Romar Refuse Removal

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 658 (N.L.R.B. 1994)

658
314 NLRB No. 107
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We have also reviewed the record and find no merit in the Re-
spondent’s contention that the judge demonstrated bias against the
Respondent.
In the remedy section of the judge’s decision, we note that the
judge inadvertently stated that the physical confrontation between
Supervisor William Rombauts III and employee David Bailey oc-
curred ‘‘prior to’’ the discharge of Bailey, when in fact the con-
frontation occurred after the discharge.
2 The judge’s recommended Order failed to include a cease-and-
desist order concerning the discriminatory discharge, suspension, and
reduction in work hours of employees. We have modified the rec-
ommended Order to add this remedy.
Romar Refuse Removal, Inc. and Local 813, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 29–CA–15583, 29–CA–15788, 29–CA–
16554, and 29–CA–16911
July 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On January 28, 1994, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Romar
Refuse Removal, Inc., Copiague, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph 1(k) and reletter
the subsequent paragraph.
‘‘(k) Discharging, suspending, and reducing the
work hours of employees because they support the
Union, and because they participate in Board pro-
ceedings or refuse to withdraw charges filed with the
Board.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate our employees
concerning their activities on behalf or in support of
Local 813, International Brotherhood of Teamsters,
AFL–CIO (the Union), or concerning information that
our employees supplied to the National Labor Rela-
tions Board (NLRB), or concerning how our employ-
ees intend to testify at an NLRB trial.
WE WILL NOT confiscate union literature or author-
ization cards from our employees, or order and instruct
our employees to turn over such material to us.
WE WILL NOT solicit grievances from our employees
and implicitly promise to remedy such grievances.
WE WILL NOT threaten our employees with dis-
charge, layoff, or other unspecified reprisals if the em-
ployees engage in activities on behalf of or in support
of the Union, or if such employees testify at or partici-
pate in proceedings at the NLRB or the New York
State Department of Labor (DOL).
WE WILL NOT condition the reinstatement of our
employees on their agreement to refrain from engaging
in activities on behalf of or in support of the Union,
or to refrain from participating in or to withdraw from
NLRB or DOL proceedings, or to furnish us with a
copy of their NLRB statements.
WE WILL NOT promise or grant our employees wage
increases or any other benefits, conditioned on the em-
ployees providing us with a copy of their NLRB state-
ments.
WE WILL NOT order, demand, or instruct our em-
ployees to furnish us with a copy of statements given
by employees to the NLRB, or to drop or withdraw
charges filed with the NLRB, or to make changes in
statements given to the NLRB.
WE WILL NOT inform our employees that any money
they receive as a result of DOL or NLRB proceedings
will be applied to child support payments.
WE WILL NOT order, demand, or instruct our em-
ployees to take off a few days and to refuse to testify
at NLRB proceedings, and WE WILL NOT promise to
keep jobs open for employees who do not testify.
WE WILL NOT assault our employees because they
engage in activities on behalf of or in support of the
Union, or participate in or testify at NLRB or DOL
proceedings.
WE WILL NOT discharge, suspend, or reduce the
work hours of employees because they support the
659ROMAR REFUSE REMOVAL
1 All dates hereinafter are in 1991, unless otherwise indicated.
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved, my findings are based on
my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Accordingly, any testimony which is in-
consistent with or contrary to my findings is discredited.
Union, and because they participate in Board pro-
ceedings or refuse to withdraw charges filed with the
Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer David Bailey and William Clark full
and immediate reinstatement to their former positions
of employment, or if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights and privileges pre-
viously enjoyed.
WE WILL make whole Clark, Bailey, and King Sauls
for any loss of earnings and other benefits suffered by
them as a result of our discrimination against them
with interest.
WE WILL expunge from our files any references to
the discharges of Sauls, Bailey, and Clark, and notify
them in writing that this has been done, and that evi-
dence of these unlawful discharges will not be used by
us as a basis for future personnel action against them.
ROMAR REFUSE REMOVAL, INC.
James P. Keams, Esq. and Emily DeSa, Esq., for the General
Counsel.
Edward L. Wolf, Esq., of Hauppauge, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Local 813, International Brotherhood of
Teamsters, AFL–CIO (the Union) in Cases 29–CA–15583,
29–CA–15788, and 29–CA–16554, the Regional Director
issued complaints and notices of hearing on May 31, 1991,1
July 15 and May 13, 1992, respectively, alleging that Romar
Refuse Removal, Inc. (the Respondent) has violated various
sections of the Act.
A trial with respect to the issues raised by the complaints
was held before me on June 9 and 11, July 30, and October
1, 1992.
Thereafter, pursuant to charges and amended charges filed
in Case 29–CA–16911 by the Union, the Regional Director
issued a complaint and notice of hearing on November 25,
1992, again alleging that Respondent violated the Act.
By motion dated December 3, 1991, counsel for the Gen-
eral Counsel requested that Case 29–CA–16911 be consoli-
dated with the prior cases, and the prior hearing be reopened
in order to present testimony concerning the allegations in
Case 29–CA–16911. The Respondent did not oppose this
motion, which I granted by Order dated January 5, 1993,
which set a date of March 18, 1993, for the reopened hear-
ing, at which time the trial was resumed and concluded.
Briefs and/or memorandums in lieu of briefs have been
filed, and have been carefully considered. Based on the entire
record,2 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation with its principal
office and place of business at 55 Ralph Avenue, Copiague,
New York, where it is engaged in the business of collection
of trash from residential and business customers. During the
past year, Respondent derived gross revenues in excess of
$500,000, and purchased and received at its places of busi-
ness located in New York State, gasoline, truck parts and
other products, goods, and materials valued in excess of
$50,000 from other enterprises located within the State of
New York, each of which other enterprises had purchased
and received the products, goods, and materials directly from
points outside the State of New York.
Respondent admits, and I so find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is also admitted, and I so find that the Union is now,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. FACTS
Respondent’s two chief operating officers are Robert
Marx, its president, and William Rombauts Jr., its vice presi-
dent. William Rombauts III (the son of Rombauts Jr.) is an
admitted supervisor of Respondent under Section 2(11) of
the Act. Rombauts Jr. is sometimes referred to in the record
as ‘‘Big Billy,’’ or ‘‘Billy Senior.’’ Rombauts III is some-
times referred to as ‘‘Little Billy’’ or ‘‘Bill Junior.’’ For pur-
poses of this decision, I shall henceforth refer to William
Rombauts Jr. as Rombauts, and William Rombauts III as
Rombauts III or ‘‘Little Billy.’’
Respondent employed approximately 28 regular full-time
employees, as drivers or helpers, which job is also referred
to as back man. Respondent also utilized the services of an
undetermined number of employees who were employed on
a ‘‘shape up’’ basis. They had no regular position, and would
report to Respondent’s premises at 5 a.m. in the morning,
and would be employed only if one of Respondent’s regular
employees were unavailable or out of work.
William Clark was employed by Respondent as a driver on
its Huntington route. King Sauls and David Bailey were em-
ployed as backmen or helpers. All three were under the di-
rect supervision of Rombauts III, who was in charge of as-
signing the work to all of Respondent’s full-time and
shapeup employees.
On January 7, 1991, Robert Funk, a business agent for the
Union and two other union agents distributed union literature
and authorization cards to Respondent’s employees outside
of Respondent’s entrance gate as the employees were enter-
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing Respondent’s facility. The union agents handed out lit-
erature and cards to approximately 20 employees.
As employees were coming into the yard with the union
literature and cards, Rombauts III confiscated the literature
and cards from many of the employees. Rombauts III told
employee Sauls to give him the card, and with a number of
other cards in his hand, Rombauts III said to Sauls, some-
thing about these ‘‘blank, blank union people’’ while curs-
ing, and added that whoever takes these cards would be laid
off. Rombauts III also told Sauls that the employees didn’t
need the Union, and if there is anything they need, they can
come to him.
Rombauts III then approached Funk and attempted to re-
turn to Funk the cards and literature that he had confiscated.
Rombauts III said to Funk, ‘‘here, we don’t need this, take
this,’’ referring to the union materials in his hand. Funk re-
sponded, ‘‘no, that’s all right, I have plenty more.’’
Rombauts III said nothing further, and walked away.
William Clark, after receiving the union authorization
card, placed the card on a clipboard that he was carrying,
when he entered Respondent’s office later on that same after-
noon. Rombauts and Marx were present. Rombauts said to
Clark that if he was caught signing that union card, he would
be automatically fired.
The above findings with respect to the events of January
7 are based on the mutually corroborative and credible testi-
mony of Clark, Sauls, and Funk. I reject the contrived, gen-
eralized, and unconvincing testimony of Rombauts III that 15
employees voluntarily came to him and handed him the lit-
erature, saying ‘‘they are trying to bother us again.’’ I find
it highly improbable that this would happen, since if the em-
ployees felt they were ‘‘bothered’’ by the Union, they simply
could have refused to accept the literature, or thrown it away
themselves. I find no logical reason why 15 of them would
have given the materials to Rombauts III. I also reject
Rombauts IlI’s generalized denials that he never spoke to
anyone regarding union activities that day, or at an other
time. It is noteworthy that he did not specifically deny telling
Sauls, as I have found above, that whoever took cards would
be laid off.
On January 8, the next day, Clark, while out on his route
in Huntington, was approached again by Funk and given an-
other authorization card for the Union. Clark read the card,
signed it, and returned it to Funk.
On January 14, Sauls and Bailey were also approached by
Funk while on their routes, and they both signed authoriza-
tion cards for the Union at that time, and returned them to
Funk.
Shortly thereafter, Sauls, Clark, and another employee
were discussing the Union outside Respondent’s office. Sauls
was explaining why he felt that the employees needed a
union in the shop, and as the conversation concluded, Sauls
noticed Rombauts III standing behind him.
On January 17, 3 days after Bailey signed his authoriza-
tion card, Bailey was informed by Rombauts III that he was
fired. Bailey asked Rombauts III why, and Rombauts III re-
plied that Marx had informed him that Bailey was fired, and
‘‘we don’t need you anymore.’’ Later on that day, Rombauts
arrived and Bailey asked him how come he was fired.
Rombauts answered that Bailey worked too fast, and that he
got injured too much. Bailey replied that ‘‘that’s the dumbest
reason that I’ve ever heard.’’ Rombauts told Bailey that he
would speak to Marx and see what they can do. The next
day Bailey went to Respondent’s premises and spoke to
Marx. Marx refused to reconsider, and told Bailey that he
was fired because he worked too fast and the guys didn’t
want to work with him, and because he got injured.
Insofar as accidents were concerned, Bailey was injured on
August 10, 1990, when a piece of glass got in his eye. At
that time he was out of work on 8/10, 8/21, 8/22, and 8/23
as a result of this injury. On October 3, 1990, Bailey pulled
his shoulder on the job and was out of work on October 3,
4, and 5, brought in a doctor’s note, and was also paid by
Respondent for these days. In that connection, Bailey had
given a doctor’s note to Marx dated 10/4/90 saying that he
would be out of work from 10/4/90 to 10/9/90. When Bailey
returned to work on 10/10/90, Rombauts III told Bailey that
he was fired because he hadn’t let Respondent know what
was going on. Bailey and Rombauts argued about the inci-
dent. Later on that day when Rombauts came in, Bailey
showed Rombauts the note and explained the situation.
