 204, 205 (1987).
On the basis of the foregoing, I shall dismiss this allega-
tion of the complaint.
The testimony of Cook and Barbera is diametrically op-
posed. The only seeming area of agreement between them is
the acknowledgment that there were three conversations; the
contents and even the locations of the conversations are in
dispute.
Cook’s testimony that he had seen Barbera around the fa-
cility only two or three times during the years he had been
employed, that he did not know Barbera’s purpose for being
there, and that he was not an active union adherent, seems
questionable when compared with the testimony of the other
employees, whom I credit. Moreover, it seems unlikely that
Barbera would have continued to enlist Cook’s cooperation
in combating the Union after Cook refused, at the outset of
the initial conversation, to answer Barbera’s question and re-
sponded that ‘‘You know, Frank, I can’t tell you things like
that’’; and it also seems unlikely that Barbera would, with
no overtures from Cook, single Cook out as an emissary to
solicit information from the employees and report back to
Barbera. Cook did not testify that he told any other employ-
ees about his alleged conversations with Barbera. Further,
there is no evidence that Barbera approached any other em-
ployees with similar requests, or that the Respondent en-
gaged in other acts of unlawful conduct during the election
campaign. While Cook did not appear to have a comprehen-
sive recollection of everything discussed during the first two
30- to 45-minute conversations, and merely summarized
them in abbreviated fashion, his testimony remained consist-
ent throughout substantial cross-examination, and he ap-
peared to be testifying in a forthright manner.
On the other hand, while Barbera, during his direct exam-
ination, displayed a particularly comprehensive recollection
of the conversations he allegedly had with Cook, the record
evidence demonstrates inconsistencies in his testimony; thus,
on cross-examination, he appeared to exhibit no hesitancy in
changing and embellishing his testimony.
There appears to be no reason why Cook, who has worked
for the Respondent for 4 years, would deliberately fabricate
his testimony, and his consistency and ostensible, albeit ab-
breviated, recollection of the conversations indicate that such
or similar conversations did occur. Although Cook’s versions
of the various conversations seem unlikely, as noted above,
this does not mandate the conclusion that Cook is not to be
believed. Thus, the record demonstrates that Barbera is a di-
rect, effusive, and spontaneous individual who, during the
course of one-on-one conversations with Cook, may not have
hesitated to express what was on his mind in no uncertain
terms, regardless of Cook’s reluctance to answer his ques-
tions. Moreover, and of considerable significance, is the fact
that Cook’s testimony remained consistent, while Barbera
changed his testimony with some facility, as shown above,
and thus demonstrated that he was not reluctant to tailor his
testimony to fit a different scenario.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
In assessing witness credibility, I am mindful of the
Board’s guidance that current employees are not likely to
fabricate their testimony. S. E. Nichols, Inc., 284 NLRB 556
fn. 2 (1987); Roadway Inn of Las Vegas, 252 NLRB 344,
346 (1980).
On the basis of the foregoing, I shall credit Cook’s testi-
mony. I therefore conclude that Barbera made the statements
attributed to him by Cook. Thus, I find that Barbera interro-
gated Cook about his union activity and the union activity
of other employees, solicited grievances from Cook and re-
quested him to solicit grievances from other employees, and
encouraged Cook to campaign against the Union. The Re-
spondent has not demonstrated that such requests by Barbera
to Cook, who expressed his reluctance to answer Barbera’s
questions or to otherwise cooperate with Barbera, were non-
coercive in nature. Under the circumstances, I conclude that
such interrogation, solicitation of grievances, and encourage-
ment of Cook to campaign against the Union, constitute un-
lawful conduct violative of Section 8(a)(1) of the Act. See
Rossmore House, 269 NLRB 1176, 1177 (1984), affd. 760
F.2d 1006 (9th Cir. 1985); Color Tech Corp., 286 NLRB
476 (1987); Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has engaged in violations of Section
8(a)(1) of the Act as found.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, I recommend that it be required to cease
and desist therefrom and in any like or related manner inter-
fering with, restraining, or coercing its employees in the ex-
ercise of their rights under Section 7 of the Act. Moreover,
the Respondent shall be required to post an appropriate no-
tice attached as an appendix.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Waste Management of Santa Clara Co.,
Inc., d/b/a Recycle America, San Jose, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
union activity and the union activity of other employees.
(b) Soliciting grievances from employees and impliedly
promising to remedy the grievances.
(c) Soliciting employees to campaign against the Union in
an effort to undermine support for the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Respondent’s San Jose, California facility
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent’s authorized
representative, shall be posted immediately upon receipt and
maintained by the Respondent for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate employees about their
union activity or the union activity of other employees.
WE WILL NOT solicit grievances from employees and
impliedly promise that we will resolve their grievances in
order to discourage their support for the Union.
WE WILL NOT solicit employees to campaign against the
Union in order to undermine support for the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WASTE MANAGEMENT OF SANTA CLARA CO.,
INC., D/B/A RECYCLE AMERICA