Rombauts overruled Rombauts IlI’s decision to fire Bailey,
but Bailey was not paid for nor did he work on that day.
Respondent’s policy is to give all employees 6 paid sick
days per year, and after that the employees are generally not
paid if they are out of work. If an employee is absent, Re-
spondent simply replaces them with one of the shapeup em-
ployees that are usually at the facility, waiting for an assign-
ment.
Marx testified that Bailey was terminated by Respondent
on January 17 or 18, 1991, because of his personal problems,
his excessive absences, and his being injured at times.
Rombauts testified that Bailey was terminated because he
was out 30 or 40 days throughout the year, he was late all
the time, and he kept getting hurt all the time. Rombauts III
testified that Bailey was out a lot of days, that he always got
hurt, came in late, and was very unreliable. He added that
employees had informed him that Bailey tried to work too
fast and that’s how he got hurt.
However, neither Marx, Rombauts, or Rombauts III testi-
fied as to who made the decision to terminate Bailey, or
when it or how it was made. Respondent’s records confirm
that from May 8 to December 29, 1990, Bailey issued work
for 40 days. However, the records also indicate that Bailey
was not absent from work on any further days prior to his
discharge on January 18, 1991, which was listed as Bailey’s
‘‘last date employed.’’ The records also show only a day of
lateness for Bailey, on December 12, 1990, for 2 hours.
On or about Friday, January 25, Sauls informed Rombauts
that his mouth was bleeding and he was in pain, and asked
for a day off to go to the dentist. Rombauts replied that he
could have the entire next week off. On Monday, February
4, Sauls was detained by the police because of a speeding
ticket. He called Respondent and informed Rombauts III.
Rombauts III told Sauls, ‘‘No problem, take care of your
business.’’ The next day, February 5, Sauls was informed by
Rombauts III and by Marx that he was fired for taking too
many days off.
Marx testified that Sauls was not fired, but that he just
stopped coming to work and had had some drug problems.
Rombauts on the other hand testified that Sauls was fired for
661ROMAR REFUSE REMOVAL
3 A position paper submitted by Respondent’s attorney to the Re-
gion also asserted that Sauls was fired for absenteeism.
absenteeism.3 Rombauts III testified that Sauls missed a lot
of days, came in late, was never there on time, and was very
unreliable. Once again, no testimony was offered by any of
Respondent’s witnesses as to who, when, and how the deci-
sion was made to terminate Sauls.
While Sauls admitted that Marx had warned him on sev-
eral occasions in 1990 that he should be coming to work on
a regular basis, Respondent offered no evidence that Sauls
was ever specifically warned that he would be disciplined or
terminated if he continued to be absent, and no evidence of
any discussion with Sauls by management officials con-
cerning absence in 1991.
Respondent’s records with respect to Sauls consist of two
pages, which are somewhat overlapping and contain several
crossouts. Thus, the first page, starts on 10/11/90, shows
lateness for that day, and then shows absences on October
22, November 29, December 1, 20, and 18 with a notation
‘‘pay 1/2 day for that date per Bill.’’ Then, on a line marked
2/4/91, the word ‘‘Fired’’ was written and crossed out, and
replaced by the words, ‘‘didn’t show up.’’ Then on the same
document, on lines after 2/4/91, eight additional absences are
listed between 1/2/91 and 2/1/91, and one lateness on
1/10/91.
The second document starts on 1/10/91 and states that
Sauls was late, listing 5:50 a.m. The next entry is for 1/8/91
and 1/24/91 as absences, and then another absence on
1/31/91 with a notation of fired next to that date, but then
crossed out. Then, the document lists absences on 1/2, 3, and
4/91 and absent from 1/28 to 2/1/91. Then on 2/4/91, the
word ‘‘Fired’’ appeared on that line, without any indication
as to whether Sauls was out on that day. Respondent pro-
vided no explanations for the discrepancies in these records,
or why there were two pages containing overlapping periods
for Sauls, or by whom or why the crossouts were made.
On February 22, Clark was informed by Rombauts and
Rombauts III that he was the last employee hired, and had
to be the first one to be let go. Rombauts told Clark that
Marx’s nephew was coming out of college and needed a job.
According to Marx, Clark had informed Respondent that
he intended to leave and go to Florida and gave it 2 weeks’
notice. At some unspecified point, Marx added that Respond-
ent replaced Clark as a driver. At another date also not speci-
fied by Marx, Clark changed his mind and told Respondent
that he was not going to Florida. Marx further testified that
after Clark told Rombauts that he wasn’t going to Florida,
‘‘we offered him to stay and work at doing other jobs and
he didn’t want to do that.’’ Significantly, Marx did not tes-
tify that he had made such an offer to Clark, or that he was
present when this conversation allegedly occurred. Rombauts
did not testify concerning the decision to discharge Clark.
Rombauts III also furnished no testimony as to why Re-
spondent decided to terminate Clark, although he did testify
that Clark ‘‘had a lot of accidents, was unreliable, and didn’t
come to work a lot.’’ He also added that Clark was 2 hours
slower than normal in picking up trash, and Respondent re-
ceived complaints from the town about Clark missing stops.
Notably, no testimony was offered by Marx, Rombauts, or
even by Rombauts III, than Clark’s accidents, not coming to
work, slow work, or complaints from the town about him,
had any bearing on Respondent’s decision to terminate Clark.
The position paper submitted by Respondent’s attorney
states that in early February, Clark gave Respondent 2
weeks’ notice of his intention to move to Florida. It further
alleges that Respondent offered his position to a shapeup em-
ployee on February 8, and that on February 18, Clark told
Rombauts III that he was not leaving, and that Rombauts III
transmitted this message to Rombauts, who according to the
position paper, on Friday of that week, terminated Clark
‘‘because we had hired a replacement and could not be left
in a lurch while he was deciding if or when to go to Flor-
ida.’’
Clark’s testimony is somewhat confusing with respect to
the date of his having notified Respondent of his intent to
move to Florida and when he retracted that position, as well
as when he was removed from his route. Clark was not sure
of the dates of the Florida discussions, although at one point
he believed that he told Respondent in December 1990, that
he did not intend to go to Florida.
Clark further testified that when he informed Respondent
that he was not leaving (whenever that was), they removed
him from his route, and told him that they had promised it
to someone else. However, on closer examination of the
record, I am persuaded that Clark was mistaken and confused
with respect to this point. Thus, the testimony of Sauls,
Rombauts III, and Marx are all consistent that Clark was a
driver at the time of his discharge on February 22, 1991.
Therefore, I conclude that it was not until after Clark was
reinstated by Respondent several months later, that he be-
came a helper and part-time driver and he was not given
back his route, which had been assigned to someone else
subsequent to Clark’s termination.
Additionally, Rombauts testified that in Respondent’s con-
tract with the town of Babylon to pick up garbage in front
of people’s homes, Respondent is required to pay the pre-
vailing wages and benefits set by the State of New York,
which, according to Rombauts, are the same as the contrac-
tual wages and benefits in the Local 813 contract. Respond-
ent did not introduce into the record either the Local 813
contract or its contract with the town of Babylon.
Also, Rombauts testified with respect to Respondent’s
view of the relationship between Bailey, Clark, and Sauls as
follows: ‘‘Well, they were all kind of buddies, the three of
them. It was like the three amigos there. Bailey, Clark and
Sauls.’’
On March 18, 1991, the Union filed charges with the Re-
gion in Case 29–CA–15583, alleging that Sauls, Bailey, and
Clark were discharged because of their union activity in vio-
lation of Section 8(a)(1) and (3) of the Act. Respondent re-
ceived the charge by certified mail on March 22.
Thereafter in early April, Marx telephoned Bailey, and
stated that he wanted to stop by Bailey’s house. Bailey
agreed, and on that day, Marx and Rombauts came to Bai-
ley’s home. Rombauts informed Bailey that the Union was
charging Respondent with firing Bailey for union activities,
and asked Bailey if he had said anything in his statement re-
garding that. Bailey replied that he hadn’t said anything
about union activities in his statement, and that all he had
said was that Respondent fired him because he worked too
fast and because he got injured. Marx then asked Bailey if
he had the statement that he gave to the NLRB. Bailey re-
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponded that he had given it to his father to look over. Marx
asked if Bailey could get the statement back from his father.
After Bailey replied that he could get it, Marx asked if Bai-
ley wanted to come back to work and inquired as to what
Bailey’s salary had been at the time of his discharge. Bailey
replied that he was making $317. Marx then offered to rein-
state Bailey at $375. Bailey agreed and, after some discus-
sion, it was decided that Bailey would report to work on
April 22.
During this same conversation, Marx and Rombauts told
Bailey that they didn’t want the Union, and that they didn’t
want the Union to take control of the Company. Furthermore,
they told Bailey that the Union was just using Bailey to get
into the Company.
Bailey reported to work on April 22, as agreed on. On his
first day back, after he completed his work, Marx asked Bai-
ley if he had brought the statement that he had filed with the
Union. Bailey replied that he did not, and Marx repeated his
demand that Bailey bring in the statement. Later that same
week, Marx made two or three more requests that Bailey
bring in the statement, and Bailey said he would do so.
About a week after his return to work, Bailey brought in
a copy of the affidavit and gave it to Marx. Marx read it,
and Bailey stated, ‘‘told you that I hadn’t said nothing about
being fired for union activities.’’ Marx responded by com-
plaining about how Bailey worded the statement, and asked
why he could not have said that he was fired for absences
instead of because he worked too fast and got injured. Bailey
answered, ‘‘that’s not true, this is what you told me when
I came into the office.’’ Marx asked if he could keep the
statement and show it to Rombauts. Marx then requested that
Bailey call Board Agent Kearns to have the affidavit
dropped. Marx let Bailey use the phone in the backroom, and
instructed him not to let Kearns know that he was calling
from Respondent’s facility. Bailey did call Kearns and in-
formed Kearns that Marx wanted him to withdraw his affi-
davit. Kearns asked what Bailey was going to do, and Bailey
replied that he was going to tell Marx that he was unable
to reach Kearns, which he subsequently did.
The next day, Bailey was called into the backroom by
Marx and Rombauts. Rombauts began by stating that, ‘‘I
can’t believe this crap of them saying that we fired you for
union activities.’’ They asked Bailey if he thought that he
was fired for union activities? Bailey responded that he
didn’t know why Respondent fired him because they knew
that he worked fast and it was never a problem before. Marx
then handed back Bailey’s affidavit, and told Bailey that he
had written something on the back, which he wanted Bailey
to read, rewrite, and mail it to Kearns. Marx’s letter in effect
retracted some portions of Bailey’s prior affidavit, and states
that he (Bailey) realized that he was dismissed for missing
a lot of worktime.
Bailey read the letter, but said he could not write what
Marx had written because he would be perjuring himself.
Marx replied that what Bailey said in his statement was why
they were ‘‘hounding us,’’ and again requested that Bailey
copy what Marx had written, but stated that Bailey could
make some changes if he liked. Bailey took the affidavit
from Marx, and after a number of other requests by Marx
as to whether Bailey had rewritten it and mailed it to Kearns,
Bailey finally informed Marx that he had done so, although
he actually had not done what Marx had requested.
In early May 1991, Clark heard that Bailey had been rein-
stated, so he called Rombauts on the telephone and asked
about returning to work. Rombauts asked Clark if he was in-
volved in any union activities. Clark replied that he was not.
Rombauts instructed Clark to come down and speak to him.
In early May 1991, Respondent agreed to rehire Clark but
his regular route had been assigned to someone else. There-
fore, Clark was offered and accepted a position as a part-
time driver. He worked as a part-time driver, 2 or 3 days a
week, whenever another driver was out of work or would
call in sick. On June 7, 1991, Respondent had Clark sign a
letter, which confirmed that on or about May 1, he was of-
fered a position as a helper, but declined, and agreed to work
part time as a driver, until the next opening as a full-time
driver became available. At some point, several months later,
Clark’s status was changed to part-time driver and part-time
helper. He would drive when a regular driver was out, sick,
or on vacation or otherwise unavailable, and spend the rest
of the time as a helper. He received from Respondent the
same driver’s pay that he had been receiving prior to his dis-
charge.
Sauls was reinstated to his position as a helper sometime
in May 1991. Shortly thereafter, Rombauts asked Sauls about
his NLRB statement. Sauls replied that he didn’t have it and
didn’t know where it was. Sauls added that when he found
the statement, he would bring it in and let Rombauts see it.
On or about May 30, Marx and Rombauts, in Respond-
ent’s office, notified Bailey that Rombauts would be taking
Bailey, Clark, and Sauls to a meeting with Board Agent
Kearns, so that the employees could get their affidavits
dropped or withdrawn. Rombauts also told Clark that Re-
spondent had made an appointment with its attorney for
Clark, Bailey, and Sauls to ‘‘change some statements we had
written out.’’ Rombauts also told Sauls at that time that the
three employees were supposed to come down and tell Board
Agent Kearns that ‘‘we didn’t get laid off for these pur-
poses’’ and tell him something else.
On May 31, Rombauts drove Bailey, Clark, and Sauls to
the office of Respondent’s attorney, where they met with
Board Agent Kearns. However, they did not withdraw their
charges, or change their affidavits.
Thereafter, as noted, complaints were issued on May 31
and July 15, 1991, and on May 29, 1992, in Cases 29–CA–
15788 and 29–CA–16554, respectively. These cases were
thereafter consolidated for hearing and, as detailed above, the
trial commenced on June 9, 1992.
Meanwhile, sometime prior to May 1992, Funk enlisted a
number of Respondent’s employees including Bailey, Clark,
and Sauls to file claims against Respondent at the New York
State Department of Labor (DOL) for failure to pay pre-
vailing wages. A hearing was scheduled to be held at the
DOL on May 8, 1992.
About a week prior to the scheduled hearing at the DOL,
Marx and Rombauts called Sauls and Clark into the office.
Marx spoke, and told Clark and Sauls that whoever went
down to the DOL or to court would be fired, and would no
longer have a job with Respondent. Marx added that who-
ever went there didn’t have to worry about coming back to
the job because whoever dealt with the Union could stay
with the Union and he didn’t want to deal with them.
On May 8, 1992, Funk brought Saul and Clark to the DOL
for the scheduled hearing, but learned that the hearing had
663ROMAR REFUSE REMOVAL
4 Apparently, Bailey had been working for Respondent since
March 1992 on a periodic 1-or-2-day-per-week basis, off the books.
The record does not reflect the circumstances of how Bailey’s status
had changed from a full-time employee in April 1991 to a casual
employee in March 1992.
been postponed. No representative from Respondent appeared
at the DOL on that day. The next working day, May 9, 1992,
when Clark and Sauls reported for work, Rombauts III did
not send them out and told them that there was no work for
them. However, Rombauts III assigned two new employees
to the routes that Sauls or Clark had previously been as-
signed to as helpers.
Later that day, Sauls and Clark went back to Respondent’s
facility. Sauls met with Rombauts in the back office, and
asked why he hadn’t gone out that day. Rombauts initially
told Sauls that he and Clark had not told him that they were
going down to the union hall. Sauls disagreed and insisted
that he had notified Rombauts that the employees were going
to the DOL on May 8. Rombauts responded that he didn’t
want anyone working with the Union, and that is why they
didn’t work that day. Rombauts added that if Sauls dealt
with the Union, he had no job. Rombauts instructed Sauls to
take time and think about ‘‘who do you want to work for,
the Union or me.’’ Sauls at that point told Rombauts that he
would agree to drop all his charges, and to notify Respond-
ent’s attorney that he had so agreed.
At that point, Rombauts called Clark, who had been wait-
ing outside, into the office. Sauls told Clark that he needed
the job, and had to pay his bills, so he was going to drop
all his charges. Clark said that he was not dropping his
charges. Sauls then left the room, and Rombauts and Clark
continued their discussion, by which time Marx was also
present.
Rombauts told Clark that he had asked Sauls to drop all
his charges. Clark asked if Rombauts thought Clark was
‘‘head ringleader,’’ and Rombauts responded that Clark was
like a ‘‘Malcom X’’ or a ‘‘head ringleader,’’ and added,
‘‘I’ve had it up to here with you William.’’ Rombauts then
informed Clark that if anything was due to Clark from the
NLRB or the DOL, it would go to child support anyway, and
that Respondent’s lawyer was looking into ‘‘all this any-
way.’’ Marx then asked Clark, ‘‘why did you tell them that
I said you would get fired if you show up to Court.’’ Clark
replied that he couldn’t tell a lie. Marx also told Clark, ‘‘I’ve
had it up to here with you.’’ Marx then informed Clark from
then on, he would be employed on a shapeup basis, i.e.,
Clark would come in, and if Respondent needed him, he
would be employed, otherwise he would not. Thereafter,
Sauls continued to be employed on his regular route, while
Clark commenced working on a shapeup basis.
At some point in early May 1992, Marx asked Clark to
come into Respondent’s office. Marx informed Clark that
Bailey dropped his charges, showed Clark some papers from
the NLRB, and suggested to Clark that he get in touch with
Bailey, and Bailey would show him how to go about drop-
ping them. Marx also gave Clark the phone number of Board
Agent Kearns, and told Clark to let him know what hap-
pened once he called the NLRB. Several days later, Marx
asked Clark if he got in touch with the NLRB and Clark re-
sponded that Board Agent Kearns was on vacation. During
the initial conversation, Clark asked about the possibility of
his becoming a full-time driver once again. Marx informed
Clark that Clark would be assigned the next driver route that
became available. At that time, a one-page document was
prepared, dated May 5, 1992, in which it was agreed that
Clark would continue to be employed as a driver operating
helper routes, and filling in for driver vacations and sick
leave. The document also specified that Clark would be as-
signed the next driver route that becomes available. Further,
the agreement was to remain in force as long as Clark came
to work regularly and his accident record was satisfactory.
Meanwhile, sometime in May 1992, Marx called Bailey on
the telephone and asked if Bailey wanted to come back to
work on a full-time basis.4 Marx told Bailey that if he came
back to work, he would have to keep ‘‘his mouth quiet.’’
Marx did not elaborate at that time on what he meant by
keeping ‘‘his mouth quiet. Bailey agreed and returned to
work on June 1.
On Bailey’s first day back at work, June 1, he met with
Rombauts and Marx. Bailey asked Respondent if he could
have Thursdays off, and occasionally on Tuesdays, to pursue
a career in modeling. Marx and Rombauts agreed that Bailey
would have a regular schedule of working 4 days a week,
Monday, Tuesday, Wednesday, and Friday. Marx told Baily
at this meeting that the Union ‘‘was making an ass out of
Bailey,’’ and they were using Bailey as a ‘‘scapegoat.’’
Rombauts added that the Union was not looking out for Bai-
ley, and they were just trying to get into the Company. Bai-
ley responded that he needed to work and take care of his
family, and wasn’t going to get himself involved with any-
thing that is going on. Marx reiterated his prior statement to
Bailey that as long as he cames in and kept his mouth quiet,
there should be no problems.
Marx also made a reference to the NLRB trial scheduled
for June 9. Marx asked what Bailey was going to say at the
hearing, and whether or not he could say that the Union put
him up to filling out an affidavit. Marx also told Bailey that
he should tell the court that the Union had put him up to
filling out an affidavit with he NLRB. Bailey replied that he
didn’t want to get involved with the Union or anything deal-
ing with it any more, but he would not perjure himself, and
that he didn’t mention anything in his affidavit about being
fired for union activities.
As noted, the NLRB trial was scheduled to begin on June
9, 1992. Sometime during the week prior to June 9, Marx
informed Sauls that he didn’t want Sauls to come to
‘‘Court.’’ Marx told Sauls to ‘‘take a few days off,’’ and he
would keep Sauls’ job for him. When the NLRB trial opened
on June 9, as scheduled, Sauls did not appear, although he
had received a subpoena from General Counsel returnable on
that date. On June 9, testimony was taken from Funk, Marx
(called as a 611(c) witness by General Counsel), Clark, and
Bailey. The hearing was then adjourned from June 9 to June
11 to give Sauls another opportunity to appear. Sauls again
was not present on June 11, and the trial was adjouned in-
definitely, pending General Counsel’s decision as to whether
to enforce the subpoena against Sauls in Federal court.
Although the record does not fully disclose the cir-
cumstances, it appears that Sauls was either terminated from
or quit his job at Respondent sometime in late June or early
July 1992. The complaint does not allege that this separation
of Sauls from Respondent in 1992 is violative of the Act.
However, Sauls subsequently testified at the resumption of
the hearing on July 30, 1992.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In this connection, I sustained General Counsel’s objection to the
attempt of Respondent’s attorney to litigate this discharge of Clark,
although the attorney asserted that Respondent had been told that
Clark was going to file another charge concerning this discharge.
6 Rombauts III, although a supervisor of Respondent, also drives
a truck, and Bailey had been assigned to work as a helper with
Rombauts III as a driver on prior occasions.
Similarly, the record indicates, although not clearly, that
Clark was terminated by Respondent, at some undisclosed
date, prior to June 9, 1992. This discharge of Clark was not
alleged to be violative of the Act.5
Meanwhile, as noted above, Bailey returned to work for
Respondent on June 1, 1992, and it was agreed that he work
4 days a week, with Thursdays off, so that Bailey could pur-
sue modeling. For the week of June 1 through 5, Bailey
worked the 4 days as had been worked out with Respondent.
Bailey also worked on Monday, June 8. On Tuesday, June
9, the NLRB trial was held, and Bailey testified against Re-
spondent. He worked on Wednesday, June 10, Friday, June
12, and Monday through Wednesday, June 15–17.
On Friday, June 19, Rombauts III called Bailey into the
office before work. He asked Bailey to sign a paper that stat-
ed the agreement for him to work 4 days a week, Monday,
Tuesday, Wednesday, and Friday. Bailey read the letter and
as he was about to sign it Rombauts III asked to see it and
stated the letter was wrong and handed Bailey another letter
saying that he agreed to work 3 days a week, Monday, Tues-
day, and Friday. Bailey refused to sign that document, and
told Rombauts III that this wasn’t the agreement he had
made with both Marx and Rombauts. Rombauts III informed
Bailey that unless he signed the paper, he wouldn’t be work-
ing that day. Bailey still would not sign the paper, and
Rombauts III sent him home without an assignment.
The next working day was Monday, June 22, 1992. Bailey
arrived for work at the usual time of approximately 5:05 a.m.
Rombauts III told Bailey that he didn’t need him that day
and again sent him home. However, on both Friday, June 19,
and Monday, June 22, Bailey noticed that shapeup employ-
ees were going out to work, even though Bailey was not a
shapeup employee. Later on that evening, Bailey spoke to
Marx and complained about the fact that he was now work-
ing only 3 days, instead of the agreed-on 4 days. Marx re-
sponded that Bailey should just go to work and do what he
had to do, and that his lawyer instructed him not to talk to
Bailey over the phone.
Thereafter, Bailey continued to work the 3-day schedule
until July 14, when he injured himself on the job, and was
out on compensation until his return on Friday, August 7,
1992. On Saturday, August 8, Bailey telephoned Marx and
informed him that he had received a paper from the DOL
stating that he had to appear at a hearing there on Monday,
August 10, 1992. Marx replied that he couldn’t talk to Bailey
about it, and he should do whatever he wanted.
On Monday, August 10, 1992, Bailey appeared at the
DOL in Hempstead, New York, and testified along with
Clark and William Terrell (both Clark and Terrell were no
longer employed by Respondent as of August 10) that Re-
spondent had underpaid them and owed them money. Marx
and Rombauts were present at the DOL. The next day, Au-
gust 11, the DOL hearing continued, and although Bailey
was scheduled to attend, he did not come because his car
broke down.
Bailey’s next scheduled day of work was August 14, 1992,
and he arrived and punched in, as usual. Bailey said good
morning to Rombauts III, but Rombauts III ignored him, and
did not assign him to a truck, which was the normal practice.
Bailey was not assigned to a specific truck, although
Rombauts III would normally assign him each morning to a
particular truck. Bailey noticed that all the trucks had gone
out, except for one.
Rombauts III started to walk towards the remaining truck,
and Bailey thinking that he would be going out on the truck
with Rombauts III, started walking alongside him towards
the truck.6 Bailey said something to Rombauts III about
Rombauts IlI’s tire in his car looking flat. At that point,
Rombauts III turned to Bailey and said, ‘‘Get out of here,
you caused enough problems for us, why don’t you go with
your union buddies.’’ Bailey responded that he was tired of
Respondent pulling this crap and added that he was supposed
to work that day.
Rombauts III asked where Bailey was on Monday and
Tuesday. Bailey answered that he was at the (DOL) hearing,
and he had notified Marx about it on Saturday. Rombaut III
then stated that Bailey was not working, ‘‘we don’t need you
any more, why don’t you go find another company to work
for.’’ As they continued to walk towards the truck, Rombaut
III pushed Bailey twice, which caused Bailey to lose his bal-
ance. Rombauts III then placed his keys between his fingers
in a ready ‘‘fist like position.’’ Bailey asked if he needed his
keys, and picked up his bag in an attempt to ward off a pos-
sible punch. Rombauts III replied ‘‘what keys,’’ and re-
moved the keys from between his fingers. At that point, after
some additional words, Rombauts Ill lunged forward and
head-butted Bailey on his lip, causing Bailey’s lip to bleed.
When Bailey felt his lip and saw the blood, he said to
Rombauts III, ‘‘that was your best shot.’’ They began cir-
cling one another, and Bailey punched Rombauts III in the
mouth. Rombauts III grabbed his mouth and walked away
without saying anything.
Later on that day, Rombauts III filed a complaint with the
Suffolk County police department. As a result of that com-
plaint, Bailey was arrested and arraigned on a charge of as-
sault. On that day, the judge issued a temporary order of pro-
tection against Bailey, which ordered him to stay away from
Rombauts III and from Rombauts IlI’s place of employment
or home. The order of protection was to remain in effect
until the final disposition of the charge. Neither Rombauts
nor Rombauts III were present at the arraignment, and appar-
ently no testimony was taken at that time from any witness.
The judge also told Bailey that he was not allowed to go
near Rombauts III, and could not go to Respondent’s facility.
Later on that same evening, Bailey spoke to Marx on the
telephone. Marx called Bailey an ‘‘asshole’’ because he hit
Rombauts III in the mouth. Bailey replied that Rombauts III
had pushed him and head-butted him. Marx responded that
Bailey should have walked away. Bailey answered that
Rombauts III should have walked away and stopped playing
games about him working on the truck. After some more
words were exchanged, Marx told Bailey to ‘‘stay away from
the yard,’’ ‘‘you’re not wanted . . . don’t go up to the com-
pany any more’’ and ‘‘go somewhere else.’’ Neither Marx
nor Rombauts III used the words fired or discharged. Marx,
665ROMAR REFUSE REMOVAL
7 The lawfulness of these actions will be discussed below.
during his conversation with Bailey, did not mention the
order of protection, or the criminal trial. Nor did he tell Bai-
ley that he could or might be able to return to work, after
the criminal trial was completed.
The record does not disclose the final disposition of the
criminal proceeding. Bailey has not returned to work for Re-
spondent, nor has he been offered his job back by Respond-
ent.
Respondent’s attorney sent letters to the Region during the
course of the investigation of the charges filed with respect
to Bailey’s 1992 termination, dated October 22 and Novem-
ber 13, 1992, asserting that Bailey was discharged because
of Bailey’s unprovoked, vicious, and criminal assault on his
supervisor. However, at the trial, and in its brief, Respond-
ent’s attorney asserts that Bailey was never fired by Re-
spondent, and he was not working at Respondent only be-
cause of the order of protection and the instructions by the
Suffolk County judge to Bailey not to go near Rombauts III
or to go to the Respondent’s facility.
My findings above, with the respect to the events subse-
quent to January 7, are based on the credible and often mutu-
ally corroborative testimony of Bailey, Clark, and Sauls. In
most areas, Respondent adduced no contrary testimony at all,
and much of the above testimony was undenied, including
Bailey’s testimony concering the events of August 14, 1992.
To the extent that Rombauts, and Rombauts III disputed
some portions of the testimony of the employees, I reject the
Rombauts versions of events, because I found the accounts
of Sauls, Clark, and Bailey to be more believable, consistent,
and persuasive.
III. ANALYSIS
A. The Alleged 8(A)(1) Violations
1. The events of January 7, 1991
I have found above that on January 7, after employees re-
ceived authorization cards and literature from union rep-
resentatives, Rombauts III confiscated the literature and cards
from a number of such employees, while specifically order-
ing Sauls to give him the material. Such conduct constitutes
an unlawful attempt by Respondent to interfere with its em-
ployees protected right to receive union literature and is vio-
lative of Section 8(a)(1) of the Act. Farm Fresh, 305 NLRB
887, 888 (1991); Alson Knitting, Inc., 301 NLRB 758, 760
(1991); Filene’s Basement Store, 299 NLRB 183, 209
(1990); Southland Knitwear, Inc., 260 NLRB 642, 655
(1982).
During this incident, Rombauts III also informed Sauls
that the employees did not need a union and if there is any-
thing they need, they can come to him. By these remarks of
Rombauts III, Respondent has unlawfully solicited grievances
from its employees, and impliedly promised to remedy them,
without the need for a union, and has thereby further violated
Section 8(a)(1) of the Act. Columbia Mills, 303 NLRB 223,
227 (1991); General Wood Preservative Co., 288 NLRB 956
fn. 2 (1988).
During this same conversation, Rombauts III, while curs-
ing about the blank blank union, told Sauls that whoever
takes the union cards would be laid off. Similarly, Rombauts
told employee Clark on the same day that if he was caught
signing that union card, he would automatically be fired.
Both of these statements constitute clearly unlawful threats
of discharge or layoff in reprisal for employees engaging in
protected union activity, and by such conduct Respondent
has once again violated Section 8(a)(1) of the Act.
2. Events of March through May 1991
As noted above, Respondent discharged employees, Clark,
Sauls, and Bailey on various dates in January and February.7
On March 18, the Union filed charges in Case 29–CA–15583
with the NLRB, alleging that these terminations were viola-
tive of the Act.
As I have found above, Respondent thereafter embarked
on a campaign of conduct in response to the filing of these
charges, and the employees participation in the processing of
such charges.
Thus, Respondent’s owners, Marx and Rombauts, initiated
a meeting at Bailey’s home. Rombauts informed Bailey
about the aforementioned charge, and asked Bailey if he said
anything in his statement about being discharged for union
activities. Such questioning by Respondent concerning what
information Bailey provided to NLRB investigators, con-
stitutes coercive interrogation in violation of Section 8(a)(1)
of the Act. Bradford Coca-Cola Bottling Co., 307 NLRB 647
fn. 3 (1992); Astro Printing Services, 300 NLRB 1028, 1029
fn. 6 (1990); Dayton Typographical Service, 273 NLRB
1205, 1206 (1984). I so find.
Marx then asked Bailey to provide a copy of the statement
to Respondent. By such a request, Respondent has also vio-
lated Section 8(a)(1) of the Act. Astro Printing, supra at
1035; Frascona Buick, 266 NLRB 636, 647–648 (1983);
GEX of Colorado, 250 NLRB 593, 596 (1980).
After Bailey replied that he could get the affidavit, Marx
asked Bailey if he wanted to come back to work and offered
him a raise of $58 per week. In these circumstances, I con-
clude I find that Respondent has further violated Section
8(a)(1) of the Act by conditioning Bailey’s reinstatement on
his furnishing Respondent a copy of his affidavit, and by
promising and granting him a wage increase for the same
reason.
Bailey agreed to Respondent’s reinstatement offer, and on
his first day back at work, April 22, and on two or three
more occasions, Respondent by Marx, made several more de-
mands that Bailey bring in the affidavit that he had executed.
These additional requests for the affidavit further violated
Section 8(a)(1) of the Act.
Finally, about a week after his return to work, Bailey sub-
mitted the affidavit to Marx. After reading it, Marx com-
plained about how Bailey had worded the statement, and
asked why Bailey could not have said that he was fired for
absences. Marx then asked Bailey to call the Board agent to
arrange for his affidavit to be dropped. The next day Marx
handed Bailey back a copy of his affidavit, and told Bailey
that he had written something on the back, which he wanted
Bailey to read, rewrite, and send back to the Board agent.
The additional material written by Marx retracted portions of
Bailey’s prior statement, and states that Bailey realized that
he was dismissed for missing worktime. By demanding that
Bailey ‘‘drop’’ his affidavit (in effect, withdrawing the
charge with respect to him), and by instructing Bailey to
make certain changes in his affidavit, Respondent has unlaw-
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fully interfered with the Board’s processes, and with its em-
ployees Section 7 rights, and has thereby violated Section
8(a)(1) of the Act. Eddyleon Chocolate Co., 301 NLRB 887,
903 (1991); Cave Springs Theatre, 287 NLRB 4, 11 (1987);
Holiday Inn Glendale, 277 NLRB 1254, 1275 (1985).
After Clark heard that Bailey had been reinstated, he
called Respondent Rombauts on the phone and asked about
returning to work. Rombauts asked Clark if he was involved
in any union activities? I find this interrogation to be coer-
cive, and further violative of Section 8(a)(1) of the Act, par-
ticularly in view of the fact that the questioning occurred in
the context of Respondent’s other unfair labor practices de-
scribed above. EDP Medical Computer Systems, 284 NLRB
1232, 1265 (1987).
Sauls was also reinstated, sometime in May 1991. Shortly
thereafter, Respondent once again violated the Act, by
Rombauts asking Sauls about his NLRB statement. Eddyleon
Chocolate, supra; Bradford Coca-Cola, supra; Astro Printing,
supra.
Finally, on May 30, Respondent’s officials told employees
that Rombauts would be transporting Clark, Bailey, and
Sauls to a meeting with the Board agent, so that the employ-
ees could get their affidavits dropped, or withdrawn, or to
‘‘change statements we had written out,’’ or to tell the Board
agent that they were not laid off for ‘‘these purposes’’ (union
activity) and to tell him something else. In fact, Rombauts
did drive the three employees to a meeting with the Board
agent at the offices of Respondent’s attorney. Once more,
Respondent has committed several violations of Section
8(a)(1) of the Act, by instructing employees to withdraw, or
drop, or change statements previously given to the NLRB.
Eddyleon Chocolate, supra; Cave Springs, supra.
3. Events of May and June 1992
Notwithstanding the above-described unlawful conduct of
Respondent, designed to pressure employees to withdraw
their charges or change their statements, the employees did
neither, and the NLRB eventually issued complaints and no-
tices of hearing against Respondent, with a trial scheduled
for June 9, 1992. Meanwhile, the Union had enlisted a num-
ber of Respondent’s employees, including Bailey, Clark, and
Sauls to file complaints with the DOL alleging that Respond-
ent had failed to pay prevailing wages. A hearing at the DOL
was scheduled to be held with respect to these complaints on
May 8, 1992.
Respondent, as these hearings were approaching, continued
with its unlawful campaign that had been unsuccessful in
1991, to intimidate and coerce employees in connection with
the NLRB proceeding, and now added coercive conduct con-
cerning the DOL hearing and the employees participation in
that matter. Thus, Respondent further violated Section 8(a)(1)
of the Act by the following remarks by its officials: (1) Marx
telling Sauls and Clark, in early May 1992, that whoever
went down to the DOL or to court (i.e., the NLRB) would
be fired and would no longer have a job with Respondent.
(2) The day after the DOL hearing, when Rombauts in-
formed Sauls that he hadn’t worked that day because
Rombauts didn’t want anyone working with the Union, if
Sauls dealt with the Union, he had no job, and that Sauls
should think about, ‘‘who do you want to work for, the
Union or me.’’
As a result of these remarks, Sauls agreed to drop all his
charges. Respondent then asked Clark to drop his charges, as
did Sauls, and when he refused, Rombauts told Clark, ‘‘I’ve
had it up to here with you William.’’ This comment of
Rombauts is an implied threat of reprisal in retaliation for
Clark’s refusal to withdraw his charges. Rombauts also in-
formed Clark that anything that was due from the DOL or
the NLRB would go to child support. This statement by
Rombauts I find to be another unlawful attempt to coerce
Clark to withdraw his NLRB or DOL charges, and is further
violative of Section 8(a)(1) of the Act.
In early May 1992, Marx called Clark into the office, in-
formed him that Bailey had dropped his charges, and sug-
gested that Clark get in touch with Bailey to do the same.
Marx also gave Clark the phone number of the Board agent
and continued to press Clark to call and withdraw his
charges.
Also, in May 1992, Marx called Bailey and offered to re-
instate him on a full-time basis, as controls packing aslong,
as ‘‘he keeps his mouth quiet.’’ Although Marx did not ex-
plain what he meant by ‘‘keep his mouth quiet,’’ it is clear
from statements made to Bailey both before and after this re-
mark what Marx was referring to by this condition. Thus, on
Bailey’s first day back, on June 1, 1992, Bailey was told by
Marx that the Union was ‘‘making an ass’’ out of Bailey and
using Bailey as a ‘‘scapegoat,’’ and repeated Marx’s prior
warning to keep his mouth quiet. Marx also made reference
to the NLRB trial, asked what Bailey was going to say at
the hearing, and whether he could say that the Union put him
up to filling out an affidavit with the NLRB. Bailey said that
he didn’t want to get himself involved with the Union, or
anything dealing with it, but he would not perjure himself.
Based on the foregoing, I conclude that Respondent by offer-
ing to reinstate Bailey if he ‘‘kept his mouth quiet,’’ was
clearly referring to Bailey’s potential testimony at the NLRB
trial and his continuing to engage in union activity, and that
it unlawfully conditioned his reinstatement on Bailey agree-
ing not to participate in or to withdraw the NLRB charges,
and not to engage in union activities, in violation of Section
8(a)(1) of the Act. Contris Packing Co., 268 NLRB 193, 212
(1983).
Additionally, Respondent further violated Section 8(a)(1)
of the Act, during the June 1 conversation with Bailey, by
instructing Bailey to tell the court that the Union put him up
to filling out his affidavit, Eddyleon Chocolate, supra, and by
asking him what he was going to say at the NLRB hearing.
Bradford Coca-Cola, supra; Astro Printing, supra.
Shortly before the NLRB trial began on June 9, 1992,
Marx told Sauls that he didn’t want him to come to court,
instructed Sauls to take a few days off, and promised to keep
Sauls’ job for him. This conduct is further violative of Sec-
tion 8(a)(1) of the Act by Respondent. I so find.
B. The Alleged Discriminatory Conduct
1. The discharges in January and February 1991
The appropriate standard for analyzing all the alleged dis-
criminatory conduct alleged here, is set forth by the Board
in Wright Line, 251 NLRB 1053 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), and approved by the Supreme Court in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
The General Counsel must first establish that a motivating
667ROMAR REFUSE REMOVAL
8 Marx did not explain what personal problems of Bailey moti-
vated Respondent’s decision.
factor in Respondent’s decisions to discharge or engage in
the other alleged discriminatory conduct towards its employ-
ees was the employees’ protected activities. Once the Gen-
eral Counsel has made such a showing, the burden then
shifts to Respondent to demonstrate that it would have taken
action against the employees absent their protected conduct.
In applying these principles to the allegations in the instant
matter, I shall first consider the discharges of Sauls, Clark,
and Bailey in January and February 1991. In that regard, the
Union’s organizing campaign commenced on January 7, at
which time union organizers distributed cards and literature
at Respondent’s facility. On that very day, Respondent vio-
lated Section 8(a)(1) of the Act by confiscating union cards
from employees, including discriminatee Sauls, made unlaw-
ful threats of discharge and/or layoff to Sauls and
discriminatee Clark, and made an unlawful promise of ben-
efit to Sauls.
Sauls, Clark, and Bailey all signed authorization cards for
the Union within a week of January 7. Bailey was terminated
3 days after he signed his card, and Clark and Sauls were
fired within weeks after they executed their authorization
cards.
Thus, a compelling prima facie case has been made that
the union activities of these employees motivated their dis-
charges. Knowledge of their union activities is firmly estab-
lished by the extensive 8(a)(1) conduct directed towards
these employees as described above. Moreover, Rombauts
conceded that Respondent considered Sauls, Clark, and Bai-
ley to be buddies and ‘‘like the three amigos.’’ It is thus
clear that it considered these three employees as acting to-
gether in supporting the Union’s organization activities. The
extensive animus directed towards these employees as dem-
onstrated by the unlawful 8(a)(1) statements, particularly the
threats to discharge and lay off, plus the fact that the dis-
charges occurred in close proximity to the signing of the
cards, all point to a showing that the discharges were moti-
vated by the employees’ union activities.
Therefore, the burden then shifts to Respondent to dem-
onstrate by a preponderance of the evidence that it would
have taken the same action against the employees, absent
their protected conduct. Wright Line, supra; Transportation
Management, supra.
Respondent initially places significant reliance on the testi-
mony of Rombauts that Respondent under its contract with
the town of Babylon was obligated to pay ‘‘prevailing
wages’’ and benefits to its employees, and that these pre-
vailing wages and benefits are the same as in the Local 813
contract. However, I would note that Respondent did not in-
troduce into the record either its contract with the town of
Babylon, the Local 813 contract, or any other documentary
evidence to support Rombauts’ testimony that signing a
union contract would not result in any additional costs to Re-
spondent. Moreover, even if I were to accept Rombauts’ tes-
timony in this respect, Respondent’s argument that this
proves that Respondent would have no motive to fight union-
ization has not been established.
Thus, the extensive evidence of unlawful statements di-
rected towards its employees efforts to support unionization
that I have found above, dispels any contention that Re-
spondent did not object to signing a union contract. It is also
noteworthy in this respect, Marx’s statement to Bailey that
Respondent didn’t want the Union, and didn’t want the
Union to take control of the Company. These statements in-
dicate a strong motive for Respondent to resist unionization,
even if as Respondent asserts, it was already paying the same
wages and benefits included in the Local 813 contract.
Turning to the specifics of the discharges, it is significant
that Rombauts III informed Bailey at the time of his dis-
charge that he was fired and ‘‘we don’t need you any
more,’’ which infers a lack of work for him. Later on that
day, Rombauts told Bailey that he was discharged because
he worked too fast and got injured too much. The day after
his discharge, Marx added still another reason, that the
‘‘guys didn’t want to work him.’’
At the trial, Marx testified that Bailey was terminated be-
cause of his personal problems,8 his excessive absences, and
his being injured. Rombauts testified that Bailey was out 30–
40 days throughout the year, was late all the time, and kept
getting hurt. Rombauts III testified that Bailey was out a lot
of days, always got hurt, and was unreliable. Thus, when one
combines the various and different reasons given to Bailey
by Respondent’s officials, when he was discharged, and testi-
fied to by its officials at trial, Respondent has asserted seven
different reasons for its decision, ranging from not needing
him, personal problems, to absences and lateness. In this re-
gard, the Board has long held that when an employer vacil-
lates in offering a consistent explanation for its actions, an
inference is warranted that the real reason for its actions is
not among those asserted. Robin Transportation, 310 NLRB
411 (1993); Resolute Realty Co., 297 NLRB 679, 687
(1989); Abbey’s Transportation Services v. NLRB, 837 F.2d
575, 581 (2d Cir. 1988).
I conclude therefore that it is appropriate to draw such an
inference, which substantially detracts from the validity of
Respondent’s defense and its attempt to meet its Wright Line
burden of proof.
Additionally, an examination of the defense most fre-
quently mentioned by Respondent’s officials, and urged in its
brief, that of excessive absences, further detracts from its de-
fense. While the record does reveal that Bailey missed 40
days of work from May 8 to December 29, 1990, he did not
miss any days of work between that date and his discharge
on January 18, 1991. Thus, Respondent tolerated 40 absences
of Bailey in 1990, prior to his union activity, without any
disciplinary action against him. Yet in January 1991, after
Bailey’s union activity, and in fact 3 days after he signed a
card, and when he had not been absent for 23 days, Re-
spondent fired him. The only logical conclusion that can be
drawn from these facts, is that Bailey’s protected activities
accounted for Respondent’s decision to assert that it would
no longer tolerate his absences. Kosher Plaza Supermarket,
313 NLRB 74 (1993). Indeed in this connection, Respondent
pointed to no specific precipitating event that occurred short-
ly before the discharge that motivated its decision. In fact,
Respondent adduced no evidence as to precisely when or
whether Marx, Rombauts, or Rombauts III, singly or collec-
tively decided to discharge Bailey, or how such a decision
was made.
Accordingly, based on the above, I conclude that Respond-
ent has not met its burden of establishing that it would have
terminated Bailey on January 18, 1991, absent his protected
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
activity, and that it has thereby violated Section 8(a)(1) and
(3) of the Act.
Respondent’s efforts to meet its burden of proof with re-
spect to Sauls and Clark, suffers from many of the same de-
ficiencies as did its attempt to do so in connection with Bai-
ley. As for Sauls, he was informed at his termination by
Rombauts III and Marx that he was fired for taking too many
days off. However, Marx testified in this proceeding that
Sauls was not fired at all, but he just stopped coming to
work and had some drug problems. Rombauts testified that
Sauls was fired for absenteeism, and Rombauts III testified
that Sauls missed a lot of days, came in late, was never on
time, and was very unreliable. Moreover, Respondent’s
records which it introduced in an attempt to bolster its de-
fense, actually further undermines its already shaky and in-
consistent position. Thus, it produced two separate docu-
ments for Sauls, which cover overlapping periods, and which
reveal different reasons for his separation from Respondent’s
employ. One document indicates that he was fired on Feb-
ruary 4, 1991, while the other lists ‘‘didn’t show up’’ that
date, after having crossed out the words fired. On the latter
document, eight additional absences are listed after February
4, but allegedly covering prior absences. These discrepancies
and crossouts were never explained by any of Respondent’s
witnesses.
With respect to Clark, he was informed on the date of his
discharge by Rombauts and Rombauts III that he was the last
one hired, and had to be the first one to be let go. Clark was
told that Marx’s nephew was coming out of college, and
needed a job.
Marx testified at the trial that Clark was not terminated,
but that after Clark had notified Respondent about a move
to Florida, it had hired someone else for his route. Marx fur-
ther testified that Respondent offered Clark the opportunity
to stay and work at other jobs, but he refused. Rombauts III
testified that Clark had a lot of accidents, was unreliable,
didn’t come to work a lot, and was slower than normal in
picking up trash. Respondent’s attorney in a position paper
submitted to the Region during the investigation, asserted
that Clark was terminated by Rombauts because it had hired
a replacement for Clark (because of his prior notification that
he was leaving for Florida), and ‘‘it could not be left in a
lurch.’’ Notably, I have found above that while Clark had
notified Respondent of his intent to quit, that he had re-
tracted that notification prior to his discharge, and he was
still employed as a driver when he was terminated.
Thus, as was the case with respect to Bailey, Respondent
has once again, offered vacillating and inconsistent expla-
nations for its treatment of Sauls and Clark, which once
more warrants the inference that the real reasons for its ac-
tions with respect to these employees are not among those
asserted. Robin Transportation, supra.
Also as was the case with Bailey, no testimony was of-
fered by Respondent as to which of its three supervisory offi-
cials decided to terminate Clark or Sauls, or as to the cir-
cumstances or dates when such decisions were made con-
cerning the status of these employees.
Accordingly, I conclude that Respondent has failed to
meet its burden of proof under Wright Line, supra, that it
would have taken the same action against Clark or Sauls ab-
sent their union activities, and that it has violated Section
8(a)(1) and (3) of the Act by discharging them in February
1991.
2. The suspensions, changes in job status, and
discharge in 1992
Notwithstanding Respondent’s substantial and egregious
unfair labor practices described above, which were designed
to pressure employees into withdrawing their charges, and/or
their participation at the NLRB hearing, Bailey and Clark
testified at the NLRB hearing on June 9, 1992, in support
of the various allegations in the complaint.
As was also noted above, Respondent was initially suc-
cessful in persuading Sauls not to testify on that date or on
the scheduled resumption date on June 11, 1992, by virtue
of several unlawful statements to Sauls by Respondent refer-
ring to the loss of his job if he testified at the Board or the
DOL, and Marx’s unlawful instruction to Sauls not to come
to the NLRB and to ‘‘take a few days off,’’ at the time of
the Board hearing.
In addition to these unlawful acts, also discriminated
against Sauls and Clark on May 9, 1992, by not sending
them out for work, in effect suspending them for that day.
Thus, on May 8, 1992, Sauls and Clark were brought by
Funk of the Union to a scheduled hearing at the DOL on
claims that had been filed against Respondent by a number
of its employees, at the instigation of the Union. Although
the hearing had been postponed, the employees were not no-
tified of the postponement, until they appeared at the DOL
with Funk on that day.
The very next day of work, May 9, 1992, Rombauts III
did not send Sauls and Clark out for work, and told them
that there was no work for them. However, Rombauts III
sent two men, shapeup employees, out on the routes that
Sauls and Clark had been regularly assigned as helpers. Later
that day, Rombauts admitted to Sauls that the employees had
not worked because Respondent didn’t want anybody work-
ing with the Union, after criticizing them for going to the
union hall. Rombauts also asked Sauls who he wanted to
work for, ‘‘the Union or me.’’
In these circumstances, a strong facie case has been estab-
lished that Respondent’s decision not to assign work to or in
effect suspend, Sauls and Clark on May 9, 1992, was moti-
vated by union activities, as well as their protected concerted
conduct in appearing at the DOL proceeding. In that connec-
tion, the employees group action in participating in the DOL
proceeding is independently concerted activity, even apart
from the fact that the Union was also involved in the em-
ployees actions, which transforms it to union activity as well.
Thus, the burden shifts to Respondent to establish that it
would have taken the same action against Sauls and Clark,
absent their protected conduct. Inasmuch as Respondent has
adduced no evidence, nor made any contentions as to why
it did not assign work to these employees on that day, I find
that Respondent has thereby violated Section 8(a)(1) and (3)
of the Act.
As I have noted above, Respondent finally succeeded, at
least in part in its unlawful campaign to dissuade employees
from engaging in protected activity, and participating in
NLRB proceedings, when Sauls after the aforementioned
8(a)(1) and (3) conduct, refused to appear at the NLRB trial
669ROMAR REFUSE REMOVAL
9 Sauls eventually did testify on July 30, 1992, after he had been
discharged once again by Respondent.
10 Indeed, Bailey worked the 4-day schedule (Monday, Tuesday,
Wednesday, and Friday) for his first week back employed full time,
the week of June 1 through 5. The second week of his return, he
worked Monday, June 8, testified at the Board on Tuesday, June 9,
and worked Wednesday and Friday; as well as Monday to Wednes-
day June 15–17.
on June 9 and 11.9 However, this unlawful conduct, includ-
ing the 1-day suspension, was not successful in persuading
Clark to take the same action as Sauls. Even after Respond-
ent informed Clark of the fact that Sauls had agreed to drop
his charges, and made other unlawful comments to Clark,
such as informing him that any backpay he may receive from
the DOL or the NLRB would go to child support, Clark re-
fused to agree to withdraw or drop his charges. Marx finally
told Clark ‘‘I’ve had it up to here, with you,’’ and informed
him that from then on he would be employed as a shapeup
employee only. Thereafter, until Clark was subsequently dis-
charged, on a date undisclosed by the record, Clark contin-
ued to work on a shapeup basis.
Based on the above facts, it is clear that the General
Counsel has established that motivating factors in Respond-
ent’s decision to change Clark’s status from a full-time to a
shapeup employee, were Clark’s union and protected activi-
ties, including his participation in the DOL proceeding, as
well as his involvement in the NLRB proceeding and his re-
fusal to agree to drop such charges and/or refuse to partici-
pate in the pending NLRB hearing.
Once again since Respondent has offered no explanation
as to why it changed Clark’s status, it has failed to meet its
Wright Line burden, and has violated Section 8(a)(1), (3),
and (4) of the Act by such conduct. Aspen, 298 NLRB 401,
407 (1990).
As also detailed above, Respondent reinstated Bailey to a
full-time position in May 1992, after unlawfully conditioning
his reinstatement on his agreement not to participate in the
Board proceeding, and not to engage in future protected con-
duct. It is also noteworthy that Respondent reinstated Bailey
in May 1991, unlawfully conditioning his reinstatement at
that time and promising him a raise, on his agreement to fur-
nish Respondent with a copy of his NLRB statement.
Moreover, on the first day of Bailey’s reinstatement on
June 1, 1992, he was unlawfully interrogated about his po-
tential testimony at the NLRB hearing, and unlawfully in-
structed by Respondent on what to say at such hearing.
However, although Respondent’s unlawful activities did
prove partially successful in connection with Sauls, since
Sauls refused to appear at the June 9 Board trial, because of
Respondent’s unlawful conduct towards him as outlined
above, it was not so successful with respect to Bailey. Thus,
notwithstanding the intense unlawful campaign by Respond-
ent to convince Bailey either to withdraw his charges or to
testify favorably to Respondent and contrary to his prior affi-
davit, Bailey nevertheless testified at the NLRB trial on June
9, 1992, consistent with his statement, and adverse to Re-
spondent’s interest.
A little more than a week after Bailey so testified, he was
informed by Rombauts III that his work schedule was now
reduced from 4 to 3 days a week, adding Wednesday as an
additional day off. When Bailey protested that this was not
the agreement he had made with Rombauts and Marx,10
Rombauts told Bailey to sign a paper agreeing to the change
or he would not work that day. When Bailey refused to sign
the paper, he was sent home without an assignment on that
day, and on the next working day, Monday, June 22, 1992,
Bailey was again sent home without an assignment, after
being told by Rombauts III that Respondent didn’t need him
on both June 19 and 22, shapeup employees were sent out
by Rombauts III to work, even though Bailey who was not
a shapeup employee, was sent home. Thereafter, Bailey con-
tinued to work the 3-day schedule (Monday, Tuesday, and
Friday), except for a period of being out on compensation,
until his termination on August 14, 1992.
In these circumstances, l conclude that the General Coun-
sel has made a compelling prima facie showing that Re-
spondent’s decision to reduce Bailey’s schedule from 4 to 3
days, and its actions in not assigning him work (in effect
suspending him on June 19 and 22) were motivated by pro-
tected conduct. Thus, despite the intense unlawful campaign
by Respondent described above, to convince Bailey as well
as other employees, to either withdraw charges, change testi-
mony, or not appear at the NLRB hearing, Bailey defied Re-
spondent’s instructions, as well as violating Respondent’s
prior unlawful instructions to ‘‘keep his mouth quiet’’ by tes-
tifying against Respondent on June 9, 1992. Therefore, the
substantial animus directed towards Bailey and other employ-
ees because of their union activities, as well as their partici-
pation in NLRB or DOL proceedings, plus the timing of the
reduction in hours, coming a little more than a week after
Bailey’s testimony, more than justifies the inference that pro-
tected conduct of Bailey, motivated Respondent’s actions.
Respondent has adduced absolutely no testimony or any
evidence as to why it reduced Bailey’s hours on June 19, or
why it suspended him on June 19 and 22, while sending out
shapeup employees in his place. Respondent’s only argument
concerning these allegations, is its contention that Bailey had
himself testified that he asked for only 3 days of work, and
wanted 2 days’ off to pursue a modeling career. Therefore,
Respondent argues that any incident where Respondent re-
duced his workload from 4 to 3 days could not have hap-
pened. However, I have found above, based on uncon-
tradicted testimony of Bailey that such a reduction did hap-
pen. While Bailey did admit that he had asked for Thursdays
off and possibly Tuesdays (emphasis added), it is clear that
Respondent had agreed on a 4-day schedule for Bailey,
which Bailey worked for his first week of employment after
his return to full-time status. Significantly, at no time, had
Bailey ever even raised the possibility of wanting Wednes-
day off. Yet, when Respondent changed his schedule from 4
to 3 days, it gave him Wednesday off, not Tuesday as he had
previously mentioned only as a possibility. Thus, it is clear
that Bailey’s initial request for possibly Tuesday off, in addi-
tion to Thursday had no effect on Respondent’s action, and
was nothing but a pretextual attempt by Respondent to jus-
tify its discriminatory action, after the fact. It is notable that
no witness from Respondent testified that Bailey’s prior re-
quests for possibly Tuesday off, motivated its decision to
unilaterally give him Wednesdays off instead. Nor did Re-
spondent adduce any evidence, or witnesses, or other evi-
dence to explain why it failed to assign work to Bailey, for
2 days, after he refused to agree to its unlawful reduction of
his hours. In these circumstances, Respondent has failed to
meet its Wright Line burden that it would have reduced Bai-
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ley’s work schedule or suspended him on June 19 and 22,
1992, and has thereby violated Section 8(a)(1), (3), and (4)
of the Act by such conduct. Shelby Memorial Home, 305
NLRB 910, 920–922 (1991); Aspen, supra.
Subsequently, after Bailey’s return to work after being out
on compensation, he appeared at the DOL and testified
against Respondent on Monday, August 10, 1992. On Friday,
August 14, 1992, Bailey appeared at Respondent’s premises,
on his scheduled day of work. Bailey was not given an as-
signment by Rombauts III, as was the normal practice, and
Rombauts III told Bailey, ‘‘get out of here, you caused
enough trouble for us, why don’t you go with your union
buddies.’’ After Bailey protested his lack of an assignment,
Rombauts III questioned where Bailey was on Monday and
Tuesday, Bailey responded that he was at the DOL hearing
and that he had notified Marx about it on Saturday.
Rombauts III at that point told Bailey that he was not work-
ing, and ‘‘we don’t need you any more, why don’t you go
find another company to work for.’’
The first question to be determined, is whether Respondent
had discharged Bailey at that point, by the conduct of
Rombauts III, prior to their altercation. In that connection,
Respondent argues strenuously that Bailey was not termi-
nated by Respondent either before or after the altercation
with Rombauts III, principally because Respondent never
used the words fired, discharged, or terminated. However, it
is well settled that the test for determining whether an em-
ployer’s statements or actions constitute a discharge, depends
on whether such statements or conduct would reasonably
lead employees to believe that they had been discharged.
Statewide Transportation, 297 NLRB 472, 478 (1989);
Ridgeway Transportation Co., 243 NLRB 1048, 1049 (1979);
NLRB v. Hilton Mobile Homes, 387 F.2d 7, 9 (8th Cir.
1967). The fact of discharge does not depend on the use of
formal words of firing, discharge, or termination. Statewide,
supra; Ridgeway, supra. NLRB v. Trumball Asphalt Co. of
Delaware, 327 F.2d 841, 843 (3d Cir. 1964). Moreover, once
an employer’s conduct creates an ambiguity or confusion as
to an employee’s employment status, it is incumbent on the
employer to clarify and remove any implication that the em-
ployee has been terminated. Tubari Ltd., 287 NLRB 1273,
1285 (1988); Pennypower Shopping News, 253 NLRB 85
(1980).
The application of the above principles to the facts of the
instant case, leads to inescapable conclusion that Bailey was
discharged by Respondent on August 14, 1992, as alleged in
the complaint. The statements made by Rombauts III to Bai-
ley, such as ‘‘get out of here, you caused enough trouble for
us, why don’t you go with your union buddies . . . we don’t
need you any more, why don’t you find another company to
work for,’’ coupled with Rombauts III’s refusal to assign
Bailey work on that day, are more than sufficient to lead a
prudent person to believe that his tenure had been termi-
nated. Ridgeway, supra; Statewide, supra. Indeed, much less
ambiguous statements by employers have been found by the
Board to constitute a discharge. See Shenandoah Coal Co.,
305 NLRB 1071, 1073 (1992) (Statement to employee, ‘‘I
think it’s time for you to leave.’’) Tubari, supra (‘‘Go
home’’).
Moreover, even if Rombauts III’s conduct could be con-
strued as ambiguous, which in my view it is not, Respondent
was obligated to clarify or correct any impression that Bailey
was discharged. Tubari, supra; Pennypower, supra. However,
to the contrary, Marx merely reinforced Bailey’s reasonable
belief that he had been discharged, by his statements later on
that evening, that Bailey ‘‘was not wanted,’’ should ‘‘stay
away from the yard, not to go to the company any more,’’
and should ‘‘go somewhere else.’’
Respondent argues, however, that all the statements made
by Respondent’s officials were consistent with the order of
the Suffolk County judge that Bailey stay away from Re-
spondent’s premises, because of the order of protection that
was issued. However, Respondent conveniently ignores the
fact that all the statements made by Rombauts III, such as
‘‘get out of here,’’ ‘‘find another company to work for,’’ and
‘‘we don’t need you any more,’’ as well as his refusal to as-
sign Bailey work on that day, all occurred prior to the alter-
cation, and prior to the court order of protection.
Finally, I note that Respondent produced no witnesses on
this matter, and therefore no one from Respondent gave any
testimony that it did not intend to fire Bailey by its conduct
on August 14, 1992.
Accordingly, I conclude that Respondent did terminate
Bailey on that date. The evidence is overwhelming that Re-
spondent’s decision to discharge Bailey was motivated by his
protected activities on behalf of the Union, his testimony at
the DOL, and his testimony at the NLRB. Thus, in addition
to the above-described evidence of Respondent’s numerous
unfair labor practices in retaliation for such activities directed
towards Clark, Sauls, as well as Bailey, himself, at the time
of the discharge, Rombauts III criticized Bailey for appearing
at the DOL hearing, mentioned that Bailey had ‘‘cause
enough trouble for us,’’ (an obvious reference to the NLRB
and DOL proceedings), and told him to ‘‘go with your union
buddies.’’ Moreover, Bailey was terminated on his first day
back at work, after he testified at the DOL hearing.
Having concluded that a strong prim facie of discrimina-
tory motivation has been established, it is once again incum-
bent on Respondent to establish that it would have taken the
same action against Bailey, absent his protected conduct. It
has once more failed to meet that burden, particularly inas-
much as it asserts that it never fired Bailey and produced no
evidence that it would have taken the same action against
Bailey, absent his protected activities, or in fact any reason
for the discharge. It is noteworthy that a position paper by
Respondent’s attorney asserted that Bailey was terminated
because of his alleged assault on Rombauts III. However,
even apart from the absence of any evidence from Respond-
ent’s witnesses that Bailey was fired because of the assault,
I note that I have found that Bailey was fired by Respondent
before the physical altercation with Rombauts III took place.
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1), (3), and (4) of the Act by discharging Bailey on
August 14, 1992.
The complaint also alleges that Respondent by Rombauts
III physically assaulted its employee David Bailey in retalia-
tion for Bailey’s protected conduct. In that connection I have
found that after Rombauts III terminated the employment of
Bailey, Rombauts III placed his keys between his fingers in
a ‘‘fist’’ like position, pushed Bailey twice, and head-butted
Bailey on the lip, causing his lip to bleed. In these cir-
cumstances, particularly in view of the timing of the assault,
coupled with the numerous prior unfair labor practices di-
rected against Bailey by Respondent, I conclude that the as-
671ROMAR REFUSE REMOVAL
sault was motivated by Bailey’s protected activities, includ-
ing his union activities, his testimony at the NLRB trial, and
his testimony at the DOL hearing. Therefore, Respondent has
violated Section 8(a)(1) of the Act, by such conduct. Kenrich
Petrochemicals, 294 NLRB 519, 534–535 (1989); Studio
S.J.T. Limited, 277 NLRB 25 1189, 1194 (1985); Graves
Trucking, 246 NLRB 344 (1979), enfd. in pertinent part 692
F.2d 470 (7th Cir. 1982).
REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (4) of the
Act, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act.
I have found above that Respondent discriminated against
employees David Bailey, William Clark, and King Sauls in
various ways and at different periods of time. Moreover, the
appropriate remedies for each of these employees present dif-
ferent issues, which warrants separate consideration and dis-
cussion for each employee.
The first and most serious issue that needs to be decided,
is the question of whether it is appropriate to order Bailey’s
reinstatement. Thus, while I have concluded above that Bai-
ley was discharged on August 14, 1992, for discriminatory
reasons, and that the physical confrontation between Bailey
and Rombauts III occurred prior to the discharge, this finding
does not preclude consideration of such a confrontation and
Bailey’s conduct in connection therewith, in assessing his
rights to reinstatement.
Thus, an employee, even though discriminatorily dis-
charged, can be denied the Board’s traditional remedy of re-
instatement, if the employee engages in acts of serious mis-
conduct which renders the employee unfit for future service
with the Employer. Family Nursing Home, 295 NLRB 923
fn. 2 (1989); Roure Bertrand Dupont, Inc., 271 NLRB 443,
444 (1984). However, the Board looks carefully at the nature
of the unlawful conduct committed by the employer, to see
whether the misconduct of the employee was provoked by or
was an emotional reaction to the employer’s own discrimina-
tion against the employee. Precision Window Mfg. Co., 303
NLRB 946 (1991); Olympic Limousine Service, 278 NLRB
932, 943 (1986); Blue Jeans Corp., 170 NLRB 1425 (1968).
In this regard, an employer cannot provoke an employee to
the point where the employee commits misconduct, and then
rely on this to terminate his employment. ‘‘The more ex-
treme an employer’s wrongful provocation the greater would
be the employee’s justified sense of indignation and the more
likely to excessive expression.’’ NLRB v. MLB Headwear
Co., 349 F.2d 170 (4th Cir. 1965).
In applying the above principles to the facts at hand, it is
useful to briefly review the flagrant, pervasive, and contin-
uous campaign of unlawful conduct directed towards Bailey
by Respondent from January 1991, after Bailey signed a card
for the Union, until his discharge on August 14, 1992. These
unfair labor practices included an unlawful discharge in Jan-
uary 1991, twice conditioning his reinstatement on his agree-
ment to refrain from exercising protected conduct, including
participation in NLRB proceedings (April 1991 and May
1992), and numerous other instances of interference with
Board processes, such as ordering Bailey to make changes in
his affidavits and or testimony at the NLRB (1991 and
1992). Notwithstanding this conduct of Respondent, Bailey
courageously testified at the NLRB trial on June 9, 1992.
This conduct of Bailey, as well as his subsequent testimony
at the DOL, resulted in further unfair labor practices by Re-
spondent, of reducing his workweek by 1 day, suspending
him for 2 days, and ultimately terminating and assaulting
him on August 14, 1992, in retaliation for his protected ac-
tivities, including participation in NLRB proceedings.
It is obvious from evaluating the above events, that Re-
spondent’s provocation of Bailey was extreme and substan-
tial, particularly the interference with NLRB processes. Since
the Board is always very concerned that employees access to
the NLRB to protect their statutory rights is insured, these
kinds of unfair labor practices would seem to be particularly
significant in the Board’s balancing the employer’s conduct
against the reaction of the employee in assessing reinstate-
ment obligations.
Most importantly, however, is the fact that the physical
confrontation was started by Rombauts III’s conduct of push-
ing and head butting Bailey, and causing his lip to bleed. In
such circumstances, Bailey was acting in self-defense when
he retaliated by punching Rombauts III in the mouth.
Whitesville Mill Service Co., 307 NLRB 937, 946 (1992).
See also American Door Co., 181 NLRB 37 (1970).
Accordingly, it is concluded that because of the extreme
provocation of Respondent’s severe and pervasive unfair
labor practices, most particularly its unlawful assault of Bai-
ley which immediately precipitated Bailey’s reaction, that
Bailey’s punching of Rombauts III, in self-defense, does not
render him unfit for future service with Respondent, and
does not disqualify him from receiving the Board’s tradi-
tional remedies of backpay and reinstatement. Whitesville
Mill, supra; American Door, supra; Precision Window, supra;
Olympic Limousine, supra.
Nor does the fact that the State Court judge issued an
order of protection, forbidding Bailey from appearing at Re-
spondent’s premises or having any contact with Rombauts
III, preclude an order of reinstatement. It is well settled that
where a state court law or proceeding conflicts with the
Board’s exclusive statutory mandate to enforce and remedy
unfair labor practices, the NLRB takes precedence. Field
Bridge Associates, 306 NLRB 322, 323 (1992); NLRB v.
State of Florida, 868 F.2d 391, 394 (11th Cir. 1989); Penin-
sula Shipbuilders’ Assn. v. NLRB, 663 F.2d 488, 492 (4th
Cir. 1981); San Diego Bldg. Trades Council v. Garmon 359
U.S. 236, 242–243 (1959). Moreover, ‘‘the preeminence of
the congressional policy in favor of remedying unfair labor
practices is reflected in Section 10(a) of the NLRA, which
states the Board’s power to prevent such practices shall not
be affected by any other means of adjustment or prevention
that has been or may be established by agreement, law or
otherwise.’’ NLRB v. Yellow Freight Systems, 930 F.2d 316,
321 (3d Cir. 1991).
Additionally, it is also noteworthy that the order of protec-
tion was issued here, without the benefit of any testimony or
witnesses, and was apparently granted solely on the basis of
the police officer’s hearsay report of the alleged incident.
Therefore, I conclude that the issuance of the order of pro-
tection does not change my recommendation that Bailey’s
conduct was the result of Respondent’s provocation and did
not render him unfit for future service. See American Door,
supra at 38 fn. 2, where although an employee was convicted
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 As noted above, Clark’s entitlement to backpay, if any, subse-
quent to his separation from Respondent’s employment shall be de-
termined at the compliance stage.
12 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.
of assaulting a supervisor, the Board nonetheless ordered re-
instatement of the employee.
Bailey shall be entitled to backpay from the date of his
initial discharge in January 1991 to his first reinstatement on
April 22, 1991, from the date of his second discharge on Au-
gust 14, 1992, until he is properly reinstated or declines a
proper reinstatement offer from Respondent, for the 2 days
of work that he missed because of his unlawful suspension
on June 19 and 22, 1992, and finally for any loss of work
that resulted from his unlawful reduction in hours subsequent
to June 19, 1992.
As for William Clark, I have found that he was unlawfully
discharged by Respondent on February 22, 1991. In early
May 1991, Clark was reinstated by Respondent, but not to
his regular position as a full-time driver. He was initially em-
ployed in May 1991 as a part-time driver, and then after sev-
eral months switched to a position as a part-time driver and
part-time helper. Then on May 9, 1992, Clark after refusing
to drop his NLRB charges or change his testimony, was un-
lawfully changed to a shapeup employee. Thus, at no time
was Clark ever properly reinstated to his former position of
employment of a full-time driver, to which he was entitled
because of the discriminatory discharge on February 22,
1991.
Therefore, although the record does disclose some evi-
dence that Clark may have been terminated again by Re-
spondent at some point prior to June 9, 1992, this matter was
not litigated here, and the record is insufficient to make any
findings with respect to that question. I shall accordingly,
leave to the compliance stage of this proceeding, the effect,
if any, of Clark’s subsequent termination by Respondent, on
his reinstatement rights, as well as his entitlement to backpay
for any periods after his final separation from employment
from Respondent.
It is appropriate to order that Clark be made whole for
losses suffered as a result of the discrimination against him,
which includes his loss of wages between his discharge on
February 22, 1991, until his reinstatement in May 1991, any
loss of pay that resulted from Respondent’s employing him
on a part-time basis in 1991 and on a shapeup basis in 1992,
and the loss of pay caused by his unlawful 1-day suspension
on May 9, 1992.11
As for Sauls, it is not appropriate to order him reinstated,
since insofar as this record discloses, he was properly rein-
stated to his former position of employment sometime in
May 1991. His backpay period runs from the date of his dis-
charge on February 5, 1991, until his reinstatement in May
1991. He shall also be entitled to be reimbursed for his loss
of pay resulting from his unlawful 1-day suspension on May
9, 1992.
Backpay for all three employees shall be computed with
interest in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987). It is also appropriate to recommend that Re-
spondent remove from its files any reference to the dis-
charges of Clark, Bailey, and Sauls, and notify them in writ-
ing that it has done so, and that evidence of these discharges
will not be used as a basis for future personnel action against
them. Sterling Sugars, 261 NLRB 472 (1982).
CONCLUSIONS OF LAW
1. The Respondent, Romar Refuse Removal, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 813, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By coercively interrogating its employees concerning
their activities on behalf of or support for the Union, or con-
cerning what information its employees supplied to the Na-
tional Labor Relations Board (NLRB) or concerning how its
employees intended to testify at an NLRB trial; by confis-
cating union literature and authorization cards from its em-
ployees and ordering and instructing employees to turn over
such material to it; by unlawfully soliciting grievances from
employees and impliedly promising to remedy such griev-
ances; by threatening employees with discharge or layoff or
other unspecified reprisals if its employees engaged in activi-
ties on behalf of or supported the Union, or if such employ-
ees testified at or participated in proceedings at the National
Labor Relations Board or the Department of Labor (DOL) by
conditioning the reinstatement of employees on their agree-
ment to refrain from engaging in activities on behalf of the
Union, or to refrain from participating in or to withdraw
from the NLRB or DOL proceedings, or to furnish Respond-
ent with a copy of the employees’ statements given to the
NLRB; by promising and granting its employees a wage in-
crease conditioned on the employee supplying Respondent
with a copy of the statement given by the employee to the
NLRB; by demanding and instructing that its employees fur-
nish it with a copy of the statements that the employees gave
to the NLRB, that the employees drop or withdraw their
charges with the NLRB, that employees make changes in
their affidavits given to the NLRB; by informing an em-
ployee that any moneys due that employee from the DOL or
the NLRB would go to child support; by instructing its em-
ployees not to testify at an NLRB proceeding, and promising
to keep the job open for employees who did not so testify;
and by assaulting its employee because the employee en-
gaged in activities on behalf of the Union, and participated
in NLRB and DOL proceedings, Respondent has violated
Section 8(a)(1) of the Act.
4. By discriminatorily discharging, suspending, and reduc-
ing the work hours of its employees, because of the employ-
ees activities on behalf of the Union, and their participation
in or refusal to withdraw NLRB or DOL charges, Respond-
ent has violated Section 8(a)(1), (3), and (4) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
673ROMAR REFUSE REMOVAL
13 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.’’
ORDER
The Respondent, Romar Refuse Removal, Inc., Copiague,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning their
activities on behalf of or support for Local 813, International
Brotherhood of Teamsters, AFL–CIO (the Union) or con-
cerning what information its employees supplied to the Na-
tional Labor Relations Board (the NLRB), or concerning how
its employees intended to testify at an NLRB trial.
(b) Confiscating union literature or authorization cards
from its employees, or ordering and instructing its employees
to turn over such material to Respondent.
(c) Soliciting grievances from employees and impliedly
promising to remedy such grievances.
(d) Threatening its employees with discharge, layoff, or
other unspecified reprisals, if the employees engage in activi-
ties on behalf of or in support of the Union, or if such em-
ployees testify at or participate in proceedings at the NLRB
or the New York State Department of Labor (the DOL).
(e) Conditioning the reinstatement of its employees, on
their agreement to refrain from engaging in activities on be-
half of or in support of the Union, or to refrain from partici-
pating in or to withdraw from NLRB or DOL proceedings,
or to furnish Respondent with a copy of employees’ state-
ments given to th NLRB.
(f) Promising or granting its employees a wage increase or
any other benefits, conditioned on the employees supplying
Respondent with a copy of statements given by the employ-
ees to the NLRB.
(g) Ordering, demanding, or instructing its employees to
furnish Respondent with a copy of statements given by the
employee to the NLRB, or to drop or withdraw charges filed
with the NLRB or to make changes in their statements given
to the NLRB.
(h) Informing its employees that any moneys the employ-
ees would receive from the DOL or NLRB proceedings,
would have to be applied to child support payments.
(i) Ordering, demanding, or instructing its employees to
take off a few days and not to testify at an NLRB trial, and
promising to keep the employees job open for such employ-
ees who did not so testify.
(j) Assaulting its employees because the employees en-
gaged in activities on behalf of or in support of the Union,
or participated in or testified at NLRB or DOL proceedings.
(k) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer David Bailey and William Clark full and imme-
diate reinstatement to their former positions of employment,
or if these jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(b) Make whole Clark, Bailey, and King Sauls for any loss
of earnings and other benefits suffered by them as a result
of the discrimination against them, in the manner set forth
in the remedy section of this decision.
(c) Remove from its files any references to the discharges
of Sauls, Bailey, or Clark and notify them in writing that this
has been done, and that evidence of these unlawful dis-
charges will not be used as a basis for future personnel ac-
tion against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Copiague, New York, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.